Applicant v Respondent

PRACTICE AND PROCEDURE - Appeal to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal - Must demonstrate a real prospect of success - Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 - Brondolino v Surf Coast Smash Masters Pty Ltd [2019] VSC 505 - Not a fact finding exercise on appeal - Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 - Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 - Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275 - Hoskin v Greater Bendigo City Council [2015] VSCA 350; (2015) 48 VR 715 - Court to avoid overly pernickety examination of reasons - Roncevich v Repatriation Commission (2005) 222 CLR 115 - Victorian Civil and Administrative Tribunal Act 1998, ss 148(1), 148(2A).

1 This proceeding is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The applicant, Rysze International Pty Ltd ("Rysze International"), seeks leave to appeal the Orders of Senior Member L Forde of the Victorian Civil and Administrative Tribunal ("VCAT" or "the Tribunal") made on 19 August 2021 in VCAT proceeding number BP 1436/2021. The Tribunal published reasons for the making of these Orders.[1]

2 The proceeding in the Tribunal in relation to which this proceeding is brought was an application by Rysze International for an interlocutory injunction to restrain the respondent in these proceedings, Mr Patrick See Yik Yong ("Yong") from dealing with the proceeds of sale of a property at 2/47 Drummond Street, Chadstone, Victoria ("the property"). The application before the Tribunal for an interlocutory injunction was dismissed.

3 The substantive dispute which is before the Tribunal within which the application for interlocutory injunctive relief was made concerns the application of the provisions of ss 61 and 62 of the Retail Leases Act 2003 ("the RLA") in the context of party obligations with respect to a lease and the assignment of the lease term. For the purpose of these proceedings, helpful background and context is provided in the Tribunal Reasons, as follows:

2 Much of the evidence is not in dispute. The background facts are set out below.

3. The applicant [Rysze International] is the registered proprietor of a property at unit 6, 1 Queens Road, Melbourne (the leased property).

4. At the time the applicant purchased the leased property it was tenanted by Empire on Queens Pty Ltd (original tenant) and the third and fourth respondents [Yong and his wife Mouy Siem Ngo, respectively] were guarantors under the lease (original lease).

5. On 30 July 2018 the original lease was transferred from the original tenant to the first respondent. The third and fourth respondents executed the transfer of lease dated 27 July 2018 agreeing to continue to be bound as guarantors if the first respondent breached the lease unless s 62 of the Retail Leases Act 2003 (RLA) or the guarantee in the lease required otherwise.

6. The applicant's position is that at the time of the transfer of lease, no disclosure statement by the original tenant was provided pursuant to s 61 (5A) of the RLA and as a consequence s 62 of the RLA did not apply.

7. The first respondent vacated the leased property in December 2018 with two years remaining on the initial term. The applicant's position is that the lease remained on foot and notwithstanding the abandonment by the tenant, the landlord did not re-enter the premises.

8. On about 3 May 2021 the applicant made written demand on all of the respondents for the sum of $286,117.59 being for unpaid rent and outgoings owing under the lease.

9. The second respondent [David Hua Guan, who is not a party to these Court proceedings], a guarantor of the obligations of the first respondent to the applicant, transferred his interest in a property in Kew to his wife on 14 May 2021. At the same time his father lodged a caveat over the Kew property. The applicant obtained an injunction in the Supreme Court on 25 June 2021 restraining the second respondent's wife from dealing with the Kew property until further order.

10. Since the 3 May 2021 letters of demand the applicant's claim has increased to $277,597.02 for rent, outgoings and interest and $63,500 for make good costs.

11. The third respondent [Yong] is the sole proprietor of the property having purchased it in 2009. The property was sold by auction on 16 July 2021. Settlement is due on 18 October 2021.

12. The applicant's evidence is that neither the third or fourth respondent [Yong and Mouy Siem Ngo, respectively] own any other real estate in Victoria. The applicant is concerned given the proximity of the sale to the applicant's 3 May 2021 demands that the third respondent has sold the property in order to put the net proceeds of sale out of the applicant's reach if and when the applicant obtains a judgement against the third respondent. The applicant is concerned that unless restrained there is a danger that a judgement or prospective judgement will be wholly or partially unsatisfied because the assets of the first respondent will be removed from the jurisdiction.[2]

13. The applicant seeks to restrain from the surplus of the sale proceeds after sale costs and payment to the mortgage provider, $341,097.02 to cover the amount due to it.

The position remains in these proceedings that the evidence with respect to these background facts is not in dispute. The present controversy concerns the basis upon which the Tribunal refused injunctive relief.

4 It is common ground between the parties to the present proceedings that the substantive proceedings in the Tribunal raise a serious question to be tried as to the application of the provisions of ss 61 and 62 of the RLA and the obligations of Yong and his wife, Mouy Siem Ngo, as guarantors of obligations under the original lease.

5 Rysze International filed a Notice of Appeal dated 8 September 2021 ("the Notice of Appeal") seeking to appeal the whole of the order made by the Tribunal on 19 August 2021.

6 By the Notice of Appeal, Rysze International seeks leave to appeal the order of the Tribunal pursuant to s 148 of the VCAT Act. At the commencement of the hearing in these proceedings, it was agreed that the matter should proceed as a combined or "rolled up" application for leave to appeal under these provisions and, if leave is granted, that the hearing should be treated as the hearing in the appeal itself. Accordingly, I have proceeded on this basis.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

...

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

It follows from this provision that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal".[3] It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal".[4]

8 The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[5]

The requirement for leave under s 148(1) of the [VCAT Act] "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the court do found the subject matter of the appeal".[6] It also confers a discretion about whether to grant leave[7] which an applicant must persuade the court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[8] It will ordinarily be necessary (in addition to a clearly articulated question of law)[9] for an applicant to make out a prima facie case[10] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[11]

9 An additional safeguard has since been imposed. Effective from 1 May 2018, the VCAT Act was amended to include s 148(2A).[12] The section provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

10 This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists,[13] sometimes referred to as the Hulls test.[14] Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[15] With respect to applications subject to the same test,[16] the Court of Appeal has said:[17]

the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success; that the "real chance of success" test is to some degree a more liberal test than the "hopeless" or "bound to fail" test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding.

11 The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT, a restraint long and more generally recognised in case authority. In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[18]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[19] The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties.

Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[20]

This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[21] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[22] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[23]

Additionally, "[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons."[24]

12 In terms of the parties' submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.

13 Moreover, the authorities also indicate and emphasise that it is not the function of the Court on an application under s 148 of the VCAT Act to substitute its own views on the evidence which is before the Tribunal, its relevance, significance and inferences which might be drawn from it. Thus, the Court of Appeal in Hoskin v Greater Bendigo City Council[25] said, with respect to an appeal pursuant to s 148 of the VCAT Act:[26]

9. Such an appeal is limited to an appeal on questions of law.[27]

10. It is not open to this Court to entertain further debate as to the merits of the Tribunal's decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.[28]

11. This Court's function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.

14 For the reasons which follow, I am not satisfied that the applicant has established any proper basis upon which leave to appeal should be granted. Moreover, as these reasons indicate, any appeal would, in my view, have failed in any event, even if leave to appeal were to have been granted.

15 Leave to appeal is sought with respect to the following questions of law as put by the applicant in the Notice of Appeal:

1. Did the Tribunal err in law in concluding at [38] of the Reasons that there was no real risk of the prospective enforcement process contemplated by the appellant being frustrated?

2. With respect to the concept of dissipation as relevant to a freezing order:

1. Did the Tribunal consider that the concept of "dissipation" required the appellant to prove that holder of the asset intended to place its assets out of the reach of a prospective judgment creditor;

2. assuming the answer to (a) is "yes", did the Tribunal err in law in approaching the question before it in that manner?

3. Did the Tribunal err in law in failing to properly apply the principles in Bradto v State of Victoria [2006] VSCA 89; (2006) 15 VR 65 in failing to come to the conclusion that the lower risk of injustice and balance of convenience favoured the appellant?.

16 The three grounds relied upon in support of the appeal are as follows:

Ground 1

1. On the undisputed evidence before the Tribunal:

1. the respondent and his wife, the fourth respondent below, intended to convert the property into cash in the near future;

2. the respondent and his wife intended then to, at an unspecified time, apply any cash thereby obtained to a further purchase of unspecified property which would likely be encumbered by a mortgage to secure the repayment of an unspecified sum;

3. the respondent had received the sum of $159,000 from the sale of a business;

4. there was no explanation before the Tribunal as to what had happened to that money.

2. Given those matters, it was not open to the Tribunal to come to the conclusion that there was no risk of enforcement being frustrated: Reasons [38]. This is especially so in circumstances where the respondent admitted that he and his wife intended to deal with the respondent's assets in a way which had a real risk of frustrating the enforcement processes of the courts and tribunals of Victoria.

Ground 2

3. The Tribunal's reasons do not expressly identify or state how the Tribunal understood or applied the concept of dissipation.

4. There was no onus on the appellant to establish or prove a positive intention on behalf of the respondent to frustrate the Tribunal's process or to prevent a prospective judgment being satisfied.

5. It is implicit in the manner in which the conclusion is expressed at [37]-[39] that the Tribunal considered that such an intention, together with:

1. the knowledge of the respondent and his wife of the claim of the appellant and

2. the subjective intention of the respondent behind the proposed dealing with the asset sought to be restrained;

were the focus of the Tribunal's inquiry.

6. The Tribunal failed to recognise or appreciate that the intended purchase could be calculated, objectively speaking, to have the effect of dealing with or diminishing the value of the assets of the respondent in a manner which would have the necessary effect of frustrating the process of the Tribunal. Such a consequence was sufficient to engage the Tribunal's jurisdiction to maintain the status quo pending trial. There was a danger that the prospective judgment debt would go unsatisfied because the sale proceeds might be dealt with in some other way.

7. The Tribunal referred at [12] of the Reasons to the affidavit of the appellant's director and the danger that the assets would be removed from the jurisdiction. That was not the only way the appellant put its case: see the affidavit of Rita Zhang dated 2 August 2021, paragraph [28].

Ground 3

8. The Tribunal was, in the circumstances of the case, bound to come to the conclusion that the lower risk of injustice favoured the appellant because:

1. the appellant had a good arguable case with strong prospects of success;

2. the respondent gave positive evidence that:

3. he was selling his only identified asset;

4. presently intended to apply the sale proceeds to the purchase of a further unspecified property;

5. there was no evidence that the respondent within a specified time needed to deal with the cash thereby obtained or any obligation, legal or otherwise to deal with the cash proceeds from the sale;

6. the respondent could encumber any property purchased in the future so as to diminish the value of the sale proceeds or equity available to the appellant for the purposes of execution of a judgment debt;

7. there was no evidence of any prejudice to the respondent or any other person if an interlocutory order was made.

9. The conclusion that the balance of convenience favoured the respondent and his wife was not open to the Tribunal on the evidence that was before the Tribunal.

10. The Tribunal failed to have any regard to the strength of the appellant's case in considering the lower risk of injustice.

11. The Tribunal failed to have any regard to the fact that the respondent had not provided any explanation for the disposition of the sale proceeds from the business in considering the lower risk of injustice.

17 The proceeding before the Court was helpfully conducted in a clear and focused manner by Mr Tsalanidis on behalf of Rysze International making the following clear at the outset:[29]

If I can cut to the chase and really articulate what is at the heart of our application for leave and it's this; that the learned Member fell into error in considering that the onus on the applicant for an interlocutory injunction was to prove that the intention or purpose of - it was necessary to prove that the intention or purpose of the respondent who had received the proceeds of sale was to dissipate them.

We respectfully contend that is not the law. It's sufficient to establish that the effect of what was proposed to be done had the consequence of putting those proceeds beyond the reach and ultimately frustrating the process of the Tribunal, given in this particular case that there is not an arguable case, but we say a strong and solid arguable case with very substantial prospects of success on the hearing before the Tribunal.

18 It was accepted by the parties that the interlocutory injunction sought in the Tribunal proceedings was and is in the nature of a freezing order or, more traditionally, a Mareva injunction. The principles to be applied with respect to the granting or continuation of a freezing order or Mareva injunction were set out by the Tribunal, as follows:[30]

27. Both parties made submissions in relation to the decisions of Yadlamalka Land Pty Ltd v Ragless & Anor[31] and Zhen v Mo.[32]

28. The decision in Yadlamalka involved an application to quarantine a portion of the proceeds of sale of a pastoral lease. Justice Hinton of the South Australian Supreme Court held that "a court will conclude that there is a danger that a judgement or prospective judgement will be wholly or partially unsatisfied if the court is satisfied on the evidence adduced that the refusal to make a freezing order would involve a real risk of such consequence.[33] His Honour stressed that "the relevant danger must be established by evidence and not merely asserted."[34]

29. Forrest J in Zhen v Mo had to consider whether a freezing order ought to be continued. The case helpfully sets out the relevant legal principles in determining such an application. Forrest J said:-

21. In determining this application I have applied the following principles.

22. First, that a freezing order, by its very nature, is a drastic remedy and 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.

23. Second, the order is not designed to provide security for the applicant's claim. It is solely directed to preserving assets from being dissipated, thereby frustrating the court process.

24. Third, the applicant bears the onus both in satisfying the Court that the order should be continued and in satisfying the Court as to the amount which is to be the subject of the order.

25. Fourth, that an order can only be made on the basis of admissible evidence which supports the contentions made by the party seeking the order. Speculation and guesswork is no substitute for either the facts or inferences properly drawn from proved facts.

26. Fifth, that before such an order can be made it is necessary that the applicant establish -

(a) an arguable case against the defendant; and

(b) that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the defendant's actions in either removing the assets or disposing or dealing with them so as to diminish their value.

27. Sixth, the balance of convenience must favour the granting of the freezing order.

28. Seventh, that there is no set process determining the exact nature of an order. The order will be framed according to the circumstances of the case.

29. Eighth, the applicant must establish with some precision the value of prospective judgment. The order should not unnecessarily tie up a party's assets and property.

30. Finally, there may be discretionary considerations which militate against the granting of a freezing order, such as delay in bringing the application on before the court or a lack of candour in the materials placed before the court.[35]

The parties accepted that the relevant principles were those set out in Zhen v Mo.[36] Though, as noted in the Tribunal Reasons, the applicant submitted Zhen v Mo could be distinguished because the application was not seeking to freeze all of the assets of Yong and his wife Mouy Siem Ngo, but rather only the proceeds of sale from the property.[37]

19 This does not, however, detract from the position of the parties in these proceedings that J Forrest J did state the relevant principles and, having regard to the submissions made in the present proceedings, I also take it that the parties would not doubt the statement of principle set out in Yadlamalka Land Pty Ltd v Ragless & Anor[38] to which reference was also made by the Tribunal in the passage set out above; particularly having regard to the fourth statement of principle by J Forrest J in Zhen.[39]

20 Reference was also made to a number of other authorities in relation to critical aspects of these principles in the present context, particularly Victoria University of Technology v Wilson ("Victoria University"),[40] Glenwood Management Group Pty Ltd v Mayo ("Glenwood Management")[41] and Hayden v Teplitzky ("Hayden").[42]

21 In Victoria University, Redlich J said:[43]

To maintain a Mareva or asset preservation order, as described by Kirby, J. in Cardile v LED Builders Pty Ltd,[44] a plaintiff must show that it has a good arguable cause of action and that there is a real risk of dissipation of assets that the defendant has within the jurisdiction, such that any judgment would not be satisfied: See Cardile v LED Builders Pty Ltd; Jackson v Sterling Industries Ltd;[45] Glenwood Management Group Pty Ltd. v Mayo;[46] Patterson v BTR Engineering (Aust) Ltd;[47] National Australia Bank Ltd v Dessau;[48] and Liquorland (Australia) Pty Ltd & Anor v Anghie & Ors.[49] The power to grant the order is part of the inherent jurisdiction of the court to prevent the frustration of its process: See Cardile v LED Builders Pty Ltd;[50] Patrick Stevedores Operation (No. 2) Pty Ltd v Maritime Union of Australia (No 3);[51] and Frigo v Culhaci.[52] The court will not by injunction require a defendant to give security to a plaintiff's claim: See National Australia Bank Ltd v Bond Brewing Holdings Ltd.[53] A mere claim by the plaintiff that the defendants intend to place assets beyond the plaintiff's reach will be insufficient: See Frigo v Culhaci.[54] The function of the Mareva order is to reduce the risk of an unscrupulous defendant seeking to render itself judgment-proof or to dispose of assets in a manner prejudicial to the plaintiff's ability to satisfy any potential judgment in the action: See Third Chandris Shipping Corporation v Unamarine SA (The Pythia; The Angelic Wings: The Genie;[55] Jackson v. Sterling Industries Ltd;[56] Liquorland (Australia) Pty Ltd v Anghie & Ors[57]and Western Australian Real Estate Investment Ltd v Pontoon Holdings Pty Ltd:[58] See also Spry, The principals of e_quitable remedies[59]_ and Meagher et al, Equity: doctrines and remedies.[60] The court will look to the effect rather than the purpose of the defendant's conduct in determining whether the court's processes are likely to be abused or frustrated: See Glenwood Management Group Pty Ltd v Mayo;[61] Beach Petroleum N L v Johnson;[62] Northcorp Ltd v Allman Properties (Australia) Pty Ltd;[63] and Hayden v Teplitzky.[64] The court's power to make such orders is discretionary but, like other injunctive relief, the balance of convenience between the parties must also be considered: See Consolidated Constructions Pty Ltd v Bellenville Pty Ltd.[65] The granting of the Mareva order, even to an innocent plaintiff, can wreak havoc with a defendant's business: See Meagher et al[66] and Frigo v Kulhachi.[67] Consequently, a high degree of caution is required when the court is invited to make such orders: See Cardile v LED Builders Pty Ltd. It is a drastic order which should not lightly be granted.

22 In Glenwood Management, Young CJ said:[68]

The next matter for consideration is whether the plaintiffs have shown that there is a risk that the defendant Mayo will remove assets from the jurisdiction. This question can be dealt with more briefly for Mayo has made no secret of the fact that he has for some years had the intention or at least the desire to enter into business in the United States and to take his family to live there, at any rate, temporarily. He is currently engaged in making arrangements to leave for the United States and although he intends to retain his house in Melbourne and to let it whilst he is abroad, there is no evidence as to whether the house would realise sufficient to cover a judgment in favour of the plaintiffs for the amount claimed after satisfying any mortgages to which it might be subject. On the whole of the evidence it is reasonable to draw the inference that Mayo would, unless restrained, seek to transfer his assets and those of Pacific Cove out of the jurisdiction.

The conclusion I have just expressed was barely disputed in argument, (save that Mayo said that high interest rates were an incentive to keep assets in Australia) but it was submitted in effect that the plaintiffs had failed to establish the appropriate risk because, it was said, in determining whether to grant a Mareva type injunction the court is primarily concerned to prevent an abuse of the process of the court. It was pointed out that Mayo's transfer to the United States was a perfectly legitimate business decision, considered for some considerable time, not in any way concealed and taken before he had any notice of the present proceedings. Therefore it was said that there could be no abuse of process involved.

It is true that a Mareva order is not to be used to provide a plaintiff with some security over a defendant's assets or to rewrite the law of insolvency: see Iraqi Ministry of Defence v Arcepey Shipping Co SA [1981] Q.B. 65, at p. 72. It is true also that it has been said that the granting of a Mareva injunction is intended to prevent a perceived abuse of the court's process: Pearce v Waterhouse [1986] VicRp 57; [1986] V.R. 603, at p. 605. But neither proposition involves the consequence that a plaintiff must show that there is a risk that there will be an abuse of the process of the court in the ordinary sense of that expression. What a plaintiff must show is "some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied": per Lord Denning M.R. in Third Chandris Shipping Corporation v Unimarine S.A. [1979] Q.B. 645, at p. 669. Moreover, in the only case, so far as I am aware, where the question has been asked, does the plaintiff have to show that the disposal of assets is intended to frustrate a judgment, the answer given was, "No". The court is concerned with effect rather than purpose: see The Niedersachsen [1983] 1 W.L.R. 1412, especially at p. 1422.

Additionally, reference was made to the statement in this case with respect to the balance of convenience where Young CJ said:[69]

I turn to the balance of convenience. A Mareva injunction should not be granted unless the balance of convenience is in the plaintiffs' favour. In this case the convenience to the plaintiffs is obvious. Without an injunction they are likely to be unable to recover the fruits of any judgment they may obtain.

If the order in the present form were to be maintained it is difficult to know the precise impact that the order would have upon Mayo. This is because the court has little information about Mayo's assets or about the extent of his business activities here or in the United States. It may be that some assets have already been transferred to the United States, not in an attempt to frustrate any judgment which the plaintiffs might obtain, but in pursuance of Mayo's legitimate plans. Care must be taken to avoid unnecessary harm to the defendant but if he does not specify the inconvenience which the order sought would cause him and if the plaintiff has shown justification for an order, the injunction should be granted.

In this case the balance of convenience is to be decided by weighing the strength of the plaintiffs' case for an injunction against the potential harm to the defendant. Subject to what I shall say in a moment, I think that the balance of convenience favours the plaintiff.

23 In Hayden, Lindgren J said, relevantly but in a slightly different context:[70]

[In Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612] Wilson and Dawson JJ, after noting that initially the Mareva injunction was of limited scope being available only against a foreign defendant with movable assets within the jurisdiction, continued (at 617):

"Some broader rationale was needed both to explain and fashion the eventual extension of the remedy to defendants resident within the jurisdiction and to the dissipation of assets within the jurisdiction for the purpose of defeating any judgment: ... It was to be found in the notion that the purpose of the Mareva injunction was to prevent the abuse of the process of the court by the frustration of its remedies: Iraqi Ministry of Defence v. Arcepey Shipping Co. S.A. (the 'Angel Bell') [[1981] QB 65, at p 72]." (Emphasis added)

The judgments of Toohey and Gaudron JJ do not favour one view or the other.

In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 (CA) (Patterson), Gleeson CJ said (at 321-322):

"The remedy is discretionary, but it has been held that, in addition to other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant's absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied."

This passage does not refer to the defendant's purpose. On the other hand, it is not inconsistent with an insistence upon the presence of a purpose of defeating the plaintiff. Indeed, the conjunctive reference to "absconding" arguably suggests that the Chief Justice contemplated that the other acts to which he referred would also be accompanied by a purpose of frustrating the plaintiff.

24 The applicant submitted that for the purposes of the application before the Tribunal, it was necessary for Rysze International to demonstrate that it had a good arguable case, there was a serious issue to be tried, and that the balance of convenience favoured the making of the order sought. In determining the balance of convenience, because of the nature of the order sought, being an order in the nature of a partial freezing order, it was necessary, it was said, to identify and satisfy the Tribunal that there was a real risk of dissipation. In that determination, the applicant submitted, that the Tribunal was required to apply the test identified in Bradto Pty Ltd v State of Victoria,[71] namely "the lower risk of injustice". This position does, of course, reflect the position in the authorities to which reference has been made, particularly the decision of Young CJ in Glenwood Management.[72]

25 As submitted by the applicant, their being a serious issue to be tried was not the subject of any dispute at the hearing before the Tribunal and, as indicated previously, is not a position doubted in the present proceeding. Thus, the applicant contends, that the central focus of the argument before the Tribunal was the risk of dissipation and that it was on this issue where the Tribunal fell into error. In support of this position, the applicant made particular reference to the first sentence in paragraph 38 of the Tribunal's Reasons: "The applicant has not provided any evidence of there being a real risk of the prospective enforcement contemplated by the applicant being frustrated if a freezing order is not made". On the contrary, the applicant submits, the admitted future intention of the respondent and his wife was itself what constituted that real risk. In this respect, it is said that the respondent told the Tribunal that he intended to settle the sale of the property, obtain cash and, in the future, purchase a different property.

26 Pursuing this line of argument, the applicant observes, first, that cash is liquid and can be dissipated simply. Secondly, if the cash was retained, and put to its suggested use in purchasing another property, a future mortgagee of the "unidentified-to-be purchased property" would take priority over any prospective enforcement.[73] The relevance to these submissions is the observation on the evidence, which was made at the hearing in this matter, that in the course of an attempted purchase of a property in December 2020 by the respondent's wife, a contract was entered into subject to finance to the extent of $1 million to be funded by the Commonwealth Bank of Australia secured by a mortgage. That purchase did not proceed as the extent of the bank's willingness to finance that purchase was only to the extent of $340,000. Thus, the applicant emphasised the point that any future property purchase would probably require extensive finance and that the entering into of a security arrangement for that purpose with a third party financier in respect of the assets of the respondent would be a dealing with the asset which carried a risk of the frustration of the Tribunal's enforcement process.

27 In light of these matters, the applicant submits:[74]

21. The failure of the Tribunal to deal with these issues in its Reasons is demonstrative of the misapplication of principle. No reasonable Tribunal could have failed to deal with these matters expressly. They went to the heart of the risk of dissipation, and no express regard or reference was had to them in the Reasons. On the contrary, the finding in paragraph 38 of the Reasons was that there was no evidence of any real risk of dissipation.

22. A Court or here a Tribunal need not be satisfied that the risk of dissipation is more probable than not; and there does not necessary need to be any evidence of any intention to dissipate.[75] The jurisdictional basis for relief of this kind "is directed to dispositions ... which are intended to frustrate, or have the necessary effect of frustrating, the plaintiff in his attempt to seek through the court a remedy for the obligation to which he claims the defendant is subject".[76] Further, although the Court must be cautious before making freezing orders, "it must be borne in mind that the "very purpose of a freezing order is to ensure that assets are not alienated so as to avoid or frustrate the court process'".[77]

28 The applicant's submissions continue, on the basis that the error of law said to be identified in its preceding submissions engages both Grounds 1 and 2 of the Notice of Appeal:[78]

24. As to Ground 1, the matters set out in paragraph 1 of the Notice were matters that were the subject of undisputed evidence before the Tribunal. On the proper application of the relevant legal principles identified in [22] above, it was not open to the Tribunal to come to the conclusion that there was no risk of enforcement being frustrated as it otherwise found in paragraph 38 of the Reasons.

25. As to Ground 2, there is no identification in the Reasons of any of the matters identified in paragraph 3 of the Notice, let alone any of the principles identified in [22] above. Those matter make plain that it was sufficient for Rysze to establish that deal with the sale proceeds would have had the necessary effect of frustrating the Tribunal's enforcement processes. Unless the Tribunal considered that a positive intention to frustrate processes was necessary, then it would not have referred in paragraphs [36]-[38] of the Reasons, and considered as relevant, the facts of timing of knowledge of the claim of the appellant against the respondent and the embarkation of a course of conduct that was otherwise ordinary and innocent.

26. This error infected the findings set out in paragraphs [36]-[39] of the Reasons.

27. As a result, there was a failure on the part of the Tribunal to have proper regard to the matters set out in paragraph 6 of the Notice of Appeal under Ground 2.

29 The applicant then seeks to identify further errors of law in Ground 3, contending that the Tribunal failed to have regard to the strength of the applicant's case in considering the lower risk of injustice. For the reasons which follow, I am of the view that the matters raised in Ground 3 do not arise having regard to the position I have found with respect to Grounds 1 and 2, as indicated in the discussion which follows. Moreover, I express no opinion, as it would be entirely inappropriate to do so, as to whether the applicant's substantive case against the respondent is strong or otherwise in the present circumstances; merely observing that it is common ground between the parties that in this respect there is a serious question to be tried.

30 The respondent submitted, on the other hand, that the Tribunal had made no error or errors of law as contended by the applicant. Moreover it was submitted that the applicant was seeking to have the Court do what is not open to it in a proceeding such as the present one, namely to debate the Tribunal's decision on the facts in circumstances where conclusions made by the Tribunal on the facts were open to it.[79] In my view the position put by the respondent in these respects is critical in the present context, and entirely correct. I also accept the respondent's submissions with respect to Grounds 1 and 2, and on the basis of the reasons as put. More specifically, the respondent submitted:[80]

GROUND 1

5. The argument of the applicant amounts to a submission that this court should substitute its own findings on the evidence for the findings of the tribunal.

6. The tribunal did not find that there was no risk of enforcement being frustrated. It found:

"The applicant has not provided any evidence of there being a real risk of the prospective enforcement process contemplated by the applicant being frustrated if a freezing order is not made. At best it is conjecture and suspicion."

7. The tribunal was entitled to make this finding upon the evidence filed by the applicant. This evidence is set out in paragraphs 23-28 of the affidavit of Rita Zhang sworn on 2 August 2021.[81] This evidence amounts to an assertion that the respondent was selling his only real estate property. This was not disputed, but was explained by the respondent, in his affidavit of 11 August 2021.[82] Apart from this evidence the only other evidence in favour of dissipation to frustrate enforcement process is paragraph 28 of Ms Zhang's affidavit.[83] That paragraph is simply an assertion and a statement of her subjective concern.

8. In light of this material the tribunal was entitled to find as it did. This appeal court should not interfere with that finding because it is not glaringly improbable or contrary to compelling inference (see Munday v St Vincent's Hospital Ltd[84] and Lee v Lee[85]). The test is not one of what a "reasonable" tribunal would do as submitted by the applicant.[86] It is that the finding should be glaringly improbable. The applicant's submissions pay insufficient heed to the numerous statements of principle in the authorities[87] that a "Mareva" type freezing order is a drastic remedy and that 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. From this standpoint, the issue of risk of dissipation of assets is not the only inquiry the court must make in deciding whether to exercise its discretion to grant an order. The competing interests of justice to the parties is also a relevant consideration.

9. Further, the decision as to whether to grant an interlocutory injunction or not is a discretionary decision which is to be accorded a strong presumption of correctness (House v R[88]).

10. The tribunal correctly applied the principles set out by Forrest in Zhen v Mo.[89] It applied the correct test to find that the applicant had the onus to provide appropriate evidence that enforcement of process would be frustrated, that it had not done so in light of the paucity of evidence and that such evidence was mere conjecture and suspicion.

GROUND 2

11. The tribunal has not erred in deciding the issue of risk of dissipation against the applicant.

12. A fair analysis of the tribunal's reasons does not demonstrate that its focus on the issue of dissipation was the subjective intention of the respondent and his wife. At paragraph 31 of the reasons[90] the tribunal recites a submission for the respondent which alludes to the intention of the respondent. However, in the findings at paragraph 39,[91] the tribunal states that the selling of the property is not sufficient evidence of dissipation. That finding is based on the objective facts surrounding the sale, including the matters set out at paragraphs 36 and 37.[92] The intentions of the respondent were not the focus of the tribunal; the objective facts were.

13. Further, as stated above, the issue of risk of dissipation is not the only matter relevant to the exercise of the tribunal's discretion as to whether to grant an order or not. Broader questions of justice are also relevant.

14. The assertions in paragraph 6 of ground 2 in the Notice of Appeal suffer from the same vice as the matters raised in ground 1, namely they amount to a collateral attack upon the findings of fact of the tribunal. This argument should fail for the reasons referred to above.

31 In the course of oral submissions Mr Flower, on behalf of the respondent, made a number of further points. In so doing he made reference to the judgment of the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) where the Court said:[93]

Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word "appeal", it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review.

32 In so doing the respondent sought, and in my view quite correctly, to emphasise that it is not for this Court to "second guess" the Tribunal by substituting its own findings of fact on the evidence before the Tribunal.

33 In relation to the decisions relied upon by the applicant which stand for the proposition that the jurisdictional basis for the grant of a freezing order is a disposition of property "intended to frustrate or have the effect of frustrating" the court or tribunal process,[94] the respondent submitted that "in deciding the ultimate issue of effect, the factual matrix surrounding the dealing with the asset is relevant to consider; and in considering the factual matrix, the actions and stated intention of the parties ... are relevant to the fact finding issue in determining the ultimate issue of the effect of a conduct, and that is referred to in the judgment of, or alluded to at least, in the judgment of Young CJ in Glenwood".[95] In that case the evidence was that the respondent intended to move to the United States for business and to take his family with him, hence the respondent's conduct was sufficient to show that the effect of his conduct would be to put assets beyond the reach of a potential judgment creditor. Similarly it is said that the statement of Redlich J in Victoria University[96] which was relied upon by the applicant supports the view that whilst the ultimate question is the effect of the conduct, the acts, facts and circumstances giving rise to that effect can include the circumstances surrounding the conduct, which could include intention.[97] In my view it is clear that in dealing with these matters neither Young CJ nor Redlich J considered the relevant issues in some "factual vacuum". Factual context will almost invariably be of great importance and it is not, for example, sufficient to make critical inferences merely because an asset has been converted into a more liquid or moveable form. To proceed otherwise is to risk entering into "speculation and guesswork" of a kind warned against by Jack Forrest J in Zhen v Mo.[98]

34 Finally, in relation to evidentiary matters the respondent submitted that it was open to the Tribunal to accept the sworn evidence of Yong as to intention and otherwise; including, particularly, as to sale arrangements for the property, text messages with an agent's representative in relation to sale arrangements, his family position with respect to housing and their intentions in that respect. The other important aspect of these submissions is that this evidence was as to unremarkable family arrangements and intentions. Moreover the point was made that the proposed purchase of another property in the name of Yong's wife, Mouy Siem Ngo, could not be regarded as indicative of any intention to put assets out of reach of any order of the Tribunal having regard to the fact that she, with her husband, is also a guarantor of the relevant lease. I accept the respondent's submissions in these respects. Indeed, it would be a most unsatisfactory position were courts or tribunals prepared to constrain unremarkable domestic financial arrangements by freezing order or Mareva injunction merely because the result was the generation of more liquid or more moveable assets.

35 For the preceding reasons I am of the opinion the Tribunal has made no error of law in refusing the interlocutory injunction sought by the applicant in the VCAT proceedings. In particular, I accept the submissions by the respondent that the findings of the Tribunal on the evidence were open to it. Moreover, I am also of the view that in the circumstances of this matter to find otherwise could only be the result of an impermissible exercise by the Court of embarking on its own assessment for the evidence before the Tribunal and substituting its own factual findings.

36 There were some issues raised by the applicant with respect to some aspects of the evidence, or lack of it, before the Tribunal and as to some suggested factual inaccuracies in its treatment by the Tribunal. However, as indicated, there was no aspect of its treatment which would, in my view, render the findings made by the Tribunal as anything but properly open to it. Neither, for reasons indicated previously, do I think that the Tribunal treated the onus of proof with respect to the application for the interlocutory injunction - a freezing order or Mareva injunction - as other than in accordance with the authorities to which reference has been made, particularly Zhen v Mo.[99]

37 It is also very clear from these authorities that a freezing order or Mareva injunction is by its nature "a drastic remedy and 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".[100] Issues of prejudice are also relevant in this respect and a balancing of interests is necessarily required - thus the balance of convenience between the parties which involves weighing the strength of an applicant's case as plaintiff against the potential harm to the defendant. This is highlighted particularly in Victoria University,[101] Glenwood Management[102] and Bradto Pty Ltd v State of Victoria.[103] It follows though that these issues only arise if there is jurisdiction to grant such an order or injunction. As I have found no error of law on the part of the Tribunal, this jurisdiction was never enlivened and so these issues (the subject of Appeal Ground 3) do not arise.

38 Thus the applicant has failed to show any real prospect of success with respect to any of the grounds of appeal on which it relies. The applicant's application for leave to appeal fails and leave is refused.

39 The parties are to bring in orders to give effect to these reasons.

40 I reserve the question of costs and will hear the parties on this issue in the event that a party seeks to be heard. It may, however, assist the parties to know that my preliminary view is that costs should follow the event and on a standard basis.

[1] Rysze International Pty Ltd v Empire Queens Road Pty Ltd (Building and Property) [2021] VCAT 957 ("Tribunal Reasons").

[2] Affidavit of Rita Zhang sworn to August 2021.

[3] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners' Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55-6 [28].

[4] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 at 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.

[5] (2011) 83 ATR 832 at 833-4 [3].

[6] Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd (2010) 2010 ATC 20-232 at 11,839 [10];

[2010] VSC 608; 81 ATR 682 at 687 [10] per Davies J.

[7] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[8] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J.

[9] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21]; [2010] HCA 24; 84 ALJR 528 at 536 [21]; [2010] HCA 24; 267 ALR 231 at 240 [21] per French CJ, Gummow and Bell JJ.

[10] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J; Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335 [10]; [1999] VSCA 117; 15 VAR 360 at 366 [10].

[11] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-336 [11]; [1999] VSCA 117; 15 VAR 360 at 366 [11] per Phillips JA; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20] and 77 [65] per Hollingworth J.

[12] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).

[13] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[14] See Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) 871.

[15] The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT, with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) 874-7.

[16] Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has "no real prospect of success".

[17] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47, [3]-[14].

[18] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[19] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[20] (Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[21] (1971) 38 LGRA 6 at 18.

[22] (1980) 44 LGRA 65 at 67-8.

[23] (1985) 62 LGRA 346 at 349-50.

[24] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].

[25] [2015] VSCA 350; (2015) 48 VR 715.

[26] [2015] VSCA 350; (2015) 48 VR 715 at 720, [9]- [11]; and see Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at 6, [22] (CA); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771 at 782, [41] and 805, [162], [165](CA); and Maund v Racing Victoria Ltd [2016] VSCA 132 at [67].

[27] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59 [44].

[28] S v Crimes Compensation Tribunal [1998] 1 VR 83, 88-93; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59 [44].

[31] [2018] SASC 131.

[32] [2008] VSC 300.

[33] [2018] SASC 131 at [42].

[36] [2008] VSC 300.

[38] [2018] SASC 131.

[39] [2008] VSC 300, [25].

[40] [2003] VSC 299 (Redlich J).

[41] [1991] VicRp 45; [1991] 2 VR 49 (Young CJ).

[42] (1997) 74 FCR 7 (Lindgren J).

[43] [2003] VSC 299, [24].

[44] [1999] HCA 18; (1999) 198 CLR 380 at 412.

[45] [1987] HCA 23; (1987) 162 CLR 612.

[46] [1991] VicRp 45; [1991] 2 VR 49.

[47] (1989) 18 NSWLR 319.

[48] [1988] VicRp 58; [1988] VR 521 at 524.

[49] [2001] VSC 362 per Warren J.

[50] See [1999] HCA 18; (1999) 198 CLR 380 at 412.

[51] (1998) 195 CLR 1 at 32.

[52] [1998] NSW CA Unreported 17 July.

[53] [1991] VicRp 31; [1991] 1 VR 386 per Brooking J at 553.

[54] See [1998] NSW CA Unreported 17 July.

[55] [1979] 1 QB 645.

[56] See [1987] HCA 23; (1987) 162 CLR 612.

[58] [1999] WASC 162 at paragraph 11 per Miller J.

[59] Spry, I.C.F. (2001) The principles of equitable remedies: specific performance, injunctions, rectification and equitable damages (6th ed.) Pyrmont, NSW, Law Book Co. at 514.

[60] Meagher, R.P. et al (1992) Equity: doctrines and remedies, Sydney, Butterworths at paragraph 2185.

[61] [1991] VicRp 45; [1991] 2 VR 49.

[62] (1992) 9 ACSR 404.

[63] [1994] 2 Qd R 405.

[64] (1997) 74 FCR 7 per Lindgren J.

[65] [2002] FCA 1513.

[66] See Meagher et al Footnote 26 at paragraph 2188.

[67] See[1998] NSW CA Unreported 17 July.

[68] [1991] VicRp 45; [1991] 2 VR 49 at 53.

[69] [1991] VicRp 45; [1991] 2 VR 49 at 54.

[70] (1997) 74 FCR 7 at 16.

[71] [2006] VSCA 89; (2006) 15 VR 65, 73 [35].

[72] [1991] VicRp 45; [1991] 2 VR 49 at 54.

[73] Applicant's Outline of Submissions (27 October 2021), [19].

[74] Applicant's Outline of Submissions (27 October 2021), [21] and [22].

[75] Platinum Mortgage Security (Vic) Ltd [2015] FCA 633 [8], citing Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) [2012] FCA 1064 [23] (Perram J).

[76] Deputy Commission of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 [10] (Kenny J), quoting Riley McKay Pty ltd v McKay [1982] 1 NSWLR 264, 276 (Street CJ, Hope JA and Rogers AJA) (Kenny J's emphasis).

[77] Deputy Commission of Taxation v Gashi (2010) 27 VR127, 134 [33] (Bell J), quoting Deputy Commissioner of Taxation v AES Services (Aust) Pty Ltd [2009] VSC 418 [34] (Forrest J).

[78] Applicant's Outline of Submissions (27 October 2021), [24]-[27].

[80] Respondent's Outline of Submissions (10 November 2021), [5]-[14].

[81] Affidavit of Michael Jonathan Kenny sworn 15 September 201, exhibit MJK-1 (Exhibit "MJK-1"), page 16.

[86] Paragraph 21 of applicant's outline.

[87] Eg, Zhen v Mo [2008] VSC 300.

[90] Exhibit MJK-4 to the affidavit of Michael Jonathan Kenny sworn 15 September 2021.

[93] (2001) 207 CLR 72 at 79, [15]; and see House v The King (1936) 55 CLR 499 at 504-5 where Dixon, Evatt and McTiernan JJ said: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course".

[94] See above, [27]; and also the decisions referred to above, [18]-[23].

[95] Transcript p. 47; and see above, [22].

[96] [2003] VSC 299, [24]; and see above, [21].

[98] [2008] VSC 300, [25]; and see above, [18].

[99] [2008] VSC 300, [25] (Jack Forrest J); and see above, [18]-[23].

[100] Zhen v Mo [2008] VSC 300, [22] (Jack Forrest J); and see above, [18].

[101] [2003] VSC 299 (Redlich J), [24]; and see above, [21].

[102] [1991] VicRp 45; [1991] 2 VR 49 at 53-4; and see above, [22].

[103] [2006] VSCA 89; (2006) 15 VR 65 at 73, [35].