GE Capital Australia v Davis [2001] NSWSC 933

GE Capital Australia v Davis [2001] NSWSC 933

The plaintiff had a strong prima facie case against the first and second defendants under their guarantees, and the defendants' sale of their home with substantial equity shortly after the associated companies failed, combined with their failure to disclose any defence, assets, whereabouts or intentions for the proceeds, supported the inference of a real risk that assets would be removed or dissipated so as to deprive the plaintiff of the fruits of judgment. A limited Mareva order over the relevant net sale proceeds was therefore justified.

Jurisdiction
Australia
Judgment Date
26 September 2001
Procedural Posture
Equity Application for a Mareva Order / Interlocutory Application
Outcome
Mareva order made until further order with liberty to the defendants to apply to discharge.
Legal Topics
['mareva Orders' 'interlocutory Injunctions' 'preservation of Assets Pending Judgment' 'substituted Service' 'overriding Purpose']
['equity' 'civil Procedure'] ['mareva Orders' 'interlocutory Injunctions' 'preservation of Assets Pending Judgment' 'substituted Service' 'overriding Purpose']

Case Brief

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Procedural Posture

Equity Application for a Mareva Order / Interlocutory Application

Legal Issues

  1. 1 ['Whether the plaintiff had established a prima facie cause of action against the first and second defendants under their guarantees.' 'Whether there was a danger that the first and second defendants would remove or dissipate assets so that any judgment would not be satisfied.' "Whether the application should proceed despite the defendants' contention that they had not been personally served in accordance with the Rules."]

Ratio Decidendi

The plaintiff had a strong prima facie case against the first and second defendants under their guarantees, and the defendants' sale of their home with substantial equity shortly after the associated companies failed, combined with their failure to disclose any defence, assets, whereabouts or intentions for the proceeds, supported the inference of a real risk that assets would be removed or dissipated so as to deprive the plaintiff of the fruits of judgment. A limited Mareva order over the relevant net sale proceeds was therefore justified.

Court Disposition

Mareva order made until further order with liberty to the defendants to apply to discharge.

Orders

  • ['The first and second defendants were restrained from disposing of, charging, mortgaging, otherwise encumbering or creating an interest in the net proceeds of sale of the property other than any amount in excess of $600,000.' 'The first and second defendants were restrained from further charging, mortgaging or...