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. On the claimant, by its counsel, giving to the court [Mr Campbell then gave the undertaking on behalf of his client] the usual undertaking as to damages, the third cross-defendant, its servants and agents, are hereby restrained from disposing of and/or dealing with the proceeds of sale of the property described as folio identifier 32/SP13199 in excess of any sum owed to the Westpac Banking Corporation Ltd in respect of its mortgage identified as dealing No Y469187 up to an amount of $7,172,682.79, until 4 pm on Monday 11 February 1991 or further order of this Court or a judge thereof. The court orders that the claimant, by 12 noon today, serve by facsimile upon Mr Henry J Storm, Solicitor, the documents upon which it proposes to rely in support of the application for leave to appeal and in continuation of the injunction. The costs of today's application are reserved. 2 UNREPORTED JUDGMENTS Mahoney JA I hold a different opinion. I would not grant the injunction. The judgment is for over $7 million. The surplus on the sale, as far as the evidence is concerned, is $6,908.48. That is the amount which it is said that Mr Waterford is to receive. There is, in my opinion, no evidence that Mr Waterford intends to deal with that money improperly. There is also, in my opinion, nothing to suggest that the fact that a bank has a judgment entitles it to priority over other persons who may have an equal or better claim upon such amount as Mr Waterford receives. It is said that this is the basis upon which Mareva injunctions are granted, to restrain persons from disposing of property. If that be so, then in my opinion the position needs urgent reconsideration. In my opinion the application should be refused. Clarke JA I agree with Mr Justice Samuels, but as the hearing today has proceeded ex parte, I would think it clear that nothing that has been said by his Honour should be taken to conclude the matter as between the parties. The final determination will take place at a hearing where both sides are represented or, at least, where both parties have had proper opportunity to be represented. The court orders that the claimant, by 12 noon today, serve by facsimile upon Mr Henry J Storm, Solicitor, the documents upon which it proposes to rely in support of the application for leave to appeal and in continuation of the injunction. The costs of today's application are reserved.