This article was written by Emma Costello and David Cowling.
The special purpose liquidators of Queensland Nickel Pty Ltd (in liq) have been successful in their application in the Supreme Court of Queensland for freezing orders against Mr Clive Palmer and several companies which he controls.
The special purpose liquidators of Queensland Nickel Pty Ltd (in liq) (the plaintiffs) applied for freezing orders and ancillary orders against Mr Palmer and a group of companies which Mr Palmer controlled (the defendants). As the judgment of Bond J explained, an applicant for a freezing order must demonstrate:
- a good arguable case against the defendant;
- a danger or risk that steps might be taken with the result that the Court's execution and enforcement process would be frustrated, in the sense that any judgment of the Court will be wholly or partly unsatisfied; and
- it is in the interests of justice that the power to make a freezing order be exercised.
Did the plaintiffs have a good arguable case?
Mr Palmer submitted that the plaintiffs had not established a good arguable case against him. Justice Bond rejected this submission, finding that the plaintiffs had "a good arguable case for such relief against Mr Palmer as would justify the amounts sought to be made the subject of freezing orders against him". Justice Bond even went so far as to say that "some parts of that case are matters in respect of which I am prepared to say the plaintiffs' case is a strong arguable case".
The corporate defendants did not dispute that the plaintiffs had established a good arguable case against them.
Was there a relevant risk?
Justice Bond found that there were "particular aspects of Mr Palmer's previous conduct which would lead a prudent, sensible commercial person to infer that there is a real risk that he would take, or cause to be taken, steps outside court processes to attempt to frustrate or inhibit the prospects of enforcement or execution of any significant judgment against him or any of his companies".
While Bond J did not find that there was a real risk that Mr Palmer would abscond, his Honour found that there was a "real risk of Mr Palmer entering into colourable transactions which, when discovered, would operate to inhibit or to frustrate enforcement or execution processes". His Honour did not consider it to be an answer to say that these transactions might be capable of being unwound by "lengthy and expensive insolvency processes".
Did the interests of justice favour the making of the orders sought?
Justice Bond ultimately found that it was in the interests of justice that orders should be made. His Honour said that the question was "whether it is in the interests of justice that the power be exercised, in particular bearing in mind that the jurisdiction must be exercised with a high degree of caution and with proper consideration for the nature of the impact on the persons affected".
His Honour found, as part of the consideration of all the relevant factors, that there was a significant public interest in protecting the plaintiffs against the risk to the integrity of the Court's processes and there were also significant private interests to be protected. His Honour also found that the evidence of the suggested damage to the businesses conducted by the defendants was "unpersuasive". In particular, his Honour was unpersuaded by Mr Palmer's argument that if orders were made he would make decisions not to proceed with business opportunities, and that the adverse consequences of those decisions made by him should be regarded as prejudice caused by the orders. His Honour said:
"If Mr Palmer has the wealth that he says he has, then the harm caused by the making of the orders to his business interests and those of his companies, is not likely to [be] significant". (emphasis removed)
On balance, the interests of justice favoured the grant of the relief sought.
The judgment demonstrates the willingness of the Court to take proactive steps in appropriate cases to ensure that the interests of creditors are protected in liquidations which are likely to involve significant litigation before there will be a pool of assets available for distribution amongst the creditors.