Apple Computer Australia Pty Limited v George Mekrizis & Ors

Supreme Court of NSW|2002-05-01|Before: Einstein J, Mr P, Bergin J

CITATION : Apple Computer Australia Pty Limited v George Mekrizis & Ors [2002] NSWSC 393 FILE NUMBER(S) : SC 50054/01 HEARING DATE(S) : 1/05/02 JUDGMENT DATE : 1 May 2002

PARTIES : Apple Computer Australia Pty Limited (Plaintiff) Donald Hartano (6th Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr CR Newlinds (Plaintiff) Mr P Biscoe QC, Mr R Horsley (6th Defendant) SOLICITORS : Clayton Utz (Plaintiff) Surry Partners (6th Defendant) CATCHWORDS : Practice and Procedure - Injunctions - Mareva injunction - Application to continue Mareva injunctive relief against 6th defendant - Balance of convenience - Whether order should be discharged Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Frigo v Culhaci (unreported, 17 July 1998, NSWCA) CASES CITED : Jackson v Sterling Industries Limited (1987) 162 CLR 612 Oshlack v Richmond River Council (1998) 193 CLR 72 Patterson v BTR Engineering (Aust) Ltd (1998) 18 NSWLR 319 DECISION : The Court orders that the 6th defendant file and serve on or before 4.00pm on 15 th May 2002 one or more affidavits which (a) disclose with particularity the nature and extent of the 6th defendant's assets as at the date of swearing the affidavit; (b) discloses the value of the said assets; and (c) discloses the present situation, place and whereabouts of such assets. The Court also orders that the 6th defendant pay so much of the costs of the plaintiff's notice of motion of 19 April 2002 as related to the plaintiff's claims against the 6th defendant including, of course, the costs of the hearing today.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Wednesday 1 May 2002 ex tempore Revised 17 May 2002

50054/01 Apple Computer Australia Pty Limited v George Mekrizis & Ors JUDGMENT 1 In proceedings 50054/01 a notice of motion was filed by the plaintiff on 19 April 2002 seeking a number of interlocutory orders. The motion was before the court on last Friday and all aspects of the motion, save for so much of the motion as sought orders against the 6th defendant in paragraphs 4 and 5, were dealt with by short minutes of order following a day during the course of which all parties addressed, to the extent they saw a need to address, on many matters which have become common ground for the purposes of the continued relief sought by the plaintiff. 2 The proceedings had been fixed for hearing from 8 April 2002 for two weeks. Following a number of applications and matters the subject of argument before the trial Judge, Bergin J, the final hearing dates were vacated and the present position is that the final hearing is fixed to commence on 24th June, three weeks having been set aside for that hearing as the parties' estimate, as I understand it. 3 During the course of the various applications before her Honour, which were made during the period when the final hearing was supposed to be commencing, her Honour delivered a number of judgments carefully explaining the applications and matters then before her Honour. Those judgments included a judgment of 11 April 2002 covering 89 paragraphs; a judgment of 15 April 2002 covering eight pages; a further judgment of 15 April 2002 which covered three pages and a judgment of 19 April 2002 which covered some 6 pages. Those judgments are before the court by way of giving the court a general chronology of the matters which were before her Honour and in some instances her Honour's findings have been tendered and admitted into evidence. 4 The summons in the proceedings filed on 26 April 2001 contains claims against 13 parties alleged to have guaranteed a debt of Buzzle Operations Pty Limited. For a period before her Honour the 6th, 7th and 13th defendants were represented by Isaac Brott as principal solicitor in Melbourne, utilising Sydney agents Surry Partners lawyers and in particular a partner within that firm, Mr James Russell. The circumstances in which the proceedings were generally brought and the general issues on an overview basis were clearly set out by her Honour in the judgment of 11 April 2002, particularly paragraph 5 and following and it is unnecessary, for obvious reasons, for the court now to repeat her Honour's there summary, which is taken as a given. 5 It is quite clear from the judgments to which I have referred that the defendants, as her Honour held, had failed to prepare their case for the final hearing properly. Her Honour said as much on page 4 of her Honour's 8 page judgment of 15 April 2002 and it is fair to say that a considerable section of her Honour's lengthy judgment of 11 April 2002 addressed questions of the defendants' forensic approaches to the interlocutory and run-up stages to the final hearing. Her Honour, in the 11 April 2002 judgment (paragraph 57), went so far as saying: "I have had enormous difficulty working out what it is that the defendants say they need to do that they have not done at this stage which is essential to the defendants running this case." 6 In my view the evidence before the court and particularly the adjectival information capable of being gleaned from her Honour's judgments to which I have referred, makes very plain that the defendants had failed to properly prepare for the final hearing. In the fullness of time and following several applications made by the defendants during the weeks which had been set aside for the commencement of the final hearing, her Honour was persuaded that the interests of justice mandated the vacation of those hearing dates. 7 There is presently before the court and there was dealt with by her Honour in the judgment of 11 April 2002, correspondence from Isaac Brott & Co of 13 and 14 March 2002 in each case addressed to Mr Horsely of counsel. The first of those letters was in the following terms: "Re Buzzle. As a matter of urgency please provide a request for further and better particulars of Apple's claim which we can forward to Clayton Utz. Also we will need to engage senior counsel in NSW to assist you with the application to derail the April hearing date." [Emphasis added] 8 The second of the letters, namely the 14 March 2002 letter, included a paragraph requesting Mr Horsely to contact Mr Riordan of counsel, "The purpose being to discuss, from your perspective what else can be done, and/or should be done to derail the proceedings in April". [Emphasis added] 9 In paragraph 78 of her Honour's judgment of 11 April, her Honour said: "I must say that I have never heard the expression 'derail' in respect of adjournment, even having practised in Victoria. To suggest to a barrister and to another solicitor that they derail proceedings and then not to instruct them to seek an adjournment on the days after 13 March is extraordinary." 10 Apparently, as I understand the position, at some stage during the occasions when the proceedings were before her Honour on the dates in question, Mr Brott discontinued his appearance. 11 The issue concerning the circumstances in which her Honour vacated the then hearing dates has been the subject of a number of submissions to the court on the plaintiff's application today to continue the Mareva injunctive relief against the 6th defendant. The plaintiff, by its counsel Mr Newlinds, has formally submitted that Mr Donald Hartono, who is the 6th defendant, "was involved in a successful attempt to derail the proceedings" and has submitted that the court should infer, on the evidence before it, that the letters [to which I have referred] were written with instructions of Mr Donald Hartono. Mr Newlinds has submitted that Mr Donald Hartono gave no evidence to the effect that those letters were not written with his instructions. 12 Mr Biscoe QC, who appears today with Mr Horsely relevantly for the 6th defendant, has strongly contended that there is no evidence before the court to suggest that the submission of Mr Newlinds could be accepted. He has addressed submissions in terms of the proposition, as I understood him, that no such submission was either made to, or if made to, ever upheld by, her Honour. The submission is a serious submission and Mr Biscoe has referred the court to the close terms of her Honour's judgments and, as I understood him, to the fact that no such finding is to be found in her Honour's judgments. 13 In the view which I take of the plaintiff's application now made, it is unnecessary for the court to draw the inference which Mr Newlinds now seeks. However, the circumstances concerning and the wording of the two letters to which I referred, which are exhibits A1 and A2, it seems to me, are clearly permissibly before the court in terms of the adjectival information before the court relating to the final hearing. If it be that these letters are to be interpreted in terms of some innocuous and misconceived misuse by the author of the word "derail", then so be it. If it be that the proper approach to the proper construction and purpose of those letters is a more sinister suggestion of an intent to abuse the process of the court (but being a matter which rested in and emanated from only Mr Brott), so that the 6th defendant cannot have sheeted home to him in any way, shape or form any such sinister motive or intent, then so be it. No further reference requires to be made in this judgment to that circumstance which did involve, it is fair to say, considerable portions of both counsels' submissions made today. 14 The position insofar as the Mareva injunctive relief is concerned, in relation to the 6th defendant, is that that relief is presently on foot and notwithstanding that the orders were made until further order, there is before the Court what is common ground as a contested interlocutory injunction application, centrally the plaintiff requiring to make good the proposition that the orders should not be discharged today. 15 The relevant family relationships, it is common ground, involve Mr Tjipto Hartono, the 7th defendant, who is married to Mrs Minnie Hartono who is not a defendant. Their son is Mr Donald Hartono, the 6th defendant. Mr Polai is Mr Tjipto Hartono's brother-in-law and he is not a defendant. Hartono Nominees Pty Limited is a company in respect of which the sole shareholders, so the court was informed it was common ground on Friday, are Mr Tjipto Hartono and Mrs Minnie Hartono. Apparently, as the court was informed on Friday, the shareholders are directors of Hartono Nominees Pty Limited but so also is, I understand, Mr Donald Hartono and I believe his sister. 16 The close questions which were the subject of address last Friday and to a certain extent the subject of the consensus achieved in the short minutes of order handed to the court underpinning the orders made last Friday, concerned the property at 122 Pacific Highway, Crows Nest which, it is common ground, is a property the registered proprietors of which at all material times have been Mr Tjipto Hartono and his wife, Mrs Minnie Hartono. It is also, as I understand it, common ground that a first registered mortgage has secured that property, the mortgagee being the Bank of China, which mortgage I understand has been in place for a considerable time. 17 It is common ground that it is necessary in order for the plaintiff to establish an entitlement to what is commonly called a Mareva injunction, that the plaintiff make good both a prima facie cause of action against a defendant and secondly, a danger that by reason of the defendants absconding or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion the plaintiff, if successful, will not be able to have the judgment satisfied. 18 In Frigo v Culhaci (unreported, 17 July 1998, NSWCA) the joint judgment included reference to the undoubted principle that a Mareva injunction is an exceptional interlocutory remedy the function of which is: "To minimise the possibility of an unscrupulous defendant seeking to render himself or herself 'judgment proof' by taking steps to ensure that no assets within the jurisdiction can be found on the day of judgment". 19 Their Honours referred in this regard to Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 622. Their Honours pointed out that this was indeed "a drastic remedy which should not be granted lightly" and expressed their agreement with the comment in Meagher, Gummow and Lehane, Equity Doctrines and Remedies 3rd ed [2188] that, "It is obvious that by obtaining a Mareva injunction even an innocent plaintiff can wreak havoc with the defendant's business, and an unscrupulous plaintiff can ruin his opponent...". I approach the judgment now being delivered duly informed by those as the material principles. 20 Clearly, it is necessary that the court scrutinise an application for Mareva injunction with very great care. The authorities for that proposition are given in the Court of Appeal judgment to which I have referred as Patterson v BTR Engineering (Aust) Ltd (1998) 18 NSWLR 319 and reference being made to an article by Mr Sullivan QC, Mareva Injunctions and to Meagher, Gummow and Lehane and to articles by Mr Kunc Mareva Injunctions in Parkinson's edition in the Principles of Equity, Chapter 20. 21 In Patterson Gleeson CJ said: "The remedy is discretionary but it has been held that in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish first, a prima facie cause of action against the defendant and secondly, a danger that by reason of the defendants absconding or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion the plaintiff, if he succeeds, will not be able to have his judgment satisfied as the Court of Appeal added there must be evidence of at least more than usual danger of assets being removed. I am also informed by the principal that in framing the order counsel should bear in mind that a court exercising equitable jurisdiction generally will only grant to a plaintiff by way of interlocutory relief the minimum relief necessary to do justice between the parties. (See Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 411)." 22 Those further passages inform the approach which I take on the hearing of this judgment. 23 Returning to the facts and to the 222 Pacific Highway, Crows Nest property, the evidence before the court is that on 19th November 2001 Clayton Utz, the solicitors for the plaintiff, wrote to Surry Partners advising that their client had become aware that Mr Tjipto Hartono had listed for sale the property in which he owns a significant interest. That letter included a statement that Apple Computer was of the view that Surry Partners' clients were taking steps to liquidate their assets with a view to disposing of those assets outside the jurisdiction prior to the finalisation of the proceedings, so that in the event that Apple would succeed against the relevant defendants, Apple would not be in a position to satisfy any judgments obtained by it against them. 24 The letter required confirmation by 21 November that the net sale of proceeds of the properties after satisfaction of encumbrances would not be disposed of and would be paid into a trust account pending finalisation of the proceedings. Unless that was confirmed, Clayton Utz were instructed to make the appropriate application to the court for injunctive relief. 25 That letter was responded to by Surry Partners on 21 November 2001 in which letter they advised in relation to this property: "Mr Tjipto Hartono and his wife are joint owners of this property. We are instructed that the net sale proceeds of the property, if any, after satisfaction of any encumbrances, will not be disposed of and will be paid into a trust account pending finalisation of the proceedings." 26 Part of the plaintiff's case in seeking the extended Mareva injunctive relief today relies upon that exchange of correspondence and what the plaintiffs have described as the extremely curious events between 21 November 2001 and the completion of the sale of that property. 27 The sequence of events which followed includes a letter from Isaac Brott & Co to Clayton Utz of 19 March 2002 referring to an earlier letter of 13 March 2002 and adding: "In your letter dated 19 November 2001, you sought 'confirmation' that the net sale proceeds, if any, of the 7th Defendant's property, after satisfaction of any encumbrances would not be disposed of and would be paid into a trust account pending finalisation of the proceedings. In our agent's letter dated 21 November 2001, we gave such 'confirmation'." 28 That was followed by a Clayton Utz letter to Isaac Brott & Co of 9 April 2002. In that letter Clayton Utz advised: "We note that your agent's letter to us dated 21 November 2001, gave confirmation by you that the net sale proceeds of the property known as 222 Pacific Highway, Crows Nest, (owned by your client Tjipto Hartono and his wife), after satisfaction of any encumbrances, will not be disposed of and will be paid into a trust account pending finalisation of the proceedings. In your letter to us of 19 March 2002 you reconfirm that confirmation and we note that your clients saw no need to provide any formal further undertaking. We intend to rely upon your confirmation and that of your agent and we assume that upon settlement of any sale of the property at 222 Pacific Highway, Crows Nest, the net sale proceeds will be paid into a separate trust account..." 29 That 9 April letter was followed on 10 April by a statement made by Mr McAlary QC who then appeared before Bergin J. On that occasion Mr McAlary referred to the 19 November 2001 Clayton Utz letter and the response of 21 November 2001 and added: "Recently there has been a further letter seeking a somewhat larger undertaking. I am prepared to stand by what was written by Mr Russell on 21 November. That is, that the net sale proceeds of the property, if any, after satisfaction of any encumbrances will not be disposed of and will be paid into a trust account pending finalisation of the proceedings. Rather than giving any undertaking since I am not sure on whose behalf I will be giving undertakings, we will be prepared to accept an order to that effect as a condition of the adjournment." 30 In the fullness of time Clayton Utz apparently came into possession of or learned of a letter of 17 April 2002 from Cowley Hearne, the purchasers, whom I understand were the vendor's solicitors, giving by way of an authority, an authorisation and direction for the balance of the settlement moneys to be paid, in terms of the larger amounts, by a payment to the Bank of China in the order of 1.9 million dollars; a payment to Hartono Nominees Pty Limited of $440,000; and a payment to T & MT Hartono of some $68,000. Clayton Utz, on 18 April, wrote to Surry Partners referring to the settlement of sale of that property scheduled to take place at 3 pm on 19 April and included in this letter the following: "Our client further understands that your clients have requested that the balance of the settlement proceeds, following presumably the discharge of the mortgage and the payment of costs associated with the sale, be paid to them as follows: 1. A cheque in the sum of $440,000 made payable to 'Hartono Nominees Pty Limited'; and

A cheque in the sum of $68,232.36 made payable to 'T & MT Hartono'. On the face of it, both this office and our client assumes that those cheques should have been drawn to your firm's favour, so that they may be deposited into your trust account, in accordance with the undertaking. Please confirm your instructions in writing by no later than 4.30 pm today, that the cheques in question are to be deposited in your trust account and held in accordance with the undertaking. Should that confirmation not be received...we have been instructed to relist the matter tomorrow to seek appropriate injunctive relief." 31 At approximately 3.50 pm on 18 April 2002 Surry Partners wrote to Clayton Utz advising, inter alia, with reference to one of the two letters of 18 April 2002: " The two cheques you referred to in your first letter were requested in error. We understand that instructions have been given to cancel the request for those cheques. There is a second unregistered mortgage over the property in favour of Tsjeng Polai. Mr Polai lent Mr and Mrs Hartono $2.03 million as at 12 August 2000. The second unregistered mortgage secures that loan. We are instructed that, after payment of the first registered mortgage and the second unregistered mortgage, there will be no balance of proceeds of sale. We are also instructed that, the moneys being paid to the Bank of China as moneys secured by the mortgage over the property and that the mortgage will be fully discharged on settlement." 32 As I understand the evidence before the court, this was the first occasion when any reference had ever been made in any correspondence by any of the defendants to the plaintiff's solicitors or to the plaintiff of the second unregistered mortgage. 33 On 18 April Clayton Utz responded to Surry Partners asking them to forward a copy of the second unregistered mortgage, the mortgage in favour of the Bank of China and loan statements showing the amount due and owing to the Bank of China. 34 Significantly, on the same day, namely 18 April 2002 at about 4.45 pm, Ms Jennifer Ball, a solicitor with Clayton Utz, had a telephone conversation with Judith Lawrence, a director of the purchaser company Mictwo Pty Limited. In the course of that conversation Ms Lawrence recounted to Ms Ball a conversation that she said she had had with Mr Donald Hartono at about 1.00 on that same day to the following effect: "Donald Hartono: How do Apple know what you are paying? Judith Lawrence: 'Well, Apple know the value of the building because Apple are taking a second mortgage on the building. Donald Hartono: Apple know how the cheques are being distributed. Judith Lawrence: Well, Donald I've got no idea and I don't know why you're ringing me because I've got no idea how the cheques are being distributed. Donald Hartono: Apple are insisting that I put the distribution cheques into some trust accounts.

Donald Hartono: I am now thinking that I would rather - some money, I was going to pay certain creditors. Judith Lawrence: Look Donald I've got no idea how Apple found out and I didn't even know it was a secret. I don't know we would, any of us on our life would even know how the proceeds of the sale would be given to whom. Maybe Apple rang the bank and the bank might have told them, I've got no idea - who would know? Donald Hartono: Well the bank would know.

Judith Lawrence: Well maybe that's how they found out because we did give Apple permission to ring the bank and we told them we've got nothing to hide'.

Donald Hartono: Well I now may have to make the smaller cheques to be paid directly to creditors that I have.

Judith Lawrence: I don't think this has got anything to do with me though has it?

Judith Lawrence: Okay well that's all I can tell you." 35 The combined circumstances that arise from the dealings and correspondence to which I have referred result in the case that the 18 April 2002 letter from Surry Partners informing Clayton Utz of the second unregistered mortgage and the instruction that, following payment of the registered and unregistered mortgagees, there would be no balance of proceeds of sale, read in the light of the undertakings the subject of the previous correspondence and read in the light of the conversation which Ms Lawrence had with Mr Donald Hartono as set out above, gives the court very grave grounds for concern as to the issue of whether the 6th defendant, in the circumstances, is shown, on the balance of probabilities, as seeking to render himself or others, in this case his father, judgment proof by taking steps to ensure that relevant assets within the jurisdiction are moved out of the jurisdiction. Further, the circumstances to which I have referred speak, to my mind, strongly in favour of the court finding that, on the probabilities, simply by reason of the lengthy gestation period of the final hearing and by reason of the dates in question when the matter was before the court, the necessary suspicions of the plaintiff have substance. 36 There is then, it is fair to say, before the court a considerable debate in terms of the respective submissions as to whether or not the court should find a prima facie case to the effect that the loan agreement document is not authentic and will be set aside. 37 The plaintiff has commenced proceedings number 2490 of 2002, essentially dealing with declarations that the subject property to which I have referred is not encumbered in various ways. The court has been informed by Mr Newlinds for the plaintiff that the plaintiff intends to shortly seek leave to amend the summons by seeking orders setting aside and declaring void the loan agreement document to which I shall now turn. 38 The loan agreement document which is in evidence is dated 12 August 2000. It was stamped on 18 April 2002 and it records transactions in Recitals A and B by way of advances by the lender to Mr Tjipto Hartono of 1 million dollars by personal loan on 2 November 1993 and by the lender, Mr Polai, of $1,030,000 on 10 July 1997 to Hartono Nominees and Mr Donald Hartono and Mr Tjipto Hartono. Each of Mr Tjipto Hartono and Mr Donald Hartono and Hartono Nominees are recorded as borrowers and they acknowledge their indebtedness to the lender in the sum of $2,030,000. 39 Another item of the evidence before the court, on the hearing of these applications, concerns a telephone call also made by Ms Ball, but this time made on 19 April 2002 at 6.50 pm by herself and Mr Cowling, solicitor for the plaintiff, to the following effect: "David Cowling: My name is David Cowling, I am a solicitor with Clayton Utz in Sydney and we are acting for Apple Computer Australia Pty Limited in proceedings against the guarantors of a loan facility advance to Buzzle Operations Pty Limited. One of those guarantors is Mr Donald Hartono. You may be aware of what happened this afternoon with respect to some orders made by the Supreme Court of New South Wales?

David Cowling: Were you aware that a property over which you apparently have a mortgage at 222 Pacific Highway, North Sydney was due to complete its sale today?

David Cowling: Were you aware that settlement moneys were to be paid to you from the proceeds of sale this afternoon?

Mr Polai:: Yes, Donald is a good friend of mine. I know him well.

David Cowling: Donald has asserted that you hold an unregistered second mortgage over the property at North Sydney. He has provided to the Court a copy of that mortgage and a copy of the loan agreement this afternoon. The Supreme Court made certain orders with respect to the settlement moneys which were to have been paid to you and those moneys are now being held in a trust account in Sydney. We were wondering if you could let us know what your fax number is so that we can provide to you a copy of those orders.

Mr Polai:: I am presently in a meeting. I'll call you back later.

David Cowling: Ok." 40 Curiously it may be thought Mr Polai, in the course of this conversation, was not aware that settlement moneys were to be paid to him from the proceeds of sale of the property that same afternoon. 41 One of the matters the subject of Mr Newlind's submissions which is clearly of high substance is that if this loan agreement was authentic, then it appears that Mr Donald Hartono is indebted to or may be indebted to Mr Polai in the sum of no less than presumably $2,030,000 or an amount generally in that order. 42 To the extent that Mr Donald Hartono is currently facing, on the recommencement of the aborted final hearing, a claim made against him on the guarantee which, having been admitted and the default admitted, leads to an amount of in excess of 3 million dollars being owed, even if Mr Hartono's defence, which has apparently been amended at least a half dozen times but is taken to include an assertion that he understood his guarantee, was limited to 22.1 percent of the 10 million dollars, he would still be liable for 2.21 million dollars. In short, if the loan agreement is an authentic loan agreement, there would seem to be every reason why, in the peculiar circumstances which now obtain some three weeks before the refixed final hearing dates, Mr Donald Hartono may well see it as appropriate to repay that debt and otherwise treat with it. 43 Mr Donald Hartono has placed no evidence whatsoever before the court on the hearing of this application. Mr Newlinds has submitted that he has filed no evidence that proves any of the allegations that he makes before the court in terms of the final hearing. Whether that be correct or incorrect will be a matter for the trial Judge to determine on the affidavits before her. Whether the affidavits do or do not amount to proof of those allegations will, of course, be a matter for the trial Judge. 44 The general circumstances, commencing with the 8 April 2002 scheduling of the final hearing of the defendants' applications for adjournments in that regard; the instruction from Mr Donald Hartono's then solicitor, whether acting of his own accord and without any instructions or whether believing that he had some form of instruction or not, and the whole of the background in terms of the genealogy leading to the undertaking first advanced on 21 November 2001 that the net sale proceeds of the property would not be disposed of; the curious dating of the occasions when the first settlement sheet and the second settlement sheet were prepared; and the important circumstance of the failure on any occasion prior to that to which I have referred, literally on the day before settlement, of any communication of the existence of the second unregistered mortgage, leaves me in absolutely no doubt but that this is an appropriate case in which the existing Mareva relief against Mr Donald Hartono should be continued. 45 To my mind, the plaintiff's submissions as to the clear strength of the prima facie case against Mr Hartono, where an amount exceeding 3 million dollars is pursued, should be accepted as of substance. To my mind, the evidence clearly permits the court to infer that there is reason to believe that Mr Hartono has assets and may take steps designed to ensure that they are no longer available. So that, in those circumstances, orders should be made to prevent the court's process being frustrated. 46 There is, as Mr Newlinds sets out in his written submissions, no evidence or suggestion of particular prejudice on the part of Mr Hartono and the balance of convenience, in my submission, falls very heavily in terms of the status quo being maintained pending resolution of the proceedings (and if the plaintiff succeeds against the 6th defendant, pending enforcement of the judgment against the 6th defendant). 47 It should be not forgotten that the sale of the Crows Nest property took place on the scheduled tenth day of the trial and further, as Mr Newlinds has submitted in his written submissions, it is clear that Mr Donald Hartono, whilst not a registered proprietor, was himself involved in giving instructions and making decisions as to how cheques would be drawn. It is clearly a proper exercise of the court's discretion, having regard to the matters earlier referred to in the judgment, that Mr Hartono be restrained from dealing with his assets pending resolution of the final proceedings now fixed to commence in a few weeks and in terms of so much of the plaintiff's application as seeks orders for the disclosure of the asset position of Mr Donald Hartono. To my mind, that portion of the notice of motion is clearly also made out. 48 In the result, subject to questions of the expense allowance currently fixed at $5,000, I propose that the orders now in place against the 6th defendant will continue to the extent that those orders may not presently embrace the orders set out in paragraph 5 of the notice of motion. I propose to make such an order against the 6th defendant to the extent that the existing orders may not now embrace the whole of what was sought in paragraph 4 of the notice of motion against the 6th defendant. I propose to make those orders.

(His Honour paused in the delivery of the judgment to examine the $5,000 and $1,000 expenses issue.) 49 I order that the 6th defendant file and serve on or before 4.00 pm on 15th May 2002 one or more affidavits which (a) disclose with particularity the nature and extent of the 6th defendant's assets as at the date of swearing the affidavit; (b) discloses the value of the said assets and (c) discloses the present situation, place and whereabouts of such assets. That is an order only made against the 6th defendant. 50 In these proceedings the plaintiff now seeks an order that the 6th defendant pay so much of the costs of the notice of motion filed on 19th April as related to orders sought against the 6th defendant. Mr Biscoe QC for the 6th defendant opposes that order. In my view, the principles generally laid down in the High Court decision in Oshlack v Richmond River Council (1998) 193 CLR 72 make plain that it is appropriate, in circumstances such as the present, for the losing party to pay the successful party's costs. I therefore order that the 6th defendant pay so much of the costs of the plaintiff's notice of motion of 19 April 2002 as related to the plaintiff's claims against the 6th defendant including, of course, the costs of the hearing today.

I certify that paragraphs 1 -50 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 1 May 2002ex tempore and revised 17 May 2002

      Susan Piggott
      Associate
      17 May 2002

Last Modified: 06/21/2002 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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Cases Cited (4)