Federal Court of Australia
Federal Court of Australia
Hillier v Martin (No 11) [2022] FCA 407 File number: SAD 113 of 2020
Judgment of: CHARLESWORTH J
Date of judgment: 6 April 2022
Date of publication of reasons: 19 April 2022
Catchwords: PRACTICE AND PROCEDURE – order in the nature of injunction – assets of a business as a going concern held on trust – parties in dispute as to their equitable interests in the trust assets and as to the terms of the trust – applicant seeking to restrain the respondents from applying the income and assets of the trust for any purpose other than the payment of the expenses of the business – financial reports showing entities holding the assets have outstanding and aged payables owing to the Australian Taxation Office and a supplier – financial reports showing profits in decline – financial reports showing those in control of the entities have caused the entities to advance loans to themselves or their associates – inference that grant of loans not for a business purpose – inference that loans have affected the relevant entities' cash flows – whether order appropriate to protect the assets forming the subject of the underlying dispute from diminution in circumstances where demonstrated past transactions and future like transactions would be in breach of the trust asserted by the applicant – where respondents demonstrate no prejudice arising from restraint – where respondents' lawful interests protected by grant of liberty to apply to vary restraint – order with injunction granted
Legislation: Federal Court Rules 2011 (Cth)
Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Breen v Williams (1996) 186 CLR 71 Chan v Zacharia (1984) 154 CLR 178 Hillier v Martin (No 5) [2021] FCA 949 Hillier v Martin (No 7) [2021] FCA 1221 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Lucisano v Westpac Banking Corporation [2015] FCA 243 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238
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