Bird v McComb

Solicitor for the First, Second, Third, Fourth, Fifth and Sixth Defendants: Mr DRW Tucker of Tucker & Cowen

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 10 of 2011

AUSTRAL PACIFIC QUEENSLAND PTY LTD AS TRUSTEE OF THE BM FAMILY TRUST

JUDGE: COLLIER J DATE OF ORDER: 20 JUNE 2011 WHERE MADE: BRISBANE

The notice of motion filed 3 June 2011 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 10 of 2011

AUSTRAL PACIFIC QUEENSLAND PTY LTD AS TRUSTEE OF THE BM FAMILY TRUST

JUDGE: COLLIER J DATE: 20 JUNE 2011 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 By notice of motion filed 3 June 2011 the defendants have applied to the Court for orders discharging Orders 1, 2 and 3 of 18 February 2011 and Order 8 of 18 April 2011, being orders previously made by Greenwood J in these proceedings. In summary, those orders restrain the defendants from engaging in conduct relating to the sale of certain properties and refinancing of certain securities without the leave of the Court. 2 The notice of motion was filed by the defendants following a directions hearing in the matter held on 1 June 2011 at which no appearance was entered on behalf of the plaintiff, and no explanation provided by her legal representatives at that directions hearing as to their absence. 3 Should the Court be minded to make the orders they seek in the notice of motion, the defendants have offered undertakings, in broad terms to not encumber the relevant properties without giving the plaintiff seven days notice of the terms of the proposed encumbrance with full particulars. 4 I am not prepared to discharge the orders of Greenwood J as sought by the defendants, and consider that the appropriate order is to dismiss the notice of motion. My reasons are set out below.

Background 5 The background facts to the notice of motion are summarised by Greenwood J in Bird v McComb [2011] FCA 129 and Bird v McComb (No. 2) [2011] FCA 507. 6 Ms Bird and Mr McComb lived in Victoria and Queensland in a de facto relationship for a period of 31 years between 1974 and 2005. During that time Ms Bird and Mr McComb held interests in and conducted particular business activities through a number of proprietary companies limited by shares. It appears that when the de facto relationship ended in 2005, all of the real property in which Ms Bird and Mr McComb held an interest was owned by the various companies in which they held shares, namely the second, third, fourth and fifth defendants. It also appears that each of the defendant companies carried on the business of buying and selling property. Ms Bird continued to receive an income from the second defendant after 2005 in an amount of $1,200 per week, however those payments ceased on 16 March 2009.

Orders 1, 2 and 3 made 18 February 2011 7 By an application filed 19 January 2011 the plaintiff, Ms Bird, sought a variety of orders against the defendants under the Corporations Act 2001 (Cth) including rectification of the registers of the second, third and fourth defendants, declarations as to directorships of the second, third, fourth and fifth defendants, delivery up of books, records and accounts, and, in the alternative, orders for winding up of the second, third, fourth and fifth defendants. 8 Ms Bird also sought interlocutory relief in the nature of: orders injuncting the defendants from in any manner dealing in the assets, shareholding or change in officers of the second, third, fourth and fifth defendants; a declaration that, until the hearing of this matter the former shareholdings of the plaintiff are held on trust by the first and second defendants; and an order that the first defendant disclose to the solicitors for the plaintiff the assets and liabilities of each of the second, third, fourth and fifth defendants. 9 The trial of substantive issues is currently set down for four days commencing 19 July 2011. The hearing in respect of the interlocutory relief sought by Ms Bird was conducted by his Honour on 17 February 2011, with judgment in respect of that interlocutory relief delivered by his Honour on 18 February 2011 (Bird v McComb [2011] FCA 129). 10 In that judgment his Honour noted that the defendants urged upon the Court the proposition that no interlocutory order ought be made which had the effect of preventing the companies from going about the orthodoxy of their business arrangements and in particular the buying and selling of properties owned by each company and the completion of arrangements to refinance several mortgages over properties which had expired. Although the defendants conceded that the affidavit material relied upon by Ms Bird before his Honour made out a prima facie case, as his Honour observed: The real question agitated by the respondents is the prejudice the respondents will suffer if restrained in the manner sought by the applicant plaintiff. (at [38]) 11 Importantly, his Honour also said (Bird v McComb [2011] FCA 129 at [44]): It seems to me that the status quo ought to be maintained pending the determination of the principal relief although the real question is the framing of an order which achieves that result whilst enabling things to be done by the entities which are conducive to the preservation of the status quo. 12 It is clear, so far as material to the notice of motion presently before the Court, that orders made on 18 February 2011 were made by his Honour with the intention of maintaining the status quo, by restraining conduct of the defendants (in particular the first defendant) which could result in shares in and property of the defendant companies being transferred away (Orders 1 and 2). 13 However his Honour was also mindful of the possibility that the defendants would need to seek refinancing, and Orders 2(a), 2(b) and 3 anticipated that the defendants could seek the leave of the Court to refinance existing securities. 14 Orders 1, 2 and 3 of 18 February 2011 are as follows: 1. Until the determination of the principal proceeding, the first defendant, John Edmund McComb, is restrained from entering into any arrangements or causing arrangements to be made that have the effect of changing the office bearers (that is to say, directors or secretary) of each of the second, third fourth and fifth defendants or entering into arrangements or causing arrangements to be made that give rise to a transfer of shares in any of the second, third or fourth defendants, without the leave of the Court. 2. Until the determination of the principal proceeding, the first defendant John Edmund McComb, is restrained from causing any of the second, third, fourth or fifth defendants to enter into agreements for the sale and disposition of properties owned by those companies or entering into arrangements with financiers for the refinancing of existing securities granted either by any one of the companies in respect of the assets or undertaking of any one of the companies or alternatively in respect of any individual assets owned by any one of the companies, without the leave of the Court, subject to the following matters: a) The first defendant (whether by himself or by those advisers appointed by him whether accountants, lawyers or otherwise to act on his behalf) shall be entitled to conduct discussions or negotiations or engage in normal business practices with a view to seeking to reach arrangements, in principle, by which any of the second, third, fourth or fifth defendants might put in place a refinancing of existing securities either granted by any one of those companies in respect of its undertaking or in respect of any individual asset owned by one of those companies, and, to that end, the first defendant shall be entitled to seek to fully identify the terms and conditions upon which such a refinancing might be undertaken, subject to no agreement being entered or concluded without the leave of the Court; and b) The first defendant (whether by himself or by those advisers appointed by him whether accountants, lawyers or otherwise to act on his behalf) shall be entitled to conduct discussions or negotiations or engage in normal business practices with the view to seeking to reach arrangements, in principle, by which any of the second, third, fourth or fifth defendants might sell any one of its real property assets, subject to no agreement being reached or concluded without the leave of the Court. 3. Until the determination of the principal proceeding, the second, third, fourth and fifth defendants are restrained from entering into an agreement for refinancing existing securities granted either by the companies in respect of their undertaking or in respect of individual assets of those companies or of disposing of real property assets, without the leave of the Court.

Order 8 made 18 April 2011 15 Subsequently an application was made by the defendants to vary these and the other orders made by his Honour on 18 February 2011. His Honour considered this application, made orders in relation to the application on 18 April 2011, and published reasons in relation to those orders in Bird v McComb (No. 2) [2011] FCA 507. 16 Before his Honour on 18 April 2011 were affidavits sworn subsequent to the delivery of judgment in Bird v McComb [2011] FCA 129, in particular affidavits of Mr McComb sworn 7 March 2011 and 29 March 2011. 17 In his affidavit sworn 7 March 2011, Mr McComb swore, inter alia, that he needed to obtain further financing as neither the second nor the third defendant had the necessary funds available to discharge particular obligations. 18 In commenting on Mr McComb's affidavit sworn 29 March 2011, his Honour observed that that affidavit addressed: aspects of (Mr McComb's) background generally; the history of his financial circumstances (including his bankruptcy) and the relationship between those matters and arrangements put in place for the continuing management of the affairs of Brimin Gem, Carriages and Esterglade Pty Ltd; the changes made to the appointment of officers of the relevant companies both in anticipation of Mr McComb's bankruptcy and after his discharge from bankruptcy; and some documents said to evidence Ms Bird's consent to particular arrangements. (Bird v McComb (No. 2) [2011] FCA 507 at [40]) 19 His Honour further observed in relation to that affidavit: The effect of these paragraphs of Mr McComb's affidavit is to not only assert and affirm his earlier contentions that Ms Bird's claims, on the facts, are denied, but also to provide some direct evidence and copies of documents said to support Mr McComb's contentions, and contextual content to the matters he asserts. These matters which address the principal claims of Ms Bird are relevant in the context of the amended application as they go to the strength of the plaintiff's prima facie case and the exercise of the discretion to vary the interlocutory restraints (Bird v McComb (No. 2) [2011] FCA 507 at [41]). 20 Among other things, his Honour ordered that the injunctive relief previously granted to Ms Bird be extended to the sixth defendant in respect of certain properties. This Order - Order 8 of 18 April 2011 - provided as follows: 8. Upon the usual undertaking as to damages proffered by the plaintiff, Suzanne Christine Bird, Austral Pacific Queensland Pty Ltd is restrained, whether by itself, its servants or agents or otherwise howsoever from dealing in or creating any interest in any person in any of the properties recited at para 8(c)(i) to (viii) and para 8(c)(ix) to (xi) of the said affidavit of Mr McComb, pending the trial of the action. 21 Further, on 18 April 2011 his Honour made orders varying his previous injunctive orders including: 2. Leave is given to the Third Defendant, SCB Holdings Pty Limited, to borrow sufficient moneys in order to discharge the following obligations of SCB Holdings Pty Limited:- (a) first, arrears of interest payments for the months of January, February, March and April 2011 in respect of the two properties recited at paragraph 2(d)(i) of the Amended Notice of Motion filed 5 April 2011, namely properties located at 18-20 Walter Street, Safety Beach; 12-16 Walter Street, Safety Beach, being the amounts recited at paragraphs 9(c)(i) to (iii) of the Affidavit of John Edward McComb sworn and filed 31 March 2011; (b) second, the amount represented by arrears of rates as described in paragraphs 9(h) of the said Affidavit of John Edward McComb. 22 In a different set of orders made later on the same day, being 18 April 2011, his Honour also ordered as follows: 2. Leave is given to the second respondent Brimin Gem Pty Ltd either alone or together with Austral Pacific Queensland Operations Pty Ltd to borrow sufficient monies in order to discharge the following obligations of Brimin Gem Pty Ltd. First, arrears of interest payments for the months of January, February, March and April 2011 in respect of the six properties recited at para 2(b)(i) of the amended notice of motion filed 5 April 2011, namely properties located at 1 MacKeith Court, Mt Eliza; 235 Canadian Bay Road, Mt Eliza; 85 Elizabeth Avenue, Rosebud West; 3 MacKeith Court, Mt Eliza; 2 MacKeith Court, Mt Eliza; and 18 Taroona Close, Mt Eliza, being the amounts recited at para 8(c)(i) to (vi) of the affidavit of John Edmund McComb filed 29 March 2011 and bearing the date 24 February 2011. Second, the amount represented by arrears of rates as described at paras 8(f)(i) to (vi) of the said affidavit of John Edmund McComb. Third, the amount of $60,000 in respect of the property at 26 Seafarer Court, Surfers Paradise referred to at para 8(r) of the said affidavit of John Edmund McComb. Fourth, amounts in respect of legal fees described at paras 8(l) and 8(m) of the said affidavit of John Edmund McComb. 23 In his reasons for decision, after reciting in detail the facts before him, his Honour said: 76. For the purposes of the application for orders in terms of the Amended Notice of Motion, I accept that on the face of the financial accounts prepared for Brimin Gem by Mr Christopherson that Mr McComb has advanced significant funds to that company and therefore has a substantial investment or interest in that company. I also accept that on the face of the financial accounts prepared by Mr Christopherson, on instructions from Mr McComb, Brimin Gem's accounts have been prepared on the footing that it has acted at all relevant times as a trustee of the BM Family Trust and that the properties acquired by Brimin Gem are treated, by reference to a schedule, as trust assets. For present purposes, the question of whether the properties registered in the name of Brimin Gem are owned by that company absolutely or are trust assets, is in controversy and will be resolved in the principal proceedings. I also accept that Brimin Gem and SCB have entered into a series of mortgages secured over the properties recited in Mr McComb's affidavit dated 24 February 2011 (sworn 7 March 2011) and his affidavit sworn 31 March 2011. I accept that the interim position ought to be preserved in the sense that these entities ought to be entitled to borrow funds in the ordinary course of their business in order to meet obligations to be discharged which fall to be discharged prior to the determination of the principal proceeding. 77. I also accept that Mr McComb has exhibited to his affidavit some documents which suggest that Ms Bird may have consented to particular matters. 78. Nevertheless, the central contention of Ms Bird is that she did not agree to the transfer of her shares as already described and nor did she consent to arrangements which altered her position as an officer of the companies. In the context of the exercise of the discretion to vary the orders relating to the interim injunctions, it should be noted that Mr McComb has made a disarmingly frank admission that when his bankruptcy seemed inevitable he elected to take steps to reorganise his affairs so as to remove assets from the reach of a trustee of his estate who would be appointed in that inevitable continuum; Mr McComb regarded the granting of guarantees by Ms Bird as a matter of little substance; the financial statements for Brimin Gem and SCB appear not to have been prepared for the period 2006 to 2010 until these proceedings seemed to make that step necessary; the financial statements for Carriages and Newtoun have not been prepared; taxation returns for none of the defendant companies have been prepared and lodged; the financial affairs of Brimin Gem and SCB seem to be conducted out of the bank account of Carriages at the ANZ Bank; and although Mr McComb says that Ms Bird agreed to transfer her shares in the relevant entities and resign her positions because she knew she was a beneficiary under the BM Family Trust, Mr McComb as appointor has removed Brimin Gem as trustee and the trustee, with the consent of Mr McComb, has varied the trust to remove Ms Bird as a beneficiary under the trust. 79. Although no findings are to be made and nor it is appropriate to do so, the impression gained from the position adopted by Mr McComb as reflected in his own affidavits, is that compliance with the proper discharge of legal obligations by the defendant companies under his control is treated as largely a matter of election or discretion. 80. However, the proper course is to preserve the capacity of Brimin Gem and SCB to continue to function in the ordinary course of business by discharging obligations arising in the ordinary course of business of those companies, pending the determination of the proceeding. The BM Family Trust was established on 25 June 1992. The financial statements for the BM Family Trust for the financial years ending 30 June 1992 to 30 June 2005 ought to be produced. The financial statements for the period 2006 to 2010 as adopted by Mr McComb (rather than simply the draft financial statements) ought to be produced. The taxation returns for the BM Family Trust for the financial years ending 30 June 1992 to 30 June 2005 ought to be produced. The taxation returns for the BM Family Trust for the years ending 30 June 2006 to 30 June 2010 are being prepared by Mr Christopherson and they ought to be produced. 24 In relation to the addition of the sixth defendant and the need of other defendants to borrow further monies, his Honour said: 82. Since the question of whether the properties are trust assets or not is in issue, Austral will be joined in its trustee capacity as a party to the proceedings and will be restrained from dealing in or creating any interest in any person in any of the relevant properties. Accordingly, orders will be made giving leave to Brimin Gem and/or Austral to borrow sufficient monies to discharge interest payments for the months of January, February, March and April 2011 in respect of the six properties recited at para 2(b)(i) of the Amended Notice of Motion; the amount represented by arrears of rates payable by Brimin Gem as described at paras 8(f)(i) to (vi) of the affidavit of Mr McComb filed 29 March 2011 but bearing the date 24 February 2011; the amount of $60,000.00 in respect of the property at 26 Seafarer Court, Surfers Paradise referred to at para 8(r) of the said affidavit of Mr McComb; and the legal fees described at paras 8(l) and 8(m) of that affidavit. 83. Leave will be given to SCB to borrow sufficient monies to discharge interest payments for the months of January, February, March and April 2011 in respect of the properties recited at para 2(d)(i) of the Amended Notice of Motion; and the amount represented by arrears of rates as described at para 9(h)(i) and (ii) of the affidavit of Mr McComb sworn and filed 31 March 2011.

Submissions of the defendants prosecuting the notice of motion 25 At the hearing before me on 9 June 2011 Mr Tucker for the defendants made oral submissions as well as tendering written submissions. In summary, the reasons proffered by the defendants for discharge of his Orders 1, 2 and 3 of 18 February 2011 and Order 8 of 18 April 2011 were as follows: On 18 April 2011 Greenwood J ordered the plaintiff to file and serve point of claim by 29 April 2011. Those points of claim were only served on 8 June 2011. The plaintiff has not properly prosecuted her claim. The nature of a Mareva Order is to preserve the status quo, not change it in favour of the plaintiff, however in this case the current Mareva Orders have changed the status quo in favour of the plaintiff because: the defendants are now subject to call up notices on their properties due to the Mareva Orders preventing the defendants from borrowing monies to fund the interest payable on the mortgages; on 18 April 2011 Greenwood J allowed the defendants to borrow monies to cover past interest owing but no future interest was allowed; no future legal fees have been allowed for in the variation of the Mareva Order and the defendants have no means by which to fund their defence of the proceeding. The evidence in respect of triable issues in the proceeding has changed since the hearing of 18 February 2011. In particular: there is clear evidence before the Court that Mr McComb was appointed director of both the second and third defendants, and that the plaintiff signed the forms and lodged them with the Australian Securities and Investments Commission; evidence before the Court as to an agreement between Ms Bird and Mr McComb as to changes in the shareholding and office holding of the second, third and fourth defendants is not disputed by the plaintiff; in respect of the second defendant there is evidence before the Court that the properties registered in the name of the second defendant are in fact trust properties of the BM Family Trust; there is now a strong case in favour of the defendant that the following events occurred with the plaintiff's knowledge and consent: appointment of Mr McComb as a director to second, third and fourth defendants; resignation of Ms Bird from the second, third and fifth defendants; transfer of the plaintiff's shares in the second, third and fourth defendants. The balance of convenience has shifted since the hearing of 18 February 2011 in that: Ms Bird has not expeditiously progressed her case; no plausible explanation as to the delay and non-filing of the points of claim has been provided by the plaintiff; Ms Bird's solicitors did not file and serve an affidavit explaining their absence at the directions hearing of 1 June 2011 until 8 June 2011 (two business days late); on 8 June 2011 the plaintiff attempted to file five subpoenas in the Federal Court Registry which were rejected by the Deputy District Registrar.

Submissions of the plaintiff 26 In summary, the plaintiff opposes the defendant's notice of motion on the following grounds: The proposition that the defendants have not obtained and are not able to obtain appropriate finance is provided in a hearsay fashion. The defendants' contention that a financier is prepared to provide a greater amount of finance than that which the court allowed the defendants to obtain but not a smaller amount is not explained. In any event, the plaintiff would have no objection to the defendants obtaining the larger amount which the financier is prepared to advance provided the excess is held in a solicitor's trust account. Similarly, the plaintiff has no objection to the relevant properties being sold subject to the proceeds being held in trust pending determination of the proceedings. The defendants' contention that properties owned by the second defendant were held subject to the terms of a deed of trust emerged only recently. Despite the fact that properties purportedly owned outright by the second defendant have been the subject of previous Court proceedings the Court has never previously been informed of the existence of the trust. While the defendants complain of the plaintiff's failure to file and serve points of claim, the defendants have been slow to file important affidavit material ordered by Greenwood J on 18 April 2011 and, until the day of the hearing when I allowed the defendants additional time to file the relevant material, were in breach of his Honours orders. Financial information provided by the defendants has been selective and disparate, and they have not disclosed where the funds consisting of the mortgage amounts have been expended. Apart from all other factors, there is simply not enough information for any proper assessment to be made which would favour the effective cancellation of injunctive orders made after close consideration by another judge of the Court. The late production of the points of claim by the plaintiff cannot in any way justify the orders sought. The plaintiff's case is clear in the application filed 19 January 2011 and her affidavit of that date. The final formulation of the plaintiff's case on the trust issue must await compliance by the defendants with the Court's orders. The absence of representation on behalf of the plaintiff at the hearing of 1 June 2011 is dealt with in the affidavit of her solicitor, Mr Mylne, filed and served 8 June 2011.

Principles relevant to discharge of injunctive orders 27 The defendants have referred to the orders they seek discharged as "Mareva Orders". While the jurisdiction of the courts to grant Mareva orders was originally exercised to prevent defendants from moving assets out of the jurisdiction, in more recent times the term has also been used to refer to orders preventing dissipation of assets generally such as the orders the subject of this notice of motion (cf comments of Heath J in Shen v An Ying Group Ltd [2006] NZHC 999 at [1]). 28 In circumstances where interlocutory injunctive restraints have been placed on conduct of a party by a Judge of the Court who has had the opportunity to properly consider relevant material, it is clear that, notwithstanding those earlier orders, in appropriate circumstances the Court can discharge the orders irrespective of the consent (or otherwise) of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at [10]. Order 35 rule 7 of the Federal Court Rules permits the Court to set aside an order before it is entered (r 7(1)), where it is interlocutory (r 7(2)(c)) or where it is an injunction (r 7(2)(d)). However it is equally clear that such a step requires careful consideration. A number of principles relevant to an application of this nature were conveniently summarised by Young J in Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA 652 in the following terms: 4 The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules, the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 ('Dudzinski') at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25]. Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508. 5 The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 ('Brown') at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) ('Baker'); and Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 All ER 745 ('Chanel') at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 ('Autodesk') at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J. 29 The authorities also support the principle that failure of the party in whose favour the injunction has been granted to diligently and promptly prosecute the primary proceedings will support an application for discharge of the injunction: Greek City Co Ltd v Demetriou (1983) 2 All ER 321, Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia [1987] FCA 10. 30 Further as the High Court pointed out in Adam P Brown at [11]: A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v. Sheriff of Queensland (1895) QLJ 163, at p 165; Hutchinson v. Nominal Defendant (1972) 1 NSWLR 443, at p 447; Chanel Ltd. v. F. W. Woolworth & Co. Ltd. (1981) 1 WLR 485, at p 492; (1981) 1 A11 ER 745, at p 751. Of course, the changed circumstances must be established by evidence: Cutler v. Wandsworth Stadium Ltd. (1945) 1 A11 ER 103. (at p178) 31 With these principles in mind I now turn to consideration of the defendants' notice of motion.

The notice of motion 32 The circumstances do not support discharge of the relevant orders of his Honour. I have formed this view for the following reasons. 33 First, the question whether the orders of his Honour should be discharged was raised by Mr Tucker at the directions hearing in these proceedings of 1 June 2011 at which there was no appearance by the plaintiff. The defendants submitted that the plaintiff's absence suggested a failure by the plaintiff to diligently prosecute Ms Bird's application. I note however an affidavit was filed subsequently by Mr Mylne, the solicitor for the plaintiff, on 6 June 2011 in accordance with my orders (not 8 June 2011 as submitted by Mr Tucker) wherein Mr Mylne explained the plaintiff's absence at the directions hearing on that date. I am not satisfied that the failure of Ms Bird to enter an appearance at the directions hearing of 1 June 2011 constitutes failure by her to properly prosecute the application. 34 Second, I am not satisfied that the delay of the plaintiff in filing the points of claim is further evidence of the failure of the plaintiff to properly prosecute the application. 35 His Honour had ordered the plaintiff to serve points of claim by 28 April 2011. I note that the plaintiff served points of claim as ordered by his Honour on 8 June 2011. 36 The delay clearly resulted in the plaintiff being in breach of his Honour's orders, for which remedies could have been (but were not) sought. However: Until the hearing of 9 June 2011 when I made an order varying the date by which the defendants were required to file additional material, the defendants were themselves in breach of his Honour's orders. The plaintiff submits that in any event the plaintiff's case is clear on the face of the application. In my view this submission has some merit. I make this observation notwithstanding that an order requiring the plaintiff to file and serve points of claim was the subject of agreement of the parties (TS 18 April 2011 pp 5-6). Further, the fact that his Honour made such an order does not mean that the plaintiff's case was not already clear. 37 Third, I am not satisfied that new facts have come to light which render enforcement of his Honour's orders unjust. The case before his Honour, and in respect of which his Honour was prepared to make interlocutory orders, does not appear materially different to the case which is going to trial. At the hearing Mr Tucker for the defendant drew my attention to material supporting a finding that Ms Bird had consented several years ago to certain arrangements whereby Mr McComb had been appointed director of defendant companies - for example minutes of a meeting of directors of the second defendant held on 24 July 2002, annexed to Mr McComb's affidavit. Mr McComb's affidavit was filed on 29 March 2011, and Mr Tucker submitted that no material has been filed by Ms Bird to rebut it. However: It is not clear to me why this material was not put before his Honour on 17 February 2011. In any event, this material was clearly before his Honour on 18 April 2011, and was considered by his Honour in relation to the question whether previous orders should be varied. As observed by Buckley LJ in Chanel Ltd v FW Woolworth & Co at 751, a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. In any event, Mr Griffin submitted that this material goes to the issues at trial - namely whether Ms Bird had been removed as a director of defendant companies, and her name removed from the register, without her consent - and should be resolved at trial. I agree. This also was the approach adopted by Greenwood J in Bird v McComb (No. 2) [2011] FCA 507 particularly at [77]-[78]. 38 Fourth, since his Honour's judgment of 18 February 2011 evidence has been produced by the defendants to the effect that relevant properties were actually held by the second defendant on trust. This is a new fact going to issues at trial, but rather than support an order discharging his Honour's orders of 18 February 2011 it supports the continuation of the orders until all relevant issues are resolved at the hearing. 39 Fifth, the defendants now submit that they are subject to call up notices on the properties due to orders preventing them from borrowing monies to fund the interest payable on the mortgages and that therefore the Mareva orders have changed the status quo in favour of the plaintiff. As I have already noted, his Honour's orders in February anticipated that the defendants might need to refinance the existing securities, and left open to the defendants the possibility of returning to Court to vary the orders. Indeed, in April his Honour made orders to permitting limited refinancing. I am not satisfied that the current circumstances warrant a discharge of the orders of Greenwood J. Rather, I am satisfied that his Honour's orders provide scope to the defendants to seek variation of the orders in relation to refinancing, should they so require. Before me they have not done so. They have sought only discharge of his Honour's orders.

Conclusion 40 After the hearing, the defendants forwarded to my chambers formal wording of undertakings they proposed at the hearing should I be prepared to discharge his Honour's orders. The plaintiff, through Counsel, opposed an order discharging his Honour's orders notwithstanding the terms of undertakings proposed by the defendants. 41 The plaintiff and the defendants have submitted that they are under significant financial pressures. Mr McComb has submitted that the current orders are forcing him to engage in strategies in respect of the properties which he would prefer to avoid. In the circumstances however I am unable to identify how the current orders impose an unjust burden on the defendants, or that the balance of convenience has shifted such that an order discharging his Honour's orders of 18 February 2011 and 18 April 2011 is warranted. 42 I will seek submissions from the parties as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.