Federal Court of Australia Albarran, in the matter of Albarran and Vouris as agents of INF Capital Pty Ltd [2021] FCA 994 File number: VID 413 of 2021 Judgment of: ANASTASSIOU J Date of judgment: 29 July 2021 Date of publication of reasons: 19 August 2021 Catchwords: CORPORATIONS – ex parte application for interim injunction prior to issue of proceeding – whether there is a prima facie case – whether balance of convenience favours injunctive relief – application granted Legislation: Personal Property Securities Act 2009 (Cth) Cases cited: Australian Broadcasting Corporation v O'Neill (2006) [2006] HCA 46; 227 CLR 57 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 16 Date of hearing: 29 July 2021 Counsel for the Applicant: Mr M. Grady Solicitor for the Applicant: DSS Law ORDERS VID 413 of 2021 IN THE MATTER OF RICHARD ALBARRAN AND JOHN VOURIS AS AGENTS OF INF CAPITAL PTY LTD (ACN 620 196 134) RICHARD ALBARRAN AND JOHN VOURIS AS AGENTS OF INF CAPITAL PTY LTD (ACN 620 196 134) Prospective Applicant order made by: ANASTASSIOU J DATE OF ORDER: 29 July 2021 OTHER MATTERS: 1. The Prospective Applicant undertakes: (a) to 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 that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and (b) to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking. THE COURT ORDERS THAT: 2. Until 5pm on 3 August 2021, each of Maxmara and JA International Pty Ltd ACN 169 316 705, Abela Group Pty Ltd ACN 105 502 181, Matt Tomas, and Victor Abela be restrained, whether personally or by their agents, employees, or servants, from disposing of or otherwise dealing with the 2002 Grove GMK6300 Crane bearing VIN number W093006902WG12046. 3. The application is listed for further hearing on 3 August 2021. 4. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) ANASTASSIOU J: 1 This is an application dated 27 July 2021 for an interim injunction prior to the issue of a proceeding. Mr Richard Albarran and Mr John Vouris, agents of INF Capital Pty Ltd (the Prospective Applicant) seek orders that Abela Group Pty Ltd, Mr Matt Tomas and Mr Victor Abela be restrained from disposing or otherwise dealing with the 2001 Grove GMK6300 Crane bearing VIN number W093006902WG12046 (the Crane). The Prospective Applicant also seeks orders restraining Abela Group Pty Ltd, Mr Tomas and Mr Abela from removing the Crane as well as orders permitting the Prospective Applicant and/or their agents to search for, inspect and photograph the Crane. 2 The Prospective Applicant's application is supported by an affidavit of Benjamin Skinner affirmed 20 July 2021, an affidavit of Robert Campbell Carter sworn 28 July 2021, an affidavit of John Vouris sworn 28 July 2021 and written submissions dated 28 July 2021. 3 For the reasons that follow, I will make orders restraining Abela Group Pty Ltd, Mr Tomas and Mr Abela from disposing or otherwise dealing with the Crane until 5pm, 3 August 2021 at which date I will make the application returnable. Background 4 The claim is a straightforward claim as presently appears. The Prospective Applicant entered into a four year lease agreement with Maxmara and JA International Pty Ltd on or around 14 December 2020. Pursuant to the lease, Maxmara paid rent to the Prospective Applicant on a monthly basis and in the event of default, the Prospective Applicant was entitled to terminate the lease and recover the Crane as its property. Maxmara granted a security interest in the Crane to the Prospective Applicant (within the meaning of the Personal Property Securities Act 2009 (Cth)) as security for Maxmara's obligations under the lease. That security interest was registered on the Personal Property Securities Register on 26 April 2021. The delivery receipt annexed to the lease, dated 16 December 2020, records Maxmara's acknowledgement that it had received the Crane. 5 The Prospective Applicant submits that Maxmara defaulted on its payment obligations as early as 18 January 2021. On 15 March 2021, the Prospective Applicant issued a Notice of Payment Default to Maxmara requiring it to remedy the outstanding defaults by 22 March 2021. Those defaults were not remedied, and a second Notice of Payment Default was sent to Maxmara on 31 March 2021. In accordance with the terms of the lease, the Prospective Applicant issued a Termination Notice to Maxmara on 28 May 2021, however, Maxmara did not return the Crane. The Prospective Applicant has since been attempting to locate and recover possession of the Crane. 6 Following various attempts to locate the Crane, on 28 June 2021, the solicitors for Maxmara provided the Prospective Applicant with an address for the Crane, being 14-16 Jessica Way, Truganina, Victoria 3029 (the Property). The registered proprietor of the Property is Abela Group Pty Ltd. Mr Abela is one of the directors of that company. On 29 June 2021, the Prospective Applicant was given Mr Abela's contact details to arrange access to the Property. 7 The Prospective Applicant gave evidence that attempts to contact Mr Abela and access the Property were unsuccessful. During a teleconference between Mr Skinner (a solicitor acting for the Prospective Applicant), Maxmara's solicitors and Mr Abela on 1 July 2021, Mr Abela confirmed that the Crane was stored in his yard and that he believed the owner of the Crane was Mr Tomas. 8 Documents contained within the records of the Prospect Applicant include a crane certification in respect of the Crane from 2004 issued to Mr Tomas of Elite Cranes Pty Ltd. Elite Cranes Pty Ltd was deregistered on 28 March 2011 and the sole director of the company at the time of deregistration was Mr Tomas. 9 Mr Skinner deposes to the fact that during a call with Mr Tomas on 2 July 2021, Mr Tomas asserted that he was the owner of the Crane and had been for six years. 10 The Prospective Applicant undertakes to commence a substantive proceeding within 14 days of this application, seeking delivery up of the Crane. Consideration 11 The circumstances that inform the Court's discretion to grant injunctive relief are well-established. In order to obtain the relief that it seeks, the Prospective Applicant must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O'Neill (2006) [2006] HCA 46; 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed). 12 The Prospective Applicant has a registered security interest in respect of the Crane under the Personal Property Securities Act 2009 (Cth) and is therefore entitled to assert a security interest in the Crane. In the absence of any evidence that the Crane has been sold without knowledge of the Prospective Applicant's registered interest, the Prospective Applicant has, in my view, a strong prima facie case for the recovery of the Crane. 13 In respect of the order sought regarding the disposal or dealing of the Crane, the injunction will do no more than prevent the Crane from being sold or transferred prior to or during the prospective proceeding being heard and is of little or no inconvenience to Mr Tomas and Mr Abela. Conversely, if the injunction was not granted and the Crane was to be dealt with, the subject matter of the prospective proceeding could be impaired and the Prospective Applicant's security destroyed. The strength of the prima facie case, and the prejudice to the Prospective Applicant if the relief sought in relation to this order is refused, in my view, outweighs any potential prejudice to Mr Tomas or Mr Abela. 14 The Prospective Applicant sought further orders, including that the Crane not be removed from the particular site where it is believed to be presently located. I have declined to make any order other than to restrain the disposal of the crane or any dealings in it. At present, it is not clear to me that the land on which the Crane is situated is controlled by a person who can be given instructions by Mr Tomas or Mr Abela. I wish to avoid a situation where the owner of the land might face contrary instructions from Mr Tomas or Mr Abela – for example, that the crane be removed – and then be placed in the position of having to decide whether to comply with the lawful instruction or with an order of this Court, and in the case of the Court order, potentially exposing himself/herself to punishment for contempt. 15 Accordingly, I have decided that the application should return for further hearing on Tuesday, 3 August 2021. I would expect a response to be forthcoming from any of the prospective respondents as to any defence to the claim by the Prospective Applicant. In the absence of a satisfactory response, the Prospective Applicant is at liberty to amend their application for interlocutory relief, if so advised, to include an order that the prospective respondents deliver up the Crane to a location of the Prospective Applicant's choosing, subject to that location being reasonable and being capable of being properly secured. Disposition 16 For the reasons above, I make orders restraining Abela Group Pty Ltd, Mr Tomas and Mr Abela from disposing or otherwise dealing with the Crane until 5pm, 3 August 2021. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou. Associate: Dated: 19 August 2021