AT Air Group Pty Ltd v Dieter Siewert (No 6) [2014] NSWSC 1777

Supreme Court New South Wales

Medium Neutral Citation: AT Air Group Pty Ltd v Dieter Siewert (No 6) [2014] NSWSC 1777 Hearing dates: 10 December 2014 Date of orders: 10 December 2014 Decision date: 10 December 2014 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Oral application to be relieved from undertakings dismissed with costs. Catchwords: PROCEDURE – undertakings to the court – application to be relieved from undertakings – where party giving undertaking claims impecuniosity – where no disclosure of how funds have been applied – held, heavy burden on applicant for relief from undertaking not discharged. Category: Procedural and other rulings Parties: AT Air Group Pty Ltd (first plaintiff) Ross Edward Seller (second plaintiff) Aquatic Air Pty Ltd (third plaintiff) Avtex Air Services Pty Ltd (fourth plaintiff) Dieter Siewert (first defendant) Lieselotte Siewert (second defendant) Heron Airlines Travel Pty Ltd (third defendant) Wingaway Air Pty Ltd (in liq) (fourth defendant) AT Air Group Pty Limited (in liq) (fifth defendant) Representation: Counsel: D K L Raphael (third plaintiff) B DeBuse (first and second defendants)

Solicitors: Gibsons Lawyers (third plaintiff) Marsdens Law Group (first and second File Number(s): 2012/169096

Judgment (ex tempore) 1. HIS HONOUR: On 1 December 2014, I made an order that unless by 15 December 2014 the plaintiffs had remedied their apparent breach of the undertaking contained in paragraph 4 of the orders made on 25 June 2012, by reducing the amount outstanding to the National Australia Bank secured on the mortgage over 13B Pearl Bay Avenue, Mosman, to $1.8 million or had by that date been relieved by order of the Court from that undertaking, the proceedings be stayed. I granted the plaintiffs liberty to apply on 48 hours' notice to be relieved from the said undertaking. 2. The substantive proceedings referred to in the order are set down for hearing before me for eight days commencing on 10 February 2015. The plaintiffs today apply to be relieved from the undertaking in question. In support of that, it relies on an affidavit of its director Ross Edward Seller dated 5 December 2014, which purports to depose to Mr Seller's and Aquatic's financial position and to show that they are impecunious and unable to comply with the undertaking. 3. While the material tendered shows current bank balances of no significance, it does not disclose how Aquatic or Mr Seller have dealt with their funds over the period while the undertaking has not been complied with, since about March or April of this year. 4. As I indicated in the course of argument, if the only default had been in respect of the $40,000 or so land tax debited to the mortgage account by the National Australia Bank, this might well have not been of much moment, as it might reasonably have been argued that that was an unforeseeable expense for which the plaintiffs might not have been expected to provide. However, it is the defaults in respect of the ongoing outgoings which the plaintiff undertook to service that are most troubling. 5. The evidence indicates that as at April 2011, Mr Seller disclosed to Westpac that he and his associated entities had assets of $10.2 million and liabilities of $4.3 million. He now says he is impecunious. I appreciate, as I have indicated in the course of argument, that he is engaged in other proceedings in which he is fully entitled to defend himself and for which purpose he is entitled to have recourse to his assets and resources. I appreciate also that the costs of these (civil) proceedings have been not insubstantial. However, a cursory inspection of the very limited documents put before the Court reveals a number of matters – which I raised with Mr Seller in the course of his cross-examination – that cause concern that all efforts that might have been made to comply with the undertaking were not made. 6. There has been no real attempt to disclose how, during the period of the default, the plaintiff or Mr Seller have applied their funds. In those circumstances, I do not think that the plaintiff has come close to discharging the considerable burden undertaken by a party that applies to be relieved from a solemn undertaking to the Court on condition of which an interlocutory injunction was granted. 7. Accordingly, I propose to dismiss the application with costs. However, bearing in mind the gravity of the consequences for Mr Seller's claim in the substantive proceedings, I will reserve to him the opportunity to make a further application on better evidence if it is available. 8. The Court therefore orders that: 1. The oral application of the third plaintiff to be relieved from its undertaking be dismissed. 2. The plaintiff pay the defendants costs of the application assessed in the sum of $5,500. 3. The plaintiff have liberty to renew the application by arrangement with my associate on reasonable notice to the defendant before 15 December 2014.