The evidence relied upon at the contested hearing fell far short. The admissions in the 'without prejudice' correspondence should have been ignored. The sale of an encumbered home unit at a figure above market value does not, standing alone, imply disposal of assets in order to defeat a prospective judgment, even where the purchaser is a close relative. Even if, which is doubtful, the appellant's suspension of work in the building contract could have been regarded as evidence of financial difficulties, it was not argued below that it had such effect. More importantly, that alone is not enough. A mareva injunction is not designed to stop a person from sliding into insolvency."
6 The relevant passage in the judgment of Mustill J in Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft GmbH [1984] 1 All ER 398 at 406 was as follows:
"It is not enough for the plaintiff to assert a risk that the assets will be dissipated. He must demonstrate this by solid evidence. This evidence may take a number of different forms. It may consist of direct evidence that the defendant has previously acted in a way which shows that his probity is not to be relied on. Or the plaintiff may show what type of company the defendant is (where it is incorporated, what are its corporate structure and assets, and so on) so as to raise an inference that the company is not to be relied on. Or, again, the plaintiff may be able to found his case on the fact that inquiries about the characteristics of the defendant have led to a blank wall. Precisely what form the evidence may take will depend on the particular circumstances of the case. But the evidence must always be there. Mere proof that the company is incorporated abroad, accompanied by the allegation that there are no reachable assets in the United Kingdom apart from those which it is sought to enjoin, will not be enough."
7 In determining an application of this sort, one must bear in mind that the criteria stated by Gleeson CJ as cited above must be proved on the balance of probabilities in the way and to the extent that is usual in interlocutory applications for restraint generally. There is no need for the case to be made out in some special way. The reference by Mustill J to "solid evidence" is meant in my view only to emphasise that there must be actual evidence from which the appropriate inference may be drawn by the Court. On the other hand, the appellate courts have reminded primary judges that they must always be vigilant to ensure that parties' assets are not frozen and their business lives impeded lightly and that Mareva relief is not to be used to give plaintiffs security for the satisfaction of their judgments.
8 The contest in this case has been a close one. The application has been brought on for a final interlocutory hearing in a very short time and the evidence has been fragmentary and unsatisfactory. However, there are a number of things to be observed. Some of the matters which the plaintiff initially relied on, such as removal from business premises and cancellation of telephone services, have in fact been explained satisfactorily. In essence, they have been caused by cessation of business activities by reason of other injunctive relief obtained by the plaintiff.
9 The evidence that is available for the plaintiff to rely on is essentially as follows. The second defendant and his wife have purchased a new house and have set about selling their existing residence. That has occurred this year after the plaintiff first notified the second defendant of a damages action. That is the single most important fact that the plaintiff has to rely on. The new house, which is smaller and less valuable than the old house, was bought, true it is, in the wife's name alone, but without any reliance on proceeds of the sale of the old house. The purchase of the new house has already been completed. The sale of the old house has not even now having been effected.
10 An affidavit was sworn on information and belief by the defendant's solicitor, to the effect that, when the old house, which is in joint names of husband and wife, sells, "the net proceeds of sale will be used to renovate the Noosa House and to re-establish Mr Grayson in business."
11 Mr Minehan, of counsel for the plaintiff, submitted that the way in which this was framed was coy or disingenuous. He said that the statement would remain true if, of the equity received out of the old house (currently stated at $200,000), virtually the lot was spent upon renovating the new house in Mrs Grayson's name, removing all the funds from Mr Grayson's purview.
12 However, this morning an undertaking to the Court has been proffered on behalf of Mr Grayson that he will use at least 50 per cent of the net proceeds of sale of the old house "to re-establish the second defendant in business".
13 It should be added that there is another piece of real property in Queensland in joint names, an investment unit, apparently which is said to be subject to three mortgages, but is not currently being sold.
14 Further evidence was led this morning on behalf of the plaintiff in an attempt to suggest that the business into which Mr Grayson has decided to put the funds when they became available is the business of Eagle Carts Pty Ltd, in which he has no interest as a shareholder and of which he is not a director. However, I could not infer, on the available material, that there is any intention for the money to go into that company in any form. Mr Minehan particularly emphasised that the nature of the danger was wide including disposal within the jurisdiction or dealing otherwise with the assets with the effect specified.
15 Whilst the undertaking proffered is in general terms, nonetheless the expenditure which must be undertaken while it is current, must be expenditure to re-establish the second defendant in business and the second defendant risks being in contempt of Court if he spends money in breach of the undertaking.
16 Mr Minehan has laboured mightily and said everything that could be said in support of the plaintiff's application. However, in the end, I have come to the view that I cannot on the material available come to the conclusion that any or any such danger is shown of a dealing with assets by the second defendant that would found Mareva relief. The result is that the notice of motion be dismissed.
17 I have heard short but helpful submissions from both counsel on the costs of the application. In particular, both counsel have asked me not to reserve the costs of the application and I think that is a very sensible approach on both their parts.
18 It is true I have said that the contest was close. It is true that the undertaking brought forward this morning on the second defendant's part played a part in the result which the second defendant has obtained. However, I have come to the conclusion that there is not sufficient reason to deflect the usual result in the case of an unsuccessful interlocutory application.
19 The orders I make are: