FEDERAL COURT OF AUSTRALIA

Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 792

THE COURT ORDERS THAT:

ORDER MADE 8 JULY 2011

1.    (a)    The application for this order is made returnable immediately.

    (b)    The time for service of the application and supporting affidavit is abridged and service is to be effected by 9.00 pm on 13 July, 2011.

2.    Subject to the next paragraph, this order has effect up to and including 15 July, 2011 ("the Return Date"). On the Return Date at 10.15 am there will be a further hearing in respect of this order before Justice Dodds-Streeton.

3.    Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.

4.    In this order:

(a)    Applicant, if there is more than one applicant, includes all the applicants;

(b)    you, where there is more than one of you, includes all of you, and includes you if you are a corporation;

 (c)    third party means a person other than you and the applicant;

(d)    unencumbered value means value free of mortgages, charges, liens or other encumbrances.

5.    (a)    If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

    (b)    If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

FREEZING OF ASSETS

6.    (a)    You must not remove from Australia or in any way dispose of, deal with or diminish the value of your assets which are in Australia (Australian assets) up to the unencumbered value of $500,000 (the relevant amount).

    (b)    if the unencumbered value of your Australian assets exceeds the relevant amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the relevant amount.

   (c)    It the unencumbered value of your Australian assets is less than the relevant amount, and you have assets outside Australia (ex-Australian assets) -

       (i)    you must not dispose of, deal with or diminish the value of any of your Australian and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the relevant amount; and

      (ii)    you may dispose of, deal with or diminish the value of any of your Australian and ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the relevant amount.

7.    For the purpose of this order -

(a)    Your assets include:

      (i)    all your assets, whether or not they are in your name and whether or not they are co-owned;

      (ii)    any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and

     (iii)    Funds held in bank accounts

(b)    the value of your assets is the value of the interest you have individually in your assets.

PROVISION OF INFORMATION

8.    Subject to paragraph 9, you must at or before the further hearing on the return date (or within such further time as the Court may allow) swear and serve on the applicant and file in this Court an affidavit setting out to the best of your ability all your assets and liabilities within Australia and worldwide, giving their value location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets and include in such affidavit where practicable, copies of all supporting documents including but not limited to current statements for any bank account, valuations, and motor vehicle registration records.

9.    (a)    This paragraph 9 applies if you are not a corporation and you wish to object that compliance with paragraph 8 may tend to incriminate you or make you liable to a civil penalty.

    (b)    This paragraph 9 also applies if you are a corporation and all persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty.

   (c)    You must at or before the further hearing on the return date (or within such further time as the Court may allow) notify the applicant in writing that you or all the persons referred to in sub-paragraph (b) wish to take such objection and identify the extent of the objection.

   (d)    If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible without disclosure of the material in respect of which the objection is taken.

  (e)    If you give such notice and the applicant wishes, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in sub-paragraph (b) wish to place before the Court in support of the objection

EXCEPTIONS TO THIS ORDER

10.    This order does not prohibit you from -

(a)     paying up to $1,000 a week on ordinary living expenses;

(b)     paying your reasonable legal expenses;

(c)     in relation to matters not falling within sub-paragraphs (a), (b) dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this Order was made, provided that before doing so he gives the applicant, if possible, at least two working days written notice of the particulars of the obligation.

11.    You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may thereafter order that the exceptions are varied accordingly.

COSTS

12.    The costs of this application are reserved.

PERSONS OTHER THAN THE APPLICANT AND RESPONDENTS

13.    Setoff by banks

This order does not prevent any bank from exercising any right of set-off it has in respect of any facility which it gave you before it was notified of this order.

14.    Bank withdrawals by the respondents

No bank need inquire as to the application or the proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.

15.    Persons outside Australia

(a)    Except as provided in sub-paragraph (b) below, the terms of this order do not affect or concern anyone outside Australia.

(b)    The terms of this order will affect the following persons outside Australia;

     (i)     you and your directors, officer, employees and agents (except banks and financial institutions);

     (ii)    any person (including bank and financial institution) who¬

                 (A)    is subject to the jurisdiction of this Court;

               (B)    has been given written notice of this order, or has actual knowledge of the substance of this order and of his requirements; and

               (C)    is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and

     (iii)    any other person (including bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.

16.    Assets located outside Australia

Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made upon your or the third party's application, reasonable written notice of the making of the application is given to the applicant.

ORDER MADE 15 JULY 2011

1.    The freezing order made on 8 July 2011 against Green Energy Management Solutions Pty Ltd be discharged.

2.    The freezing order made on 8 July 2011 against Raymond David Whaling be discharged.

3.    The freezing order made on 8 July 2011 against Sandra Ann Whaling be discharged.

4.    The freezing order made on 8 July 2011 against Dean Aaron Wade be discharged.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    On 8 July 2011, on the ex parte application made by a notice of motion dated 7 July 2011, the applicant, Complete Technology Integrations Pty Ltd (“Complete”) I made freezing orders against the respondents, Green Energy Management Solutions Pty Ltd (“Gemsol”), Raymond Whaling, Sandra Whaling and Dean Wade in the terms set out above (“freezing orders”).

2    On 15 July 2011, I ordered that the freezing orders against all respondents be discharged (“discharge orders”). My reasons for making the freezing orders and discharge orders are set out below.

EVIDENCE ON EX PARTE APPLICATION

3    The ex parte application for freezing orders heard on 8 July 2011 was supported by the affidavit of Alexander Dunlop, a solicitor for Complete, affirmed on 7 July 2011.

4    As appears from Mr Dunlop’s affidavit, Complete is a company involved in providing building automation, lighting control and energy management services, with offices in New South Wales, the ACT, Victoria, Queensland and Western Australia. Its managing director is Peter Garrett.

5    The second and fourth respondents, Mr Whaling and Mr Wade, were formerly employees of Complete who ceased their employment on 17 March 2010. The third respondent, Sandra Whaling, is Mr Whaling’s wife.

6    The first respondent, Gemsol, is a company registered on 13 January 2010, of which the individual respondents are the founding directors and sole shareholders. Its principal place of business, 5 Nugal Place, Isabella Plains, ACT, is the residential address of the Whalings. Mr Wade’s residential address is 9 Nugal Place, Isabella Plains, ACT.

7    Complete commenced a proceeding in this Court against the respondents by application and statement of claim dated 26 November 2010, alleging that the respondents had variously infringed the its registered trademarks and copyright, engaged in misleading and deceptive conduct and passing off, misused confidential information and breached their contractual and fiduciary duties.

8    Mr Dunlop deposed that the employment agreements of Messrs Whaling and Wade contained non-compete and confidentiality clauses. He deposed at length, principally on information from Mr Garrett, to the alleged conduct of Messrs Whaling and Wade up to and including the termination of their employment on 12 March 2011, including establishing Gemsol, registering Complete’s former telephone number to Gemsol, commenting about Mr Whaling’s impending departure from Complete, dealing with or contacting Complete’s clients, providing lists of Complete’s clients to Gemsol, pursuing maintenance of an “automated lighting control” product promoted and used by Complete, and refusing to sign undertakings to adhere to the confidentiality and non-compete obligations in their employment contracts.

9    Further, Mr Dunlop deposed (relying, in particular, on subpoenaed documents) to the conduct of Messrs Whaling and Wade during the non-compete period (three months after termination) using Complete’s trademarks and giving quotations to clients, including immediately after the non-compete period. Mr Dunlop deposed that Mr Garrett believed that Messrs Whaling and Wade sent quotations to Complete’s clients indirectly, through a third party, during the non-compete period. He also deposed on information and belief to the respondents’ alleged misuse of confidential information and to the respondents’ conduct after 18 June 2010, evidenced after the third round of discovery and the production of documents on subpoena.

10    Mr Dunlop deposed to searches of the respondents’ assets which revealed that Gemsol had issued invoices totalling $664,967 from the date of its incorporation up to 31 December 2010. Gemsol’s financial records for 2011 were not discovered. Mr Dunlop was unaware of any assets held by Gemsol.

11    Searches revealed that as at June 2011, Mr Whaling owned real property at 5 Nugal Place, Isabella Plains, ACT, subject to a mortgage to National Australia Bank, with a current estimated value of $430,000 to $470,000. Mr Wade, as a joint tenant with another person, owned 9 Nugal Place, Isabella Plains, ACT, subject to a mortgage with Westpac, which also had an estimated value of $430,000 to $470,000.

12    Mr Dunlop’s searches revealed that save for their shares in Gemsol, the individual respondents did not own any shares.

13    Mr Dunlop exhibited an advertisement for the sale of a camper vehicle for $20,000 to $22,000 dated 7 June 2011 by “Ray”, whom he inferred to be Mr Whaling. An inquiry on 7 July 2011 indicated that the vehicle had been sold and that the vendor might offer another vehicle for sale.

14    Mr Dunlop deposed that on 17 June 2011 at a directions hearing before Kenny J, Mr Wade, who attended by telephone, stated that the respondents were no longer legally represented, that it was most unlikely that they could afford to continue the litigation and meet any judgment made against them, as well as any award of costs, and that all the respondents were seeking to finalise advice from insolvency practitioners regarding their financial situation. Mr Wade stated that the respondents had not made any decision to liquidate at that stage.

15    At the directions hearing, Mr Wade also indicated that the respondents might not contest the matter. Counsel for Complete expressed concern as to the respondents’ possible insolvency and stated that it was anxious to obtain a judgment it could enforce as an unsecured creditor.

16    An application for summary judgment was fixed for hearing on 22 July 2011. Before me, counsel for Complete stated that that date has been extended by consent.

17    Mr Dunlop further deposed that:

I am informed by Mr Garrett and believe that as a result of the Respondents’ statements at the case management conference and directions hearing, in the context of the Respondents’ alleged behaviour the subject of this proceeding, the Applicant holds real and significant fears as to the bona fides of the Respondents’ claims to pending bankruptcy and insolvency, and is concerned that the Respondents’ actions may be motivated by an intention to frustrate the course of justice.

Loss and damage

I am informed by Mr Garrett and believe that by reason of the conduct of the respondents referred to above the Applicant has suffered loss and damage to its operations in the Australian Capital Territory and New South Wales of approximately $500,000.

Risk of dissipation

I have been further informed by Mr Garrett and believe that the Respondents’ conduct prior to and since the commencement of this proceeding have caused the Applicant to be concerned that having regard to all the circumstances, there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because the assets of the respondents may be removed from Australia or from a place inside or outside Australia or disposed of, dealt with or diminished in value.

WHETHER FREEZING ORDER JUSTIFIED ON EX PARTE APPLICATION

18    The principles governing the grant of a freezing order are well established and were usefully summarised by Tamberlin J in KGL Health Pty Ltd v Mechtler [2007] FCA 1410 at [3] to [5] as follows:

In order to obtain a freezing order the applicants must establish in accordance with O 25A of the Federal Court Rules 1979 (Cth) that they have a good arguable case on a prospective cause of action that is justiciable in the Federal Court. Where this is established the Court has a broad discretion to make a freezing order against a prospective judgment debtor if it is satisfied in all the circumstances that there is a danger that the prospective judgment will be wholly or partly unsatisfied because that person’s assets could be disposed of or diminished in value: see O 25A r 5. Order 25A r 6 provides that nothing in O 25A diminishes the inherent or implied jurisdiction of the Court to make a freezing order or ancillary order.

The nature of the remedy was described by Gleeson CJ in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321–322 in these terms:

The remedy is discretionary, but it has been held that, in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant’s absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.’

The issues for determination on this application, therefore, are whether:

(i)    there is a prima facie cause of action made out against the respondents;

(ii)    there is a danger that by reason of the respondents disposing of or removing the assets the prospective judgment debt will not be satisfied; and

(iii)    if the forgoing requirements are each satisfied, the Court’s discretion to grant the remedy should be exercised in all the circumstances.

19    In the present case, at the ex parte application, I was satisfied on the material that there is a prima facie cause of action against the respondents.

20    I was also satisfied that the evidence, albeit untested (and perforce unanswered by the respondents, given the ex parte nature of the application) established an appreciable risk that, by reason of the respondents disposing of or removing the assets, the prospective judgment (estimated at $500,000) would not be satisfied.

21    Complete submitted, in that context, that as in Victoria University of Technology v Wilson [2003] VSC 299 (“Victoria University”), the present case involved allegations of dishonesty against the employee respondents, including secretive and conspiratorial conduct during their employment, a lack of candour in dealing with Mr Garrett, their solicitation of work during the non-compete period and causing Gemsol to complete work won by Complete.

22    In Victoria University, Redlich J accepted that in some cases it may be appropriate to infer a risk of dissipation from the nature of a plaintiff’s prima facie case, including where it involved allegations of serious dishonesty. In Victoria University, as in the present case, the plaintiff made allegations of secretive conduct and a lack of candour against the defendants, who were university employees said to have developed a patent in the scope of their employment, and appropriated it in breach of fiduciary duty. It was therefore alleged that the patent was held on trust for the university.

23    While Redlich J did not regard the conduct alleged in Victoria University as gross or serious dishonesty of the kind relied on in other more extreme cases, his Honour observed that an email sent by one of the defendants suggested that they contemplated a sale of the invention, programs or software through a sale of the shares in a company.

24    His Honour concluded that while the case was borderline, there was “a reasonable and sufficiently prominent inference open, on the untested evidence, that there is a realistic risk that assets, the subject of the dispute, will be dissipated” at [38]. Further, albeit his Honour was not satisfied that such an occurrence was more likely than not, he observed that it was unnecessary to be so satisfied.

25    His Honour took into account, in relation to the balance of convenience, that the property at risk of a proposed transfer was trust property the subject of the dispute.

26    In the present case, the allegations of conspiracy, lack of candour and secretiveness, did not amount to allegations of gross or serious dishonesty sufficient in itself to support an inference of risk or dissipation.

27    Counsel for Complete emphasised the many instances of alleged secretive or surreptitious conduct by the second and third respondents during their employment and Mr Whaling’s provision of highly confidential information to a third party, which Mr Whaling later stated that he had destroyed. In counsel’s submission, such conduct (which was evidenced by discovered or subpoenaed documents) constituted a conspiracy with a third party, Clipsal, to hide material from Complete, and indicated a significant level of dishonesty, from which it could be inferred that the respondents, or some of them, would not be trustworthy in relation to the litigation.

28    Counsel also relied on the respondents’ performance of work for which Complete had quoted, Mr Whaling’s preparation of the list of Complete’s customers without admitting that he had downloaded it to some of the respondents’ home computers, inconsistently advising Complete, holding off quotes until immediately after the non-compete period, and soliciting quotes during the non-compete period.

29    Although there was no evidence of a plan, express or implied, to dissipate or dispose of assets or even of any actual or intended sales save for the probable sale of a vehicle, the allegations in the present case involved a pattern of dishonesty and underhanded, surreptitious or conspiratorial conduct, albeit not of a gross kind. While not in itself a sufficient basis from which to infer a serious risk of dissipation of assets, on the ex parte application, I also took into account the recent assertion of the respondents’ possible impending insolvency and inability to satisfy a judgment, although:

(a)    Gemsol (apparently operating from the Whaling’s residence) had issued invoices totalling over $600,000 in less than a year of operation, thus suggesting receipt of substantial income, and its current assets and financial circumstances, including net income for 2011, were unknown; and

(b)    the second and third respondents were the proprietors of real property of substantial value, albeit subject to mortgages, which they had owned for some years.

30    Entry into an insolvency regime is not tantamount to the dissipation of assets or putting them beyond the reach of creditors. I nevertheless concluded that while the case was, as in Victoria University, borderline, the possible imminence of invocation of an insolvency regime, in the context of the respondents’ apparent current ownership of substantial assets and the generation of substantial income, together with the allegations of significant dishonesty, established, in the preliminary context of the ex parte application, a feeling of unease and an appreciable risk that diminution, dissipation, concealment or disposal of assets was under way, or would occur.

31    In the circumstances, as the hearing of the application for summary judgment had been adjourned for some weeks, the balance of convenience favoured making a freezing order (of short duration permitting time for service interstate) including, in particular, the requirement that the respondents depose as to their assets and liabilities.

DISCHARGE OF FREEZING ORDER

32    Prior to the return of the matter on 15 July 2011, the respondents filed and served the following affidavits:

(a)    The affidavit of Dean Wade affirmed on 14 July 2011.

(b)    The affidavit of Sandra Whaling affirmed on 15 July 2011.

(c)    The affidavit of Raymond Whaling affirmed on 15 July 2011.

33    The applicant filed and served the affidavit of Joel Brady Masterson sworn on 15 July 2011.

34    Mr Masterson, of the solicitors for the applicant, deposed to a telephone call from Neil Hannon of the solicitors for the liquidators of Gemsol. Mr Masterson exhibited a letter of Mr Hannon dated 14 July 2011 advising that Gemsol had been wound up pursuant to a resolution of members made on 13 July 2011, which attached a summary of affairs signed by the directors, indicating that Gemsol had assets with an estimated realisable value of $46,393.91, preferential creditors owed $19,519.00 and unsecured creditors in the amount of $304,532.00.

35    Mr Hannon sought that the applicant consent to the vacation of the freezing orders so that the administration of Gemsol could proceed in an orderly fashion.

36    By their affidavits, Messrs Whaling and Wade and Mrs Whaling objected to the making of the freezing order, stated that they had terminated their legal representation to save costs and stated that the hearing of the summary judgment had been adjourned at the instance of the applicant, which had sought the respondents’ consent.

37    Messrs Whaling and Wade deposed that they were currently unemployed. Mr and Mrs Whaling deposed to their joint ownership of modest amounts in bank accounts, a vehicle of very modest value and a residence valued at $490,000 subject to mortgages securing a total debt of $445,524.

38    Mr Wade deposed that he was engaged in Family Court proceedings with his former spouse and had moved to Victoria to reside near his parents. He deposed to ownership of property jointly with his former spouse comprising a residence valued at $510,000 subject to a mortgage securing $350,000, two vehicles of modest value, bank accounts with effectively nil balances, additional joint liabilities of about $80,000 and some further personal liabilities.

39    Mr Wade deposed that he had not exhibited any supporting documentation as his effects were in transit following his move to Victoria.

40    On 14 July 2011, Mrs Whaling advised the court that the Whalings had only been served late on 13 July 2011 and that none of the respondents would be able to attend the hearing on the following day. At the hearing on 15 July 2011, the applicant sought the continuation of the freezing orders against the individual respondents and an order that Mr Wade provide supporting documentation for the assertions in his affidavit.

41    I nevertheless concluded that the applicant had not discharged its onus of satisfying the court that the freezing orders should be continued.

42    While I was satisfied that the applicant had established a prima facie case, as noted above, I considered that although a combination of matters had generated a feeling of unease and appreciable risk that assets would be dissipated, sufficient at the stage of the ex parte application to justify a short freezing order, it was from the outset a marginal case. The material in the individual respondents’ affidavits, while indicating that they had few assets, had weakened, rather than fortified, the basis for apprehension of appreciable risk their assets would be diminished, dissipated or disposed of to frustrate the satisfaction of a prospective judgment against them. Further, circumstances had changed, in that the corporate respondent was now in liquidation and under the control of its liquidators: see Rafferty v Time 2000 West Pty Ltd (No 7) [2011] FCA 405 at [55].

43    It is well established that a freezing order is an extraordinary interim remedy, which significantly fetters a party’s freedom to deal with assets prior to any judgment against it and constitutes a serious invasion of the liberty of those subject to it: see Uni-Span Height Safety Pty Ltd v Gold Coat Guardrail Pty Ltd [2009] FCA 819 at [21]. A freezing order is therefore an exceptional remedy: see Curtis v NID Pty Limited [2010] FCA 1072 at [16].

44    In the present case, the evidence before the court on the return of the application did not establish a real or appreciable risk or danger that the individual respondents would deal with, dissipate or dispose of their assets to defeat or frustrate a prospective judgment and, since the making of the orders ex parte, liquidators had assumed control of the assets of the corporate respondent.

45    I therefore discharged the freezing orders.

Associate:

Dated:    15 July 2011