Rothmore Farms Pty Ltd (in liq) v Belgravia Pty Ltd

1 I refuse the order sought on the notice of motion the fourth respondent Mr Turner of 18 January 1999 in effect to discharge an order made on 15 October 1998. I briefly express my reasons for doing so. 2 On 15 October 1998, an application for interlocutory relief was listed for hearing. After some argument, orders were made without opposition. Among the matters then argued was that the applicant company had an interest in, or had a right to trace the assets of, the Jill Cooper Family Trust as against the current holders apparently Agri-Steel Pty Ltd or Mr Turner. The Jill Cooper Family Trust had appointed a new trustee, Belgravia Pty Ltd, and Belgravia had then vested that trust and distributed its assets to the second respondent, Mr Cooper. Mr Cooper in turn had transferred those assets to Agri-Steel Pty Ltd, the third respondent, and to Mr Turner, the fourth respondent. The orders then made were in the light of the submissions made by counsel for the applicant that there was a serious question to be tried that the applicant's claims to that interest, or to trace those assets, were maintainable and would succeed, and that as a result the applicant was, or might be, entitled to the relief which it sought. That relief included tracing those assets into the hands of Mr Turner and Agri-Steel Pty Ltd, and to seeking an accounting from them of the benefit of the use of those assets. Of course I am not in a position to say whether that claim will ultimately succeed. At the time I was of the view that there was an arguable case to that effect. 3 The material upon which the present motion is now brought is material which could have been brought before the Court then. It asserts that the crops themselves were not planted until in or after July of 1998, and therefore could not be trust assets. It was material which was as relevant in October 1998, as it is now said to be, to the question whether that order should have been made. There is no reason proffered as to why that material was not then brought to the Court's attention or as to why its significance was not then argued. The orders then made without opposition were made in effect part-way through the hearing. The present application is therefore based upon material which Mr Turner apparently chose not to rely upon at the time. 4 There is also no material to indicate that there is any particular disadvantage to Agri-Steel Pty Ltd or to Mr Turner in complying with the orders then made. In particular, the only order which is now in effect sought to be discharged, that is par 4.2.2 of the earlier order, is not said to present any practical problem in its compliance. In other respects, the relevant paragraphs of the order of 15 October 1998 (pars 4.1, 4.2.1 and 4.3) have been complied with. The crop has now been sown and sold. 5 Accordingly for those three reasons - namely that there is a serious question to be tried in any event, at least on the material upon which I have heard argument to date, that the applicant is entitled to the proceeds of the crops, not directly as trust assets but by tracing trust assets and their use for the purposes of cropping; secondly, that the material was available and could have been used to oppose the order which was made ultimately without opposition on 15 October 1998 but was not then adduced and its then absence is unexplained; and thirdly because there is no evidence to indicate that continued compliance with par 4.2.2 of that order would produce any particular hardship or disadvantage to the third or fourth respondents - in my view the application should be refused. My orders are: 1. Refuse the order sought in par 1 of the motion. 2. Costs of the notice of motion to be the costs of the applicant Rothmore Farms Pty Ltd (in liquidation) in the proceedings in any event. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.