Provident Capital Limited v Ian Maxwell Anderson & Ors

Judgment 1This is an application for orders, the effect of which would prevent the plaintiff, Provident Capital, from pursuing the current proceedings against the second defendant, Ms Coghlan. 2Before dealing with the current application, I should say something about the history of the matter and how it came before me. 3The proceedings originally concerned claims for possession against the first defendant, Mr Anderson, in relation to a rural property known as "Barry Station" that was the subject of a property mortgage in favour of Provident Capital and in relation to chattels (including cattle and livestock), plant and equipment on Barry Station that were the subject of a separate goods mortgage. 4The proceedings were subsequently amended in May 2011 to join Ms Coghlan. It was alleged in the second amended statement of claim by which Ms Coghlan was joined that: (a)She is and was at all material times the de facto wife of Mr Anderson; (b)On 20 August 2010 Mr Anderson and Ms Coghlan entered into consent orders in the Family Court pursuant to which Mr Anderson agreed to transfer to Ms Coghlan plant and equipment used on Barry Station including a new Holland tractor and 1500 mixed store cattle; (c)That Mr Anderson and Ms Coghlan had not genuinely separated and the Family Court consent order was entered into for the purpose of defrauding Provident Capital; (d)In those circumstances, the consent orders should be set aside and Ms Coghlan should be ordered to return to Barry Station such of the 1500 head of cattle and other plant and equipment as remain in her possession and control and pay to the plaintiff the proceeds of sale of any of those items that had been sold. 5Orders were also sought against Ms Coghlan restraining her from "removing, damaging, disposing of or otherwise dealing with any real or personal property the subject of the goods mortgage or the proceeds of sale thereof" and an order requiring her to file an affidavit explaining what has become of the property she has removed or caused to be removed from Barry Station (second amended statement of claim, para 29(iii), (iv)). 6Following joinder of Ms Coghlan and the application for injunctions against her, the parties reached a partial resolution of the proceedings which was recorded in consent orders made by Kirby J on 9 June 2011. Those orders contained the following provisions: (a)By paragraphs 1, 2 and 3, Provident Capital became entitled to possession of Barry Station; (b)Paragraph 4 provided: The Court notes the agreement of the parties that the Second Defendant may retain, subject to the paragraphs below, approximately 756 cattle currently on the stations known and referred to in these proceedings as "Oxley" Station and "Bunumbert" Station and the Plaintiff releases the Second Defendant from any claim with respect to the said 756 cattle. (c)Paragraph 5 recorded the agreement of the parties that the cattle then on Barry Station which were "guaranteed by the Second Defendant at 350" were the sole property of Provident Capital. The paragraph goes on to note that if there were more than 350 cattle on Barry Station, those cattle could be offset against Ms Coghlan's obligation to deliver a further 100 cattle and to the extent that there were more than 450 cattle, those cattle belonged to Ms Coghlan who was entitled to remove them; (d)Paragraph 6 of the order sets out an agreement between the parties on how the number of cattle was to be ascertained; (e)Paragraphs 7 to 9 record agreements between Provident Capital and Ms Coghlan relating to the delivery of additional cattle and paragraph 10 records an undertaking to comply with that agreement; (f)Paragraph 11 records an agreement between Provident Capital and Ms Coghlan concerning goats and horses then on Barry Station; (g)Paragraphs 12 and 13 provide: 12.The Court notes the agreement of the parties that: (a) subject to the terms of these orders and notations, and subject to subparagraph (b) below, the Plaintiff and the Second Defendant mutually release each other from any claim arising out of the subject matter of these proceedings whether known or unknown; and (b) these orders and agreed notations are without prejudice to the entitlement of the Plaintiff to: i. trace into the hands of the Second Defendant or any entity in which she has an interest, the proceeds of any sale by or on behalf of the First Defendant of: