JFT CONSTRUCTIONS PTY LTD v WELLS [1994] NSWCA 155

JFT CONSTRUCTIONS PTY LTD v WELLS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 11 April, 11 April 1994 [1994] NSWCA 155

PRACTICE and PROCEDURE — injunctions — Mareva injunction — alleged fraud and theft by employee — presentation of cheques with blank spaces for increase of amount — application for Mareva injunction directed to employee and his banks — purpose to prevent transfer or use of funds derived from fraud upon employer — primary judge (Giles J) refuses injunction — holds that there is a lack of proof of assets to which injunction might attach — summons for leave to appeal and motion for Mareva injunction support thereof — argued that inference available from proof of fraud that fund exists derived from fraudulently obtained sums — held: (Kirby P; Priestley JA and Meagher JA concurring): (1) The point argued on the summons for leave to appeal had sufficient merit to require the grant of immediate relief and adjournment of the summons to the next summons return date when opponent would have the opportunity of attending; (2) Mareva injunction issued, upon the giving of the usual undertakings as damages.

NATURE OF JURISDICTION: Motion for Mareva injunction as ancillary to summons for leave to appeal from Commercial Division of the Supreme Court (Giles J)

ORDERS Orders in the nature of Mareva injunctions issued in accordance with short minutes of orders handed to the Court.

Kirby P On 19 May 1993 the claimant, JFT Constructions Pty Ltd, employed one Kerry Licardu Wells as a book-keeper. Part of Mr Wells' duties was to present cheques for signature to the managing director of the claimant, Mr Joseph Toth. Mr Wells had control of the cheque books and of wages books, the bank statement books and other financial records of the claimant.

It is alleged that Mr Wells presented cheques to Mr Toth for signature which contained a space which, it is claimed, Mr Well utilised to increase the amount of the cheque as, for example, from $600 to $4,600 by the addition of the words "four thousand" in the space provided.