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[2010] NSWSC 669
plaintiff. Defendant's Notice of Motion dismissed. Orders for substituted service upheld; Court retained jurisdiction; permanent/temporary stay refused; freezing orders continued. Costs reserved (see...
The Supreme Court dismissed the defendant's application to set aside substituted service and refused to stay or dismiss the proceedings. Palmer J held that substituted service was properly authorised because (i) the plaintiffs had established a strong prima facie case, (ii) there was a real possibility the defendant would evade personal service if forewarned, and (iii) substituted service would effectively notify him. The Court found jurisdiction based on contracts made in NSW and an exclusive jurisdiction clause, refused a forum non conveniens stay, and continued freezing orders because of the risk of dissipation and absence of hardship evidence (see [31]–[56]).
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Alstom Limited and related Alstom companies commenced proceedings in the NSW Supreme Court against Mr George (Georgios) Sirakas, alleging breaches of duties of good faith, loyalty and honesty in relation to two sets of transactions said to have occurred in Romania: (1) the Glina land purchase involving United Media Management SRL (UMM), and (2) transactions concerning an Excitation General System which resulted in alleged secret commissions (see [9]–[21]). The plaintiffs obtained ex parte interim relief on 8 December 2009: orders for substituted service of the Statement of Claim and freezing orders. Substituted service involved leaving the Statement of Claim with the solicitor acting for Mr Sirakas in concurrent family proceedings and leaving a copy at a residential property in Newtown (see [2], [31]).
1 cited instrument linked from this judgment.
Mr Sirakas, without entering an appearance, applied under UCPR 12.11 to set aside substituted service, sought declarations that the Court lacked jurisdiction, sought a permanent or temporary stay (forum non conveniens), and sought discharge of the freezing orders (see [3], [5]). Palmer J heard the matter on 16 April 2010 and delivered judgment on 23 June 2010. The Court dismissed the defendant's motion: substituted service orders were not set aside, the Court retained jurisdiction, a stay was refused, and the freezing orders were continued (see [56]–[57]).
The decision rests on two interrelated strands: (A) the correct approach to ex parte orders for substituted service and when they should be set aside, and (B) the forum conveniens analysis given the contractual links to NSW.
A. Substituted service, 'practicable' and ex parte review
Palmer J began by identifying the statutory threshold: UCPR 10.14(1)(a) permits substituted service only where personal service cannot "practicably" be effected (see [33], [40]). The judge emphasised that "impracticable" is a flexible concept; it does not mean "impossible" nor simply "inconvenient" (see [40]). The relevant inquiry is fact-sensitive as at the time of the application, balanced between the plaintiff's need to prevent frustration of proceedings and the defendant's entitlement to efficacious notice (see [40]–[42]).
A key factual consideration is whether there is a "real possibility" (not remote or fanciful) that if the defendant were forewarned by attempts at personal service, he would take steps that would defeat or frustrate the plaintiff's claim (see [41], [43]). Here the evidence before the ex parte judge included: a strong prima facie case of fraud; inference of concealment through an offshore company; the defendant being temporarily in NSW with uncertain departure; unsuccessful attempts to contact him through his family solicitor; and surveillance that did not locate him (see [38]). Palmer J held that, on that evidence, there was a real possibility of evasion and substituted service was appropriately ordered.
On the application to set aside under UCPR 12.11(1)(b), Palmer J applied the standard akin to interlocutory review: the defendant must show the original judge made an error of principle, a material error of fact, took into account irrelevant matters, failed to consider relevant matters, or reached an unreasonably wrong conclusion (see [35]–[36]). No transcript or reasons were available from the ex parte hearing but the court file showed sufficient evidence to justify the order; there was therefore no miscarriage of discretion (see [37]).
B. Jurisdiction and forum non conveniens
Palmer J accepted the plaintiffs' primary jurisdictional foundation: substituted service was effected while the defendant was within NSW (see [31]–[33]). Independently, the Employment Contract (1992) and the International Mobility Agreement (2006) were made in Sydney, included an express choice of Australian law and an exclusive jurisdiction clause (cl 15.2), and the alleged breaches occurred during the term of the Mobility Agreement even though some loss manifested after expiry (see [6]–[8], [24]–[26]). Accordingly, contractual claims fell squarely within NSW jurisdiction (see [26]–[27]).
The forum non conveniens analysis required the defendant to demonstrate that NSW was a "clearly inappropriate" forum. The Court acknowledged the strong Romanian factual matrix but emphasised the weight of the parties' contractual choice and the connection to NSW through the contract formation and governing law (see [49]–[53]). Further, Romanian criminal proceedings were prospective only; no evidence showed that concurrent criminal proceedings would necessarily make the civil suit oppressive; the defendant's assets in NSW and possible difficulty in enforcing judgments elsewhere were relevant (see [50]–[53]). On the material available, the defendant had not discharged the onus of demonstrating clear inappropriateness; the stay was refused (see [52]–[54]).
C. Freezing orders
Given the prima facie case of serious dishonesty, the presence of an offshore conduit and a real risk of dissipation, and no evidence of hardship from the defendant, Palmer J continued the freezing orders made ex parte (see [55]–[56]).
Before this decision, principles governing substituted service, the meaning of "practicable" and the standards for setting aside interlocutory orders were established in authorities cited in the judgment (e.g., Laurie v Carroll; Re Conan Doyle's Will Trusts; Syndicate Mortgage; Micallef; Global Partners). What Alstom v Sirakas clarifies is the practical application of those principles in a fact pattern involving an ex parte substituted service request where the defendant was temporarily present in the jurisdiction but potentially able to leave quickly, and where offshore structures suggested concealment.
After Alstom v Sirakas practitioners should note:
Paragraph [40]: "'Impracticable' does not mean 'impossible'... nor does it mean 'inconvenient'." Translation: The Court will not demand impossibility before permitting substituted service. The test is practical: whether personal service would realistically be effective without risking injustice.
Paragraph [41]: "One factor ... is whether ... there is a real possibility ... that an attempt at personal service ... will result in the defeat or frustration of the plaintiff's proceedings." Translation: If trying to serve the defendant would likely tip him off so he could escape or hide assets, that is a valid reason to allow substituted service.
Paragraph [36]: The standard for setting aside an ex parte order requires showing that the judge erred in principle or fact or reached an unreasonable result. Translation: A defendant cannot lightly overturn an interlocutory ex parte order; the court looks for an identifiable error in how the earlier judge exercised discretion.
Paragraph [43]: Evidence suggested a real possibility the defendant would leave the jurisdiction if forewarned. Translation: Facts such as proxies, offshore accounts and temporary presence increase the risk that personal service would be counterproductive.
Paragraph [56]: "The freezing orders ... will not be discharged." Translation: The Court continued the asset-freeze because it was satisfied there was a bona fide case and a risk assets would be moved out of reach.
This judgment is most directly relevant where:
In those circumstances, Alstom v Sirakas supports orders for substituted service and continuation of freezing orders where the court is satisfied substituted means will give efficacious notice and there is a real risk of evasion or dissipation (see [38], [41], [43], [55]).
This deep dive is constrained to the judgment text. Palmer J cited and applied well-established authorities on substituted service and interlocutory review (see [32], [36], [40]). The judgment itself did not report subsequent judicial treatment. Practitioners should treat Alstom v Sirakas as an application of settled principles to a factual matrix of temporary presence/evading risk and as persuasive authority for balancing the risk of evasion against the defendant's right to notice. Subsequent courts will likely follow the analytical structure: identify prima facie case strength; assess risk of evasion; determine whether substituted means are likely to be efficacious; and apply the standard of review for setting aside interlocutory ex parte orders.
Degree of investigative effort required before substituted service: Palmer J rejected the criticism that the investigator could have knocked at the Newtown door (see [44]–[46]). But the judgment does not set a firm boundary for when door-knocking and enquiries must be attempted. Future cases will need to delineate how much proactive inquiry is reasonable before seeking substituted service.
Quantifying 'real possibility': The judgment requires a real possibility of evasion, not a remote one (see [41]). But what degree of evidence lifts risk from speculative to 'real' is fact-specific. Courts may differ on how much circumstantial evidence suffices.
Interaction with concurrent foreign criminal investigations: Palmer J left open the possibility of revisiting a stay if Romanian criminal proceedings commence (see [54]). The threshold and evidence required to obtain a stay in such circumstances remain matters for future litigation.
Enforcement issues in foreign jurisdictions: The judgment notes assets in NSW and the difficulty of enforcing overseas judgments (see [52]). But it does not explore remedies where assets lie in jurisdictions less amenable to NSW enforcement; that enforcement calculus may affect forum conveniens outcomes in future cases.
Treatment where substituted service leads to arguable lack of actual notice: Palmer J emphasised the importance of substituted service being efficacious (see [42]). If substituted service later proves ineffective in notifying a defendant who genuinely had no notice, the consequences (e.g., necessity for fresh service, jurisdictional quibbles) may require further judicial clarification.
Takeaway for practitioners: when seeking ex parte substituted service and freezing relief against a potentially evasive defendant, assemble focused evidence of (i) prima facie wrongdoing, (ii) indicators of concealment or offshore conduits, (iii) the defendant's transient presence and means to depart, and (iv) attempts to contact through solicitors or surveillance. These elements materially strengthen the justification for substituted service and preservation of assets, and make it difficult for a later application under UCPR 12.11 to succeed unless the defendant can point to a reviewable error in the ex parte decision (see [31]–[43], [55]–[56]).
CITATION : Alstom Limited & Ors v Sirakas [2010] NSWSC 669
JURISDICTION : Equity Division Corporations List
DECISION : Defendant's motion to set aside substituted service and for stay dismissed.
CATCHWORDS : PRACTICE AND PROCEDURE - SUBSTITUTED SERVICE - JURISDICTION - FORUM NON CONVENIENS - whether personal service "practicable" - meaning of "practicable" - whether Court should decline to exercise jurisdiction to determine claims arising from transactions in Romania in alleged breach of service contract made in Australia.
LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) - r10, Pt 12 r11, Schedule 6, 10.14(1)
Alstom Limited (First Plaintiff) PARTIES : Alstom Power Romania SRL (Second Plaintiff) Alstom General Turbo SA (Third Plaintiff) George Sirakas (Defendant) (aka Georgios Syrakas)
COUNSEL : C.M. Harris SC (Plaintiffs) Dr A. Bell SC (Defendant)
SOLICITORS : Colin Biggers & Paisley (Plaintiffs) Verekers (Defendant)
1 The Plaintiffs have commenced proceedings in this Court against the Defendant, Mr Sirakas, an Australian citizen now resident in Romania. The principal causes of action, very briefly, are breach of duties of good faith and honesty arising under contracts of service and implied by law. 2 Mr Sirakas was not personally served with the Statement of Claim. Although now resident in Romania, he was temporarily in New South Wales in December 2009. On 8 December 2009, the Plaintiffs obtained an order for substituted service on Mr Sirakas directing that service be effected by leaving the Statement of Claim with the solicitor acting for him in then-current matrimonial proceedings, and by leaving a copy at a residential property in Newtown owned by Mr Sirakas. Service was effected in accordance with those orders. The Plaintiffs also obtained, ex parte, on 8 December 2009 freezing orders restraining Mr Sirakas from dealing with certain assets within the jurisdiction. 3 Pursuant to UCPR 12.11 Mr Sirakas, without entering an appearance, now seeks the following relief by Notice of Motion:
an order staying the proceedings permanently or temporarily;
6 The First Plaintiff (Alstom) is incorporated under the laws of Australia. Alstom was previously known as ABB Power Plants Ltd (ABB). The Second Plaintiff (Alstom Power) is incorporated under the laws of Romania. The Third Plaintiff (Alstom General) is incorporated under the laws of France. Each of the Plaintiffs is a subsidiary of Alstom SA, which is incorporated in France. 7 Mr Sirakas, then resident in New South Wales, was originally employed by ABB under an employment contract dated 4 December 1992 (the Employment Contract). The Employment Contract was taken over by Alstom in 2003. The Employment Contract is expressed to have been made in Sydney. 8 In April 2004, Mr Sirakas agreed to go to Romania to work for Alstom Power. He entered into what was called a Detachment Agreement and a Secondment Agreement to which both Alstom and Alstom Power were also parties. These agreements were replaced by an International Mobility Agreement dated 20 October 2006 between Alstom, described as "the Employer", Alstom Power, described as "the Host Company", and Mr Sirakas, described as "the Employee". The Mobility Agreement was expressed to have been made in Sydney. Its relevant terms are as follows: "1.1 This Agreement is a temporary additional act to the Employment Contract of December 4, 1992 between the Employer and the Employee, hereinafter referred to as 'Employment Contract'. It shall not set aside the effect and validity of the Employment Contract.
1.3 The Employer seconds, through this Agreement, the Employee to act as Managing Director Power Service Sector Romania, Bulgaria and Moldavia, in conformity with the secondment laws applicable in Romania.
1.4 The Host Company shall assign to the Employee the duties of Managing Director Power Service Sector Romania, Bulgaria and Moldavia.
2.2 The Employee undertakes to perform in the Host Country duties falling within the scope of his skills and experience that may be required in accordance with the Employer's and the Host Company's instructions, the Constitutive Act of the Employer, the Services Agreement, the Constitutive Act of the Host Company and the Resolutions of the Board of Directors of the Host Company.
3.1 The Employee shall carry out his duties as Managing Director Power Service Sector Romania, Bulgaria and Moldavia in good faith and in accordance with the laws, the Constitutive Act of the Host Company the Resolutions of the Board of Directors of the Host Company, all the internal rules and regulations of the Employer and the Host Company and the objectives to be set by the Managing Director sub-region South East Europe.
12.1 This Agreement shall enter into force on 1 st October 2006 and end on 30 September 2008 without any further notice from the Employer or the Company. If due to business needs of the Company, the assignment to Romania will take longer than this, this Agreement can be prolonged under the condition, that the salary will be newly calculated, taking the Cost of Living Index fully into account, no hardship allowance will be granted and the secondment related benefits will no longer be applicable.
13.1 At the end of this Agreement, the Employee will return for redeployment with the Employer as per his Employment Contract of 4 th December 1992. …
15.1 The parties shall be subject to the Labour Law of the Home Country which is Australia, as regards those matters not specifically provided for in this Agreement, and to the extent that it does not contradict mandatory laws of public interest in the Host Country.
15.2 In the event of dispute the courts of Australia shall have exclusive jurisdiction." The first alleged breach
9 On 25 February 2008 Mr Sirakas, as Managing Director of Alstom Power, procured Alstom Power to enter into a contract for the purchase of land at Glina, near Bucharest, from United Media Management SRL (UMM) for €2,886,000. The land was required for construction of a new factory for Alstom Power. 10 The Glina land comprised four separate parcels owned by different proprietors. UMM entered into contracts to purchase the Glina land from those registered proprietors by agreements dated between 18 April 2008 and 16 October 2008. The total purchase price payable by UMM for the land was €1,875,000. 11 On the day before UMM entered into the first of the contracts for the purchase of the Glina land, Mr Sirakas entered into a loan agreement with Ms Elena Coca, who is the "administrator" or controller of UMM, whereby Mr Sirakas lent Ms Coca €135,000, interest free for four months. On the same day, SC Sirakuze Co NRL entered into a loan agreement with UMM for a loan of €50,000, interest free for four months. Mr Sirakas executed the agreement on behalf of Sirakuze and Ms Coca executed on behalf of UMM. On 18 and 21 April 2008 a total of €50,000 was paid to UMM out of the bank account of Eleda Ltd, a company incorporated in Dubai. Eleda Ltd has the same address as Eleda Trading FZE, which is also incorporated in Dubai. The sole shareholder of Eleda Trading FZE is Mr Sirakas. 12 Mr Sirakas procured Alstom Power to pay UMM part of the purchase price of the Glina land, €866,000, on 21 May 2008. 13 On 7 November 2008, Mr Sirakas procured Alstom Power to pay to UMM the balance of the purchase price for the Glina land, €1,720,000. 14 The difference between the price paid by Alstom power to UMM for the purchase of the Glina land and the price paid by UMM to the vendors of that land is €711,000. 15 On 24 November 2008, UMM Paid to Eleda Trading FZE an amount of €400,000 described as "commission fees as per contract" in an invoice sent to UMM. 16 The profit or commission alleged in the Statement of Claim to have been derived by Mr Sirakas, indirectly through Eleda Trading FZE, from the transaction between Alstom Power and UMM was never disclosed to, or authorised by, Alstom or Alstom Power. 17 The Statement of Claim alleges that the part played by Mr Sirakas in these transactions, and the taking of a secret commission by him, was in breach of his duties of good faith, loyalty and honesty to Alstom Power and to Alstom, both contractual and fiduciary. The second alleged breach
18 The Statement of Claim alleges that in about the middle of 2008, Alstom General (the French company) of which Mr Sirakas was president and director, decided that it needed to acquire certain items of machinery, equipment and software known as an Excitation General System (the System). Alstom Power (the Romanian company) of which Mr Sirakas was Managing Director, had in storage a System which it did not need. 19 In September 2008, Mr Sirakas procured Alstom Power to sell the System to General Oltemia SRL for €200,000. He then procured Alstom General to purchase the same System from Exxon Development SRL for €700,000. 20 On or about 3 January 2009, Exxon paid to Mr Sirakas' company in Dubai, Eleda Trading FZE, a commission on the sale of the System by Exxon to Alstom General in the sum of €100,000. 21 Alstom and Alstom General allege that these transactions were not disclosed to them by Mr Sirakas and constituted a secret commission taken by him, resulting in a loss to Alstom Power of the true sale price of the System. Alstom claims restitution of the secret commission, and Alstom General claims damages for fraud. Alstom relies on breaches of Mr Sirakas' duties of good faith and loyalty, contractual and fiduciary. Alstom General relies on breach of the same duties arising under the general law by virtue of Mr Sirakas' office. Submissions
22 Mr Harris SC submits that this Court has jurisdiction in the proceedings because:
the subject matter of the proceedings is a contract made in New South Wales, namely, the Employment Contract as extended by the International Mobility Agreement, both of which contracts were made in Sydney;
that contract is expressly governed by the law of New South Wales;
Mr Sirakas has agreed to the jurisdiction of the Court in proceedings arising under that contract. 23 Dr Bell SC submits that:
24 The act of Mr Sirakas in taking a secret payment or commission for procuring a profit to UMM on the sale of the Glina land to Alstom Power, if proved at trial, would be a breach of the express terms of clause 3.1 of the International Mobility Agreement and the implied duty of fidelity arising under that agreement. It would be a fair inference that that breach had occurred in April 2008, at the latest, when Mr Sirakas and his company made interest free loans to UMM, apparently to assist it in purchasing the Glina land for on-sale to Alstom Power. Although the loss to Alstom Power arose after expiry of the International Mobility Agreement, it flowed from breach by Mr Sirakas of that agreement during its term. 25 Likewise, if it were proved at trial that the sale of the System by Alstom Power and the purchase of the same System from Exxon by Alstom General was procured by Mr Sirakas in breach of contractual and implied duties of fidelity and honesty, then it would be a fair inference that the sale of the System by Alstom Power to General Oltemia in September 2008 was the first step in the planned dishonest transaction. Alstom Power suffered loss when the System was sold at an undervalue and that loss was suffered before the International Mobility Agreement expired. The secret commission, although received in January 2009, was the fruit of the breach of duty committed by Mr Sirakas in September 2008, during the currency of the Mobility Agreement. 26 I conclude that, in so far as concerns contractual claims, the subject matter of these proceedings is the Employment Contract, as extended by the International Mobility Agreement, and that contract was made in New South Wales and is governed by New South Wales law. I find that Mr Sirakas has agreed to submit to the jurisdiction of the Court in respect of such claims. 27 If Mr Sirakas had not been in New South Wales at the time of substituted service, the Court would have had jurisdiction to order service outside Australia under UCPR 11.2(1) and Schedule 6 of proceedings founded upon the Employment Contract. The question of jurisdiction as to non-contractual claims does not arise because of my conclusion that substituted service should not be set aside, for the reasons which follow. Whether prima facie case shown
28 Dr Bell strongly argues that the Court should not be satisfied that the Plaintiffs have demonstrated even a prima facie case in the causes of action pleaded. He says that there may be a perfectly innocent explanation for Mr Sirakas' loans to UMM and that there is no reason to believe that the receipt by Eleda Trading FZE of a payment from UMM of €400,000 as a "commission fee" has anything to do with Alstom Power's purchase of the Glina land from UMM. Further, Dr Bell says that there is no evidence connecting Alstom Power's sale of the System to General Oltemia and the purchase by Alstom General from Exxon of a System exactly matching the specifications of the System sold by Alstom Power. Dr Bell protests that there is no evidence proving that Exxon's payment to Eleda Trading FZE has anything to do with any transaction relating to the sale and purchase of the System. 29 Mr Sirakas has given no evidence in this application. He is, of course, quite entitled to take that position. Consequently, no explanation of the transactions has been put forward which gives them an innocent complexion. In saying this, I appreciate, of course, that in an application such as this the burden rests with a plaintiff to show a prima facie case, not with a defendant to show that there is none. 30 This is not the occasion to examine in detail the considerable volume of evidence which the Plaintiffs have already gathered in support of their allegations against Mr Sirakas. I may simply say that the coincidence in the timing of the transactions and the involvement of Mr Sirakas in both sides of the transactions persuade me, on the evidence so far adduced and in the absence of any explanation from Mr Sirakas, that the Plaintiffs have demonstrated a strong prima facie case in support of their allegations in the Statement of Claim. Order for substituted service
31 On 8 December 2009, the Plaintiffs applied ex parte to Bergin CJ in Eq for orders directing substituted service of the Statement of Claim on Mr Sirakas by serving it on Mr Tim Horsley, the solicitor who was then acting for Mr Sirakas in Family Court proceedings, and by leaving a copy of the Statement of Claim on any person over the age of eighteen at a residential property owned by Mr Sirakas in Newtown. Her Honour made those orders and service was effected accordingly. 32 Her Honour was, of course, able to make an order for substituted service because Mr Sirakas happened to be within the jurisdiction at the time and was, therefore, amenable to personal service, if it could be effected: Laurie v Carroll (1958) 98 CLR 310, at 323-324. 33 Mr Sirakas now applies, pursuant to UCPR 12.11(1)(b), for an order setting aside the service of the Statement of Claim on the ground that the evidence adduced in the application to Bergin CJ in Eq "could not possibly establish", according to Dr Bell, that the Statement of Claim "cannot practicably be served" on Mr Sirakas, as required by UCPR 10.14(1)(a). 34 An application for an order for substituted service of originating process is, of its very nature, made in the absence of the defendant to be served. If the defendant complains that the order should not have been made, the defendant can, without being obliged to file an appearance, apply under UCPR 12.11. The application is heard by a single judge, not by way of an appeal from the original order for substituted service. 35 The grounds upon which an order for substituted service may be set aside under UCPR 12.11(1)(b) are not defined and the power to make such an order is discretionary although, of course, the discretion is exercised in accordance with established principle: see e.g. Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWSC 270, at [140] per Hammerschlag J. The nature of the original order for substituted service being ex parte and interlocutory, a defendant applying under UCPR 12.11(1)(b) can always adduce evidence to found a submission that, as the evidence now stands, the Court should discharge its earlier order. Alternatively, the defendant may adduce no evidence and may confine himself to a submission that, on the evidence presented to the Court by the plaintiff on the ex parte application for substituted service, the Court should not have made the order. That is what Mr Sirakas has done in this case. Although he has adduced evidence in the form of affidavits from his solicitors, that evidence does not go to the question whether, on 8 December 2009, personal service of the Statement of Claim on him was practicable. 36 As I have said, an application by a defendant under UCPR 12.11(1)(b) is not an appeal from the original decision. Nevertheless, when the defendant adduces no evidence in support of such an application and the sole ground for setting aside the original order is that, on the evidence presented to the Court at the time that the original order was made, that order should not have been made, then as a matter of practicality the Court must be governed by the same considerations which apply to appeals from interlocutory orders regulating practice and procedure. If it were not so, such orders would be subject to frustration by endless applications to different Judges to exercise discretion differently on the same facts: see e.g. In re Will of Gilbert (decd) (1946) 46 SR (NSW) 318, at 323; White v Grogan [1972] 2 NSWLR 347. Thus, in such an application a defendant would have to show that the Judge who made the original order made an error of principle, or a material error of fact, or took into account irrelevant matter, or failed to take into account, or failed to give sufficient weight to, relevant matter or arrived at a result so unreasonable that one or other of such errors must have occurred: see e.g. Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 37 In the present case, there is no transcript of the application made to Bergin CJ in Eq on 8 December 2009 and, as is usual in ex parte applications in the Duty List, her Honour did not give reasons for the orders made. However, it is clear from the Court file what evidence was placed before her Honour. In the light of that evidence, I am far from persuaded that her Honour's discretion miscarried in making the order which she did. To the contrary, I have no doubt, with respect, that her Honour's decision was correct. 38 The evidence presented to the Court on 8 December 2009 showed that:
49 Dr Bell submits that if the Court holds that it has jurisdiction over Mr Sirakas, it should nevertheless decline to exercise jurisdiction on the ground that New South Wales is a clearly inappropriate forum for the resolution of the dispute. 50 Dr Bell says that this case simply has nothing to do with Australia. He emphasises that:
55 In the light of the facts as they are presently known and in view of the prima facie case of serious dishonesty made out against Mr Sirakas, I am satisfied that there is a real risk that Mr Sirakas will attempt to place his assets in New South Wales beyond the reach of a judgment unless the freezing orders obtained ex parte are continued. Mr Sirakas has not given any evidence of hardship which he might suffer if the freezing orders are continued. 56 The freezing orders made by Bergin CJ in Eq on 8 December 2009 and continued on 16 December 2009 until further order, will not be discharged. Orders
57 Mr Sirakas' Notice of Motion filed on 21 January 2010 is dismissed. I will hear the parties as to costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Alstom Limited & Ors
Sirakas
(2008) 250 ALR 682
(1958) 98 CLR 310
(2008) 238 CLR 265
(1990) 171 CLR 538
Defendant's Notice of Motion dismissed. Orders for substituted service upheld; Court retained jurisdiction; permanent/temporary stay refused; freezing orders continued. Costs reserved (see [56]–[57]).