Donnelly (Trustee), in the matter of Hancock (Bankrupt) v Porteous [2002] FCA 607

FEDERAL COURT OF AUSTRALIA

Donnelly (Trustee), in the matter of Hancock (Bankrupt) v Porteous [2002] FCA 607 MAX CHRISTOPHER DONNELLY (TRUSTEE OF THE PROPERTY OF THE LATE LANGLEY GEORGE HANCOCK, A BANKRUPT) v ROSEMARIE PORTEOUS & ORS N 8132 of 1999 STONE J 13 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 8132 OF 1999

BETWEEN: MAX CHRISTOPHER DONNELLY (TRUSTEE OF THE PROPERTY OF THE LATE LANGLEY GEORGE HANCOCK, A BANKRUPT)

APPLICANT

AND: ROSEMARIE PORTEOUS

FIRST RESPONDENT

JOHANNA LACSON NOMINEES PTY LIMITED

SECOND RESPONDENT

BELLE ROSA HOLDINGS PTY LIMITED

THIRD RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 13 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The parties bring in short minutes of order in accordance with these reasons. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 8132 OF 1999

BETWEEN: MAX CHRISTOPHER DONNELLY (TRUSTEE OF THE PROPERTY OF THE LATE LANGLEY GEORGE HANCOCK, A BANKRUPT)

APPLICANT

AND: ROSEMARIE PORTEOUS

FIRST RESPONDENT

JOHANNA LACSON NOMINEES PTY LIMITED

SECOND RESPONDENT

BELLE ROSA HOLDINGS PTY LIMITED

THIRD RESPONDENT

JUDGE: STONE J

DATE: 13 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By separate notices of motion the applicant ("Trustee") and the respondents are seeking to vacate orders 2 and 5 of the Mareva-type orders that I made in this proceeding on 2 April 2001 and to replace them by other orders. The orders made on 2 April 2001 were: "1. Pending the determination of these proceedings, the First Respondent be restrained by herself, her servants or agents from selling, charging, mortgaging, encumbering or otherwise disposing of or dealing with the property known as "Prix d'Amour" (being Lots 100 and 104, Wellington Street, Mosman Park in the State of Western Australia) without first giving twenty-one (21) days' written notice to the Applicant. ……… 5. In the event of sale of Prix d'Amour, there shall be retained out of the proceeds of such sale and placed in a joint bank account in the names of the Applicant and the solicitor for the Respondents, an amount of $3,242,581.80 together with interest on that amount calculated in accordance with the rates of interest prescribed under Schedule J of the Supreme Court Rules 1970 (NSW) from 8 April 1999to the date of settlement of such sale." 2 These orders were designed to protect any interest that the Trustee may have pending the outcome of this proceeding. In substance the parties seek to alter the way in which this interest is secured. In fact, the first respondent, Mrs Porteous claims that it is her need to finance the various proceedings between her and the Trustee by borrowing on the security of Prix d'Amour and another property that is behind the proposed arrangement.