BCI Finances Pty Limited (in liq) v G R Binetter as the Representative of the Estate of E Binetter [2015] FCA 86

BCI Finances Pty Limited (in liq) v G R Binetter as the Representative of the Estate of E Binetter [2015] FCA 86

The fourth respondent's discharge application failed because the matters said not to have been disclosed were not material to the ex parte interim relief under Corporations Act 2001 (Cth) s 1323, being relevant at most to an undertaking as to damages that s 1323(4) precluded the Court from requiring as a condition of interim relief, or to a possible security for costs application. The affidavits of assets were ordered against the third, fourth, eighth and tenth respondents because the Court had power under r 7.33, there was sufficient evidence supporting freezing orders, the entitlements of particular respondents to assets were unclear, and the information was appropriate for the purposes...

Jurisdiction
Australia
Judgment Date
13 February 2015
Procedural Posture
Federal Court Proceeding Involving Interim Relief Under Corporations Act 2001 (cth) S 1323, Freezing Orders, Affidavit of Assets, and Transfer of Proceedings / Reasons for Orders on Three Interlocutory Applications Made on 13 February 2015
Outcome
The fourth respondent's application to discharge the orders made on 15 January 2015 was dismissed; the third, fourth, eighth and tenth respondents were ordered to provide affidavits of assets; the proceeding was transferred to the New South Wales District Registry.
Legal Topics
['affidavit of Assets' 'freezing Orders' 'ex Parte Interim Relief' 'non Disclosure on Ex Parte Application' 'undertaking as to Damages' 'transfer of Proceedings']
['practice and Procedure' 'corporations' 'insolvency'] ['affidavit of Assets' 'freezing Orders' 'ex Parte Interim Relief' 'non Disclosure on Ex Parte Application' 'undertaking as to Damages' 'transfer of Proceedings']

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Procedural Posture

Federal Court Proceeding Involving Interim Relief Under Corporations Act 2001 (cth) S 1323, Freezing Orders, Affidavit of Assets, and Transfer of Proceedings / Reasons for Orders on Three Interlocutory Applications Made on 13 February 2015

Legal Issues

  1. 1 ['Whether orders made on 15 January 2015 requiring the fourth respondent to deliver up his passport and not leave Australia should be discharged for alleged non-disclosure on an ex parte application.' 'Whether the third, fourth, eighth and tenth respondents and third parties should be ordered to provide affidavits of assets.' 'Whether there was sufficient evidence to sustain a freezing order against the third respondent.' 'Whether the proceeding should be transferred to the New South Wales District Registry.']

Ratio Decidendi

The fourth respondent's discharge application failed because the matters said not to have been disclosed were not material to the ex parte interim relief under Corporations Act 2001 (Cth) s 1323, being relevant at most to an undertaking as to damages that s 1323(4) precluded the Court from requiring as a condition of interim relief, or to a possible security for costs application. The affidavits of assets were ordered against the third, fourth, eighth and tenth respondents because the Court had power under r 7.33, there was sufficient evidence supporting freezing orders, the entitlements of particular respondents to assets were unclear, and the information was appropriate for the purposes...

Court Disposition

The fourth respondent's application to discharge the orders made on 15 January 2015 was dismissed; the third, fourth, eighth and tenth respondents were ordered to provide affidavits of assets; the proceeding was transferred to the New South Wales District Registry.

Orders

  • ["The fourth respondent's application to discharge the orders made on 15 January 2015 be dismissed." 'Subject to paragraph 3, the third, fourth, eighth and tenth respondents must within 14 working days to the best of their ability inform the applicant, by its lawyers, in writing of all their assets, giving value,...