Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (No 3) [2009] FCA 335

Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd (No 3) [2009] FCA 335

The Amended Interlocutory Process was dismissed because the plaintiffs, and particularly the first plaintiff, had not shown sufficient colour of right to the final relief to justify freezing orders, the balance of convenience did not favour the relief, there was no evidence of threatened dissipation of assets and the insolvency allegations had been abandoned, the proceedings were a pre-emptive strike not preceded by any demand, and the plaintiffs had materially failed to disclose important facts when obtaining earlier ex parte relief.

Jurisdiction
Australia
Judgment Date
08 April 2009
Procedural Posture
Application for Interlocutory Injunction in the Form of Mareva or Freezing Orders / Amended Interlocutory Process Following Earlier Ex Parte Freezing Orders and Dissolution of Prior Injunctive Relief
Outcome
Amended Interlocutory Process dismissed with costs payable forthwith.
Legal Topics
['mareva Relief' 'freezing Orders' 'interlocutory Injunctions' 'ex Parte Non Disclosure' 'balance of Convenience' 'asset Dissipation' 'just and Equitable Winding Up']
['civil Procedure' 'equity' 'corporations' 'trade Practices'] ['mareva Relief' 'freezing Orders' 'interlocutory Injunctions' 'ex Parte Non Disclosure' 'balance of Convenience' 'asset Dissipation' 'just and Equitable Winding Up']

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Procedural Posture

Application for Interlocutory Injunction in the Form of Mareva or Freezing Orders / Amended Interlocutory Process Following Earlier Ex Parte Freezing Orders and Dissolution of Prior Injunctive Relief

Legal Issues

  1. 1 ['Whether freezing orders should be made against the first, second, third and fourth defendants in the terms of Freezing Order A attached to the Amended Interlocutory Process.' 'Whether the plaintiffs showed sufficient colour of right or a prima facie case to final relief to justify interlocutory freezing relief.' 'Whether there was a danger that assets would be removed, disposed of or otherwise dealt with so that any judgment would not be satisfied.' 'Whether the balance of convenience favoured the grant of the freezing orders.' 'What consequence should follow from the material non-disclosure made when ex parte freezing orders were obtained on 18 March 2009.']

Ratio Decidendi

The Amended Interlocutory Process was dismissed because the plaintiffs, and particularly the first plaintiff, had not shown sufficient colour of right to the final relief to justify freezing orders, the balance of convenience did not favour the relief, there was no evidence of threatened dissipation of assets and the insolvency allegations had been abandoned, the proceedings were a pre-emptive strike not preceded by any demand, and the plaintiffs had materially failed to disclose important facts when obtaining earlier ex parte relief.

Court Disposition

Amended Interlocutory Process dismissed with costs payable forthwith.

Orders

  • ['The Amended Interlocutory Process filed 26 March 2009 be dismissed.' "The first plaintiff pay the defendants' costs of and incidental to the Interlocutory Process filed 18 March 2009, the Amended Interlocutory Process filed 26 March 2009 and the costs thrown away by the amendment of the Originating Process on 26...