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; 2. The findings recorded in his Honour's reasons concerning the purchase of 14 Carlisle Square, Chelsea, London, and the circumstances surrounding that purchase; and 3. (Possibly) the inferences available to be derived by Cole J from the silence of Mr Yuill as to the existence of other assets under his control. This silence persisted even where it would clearly have been relevant for Mr 'Yuill, in such an application, to show the practical inconvenience which an order in the nature of a Mareva injunction would cause for him. I believe that the delay of the claimant in bringing the application was not a disqualifying consideration. Nor was it treated as such either by Mr Yuill or by Cole J. It was simply a matter to be taken into account in the exercise by his Honour of his discretion to grant or to refuse the injunction sought. No basis is shown for this Court to disturb the discretionary order which followed. 2 UNREPORTED JUDGMENTS I would propose that the summons be dismissed. The claimant must pay the opponent's costs. Mahoney JA In my opinion, this is not a case appropriate for leave to appeal. I agree with the orders that have been proposed. Handley JA I agree that leave to appeal should be refused and with costs. (Discussion as to the limited stay) Kirby P: I am inclined to simply leave the stay order to expire in its own terms. The orders of the Court are that the summons is dismissed. The claimant may pay the opponent's costs. (Discussion as to the documents in sealed envelope) Kirby P I have just had handed to me an envelope which is marked "Sealed by Order of the Court, not to be opened". To permit immediate access to the contents of this envelope, to the orders which were previously pronounced by the Court, I add: 3. Lift the stay order which was previously made and which would otherwise have expired at 4 p.m. this day; and 4. Give leave to both parties to have access to the documents in the sealed envelope which I now hand to the Associate and which, after the Court rises, will be made available to both parties. The orders of the Court are as I have proposed. 1. Summons dismissed; 2. Claimant to pay opponent's costs; 3. Lift the stay order previously made by the Court; and 4. Give leave to both parties to have access to the sealed envelope in Court. COUNSEL for the Claimant: N Cotman Counsel for the Opponent: BS Macfarlan QC, H Coonan, S White SOLICITORS for the Claimant: Buebeck Farland Pender Solicitors for the Opponent: Dibbs Crowther and Osborne