Perry Herzfeld on Mareva orders over foreign land in the Supreme Court of Victoria (via conflictoflaws.net)

Perry Herzfeld on conflictoflaws.net discusses the recent Supreme Court of Victoria decision in Talacko v Talacko [2009] VSC 349, involving a Mareva-type order, restraining the defendants from disposing of properties in the Czech Republic, Slovakia and Germany in  pending prroceedings before the Austrialian court. Here is a brief excerpt:
 
“…The plaintiffs sought Mareva-type orders against Jan Talacko and his sons, restraining them from disposing of the properties and directing them to take steps to withdraw any documents which had been filed to register the gifts of the properties. Kyrou J’s judgment contains a useful summary of the considerations relevant to making Mareva orders over foreign land (at [35]):

(a) Provided that the defendant is subject to this Court’s jurisdiction, this Court has power to make a Mareva order in respect of foreign assets and there is no rule of practice against granting such an injunction.
 
(b) Whether the assets were in the jurisdiction at the time the proceeding was commenced, or indeed have ever been within the jurisdiction, does not affect whether the court has jurisdiction to make a Mareva order or its practice in relation to such orders. However, it may be relevant to the exercise of the discretion.

(c) It has been said that the discretion to make a Mareva order in respect of foreign assets should be exercised with considerable circumspection and care. The suggestion in one Australian case that the jurisdiction should only be exercised in ‘exceptional cases’, which appears to broadly reflect the English position, has not been followed consistently in the Australian cases dealing with the exercise of discretion. With respect, I do not accept that the discretion can only be exercised in exceptional cases. …

(d) The discretion will be exercised more readily after judgment.

His Honour noted (at [36]) that these ‘principles have, in broad terms, also been applied in relation to mandatory injunctions requiring parties to do acts with an overseas element’. It is worth noting that his Honour also observed that the claim against Jan Talacko fell outside the Mocambique rule, being based on breach of terms of settlement arising from allegations of breach of contract, trust and fiduciary duty…”.

See also, my article: Staking Claims Against Foreign Defendants in Canada: Choice of Law and Jurisdiction Issues Arising from the in Personam Exception to the Mocambique Rule for Foreign Immovables (2009) 35 Adv. Q. 230 (the downloadable SSRN version is a pre-publication draft, but the published version is available on Quicklaw).

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