Carey v Carey [2007] FCA 1482

FEDERAL COURT OF AUSTRALIA

Carey v Carey [2007] FCA 1482

PRACTICE AND PROCEDURE – ex parte application – preliminary discovery and preservation of assets Held: Application for orders for preliminary discovery and preservation of assets allowed. Federal Court Rules 1979 (Cth), Order 15A rule 6, Order 15A rule 12 Bailey v Beagle Management Pty Limited (2001) 105 FCR 136 considered Fermanis v Cheshire Holdings Pty Limited (1990) ATR 1862 considered Paxus Services Ltd v People Bank Pty Limited (1990) 99 ALR 728 followed Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 referred to Skyes v Stratton [1972] 1 NSWLR 145 cited MARK CAREY AND MARION CAREY v IAN CAREY NSD 1565 OF 2007

COWDROY J

10 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1565 OF 2007

BETWEEN: MARK CAREY

First Applicant

MARION CAREY

Second Applicant

AND: IAN CAREY

Respondent

JUDGE: COWDROY J DATE OF ORDER: 10 AUGUST 2007

WHERE MADE: SYDNEY

Upon the applicants by their counsel, A W Street SC, giving the usual undertaking as to damages, THE COURT ORDERS THAT: 1. Until further order, pursuant to Order 15A r 12 of the Federal Court Rules the respondent by himself, his servants or agents be restrained from disposing, encumbering, transferring or otherwise dealing with any moneys or shares in the name of or on behalf of Grace Carey and/or Harvey Carey outside Australia including any monies held in the name of the respondent, Grace Carey or Harvey Carey or in names on their behalf at Lombard Odier Darier Hentsch & Cie, Banquiers a Geneve or at Vernes Gestion SA. 2. The applicants may give notice of order 1 above to Lombard Odier Darier Hentsch & Cie, Banquiers a Geneve by facsimile + 41 (0) 22 709 2911 and to Vernes Gestion SA at +41-22-789-30-75. 3. Until further order, pursuant to Order 15A r 12 of the Federal Court Rules the respondent by himself, his servants and agents preserve all records relating to the foreign investments in bank accounts or shares of moneys in the name of or on behalf of Grace Carey and/or in the name of or on behalf of Harvey Carey. 4. Until further order pursuant to Order 15A r 12 that the respondent by himself, his servants and agents preserve the hard drive in his possession and on which he has sent emails in relation to the Estate of the Late Grace Carey. 5. Pursuant to Order 15A r 12 the respondent produce to the Court forthwith the hard drive in his possession and on which he has sent emails in relation to the Estate of the Late Grace Carey provided that if the respondent is unable to produce to the Court, the said hard drive is to be provided into the custody of Mr Michael Schmidt, solicitor and who may be contacted by mobile phone number 0417412737. 6. The respondent be restrained from leaving Australia unless and until order 5 above has been complied with. 7. Under Order 15A r 6 the documents within order 3 above be produced for the purpose of preservation, to the Court on or before 15 August 2007. 8. The proceedings be adjourned until 10.15 am on 17 August 2007. 9. The applicants serve these orders by email to ianhcarey@gmail.com and to ian.carey@robeco.com and by the applicants' solicitor by telephone to mobile number 0416 366 965 and by facsimile c/- Kedo Pty Ltd to number 02 4731 4409 and upon solicitor Peter Stiles at 3 Spring Street, Sydney NSW. 10. Notice of this order restraining the respondent from leaving the jurisdiction be given to the Australian Federal Police and the Australian Customs Service forthwith. 11. These orders be entered forthwith. 12. Liberty to apply be granted to any party to the Duty Judge on 2 hours of notice. 13. Pursuant to Order 7 r 10 service of the application upon the respondent is confirmed. NOTICE TO IAN HARVEY CAREY: You are liable to imprisonment and/or sequestration of property if you: a. Disobey orders 1,3,4,5,6 and 7 above; b. Refuse or neglect to comply with orders 1,3,4,5,6 and 7 above. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.