Case: Virgtel Ltd v Zabusky [2008] QSC 213
Outcome: cited
statement of all transactions made in all assets of all transactions made in all assets listed in subparagraphs (a) to (e) from 1 November 2000 until the date of service of this order. An order granting leave to service documents on the Respondents by email to James Conomos Lawyers email address James@jcl.com.au and/or the Respondents email addresses hvl@broadnetcommunications.co.uk and/or dokeb@skynet.be and/or global.agt@tiscali.nl and/or rgcbv@worldonline.nl. An order granting leave to represent Amalia Investments Ltd to the third Applicant assisted by the Second Applicant. BACKGROUND On 14 January 2009 Mr Zabusky filed a lengthy affidavit some 303 paragraphs in support of the interlocutory application. The affidavit sets out in some detail Mr Zabusky's evidence as to the background of these proceedings. No evidence has been filed by other witnesses in respect of these proceedings. I have already noted the identity of the applicants. The first respondent is a company incorporated and registered in the Netherlands; the second respondent is director of both the first and fourth respondents, and the third respondent is the wife of the second respondent. In summary, the applicants claim that, notwithstanding a shareholder protocol executed on 20 October 2000 between the first applicant and the fourth respondents, shares of the first applicant in the first respondent were fraudulently misappropriated as a result of actions of the second, third and fourth respondents in 2003 and 2004. The second and third applicants and the first respondent to these proceedings have already been parties to extensive litigation in the Supreme Court of Queensland in respect of matters arising from the breakdown in relations between the parties: Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316. Other than the claims of the applicants as to the conduct of the respondents in 2003 and 2004, which are not substantiated otherwise than in the affidavits of Mr Zabusky, this is not a case where, for example, there is compelling evidence that funds previously have been inappropriately dissipated (cf Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 4) [2007] FCA 500 , Bridges Financial Services Pty Ltd v Brown [2008] FCA 992). No evidence has been produced to me that the respondents are in any way at risk of disappearing or dissipating their assets, other than the suspicions of the applicants. Indeed in his affidavit sworn 30 January 2009 and filed in Court this morning, Mr Zabusky identified extensive properties in Europe and Africa, including real properties, which he submitted were assets of the respondents potentially available to satisfy a judgment against the respondents. I am fortified in this conclusion by the fact, as demonstrated both by the submissions of the applicants and the publicly-available decisions of the Supreme Court of Queensland in related litigation, the respondents have submitted themselves to the Supreme Court of Queensland over a period of several years (as is clear from such decisions as Virgtel Ltd v Zabusky [2006] QSC 66 , Virgtel Ltd v Zabusky [2006] QSC 241 , Virgtel Ltd v Zabusky [2008] QSC 213 and Virgtel Ltd v Zabusky (No 2) [2008] QSC 316) ; have, I understand from the submissions of the applicants, paid significant sums of money into the trust account of their solicitors as ordered by the Supreme Court; and currently retain solicitors in Queensland.