MACQUARIE BANK LTD v SUPERGRASSE PTY LTD and ORS [1991] NSWCA 177

MACQUARIE BANK LTD v SUPERGRASSE PTY LTD and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and CLARKE JJA 8 February 1991

[1991] NSWCA 177

Samuels JA This is an application by Macquarie Bank Ltd for leave to appeal from the refusal by Mr Justice Powell to grant an interlocutory injunction restraining the third crossdefendant in these proceedings, Mr Waterford, from disposing of the proceeds of the sale of certain property which is to be completed later today.

Very shortly, the facts are that the claimant, Macquarie Bank Ltd, has obtained a judgment against Mr Waterford and the companies which are also respondents to the appeal which the opponent proposes, in a sum in excess of $6 million.

A bankruptcy notice has been served upon Mr Waterford and the claimant now knows that this property of his is to be sold or the sale is to be completed today.

The solicitors acting for the claimant have sought from the solicitor acting for Mr Waterford, some undertaking as to the disposal of the proceeds of sale, to the intent that they should be held in trust until the question of the claimant's entitlement to participate in them can be resolved. I add that there is a secured creditor, a mortgagee, Westpac Banking Corporation Ltd, which is interested in the property to be sold.

In the circumstances, and in the light of the evidence which has been placed before the court, I am of the opinion that the claimant is entitled to an interlocutory injunction to protect such interest as it may have in the proceeds until final determination; and I think that Mr Campbell is right when he says that enough appears to ground an inference that Mr Waterford may seek to dispose of any surplus over that due to the secured creditor in a manner disadvantageous to the opponent.

In those circumstances I would propose the following orders. The application for leave to appeal is stood over to the motions list on Monday next, 11 February 1991. Because the new Chief Justice of the Federal Court is to be sworn in on Monday, it is possible that the motions list may not commence at 10.15, hence I abstain from adding a time to that order, but the application will be heard in the motions list.