Westpac Banking Corporation v McArthur [2007] NSWSC 1347

Westpac Banking Corporation v McArthur [2007] NSWSC 1347

Westpac established a good arguable case against Mr McArthur because his statement at the 19 September 2007 meeting squarely implicated him in the submission of false invoices to Westpac. Westpac did not establish a good arguable case against Mr Fritsche because the evidence did not reliably show his active and knowing involvement; the word "we" in Mr McArthur's statement was equivocal and Mr Fritsche's silence was consistent with several possibilities. As to Mr McArthur, his acknowledged involvement in false invoices, the apparent diversion of $180,000 of BMT money for the benefit of himself and his children, and his stated intention or conduct concerning moving assets offshore showed a...

Jurisdiction
Australia
Judgment Date
27 November 2007
Procedural Posture
Equity Division Proceedings by Summons Seeking Payment, Account and Ancillary Claims, With Notice of Motion for Freezing Orders / Interlocutory Application for Continuation or Re Imposition of Freezing Orders After Ex Parte Orders
Outcome
Freezing order in modified form renewed in respect of the first defendant; freezing order discharged in respect of the second defendant.
Legal Topics
['freezing Orders' 'good Arguable Case' 'danger of Dissipation of Assets' 'ex Parte Application and Duty of Candour' 'undertaking to the Court' 'exceptions for Legal Expenses and Living Expenses']
['civil Procedure' 'equity' 'corporations' 'evidence' 'trade Practices and Fair Trading'] ['freezing Orders' 'good Arguable Case' 'danger of Dissipation of Assets' 'ex Parte Application and Duty of Candour' 'undertaking to the Court' 'exceptions for Legal Expenses and Living Expenses']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Division Proceedings by Summons Seeking Payment, Account and Ancillary Claims, With Notice of Motion for Freezing Orders / Interlocutory Application for Continuation or Re Imposition of Freezing Orders After Ex Parte Orders

Legal Issues

  1. 1 ['Whether Westpac had a good arguable case against each defendant for the purposes of rule 25.14(1)(b)(i) of the Uniform Civil Procedure Rules 2005.' 'Whether there was a danger that a prospective judgment would be wholly or partly unsatisfied because assets might be removed, disposed of, dealt with or diminished in value.' 'Whether the form of any freezing order should include fixed monetary exceptions for living expenses, legal expenses, accounting fees and pre-existing liabilities.' 'Whether Westpac breached its duty of candour in obtaining the ex parte freezing orders.' 'Whether Westpac breached its undertaking to provide a transcript or note of oral allegations and submissions made on the ex parte application.']

Ratio Decidendi

Westpac established a good arguable case against Mr McArthur because his statement at the 19 September 2007 meeting squarely implicated him in the submission of false invoices to Westpac. Westpac did not establish a good arguable case against Mr Fritsche because the evidence did not reliably show his active and knowing involvement; the word "we" in Mr McArthur's statement was equivocal and Mr Fritsche's silence was consistent with several possibilities. As to Mr McArthur, his acknowledged involvement in false invoices, the apparent diversion of $180,000 of BMT money for the benefit of himself and his children, and his stated intention or conduct concerning moving assets offshore showed a...

Court Disposition

Freezing order in modified form renewed in respect of the first defendant; freezing order discharged in respect of the second defendant.

Orders

  • ['Short minutes of orders giving effect to the reasons to be filed by delivery to the Associate within seven days.' 'Proceedings listed at 9.30am on 6 December 2007 for settling the orders and hearing argument on costs.' "Upon the plaintiff's existing undertaking as to damages, orders 1 and 2 made on 3 October 2007,...