SOUTHERN EQUITIES CORP LTD (IN LIQ) v BOND

Supreme Court of SA|2000-10-27|Before: Respondent J, Debelle J

Judgment No. [2000] SASC 358

I held that the plaintiffs were entitled to require the defendants Craig David Bond, Delores Jean Caboche and John Bryan Bond to swear affidavits disclosing their assets. The plaintiffs seek on order in the following terms:-

"4. The defendants Craig Bond, John Bond and Delores Caboche shall within 14 days of the date of serve of this Order on each of them respectively file and serve on the plaintiffs affidavits disclosing in detail (a) their assets including those assets in which they had a beneficial interest as at 19 March 1996 being the date of service of the orders for examination of Craig Bond and stating whether such assets were held solely or jointly and if jointly specifying the parties with whom such assets were held jointly; (b) their assets which has been acquired since 19 March 1996 including those assets in which they had or have a beneficial interest both within and outside the jurisdiction and stating whether such assets were held solely or jointly and if jointly specifying the parties with whom such assets were held jointly; (c) their assets as at the date of the swearing of the affidavit including those assets in which they have a beneficial interest both inside and outside the jurisdiction and stating whether such assets are held solely or jointly and where jointly specifying the parties with whom such assets are held; (d) where any of the assets have been disposed of or otherwise dealt with, details of the transactions whereby the said assets were disposed of otherwise dealt with including the asset, the date of dealing and any consideration therefore."

The defendants oppose an order in such wide terms submitting that the order should require them only to disclose their present assets.

An order that a defendant file an affidavit disclosing assets is ancillary to a Mareva order: A J Bekhor & Co Ltd v Bilton [1981] EWCA Civ 8; [1981] 1 QB 923. It is an order made to enable a plaintiff to discover whether a defendant has any assets. The orders as to disclosure of assets sought by the plaintiff seek more than a statement of existing assets. Instead, the plaintiffs seek disclosure of assets held at particular times. The information which the plaintiffs seek is more in the nature of answers to interrogatories. That application is premature. The plaintiffs might think it appropriate at some later stage to seek further evidence about assets held by the defendants at various times. But this is not the occasion to determine that issue. At this stage, when they are seeking to preserve assets now held by the defendants, it is appropriate to do no more than order that the defendants disclose assets in which they interest. When making the order, it is appropriate to require the defendants to disclose assets in which they have any interest of any kind, be it legal or beneficial or an interest which is held jointly with any other person or persons.

The plaintiffs seek an order that they recover costs of the application. The defendants and the other respondents to the application submit that the costs should be costs in the cause, contending that, as the application is in aid of the execution of any judgment the plaintiffs might obtain, the plaintiff should not be entitled to the costs if they ultimately fail to establish any liability in the defendants.

A Mareva order is interlocutory in nature in that it regulates dealings in assets pending the hearing and determination of an action. Generally speaking, when a plaintiff obtains an order for an interlocutory injunction, the order reserves the question of costs for the trial judge or the order is that costs should be costs in the cause. The reason for an order that costs be costs in the cause is that the successful plaintiff should have his costs if he succeeds in the action but, if the defendant succeeds, he should not be ordered to pay costs incurred in opposing an order which is proved to be unnecessary: Stevens v Keating [1850] EngR 133; (1850) 1 Mac & G 659, 41 ER 1420; Keogh v Australian Workers Union [1902] NSWStRp 113; (1902) 2 SR (NSW) Eq 265, 270; See generally Halsbury, Laws of England (4th ed) para 995. The principle applies with equal force to Mareva orders. The court may of course depart from that general principle when the circumstances of the application or the conduct of the parties require it to do so. With one exception, there is nothing in this application which requires any order other than the costs of the application be costs in the cause. The exception concerns the application by the eighth defendant to strike out the application as abuse of process. The eighth defendant failed in that application. He will not get his costs in that application in any event. The plaintiffs are entitled to the costs of filing documents in answer to that application. However, I do not allow any counsel fees on that application as it did not prolong the hearing of the application.

I direct the parties to bring in minutes which reflect these reasons.

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