YUILL v SPEDLEY SECURITIES LIMITED (IN LIQUIDATION) [1991] NSWCA 291

YUILL v SPEDLEY SECURITIES LIMITED (IN LIQUIDATION) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and HANDLEY JJA 6 May 1991, 6 May 1991

[1991] NSWCA 291

INJUNCTION — Mareva injunction — summons for leave to appeal refused — earlier findings of fraud support issue of injunction.

INJUNCTION — Mareva injunction — need for evidence to support — Cole J grants injunction against company director summons for leave to appeal challenging the injunction on the ground of (a) delay by the liquidator in seeking the injunction and (b) lack of evidence of risk of dissipation of assets to warrant its being made

held: (by the Court) Leave to appeal from Cole J's interlocutory order refused; (per Kirby P). It was open to the primary judge, in the circumstances, to issue the injunction having regard to (1) his findings as to the director's past involvement in fraud and the conclusion that he might dispose of assets controlled by him; (2) his findings as to past property dealings; and (3) (possibly) inferences drawn from his silence as to assets under his control when it might have been expected that he would disclose such assets.

Kirby P In my opinion the summons should be dismissed with costs. The order challenged is an interlocutory order. That is why it requires leave to appeal. The constraints on the appellate review of such orders are too well known to require elaboration.

In the circumstances of the case I do not consider that any error is shown such as would warrant the grant of leave to appeal to challenge his Honour's order. I believe that it was open to Cole J to issue the Mareva injunction to Mr Yuill in the circumstances of this case, having regard to:

1. The findings which his Honour had earlier made that Mr Yuill showed little regard for proper standards of commercial behaviour; that his evidence was unreliable and that he had, with another person, set about organizing a fraud on the auditor of Spedley Securities Limited (In Liquidation). Such was the evidence that his Honour reached the conclusion that the circumstances provided an "overwhelming case" in which a danger had been established that Mr Yuill might act to dispose of any assets over which he had control;