In these reasons, I will explain why, on an application for the making of a freezing order, I have made that order ex parte without requiring the applicant to offer the usual undertaking as to damages component of the undertakings required in accordance with Practice Note SC Gen 14 (the Practice Note), as set out in Schedule A to the example form of freezing order contained in the Practice Note.
The applicant for the freezing order is Joseph Hanna, who is the third defendant in these proceedings. The respondent is Mary Antoun (also known as Mary Syriane), who is the fourth defendant.
The Court conducted an ex parte hearing in the Duty List on 11 July 2023. I gave Mr Hanna leave to file the affidavit of Isabella Diener, who is a graduate solicitor employed by Mr Hanna, who himself is a solicitor.
There has been some delay in the Court being able to make the freezing order sought by Mr Hanna. Initially, the draft order did not conform with the example form of freezing order in the Practice Note. I considered that there were difficulties with the wording of the draft order, and email correspondence ensued between my Associate and Mr Hanna's office. Delay occurred, which has recently been explained on the basis that Mr Hanna's counsel was overseas with limited internet connectivity. The application was re-enlivened upon the receipt by my Associate of an email from Mr Hanna's office on 22 August 2023, attached to which was a draft amended notice of motion and an annexed draft Penal Notice.
The proceedings to which Mr Hanna and Ms Antoun are parties has been subject to a decision of the Court that I published on 22 June 2023, following a hearing on 27 February 2023: see Antoun v Antoun (No 3); Antoun v Hanna [2023] NSWSC 684 ("J"). I will explain the circumstances relevant to the present application, but will need to assume that the reader is aware of the content of the earlier decision.
In essence, the proceedings that I described at J [3] as the "principal proceedings" are an application by the plaintiffs in those proceedings, Tarnya Antoun and Tamara Antoun, for further provision under s 59 of the Succession Act 2006 (NSW) out of the estate of their father, Antoine (Tony) Antoun (the deceased). The plaintiffs were daughters of the deceased by his first marriage. Mary Antoun was the second wife of the deceased until shortly before his death.
As the persons nominated by the deceased in his will declined to apply for a grant of probate, this Court made an order that Mr Hanna be appointed to represent the deceased's estate for the purposes of the proceedings: see J [8]. As there explained, Mr Hanna initially agreed to accept the appointment pro bono, as it was expected that his involvement would primarily involve the ascertainment of the nature and value of the deceased's estate. As it has happened, Mr Hanna has been drawn more heavily into these proceedings, to the extent that he will be entitled to recover his costs out of the estate or notional estate of the deceased, should it be established that there are assets available to meet his costs. Crucially for the purposes of the present application, Mr Hanna is an independent solicitor who has accepted an onerous obligation from the Court in circumstances where there is a significant risk that he will be substantially out-of-pocket. Mr Hanna cannot be expected to place his own assets at risk by providing the usual undertaking as to damages to support the grant of the freezing order against Ms Antoun that he seeks by the present application.
As explained at J [27], in the course of the preparation of these proceedings for hearing, the plaintiffs discovered that, on 4 December 2017, the Federal Circuit Court of Australia (as it was then called) had made orders that adjusted the entitlement of the deceased and Ms Antoun to the property that they owned (the family law orders). The circumstances in which the family law orders were made are set out in J [27], and the terms of the family law orders are specifically set out at J [27(8)]. Crucially, for present purposes, order 1 required Ms Antoun, no later than 31 March 2018, to discharge the mortgage over what I called the "Rosebery property" in the judgment, to transfer the whole of her right title and interest in the unencumbered Rosebery property to the deceased, and to give vacant possession of the Rosebery property to the deceased.
Ms Antoun has refused to comply with order 1 of the family law orders and, at the hearing, it became clear that she would not do so unless compelled by an appropriate court.
A valuation report tendered by Mr Hanna valued the Rosebery property at $495,000 as of 10 February 2023: see J [34(2)].
As is explained at J [34(10)], Mr Hanna's inquiries suggest that the value of the actual estate of the deceased is no more than $13.04, subject to the value to the estate of the satisfaction of order 1 of the family law orders, which would be $495,000 if Ms Antoun complied with those orders.
At J [82], I stated my determination that the Court would make the following orders in the principal proceedings:
(1) Order pursuant to s 74 of the Probate and Administration Act 1898 (NSW) that the third defendant, Joseph Hanna (the administrator), be appointed as the independent administrator of the will dated 12 January 2018 (the Will) of the late Antoine Antoun (the deceased).
(2) Order that letters of administration with the Will annexed be granted to the administrator.
(3) Order that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
(4) Order that the need for any administration bond or sureties be dispensed with.
(5) Order that the administrator is entitled to be indemnified for his costs of administering the estate of the deceased.
(6) Order that no distribution of assets from the deceased's estate be made by the administrator until further order of the Court.
(7) Declaration that each of the plaintiffs is entitled pursuant to s 59 of the Succession Act 2006 (NSW) to an order in due course that the plaintiffs receive a pecuniary legacy of $100,000 each on the assumption that the net value of the deceased's estate is found to be at least $295,000, on the basis that the value of each pecuniary legacy will reduce in proportion with the net value of the estate.
(8) Grant leave to the plaintiffs to apply on seven days' notice to the other parties for orders of the Court giving effect to the declaration made in order 7.
(9) Note that the Court has not made a final determination of the plaintiffs' application for orders pursuant to Part 3.3 of the Succession Act 2006 (NSW) for the making of notional estate orders or the plaintiffs' entitlement to further relief under s 59 of the Succession Act 2006 (NSW) and grants to the plaintiffs leave to apply on seven days' notice for the making of orders concerning the determination of those issues.
(10) Order that the third defendant's costs of these proceedings calculated on the indemnity basis be paid out of the estate of the deceased and that such payment be made in priority to the payment of any other costs order.
(11) Order that the plaintiffs' costs of these proceedings calculated on the ordinary basis be paid out of the estate of the deceased.
(12) No order as to the costs of the fourth defendant of these proceedings to the intent that she pays her own costs.
(13) Grant leave to all parties to apply to the Court on seven days' notice for the making of such orders as may be necessary or desirable to amend or give effect to these orders, or for directions to be given to the administrator concerning the administration of the deceased's estate.
(14) Grant leave to the third defendant to apply to the Court on seven days' notice for the issue of such notices to produce and subpoenas that the third defendant considers desirable in order to assist in getting in the estate of the deceased.
As I understand matters, the Court has not yet processed order 2 to grant letters of administration with the deceased's Will annexed to Mr Hanna.
For the reasons that I explained at J [47]-[68], I made the declaration in order 7 in favour of the plaintiffs. That was an unusual course for the Court to take, because the Court could do no more than to make a declaration as to what the plaintiffs were provisionally entitled, subject to then unknown eventualities. Relevantly, the orders were constructed in terms that contemplated Mr Hanna, as the administrator of the deceased's estate, would take steps in the successor court to the Federal Circuit Court of Australia, the Federal Circuit and Family Court of Australia (Division 2) (the Division 2 Court) to enforce order 1 of the family law orders against Ms Antoun. The subject of those proceedings would be the Rosebery property. Plainly there were many contingencies involved in Mr Hanna's prospects of success. Accordingly, on the assumption that he would succeed, after payment of all legal costs, there would be property in the deceased's actual estate to which the formula in order 7 could be applied.
Although this Court contemplated that Mr Hanna would get in the deceased's estate's assets by taking proceedings to enforce order 1 of the family law orders, as discussed at J [70]-[71], the Court left alive the possibility that it would, on a future application, make a notional estate order against Ms Antoun's equity in the Rosebery property under Part 3.3 of the Succession Act.
The reason that Mr Hanna has made the present application is that, as explained in Ms Diener's affidavit, on 15 May 2023, the Rosebery property was transferred by Mary Antoun to an innocent third party for a price of $425,000. Presumably, as part of that transaction, the mortgage on the Rosebery property was discharged. This sale price was $70,000 less than the value of the Rosebery property supported by the evidence at the hearing.
Mr Hanna only became aware that Ms Antoun had sold the Rosebery property at around 4pm on 7 July 2023.
Ms Antoun was represented at the hearing that took place on 27 February 2023. She was cross-examined by counsel for the plaintiffs. While Ms Antoun was in the witness box, I made observations that made it clear that she had been joined as fourth defendant because of the expectation that certain assets may be subject to notional estate orders: see T 38.33. Ms Antoun was questioned at T 46.13-47.39 about compliance with order 1 of the family law orders, and she admitted that she had not complied with any aspect of that order.
It would have been transparently obvious to Ms Antoun that the object of her involvement as the fourth defendant in the proceedings was for the plaintiffs and Mr Hanna to set the groundwork for the enforcement of order 1 of the family law orders against Mary Antoun.
The Court does not have evidence of the date of the contract entered into by Ms Antoun that led to the transfer of the Rosebery property on 15 May 2023. Neither counsel nor Ms Antoun herself informed the Court at the hearing that the Rosebery property had already been sold. It is apparent that the valuer who valued that property as at 10 February 2023 was unaware that there was any contract for the sale of the property. The Court is entitled to infer on an interlocutory basis that Ms Antoun entered into the contract to sell the Rosebery property after the completion of the hearing, and with the conscious intention to deprive the pending orders of the Court following the publication of its reserved judgment of any effect, if those orders were predicated on the possibility that Ms Antoun would be forced to satisfy order 1 of the family law orders by an appropriate application in the Division 2 Court.
Mr Hanna has advised the Court, by his counsel, that he is not prepared to take the personal risk involved in giving the usual undertaking as to damages as a condition of the Court making the freezing order that he seeks against Mary Antoun. That is an entirely reasonable position for Mr Hanna to take considering that he has initially acted pro bono and has already taken considerable risks as to recovery of his costs, when he has no personal interest in the proceedings, but is acting to facilitate the determination of the principal proceedings.
The plaintiffs' counsel has advised the Court that the plaintiffs consent to the making of the freezing order on the terms sought by Mr Hanna. The plaintiffs have not offered to give the usual undertaking as to damages to the Court. The Court knows that the financial circumstances of the plaintiffs would not support that undertaking in any event.
I acknowledge that the authorities establish, at the very least, that the Court should not make freezing orders ex parte when they are not supported by the usual undertaking as to damages, unless in exceptional circumstances. In Frigo v Culhaci [1998] NSWCA 88, the Court of Appeal (Mason P, Sheller JA and Sheppard AJA) discharged a freezing order obtained ex parte where no undertaking as to damages had been given. They said at 12-14: "We cannot conceive of circumstances where an ex parte mareva injunction should be granted otherwise than subject to an undertaking as to damages…". Their Honours described the undertaking as to damages as "this invariable incident of an interlocutory injunction" when it is sought ex parte.
In De Boer v Williams [2004] NSWSC 351, Einstein J canvassed the authorities on this issue at [20]-[25], and concluded at [26]:
[26] It seems to me that these expressions of the relevant practice and procedure are entirely correct and require to be followed in terms of the principled approach to the grant of a Mareva injunction. No matter how difficult the particular circumstances may be, it is always quintessentially necessary for the Court to take into account the fact that the giving of the usual undertaking as to damages is the price paid by the plaintiffs for obtaining the very significant relief constituted by the grant of an interlocutory injunction and most particularly by the grant of a Mareva injunction. Not only does the extraction of such an undertaking enure to protect the defendants to the proceedings, but at least in the State of New South Wales, the undertaking enures for the benefit of non-parties who may be very significantly affected by the order in a fashion by definition often, indeed usually, not able to be foreseen at the time the Court pronounces the order.
However, the review by his Honour of the authorities suggests that the practice to require the giving of the usual undertaking as to damages before an ex parte freezing order is made is not absolute.
At [20], Einstein J discussed the commentary at [21-410] of Meagher, Gummow and Lehane's, Equity: Doctrines and Remedies (4th ed, 2002, LexisNexis Butterworths) , where the authors said: "…There are very few exceptions to the requirement that an undertaking be given…normally it is the price a plaintiff has to pay for the grant of an interlocutory injunction": see now [21-410] of the fifth edition to the same effect. Einstein J observed that the authors suggested that possible exceptions include "when the plaintiff makes out an unarguable case of fraud (which, at an interlocutory stage, must be rare), and where a plaintiff's poverty prevents him from tendering a meaningful undertaking".
Einstein J observed, at [23], that Austin J had pointed out in New Cap Reinsurance v Chase Manhattan (No 2) [1999] NSWSC 808 that one example of when the usual undertaking as to damages might not be required is where the plaintiff is impecunious and supported by legal aid. Another example suggested by Austin J was where interlocutory injunctions have been granted at the suit of a liquidator without any requirement that the liquidator give a personal undertaking as to damages.
His Honour noted that, in Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337, Young J (as his Honour then was) made an observation at 342: "that the circumstances where it is not just and reasonable that an undertaking should be given are extremely rare." Einstein J recorded at [25] that Young J added, at 342, that "it is likely to be even rarer for there to be a case where it is proper to grant a Mareva injunction without an undertaking as to damages."
In Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961, Kunc J said at [85]:
[85] Also of relevance to the Court's exercise of its discretion in applications of the present kind is the issue of whether the plaintiff has proffered an undertaking as to damages and, consequentially, the adequacy of that undertaking. An undertaking as to damages will be required in applications of the present kind unless exceptional circumstances exist justifying departure from that rule, including where the plaintiff establishes an unarguable case of fraud: see, eg, De Boer v Williams [2004] NSWSC 351 at [20] and [23] per Einstein J; Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337 (Southern Tableland) at 340 per Young J (as his Honour then was), quoting Kerridge v Foley (1968) 70 SR (NSW) 251 at 255 per Sugerman JA with approval. The failure of a plaintiff to proffer an undertaking as to damages, although not ipso facto fatal to an application for an asset preservation order, weighs heavily against an order of that nature.
In P Biscoe's Freezing & Search Orders: Mareva & Anton Piller Orders (2nd ed, 2008, LexisNexis Butterworths), the author said:
[6.94] A rare case where the plaintiff's undertaking in damages was worthless yet a Mareva order was granted without security was Allen v Jambo Ltd [1980] 2 All ER 1259; [1980] 2 All ER 502; [1980] 1 WLR 1252 (CA). There were exceptional circumstances. The plaintiff was a legally aided widow suing under the Fatal Accidents Act 1976 for the death of her husband due to the alleged negligence of a Nigerian company, which was about to remove its only asset within the jurisdiction, an aircraft whose propeller had decapitated the husband. In Tomlinson v Cut Price Deli Pty Ltd (23 June 1995, unreported) Kiefel J in the Federal Court of Australia made a Mareva order notwithstanding her conclusion that an undertaking as to damages by the applicants in respect of two of the applications before her were inadequate and that the applicants could not provide security. Regard was had, it seems, to the strong case shown for a Mareva order.
Finally, the observations by Gibbs J in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 at 311-312 are material. His Honour said:
The object of requiring a plaintiff who seeks an interlocutory injunction to enter into an undertaking of this kind is to attempt to ensure that a defendant will receive compensation for any loss which he suffers by reason of the grant of the injunction if it appears in the event that the plaintiff was not entitled to obtain it. The insistence upon the giving of an undertaking is a very important, if not an essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined. The court has a discretion not to enforce such an undertaking, but unless the defendant has been guilty of conduct that would render it inequitable to enforce the undertaking it would seem just, speaking generally, that a plaintiff who has failed on the merits should recompense the defendant for the damage that he has suffered as the result of the making of the interlocutory order. However, it is perfectly clear, and it appears from the words of the undertaking themselves, that the only damages to which a defendant is entitled are those which he has sustained by reason of the grant of the injunction. The generally accepted view is that the damages must be confined to loss which is the natural consequence of the injunction under the circumstances of which the party obtaining the injunction has notice…
If the Court has a discretion not to enforce an undertaking as to damages that has been given if the defendant has been guilty of conduct that would render it inequitable to enforce the undertaking, that would suggest that there may be cases where the conduct of the defendant would make it inequitable for the Court to insist upon the giving of the usual undertaking as to damages in the first place as the price for the making of a freezing order.
Every case must be decided on its own facts. It may not always follow from the fact that the defendant has deprived the plaintiff of substantially the whole of the plaintiff's assets, so that the usual undertaking as to damages if given by the plaintiff will be worthless, that the Court should make a freezing order without requiring that the undertaking be given. The proper course for the Court to take will depend, among other things, on the reasonableness of the defendant's claim that it was lawfully entitled to deprive the plaintiff of its assets. However, there is more in this case than Ms Antoun having apparently deprived the deceased's estate of all of its assets, bar the amount of $13.04, which is in any case inadequate to satisfy all of the costs orders made in favour of parties to the proceedings. In this case, Ms Antoun's conduct has deprived the deceased's estate of the value of the Rosebery property because the nature of the estate's asset is the right to enforce order 1 of the family law orders, and Ms Antoun has wilfully refused to comply with that order. Furthermore, Ms Antoun has wilfully sold the Rosebery property for what may, on the evidence, be an undervalue of $70,000. It is at least likely that she made a quick sale that required her to accept a low price. Most significantly, however, there is a strong case, albeit on the basis of the evidence presented ex parte, that Ms Antoun has acted in flagrant disregard for the Court's processes to put the Rosebery property beyond the reach of the Court, while the Court was in the process of determining its reserved judgment. I have no doubt that Ms Antoun appreciated that the entire objective of the proceedings had become to get into the deceased's estate the value of the unencumbered Rosebery property.
I consider that it is fundamental to the proper administration of justice that the Court not permit a defendant to wilfully deprive the Court's possible judgment of effect, after the parties and the Court have participated in a hearing. At least in these circumstances, a defendant cannot boldly say: "I now have in my possession the subject of the Court's judgment. Consequently, the parties entitled to that property are now worthless. The Court should not make a freezing order against me, because the wronged parties do not offer the usual undertaking as to damages, or the undertaking would be worthless because of my conduct in depriving them of their assets."
I consider that it is material in a case like the present for the Court to consider the likely effect of the freezing order on the defendant and the defendant's assets. Where a freezing order will impinge upon a defendant's business in a way that may cause substantial collateral damage, and where the nature and effect of the damage may not be readily quantifiable, the Court may need to hesitate in making the freezing order without an effective undertaking as to damages, even in cases that involve conduct such as that engaged in by Ms Antoun in this case. However, in other cases, of which the evidence suggests the present case is an example, the freezing order is not likely to have any extreme effect on the utilisation of the defendant's assets or cause substantial collateral damage. Where the defendant owns real property, and in the ordinary course will do no more than to service the mortgage on the property, the making of the freezing order may not have any significant effect, other than to restrain the dissipation of the property. In such a case, the Court may more readily make the freezing order without requiring the undertaking as to damages.
It is also relevant that the Court has the facility to manage on an ongoing basis the risk that the making of the freezing order without the usual undertaking as to damages will cause unwarranted loss to the defendant. The defendant is always given leave to relist proceedings, and if circumstances give rise to a risk of unexpected consequences from the existence of the freezing order, it will be available to the defendant to apply for an appropriate order to mould the effect of the freezing order to the circumstances in a way that does justice between the parties.
The making of the freezing order in this case is supported by Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 25.11(1) insofar as the order will meet a danger that a prospective judgment of this Court made following an application as authorised by order 9 made on 22 June 2023 will be wholly or partly unsatisfied. As this Court will not have power to enforce any order made by the Division 2 Court on the application of Mr Hanna, the freezing order would not be supported by UCPR r 25.14(1)(a)(i) and (ii). However, UCPR r 25.14(6) provides that the rule does not affect the power of the Court to make a freezing order if the Court considers it is in the interests of justice to do so. I consider that it is in the interests of justice in this case for the Court to make the freezing order in support of any orders that the Division 2 Court might make concerning Ms Antoun's sale of the Rosebery property in circumstances where she was in breach of order 1 of the family law orders. Those orders, if made, will ultimately be in support of the Court's ability to make family provision orders and orders for costs in the principal proceedings that may be satisfied out of the actual or notional estate of the deceased.
Consequently, I will make a freezing order against Ms Antoun without at this stage of the proceedings requiring Mr Hanna to give the undertakings to the Court set out in Schedule A to the example freezing order in the Practice Note.
I will make the freezing order based upon the example form of freezing order contained in the Practice Note.
Given the exceptional circumstances of the present application, I have expanded the usual terms for the provision of information in order 8 of the example form of freezing order contained in the Practice Note to read as follows:
13. Subject to paragraph 14, you must:
(a) at or before the further hearing on the return day (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets worldwide, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets;
(b) within [insert number of days] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information;
(c) include in the affidavit referred to in (b) the following information:
(i) the amount of the net proceeds of sale of [the address and title reference of the Rosebery property should be inserted in the draft freezing order] (the Property) that was received by you following the settlement on 15 May 2023 of the contract for sale of the Property;
(ii) a copy of the settlement sheet prepared in respect of the settlement of the contract for sale of the Property showing how the sale price was applied at or following settlement should be annexed to the affidavit;
(iii) the account details for the bank account into which the net proceeds of sale received by you or on your behalf were paid;
(iv) copies of all pages of the bank statements for the bank account into which the net proceeds of sale were paid from and including the date of payment to the present should be annexed to the affidavit;
(v) if any part of the net proceeds of sale received by you or on your account have been withdrawn from the account into which they were paid state:
when the withdrawal took place;
the amount of the withdrawal;
to whom the payment was made;
the bank and account details if the withdrawal was paid into a bank account;
if the money withdrawn was used to acquire an asset, the location, price and description of that asset.
The orders of the Court are:
1. Grant leave to the applicant/third defendant to file in chambers the amended notice of motion, a copy of which has been signed by Robb J and dated 7 September 2023.
2. Order that the applicant/third defendant serve the amended notice of motion, the relevant affidavits, these orders (including the Penal Notice) and a copy of these reasons on the respondent/fourth defendant:
1. by email at [redacted] by 4pm on 8 September 2023; and
2. by personally serving the respondent/fourth defendant by 4pm on 11 September 2023.
1. Order against the respondent/fourth defendant in the terms set out at Annexure A to these orders pursuant to rule 25.11 of the Uniform Civil Procedure Rules 2005 (NSW).
2. Order that the amended notice of motion be returnable at 9:15 AM on Thursday, 14 September 2023 before Robb J for directions or hearing or reference to the Equity Duty Judge as may seem convenient to the Court.
3. Reserve costs.
4. Order that these orders be entered forthwith.
ANNEXURE "A"
PENAL NOTICE
TO: Mary Antoun of [redacted] (also known as Mary Syriane)
IF YOU:
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
COURT ORDERS
TO: Mary Antoun, also known as Mary Syriane
This is a 'freezing order' made against you on 8 September 2023 by Justice Robb following a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.
THE COURT ORDERS:
INTRODUCTION
1. The application for this order is made returnable immediately.
2. The time for service of the amended notice of motion, the supporting affidavits, the orders made including this Penal Notice and the reasons for judgment given by Robb J is abridged and service is to be effected:
a. By email at [redacted] by 4pm on 8 September 2023; and
b. Personally by 4pm on 11 September 2023.
3. Subject to the next paragraph, this order has effect up to and including 14 September 2023 ('the return day'). On the return day at 9:15 AM, there will be a further hearing in respect of this order for directions before Robb J for hearing or reference to the Equity Duty Judge as may seem convenient to the Court.
4. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
5. In this order:
a. 'applicant', if there is more than one applicant, includes all the applicants;
b. 'you', where there is more than one of you, includes all of you and includes you if you are a corporation;
c. 'third party' means a person other than you and the applicant;
d. 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.
6. If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.
7. If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.
FREEZING OF ASSETS
8. You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia ('Australian assets') up to the unencumbered value of AUD$520,000 ('the Relevant Amount').
9. If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount.
10. If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia ('ex-Australian assets'):
a. You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and
b. You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount.
11. For the purposes of this order, your assets include:
a. all your assets, whether or not they are in your name and whether they are solely or co-owned;
b. any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and
c. the following assets in particular:
i. the property known as [redacted], if it has been sold, the net proceeds of the sale;
ii. any money in account [redacted] in the name of Miss Mary Syriane at [redacted];
iii. Any money in any account held in your name with any banking institutions;
iv. the NET proceeds of sale of [redacted] being the property known as the Roseberry Unit.
12. The value of your assets is the value of the interest you have individually in your assets.
PROVISION OF INFORMATION
13. Subject to paragraph 14, you must:
a. at or before the further hearing on the return day (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets worldwide, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets;
b. within 10 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.
c. Include in the affidavit referred to in (b) the following information:
i. the amount of the net proceeds of sale of the Rosebery unit that was received by you or your agents following the settlement on 15 May 2023 of the contract for sale of the property;
ii. a copy of the settlement sheet prepared in respect of the settlement of the contract for sale of the Rosebery unit showing how the sale price was applied at or following settlement should be annexed to the affidavit;
iii. the account details for the bank account into which the net proceeds of sale received by you or on your behalf were paid;
iv. copies of all pages of the bank statements for the bank account into which the net proceeds of sale were paid from and including the date of payment to the present should be annexed to the affidavit;
v. if any part of the net proceeds of sale received by you or on your account have been withdrawn from the account into which they were paid state:
1. when the withdrawal took place;
2. the amount of the withdrawal and to whom the payment was made;
3. the bank and account details if the withdrawal was paid into a bank account; and
4. if the money withdrawn was used to acquire an asset, the location, price and description of that asset.
14. This paragraph applies if you are not a corporation and you wish to object to complying with paragraph 13 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
a. have committed an offence against or arising under an Australian law or a law of a foreign country; or
b. are liable to a civil penalty.
c. You must:
i. disclose so much of the information required to be disclosed to which no objection is taken; and
ii. prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
iii. file and serve on each other party a separate affidavit setting out the basis of the objection.
EXCEPTIONS TO THIS ORDER
15. This order does not prohibit you from:
a. paying your ordinary living expenses;
b. paying your reasonable legal expenses;
c. dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and
d. in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation.
16. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly.
17. This order will cease to have effect if you:
a. pay the sum of $520,000 into Court; or
b. pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or
c. provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court.
d. Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency.
e. If this order ceases to have effect pursuant to (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact.
COSTS
18. The costs of this application are reserved to the judge hearing the application on the return day.
PERSONS OTHER THAN THE APPLICANT AND RESPONDENT
Set off by banks
19. This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order.
Bank withdrawals by the respondent
20. No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.
Persons outside Australia
21. Except as provided in order 22 below, the terms of this order do not affect or concern anyone outside Australia.
22. The terms of this order will affect the following persons outside Australia:
a. you and your directors, officers, employees and agents (except banks and financial institutions);
b. any person (including a bank or financial institution) who:
i. is subject to the jurisdiction of this Court; and
ii. has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and
iii. is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience breach of the terms of this order; and
iv. any other person (including a bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.
Assets located outside Australia
23. Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the applicant.
SCHEDULE A
UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT
A. As soon as practicable, the applicant will file and serve upon the respondent copies of:
a. this order;
b. the summons or notice of motion to be relied on at the hearing on the return day;
c. the following material in so far as it was relied on by the applicant at the hearing when the order was made:
i. affidavits;
ii. exhibits capable of being copied;
iii. any written submissions; and
iv. the reasons for judgment of Robb J.
B. As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it.
C. The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets.
D. If this order ceases to have effect, the applicant will promptly take all reasonable steps to inform in writing anyone who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect.
E. The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding.
F. The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets.
SCHEDULE B
AFFIDAVITS RELIED ON
I. Affidavit of Isabella Diener affirmed 11 July 2023; and
II. Affidavit of Joseph Hanna affirmed 24 February 2023.
The applicant's legal representatives are:
Conceptual Legal
[redacted]
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 September 2023