Rafferty v Time 2000 West Pty Ltd (No 7) [2011] FCA 405

Rafferty v Time 2000 West Pty Ltd (No 7) [2011] FCA 405

Because the judgment against the Donovan interests remains unsatisfied, an act of bankruptcy has occurred, and a process is available whereby the trustee in bankruptcy may control Gemhall and its assets, the danger of the judgment being wholly or partly unsatisfied continues. Therefore, circumstances have not changed materially since the freezing order was made, and the order should continue.

Parties
Applicant: Patrick Campbell Rafferty; Applicant: Santora Holdings Pty Ltd ACN 128 467 550; Applicant: Karaville Holdings Pty Ltd ACN 009 439 178; Respondent: Time 2000 West Pty Ltd ACN 127 893 270; Respondent/second Cross Claimant: Time 2000 Systems (Australia) Pty Ltd ACN 127 853 614; Respondent/third Cross Claimant: Time 2000 Operations (Australia) Pty Ltd ACN 128 700 541; Respondent/fourth Cross Claimant: Embleton Limited (A Company Incorporated in Hong Kong); Respondent/first Cross Claimant: Stephen Gerard Donovan; Respondent/cross Respondent: Madgwicks; Non Party Applicant: Gemhall Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
21 April 2011
Procedural Posture
Application in Existing Federal Court Proceedings / Application to Discharge Freezing Order (interlocutory)
Outcome
Application to discharge the freezing order dismissed.
Legal Topics
Freezing Orders, Injunctions, Third Party Mareva Injunctions, Trust Law, Bankruptcy, Costs
Civil Procedure Freezing Orders Injunctions Third Party Mareva Injunctions Trust Law Bankruptcy Costs

Case Brief

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Parties

Patrick Campbell Rafferty

Applicant

Santora Holdings Pty Ltd ACN 128 467 550

Applicant

Karaville Holdings Pty Ltd ACN 009 439 178

Applicant

Time 2000 West Pty Ltd ACN 127 893 270

Respondent

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

Respondent/second Cross Claimant

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

Respondent/third Cross Claimant

Embleton Limited (A Company Incorporated in Hong Kong)

Respondent/fourth Cross Claimant

Stephen Gerard Donovan

Respondent/first Cross Claimant

Madgwicks

Respondent/cross Respondent

Gemhall Holdings Pty Ltd

Non Party Applicant

Procedural Posture

Application in Existing Federal Court Proceedings / Application to Discharge Freezing Order (interlocutory)

Legal Issues

  1. 1 Whether the freezing orders made against Gemhall Holdings Pty Ltd ought to be discharged due to change in circumstances or law.
  2. 2 Whether the judgment creditor remains exposed to a danger that judgment will be wholly or partly unsatisfied if the orders are discharged.
  3. 3 The correct legal test for a third party freezing order under Federal Court Rules O 25A r 5(5).

Ratio Decidendi

Because the judgment against the Donovan interests remains unsatisfied, an act of bankruptcy has occurred, and a process is available whereby the trustee in bankruptcy may control Gemhall and its assets, the danger of the judgment being wholly or partly unsatisfied continues. Therefore, circumstances have not changed materially since the freezing order was made, and the order should continue.

Court Disposition

Application to discharge the freezing order dismissed.

Orders

  • Paragraph 3 of Gemhall Holdings Pty Ltd's notice of motion of 10 November 2010 to revoke the orders made by Besanko J on 19 December 2008 and varied by Besanko J on 31 August 2010 and Lander J on 15 November 2010, 22 November 2010, 15 February 2011 and 23 February 2011 is dismissed.
  • Gemhall Holdings Pty Ltd to pay the applicants' costs of the application since 17 March 2011 and the hearing of 31 March 2011.