Harrison Partners Construction Pty Ltd v Jevena Pty Ltd

CATCHWORDS : INJUNCTIONS - Interlocutory injunctions - Mareva injunction - reconsideration and variation - where variation sought to provide for legal costs of defence - where order binds only part of defendant's assets - whether defendant bears onus of showing that proposed expenditure is reasonable and that there are no other available resources - where other resources have been expended by defendant for the benefit of its associates - where application made soon after an earlier unsuccessful application.

LEGISLATION CITED : Trade Practices Act 1974 (Cth)

A v C (No 2) [1981] 2 All ER 126 Bell Wholesale Corp Cop Pty Ltd v Gates Exp0ort Corp (No 2) (1984) 8 ACLR 588 Clark Equipment Credit of Australia Ltd v Conto Factors Pty Ltd (1988) 1 NSWLR 552 Clout (Trustee) v Anskor Pty Ltd [2001] FCA 174, [19]-[20] Drumdurno Pty Ltd v Braham [1982] 1 ACLC 397 Frigo v Culhaci (NSWCA, 17 July 1998, BC9803225) Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 CASES CITED : Goumas v McIntosh [2002] NSWSC 713 Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2004] NSWSC 893 Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225 Lewis v Nortex Pty Ltd (in liq) (NSWSC, Hamilton J, 16 February 2004, BC200400815) M.A. Productions Pty Ltd v Austrama Television Pty Ltd [1982] 1 ACLC 404 Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd [1983] 1 ACLC 967 Satna Holdings Pty Ltd v Jokade Pty Ltd [1985] ATPR 40-529 Sent v Jet Corporation of Australia Ltd (1984) 54 ALR 237

PARTIES : Harrison Partners Construction Pty Ltd (plaintiff) Jevena Pty Ltd (defendant)

COUNSEL : C Stomo (plaintiff) N Nicholls (defendant)

SOLICITORS : David H Cohen & Co (plaintiff) Tzovaras Legal (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

55023/04 Harrison Partners Construction Pty Limited v Jevena Pty Limited JUDGMENT 1 HIS HONOUR: The defendant Jevena Pty Limited, which has paid into court $400,000 pursuant to an asset preservation order, applies to have $198,860.98 released to its solicitors, to fund the defence of these proceedings. As will become apparent, this is not the first occasion on which Jevena has applied for the release of the moneys in court.

2 Jevena is a closely held proprietary company. Its directors are Mr Wood and Mr Wen. Its shareholders are Mr John Wood (30), Mr Guang Bin Wen (10) and Mr Wen's mother (20). The plaintiff Harrison Partners Construction Pty Ltd, whose principal is Mr Xu, alleges that it was contracted by Jevena to build eight townhouses on Jevena's land at Casula, and that Jevena has failed to pay it $875,000 said to be due as a result of the works performed by Harrison for Jevena on that land. Harrison also alleges that it was induced to enter its contract with Jevena by misleading, deceptive or unconscionable conduct on the part of Jevena. By summons filed on 3 March 2004, Harrison claimed damages of $846,000, and an amended statement of claim filed on 2 July 2004 increased the amount of its claim to $875,000. Jevena has filed a defence, and a cross-claim for damages for defective building work.

3 Jevena has since sold the eight townhouses. Harrison claimed, by way of interlocutory relief, an asset preservation order. On 17 June 2004, an interim arrangement was reached: Harrison and Mr Xu gave the usual undertaking as to damages, in return for an undertaking by Jevena that it would, within 48 hours of receipt of $600,000 of the net proceeds of sale of the Casula townhouses, pay those proceeds into court to that extent, pending further order; but it was provided also that, after the amended statement of claim had been served, Jevena could restore the matter to the list for the purpose of revisiting those interlocutory undertakings.

4 In accordance with that proviso, Jevena applied to be released from its undertaking to pay the first $600,000 from the proceeds of the Casula townhouses into court. That application was heard and determined by Einstein J on 24 September 2004 [Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2004] NSWSC 893]. At that time, the case advanced by Jevena was that it wished to import goods for distribution in Australia from China, and that to fund that business - in particular because the Chinese suppliers were insisting upon payment prior to accepting any order for goods from Jevena - it required unrestricted access to the $600,000.

5 His Honour found [at [30]] that Harrison had established a sufficient prima facie case, particularly on its causes of action under the Trade Practices Act 1974 (Cth), to warrant a very close examination of the balance of convenience. Upon examining the balance of convenience, his Honour concluded [at [31]-[32]] that Harrison was entitled justifiably to fear a dissipation of funds by Jevena. His Honour referred to the circumstances that Jevena appeared to have no other assets, no other projects in which to invest its money, and no obligations other than to discharge the mortgages on the townhouses and pay costs; that its directors appeared to have organised their affairs so as to protect their position; that there was a history between the controlling individuals of Harrison and Jevena whereby it was said that those controlling Jevena had acted in a way to cause loss to the entity in control of Harrison; and that Jevena had been in default of its obligations under the mortgages and deed of loan and had not borrowed sufficient funds to carry out the work for Harrison to perform. His Honour thought that real and not fanciful concerns of dissipation of funds were raised by those matters and accentuated by the proposal to enter into a complex business venture involving importation of products from China [at 32]-[33]], and concluded [at [36]] that the proper exercise of the court's discretion was to require Mr Xu by 31 October 2004 to pay into court as security for his undertaking as to damages the sum of $200,000; that should he do so, and upon Jevena having paid into court the sum of $600,000, $200,000 of that $600,000 would be released to Jevena; but that if Mr Xu did not pay into court the security of $200,000, then the whole of the $600,000 would be paid out to Jevena.

6 By the time of the hearing before Einstein J on 24 September 2004, Jevena had already, on 17 August 2004, paid into court about $47,000. It paid into court a further $268,000 on 20 August 2004, a further $230,000 on 9 September 2004 and a further $32,000 on 22 September 2004. On 1 November 2004, Jevena paid into court a further $22,000, bringing the total deposited to $600,000. Meanwhile, on 28 October 2004, Harrison lodged a bank guarantee for $200,000. As a result, on 1 November 2004, pursuant to Einstein J's orders and in the events which had happened, $200,000 was paid out to Jevena.

7 Jevena made a further application for release of the remaining moneys in court, by motion filed on 20 May 2005, by which it sought (alternatively to dismissal of the proceedings for want of prosecution, which was not ultimately pressed), release to it of the $400,000 remaining in court. On the hearing of that motion on 14 September 2005, Jevena was granted leave to file an amended notice of motion in which it sought only the following relief: The balance of any monies paid into Court by the Applicant [pursuant to orders of Justice Einstein of 28 September 2004] be released to Mr Peter Ngan, who is an Official Liquidator, for payment by him into a nominated bank account on conditions that they then be paid by him to the defendant, or such other party nominated by the defendant upon production of relevant invoices by the defendant to Mr Ngan with respect to:- i. the proposed business venture outlined in the affidavits of:- (a) Guang Bin Wen, sworn 8 July 2005;

(b) John Wood, sworn 6 July 2005 and 29 August 2005; and being a business referred to in these proceedings as the business "Kitchen Central";

ii. any other business expense of the defendant which expense appears upon reasonable examination by Mr Ngan to arise in the normal course of the defendant's business, or in respect of the legal costs in defence of these proceedings; and iii. in payment of any taxation liability or obligation falling upon the defendant.

8 On 15 September 2005, I dismissed that motion [Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225]. Although I was not satisfied that there was a risk of dealing with intent to produce the result that Jevena be judgment proof, I was satisfied both that there was a real risk of dealing liable to produce that result, and that the voluntarily investment of Jevena's sole asset in a speculative venture when faced with a substantial claim which if successful would exceed its assets, would be an abuse of its power of disposition in the relevant sense. So far as considerations of balance of convenience were relevant, I referred to the fact that Jevena had no creditors, no employees and no business, and that no disruption of the type normally occasioned by a Mareva injunction would be occasioned; all that would happen would be that Jevena would be required to have its funds invested in the court rather than in a speculative business venture. As to relevant discretionary considerations, I took into account that, at least to the extent of $300,000, the proceeds of the Casula townhouses appeared already to have been dispersed to, or for the benefit of, Jevena's directors [2005] NSWSC 1225, [47]-[48]].

9 The proceedings were before the court for directions on 21 October 2005, when directions for trial were made, requiring the preparation and service of statements and expert reports. It was envisaged that the matter would be referred to a referee. The present motion was filed on 14 November 2005. On the hearing of the motion, Mr Stomo, who appeared for Harrison, informed the court that Harrison's case was complete and ready for trial; Mr Nicholls, for Jevena, said that Jevena was not ready, having been unable to attend to preparation due to unavailability of funds; hence this application.

10 Generally speaking, the proper legal costs of the defence should be exempted from the scope of an asset preservation order [Clark Equipment Credit of Australia Ltd v Conto Factors Pty Ltd (1988) 1 NSWLR 552, 569; Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49; Frigo v Culhaci (NSWCA, 17 July 1998, BC9803225)]. It is a principle of "Mareva" relief that it should not be allowed to stultify the proper defence of the proceedings [Clark Equipment Credit of Australia Ltd v Conto Factors Pty Ltd (1988) 1 NSWLR 552, 569; Lewis v Nortex Pty Ltd (in liq) (NSWSC, Hamilton J, 16 February 2004, BC200400815].

11 In this context, the proper legal costs of the defence should not be viewed in any narrow way, and are not limited to the bare essentials which might be allowed on a party/party assessment. The proper purpose of the Mareva jurisdiction is not to confer on a plaintiff any priority or security or anticipatory execution, nor to constrain the legitimate conduct of the defendant, but only to prevent an abuse by the defendant of its dispositive power in a manner calculated to produce the result of defeating an anticipated judgment in favour of the plaintiff. Generally, it is not an abuse of a defendant's dispositive power to fund its own defence, even on a lavish scale, so long as the expenditure is bona fide for that purpose. Courts should not deny such expenditure, even if the defence choses to engage the most expensive law firm and counsel, unless the expenditure is not bona fide for the purpose of defending the proceedings.

12 Some cases suggest that where a defendant applies to vary a Mareva order to permit legitimate expenditure such as legal costs, at least where the order binds part only of the defendant's assets, the defendant bears some onus of showing that there are no other assets to which resort might be had to pay the legal costs, and that the proposed expenditure is reasonable [A v C (No 2) [1981] 2 All ER 126 (Goff J); Clout (Trustee) v Anskor Pty Ltd [2001] FCA 174, [19]-[20] (Drummond J); Goumas v McIntosh [2002] NSWSC 713, [22] (Barrett J). Others suggest that, at least where the order relates to the whole of the defendant's property, the order should be imposed in terms which exempt reasonable living and legal expenses, or be modified to do so at the first opportunity [Clark Equipment Credit of Australia Ltd v Conto Factors Pty Ltd (1988) 1 NSWLR 552, 569; Frigo v Culhaci (NSWCA, 17 July 1998, BC9803225)].

13 This is a case in which the order binds only a specified part of Jevena's assets, namely the $400,000 in court. In my view, on what is after all an application to reconsider an interlocutory injunction, the applicant bears an onus of showing that circumstances have sufficiently changed to warrant reconsideration of the matter. In my judgment of 15 September 2005, I reviewed the circumstances in which it was appropriate for the court to entertain an application to reconsider an interlocutory injunction, and concluded that, while acknowledging that it was impossible to state a principle capable of universal application in this field, nonetheless the general rule was that interlocutory relief is not to be reconsidered if all that is involved is a review on the same facts as prevailed when it was originally granted or declined, or on facts which ought then reasonably have been in contemplation (in which case the appropriate course is an interlocutory appeal); but if new facts have emerged which may effect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reason than dissatisfaction with the previous decision.

14 In the context of a variation of a Mareva order to release funds, demonstration that circumstances have sufficiently changed to warrant reconsideration of the matter will normally involve showing that there is a new need for expenditure, which cannot be satisfied other than by resort to the frozen assets. While that onus does not necessarily require the applicant to account for all its expenditure from its other assets and resources, how it has spent its other resources may well be relevant to the exercise of discretion. If resources that could have been used for the purpose proposed have been expended wantonly, that might well weigh against permitting access to the asset that has been the subject of the preservation order.

15 As to whether, in this case, there has been a relevant change of circumstances, the present motion was filed on 14 November 2005, only two months after the previous motion was dismissed. The only change of circumstance on which Jevena relies is the making of the directions for trial on 21 October 2005. On the one hand, it is difficult to see how this could be a significant change of circumstances, when the question of release of funds for legal costs of the defence had been part of the previous application, and when the need to prepare for a final hearing must, or at least ought, then have been in the contemplation of Jevena and its advisers. Although the previous motion had sought the release of moneys primarily to allow Jevena to embark on a new and speculative business enterprise, its terms, set out above, also sought funds for its defence, and although the evidence as to the anticipated legal costs was quite unsatisfactory and the release of funds for legal costs did not feature prominently in that application, it was unquestionably an issue, as appears from the following passage in the judgment of 15 September 2005:- 12 Jevena is not at present carrying on any business. There is no evidence that it has any assets, other than the funds in court and perhaps a Mercedes motor vehicle on hire purchase. There is no evidence that it has any creditors, nor any employees. The only potential obligation which the evidence discloses is legal fees to Jevena's solicitors, but as to that the evidence is unsatisfactory, being an assertion by Mr Wood as to what he has been told by his solicitors and what might be necessary to defend those proceedings in the future.

16 On the other hand, a more relaxed view is taken in respect of applications for variation of asset preservation orders in order to release funds for legitimate expenditure, including the costs of the defence. As with orders for security for costs, it will often be appropriate to deal with such applications in stages as a case progresses, rather than once and for all. And Mr Stomo did not submit that the application should fail in limine. However, it remains a relevant discretionary consideration that this application is a renewal, albeit in a redirected form, of one which had been unsuccessfully made only two months earlier.

17 As to the reasonableness of the proposed expenditure, Jevena's solicitor, who is an experienced litigation solicitor, has sworn an affidavit in which he has set out costs already rendered and unpaid ($68,050.98), and assessed the further costs which he anticipates will be incurred up to and including the reference ($130,000). His evidence is uncontradicted, and was unchallenged, and, for the purposes of this application, I must conclude that the amount that Jevena seeks to have released is not unreasonable. That it is sought bona fide to fund the defence is reinforced by the proposed order, that any amount released be paid to Jevena's solicitors to be held by them in trust to pay legal costs and disbursements of the defence of these proceedings.

18 In those circumstances, if this case involved an orthodox asset preservation order up to the amount of the plaintiff's claim ($875,000), and there had been no other assets from which the costs of defence could have been funded, there would be a strong, if not overwhelming, case for release of the amount proposed, notwithstanding that a similar application failed only two months before this one was filed. However, in this case, there are additional circumstances of significance.

19 First, the order that Einstein J made was not an "orthodox" asset preservation order. His Honour found that Harrison had a sufficiently arguable prima facie case for $875,000 that, having regard to the balance of convenience, Mareva relief was appropriate. But his Honour did not order that Jevena preserve assets not less than the full amount of that claim; rather, his Honour adopted a broad pragmatic view of how the competing interests and needs of the parties could best be accommodated during the interim period. His Honour said:- 35 To my mind, subject to appropriate orders being complied with pursuant to which Mr Xu would support the usual undertaking as to damages which he has given to the Court by making a payment into court, it is appropriate in the proper exercise of the Court's discretion, once the amount paid into court pursuant to the defendant's undertakings amounts to $600,000, to order that the sum of $200,000 of those payments made by the defendant be released to the defendant.

36 To my mind the proper exercise of the Court's discretion is to order that on or before 31 October Mr Xu pay into court, as security to support his undertaking as to damages, the sum of $200,000. The proper orders to be made will then condition the position qua the defendant so that, in the event that Mr Xu does pay the $200,000 into court on or before 31 October, the defendant if and only if already having paid into Court an amount of $600,000 will only have released to it $200,000 of that sum. On the other hand, if Mr Xu does not pay into court the sum of $200,000 on or before 31 October, the orders will provide for the whole of the amount [which will be held by the Court following the defendant's payments into Court] to be paid out to the defendant.

37 All of those orders will be subject to such further or other order as may be made in the interim, if there is some change of circumstance, but the obvious intent of the Court's exercise of discretion in this fashion is to accommodate to a certain extent the difficulties which each party has with the position of the other party. 20 The result was that only $400,000 was preserved, against a claim of $875,000.

21 Moreover, the original (consent) order, and Einstein J's order, was made in the context that Jevena was realising the Casula units. After payment out of the mortgagee, agent's commission, selling expenses and other "third party" payments, and after payment into court of the initial $600,000, there remained for Jevena a further $371,000. Then, consequent upon Einstein J's order, a further $200,000 was released to Jevena - making a total of $571,000 at Jevena's disposal, while only $400,000 was "preserved". His Honour's pragmatic approach to moulding an order which accommodated to some extent the needs of both parties meant that Jevena had considerably greater freedom of disposition than would have been the case had an orthodox order preserving $875,000 been made.

22 In August 2005, in support of its then application, Jevena explained that the $571,000 at its disposal had been expended, as to $106,000, in payment of Jevena's solicitors' costs up to about September 2004, and as to the balance - about $465,000 - allegedly in reimbursement, to Jevena's directors, of expenditure made by them on behalf of the company, including $83,000 for the costs of acquisition and running a Mercedes motor vehicle - said to be a company car - over four years; $22,000 for the loss made on the purchase and sale of a BMW motor vehicle; $60,000 paid to one Ricky Ma for work done on the development site; $68,000 paid as the deposit on acquisition of the land at Casula; and $312,000 said to be directors' fees.

23 The figures for the Mercedes and the BMW are said to be approximate only, and in any event it is far from apparent why the amounts relating to them are properly company expenditure. There is no tax invoice or receipt or other documentary evidence of the payment to Ricky Ma, which is said to have been made in cash, drawn from an account in Mr Wood's wife's name. The evidence as to the source of the $68,000 was variable - at one point it was said to comprise two contemporaneous payments of $34,000 by each of Mr Wood and Mr Wen, accumulated into one deposit; then it became a payment from Mr Wen's mother's account with the Hong Kong Shanghai Bank. In his affidavit of 13 March 2006 in support of the present application, Mr Wood said that the $312,000 was never paid - although his affidavit of 29 August 2005 was calculated to give the impression that it had been paid - and his oral evidence on this question was also inconsistent, asserting at one point that the "fees" had been paid, and at another that they had not, which was his final position. However, in his affidavit of 13 March 2006, it was instead alleged that there was a reimbursement of $165,000 said to have been contributed by the directors towards the payment of interest on Jevena's mortgage loan, and prima facie the evidence does suggest that the directors contributed to Jevena that approximate amount to fund its interest obligations.

24 The evidence does not show that there was any calculated reimbursement to the directors from the funds received by Jevena. There is no evidence of any balance sheet or financial statement or record of any directors' loan account. So far as the evidence goes, moneys seem to have been paid to the directors as and when they were available. In August and September 2004, the bank statements show a number of debits to Jevena's account of $10,000. Then, when the $200,000 was released from the Court to Jevena in accordance with the order of Einstein J, $106,000 was retained by its solicitors and applied to costs to date, and $96,000 was paid to Mr Wood. 25 In my view, the "accounting" for the "reimbursement" is an ex post facto retrospective reconstruction of a basis upon which it could be asserted that the directors were creditors of Jevena and entitled to be paid the funds which it received. That is not to say that the reconstruction is a fabrication: to the contrary, the evidence tends to suggest that at least the assertion about interest of $165,000 may be correct. But I do not accept that, when the moneys were paid from Jevena to the directors, there was any specific attention to the amount or nature of Jevena's debt to the directors, beyond a general belief that the directors were creditors of Jevena. 26 Here, it is not as if the payments were to arms-length third party creditors of Jevena. The directors are the people who stand behind Jevena, and who stand to benefit if Jevena succeeds, or to lose if it fails, in the proceedings. Their interests are not relevantly distinguishable from those of Jevena. Jevena and its directors have chosen to prefer their own interest in being reimbursed for their expenditure on behalf of Jevena, over Jevena's interest in defending the proceedings. Jevena's current need for funds for its defence may therefore be regarded as being of its own making.

27 Jevena says that its defence will be stultified if the funds are not released. But by recouping for themselves some $465,000 said to have been paid by them for the benefit of Jevena, which could otherwise have been available to fund the defence, they have so intermingled their own affairs with those of Jevena, that, when it comes to the issue of "stultification", in my view it is appropriate to take the unusual step of looking behind Jevena at the underlying beneficial interests. In a somewhat analogous context, the law has regard to the position of those who stand behind a corporation: although security for costs is often not ordered against an impecunious corporate plaintiff if to do so would "stultify" the proceedings, before this "defence" of stultification will be upheld it is usually necessary for the persons who stand behind the company themselves to show that they cannot give security [M.A. Productions Pty Ltd v Austrama Television Pty Ltd [1982] 1 ACLC 404; Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd [1983] 1 ACLC 967; Bell Wholesale Corp Cop Pty Ltd v Gates Exp0ort Corp (No 2) (1984) 8 ACLR 588; Sent v Jet Corporation of Australia Ltd (1984) 54 ALR 237; Drumdurno Pty Ltd v Braham [1982] 1 ACLC 397, 403; Satna Holdings Pty Ltd v Jokade Pty Ltd [1985] ATPR ¶40-529].

28 The directors have adduced no evidence of their own financial position, nor shown that they could not contribute to the costs of Jevena's defence. In the special circumstances of this case - particularly, that the moneys which might otherwise have been available to fund the defence have been paid to the directors, who are the persons beneficially interested in Jevena - I consider that the prospect that failure to release funds might "stultify" the defence is not entitled to significant weight, all the moreso in the absence of evidence that the directors are themselves unable to fund the defence. Moreover, in the context of the order made by Einstein J, intended as it was to do pragmatic justice by leaving $571,000 at the disposal of Jevena, while preserving $400,000, the circumstance that Jevena could have had ample resources to fund its defence but has chosen to prefer the interests of its directors attracts great significance.

29 For those reasons, I have reached the following conclusions. Generally, a Mareva order should not prohibit bona fide expenditure by the defendant on the reasonable costs of its defence. The amount that Jevena seeks to have released is not unreasonable, and it is sought bona fide to fund Jevena's defence. However, in this case there are special circumstances, particularly (1) that the order made by Einstein J was intended to do pragmatic justice by leaving $571,000 at the disposal of Jevena, while preserving only $400,000 of a claim of $875,000; (2) that Jevena could have had ample resources to fund its defence, but it and its directors have chosen to prefer the interests of the directors in being reimbursed for expenditure on its behalf, so that its current position is of its own making; (3) that the moneys which might otherwise have been available to fund the defence have been paid to its directors, who are also the persons beneficially interested in Jevena; (4) that there is no evidence that the directors are themselves unable to contribute to the funding of the defence; and (5) that this application is a renewal, albeit in a redirected form, of one which had been unsuccessfully made only two months earlier, in the absence of any significant change of circumstances. In those special circumstances, the prospect that non-release of the funds might "stultify" the defence is not entitled to significant weight, and the circumstance that any inability of Jevena to fund its defence is of its own making, after Einstein J's order had left it in a position where it could amply have funded its defence, attracts great significance. In short, in the context of this case, the payment of $465,000 to the directors was, for the purposes of Mareva relief, an abuse of Jevena's dispositive power, which disentitles Jevena from access to the preserved fund for purposes that could have been satisfied out of the moneys paid to the directors.

30 I order that the Notice of Motion filed on 14 November 2005 and amended on 10 February 2006 be dismissed with costs.

27/04/2006 - Division added - Equity - Paragraph(s) Division 11/08/2006 - Typographical error - Paragraph(s) Heading

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