Should only make an order if just and equitable to do so taking into consideration the interest of those involved and third parties Is there a reasonable likelihood that the claim will be established? Standard is lower than a strong prima facie case Standard is higher than just determining if on the evidence there is a genuine issue to be tried – must show a reasonable likelihood that it will succeed Are there reasonable grounds for believing that the defendant is dealing with its exigible property or is likely to deal with that property otherwise than for the purpose of meeting its reasonable and ordinary business or living expenses? A rigourous specific requirement What is the usual or regular type of transaction that is engaged in by people in the defendant’s business Are there reasonable grounds for believing that the defendant is dealing with its exigible property or is likely to deal with that property in a manner that would be likely to seriously hinder the claimant in the enforcement of a judgment against it? There must be substance to an allegation founded in evidentiary support Look at: (1) timing of creation of the debts, (2) whether debt was created out of the ordinary course of business, (3) whether assets have disappeared, (4) whether assets have been sold to non-arm’s length parties for less than market value, (5) whether the value of the defendant’s exigible assets greatly exceeds the plaintiff’s claim NOTE: Where allegations of fraud as determined to have a reasonable foundation, it is not necessary to prove that actual dissipation of assets has occurred to meet this test (grounds for an inference) Mareva Injunction Injunction preventing the defendant from disposing of asset pending a judgment Same objective as an attachment order – asset-freezing order Governed by the Judicature Act s. 13(2) How do you get a Mareva Injunction? Implicit in s. 13(2), by application to the Court Court of Queen’s Bench (s. 1) Or on appeal Court of Appeal (s. 1) DOES NOT include Master in Chambers – their power does not include injunctions (Court of Queen’s Bench Act s. 9(3)(d)) When can application be made?
Should only make an order if just and equitable to do so taking into consideration the interest of those involved and third parties Is there a reasonable likelihood that the claim will be established? Standard is lower than a strong prima facie case Standard is higher than just determining if on the evidence there is a genuine issue to be tried – must show a reasonable likelihood that it will succeed Are there reasonable grounds for believing that the defendant is dealing with its exigible property or is likely to deal with that property otherwise than for the purpose of meeting its reasonable and ordinary business or living expenses? A rigourous specific requirement What is the usual or regular type of transaction that is engaged in by people in the defendant’s business Are there reasonable grounds for believing that the defendant is dealing with its exigible property or is likely to deal with that property in a manner that would be likely to seriously hinder the claimant in the enforcement of a judgment against it? There must be substance to an allegation founded in evidentiary support Look at: (1) timing of creation of the debts, (2) whether debt was created out of the ordinary course of business, (3) whether assets have disappeared, (4) whether assets have been sold to non-arm’s length parties for less than market value, (5) whether the value of the defendant’s exigible assets greatly exceeds the plaintiff’s claim NOTE: Where allegations of fraud as determined to have a reasonable foundation, it is not necessary to prove that actual dissipation of assets has occurred to meet this test (grounds for an inference) Mareva Injunction Injunction preventing the defendant from disposing of asset pending a judgment Same objective as an attachment order – asset-freezing order Governed by the Judicature Act s. 13(2) How do you get a Mareva Injunction? Implicit in s. 13(2), by application to the Court Court of Queen’s Bench (s. 1) Or on appeal Court of Appeal (s. 1) DOES NOT include Master in Chambers – their power does not include injunctions (Court of Queen’s Bench Act s. 9(3)(d)) When can application be made?
60+-+Law+514+JEL+CAN.docx