Hillier v Martin (No 12) [2022] FCA 952

Hillier v Martin (No 12) [2022] FCA 952

There is a real and present danger that the judgment sought by Mr Hillier in relation to the Nordburger joint venture will be frustrated or rendered commercially futile unless broader restraints are imposed to prevent further payments to the first respondent and her associates, given the ongoing payments, loans, and lack of independent scrutiny, as well as declining financial position. The current undertakings are insufficient. The information orders sought are not ancillary to the freezing relief granted, and insufficiently justified.

Parties
Applicant: James Hillier; First Respondent: Victoria Martin; Second Respondent: Nordburger Operations Pty Ltd; Third Respondent: Erik Vari Pty Ltd; Interested Party: Mr T Martin
Jurisdiction
Australia
Judgment Date
17 August 2022
Procedural Posture
Interlocutory Application / Decision on Application for Restraining and Ancillary Orders
Outcome
Application for broader restraint granted subject to conditions; information order refused; other orders as per reasons and orders 1–7 of 17 August 2022.
Legal Topics
Freezing Orders, Injunctions, Joint Ventures, Breach of Trust, Fiduciary Duties, Discovery, Management Fees, Division 7 a Loans
Practice and Procedure Commercial Law Trusts Corporations Law Freezing Orders Injunctions Joint Ventures Breach of Trust +4 more

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Parties

James Hillier

Applicant

Victoria Martin

First Respondent

Nordburger Operations Pty Ltd

Second Respondent

Erik Vari Pty Ltd

Third Respondent

Mr T Martin

Interested Party

Procedural Posture

Interlocutory Application / Decision on Application for Restraining and Ancillary Orders

Legal Issues

  1. 1 Whether a freezing order under r 7.32(1) Federal Court Rules 2011 (Cth) should be made restraining payments to the first respondent or her associates
  2. 2 Whether information orders under r 7.33 Federal Court Rules 2011 (Cth) compelling disclosure about assets and payments should be made

Ratio Decidendi

There is a real and present danger that the judgment sought by Mr Hillier in relation to the Nordburger joint venture will be frustrated or rendered commercially futile unless broader restraints are imposed to prevent further payments to the first respondent and her associates, given the ongoing payments, loans, and lack of independent scrutiny, as well as declining financial position. The current undertakings are insufficient. The information orders sought are not ancillary to the freezing relief granted, and insufficiently justified.

Court Disposition

Application for broader restraint granted subject to conditions; information order refused; other orders as per reasons and orders 1–7 of 17 August 2022.

Orders

  • First and second respondents restrained (injunction granted) from making payments out of Nordburger businesses to the first respondent, her husband or associates, except with leave of the Court, subject to exceptions for director payments up to $500 per week for up to two directors; conditions for leave applications...