Macquarie Bank v Riley Street Nominees [2005] NSWSC 162

Macquarie Bank v Riley Street Nominees [2005] NSWSC 162

Macquarie Bank had a prima facie case against Mr Bardetta on the guarantee and sufficient proof of danger to assets, given the unexplained transfer of real estate to Mrs Bardetta and related mortgage transactions, to justify freezing orders. Disclosure orders were appropriate against Mr Bardetta, Mrs Bardetta and Harmonious Holdings Pty Ltd because they were needed to protect the court's processes and the possible availability of assets, but they had to be limited so that compliance was required only to the extent possible without disclosing material over which privilege against self-incrimination was claimed.

Jurisdiction
Australia
Judgment Date
03 March 2005
Procedural Posture
Application for Mareva Relief, Freezing Orders and Asset Disclosure Orders / Return of Application for Mareva Relief
Outcome
Freezing orders and disclosure orders subject to privilege against self-incrimination made; Harmonious Holdings Pty Ltd joined as a respondent to the notice of motion; liberty to apply reserved.
Legal Topics
['mareva Orders' 'freezing Orders' 'asset Disclosure Orders' 'privilege Against Self Incrimination' 'guarantee Enforcement' 'ex Parte Mandatory Orders' 'refinancing Under Freezing Orders' 'legal Expenses Under Freezing Orders']
['practice and Procedure' 'equity' 'commercial Law'] ['mareva Orders' 'freezing Orders' 'asset Disclosure Orders' 'privilege Against Self Incrimination' 'guarantee Enforcement' 'ex Parte Mandatory Orders' 'refinancing Under Freezing Orders' 'legal Expenses Under Freezing Orders']

Case Brief

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Procedural Posture

Application for Mareva Relief, Freezing Orders and Asset Disclosure Orders / Return of Application for Mareva Relief

Legal Issues

  1. 1 ['Whether freezing orders should continue against Mr Bardetta where Macquarie Bank had a prima facie guarantee claim and there was evidence raising concern that assets may have been transferred to make him judgment-proof.' 'Whether asset disclosure orders should be made against a served respondent who did not appear, while preserving any privilege against self-incrimination.' 'Whether disclosure orders should be made against Mrs Bardetta in relation to assets transferred to her, while preserving any privilege against self-incrimination.' 'Whether Harmonious Holdings Pty Ltd should be joined as a respondent to the notice of motion.' 'How freezing orders should accommodate refinancing of existing liabilities and borrowings for legal expenses.']

Ratio Decidendi

Macquarie Bank had a prima facie case against Mr Bardetta on the guarantee and sufficient proof of danger to assets, given the unexplained transfer of real estate to Mrs Bardetta and related mortgage transactions, to justify freezing orders. Disclosure orders were appropriate against Mr Bardetta, Mrs Bardetta and Harmonious Holdings Pty Ltd because they were needed to protect the court's processes and the possible availability of assets, but they had to be limited so that compliance was required only to the extent possible without disclosing material over which privilege against self-incrimination was claimed.

Court Disposition

Freezing orders and disclosure orders subject to privilege against self-incrimination made; Harmonious Holdings Pty Ltd joined as a respondent to the notice of motion; liberty to apply reserved.

Orders

  • ['The first, second and third respondents shall file and serve within seven days an affidavit setting out such matter as the deponent wishes to place before the court in support of any claim that a privilege against self-incrimination exists if compliance with orders 3 and 4 may incriminate him or her.' 'If a claim...