In the matter of Statewide Office Furniture Pty Ltd

[2018] NSWSC 1393

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Equity
1. Equitable remedies
1. Restitution
1. whether funds dealt with contrary to Asset Preservation Order should be repaid CIVIL PROCEDURE

A transfer of property made in knowing breach of a freezing or asset preservation order is voidable for illegality, and equity may order restitution to restore the property to the transferor's ownership, provided both transferor and transferee had notice of the order.
The purpose of restitutionary relief ancillary to a freezing order is to restore the position that would have obtained absent the contravention — not to improve the applicant's position or penalise the contemnor — so credit must be given for amounts voluntarily repaid against the post-order debt.
Under s 444GA of the Corporations Act, where the only realistic alternative to a DOCA is liquidation in which shareholders would receive no distribution, compulsory transfer of shares at nominal value does not constitute unfair prejudice to members.