Substituted Service
Mareva acts in personam, therefore would act against Mrs Tinkler - not the trust. * Bushan Steel
[96] UCPR 25.14 (which was introduced in the court on 5 June 2006) is similar in terms to Federal Court Rule, Order 25A, r 5, (which came into operation on 1 August 1979).
[97] I have not been referred to any cases that have directly considered the questions raised in this case in respect of UCPR 25.14.
[98] The approach adopted by judges in the Federal Court to identical or substantially identical provisions as are contained in UCPR 25.14 ought to guide how this court should approach its task. As the High Court said in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151–152 [135]:
"Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principles apply in relation to non-statutory law."
[152] This court has always had the ability (if need be by granting a freezing order) to prevent an abuse or frustration of its process. Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 389–390 [12] and 393 [26], Jackson v Sterling Industries Ltd (1987) 162 CLR 612.
[153] In granting relief, it is not the case that relief be granted only if there is shown a positive intention to frustrate any judgment. Cardile at 394.
[154] As their Honours Gaudron, McHugh, Gummow and Callinan JJ said in Cardile at 405–406 [57]–[58]:
"What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word “may”, be appropriate, assuming the existence
[96] UCPR 25.14 (which was introduced in the court on 5 June 2006) is similar in terms to Federal Court Rule, Order 25A, r 5, (which came into operation on 1 August 1979).
[97] I have not been referred to any cases that have directly considered the questions raised in this case in respect of UCPR 25.14.
[98] The approach adopted by judges in the Federal Court to identical or substantially identical provisions as are contained in UCPR 25.14 ought to guide how this court should approach its task. As the High Court said in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151–152 [135]:
"Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principles apply in relation to non-statutory law."
[152] This court has always had the ability (if need be by granting a freezing order) to prevent an abuse or frustration of its process. Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 389–390 [12] and 393 [26], Jackson v Sterling Industries Ltd (1987) 162 CLR 612.
[153] In granting relief, it is not the case that relief be granted only if there is shown a positive intention to frustrate any judgment. Cardile at 394.
[154] As their Honours Gaudron, McHugh, Gummow and Callinan JJ said in Cardile at 405–406 [57]–[58]:
"What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word “may”, be appropriate, assuming the existence