Nevro Medical Pty Ltd v McKelvie [2020] FCA 1412

Nevro Medical Pty Ltd v McKelvie [2020] FCA 1412

On the untested and uncontradicted evidence available on the ex parte application, Nevro had a good arguable case that Mr McKelvie contravened s 182(1) of the Corporations Act 2001 (Cth), breached fiduciary duties and breached conditions of his employment contract. The alleged serious dishonesty, admissions, forensic accounting evidence, failure to engage on repayment, and evidence of jointly owned assets established a sufficient danger that a prospective judgment would be wholly or partly unsatisfied because Mr McKelvie and/or his wife might dispose of, deal with or diminish the value of assets. The proposed orders were appropriate, including because they preserved allowances for living,...

Jurisdiction
Australia
Judgment Date
29 September 2020
Procedural Posture
Ex Parte Interlocutory Application for Freezing and Ancillary Orders Under Div 7.4 of the Federal Court Rules 2011 (cth) / Duty Judge Hearing; Interlocutory Freezing Orders Granted Pending Return Date
Outcome
Freezing and ancillary orders granted ex parte against Stuart McKelvie and Natalie McKelvie; costs reserved.
Legal Topics
['freezing Orders' 'ancillary Orders' 'ex Parte Relief' 'good Arguable Case' 'dissipation of Assets' 'misappropriation of Employer Funds' 'fiduciary Duties' 'section 182 Corporations Act Duties']
['practice and Procedure' 'employment and Industrial Relations' 'corporations Law' 'contract' 'equity'] ['freezing Orders' 'ancillary Orders' 'ex Parte Relief' 'good Arguable Case' 'dissipation of Assets' 'misappropriation of Employer Funds' 'fiduciary Duties' 'section 182 Corporations Act Duties']

Case Brief

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Procedural Posture

Ex Parte Interlocutory Application for Freezing and Ancillary Orders Under Div 7.4 of the Federal Court Rules 2011 (cth) / Duty Judge Hearing; Interlocutory Freezing Orders Granted Pending Return Date

Legal Issues

  1. 1 ['Whether Nevro had a good arguable case against Mr McKelvie for the purposes of r 7.35 of the Federal Court Rules 2011 (Cth).' "Whether there was a danger that a prospective judgment in Nevro's favour would be wholly or partly unsatisfied because Mr McKelvie and/or his wife might dispose of, deal with or diminish the value of assets." 'Whether freezing and ancillary orders should be made ex parte against Mr McKelvie and Natalie McKelvie.']

Ratio Decidendi

On the untested and uncontradicted evidence available on the ex parte application, Nevro had a good arguable case that Mr McKelvie contravened s 182(1) of the Corporations Act 2001 (Cth), breached fiduciary duties and breached conditions of his employment contract. The alleged serious dishonesty, admissions, forensic accounting evidence, failure to engage on repayment, and evidence of jointly owned assets established a sufficient danger that a prospective judgment would be wholly or partly unsatisfied because Mr McKelvie and/or his wife might dispose of, deal with or diminish the value of assets. The proposed orders were appropriate, including because they preserved allowances for living,...

Court Disposition

Freezing and ancillary orders granted ex parte against Stuart McKelvie and Natalie McKelvie; costs reserved.

Orders

  • ['The application for interlocutory relief be returnable immediately.' "A freezing order be made against the respondent and his wife in the terms specified in Annexure 'A'." 'The proceeding be adjourned until 10:15am on Tuesday, 6 October 2020.' 'Costs be reserved.' 'The time for service of the application,...