Rafferty v Time 2000 West Pty Limited (No 2) [2008] FCA 1931

Rafferty v Time 2000 West Pty Limited (No 2) [2008] FCA 1931

A freezing order may be made where, though the fifth respondent is only a potential beneficiary under a discretionary trust and holds no proprietary interest, the 'may' in Order 25A and Cardile provides jurisdiction to cover this circumstance, particularly where there is a risk that judgment will go unsatisfied and process may ultimately be available to reach assets held in trust.

Parties
Applicant: Patrick Campbell Rafferty; Applicant: Santora Holdings Pty Limited ACN 128 467 550; Applicant: Karaville Holdings Pty Limited ACN 009 439 178; Respondent: Time 2000 West Pty Limited ACN 127 893 270; Respondent: Time 2000 Systems (Australia) Pty Limited ACN 127 853 614; Respondent: Time 2000 Operations (Australia) Pty Limited ACN 128 700 541; Respondent: Embleton Limited (a company incorporated in Hong Kong); Respondent: Stephen Gerard Donovan
Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Application for Freezing Orders (practice and Procedure) / Interlocutory Order and Reasons on Application for Freezing Orders
Outcome
Orders made granting freezing order subject to further submissions on form of orders.
Legal Topics
Freezing Orders (mareva Injunctions), Third Party Mareva Orders, Trust and Beneficiary Interests, Franchise Systems and Industry Codes
Practice and Procedure Equity Bankruptcy and Insolvency Trade Practices Freezing Orders (mareva Injunctions) Third Party Mareva Orders Trust and Beneficiary Interests Franchise Systems and Industry Codes

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Parties

Patrick Campbell Rafferty

Applicant

Santora Holdings Pty Limited ACN 128 467 550

Applicant

Karaville Holdings Pty Limited ACN 009 439 178

Applicant

Time 2000 West Pty Limited ACN 127 893 270

Respondent

Time 2000 Systems (Australia) Pty Limited ACN 127 853 614

Respondent

Time 2000 Operations (Australia) Pty Limited ACN 128 700 541

Respondent

Embleton Limited (a company incorporated in Hong Kong)

Respondent

Stephen Gerard Donovan

Respondent

Procedural Posture

Application for Freezing Orders (practice and Procedure) / Interlocutory Order and Reasons on Application for Freezing Orders

Legal Issues

  1. 1 Whether the applicant has a good arguable case on an accrued cause of action against the respondents
  2. 2 Whether there is a danger that a judgment in favour of the applicants will remain wholly or partly unsatisfied if recovery is restricted to the assets of the respondents
  3. 3 Whether a process may be available upon judgment pursuant to which a third party may be obliged to disgorge property or otherwise contribute to the satisfaction of judgment against the respondents, where properties are held by third parties as trustees and a respondent is a potential beneficiary

Ratio Decidendi

A freezing order may be made where, though the fifth respondent is only a potential beneficiary under a discretionary trust and holds no proprietary interest, the 'may' in Order 25A and Cardile provides jurisdiction to cover this circumstance, particularly where there is a risk that judgment will go unsatisfied and process may ultimately be available to reach assets held in trust.

Court Disposition

Orders made granting freezing order subject to further submissions on form of orders.

Orders

  • The parties have leave to make further submissions, if so advised, on the form of the orders sought by the applicants in their notice of motion dated 5 December 2008.
  • Freezing order and ancillary orders to be made as sought by applicants, subject to submissions.