Withersfield Pty. Ltd. v Kidman
[2008] QDC 112
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- Withersfield Pty. Ltd. v Kidman[2008] QDC 112
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Withersfield Pty. Ltd. v Kidman[2008] QDC 112
Withersfield Pty. Ltd. v Kidman[2008] QDC 112
[2008] QDC 112
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
WITHERSFIELD PTY LTD (ACN 010 515 278) | Applicant |
and | |
KYLIE MERYL KIDMAN | Respondent |
BRISBANE
DATE 03/04/2008
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules r 260A - circumstances in which a "Mareva" or "Freezing" order was made ex parte on an urgent originating application |
HIS HONOUR: This is an application for injunctive relief of the kind referred to in the UCPR in the rules surrounding r 260A (Freezing order) to protect the value presently in a bank account and in a house property to which the plaintiff company asserts that without its consent its assets, money specifically, have contributed at the doing of the respondent. This comes on as an urgent application which has not been served on her.
No material has been filed in the Court. Mr Pitman, appearing for the plaintiff company and, for the limited purpose of giving an undertaking as damages, for its director, the deponent Michael Russo has obtained the Court's leave to read and file an originating application, an interlocutory application seeking most of the same relief and an affidavit by Mr Russo.
The respondent, according to the affidavit, has been an employee of the company for some 10 years, starting in a clerical capacity but advancing a couple of years ago to the responsible and trusted position of General Manager. The roll of employees at the company, which runs a meat wholesaling business at Murarrie, is into double figures.
The company appeared to have less in kitty than should have been the case given the continuance of trading at accustomed levels. The respondent was entrusted with identifying the cause. She had nothing useful to report, it would seem, to Mr Russo, whose co-director is his wife, said from the Bar table to play a relatively inactive part.
It is now his belief that misappropriation by the respondent was occurring. He deposes to her having come into possession of certain items of property which he doubted she could afford on the basis of the remuneration from her employment.
In the early part of 2007, she and a gentleman became registered proprietors of the property referred to in the originating application for a recorded sale price of $322,500. That purchase is associated with a mortgage to RAMS Mortgage Corporation, a copy of which appears in the material. The respondent and Mr Brealey are registered as joint tenants.
As to incriminating evidence, Mr Russo has been able to download from the company's computer system referable to its internet banking what he says is an irregular transfer of $5564.04 from the company's account at the National Australia Bank to the respondent's account, 014218-577598721 at the ANZ Bank. The additional information on the print-out says "Wages". However, the Court is given to understand that the respondent's wages are subsumed in larger periodic payments covering numerous employees.
The cash disbursements journal said to be kept by the respondent identifies that claim, $5564, as freight for an overseas container.
Going back in time: on 13th September 2007, one finds another amount going from the company's account to the respondent's as wages, this time $3000. If I have not said so, that was recorded by the respondent, it would seem, in a document headed Account Transactions [Accrual] 1/07/2007 to 29/02/2008 as a direct debit in the interest of Mr and Mrs Russo. As I understand the evidence, it is to the effect that they did not get any benefit of that payment.
There was on the 16th April 2007 a transfer of a similar kind in the amount of $2000 as "Wages" for the respondent. In respect of that, there has not been time to assemble the company's internal record of that transaction, which the respondent may have made.
The same deficiency of material applies to a very recent transaction, this time for $6025.39, which went from the company's account to the respondent's as "Wages". I understand the position to be that this was not wages.
The company is in the position of not being able to estimate, at this stage, the extent of what, on the face of things, appears to be misappropriation by the respondent. There is vague evidence provided in Mr Russo's affidavit, suggesting that $50,000 of further payments recorded as going to him "appear, too, to have been paid to the respondent."
Further evidence is being sought of those matters. I do not know whether it is suggested - and I do not think it is - that a capital injection of $1.3 million, which Mr Russo says he was obliged to make to ensure the company's survival, is, to anything like the full extent of it, attributable to the respondent.
The originating application as originally made suffers the all too common failure to make it clear that the Court has jurisdiction by effectively limiting the ambit of the claim to $250,000. See Startune Pty Ltd v Ultratune Systems (Aust) Pty Ltd [1991] 1 QdR 192. Mr Pitman has agreed to the making of an amendment to remedy that deficiency.
There is another amendment which I invited, perhaps pedantically and unnecessarily, in paragraph 2, changing "the equity of" to "any interest in" in reference to the property. Those are the amendments made to the originating application. It is not necessary to make any amendments to the interlocutory application. The proposed draft order has been substantially amended to attend to concerns the Court had.
I have declined to make orders as sought in paragraph 6 which, concerningly to my mind, call on the respondent to provide evidence against herself of amounts she may have "misappropriated", likewise a list of her assets. Mr Pitman has sought provision of those things within seven days. It appears to me that the Court would not contemplate granting relief in those terms until there has been service on the respondent, to give her an opportunity to have her say. Those aspects can appropriately dealt with if it is desired to pursue them next Thursday, to which time the applications will be adjourned. The restraining orders today ought to be made only until 5.00 p.m. on that day.
Mr Pitman has located a decision of Wilson J, relied on because it has a factual background to an extent similar to the present one; this is Butt Haulage v. Jolliffe [2004] QSC 391; BC 200407901. One feature of that matter relevant here is that, as Mr Pitman accepts, the claim ought to proceed on the basis of pleadings. Rule 11(c) appears to justify the use of an originating application in the first instance.
At this stage, I do not think it is necessary today for the Court to direct that the matter proceed as a claim by the applicant delivering in it a statement of claim. Mr Pitman tells the Court he has all along been contemplating, if it be required, that those matters could be attended to next Thursday.
I know nothing about the financial standing of the applicant company from the point of view of an undertaking as to damages from it being sufficient. For that reason, I indicated I would require that undertaking to be supported by the personal undertaking of Mr Russo, which is recorded in the draft order. As noted, Mr Pitman has obtained instructions from him to appear as his solicitor in that connection.
I shall make orders in terms of the initialled draft.
The other thing that has to be added to it is something about service of all the material. What is the best way to do that?
MR PITMAN: Well, perhaps it needs to be an order, your Honour, if it is to be an undertaking on behalf of the firm.
HIS HONOUR: Well, he could give the usual undertaking as to damages supported by the personal undertaking of Michael Russo "and upon the applicant's solicitor undertaking to serve the applications and Mr Russo's affidavit with a copy of the order".
MR PITMAN: Yes. Perhaps‑‑‑‑‑
HIS HONOUR: That just means that if you decide to serve the order, you can't serve it without serving everything.
MR PITMAN: Yes.
HIS HONOUR: So will I add it as an extra undertaking?
MR PITMAN: I think that's the best way‑‑‑‑‑
HIS HONOUR: Yes, okay.
The applicant giving the usual undertaking and its solicitor undertaking to serve with this order copies of the applications and of Mr Russo's affidavit.
MR PITMAN: Your Honour, I was contemplating adding one other amendment to the originating application in the event that it doesn't receive a late claim, a statement of claim, and that was a provision perhaps 6(a) dealing with judgment. I haven't dealt with those yet.
HIS HONOUR: What do you want to say?
MR PITMAN: Simply that the applicant have judgment for the - sorry, in an amount to be determined for the misappropriated funds.
HIS HONOUR: So that will be 6A -----
MR PITMAN: 6A.
HIS HONOUR: Judgment in an amount to be determined within the above limit, what about that?
MR PITMAN: I'm content with that.
HIS HONOUR: How did you express it after that?
MR PITMAN: For the misappropriated funds.
HIS HONOUR: All right. You've used that term. That's your wording, not mine. "For the misappropriated funds." Okay. I'll grant leave to amend. You and my associate can go through this and sort things out, but if you need me back, I'll be waiting in my Chambers.
MR PITMAN: Thank you, your Honour.
HIS HONOUR: Okay.
THE COURT ADJOURNED AT 3.45 P.M.