Morris v Hanley [2003] NSWSC 374

New South Wales Supreme Court

CITATION : Morris v Hanley [2003] NSWSC 374 HEARING DATE(S) : 1 May 2003 JUDGMENT DATE : 1 May 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Short term Mareva relief granted.

CATCHWORDS : EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required - Need to fund litigation. Janine Morris (P) Jack Norman Hanley (D1) Geoffrey Donald Reid (D2) Lynda Maree Cole (D3) Christine Valmae Hayward (D4) PARTIES : Anthony Bodycote (D5) Robyn Janelle Haydon (D6) Daphne Olive Boyd (D7) Beverley Joy Armfield (D8) Gayle Hanley (D9) Cecil Bellchambers (D10) Mariani Holdings Pty Limited (D11) FILE NUMBER(S) : SC 2650/97 COUNSEL : In person (P) P T Taylor (D1-11) SOLICITORS : In person (P) Parker & Kissane (D1-11)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 1 MAY 2003

2650/97 JANINE MORRIS v JACK NORMAN HANLEY & ORS JUDGMENT (On application for Mareva relief - see page 9 of transcript) 1 HIS HONOUR: In this matter there is an application for Mareva relief up to and including 5 June when the costs argument in the matter is again before me. Up to the present time the plaintiff has given an undertaking which has stood for Mareva relief in relation to a fund for $28,000, which is her share of the net proceeds of the sale of a house. 2 It seems highly likely to me, from my knowledge of the case, that her allegation that she is otherwise impecunious is correct, and, bearing this in mind, I am prepared to infer that there is a risk of disbursal of the moneys sufficient to found the grant of Mareva relief during the short time in respect of which it is sought. 3 However, on the other hand, she claims that if the relief is extended even for the short time, she should have access to the funds, or to some of the funds, to permit her to pay for the ongoing litigation, in the form of an appeal which is under preparation, together with expenses necessary for the conduct of the costs argument. It is clear that there are such expenses, although she is not now legally represented, by way of filing fees, copying fees, and perhaps even legal expenses for obtaining advice about the conduct of the litigation, even if lawyers cannot be retained to appear in it. 4 Doing the best I can in the very short time available (I am in the middle of the hearing of a part heard case, but it would seem to be wasteful of the Court's resources to send this matter, of which I have extensive knowledge, to be dealt with by another Judge), I think it a reasonable result that I impose a restraint in the nature of Mareva relief on the disbursal of the fund, save for the sum of $6,000, which, it seems to me, is likely to be needed in the short term to pay expenses to permit the litigation to be carried on. The expenses include the filing fee for the substantive appeal and transcript and copying costs. 5 I have given a warning to both parties concerning any application for extension of Mareva relief beyond 5 June. I have warned the defendants that, to obtain further Mareva relief, they will have to demonstrate, by clearer evidence than has been before me today, the existence of a situation of apprehension that falls within the formula laid down by Gleeson CJ in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 318 at 321 - 322. 6 On the other hand, equally, Mrs Morris will need to bring forward any evidence she seeks to rely on to show that there is no relevant apprehension or, if Mareva relief is granted, to found the release of any fund she seeks to have released for approved purposes: this would need to include evidence of the means of Mrs Morris and her husband, John Morris, and also evidence of the expenditure, both up to that time and proposed, in respect of expenses associated with the litigation, or any other expenses in respect of which a release is sought. 7 I propose to make orders as I have indicated. Mr P T Taylor, of counsel for the defendants, has indicated that he is in a position to give the court an undertaking as to damages to support the Mareva relief I have outlined.