Applicant v ADIL SULAIMAN

1 The applicant, Arfa Sulaiman, has applied by interlocutory process dated 13 February 2025 for a freezing order against the respondent, Adil Sulaiman. Each of Arfa and Adil are the directors of and equal shareholders in Memon Bros Pty Ltd, which is the trustee of a discretionary trust of which Arfa and Adil are beneficiaries. They are also brothers who have been involved in various businesses together and in the acquisition and sale of real property, through Memon.

2 Arfa contends that Adil recently transferred $2.04m from Memon's bank account into accounts that Adil controlled, without any relevant authority. The moneys were the proceeds of the sale of a property owned by the trustee. He says that by making the transfer Adil has caused the conduct of Memon's affairs to be conducted contrary to the trust deed and the interests of members as a whole. Decisions of the trustee in respect of distributions are to be made by both directors. By the actions of Adil, Arfa has been excluded from participating in a decision as to the distribution of moneys, as is his right. The conduct is oppressive of him. Even if Arfa did not purport to cause Memon to act as trustee (by making a purported distribution), he has abused his position as director by accessing the company's accounts and taking its money without authority, with the same consequences. Arfa has issued a proceeding seeking relief under s 233 of the Corporations Act by reason of oppressive conduct under s 232 of the Act. The money has not been repaid despite demand and a promise to do so, and has likely been further transferred to other parties. Arfa says that there is a real risk of dissipation of Memon's assets which frustrate the Court's processes.

3 The applicant relied on affidavits dated 12, 13 and 14 February 2025.

4 I was satisfied on the evidence that the basis for a freezing order was established and I made the orders accordingly. These are the reasons for my having made the orders.

5 References to the facts below are to the facts as they appear from the evidence on this Application which was heard ex parte. For the benefit of the parties I will state that in an application of this kind the Court does not make factual findings as such, but assesses whether the applicant has a good arguable case on the basis of the evidence which at this stage is uncontested because the other party has not yet appeared and had the opportunity to test that evidence or put on his own evidence.

6 This Court has both inherent and statutory power (under Order 37A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)) to make freezing orders. Order 37A expressly preserves the Court's inherent jurisdiction[1] and addresses the minimum requirements that an applicant for a freezing order must meet. Its terms closely reflect the governing principles enunciated by the High Court in Cardile v LED Builders Pty Ltd.[2] Accordingly, the same principles govern the exercise of the statutory and inherent powers.[3] The principles, which are well understood, were summarised by the Court of Appeal in Rozenblit v Vainer.[4] There, the Court of Appeal was considering a freezing order pending the determination of an appeal, but in most respects (and in all respects for present purposes) the principles to be applied are the same, regardless of the stage at which a freezing order is sought.[5] They may be stated in this way:

(a) A freezing order by its very nature is a drastic remedy which will not be granted lightly. A court must exercise a high degree of caution before taking a step which will interfere with a party's capacity to deal with his or her assets.[6]

(b) The rationale for freezing orders is to prevent the frustration of the Court's processes and ensure the effective exercise of the jurisdiction invoked, or, in the case of a non-party, to prevent interference with the administration of justice.[7]

(c) Conversely, a freezing order is not designed to provide security for the applicant's claim. It is solely directed to preserving assets from being dissipated, thereby frustrating court processes.[8]

(d) The applicant bears the onus of satisfying the Court that the order should be made, in the monetary amount the subject of the order. An order may only be made on admissible evidence, for which speculation and guesswork are no substitutes.[9] Allowance must be made, however, for the fact that the merits of the case will only be argued in a 'broad brush' way at the hearing of an application for a freezing order.[10]

(e) The applicant must establish that there is a **'**good arguable case' against the respondent. This means that it can be seen from the available material that the claim or proposed claim has a real prospect of success.[11]

(f) The applicant must establish that there is a danger of a prospective judgment of the Court being wholly or partly unsatisfied. It must be shown that there is a reasonable possibility, not necessarily more than 50 percent chance, that assets may be disposed of or dealt with or diminished in value if an order is not made.[12] In making this assessment all of the circumstances must be taken into account including the likely amount of the judgment, the circumstances in which the cause of action arose, the conduct of the respondent and the respondent's capacity to take avoidance action.[13]

(g) The exercise of the power is discretionary. Accordingly, other considerations including the balance of convenience may bear upon the Court's decision, but that the balance of convenience favours the making of the order is not a distinct requirement.[14]

(h) The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant's claim, including interest and costs. It is recognised that quantification of a claim can be challenging at an early stage.[15] The interests of justice may require a court to place an interim and necessarily imprecise value on the relevant claim that will determine the limits of any putative judgment.[16]

(i) As a condition of a freezing order it will ordinarily be appropriate to require the applicant to give undertakings to the Court, including the usual undertakings as to damages, supported if necessary by the provision of security.[17]

7 The evidence on this application disclosed the following facts and circumstances.

8 Memon was incorporated in November 2022. Adil and Arfa are its sole directors and each holds 50 of its 100 issued shares. Memon does not conduct any business but acts as the trustee of the Solomon Bros Property Trust (SBPT or the Trust) and holds property on its behalf.

9 The SBPT is a discretionary trust, established by a deed dated 17 November 2022. Relevantly, the trust deed provides as follows:

(a) The Trust has two named beneficiaries, Arfa and Adil, and defined classes of eligible beneficiaries. Members of the classes are, broadly speaking, the family members of the named beneficiaries, unnamed educational bodies, and companies of which any of the beneficiaries is a shareholder or director;

(b) No beneficiary has any entitlement to any part of the Trust fund, or its income;

(c) The trustee may distribute any part of the trust fund to a named beneficiary or a member of a class of eligible beneficiaries, either immediately or absolutely or to be used for the maintenance, education, advancement or benefit or that person in any manner the trustee decides;

(d) The trustee may exercise a power or discretion by a resolution of the trustee or of its director. The exercise of the power must be evidenced (clause 68);

(e) A decision of the trustee concerning distributions under the trust is to be evidenced in writing. The trustee must keep the evidenced decision with the papers relating to the trust and must record its effect in the trust's books (clause 20);

(f) The trustee otherwise has the broad powers commonly reposed under a discretionary trust, including to deal with the assets of the trust.

10 The constitution for Memon relevantly provides that:

(a) No business may be transacted at any time during a meeting of directors unless a quorum is present. Until the directors decide otherwise, the quorum for a meeting of director is any 2 directors or 50% of directors, whichever is the greater. If there is only one director, the quorum is that director. The quorum must be present throughout a meeting (clause 31).

(b) At a meeting of directors each director who is present has one vote. A resolution is passed at a meeting of directors if a majority of the votes cast is in favour of it. If there is only one director, he or she may pass a resolution in the way provided for by s 248B of the Corporations Act (clause 35).

(c) The directors may pass a resolution without holding a meeting in accordance with this clause. The resolution must be signed by all directors entitled to vote on it and must state that they are in favour of it. The resolution is valid from the time the last director signs it and is taken to have passed it at that time. Different directors may sign different documents provided they are identical. All original signed counterparts of this resolution must be retained in the company's books (clause 36).

(d) The directors must keep and sign minutes of meetings in accordance with the Corporations Act (clause 37).

11 In short, the constitution provides for the management of the affairs of the company in accordance with Part 2G.1 of the Act.

The disputed transfer occurred without my knowledge or consent. Further, the disputed transfer did not comply with, and Adil made no effort to adhere to, the formalities required by the SBPT. Adil had not authority to complete the transfer, and there was no endeavour on his part to achieve the consent of the directors of Memon Bros. There was no resolution of the board of Memon Bros to make any distribution in favour of Adil. I am not aware of any basis that would entitle Adil to transfer the funds to himself.

13 Arfa's evidence sufficiently establishes for present purposes that he did not know about or consent to the transfer, that there was no meeting or resolution of directors in respect of the distribution and no record of a decision of the trustee concerning it.

Source of funds for the purchase of the Rangeview Property

14 Before turning to the Disputed Transfer itself it is necessary to say something about the source of the funds held by the trustee that were transferred from its account.

15 The dispute concerns dealings with the proceeds of the sale of a property in Rochedale, Queensland (Rangeview Property). Arfa's evidence was that the Rangeview Property was owned by Memon in its capacity as trustee of the SBPT.

16 On or about 24 November 2022 Memon purchased the Rangeview Property for approximately $1,760,000. The funds for the purchase came from three sources:

(a) The sum of $1,140,000 (about 65% of the proceeds) from Top Notch Chef Agency Pty Ltd (Top Notch);

(b) $135,000 (about 7.7% of the proceeds) from Ace Chef Apparels Pty Ltd (Ace Chef); and

(c) Approximately $500,000 from the proceeds of sale of a property at Caboolture, Queensland (Caboolture Property) that occurred in September 2022.

17 Arfa's evidence about the sources of the funds was as follows.

18 Top Notch (trading as A Chef Now) carries on a labour hire business supplying hospitality staff. Arfa founded its business in about 2016 initially as a sole trader. Arfa 'transferred the business' to Top Notch because he was in a marital dispute and was concerned about his assets. Arfa and Adil each hold 50% of the issued shares of Top Notch, Arfa in his capacity as trustee for the Sulaiman Family Trust which holds the shares on trust for him. Adil is the sole director of Top Notch. Arfa has day to day control of the business. He describes Top Notch as 'his company'. Since January 2025 only Adil has had 'administrator access' to Top Notch's bank accounts.

19 Top Notch has outstanding liabilities to the Australian Taxation Office in the sum of about $963,000 including a director penalty notice against Adil in the amount of about $275,000. In the context of discussions between the brothers after the sale of the Rangeview Property, according to Arfa, Adil told him that he was 'not willing to go halves in the ATO liability and director penalty notice because I didn't tell him there was a debt to the ATO'. Arfa did not elaborate on the ATO liability point any further save to say (in respect of any possible defence to the disputed transaction) that Adil believes that the penalty and liabilities arose as a consequence of Arfa's management of Top Notch and that Arfa should therefore be responsible for the liabilities and should satisfy them by way of his entitlement to 50% of the proceeds of sale. These matters are mentioned further, below.

20 Ace Chef contributed about 7.7% of the purchase price for the Rangeview Property. It carries on a business supplying apparel to hospitality businesses. Initially Arfa and Adil were both directors of the company and each held 50% of its issued shares. In January 2019 Arfa resigned as director and transferred his shares to Adil. Arfa's evidence was that he transferred his shares because of his marital dispute and the desire to protect his business. He said that his purpose for doing so was known to Adil prior to the resignation and transfer. Adil did not pay for the shares. He said that 'while it was not explicitly discussed I believe that Adil understood that I was not transferring the shares to him beneficially, but rather he was just holding the shares on my behalf'. His belief was said to arise from the fact that no payment was made for the shares, Adil was present during conflict between Arfa and his wife, and Adil's subsequent conduct (which was not described) has been consistent with him holding the shares on Arfa's behalf, and as the business conducted by Ace Chef being their joint business in which they each have an interest.

21 The Caboolture Property was purchased in December 2021. Arfa's evidence was that it was acquired using funds derived from the business activities of Ace Chef. The Caboolture property was said to have been registered in Arfa's name but his evidence was that he has always acknowledged that Adil had a half interest in the property.

22 In approximately October 2024 the Rangeview Property was sold. On 10 and 11 December the proceeds of sale were paid into a bank account maintained by Memon in the sum of $2,039,337.34. The ANZ bank account statement showing this deposit was produced.

23 Arfa's evidence was that after the sale he and Adil discussed 'what we should do with the proceeds of sale'. His account of the conversation was in substance that he said the proceed should split 50/50 given that the property was purchased from investments in businesses that were shared between the brothers. In that conversation Adil is reported to have said he was not willing to 'go halves in the ATO liability and director penalty notice because [Arfa] did not tell him there was a debt to the ATO'.

24 Implicitly, the brothers were discussing how Memon who had owned the Rangeview Property and received the proceeds but held them in its capacity as trustee, should distribute the funds between the brothers as beneficiaries of the trust. Top Notch contributed a large proportion of the funds to purchase the Rangeview Property and the brothers each have a 50% interest in it. Its outstanding liabilities to the ATO are said to amount to $963,000, which was close to half of the proceeds of the sale of the Rangeview Property.

25 The brothers did not agree on how the funds were to be distributed. On 9 January 2025 Arfa went to Adil's house to discuss the issue and a 'heated discussion' ensued without resolution.

26 The bank statement for the Memon Bros account with the ANZ bank shows a withdrawal on 10 January 2025 in the sum of $2,044,351.47.

27 The funds were transferred to an account, the number of which appears on the ANZ bank statement. Arfa's evidence was that the account to which the funds were transferred is held by Ace Chef (of which Adil is the director and in which he holds all shares but in which Arfa claims an interest).

28 Arfa first became aware of the transfer on 10 January 2025 by checking the Memon bank account. He asked Adil (by a request communicated through their father) to return the funds immediately. On 12 January 2025 he met Adil when they were both visiting their father in hospital. They agreed to meet later that day to discuss the disputed transfer. Arfa received a text message that day from Adil. A screenshot of a text message apparently from 'ADIL' (undated) was produced and read as follows:

[greeting] ... my deepest and sincere apologies for yelling, screaming and swearing in front of the whole family

I am deeply sorry and regret my actions. I'm also sorry for transferring the entire money away which is morally and ethically wrong

I will take immediate steps to transfer the money back as soon as Monday or Tuesday as it can only be done by TT

I want to meet you just you and me, let's sit down and work it out as we always do, let's go and sit in the masjid and talk it out, let's meet at asr today at Wellington masjid in Lysterfield

Unfortunately I cannot reverse or go back 2 days ago and undo what happened and I really wish now you hadn't come home with your family that evening

What happened is not right and especially unacceptable in front of the kids

These are not the morals and values we need to bring up our kids with

See you at the asr at Lysterfield in Sha Allah.

29 Arfa and Adil met later that afternoon. He asked about the disputed transfer and the current location of the funds. Adil told him that the funds had been further transferred to a bank account maintained in his personal name. Adil sent him a screenshot which Arfa understood as showing the balance of Adil's account held with the bank of Melbourne. The screenshot was produced in evidence. It appears to be a text message containing the following text:

Bank of Melbourne Withdrawal

$1,320.00 'OSKO Withdrawal 11 Jan 13:50' from Complete Freedom Cur

$1,053,144.24 Avl $2,053,063.30.

30 Arfa's evidence sufficiently establishes for present purposes that Adil transferred the sum of $2,044,351.47 to the Ace Chef account which is controlled by Adil, and then transferred a sum of a similar amount (likely $2,053,144.44) to an account said to have been in held his personal name.

31 Arfa's evidence was that he has become aware that Adil and his wife Syeda Sofya have effected further transaction which he believes are the funds the subject of the Disputed Transfer.

32 Arfa believes that on 15 January 2025 Adil transferred $1,706,351.47 into an account maintained under Syeda's name with the Commonwealth Bank. A document was produced which appeared to be a screenshot of a bank account. It was a partial extract only and appeared to show a credit on 15 January 2025 in that amount with the notation 'ADIL SULAIMAN REF', a transaction number, and the words 'Beneficiary Account Payment'. The account number and the name of the account holder did not appear on the produced extract. Arfa's evidence is that he believes that that transfer comprised part of the funds the subject of the Disputed Transfer taken from Memon Bros because he does not believe that Adil would have had those funds or access to that money in that amount by any other means.

33 Further, Arfa said that on 24 January 2025 $1 million was transferred from Syeda's Commonwealth Bank account via BPAY to RedZed Lending Solutions Pty Ltd. A screenshot of what appears to be a record of a banking transaction via BPAY for $1 million to a payee with the biller nickname 'RedZed 200 Clarendo' appears. The screenshot includes the words 'RedZed Lending Solns CommBank app BPAY'. It discloses an account number but not the account holder's name.

34 Arfa believes that on 24 January 2025 a further $79,900 was transferred from Syeda's Commonwealth Bank account via BPAY to RedZed Lending Solutions. A screenshot appearing to show a BPAY transaction record in the same format as the previous transaction but in the amount of $79,900 was also produced.

35 Arfa produced a copy of a contract of sale for a property in Doveton, Victoria, in November 2024. On the face of the document the purchaser is Adil Sulaiman or nominee, with settlement due in July 2025 on a balance of just under $600,000. He also produced listing from realestate.com.au showing the sale of a property on 22 November 2024 in Keysborough, Victoria which he says was purchased by Adil. His submission was that in the ordinary course, the settlement on the Keysborough property might be expected to have occurred in January 2025, which was the same month in which the Disputed Transfer and subsequent transfers of funds occurred.

36 Arfa's evidence was that as he understands Adil's position, Adil claims to be entitled to the whole of the funds the subject of the disputed transfer on the basis that he and Adil are each 50% shareholder in Memon Bros and named beneficiaries under the Trust and therefore he is beneficially entitled to 50% of the proceeds of sale. However, Adil is the subject of the director penalty notice and further possible consequences regarding the ATO liabilities of Top Notch and believes that those liabilities and penalty arose because of Arfa's management of Top Notch and that Arfa should be responsible for those liabilities and should satisfy them by way of his entitlement to 50% of the proceeds of sale of the Rangeview Property.

37 Arfa's evidence, based on his knowledge, was that Adil holds the following assets:

(a) Funds held in the Bank of Melbourne account the subject of the Disputed Transfer (but said to have been at least in part, subsequently transferred out);

(b) Interest in the property at Keysborough purchased recently at a cost of approximately $1,350,000 which Adil has told him is the subject of a mortgage;

(c) Interest in the Hampton Park property which is currently for sale at a price of $729,000-$795,000 which was previously unencumbered but Adil has told Arfa is subject to a mortgage in connection with his purchase of a property at Keysborough;

(d) Funds held in bank accounts maintained in India in connection with Adil's business operating in India, of an unknown value;

(e) Interests in a business in India which manufactures the clothing sold by Ace Chef of an unknown value.

38 Adil is the holder of a certificate of registration of overseas citizenship of India. Arfa expressed a concern that if Adil is not restrained from doing so he will transfer the disputed funds to India.

39 I am satisfied that Arfa has a good arguable case. From the available material the proposed claim under s 232 of the Act has a real prospect of success.

40 The evidence sufficiently establishes for present purposes that:

(a) The proceeds of the sale of the Rangeview Property were trust funds;

(b) No beneficiary has any entitlement to or interest in the funds of the trust;

(c) The trustee has power to distribute any part of the trust to the trust's beneficiaries, including Adil and Ace Chef. However, the power of distribution must be exercised in the manner provided by the trust deed. The trustee is to act by its directors, who must in turn act in accordance with Memon's constitution and the Act. A single director has no power to unilaterally distribute funds, either at all or relevant to himself.

(d) Adil caused a transfer of the moneys to the account of Ace Chef, which he controls, and in turn, to his own bank account.

(e) There was no resolution of directors in respect of the distribution and no record of a decision of the trustee concerning it. Arfa did not know about or consent to the transfer. The Disputed Transfer, on the available evidence, was not within Adil's authority and did not satisfy the requirements for a distribution by the trustee exercising its powers under the trust deed. Even if Adil was not purporting to cause the trustee to act, he had no evident authority or entitlement to transfer the trust's money to himself or to his benefit.

(f) As Arfa correctly submitted, Adil's personal dispute with Arfa and a belief that he is entitled to be reimbursed by Arfa for the tax liabilities that he and Ace Chef have incurred, do not entitle him to appropriate trust funds.

(g) Adil told Arfa at the time, that he regretted his behaviour and would transfer the money back. According to the available evidence, Adil did not express a view that he was entitled to the funds or that there was agreement between the directors to that effect.

41 According to the Vigliaroni[18] line of authority, relief under ss 232 and 233 may be granted where oppressive conduct has occurred in a company which is a bare trustee; the remedy may, in appropriate cases, include orders dealing with equitable interests in a trust. That line of authority holds that the affairs of a company (for the purpose of s 232) include the dealings conducted by the company and the property it holds, as trustee.[19] Further, s 232 may be engaged where the conduct of the company's affairs is oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member, whether in that capacity or in any other capacity. It is understood that where a member's interests are affected in some capacity other than that of membership, that other capacity must have close connection with the membership in order to attract relief. Whether there is a sufficiently close connection is determined on a case by case basis.[20] In Melrob v Blong, Bleby JA (in obiter) explained the application of s 232-233 in circumstances relevant to the present case, in these terms:[21]

...[I]t does not require a particularly broad reading of the section to conclude that where a member is, say a beneficiary of a fixed trust of which the company is a trustee, the wealth controlled by the company resides in that trust, oppressive conduct against the members in its capacity as beneficiary would qualify.

...

Where a members of a trustee company is also a director, the oppressive conduct is against the member in their capacity as director, and the economic benefits of being a director and a member are tied to the beneficial entitlements under the trust, it is, again, difficult to see that the member would necessarily be shut out from relief under s 233. Against, whether those relationships with the membership are too remote will depend on the facts.

42 On the authorities discussed, the conduct of which Arfa complains would be amenable to relief under s 233 of the Act. Further, as Arfa's counsel submitted, the circumstances are suggestive of a deadlock in the company, at least at present. Where a deadlock leaves the board unable to make decisions so as to conduct its affairs appropriately, oppression may be established.[22]

43 It is unnecessary to demonstrate that the defendant intends to frustrate the prospective judgment or that that is more likely than not to happen. It is sufficient to demonstrate a risk.[23]

44 Arfa relied upon the occurrence of the Disputed Transfer and transfer to Adil's personal account, submitting that his conduct in seizing the funds followed by the reversal of his assurance to repay the money and their removal to a further account was a significant indicator of dishonest conduct. That conduct, he submits, permits an inference that there is a risk of dissipation of assets.[24]

46 First, Arfa says that Adil is endeavouring to sell a property in Hampton Park, Victoria. The funds used to purchase that property were derived according to Arfa from the business activities of Ace Chef in which he has a 50% interest. The purchase was registered in the name of Adil and his wife.

47 Second, Arfa believes that Adil has purchased a property in Keysborough in November 2024, at a price of $1,350,000. Arfa is concerned that the funds the subject of the disputed transfer will be applied towards the purchase of the Keysborough property.

48 Further, Arfa is concerned that Adil may apply the funds the subject of the disputed transfer towards satisfaction of the director penalty notices or the ATO liabilities owed by Top Notch.

49 I am comfortably satisfied that the evidence establishes the existence of a risk that assets will be disposed of or diminished in value and that the Court's prospective judgment will be wholly or partly unsatisfied, if an order is not made. The evidence discloses a transfer of trust funds to a bank account controlled by Adil without evident justification, Adil's failure to return the funds despite saying that he would do so and despite saying that he had been wrong to take the funds, Adil's expectation that the taxation liabilities of Top Notch should be met from the proceeds of the sale of the Rangeview Property, the recent acquisition of property by Adil and the sale of other property.

50 The exercise of the power to make a freezing order is discretionary. I am satisfied that an exercise of discretion is appropriate, having regard to the 'good arguable case' and risk of dissipation of assets established on the material. The exercise of discretion is also supported by the consideration that the restoration of funds to the trust so that the trustee may properly exercise its powers (which is the substantive relief that Arfa is seeking) will not prejudice Adil's genuine interests as a beneficiary of the trust or as a member or director of the trustee company.

[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 37A(6).

[2] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 (Gaudron, McHugh, Gummow and Callinan JJ) (Cardile).

[3] Rozenblit v Vainer [2019] VSCA 164, [14], [19] (McLeish and Niall JJA) (Rozenblit).

[9] Zhen v Mo & Ors [2008] VSC 300, [25] (Zhen).

[13] Portbury Development Co Pty Ltd Ottedin Investments Pty Ltd [2012] VSC 147.

[15] Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 37A.02(4); Supreme Court of Victoria, Practice Note SC Gen 17: Freezing Orders, 30 January 2017, [4.9].

[17] Rozenblit, [19]; Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 37A.02(4); Supreme Court of Victoria, Practice Note SC Gen 17: Freezing Orders, 30 January 2017, [4.14].

[18] Vigliaroni v CPS Investment Holdings Pty Ltd [2009] VSC 428; (2009) 74 ACSR 282; (contra Trust Company Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 1334; (2010) 80 ACSR 485); Wain v Drapac [2012] VSC 156; Re Tsavaras & Sons Pty Ltd [2022] NSWSC 359; Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 (Melrob).

[20] Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95; (2008) 66 ACSR 359, [351]; Melrob, [116]-[120].

[22] See for example, Beaumont v Peel [2018] NSWSC 95, [13].

[23] DCT v Hua Wang Bank Berhad [2010] FCA 1014; [2010] 273 ALR 194 at [9] citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 (Gleeson CJ); Victoria University of Technology v Wilson [2003] VSC at [36].

[24] See Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319. I have summarised the substance of the reasoning in Patterson, in Rohan v Pavloff Investments Pty Ltd [2023] VSC 175, [58]-[60].