Discovery Africa Ltd v Nichol (No 2) [2014] FCA 645

FEDERAL COURT OF AUSTRALIA

Discovery Africa Ltd v Nichol (No 2) [2014] FCA 645 Citation: Discovery Africa Ltd v Nichol (No 2) [2014] FCA 645

Parties: DISCOVERY AFRICA LIMITED (ACN 147 324 847) v KEVIN WILLIAM NICHOL, DANIE VAN DEN BERGH and SINDISE MINING LTD

File number: WAD 87 of 2014

Judge: GILMOUR J

Date of judgment: 26 May 2014

Catchwords: PRACTICE AND PROCEDURE – freezing orders – applicant seeks disclosure of respondents' worldwide assets

Legislation: Federal Court Rules 2011 (Cth) r 10.43

Date of hearing: 26 May 2014

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 8

Counsel for the Applicant: Mr JM Healy

Solicitor for the Applicant: Nova Legal

Counsel for the First Respondent: Mr PW van der Zanden

Solicitor for the First Respondent: Hotchkin Hanly

Counsel for the Second Respondent: Mr MA Stork

Solicitor for the Second Respondent: Fletcher Law

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 87 of 2014

BETWEEN: DISCOVERY AFRICA LIMITED (ACN 147 324 847)

Applicant

AND: KEVIN WILLIAM NICHOL, DANIE VAN DEN BERGH AND SINDISE MINING LTD

Respondent

JUDGE: GILMOUR J DATE OF ORDER: 26 MAY 2014 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The first and second respondents file and serve any affidavits on which they intend to rely in opposition to the interlocutory application on or before 4.00 pm on 6 June 2014. 2. The first and second respondents file and serve an outline of submissions in opposition to the interlocutory application on or before 4.00 pm on 6 June 2014. 3. The applicant file and serve any reply evidence and submissions on or before 10 June 2014. 4. The interlocutory application be fixed for hearing at 9.30 am on 13 June 2014. 5. Without admission, and subject to the usual undertaking being proffered by the applicant: (a) Orders 6 and 7 of the Court's orders dated 16 April 2014 against the first respondent be extended to 5.00 pm (WST) on 13 June 2014. (b) Orders 6 and 7 of the Court's orders of 16 April 2014 against the second respondent be extended to 5.00 pm (WST) on 13 June 2014. (c) Order 7(a)(iii) relating to the first respondent be amended to insert the following paragraphs: (C) your shares in Celamin Holdings NL; and (D) your cash held in St George Bank. 6. By 4.00 pm on 27 May 2014, the first and second respondents disclose to the applicant their worldwide assets by serving a copy of an affidavit by the first and second respondents respectively. 7. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 87 of 2014

BETWEEN: DISCOVERY AFRICA LIMITED (ACN 147 324 847)

Applicant

AND: KEVIN WILLIAM NICHOL, DANIE VAN DEN BERGH AND SINDISE MINING LTD

Respondent

JUDGE: GILMOUR J DATE: 26 MAY 2014 PLACE: PERTH

REASONS FOR JUDGMENT 1 The following are my edited reasons for orders made on 26 May 2014. 2 This is a further directions hearing in this matter. I made orders on 16 April 2014 in the nature of freezing orders as against each of the first and second respondents, Mr Kevin Nichol and Mr Danie van den Bergh respectively. Pursuant to r 10.43 of the Federal Court Rules 2011 (Cth) those orders were served on the respondents, and today they are represented by their respective lawyers. The applicant initially sought orders today extending the reach of the freezing orders and consequential orders made pursuant to these, in particular in relation to Mr Nichol, to include such documents evidencing his asserted interest in a property at 1701/265 Exhibition Street, Melbourne, Victoria, and another at 21/7-11 Elkhorn Avenue, Surfers Paradise, Queensland. 3 The reason for so seeking to extend the orders was by reason of the content of an affidavit sworn by Mr Nichol on 22 May 2014, pursuant to one of the orders I made, that he disclose his assets and liabilities which were within Australia. That affidavit deposed to an asserted one per cent ownership in each of the properties to which I have referred, but also asserted that mortgages totally in excess of $470,000 across the two properties were mortgages in respect of which he was, in each case, the mortgagee. I was informed by Mr van der Zanden, appearing on his behalf today, that during a telephone conversation recently, Mr Nichol informed Mr van der Zanden that, at least so far as Mr van der Zanden understood it, he no longer made the assertions that he had an interest in either of these properties, or indeed was even the mortgagor of either of those properties. 4 However, no affidavit going to either of those matters has been sworn by Mr Nichol. The applicant, Discovery Africa Limited, is, at least for present purposes, prepared to accept that the affidavit, to the extent that I have mentioned it, of Mr Nichol, is incorrect, and accordingly does not immediately press the extension of the freezing orders in the way that I earlier described. However, it does seek to obtain a further order of the Court that, by a date to be fixed, each of the first and second respondents disclose to the applicant particulars of their worldwide assets. 5 The Court has been provided with an affidavit by each of the respondents, which was contained in a sealed envelope and mailed to my chambers, in which they have deposed to the assets and liabilities which they have outside of Australia. However, each of them resists the application for an order that they disclose that information to the applicant. It is to be remembered that the freezing orders already made extend to the respondents' worldwide assets, so in a very real sense, what the applicant is seeking is not an extension of the freezing orders, but merely orders to render those orders already made efficacious. In my opinion it is appropriate that this occur. 6 If there are overseas assets in the nature of bank accounts which are already the subject of the freezing order, the applicant may nonetheless be able to notify the particular bank(s) of the order. There is, accordingly, an added protection for the applicant, but no countervailing prejudice to either of the respondents. 7 The applicant also seeks that order 7(a)(iii) of the orders that I made on 16 April 2014 extend to shares held by Mr Nichol in Celamin Holdings NL, as well as to cash held by him in St George Bank. I am also satisfied that, for the same reasons as in relation to the external assets, it is appropriate to make these consequential orders, which provide efficacy to the orders that I have already made. 8 I will make the orders set out in the orders section of this judgment. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 18 June 2014