Insolvency Guardian Melbourne Pty Ltd v Carlei [2016] FCA 72

Insolvency Guardian Melbourne Pty Ltd v Carlei [2016] FCA 72

The applicant satisfactorily established a good arguable case on a prospective cause of action for breach of director's duties and involvement in diversion of funds, satisfied the criteria for granting a freezing order under rule 7.35 of the Federal Court Rules 2011 (Cth), and demonstrated sufficient risk that assets might be disposed of or diminished, warranting the making of a freezing order up to AUD $400,000 against the respondents.

Jurisdiction
Australia
Judgment Date
09 February 2016
Procedural Posture
Ex Parte Application for Freezing Order / Interlocutory
Outcome
Freezing order granted ex parte, returnable for hearing on 17 February 2016.
Legal Topics
['freezing Orders' "director's Duties" 'equity' 'asset Preservation']
['commercial Law' 'corporations Law' 'insolvency Law'] ['freezing Orders' "director's Duties" 'equity' 'asset Preservation']

Case Brief

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Procedural Posture

Ex Parte Application for Freezing Order / Interlocutory

Legal Issues

  1. 1 ['Whether applicant has a good arguable case against respondents' 'Whether there is sufficient prospect that judgment will be enforceable' 'Whether there is a danger that a prospective judgment will be unsatisfied by disposition of assets']

Ratio Decidendi

The applicant satisfactorily established a good arguable case on a prospective cause of action for breach of director's duties and involvement in diversion of funds, satisfied the criteria for granting a freezing order under rule 7.35 of the Federal Court Rules 2011 (Cth), and demonstrated sufficient risk that assets might be disposed of or diminished, warranting the making of a freezing order up to AUD $400,000 against the respondents.

Court Disposition

Freezing order granted ex parte, returnable for hearing on 17 February 2016.

Orders

  • ['Respondents must not remove or deal with Australian assets up to unencumbered value of AUD$400,000.' 'Respondents must inform applicant in writing of all assets and swear and serve affidavit within five working days.' 'Exceptions provided for living expenses, legal fees, ordinary business course, and contractual...