Birketu Pty Ltd v Westpac Banking Corporation (No.2) [2018] NSWSC 494

Supreme Court New South Wales

Medium Neutral Citation: Birketu Pty Ltd v Westpac Banking Corporation (No.2) [2018] NSWSC 494 Hearing dates: 13 April 2018 Date of orders: 24 April 2018 Decision date: 24 April 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that the Freezing Orders made by the Court on 29 September 2017 be amended with effect from 29 September 2017 by the deletion of Order 12; (2) Order that within 7 days, Westpac Banking Corporation and Sportsbet Pty Ltd, pay all funds standing to the credit of Brody Jack Clarke and which are presently subject to the Freezing Orders dated 29 September 2017 into Court to abide further order of the Court; (3) Order that upon full compliance with Order 2 above, the Freezing Orders dated 29 September 2017 be discharged; (4) Grant leave pursuant to r12.1 of the Uniform Civil Procedure Rules 2005, to Birketu Pty Ltd and WIN Corporation Ltd, if so advised, to discontinue the proceedings against all defendants except the fifth defendant; (5) Order that the Notices of Motion filed by Birketu Pty Ltd and dated respectively 14 November 2017 and 8 March 2018 be otherwise dismissed; (6) Order that the hearing of Order 5 of Mr Clarke's Notice of Motion dated 7 February 2018 stand over for directions on 27 April 2018 in the Commercial List, together with the proceedings generally. (7) Order that Mr Clarke's Notice of Motion dated 7 February 2018 be otherwise dismissed; (8) Order Mr Clarke to pay Birketu Pty Ltd's costs of its Notice of Motion dated 14 November 2017, its Notice of Motion dated 8 March 2018 and his own Notice of Motion dated 7 February 2018. Catchwords: CIVIL PROCEDURE – interlocutory orders – Mareva injunctions – whether earlier freezing orders should be amended – where plaintiff alleges fifth defendant acted fraudulently in obtaining money owned by the plaintiff – whether fifth defendant should be entitled to ordinary living expenses and reasonable legal expenses from the trust property held in frozen bank accounts – where fifth defendant asserts a limited proprietary claim – where no lawful entitlement to money held in frozen accounts – consideration of priority in mixed funds Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Cases Cited: Barnes v Addy (1874) LR 9 Ch App 244 Black and Black v Freedman & Co [1910] HCA 58; (1910) 12 CLR 105 Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 Commonwealth of Australia v Jansenberger (Supreme Court of Victoria, 3 October 1985, unrep) Deputy Commissioner of Taxation v Bollands [2012] FCA 1050 Frigo Mario v Culhaci Daniel [1998] NSWCA 88 Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 Halifax v Chandler [2001] EWCA Civ 1750 Harrison Partners Constructions Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317 Heperu Pty Ltd v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230 Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All ER 158 His Eminence Metropolitan Petar v The Macedonian Orthodox Community St Petka Inc [2006] NSWCA 277 Polly Peck International Plc v Nadir (No 2) [1992] 2 Lloyd's Rep 238 Re Hallett's Estate (1879) 13 Ch D 696 Re Oatway; Hertslet v Oatway [1903] 2 Ch 356 Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361 Sundt Wrigley Co Ltd v Wrigley (Court of Appeal (UK), 23rd June 1993, unrep) Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Birketu Pty Ltd (P) Westpac Banking Corporation (D1) Sportsbet Pty Ltd (D2) Tabcorp Holdings Ltd (D3) Betfair Pty Ltd (D4) Brody Jack Clarke (D5) TAB Ltd (D6) Tabcorp Wagering (Vic) Pty Ltd (D7) Tabcorp ACT Pty Ltd (D8) Representation: Counsel: D B Studdy SC / A R R Vincent (P) R Laban (D1) Submitting (D2) No appearance (D3, D4, D6, D7, D8) G Thomas (D5)