Anscor Pty Ltd & Ors v Zipside Pty Ltd & Ors [2000] QSC 190

.l .::),1n.,, c.<r nf' b ~'b~) oCbo( l9G State Reporting Bui·eau TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No S2337 of 2000 ANSCOR PTY LTD ACN 065 255 505 and ANNE SHIRLEY CORBETT and ANSCOR INVESTMENTS PTY LTD ACN 075 754 871 and THORNVILLE PTY LTD ACN 067 231 903 and CROFTBY DOWNS PTY LTD ACN 080 291 551 and 1 REVISED COPfES ISSUED State Reporting Bureau Date (y✓ I <f / t_.,~ First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant Tt:1qil11111L·: ,01J .12-11 -1_;rio F:,~: 1r17) .12-11 s::.12 -- 1 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) ZIPSIDE PTY LTD ACN 010845 093, AUSTRALIA-PACIFIC HOLDINGS PTY LTD ACN 011 065 133 AND MANBURY PTY LTD ACN 010 925 274 AS TRUSTEE FOR THE WILSON PENSION FUND BRISBANE .. DATE 31/03/2000 JUDGMENT 2 Respondent 10 '20 30 40 50 60 -- 2 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) HIS HONOUR: This is an application to remove five caveats particulars of which are set out in the originating application filed 16 March 2000. Counsel for the respondent conceded that the caveat particularised in paragraph 4 thereof, namely that numbered 703783929, was inappropriately lodged and should be removed. However, there was considerable argument addressed as to whether or not the other four caveats should be removed. The background to the lodging of the caveats is as follows. On 19 June 1998 White J granted a Mareva injunction in favour of the caveators against property of the present applicants. The critical words of the order were as follows; that the present applicants "be restrained by themselves, their servants or agents or otherwise until the trial of this action or earlier order from transferring, selling, disposing, charging, mortgaging, encumbering or otherwise dealing in any manner whatsoever with any of their money or assets (including those set out in the schedule hereto) and from removing any of their money or assets" from Australia. The parcels of land over which the four caveats in consideration have been lodged were particularised in the schedule to Justice White's order. Then some 18 months later on 17 December 1999 Justice MacKenzie made an order in the following terms: "The order of White J made on 19 June 1998 as amended be amended by inserting therein as an 3 JUDGMENT 10 '20 30 40 50 60 -- 3 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) additional paragraph that the restraint be limited to the sum of $650,000." Problems are created when a cap is imposed on a Mareva injunction. Some of those problems were highlighted by Lord Denning, Master of the Rolls, in delivering Judgment in Z Limited v A-Zand AA-LL (1982) 1 Queens Bench 558 at 576. It seems clear from considering what was there said, and from considering general principles, that the effect of imposing a cap on a Mareva injunction is that the party restrained is free to deal with any of that party's property provided that, to use the expression used in argument, there is left in the basket property having the designated value. Here, the present applicants, once the cap of $650,000 was imposed, were entitled to deal with any of the assets the subject of Justice White's order provided that there remained subject to the injunction property to the value of $650,000.00. It was in those circumstances that the caveators sought to rely on the provisions of section 122 ( 1) ( e) of the Land Title Act 1994 and lodge caveats. The caveats were lodged after the order of Justice Mackenzie on 24 December 1999. Two of the caveats, being those referred to in paragraphs 1 and 5 of the application, claimed an interest in fee simple and then stated the ground of the claim as being "pursuant 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) to the order of the Honourable Justice White of the Supreme Court of Queensland made on 19 June 1998 which order was varied by the order of the Honour Justice MacKenzie made on 17 December 1999 which order restrains each of the registered owners from transferring, selling, disposing, charging, mortgaging, encumbering or otherwise dealing with the properties described at item 3 above which restraint is limited to the sum of $650,000." The other two caveats, being those referred to in paragraphs 2 and 3 of the application, claimed an interest being "an equitable interest in fee simple as persons having the benefit of a subsisting Court order." Section 122 (1) (e) of the Land Title Act provides that a caveat may be lodged by "a person who has the benefit of a subsisting order of an Australian Court restraining a registered proprietor from dealing with a lot." Given what I have said previously as to the effect of imposing a cap on a Mareva injunction one can immediately see the difficulty,. The Mareva injunction as capped does not necessarily restrain these registered proprietors from dealing with the land. There must be an added element introduced before there is such a restraint, namely that there would be less than property valued at $650,000 in the basket. For that reason, 5 JUDGMENT 1 '· 10 20 30 40 50 60 -- 5 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) it seems to me, that strictly one cannot say that section 122(1) (e) covers this particular situation. Mr Cooper, senior counsel for the applicants, also referred to the technical problem created by section 121(2) (f) of the Land Title Act which requires the caveator to state the interest claimed by the caveator. While section 122 gives a right to lodge a caveat it does not create in the caveator any interest. It is clear that the caveator in those circumstances does not have a claim to an estate in fee simple, whether equitable or at law. So much was essentially conceded by Mr Daubney for the caveators. His submission then became that, if that was my principal concern, I should give leave to the caveators to lodge further caveats on the same grounds but redefining the interest being claimed. For the reasons I have already given that it would be inappropriate to do that. As I have said, the applicants are entitled to deal with such of the assets referred to in the schedule to the order of Justice White as still leaves subject to the injunction property valued at $650,000. The applicants would, of course, be at serious risk of being dealt with for being in contempt of Court if they should dispose of property such that there was something less than property valued at $650,000 left in the basket. 6 JUDGMENT I : 10 20 30 40 50 60 -- 6 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) Mr Cooper, in the course of submissions stressed that the applicants had been warned of the risks that were involved and he made the observation that if they were stupid enough to act contrary to the terms of the order then they could only expect to be dealt with severely by the Court. It is worth stating that, because that is precisely the position. The applicants are at risk of being dealt with severely if by disposing of property they should breach the terms of the Mareva injunction as capped. For all those reasons I am of the view that the caveats ought to be removed but I am of the view that that should be on condition that the applicants give to the respondents 14 days notice of any intention to deal with the blocks of land in question. So, the order of the Court will be: On condition that the applicants give to the respondents 14 days notice of intention to deal with the land presently the subject of the caveats referred to in paragraphs 1, 2, 3 and 5 of the application, order that the caveats particularised in paragraph 1, 2, 3, 4 and 5 of the application be removed forthwith. 7 JUDGMENT l: 10 20 30 40 50 60 -- 7 of 8 -- 31032000 Tl/JAP22 M/T 7412/2000 (Williams J) HIS HONOUR: I will just go through the order again. On condition that the applicants give to the respondents 14 days' notice of intention to deal with the land presently the subject of the caveats referred to in paragraphs 1, 2, 3 and 5 of the application, order that the caveats particularised in paragraphs 1, 2, 3, 4 and 5 of the application be removed forthwith. Order that the respondents pay the applicants' costs of the application to be assessed. 8 JUDGMENT l' lO 20 30 40 50 60 -- 8 of 8 --