National Equity Financial Services Pty Limited v The Home Loans Group Pty Limited [2006] NSWSC 894

New South Wales Supreme Court

CITATION : National Equity Financial Services Pty Limited v The Home Loans Group Pty Limited [2006] NSWSC 894

HEARING DATE(S) : 23/8/06 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 08/23/2006

DECISION : Injunctive relief ordered.

CATCHWORDS : Equity - Injunctions - Mareva Injunctive relief against third parties

Conveyancing Act 1919 (NSW) LEGISLATION CITED : Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW)

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 CASES CITED : Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd's Rep 509 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1

National Equity Financial Services Pty Limited (Plaintiff) PARTIES : The Home Loans Group Pty Limited (Defendant) THLG Pty Limited (non party)

FILE NUMBER(S) : SC 50106/05

COUNSEL : Mr CRC Newlinds SC, Mr Newton (Plaintiff) Mr Rydon (THLG Pty Ltd)

SOLICITORS : Heidtman & Co (Plaintiff) Cosoff Cudmore Knox (THLG Pty Ltd)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Wednesday 23 August 2006 ex tempore Revised 4 September 2006

50106/05 National Equity Financial ServicesPty Ltd v The Home Loan Group Australia Pty Limited JUDGMENT 1 There is before the court a notice of motion filed by the plaintiff on 23 August 2006. The application pursued this afternoon, upon the plaintiff by its counsel giving to the court the usual undertakings as to damages, is for an order that THLG Pty Limited, a company which is not presently a party to proceedings 50106 of 2005, by itself, its directors, officers, employees and agents be restrained until further order from disposing of, encumbering or otherwise dealing with in any way the loan in the amount of $973,818 or any part thereof from Trailer Homes Pty Limited other than to pay ordinary and proper business expenses of THLG Pty Limited. 2 On the hearing of the application for this relief, Mr Newlinds, of Senior Counsel, has appeared leading Mr Newton of counsel, and Mr Rydon, solicitor, has appeared for THLG, by which acronym I refer to THLG Pty Limited, the party against whom the relief is sought. 3 In support of the application, the plaintiff has relied upon a number of affidavits: the affidavits of Mr Walter Taglialegna sworn on 19 June 2006 and 11 July 2006; the affidavit of Mr James Charles Kiloh, sworn on 7 July 2006; the affidavit of Cynthia Chan, sworn on 20 July 2006 and the later affidavit of Cynthia Chan sworn on 23 August 2006. Additionally, the plaintiff has sought to rely upon an affidavit by Mr Danny John Arraj sworn 23 August 2006. 4 The core background to the dispute between the parties to proceedings 50106 of 2005 is to be found in the judgment which I delivered on 20 April 2006 in proceedings which had been heard on 10 April 2006 and 11 April 2006. It is unnecessary to repeat the record. 5 Subsequent to delivery of that judgment these proceedings have been before Justice McDougall on 31 July 2006, where the extempore judgment, which, again, does not require to be repeated, did grant relief in favour of the plaintiff against the defendant to the proceedings but in respect of which the court declined to make an order against THLG. 6 For the reasons which will be given in a moment, but very shortly, the principled exercise of the court's discretion is in order to preserve the present position and status quo to make generally an order in the form now sought to be made this afternoon by the plaintiff. 7 The plaintiffs have in their written submissions sought to expound the principal reasons why it is submitted that the court should presently but on an interim basis pending a full interlocutory injunctive application make the orders sought. 8 In my view, and from the reading which I have been in a position to carry out of the materials relied upon, those submissions for the purpose of an interim application for this relief may be taken as a reasonable reflection of the plaintiff's contentions and as to the facts which the plaintiff contends to have been proven by the materials which it relies upon. Naturally only on a full hearing of an interlocutory injunction will the court be in a position to determine whether and, if so, to what extent the essential facts relied upon by the plaintiff in that document and its submissions withstand close scrutiny. 9 It is simply convenient for the purpose of this late-afternoon judgment to set out paragraphs 6 through to 48 inclusive as centrally grounding the reasons why the court is satisfied that on this very interim basis there is a serious case which has been made out and the balance of convenience is in favour of the making of the orders for a limited period of time: