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: 6. The defendant was incorporated on 10 April, 2000. Since 26 October, 2000 Michel Christian has been a director of the defendant. Since 27 May, 2002 Mr Christian has been the sole director of the defendant. 7. The defendant has issued 500 ordinary shares. Mr Christian holds 250 shares and Katarina Christian holds the other 250 shares. 8. From at least 18 December, 2001 the defendant has been a loan aggregator that administers, introduces or brokers commissions for and on behalf of lenders. In the course of its business, the defendant has commercial dealings: a. with lenders (such as Westpac, NAB, ING, Citibank etc); b. with brokers such as the plaintiff. 9. The dealings between the defendant and its "panel lenders" are regulated by contract which are generally described as "broker agreements". Relevantly, one such broker agreement was between Westpac and the defendant dated 25 June, 2000. 10. The plaintiff is known as an introducer in the mortgage lending industry. 11. On 18 December 2001 the plaintiff and defendant entered into an agreement whereby the defendant appointed the plaintiff for the term of the agreement to introduce loans to the defendant's panel lenders (the "THLG Panel Lenders") and agreed to administer the plaintiffs Trailing Commissions and Upfront Commission in consideration of the plaintiff completing, processing and referring loan applications to THLG Panel Lenders (the "Introducer's Agreement"). Pursuant to the Introducer's Agreement, the plaintiff was entitled to 90% of upfront commissions and trailing commissions paid by THLG Panel Lenders in relation to loans introduced by the plaintiff. 12. Between approximately 19 December 2001 and 12 August 2004 the plaintiff as introducer completed, processed and referred loan applications to THLG's Panel Lenders under the Introducer's Agreement and became entitled to "upfront commission" and "trailing commissions" as defined in the Introducer's Agreement. 13. Following settlement of loans and pursuant to the relevant broker agreements, the THLG Panel Lenders paid the defendant upfront commissions and trailing commissions. The defendant retained for itself 10% of those commissions before paying the plaintiff the balance of those commissions pursuant to the Introducer's Agreement. 14. On 4 August 2004 the defendant ceased paying commissions to the plaintiff. The defendant has not paid any commissions or any amount to the plaintiff since 4 August 2004 and since then has retained all commissions received by it from its lenders in respect of loans introduced by the plaintiff. 15. By letter from the defendant addressed to Mr W Taglialegna, Director, National Equity Financial Services Pty Ltd dated 12 August 2004 the defendant gave notice of its termination of the Introducer's Agreement effective immediately. 16. By letter dated 24 January 2005 from Heidtman & Co (the solicitors for the plaintiff) to Gadens (the solicitors for the defendant), the solicitors for the plaintiff threatened to commence legal proceedings on behalf of their client in relation to the alleged "unlawful withholding commissions due and owing to our client under the Introducer's Agreement". 17. On February 2005 THLG was incorporated. Since incorporation Mr Christian has been its sole director and secretary. THLG has issued 20 ordinary shares. Mr Christian holds 10 shares and Mrs Christian holds the other 10 shares. 18. By Deed of Novation and Assignment made on 15 February 2005 between the defendant, THLG and Westpac, the parties agreed that on and after 1 March, 2005 THLG would be substituted for the defendant as a party to the Broker Agreement between Westpac and the defendant dated 25 June, 2000. 19. It now appears (from Mr Christian's affidavit sworn 22 June 2006 which was filed and served in relation to the forthcoming hearing on quantum) that "effective 1 March 2005 the defendant sold its business to THLG Pty Ltd". Mr Christian's evidence in relation to quantum discloses that no commissions have been received by the defendant from THLG Panel lenders since February 2005. 20. By Business Sale Agreement between the defendant and THLG as trustee for the Home Loans Group Trust, the parties to that agreement recited that on 20 February, 2005 the defendant agreed to sell to THLG and THLG agreed to by the mortgage aggregation business of the defendant. The purchase price for the business was $260,001 comprised of: a. Plant and equipment ($75,000); b. Goodwill ($1); c. Book Debts ($185,000). 21. On 17 March 2005 Mr and Mrs Christian purchased a property as joint tenants for $460,000 at 313 Brimbin Road, Cundeltown, being folio identifier 8/831030. 22. On 16 May 2005 THLG trading as The Home Loans Group entered into a Chattel Mortgage Agreement with BMW Australia Finance Limited for the finance of a 2004 BMW motor vehicle for a total amount of $119,964.80. Mr Christian signed the agreement on behalf of THLG. The Chattel Mortgage Agreement provides that the vehicle is intended to be situated at 313 Brimbin Road, Cundletown. 23. By Summons filed in the Supreme Court Registry on 1 July 2005 the plaintiff commenced these proceedings in which it claimed upfront commissions and trailing commissions in respect of loans introduced by or on behalf of the plaintiff pursuant to the Introducer's Agreement. 24, In the proceedings, the court on the application of the plaintiff issued various subpoenas to THLG Panel Lenders. The defendant filed a notice of motion seeking to set aside those subpoenae. The application was heard by Einstein J. When determining that application, His Honour ordered that all questions otherwise than quantum be heard separately. 25. On 10 and 11 April 2006 Einstein J heard all questions on liability. Mr Christian gave evidence for the defendant and was cross-examined. During cross examination, Mr Christian was asked the following question and gave the answers shown: "HIS HONOUR: Q. You said in you just counted trails, what did you say? A. It would be 45,000, roughly, per month. COLES: Per month. COLES: And on top – you accept in general terms the additional figure for the post 1 July 2004 trails that Mr Taglialegna identifies which is in the order of about 5,000 a month for post 1 July? A. Post, pre, whatever the case might be, no I don't agree with that and I really need to do a detailed check but from what I have done so far, it has been roughly consistent, 45,000 in trails over the period, it would average over the period 45,000, no extra fives or anything like that. I have finished my answer." 26. The period Mr Christian was asked about was the period "post 1 July 2004". Mr Christian did not state or volunteer that effective 1 March 2005 the defendant sold its business to THLG and had not received any commissions since February 2005. 27. On 20 April, 2006 Einstein J delivered judgment in relation to liability. His Honour delivered two supplementary judgments on 9 May, 2006 and 16 May, 2006. In relation to the plaintiff's claim, His Honour entered a verdict and judgment for the plaintiff against the defendant on liability. His Honour also made orders for discovery. His Honour made the following order for discovery against the defendant: "Pursuant to Rule 21.2 of the Uniform Civil Procedure Rules 2005 the Defendant give discovery to the Plaintiff of all documents including but not limited to statements, bank statements, reconciliations, recording or relating to the payment of upfront commissions and trailing commissions by or on behalf of any THLG panel lender in respect of loans introduced by or on behalf of the Plaintiff and settled on or after 4 August 2004". 28. On 17 May 2006 the defendant filed its list of documents dated 16 May 2006. 29. By Deed of Loan Agreement made between Trailerhomes Pty Ltd, THLG and Mr Christian dated 1 May, 2006 (obtained for the first time by the plaintiffs on 31 July, 2006) THLG requested Trailerhomes to advance $973,818. 30. The Deed of Loan Agreement contained the following provision: a. Trailerhomes agreed to provide the Facility ($973,818) to THLG on the Settlement Date (defined to mean the date on which Trailerhomes advances the Facility to THLG) in the form of a bank cheque payable as THLG directs, subject to THLG having provided the Securities (defined to include the assignment of the Trailing Commissions by THLG to Trailerhomes pursuant to the Deed of Assignment of Trailing Commissions (with Right of Redemption) and the Guarantee (clause 2.1); b. THLG agreed to repay the amount of the Facility, or the balance outstanding of the Facility, on the Due Date (defined to mean the date when THLG must repay Trailerhomes the amount of the Facility or the outstanding balance of the Facility, namely the 1st day of May 2010) (clause 3.1); c. the parties agreed that the Trailing Commissions received by Trailerhomes pursuant to the Deed of Assignment of Trailing Commissions (with Right of Redemption) must be applied firstly in payment of interest payable under the Deed of Loan Agreement, and secondly, in payment of any other amount owing by Trailerhomes under the Deed of Loan Agreement (clause 4.1); d. THLG warranted to Trailerhomes that it would deliver to Trailerhomes on the Settlement Date all filed, records and documents relating to the Trailing Commissions (defined to mean all trailing commissions payable under the Introducer's Agreement (clause 6.1). 31. By Deed of Novation and Assignment between THLG, Trailerhomes and Westpac dated 23 May, 2006, the parties agreed that on and after 1 April 2006 Trailerhomes would be substituted for THLG as a party to the Broker Agreement between THLG and Westpac. 32. On or about 27 June, 2006 the defendant served its evidence in relation to damages. The affidavit of Mr Christian sworn 27 June, 2006 disclosed for the first time that "effective 1 March, 2005 the defendant sold its business to THLG Pty Ltd." The Summaries annexed to Mr Christian's affidavit indicate that the defendant has not received any commissions from THLG Panel Lenders since February 2005. 33. By notice of motion filed 19 June, 2006 the plaintiff applied for, inter alia, interrogatories from the defendant and mareva orders against the defendant and THLG. The notice of motion and another motion were heard by McDougall J on 31 July, 2006. His Honour delivered an extempore judgment. His Honour granted a mareva order against the defendant [at 27]. At paragraph 30 His Honour dismissed the notice of motion for a mareva order against THLG and held that: ". . . to the extent that I have not indicated I will make orders and to permit the plaintiff (as in any event it is entitled to do) to bring such further application (if any) as it may be advised is appropriate)." 34. By letter from Heidtman & Co to Cosoff Cudmore Knox dated 2 August, 2006 the plaintiff's solicitors requested from THLG's solicitors information in relation to the payment of the loan from Trailerhomes. 35. By letter dated 4 August, 2006 Cosoff Cudmore Knox responded. They did not provide the information requested or answer the questions asked. 36. By letter from Heidtman & Co to Cosoff Cudmore Knox dated 4 August, 2006 the plaintiff's solicitors requested from THLG's solicitors information in relation to the payment of the loan from Trailerhomes. 37. By letter dated 10 August, 2006 Cosoff Cudmore Knox responded. They did not provide the information requested or answer the questions asked. 38. On 7 August, 2006 the defendant served a further list of documents in respect of an order made by McDougall on 1 August, 2006. For the first time, the defendants discovered the Business Sale Agreement between the defendant and THLG and some other documents. The Adequacy of the Defendant's Original Discovery 39. Part 1 of the Defendant's List of Documents discloses that, inter alia, the following categories of documents are within the possession of the defendant: a. copies of Westpac Bank Statements to the defendant for the period 30 July 2004 to 22 April 2005; b. upfront and trail commission statements from Homeside Lending (to the defendant) for the period August 2004 to April 2006; c. recipient created tax invoices/upfront and trail commissions statements from ING Bank (to the defendant) for the period August 2004 to March 2005; d. upfront and trail commission statements from St George Bank (to the defendant) for the period August 2004 to February 2005. 40. It is clear from the discovery that has been given by the defendant and documents produced on subpoena by some THLG Panel Lenders that: a. loan applications introduced by or on behalf of the plaintiff to THLG Panel Lenders have settled on or after 4 August 2004; b. THLG Panel lenders have paid upfront commissions and trailing commissions in respect of loans introduced by or on behalf of the Plaintiff and settled on or after 4 August 2004. 41. Accordingly, any agreement for the sale of the defendant's business to THLG pursuant to which THLG became entitled from March 2005 to receive commissions from THLG Panel Lenders in relation to loans introduced by the defendant clearly fall within the order for discovery. 42. Notwithstanding the order for discovery and demands made by the solicitors for the plaintiff, the defendant has failed to discover any document in relation to the sale of the defendant's business to THLG or the payment of its accrued entitlement to commissions from THLG Panel lenders as at March 2005. 43. The defendants have also failed to discover the following documents which have been produced under subpoena by THLG Panel Lenders: a. the ING Change of Bank Account Details statement dated 18 March 2005 signed by Mr Christian changing the details of the bank account (for commission payment purposes). This document was produced under subpoena by ING Bank. This document constituted a request by Mr Christian to change the account into which commissions from ING were paid. b. Letter to St George Bank dated 28 February 2004 signed by Mr Christian for the defendant and by Mr Christian for THLG. The letter states: "Our companies have recently agreed to affect the transfer of a group of your customers, their accounts and associated commissions. Details are as follows: Transferor: The Home Loans Group Pty Ltd Transferor: Contact details: Michael Christian – 0407-404-004 Transferee: THLG Pty Limited Transferee: Contact details: Michael Christian – 0407-404-004 Effective date: 1 March 2005." ….. c. E-mail from Mr Christian as Managing Director of the defendant to Helena Misic of Homeside Lending dated 11 April 2005. The email states: "Subject : Direction to Pay Hi Helena, Please be advised of our new bank account as follows: Westpac Banking THLG Pty Ltd BSB: 032 324 ACC: 154205 Please direct all future commissions due to the above account. Michael Christin Managing Director The Home Loans Group Pty Ltd . . ." d. Emails passing between Mr Christian and Kevin Dougall of Homeside Lending dated 9 August 2005, 19 July 2005 in relation to THLG acquiring "certain assets" from the defendant. 44. By letters dated 19 May 2006 and 25 May 2006 from Heidtman & Co to Gadens, the solicitors for the plaintiff referred to the orders for discovery and invited the defendant's solicitors to review their client's discovery and give further discovery. 45. The elliptical responses from the defendant's solicitors have been that the defendant has nothing further to produce and has fully complied with its discovery obligations. 46. It would therefore seem that the defendant has absolutely no documentation whatsoever relating to the sale and transfer of the defendant's commissions to THLG. 47. It would also appear that the defendant no longer has in its possession any of the documents referred to above. No explanation is offered on behalf of the defendant as to why such documentation has not been discovered. 48. The failure to discover such documentation or to give any explanation are matters relevant to the courts discretionary power to make mareva orders. 10 It is strictly unnecessary to treat on an occasion such as this with the Court's power to make the orders sought. Those powers, it seems to me, were reasonably summarised also by the plaintiff in its written submission: 3. The power of the Supreme Court to make orders to preserve assets affected by litigation is principally found in sections 23 and 66 of the Supreme Court Act , 1970. 4. Section 23 provides that the court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. Section 66 (1) of the Supreme Court Act , 1970 provides that the court may, at any stage of proceedings, by interlocutory or other injunction restrain any threatened or apprehended breach of contract or other injury. Section 66 (4) provides that the court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the court to be just or convenient to do so. 5. As the courts power to grant mareva orders is discretionary and depends on the circumstances of each case, it is necessary to first consider the circumstances leading to these applications… 49. In Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1975] 2 Lloyd's Rep 509 Lord Denning MR (at 510) classified the relief, sought by the plaintiff, as injunctive on the footing that it went in aid of a legal right, namely the right of the plaintiff to be paid the debt owing, even before the establishment of that right by the getting of judgment for it. 50. In Patrick Stevedores Operations No 2 Pty Ltd v Maratime Union of Australia (1998) 195 CLR 1 at 33 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said: "The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked". 51. The jurisdictional basis for mareva relief against third parties was considered in Cardile v LED Builders Pty Ltd [1999] 198 CLR 380 . In that case, Gaudron, McHugh, Gummow and Callinan JJ held (at page 405 paragraph 57): "What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word "may", be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including "claims and expectancies", of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee or bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to satisfy the judgment against the judgment debtor." 52. The applications for mareva orders are no more than interlocutory applications. At the jurisdictional level, the only real questions are: a) firstly, whether there is a serious question to be tried as to whether assets presently under the control of THLG could be available to satisfy the judgment against the defendant in favour of the plaintiff; and b) secondly whether there is a danger of such assets being dealt with by the defendant or prospective defendants so that the courts process would be frustrated. 53. The answer to both of these questions is yes. 11 A particularly powerful reason for the view I take that the balance of convenience does require the making of an order this afternoon is to be found in the affidavit of Mr Arraj of 23 August 2006, in respect of which affidavit paragraphs 8 to 14 inclusive are in the following terms: 8. On 22 August 2006 12.30pm, I had a telephone conversation with Michel Christian with words to the effect of: He said: "I have spoken to your brother again today. The effect of the Deed is to transfer all his entitlements to THLG. The offer is on the table until Friday." I said: "I had a chance to closely examine the terms of the Mareva injunction and the proposal you are making appears to be in breach of Mareva injunction against The Home Loans Group Australia Pty Limited. I am appalled by your attempts to reduce the assets to defeat the plaintiff." He said: "No it doesn't. THLG is not even a party to the proceedings. They have tried previously but have failed. The injunction relates to The Home Loans Group Australia not THLG. I've got legal advice on that and they advised me that I could do this. I don't care what you think but I'm only trying to make the best out of this situation. If you want to take that approach the deal will be off with Checkpoint. The Home Loans Group and THLG will both be put into liquidation so that by the time the damages are assessed in November 2006 there will be nothing left. I'm glad that the liability and damages hearing were separated. It has given me time to ensure that NEFS won't be able to get anything if they have a judgment. My wife owns everything so they can't get to me." Mr Christian then hung up on me. 9. At around 12.40 pm on 22 August 2006, I received a call on my mobile from Mr Christian and we had the following discussion with words to the effect of: He said: "I got a little heated and the deal with your brother is not off. I've already sold the St George and Westpac books. The Mareva doesn't affect my proposals." I said: "You made it clear yesterday that you are trying to make the best of a bad situation. And in fact what you are trying to do is reduce your obligations to Checkpoint by threatening that if it does not accept this arrangement that The Home Loans Group as well as THLG will be in liquidation or will have no assets by November 2006." 10. I understood that November 2006 to be the time when the assessment of damages hearing in these proceedings will take place. 11. I then said words to the effect of: "You also said to me that you were pleased that the matter was divided into liability and damages hearings because this gives you ample time to ensure that the plaintiff's judgment will be fruitless. You informed me that your wife has everything in her name and that you have secured this position. I don't want to continue these discussions. I will continue my discussions with Heidtmans." I then terminated that conversation. 12. At approximately 12.45 pm, I received another call from Michel Christian. He said words to the effect of: He said: "Please let's do a deal. I don't want any trouble." We then discussed the proposal between Checkpoint and THLG Pty Limited and the proposed release. Checkpoint ultimately agreed to a proposal in full and final settlement of its entitlement for future trailing commissions. 13. On 23 August 2006, I spoke with Michel Christian again with words to the effect of: I said: "Michel, the payment date in the deed is not specified. The deed is peculiar in that it is dated 1 May 2006 and the deed ought to be subject to payment in cleared funds being made by a say, 11am today." He said: "That's fine." 14. Later in the morning of 23 August 2006, I contacted Michel Christian and spoke to him with words to the effect of: I said: "Unfortunately, your attempts to renegotiate the terms of our agreement is causing my client to be inclined to simply issue a Statutory Demand against THLG." He said: "If you don't accept this amount the account's being stripped today so you'll end up with nothing." I said: "I want to terminate this conversation." I then hung up. Mr Christian called back straight away and said words to the effect of: "I want to do this. The benefit of the deed is for Checkpoint, not me. Your brother benefits because all the brokers are getting paid out too." I said: "I am terminating this conversation now." 12 The principal burden of the plaintiff's submissions importantly grounded, inter alia, upon the reasoning to be found in Cardile v LED Builders Pty Limited, especially at pages 408 to 410, is underpinned by the proposition that the relief given by an order of the type presently sought is interlocutory and not final in nature. 13 Mr Newlinds has made plain that the plaintiff is concerned lest it may not presently be in a position to plead a case against THLG. That is a consideration which would require very special attention on the hearing of the full application for interlocutory relief. 14 Mr Newlinds has submitted that it may be that the plaintiff is in a position to commence proceedings against THLG essentially even as presently grounded upon the provisions of section 37A of the Conveyancing Act. My own view is that whilst an entitlement in a plaintiff to plead a case against a defendant is not necessarily always a pre-condition to the plaintiff obtaining interlocutory relief against such a party where a circumstance arises in which the plaintiff is apparently unable to commence proceedings against the party concerned, the court requires to scrutinise extremely closely what are the possible rights into the future. 15 The plaintiff has also submitted as follows: 54. The evidence reveals that: a. the main income stream of the defendant was upfront commissions and trailing commissions. The majority of the loans were from Westpac; b. since these proceedings were first threatened, Mr Christian has set in train steps which give rise to an inference that Mr Christian and the defendant have adopting devices to remove assets from the defendant which would otherwise be available to satisfy the judgment in favour of the plaintiff. THLG have become "mixed up" in the transactions; c. the defendant has sold its business to THLG effective from March 2005; d. the defendant has not acknowledged receipt of any commissions from THLG Panel Lenders since February 2005; e. by Deed of Novation and Assignment dated 15 February, 2005, the defendant assigned all of its rights to commissions from Westpac to THLG. This assignment became effective on 1 March, 2005; f. by Business Sale Agreement between the defendant and THLG, the parties recorded the terms of a sale and purchase of the defendants business to THLG. The purchase price was $260,011 which comprised $75,000 for plant and equipment, $1 for goodwill and $185,000 for book debts; g. having regard to the admissions made by Mr Christian at trial and the loan from Trailerhomes, the sale of the business of the defendant to THLG was at a substantial undervalue; h. by Deed of Novation and Assignment dated 23 May, 2006 THLG assigned all of its rights to commissions from Westpac to Trailerhomes. This assignment became effective on 1 April, 2006; i. By Deed of Loan Agreement made between Trailerhomes Pty Ltd, THLG and Mr Christian dated 1 May, 2006 THLG requested Trailerhomes to advance $973,818. Security for the loan included the assignment and novation of the Introducer's Agreement from THLG to Trailerhomes. 55. There is at least a prima facie case that the directions from the defendant to THLG Panel Lenders to pay commissions to THLG, the Deeds of Novation and Assignment and the Sale of Business Agreement were all transactions entered into to deprive the plaintiff of the fruits of its judgment. 56. The failure of the solicitors for THLG to answer the questions asked in relation to the payment of the loan from Trailerhomes gives rise to an inference that THLG intends to dissipate that fund. 57. Section 37A (1) of the Conveyancing Act, 1919 provides that every alienation of property with intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced. 58. Part 5.7B of the Corporations Act , 2001 contain provisions for recovering property or compensation for the benefit of creditors of an insolvent company by a liquidator. Sections 588FB, 588FC, 588 FE (3) (4) and (5) and 588FF of the Corporations Act , 2001 concern the avoidance of uncommercial and insolvent transactions by a corporation. 59. In the event the defendant is unable to satisfy the plaintiff's judgment, the plaintiff has at least a prima facie case against the defendant and THLG for the recovery of assets. It is unnecessary for the plaintiff to establish conclusively that, in later proceedings it would be able to secure the effective reversal of the asset stripping conduct. 60. Having regard to the defendant's failure to discover documents and the most recent novation and assignment there is a real and present danger of assets being further dealt with so that the courts process will be frustrated. 61. For these reasons, the court ought to grant mareva orders against THLG. 16 The opposing submissions put by Mr Rydon, solicitor, for THLG have been, firstly, that there is some evidence to suggest that for quite a period of time the plaintiff has been extraordinarily suspicious of the arrangements which may have been made or may have been contemplated as between the plaintiff to the proceedings 50106 of 2005 and other entities. That is essentially a submission that the plaintiff has sat on its hands for such a considerable period that it is inappropriate for the plaintiff to presently be granted anything in the form of interlocutory relief. To my mind, that form of submission, whilst it may ultimately have some sound prospects of success, is the type of submission which it is almost impossible for the Court in a swift hearing on a late afternoon in advance of an interlocutory hearing to fully treat with. It is taken into account in the assessment of the principled exercise of the Court's discretion, but on my reading of the materials this afternoon it does appear that particularly the affidavit of Mr Arraj throws up in high relief a poignance of the risk of the plaintiff's concerns being extremely well founded and well founded today. 17 The other matters which have been put forward by Mr Rydon involve the fact that there has never been asserted a direct cause of action, to which I have already referred, and the issues concerning the need for, so he has put it, a pleading. 18 In all the circumstances, I am persuaded that the principled exercise of the Court's discretion is to make an order broadly of order 2 sought in the notice of motion, but the order that the Court will make will be up to and including such date as is appropriate. The other orders will not be made this afternoon, and the proceedings can be readied for a full interlocutory injunction application as soon as is practicable, and that will also depend upon the Court's situation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.