Amaral v Algar [2003] VSC 246

5. It is averred that on or about 17 December 2001 the plaintiff demanded from the defendant payment of the sum of $512,041 pursuant to the terms of the agreement and that, by reason of the defendant's failure to pay, the defendant is indebted to the plaintiff in amounts totalling $574,369.62.

8. On 6 February 2003 the defendant filed a defence in which he admitted the existence of an interim agreement entered into on or about 24 February 2001 but alleged that any obligation to repay the amount of $512,000 was an obligation that lay upon Supermarine alone, and in any event that the amount of $512,000 was not yet due for payment.

11. On 6 March 2003 Master Bruce made orders for the interlocutory steps including orders for the provision of particulars by March, the filing of any reply by May, the completion of discovery by 13 June and the completion of inspection of documents by 27 June 2003. Regrettably, the plaintiff has not complied with many of those orders so that even now there has not been the provision of particulars or the provision of discovery or much, if anything, done towards the inspection of documents.

14. On 2 May 2003 the plaintiff's solicitor filed an affidavit in which he deposed to instructions received from the plaintiff to seek leave to amend the plaintiff's statement of claim, and to which he exhibited a form of amended statement of claim in which it is alleged that the interim agreement provided in terms for the defendant to be liable personally to repay the amount of $512,000; further or alternatively, that the defendant was liable to the plaintiff in damages for loss suffered by the plaintiff by reason of misleading and deceptive conduct engaged in by the defendant; and further or alternatively, that the defendant is liable in damages as a result of the breach by the defendant of a collateral warranty as to the performance by Supermarine of its obligations under the interim agreement.

17. It is to be noted, however, that even as of today an application has not been made for leave to amend the statement of claim, and it has been said by counsel before me today that it is now proposed to re-formulate the statement of claim yet again, in order to allege an oral settlement agreement which is said to have been made in November 2001, and at some unspecified time in the future to apply for leave to amend the statement of claim accordingly.

20. On 6 May 2003 the plaintiff moved ex parte before Smith J for Mareva orders to restrain the defendant and a number of companies within what may be described as the SAS group of companies (of which it appears Supermarine was once one) from selling, transferring or otherwise dealing with or disposing of any of their assets until 4.15 p.m. on 9 May 2003. The order was conditioned upon a number of undertakings including the filing of a summons and service of the summons, supporting affidavit and his Honour's order, and in accordance with those undertakings, the summons and affidavits were filed and served on or about 7 May 2003.

23. The matter next came before his Honour on 9 May 2003, at which time the order was extended without argument until 4.15 on 28 May 2003, and on 28 May 2003 the order was further extended, without argument, by Cummins J until 4.30 p.m. on 19 June 2003.

26. Paragraph 3 of Smith J's order of 6 May 2003 provided that the defendant should forthwith swear and file an affidavit describing either in the affidavit, or by exhibit, full details of all facts and matters within the defendant's knowledge and belief concerning the nature, extent and approximate value of his assets and liabilities, the assets and liabilities of the SAS group of companies, and the assets and liabilities of Aviation Infrastructure Redevelopment Pty Ltd - otherwise known as AIR - which it appears may be associated with, or related to the companies within the SAS Group.

29. Pursuant to that order, on 18 June 2003 the defendant swore an affidavit in which is set out details of his personal assets and liabilities, and the assets and liabilities of each of the companies in the SAS Group, and also some other companies which it appears the defendant thought to be sufficiently relevant to include within the affidavit.

32. The plaintiff's application now comes on for interlocutory hearing before me supported by a number of affidavits sworn by the plaintiff, the plaintiff's solicitor and William Bernard Abeyratne, the liquidator of Supermarine.

35. The plaintiff's application focuses on two areas of concern. The first is the assets of or under the control of the companies within the SAS Group of companies, and the second is a house which used to be owned by the defendant's now deceased mother, and which it appears may be held as an asset of a trust, and which is subject to a mortgage in favour of a company or interests associated with the defendant's solicitor.

38. The juridical basis of a Mareva order continues to be the subject of some debate, but for present purposes it suffices to say that in order to succeed in the application for Mareva order the plaintiff must establish a good arguable case against the defendant, and that there is a reasonable apprehension of dissipation of assets by the defendant, or in the case of third parties that the third party holds, or is using, or has exercised, or is exercising a power of disposition over, or is otherwise in possession of assets, including claims and expectancies of the judgment debtor, or potential judgment debtor, and that some process ultimately enforceable by the courts is or may be available to the judgment creditor as consequence of judgment against the potential judgment debtor whereby the third party may be obliged to disgorge property, or otherwise contribute to help satisfy execution[1].

41. The plaintiff submits that he satisfies both of those tests in respect of the assets of the companies within the SAS Group, and the house property previously owned by the defendant's deceased's mother.

44. The evidence adduced in support of the plaintiff's claim against the assets of the companies within the SAS Group includes an affidavit sworn by the liquidator of Supermarine in which it is deposed that the defendant some time ago filed a report as to affairs that disclosed that Supermarine had debtors of $1,000, work in process valued at $565,735 and unsecured creditors totalling $558,836, of which the plaintiff was listed as being one in an amount of $512,000.

47. According to the liquidator, at a meeting of creditors on 24 June 2002 the defendant provided a written statement regarding the failure of Supermarine, and he told the meeting that he believed that the work in progress disclosed in the report as to affairs was fully recoverable. The defendant also said that once he had obtained probate of his mother's estate it was his intention to make an offer for the company's work in progress. When questions were asked regarding the company's expenditure, the defendant responded that he would be able to provide a reconciliation of the company's outgoings together with supporting documentation.

50. Arrangements were then made for Mr Ching Wong and Mr Jack Abeyratne of the liquidator's office to attend on the defendant on the following day in order to inspect the company's books and records. But when they did so, the available records were not complete, and the defendant said that there were books and records at a different location. Arrangements were later made for Messrs Wong and Abeyratne to inspect the books and records at the different location, but before that was done they received from the defendant an email of 12 August 2002 in which the defendant said that he was still searching for the "critical data" and that some files had been removed from a computer and "he was following up the matter."

53. The defendant did later provide the liquidator with banking records. But they show, amongst other things, that in the period from about 28 February 2001 to 2 April 2001 withdrawals of approximately $366,000 were made from the account of Supermarine with Bank of Melbourne, and of that sum approximately half of the drawings were comprised of cheques made out to cash, or what appeared to be cash debits. In the liquidator's opinion those facts are cause for concern, because in his experience when substantial sums of cash are withdrawn from an account in "round figure" sums, such as $5,000, it suggests that funds are being removed for purposes unrelated to payment of the usual costs and expenses of the business.

56. The plaintiff also relies upon an affidavit which he swore on 2 May 2003 in which he deposes to having negotiated a settlement with the defendant in about November 2001. According to the plaintiff, the defendant then said that he and Supermarine would pay or repay the plaintiff the sum of $500,000 together with interest on that amount at the rate of six per cent per annum from 21 February 2001 until 9 November 2001. When it came to documenting the agreement, however, the plaintiff refused to sign the document submitted by the defendant, because it did not contain a provision, for repayment by 21 January 2002 which the plaintiff believed to have been agreed in the course of negotiations.

59. Mr Cosgrave who appeared for the plaintiff began his submission by referring to the content of the defendant's affidavit of 12 June 2003 and he submitted that it was either so lacking in detail or in effect so crafted as not truly to comply with the order of Smith J that the defendant depose as to the full details, so far as he is aware of them, of the assets and liabilities of the companies within the SAS Group.

62. In particular Mr Cosgrave referred to paragraph 12 of the affidavit, which is directed to the assets and liabilities of Strategic Air Services Australia Pty Ltd, and noted that whilst it is asserted by the defendant that the company has assets of approximately $782,000 and liabilities of approximately $212,000, very little detail is given as to how those figures are made up. The defendant has exhibited what is described as a profit and loss statement but he has not exhibited or otherwise provided a balance sheet of a kind which one might expect showing details of the assets and liabilities.

65. Mr Cosgrave made similar observations in respect of paragraph 26 of the affidavit, which is directed to the assets and liabilities of Strategic Air Services Cooperation's Pty Ltd; paragraph 39 of the affidavit which is directed to the assets and liabilities of Strategic Air Services Vanuatu Ltd; paragraph 51 of the affidavit which is directed to the assets and liabilities of Strategic Air Services (NZ) Ltd; paragraph 63 of the affidavit which is directed to Aviation Infrastructure Redevelopment Pty Ltd; and paragraph 74 of the affidavit, which is directed to the assets and liabilities of Daryl Dalket Pty Ltd, and which it is said in the affidavit is the company within the group that provides executive management support to the group and acts as a holding company in Australia for most of the group companies.

68. Mr Cosgrave suggested that it is remarkable that, in the case of Dalket, there is not only no detail given about the assets and liabilities of the company, there is not any information at all. All that is said is that "its total assets and liabilities" are presently being valued by Armstrong Partners of South Melbourne as a consequence of a number of capital transactions associated with the acquisition of five companies from Michael John Owens, the acquisition of shares from David John Anderson and Amanda Jane Dines, and the distribution of shares held by the estate of the late Denise Sheila Algar - which is to say the deceased's mother - and Strategic Air Services Group of companies' prospective entry into the new generation joint venture agreement in the South Pacific.

71. Mr Cosgrave argued that the affidavit material to which he referred, including the paucity of detail provided in the defendant's affidavit of 12 June 2003, demonstrated that a substantial part if not the whole of the $512,000 which the plaintiff had paid to Supermarine had been dissipated amongst companies within the SAS group and that there was now a significant risk of dissipation of the assets which it might be thought would now reflect those moneys.

74. Mr Cosgrave contended that there was no assurance that the assets of the group would not be dissipated. Indeed, to the contrary, it was said, the fact that some $512,000 had apparently disappeared without trace by means of cheques which were in the large part cash cheques, and thus which at present could not be traced, led to the conclusion that it was likely that assets would be dissipated before the plaintiff was able to execute against them, assuming he were successful at the trial of the proceeding.

77. In Mr Cosgrave's submission the court should be ready to infer that that was so because of the apparent recalcitrance of the defendant to making a full disclosure of the kind for which Smith J's order called.

80. Mr O'Bryan SC who appeared with Mr D. Colman for the defendant submitted in effect that I should find that the claim for Mareva orders in respect of the assets of the SAS group of companies was hopeless.

83. Mr O'Bryan began his submission by reference to the fact that even now, the best part of seven months after the proceeding was instituted, and effectively two years after the alleged debt was said to have become due, the plaintiff has still not been able to formulate a statement of claim which shows the nature of the cause of action asserted against the defendant. Worse still, he submitted, counsel for the plaintiff had demonstrated by his reference to the plaintiff's intention to abandon the statement of claim and also any reliance upon the proposed amended statement of claim of May of this year, that the plaintiff has still not been able to conceive how such a cause of action could be formulated. In Mr O'Bryan's submission one must conclude that the plaintiff's claim is extremely weak indeed, to put it at its highest, and that it is certainly not good enough in circumstances where it is incumbent upon an applicant for Mareva order to establish clearly how it is that he stands a good chance of succeeding at the trial of the proceeding. Furthermore, he said, even if one looks to the settlement agreement upon which it is suggested reliance may now be placed, it is plain that, however construed, that it does not yield a cause of action against the defendant.

86. Turning then to the question of whether the defendant or any of the companies in the SAS group have under their control assets that might properly be made the subject of a Mareva order, assuming the establishment of a good arguable case for final relief, Mr O'Bryan submitted that there is nothing within the existing statement of claim, or in the facts deposed to in the affidavits upon which a reformulated statement of claim might be based, that in any way demonstrates or suggests that the assets of the companies in the group would be subject to execution. How, it is asked rhetorically, can it possibly be said that assets of the group are held for the benefit of the defendant or, in the event of judgment being obtained, might be levied against, whether directly or indirectly, pursuant to some sort of obligation on the part of those companies to make their assets available for satisfaction of the defendant's obligations?

89. Mr O'Bryan also rejected the contention that the affidavit sworn by the defendant on 12 June 2003 does not comply, either in form or in spirit, with the direction of Smith J to set out full details, so far as known, of the assets and liabilities of the defendant and companies in the group. To the contrary, he submitted, it is not only complies but goes further than was required, by including within the details set out the assets and liabilities of other companies within the group that might be thought to be relevant for the purposes of the application.

92. Moreover, Mr O'Bryan submitted, it just does not lie in the mouth of the plaintiff to criticise the affidavit or to insinuate obliquely that it falls short of the required standard or is careless, or worse still, dishonest, when it has not been sought to cross-examine the defendant on his affidavit, or otherwise to put to him materials that are said to suggest that what he said was not true or complete so far as he knew the facts to be.

95. Finally on this point Mr O'Bryan submitted that what is said by the liquidator was really of no consequence, for if there were any truth or substance in the so-called concerns which the liquidator expresses about the payments which were made out of Supermarine's account, one would surely expect by now that the liquidator would have uncovered it in the course of his investigations and examinations. So far from that being the case, Mr O'Bryan pointed out, it appears that the liquidator had not even thought it necessary to conduct an examination of any of the directors or made any enquires, other than the two short conversations between his two subordinates and the defendant which are deposed to in his affidavit.

98. In Mr O'Bryan's submission there was nothing to suggest a risk of dissipation of assets. The affidavit sworn by the defendant on 12 June 2003, upon which there have been no cross-examination or attempt at cross-examination, established in an uncontradicted fashion that there was no such risk.

101. Despite the readiness of some courts in the past to make Mareva orders, it is plain upon the body of authority which has been built up over the last 20 years that a court should exercise considerable care before granting such relief[2]. Bearing that in mind, I do not consider that the plaintiff has made out an entitlement to Mareva order in respect of the assets of the companies in the SAS group.

104. Putting aside for a moment the strength of the plaintiff's claim for final relief - which is a matter to which I will need to return when I come to the question of the house - it seems to me that there is very little at present to show that any of the $512,000 paid by the plaintiff to Supermarine finished up with any of the companies in the SAS group, except perhaps the four companies to which the liquidator has been able to trace payments made by cheque, and very little evidence from which it might be inferred that because some part of the $512,000 finished up with those companies, the balance of it must have finished up with the other companies within the SAS group. It is one thing to draw an inference as a logical conclusion suggested or impelled by facts that are established, and it is another to speculate from one possibility to another about what may or may not have been. Apart from the companies to which the payments may be traced directly, I regard the position as being of the latter variety.

107. It follows, in my opinion, that with the exception of the four companies, it is not established to any level of satisfaction that might be regarded as acceptable that the companies of the SAS group have or have under their control assets belonging to or which might ultimately be made answerable for any obligations owed by the defendant to the plaintiff.

110. In addition, however, I consider that in the case of all companies within the group, including the four companies to which payments have been traced directly, the plaintiff has simply not made out the standard that is requisite in this sort of application that there is a real risk of dissipation of the assets of the companies.

113. Whatever might be said about the adequacy or inadequacy of the detail provided in the defendant's affidavit of 12 June 2003, which I think for the time being is a subject upon which I need say no more, the defendant has deposed at length, beginning at paragraph 103 of his affidavit and in effect continuing through to and including paragraph 109, as to the circumstances in which assets have been transferred in the past and are proposed to be transferred in the future; as to the fact that he has not in the past, and does not intend in the future to dispose of or deal with assets for the purposes of dissipating them in order to effect a frustration of any execution; and that it is his intention and the intention of the companies of the group to continue to conduct the group's business in the usual and ordinary course.

116. Thirdly, and apart from the questions of the strength of the plaintiff's case and the risk or dissipation, the defendant has deposed at considerable length in his affidavit at paragraphs 128 through to 131, of significant hardship which would be suffered by companies within the group if orders of the kind previously made on an interim basis were to be continued any longer, and despite suggestions made by counsel on behalf of the plaintiff that I should discount what is said in those paragraphs, and as it were take them with a grain of salt, I am not prepared to subject the group to the risk of hardship which is there deposed to. It seems to me that in circumstances where there has not been any attempt made by way of cross-examination to contradict what is said by the defendant, I am entitled to and should take what is there said as representing the truth. And what is there said includes, amongst other things, that any continuation of the sorts of orders which were in the past made on an interim basis will significantly affect the group's tenancy arrangements, its trading operations and its ability to continue to employ the persons that provide it with labour.

119. I am not unmindful of the submission in reply by counsel on behalf of the plaintiff that there are apparent errors and inconsistencies within the defendant's affidavits, and as between the defendant's affidavits and one or more affidavits sworn by his solicitor, and that when those inconsistencies are coupled with the lack of any explanation as to the movements of the $500,000 deposed to by the liquidator, a court should be more ready to infer that there has been impropriety in transfers in the past, and probability of impropriety in dealing with assets in the future. But I consider that whilst it is possible to infer the likelihood of misconduct in the future from demonstrated misconduct in the past, as appears to have been the basis of the decision of the New South Wales Court of Appeal in Patterson v BTR Engineering Australia Ltd[3], here by reason of the uncontradicted evidence of the defendant and the very meagre nature of the evidence provided by Mr Abeyratne, there is not a basis sufficient from which to infer misconduct in dealing with the assets of companies within the group.

122. I turn then to the question of whether any Mareva order should be made in respect of the house previously owned by the defendant's mother. Here I think that the position is somewhat different for here I consider that there is reason to suspect that there may have been, and thus to conclude that there is a real risk of dissipation of the house or of the proceeds of sale of the house and that it could have the effect of frustrating execution by the plaintiff against the defendant if successful at trial.

125. Among the evidence which leads me to that conclusion are, first, the liquidator's affidavit to which I have already referred and in which it is recorded in a fashion that has not been sought to be contradicted that the defendant told the liquidator of his expectation that he would receive the house upon the death of his mother, and that he would use the proceeds in order to acquire the work in progress of Supermarine; secondly, the fact that until recently there has been no suggestion otherwise than that the defendant was the sole beneficiary of his mother's will, and would thus succeed to the house; thirdly, the fact that very recently (scil. within the last week) evidence has been produced by the defendant to establish that the property was acquired by his mother as trustee of a trust of which the terms have not been disclosed; and, fourthly, that the property was last year mortgaged by the defendant in his capacity as legal personal representative of his mother's estate to the defendant's solicitor to secure an obligation of $400,000 the purposes of which have not been explained.

128. Mr O'Bryan has submitted that I should not place much if any emphasis on those things for it is only now, in effect, that the defendant could have conceived that the plaintiff would regard as being relevant or significant the fact that the property had been acquired by the defendant's mother as trustee, and the fact that the property was the subject of a mortgage in favour of the defendant's solicitor, and therefor that one could not justly have expected the defendant to deal with the matter in his affidavit.

131. I reject that contention, however, for in my view it must have been obvious, if not to the defendant, then those who advise him, that such a radical change in position as from full beneficial ownership to mere trustee of a trust of which the details are not disclosed, encumbered by a mortgage to the extent of $400,000, would not be seen as most significant in a contest where what is asserted is that the defendant is scheming to dissipate assets in order to avoid execution.

134. Consequently, I proceed upon the basis on this part of the application that the defendant has made out to the standard which is requisite that there is a significant risk of dissipation of assets represented either by the house or its proceeds of sale.

137. I remain troubled by the question of the strength of the plaintiff's case for final relief; for as it stands the statement of claim does not appear to allege a sustainable cause of action as against the defendant. There is some reference to the provision of the interim agreement that provides for the defendant to indemnify the plaintiff against losses resulting from actions and omissions on the part of the directors of Supermarine. But apart from reference there does not seem to be any reliance placed upon it. It is not, for example, contended that the failure of Supermarine to repay the $512,000 was the fault of any of the directors for which the defendant is now liable under the indemnity provision. Furthermore, although it might be said on one view of the proper construction of the terms of the interim agreement (particularly having regard to one or more of the recitals) that each of Supermarine and the defendant bound themselves to repay the amount of $512,000, that is not alleged and Mr Cosgrave does not suggest that it is a cause of action which the plaintiff wishes to assert once he reformulates the statement of claim.

140. Counsel for the plaintiff does say that in any reformulation of the statement of claim it is proposed to allege that a binding oral settlement agreement was reached in November 2001, and that by that agreement the defendant bound himself to pay the sum of $500,000 to the plaintiff in satisfaction of the plaintiff's claim against Supermarine. And further, that despite the failure of the plaintiff and the defendant to reach a written form of the agreement which both regarded as acceptable, the oral form of agreement remains binding and enforceable at the suit of the plaintiff. But there are at least two things about that which I regard as troubling.

143. The first is that although it is open for parties to enter into a binding oral agreement and intend subsequently to bring into existence a written and more perfect assurance, the facts of this case do not immediately suggest to me that the arrangement into which the parties entered into in November 2001 was one of that kind. Secondly, I am disposed to think that if the plaintiff had believed that the arrangement was of that sort (which I accept is not necessarily determinative of the success of the contention), one might have expected to see it reflected in the original statement of claim and not emerge only now after the original statement of claim, and the further proposed amended statement of claim, have been subject to considerable scrutiny and criticism by senior counsel for the defendant.

146. Be that as it may, this much at least has been established with clarity: the plaintiff did advance a sum of $512,000 to Supermarine; it was a term of the agreement that the money was to be repaid at the conclusion of the agreement, which on one view of the matter occurred in August 2001, albeit, that that date was subsequently extended by arrangement; one way or another, which is to say whether as a joint obligor or as a party who has agreed to indemnify the plaintiff for loss the result of default by the directors of the first defendant, the second defendant may be liable to pay to the plaintiff either the full $512,000 or some other amount representing loss and damage by reason of the failure to Supermarine to pay it; and, finally, it is at least conceivable that the plaintiff might succeed in his claim to recover from the plaintiff under the oral settlement agreement which it said he entered into in November 2001.

149. Whether the plaintiff succeeds by one or other or some combination of those four possibilities is really not to the point. For present purposes the question is whether the plaintiff has established a strong arguable case and, by reference to sorts of considerations which inform an application of this kind, it is my opinion that he has.

152. For those reasons, I am deposed to make a Mareva order in favour of the plaintiff in respect of the property which is located at 11A Talbot Avenue, Balwyn, being the land described in Certificate of Title Volume 10434 Folio 449, in substance to the effect that the defendant will not until the hearing and determination of the proceeding or further order sell, transfer, deal with, dispose of, or otherwise encumber either the land, or any proceeds of sale of the land.

155. That leaves for consideration whether the Mareva order ought extend to the trustee of the trust in which the land is said now to be held. The details of that transaction have only very recently emerged. Up until there was filed the affidavit of the defendant's solicitor on 17 June 2003 the plaintiff appears to have proceeded upon the basis that the property was held by the defendant as the legal personal representative of his deceased's mother and that he was beneficially entitled to it. Now it emerges that the property is held as trustee for the Denise Algar Family Trust, and that the defendant has abandoned the position of trustee in favour of Dalket Logistics Pty Ltd. Plainly, one cannot be certain what the position is, but given the circumstances to which I have already referred as enlivening an entitlement to Mareva order, I consider that the plaintiff has made out to the requisite level of satisfaction an entitlement to Mareva order as against Dalket Logistics Pty Ltd or any other substitute trustee. I reach that view upon the basis that there is reason to think that the assets of the Trust are held for or under the control of the plaintiff, or otherwise might properly be made available for satisfaction of any obligation which may be found to be owed by the defendant to the plaintiff in this proceeding[4].

158. Accordingly, subject to anything further that counsel may say, the sort of order I propose is a Mareva order of the kind already outlined, extending not only to the plaintiff but also to Dalket Logistics Pty Ltd and any other substitute trustee, until the hearing and determination of the proceeding.

[1] See Jackson v. Stirling Industries Ltd [1987] HCA 23; (1987) 162 C.L.R. 612 at p.619, Patrick Stevedores Operations No. 2 Pty Ltd v. Maritime Union of Australia [1998] HCA 30; (1998) 195 C.L.R. 1 pp.44 to 45 and Patterson v. BTR Engineering Australia Ltd (1989) 18 N.S.W.L.R. 319 at p.321 as well as Cardile v. LED Builders Pty Ltd (1999) 198 C.L.R. 380, especially at p.405 in the joint judgment of Gauldron, McHugh, Gummow and Callinan JJ.

[2] See the body of cases which are referred to and analysed in Meagher, Gummow & Lehane's "Equity Doctrines & Remedies," 4th Edition, at paragraph 21,450; and the analysis in Spry on "Equitable Remedies," 6th Edition at pp.519 and following.

[4] see Carlisle v LED Builders, supra at par. [57]