Errigal Ltd v Equatorial Mining Limited & 3 Ors [2006] NSWSC 953

New South Wales Supreme Court

CITATION : Errigal Ltd v Equatorial Mining Limited & 3 Ors [2006] NSWSC 953

HEARING DATE(S) : 05/09/06

JUDGMENT DATE : 6 September 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 09/06/2006

DECISION : Para 74 of judgment.

CATCHWORDS : PRACTICE & PROCEDURE – Freezing orders – Plaintiff entered into contract with corporate group – Corporate group included first and fourth defendants – Contract stipulated that plaintiff entitled to 15 per cent of dividends paid by fourth defendant to another company within corporate group – Whether good arguable case that plaintiff entitled to 15 per cent of profits distributed by fourth defendant to other companies within corporate group – Whether dividends paid by fourth defendant – Meaning of dividend considered – Whether contract subject to implied term of good faith prohibiting directors of fourth defendant from exercising powers for purpose of depriving plaintiff of benefits of contract – Good arguable case demonstrated – Whether freezing order should be made – Whether danger that any judgement against first defendant will be unsatisfied due to removal of assets from Australia – Freezing order made.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW)

Ninemia Maritime Corporation v Trave GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 Vodafone Pacific Ltd v Mobile Innovations Ltd (2004) NSWCA 15 CASES CITED : Secured Income Real Estate Australia Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Hart v Macdonald (1910) 10 CLR 417 Harrison Partners Construction Pty Limited v Jevena Pty Limited (2005) NSWSC 1225