Nominet UK v Diverse Internet Pty Ltd [2005] FCA 669

FEDERAL COURT OF AUSTRALIA

Nominet UK v Diverse Internet Pty Ltd [2005] FCA 669 Corporations Act 2001 (Cth) s 471B NOMINET UK v DIVERSE INTERNET PTY LTD, INTERNET PAYMENTS PTY LTD, BRADLEY STEDMAN NORRISH, CHESLEY PAUL RAFFERTY, (UK INTERNET REGISTRY LTD and AUSTRALIAN SECURITY AND INVESTMENTS COMMISSION NSD 1040 of 2003 NICHOLSON J 19 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY NSD 1040 OF 2003

BETWEEN: NOMINET UK

APPLICANT

AND: DIVERSE INTERNET PTY LTD

(ACN 096 827 619)

FIRST RESPONDENT

INTERNET PAYMENTS PTY LTD

(ACN 097 324 868)

SECOND RESPONDENT

BRADLEY STEDMAN NORRISH

THIRD RESPONDENT

CHESLEY PAUL RAFFERTY

FOURTH RESPONDENT

(UK) INTERNET REGISTRY LTD

FIFTH RESPONDENT

AUSTRALIAN SECURITY AND INVESTMENTS COMMISSION

SIXTH RESPONDENT

JUDGE: NICHOLSON J

DATE OF ORDER: 19 MAY 2005

WHERE MADE: SYDNEY

UPON THE APPLICANT BY ITS COUNSEL UNDERTAKING TO: (a) submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of these Orders or any continuation thereof; and (b) pay the compensation referred to in (a) to the person there referred to, THE COURT: 1. Grants leave to the Applicant to file an Amended Notice of Motion in Court. 2. Directs that the Motion be returnable instanter. 3. Dispenses with the requirements of Federal Court Rules Order 20 rule 2(1). 4. Orders that, until further order, the Third Respondent be restrained by himself, his servants or agents, from removing or causing or permitting to be removed from Australia, or selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any assets: 4.1 in his name; or 4.2 under his control; or 4.3 in which he has an interest, within Australia including, but without affecting the generality of the foregoing: (a) the proceeds from the transfer of Lot 2 on Strata Plan 13794, being the property located at Unit 2, 47 Forrest Avenue, East Perth; (b) a Ferrari F1 360 Spider Convertible motor vehicle; PROVIDED that this Order: (i) Shall not apply to so much of the assets of the Third Respondent within Australia as exceed in value the sum of $4 800 000; (ii) Shall not prevent the First Respondent from paying ordinary living expenses up to an amount of $500 per week; (iii) Shall not prevent any bank, building society or financial institution from exercising any right of set-off which it may have in respect of any facilities afforded by it to the Third Respondent prior to the date of this Order. 5. Orders that, until further order, the Third Respondent be restrained by himself, his servants or agents, from selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any assets: 5.1 in his name; or 5.2 under his control; or 5.3 in which he has an interest, outside Australia PROVIDED that this Order shall not prevent the Third Respondent from moving the assets to a location within Australia (any such location to be disclosed to the Applicant). 6. Orders that the Third Respondent within 5 days of the service of a copy of the these orders, deliver or cause to be delivered to the Applicant's solicitors, Allens Arthur Robinson, Level 17, 2 Chifley Square, Sydney, a full and detailed affidavit sworn by the Third Respondent setting out: (a) The name and address of any bank, building society or other financial institution at which there is an account in his name, or under his control, together with the number of such account, the name of that account and the balance of that account at the date of service of a copy of these orders upon him; (b) The name and address of any person or persons indebted to the Third Respondent at the date of service of a copy of these orders upon him, and the amount of the indebtedness; (c) An itemised inventory of all business assets in the Third Respondent's name, under his control or in which he has an interest; (d) An itemised inventory of all personal assets in the Third Respondent's name, under his control or in which he has an interest; (e) An itemised inventory of any and all property whether real or personal: (i) owned by the Third Respondent; (ii) controlled by the Third Respondent; and (iii) in which the Third Respondent has any interest. (f) In respect of the property referred to in paragraphs (a) to (e) above, whether that property has been given as security for any debt and, if so, the nature of the security 7. Grants leave to the Applicant to issue a subpoena to the Bank of Western Australia Ltd (BankWest), such subpoena to be issued forthwith and be made returnable on Monday, 23 May 2005, seeking documents relating to the transfer of Lot 2 on Strata Plan 13794 from Bradley Stedman Norrish. 7A. Grants leave to the Applicant to issue a subpoena to Harman Settlement Services (Harman), such subpoena to be issued forthwith and be made returnable on Monday, 23 May 2005, seeking documents relating to the transfer of Lot 8 on Strata Plan 8708. 8. Orders that, until further order, the Fourth Respondent be restrained by himself, his servants or agents, from removing or causing or permitting to be removed from Australia, or selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of his assets: 8.1 in his name; or 8.2 under his control; or 8.3 in which he has an interest, within Australia including, but without affecting the generality of the foregoing: (a) the proceeds from the transfer of Lot 8 on Strata Plan 8708; (b) Mercedes CLK 320 motor vehicle with Victorian registration number RTC171; (c) a silver Magna sedan motor vehicle, registration number 1AED417; (d) a blue motor cycle, registration number 1BH477, PROVIDED that this Order: (i) Shall not apply to so much of the assets of the Fourth Respondent within Australia as exceed in value the sum of $4 800 000; (ii) Shall not prevent the Fourth Respondent from paying ordinary living expenses up to an amount of $500 per week; (iii) Shall not prevent any bank, building society or financial institution from exercising any right of set-off which it may have in respect of any facilities afforded by it to the Fourth Respondent prior to the date of these Orders. 9. Orders that, until further order, the Fourth Respondent be restrained by himself, his servants or agents, from selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of assets: 9.1 in his name; or 9.2 under his control; or 9.3 in which he has an interest, outside Australia including, but without affecting the generality of the foregoing, PostFinance Swiss Post account number 91-274880-1, PROVIDED that this Order shall not prevent the Fourth Respondent from moving the assets to a location within Australia (any such location to be disclosed to the Applicant). 10. Orders that the Fourth Respondent within 5 days of the service of a copy of the these orders, deliver or cause to be delivered to the Applicant's solicitors, Allens Arthur Robinson, Level 17, 2 Chifley Square, Sydney, a full and detailed affidavit sworn by the Fourth Respondent setting out: (a) The name and address of any bank, building society or other financial institution at which there is an account in his name, or under his control, together with the number of such account, the name of that account and the balance of that account at the date of service of a copy of these orders upon him; (b) The name and address of any person or persons indebted to the Fourth Respondent at the date of service of a copy of these orders upon him, and the amount of the indebtedness; (c) An itemised inventory of all business assets in the Fourth Respondent's name, under his control or in which he has an interest; (d) An itemised inventory of all personal assets in the Fourth Respondent's name, under his control or in which he has an interest; (e) An itemised inventory of any and all property whether real or personal: (i) owned by the Fourth Respondent; (ii) controlled by the Fourth Respondent; and (iii) in which the Fourth Respondent has any interest. (f) In respect of the property referred to in paragraphs (a) to (e) above, whether that property has been given as security for any debt and, if so, the nature of the security given and the debt so secured. 11. Orders that each of the First and Fifth Respondents, within 5 days of the service of a copy of the these orders, deliver or cause to be delivered to the Applicant's solicitors, Allens Arthur Robinson, Level 17, 2 Chifley Square, Sydney, a full and detailed affidavit sworn by that respondent setting out: (a) The name and address of any bank, building society or other financial institution at which there is an account in its name, or under its control, together with the number of such account, the name of that account and the balance of that account at the date of service of a copy of these orders upon it; (b) The name and address of any person or persons indebted to that respondent at the date of service of a copy of these orders upon it, and the amount of the indebtedness; (c) An itemised inventory of all assets in that respondent's name, under its control or in which it has an interest; (d) An itemised inventory of any and all property whether real or personal: (i) owned by that respondent; (ii) controlled by that respondent; and (iii) in which that respondent has any interest. (e) In respect of the property referred to in paragraphs (a) to (e) above, whether that property has been given as security for any debt and, if so, the nature of the security given and the debt so secured. 12. Orders that service on the Third Respondent of these orders be permitted by attaching an electronic copy of the orders, together with electronic copies of the affidavit of Carla Therese Degenhardt sworn on 18 May 2005 (without exhibits) and the affidavit of Michael Steele sworn on 19 May 2005 to an email delivered to the email addresses 'brad@brad.com.au' and 'b.norrish@imco.com'. 13. Directs that the Third Respondent be given additional notice of the orders by being telephoned on mobile telephone number 0419 943 638. 14. Orders that the orders be taken to have been served on the Third Respondent upon the earlier of the sending of the email described in paragraph 12 or the telephone notification referred to in paragraph 13. 15. Orders that sservice on the Fourth Respondent of these orders be permitted by attaching an electronic copy of the orders, together with electronic copies of the affidavit of Carla Therese Degenhardt sworn on 18 May 2005 (without exhibits) and the affidavit of Michael Steele sworn on 19 May 2005 to an email delivered to the email address 'chesley@imco.com'. 16. Directs that the Fourth Respondent be given additional notice of the orders by being telephoned on mobile telephone number 0417 000 500. 17. Orders that the orders be taken to have been served on the Third Respondent upon the earlier of the sending of the email described in paragraph 15 or the telephone notification referred to in paragraph 16. 18. Orders that service on BankWest of these orders be permitted by sending a faxed copy of the orders, together with electronic copies of the affidavit of Carla Therese Degenhardt sworn on 18 May 2005 (without exhibits) and the affidavit of Michael Steele sworn on 19 May 2005 to fax number (08) 9449 6779, marked to the urgent attention of the Securities Department.