8 It is by now clear that this Court has power to make interlocutory orders in the nature of injunctive relief: Wheeler v Selbon Pty Ltd (T/as Parklands Nursery) & Ors (1984) 7 IR 383 Cahill J; Darvall v NZI Securities Australia Ltd (1991) 39 IR 215, Hungerford J; Geoffrey Bowker & Anor v Prophecy Technologies Pty Limited [1999] NSWIRComm 248, 26 May 1999, Marks J; Western Suburbs Leagues Club (Illawarra) Limited v Kenneth Leslie Vaughan & two Ors [1999] NSWIRComm 254, 2 June 1999, Schmidt J; Elliot v Royal Motor Yacht Club (1992) 42 IR 35, Watson J; Jacoby & Ors v Boral Transport Limited & Ors, unreported, 7 May 1993, Peterson J.
9 In Darvall v NZI Securities Australia Ltd, Hungerford J said at 221:
"However, as earlier stated, the Commission is empowered, by reason of its constitution as a superior court of record, to make interlocutory orders in the protection of its process and so as to ensure that any final orders made may not be frustrated or put at naught."
10 A Mareva injunction is a discretionary remedy and a decision whether or not relief should be granted will depend on all the circumstances of the case.
11 In the present proceedings, apart from the affidavit supporting the notice of motion and the submission's of Mr Goot, I have had regard to the applicant's Summons for Relief and the affidavit in support as well as the respondents' Reply filed on 18 July 2000. These show, in my opinion, that the applicant has "made out a sufficiently strong case to justify the grant of the interlocutory remedy": Riley McKay Pty Ltd v McKay at 276.
12 I consider that without in any way commenting on the final outcome, the applicant has a good arguable case.
13 The ex parte notice of motion and affidavit by the applicant stated that the first respondent has a number of assets in New South Wales that included shareholdings, loans to subsidiaries, a gas fired cogeneration power plant at Smithfield ("the plant"), the net value of which was A$50 million and approximately A$10 million credit in the account with BNP.
14 The notice of motion and applicant's affidavit stated that the second respondent was in the process of attempting to sell the shares and the plant but since the applicant filed his Summons for Relief under s 106 of the Act he had not been informed of any details of these attempts and does not know the status of the proposed sale. The sale or disposal of the shares and the plant could proceed without the knowledge of the applicant.
15 The proceeds of the account with BNP could be transferred by the first respondent without the knowledge of the applicant who was not a signatory to the account. The applicant had been recently informed by the Treasurer of the second respondent that the second respondent intended to transfer all of the proceeds of the account with BNP as soon as the second respondent needed such proceeds or when she was satisfied with the exchange rate between the Australian dollar and the United States dollar.
16 Clearly, there is a risk of the assets being moved from the jurisdiction or otherwise dealt with so that there is a danger that the applicant, if he recovers judgment under s 106 of the Act, will not be able to satisfy it or, at the very least, disposal of the assets in Australia would expose the applicant to significant expense and delay in enforcement of any judgment in the proceedings under s 106, by requiring him to bring further proceedings in the state of Delaware.
17 The applicant, by his counsel, has given the usual undertakings as to damages.
18 I have had regard to the balance of convenience which, in my opinion, lies with the applicant because of the position in which he would be placed if the assets are moved from jurisdiction. The orders I have made allow the first respondent to pay rent, salaries and operating expenses and to dispose of or deal with its assets upon terms consented to by the applicant or the applicant's solicitors. Moreover, the notice of motion will be heard inter partes on Thursday 27 July 2000.