Melewar Steel Ventures Limited v ANZ Nominees Limited; Terpu v ANZ Nominees Limited [2008] NSWCA 68

Melewar Steel Ventures Limited v ANZ Nominees Limited; Terpu v ANZ Nominees Limited [2008] NSWCA 68

Applicants failed to demonstrate a sufficiently strong equitable proprietary claim to support an interlocutory injunction against the bank; the contracts clearly passed title to the broker, and the evidence did not show the bank took with notice of misrepresentation. The balance of convenience and adequacy of damages did not favour injunctive relief, and no error was identified in the primary judge’s reasoning. Leave to appeal refused, summons dismissed with costs, and injunctions dissolved.

Parties
Applicant in 40089/08: Melewar Steel Ventures Limited; First Applicant in 40090/08: John Sotirious Terpu; Second Applicant in 40090/08: Valleybrook Investments Pty Ltd; First Respondent in Both Matters: ANZ Nominees Limited; Second Respondent in 40089/08 and Fourth Respondent in 40090/08: Opes Prime Stockbroking Limited (Receivers and Managers appointed) (Administrators Appointed); Third Respondent in 40089/08 and Second Respondent in 40090/08: ANZ Banking Group Limited; Third Respondent in 40090/08: Southeastern Capital Limited (formerly called Opes Prime Securities Limited); Fifth Respondent in 40090/08: Leveraged Capital Pty Ltd (Receivers and Managers Appointed) Administrators Appointed)
Jurisdiction
Australia
Judgment Date
21 April 2008
Procedural Posture
Civil Appeal / Leave to Appeal Against Refusal of Interlocutory Injunction (equity Division, Supreme Court of Nsw)
Outcome
Leave to appeal refused; Summons dismissed with costs; Orders for extension of injunctions dissolved.
Legal Topics
Interlocutory Injunctions, Proprietary Interests in Shares, Misrepresentation, Tracing and Following Property, Balance of Convenience, Adequacy of Damages
Equity Interlocutory Injunctions Proprietary Interests in Shares Misrepresentation Tracing and Following Property Balance of Convenience Adequacy of Damages

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Parties

Melewar Steel Ventures Limited

Applicant in 40089/08

John Sotirious Terpu

First Applicant in 40090/08

Valleybrook Investments Pty Ltd

Second Applicant in 40090/08

ANZ Nominees Limited

First Respondent in Both Matters

Opes Prime Stockbroking Limited (Receivers and Managers appointed) (Administrators Appointed)

Second Respondent in 40089/08 and Fourth Respondent in 40090/08

ANZ Banking Group Limited

Third Respondent in 40089/08 and Second Respondent in 40090/08

Southeastern Capital Limited (formerly called Opes Prime Securities Limited)

Third Respondent in 40090/08

Leveraged Capital Pty Ltd (Receivers and Managers Appointed) Administrators Appointed)

Fifth Respondent in 40090/08

Procedural Posture

Civil Appeal / Leave to Appeal Against Refusal of Interlocutory Injunction (equity Division, Supreme Court of Nsw)

Legal Issues

  1. 1 Whether the applicants have a serious question to be tried establishing an equitable proprietary claim in shares transferred to a broker and then to a bank
  2. 2 Whether misrepresentation by the broker creates a right to trace and follow shares in the hands of a third party bank
  3. 3 Whether the bank had notice of the misrepresentation or other vitiating factors

Ratio Decidendi

Applicants failed to demonstrate a sufficiently strong equitable proprietary claim to support an interlocutory injunction against the bank; the contracts clearly passed title to the broker, and the evidence did not show the bank took with notice of misrepresentation. The balance of convenience and adequacy of damages did not favour injunctive relief, and no error was identified in the primary judge’s reasoning. Leave to appeal refused, summons dismissed with costs, and injunctions dissolved.

Court Disposition

Leave to appeal refused; Summons dismissed with costs; Orders for extension of injunctions dissolved.

Orders

  • Leave to appeal refused in both matters
  • Summons dismissed with costs in both matters