Gap Constructions Pty Limited & Anor v Vigar Pty Limited & Ors [2011] NSWSC 1205

Gap Constructions Pty Limited & Anor v Vigar Pty Limited & Ors [2011] NSWSC 1205

Because the funds subject to restraint are specifically alleged to be traceable to breaches of fiduciary duty and are the subject matter of the claim (rather than all assets of the defendants), it is appropriate to continue the injunction without exceptions for living or legal expenses. The defendants have substantially dissipated the funds and allowing the previous regime to continue would further frustrate plaintiffs’ ability to recover. There has been a material change in circumstances since the last orders due to depletion of the funds.

Parties
Plaintiff: Gap Constructions Pty Limited; Plaintiff: Peter Bega; Defendant: Vigar Pty Limited; Defendant: Bega Pty Limited; Defendant: Con Bosganas; Defendant: Bugong Pty Limited
Jurisdiction
Australia
Judgment Date
27 September 2011
Procedural Posture
Interlocutory Application / Interlocutory Injunction – Continuation Hearing
Outcome
Interlocutory orders continued – injunction restraining fourth defendant from dealing with or disposing of relevant moneys and shares to remain in force until final hearing or further order. Costs of the application to be plaintiffs’ costs in the proceedings.
Legal Topics
Interlocutory Injunctions, Asset Preservation, Breach of Fiduciary Duty, Tracing of Funds
Equity Corporations Law Interlocutory Injunctions Asset Preservation Breach of Fiduciary Duty Tracing of Funds

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Parties

Gap Constructions Pty Limited

Plaintiff

Peter Bega

Plaintiff

Vigar Pty Limited

Defendant

Bega Pty Limited

Defendant

Con Bosganas

Defendant

Bugong Pty Limited

Defendant

Procedural Posture

Interlocutory Application / Interlocutory Injunction – Continuation Hearing

Legal Issues

  1. 1 Whether the interlocutory injunction restraining the fourth defendant from dealing with or disposing of certain moneys and shares should be continued until final hearing or further order
  2. 2 Whether exemptions for living and legal expenses should apply to injunctions over specific assets alleged to be traceable from breach of fiduciary duty

Ratio Decidendi

Because the funds subject to restraint are specifically alleged to be traceable to breaches of fiduciary duty and are the subject matter of the claim (rather than all assets of the defendants), it is appropriate to continue the injunction without exceptions for living or legal expenses. The defendants have substantially dissipated the funds and allowing the previous regime to continue would further frustrate plaintiffs’ ability to recover. There has been a material change in circumstances since the last orders due to depletion of the funds.

Court Disposition

Interlocutory orders continued – injunction restraining fourth defendant from dealing with or disposing of relevant moneys and shares to remain in force until final hearing or further order. Costs of the application to be plaintiffs’ costs in the proceedings.

Orders

  • Orders made by Rein J on 23 September 2011, restraining the fourth defendant from dealing with or disposing of all monies and shares in specified accounts, to continue until hearing or further order.
  • Costs of the application to be plaintiffs' costs in the proceedings.