Clearwater Shipping Corporation Inc v Cao [2003] VSC 216

Supreme Court of Victoria|2003-05-27|Before: CUMMINS J

Before the court is a summons filed 26 May 2003 seeking certain ex parte relief in favour of the plaintiff. The plaintiff, Clearwater Shipping Corporation Incorporated, is incorporated in Liberia. The defendant, Jian Cao, is the sole director of Crosslight Proprietary Limited. The relief sought is for first a substituted service, a Mareva order, discovery and consequential relief.

By a Statement of Claim filed with the Writ on 26 May 2003 it is alleged that Crosslight was indebted to Clearwater in the sums there set out for sea freight services that Clearwater had provided to Crosslight; that after various commercial steps were taken a balance remained owing to Clearwater, the net balance ultimately being $US140,000. What is here sought is that amount and interest and costs.

As to the first order sought, substituted service pursuant to Rule 6.10, affidavits sworn and filed today of Mr N.F. Luxton, solicitor for the plaintiff, and Mr R.F. Preac, process server, with exhibits thereto establish that numerous and comprehensive attempts to serve the defendant, Mr Cao, have been inefficacious. There were three attempts to serve him at his home address, and six attempts to serve him at his workplace. His residential address listed with ASIC has been vacant for some three months. His brother has stated he does not know where he is or when he will next see him. Melbourne Inner City Management, the lessor, does not know his whereabouts and no response from HSBC Bank as to his whereabouts has been made. As a consequence I am satisfied that on the affidavit material full and proper attempts to serve the defendant have been made and have been unsuccessful and the plaintiff presently is unaware of the defendant's whereabouts.

Accordingly, applying the usual criteria for an order under Rule 6.10, I am satisfied that the order should issue in the terms sought, which I shall sign, namely that a copy of the order and of the written Statement of Claim be sent by pre-paid post letter to the defendant at his home and work and bank address, as set out in the order, and by leaving that material also with his brother at a work and home address set out in the order, and with the Melbourne Inner City Management and HSBC Bank at the addresses set out in the order.

The second matter is whether a Mareva order ought be made. The criteria for it are well-known. Essentially it is to enable the court to protect its process. The criteria are set out in Patrick Stevedores Operations No.2 Pty Ltd and Ors. v. Maritime Union of Australia & Ors[1] and the prudential restraint properly applying to Mareva orders is set out in Cardile and Ors. v. LED Builders Pty Ltd.[2] On the affidavit material here, notably that of the learned instructing solicitor, Mr Luxton, I am satisfied of the relevant criteria for the granting of an Order - that the defendant has assets in the jurisdiction, that the plaintiff has a good arguable case, and that there is a danger that the assets could be liquidated and removed from the jurisdiction. Accordingly I propose to grant the Mareva order that is sought.

The final matter is the Order for Discovery which is sought. Again for analogous reasons I am satisfied that an Order for Discovery in aid of the Mareva order properly ought be made (See Bruzzese v. Taylor)[3] and I make that order likewise.

The plaintiff is a foreign corporation. However, I am satisfied that the usual undertaking for the orders sought ought to be accepted by the court. As Mr Harvey, counsel for the plaintiff, has helpfully pointed out, the plaintiff being a shipping company has ships coming into this jurisdiction on a regular basis and accordingly, if ultimately these proceedings fail and there is a want of costs, recourse can be had to ships in the jurisdiction from time to time owned by the plaintiff.

I should have added and I note that in the Mareva order that is sought paragraphs (f) and (g) are two proper exceptions, so that the rights of other parties are not cut across, namely the right to permit the sale of the property at Queensbridge Street and to meet his liabilities to the HSBC Bank, and those are proper exceptions which are made.

I have been assisted by the comprehensive and fair review of the relevant material by Mr Harvey and accordingly I propose to grant the orders sought on the undertaking given, which is recited at the commencement of the Order.

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