GE Capital Australia v Davis [2001] NSWSC 933

New South Wales Supreme Court

CITATION : GE Capital Australia v Davis [2001] NSWSC 933 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4683/01 HEARING DATE(S) : 26 September 2001 JUDGMENT DATE : 26 September 2001

GE Capital Australia (P) Tana Ruth Davis (D1) PARTIES : Lessel George Davis (D2) Veltex Pty Limited (D3) Zeita Pty Limited (D4) JUDGMENT OF : Hamilton J

COUNSEL : C R C Newlinds (P) No appearance (D1-4) SOLICITORS : Kemp Strang (P) Hugh & Associates (D1-4) CATCHWORDS : EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required - Defendants selling house, declining to indicate nature of defence to proceedings or reveal their assets and failing to appear - PROCEDURE [81] - Supreme Court procedure - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose. LEGISLATION CITED : Supreme Court Rules, Pt 1 r 3, Pt 9 r 1 CASES CITED : Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319 DECISION : Mareva order made until further order with liberty to defendants to apply to discharge.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 26 SEPTEMBER 2001 4683/01 G E CAPITAL AUSTRALIA v TANA RUTH DAVIS & ORS Judgment 1 HIS HONOUR: This is an application by the plaintiff for what should now be referred to as a Mareva order rather than a Mareva injunction: see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 401. The principles on which such relief is generally granted were usefully set out by Gleeson CJ when Chief Justice of this Court in Patterson v BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319 where his Honour said at 321 – 322: "The remedy is discretionary, but it has been held that, in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant's absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied."