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[2025] NSWSC 1043
General information, not legal advice.
Supreme Court of NSW
2025-09-11
Bennett J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Australia Wide Lining Pty Ltd v DECC Credit Pty Ltd [2025] NSWSC 1043
Hearing dates: 8 September 2025
Date of orders: 9 September 2025
Decision date: 11 September 2025
Jurisdiction: Equity - Duty List
Before: Bennett J
Decision: Freezing order granted, orders made on 9 September 2025 annexed to these reasons
Catchwords: CIVIL PROCEDURE — Interim preservation — Freezing orders — Ex parte application for order under Uniform Civil Procedure Rules 2005 (UCPR), r 25.14 — Where funds paid by first defendant into Court for payment of judgment debt subsequently released — Where first defendant has not yet paid the judgment debt and offered no response to plaintiff’s statutory demand, garnishee order and certificate under the Contractors Debt Act 1997 — Whether there is good and arguable case — Whether there is risk of funds being disposed of, dealt with or diminished in value — Whether freezing order should be made against “third parties” under UCPR, r 25.14(5)
Legislation Cited: Conveyancing Act 1919 (NSW), s 37A
Uniform Civil Procedure Rules 2005 (NSW), r 25.14
Cases Cited: MaxRelief USA Inc v 365 Health Australia Pty Limited ACN 151 146 997 [2024] NSWSC 491
Category: Procedural rulings
Parties: Australia Wide Lining Pty Ltd (Plaintiff)
DECC Credit Pty Ltd (First Defendant)
DECC Pty Ltd (Second Defendant)
DECC Credit (NSW) Pty Ltd (Third Defendant)
DECC Credit (QLD) Pty Ltd (Fourth Defendant)
VF4 Properties Pty Ltd (Fifth Defendant)
Frank Lombardi (Sixth Defendant)
Vincenzo Di Falco (Seventh Defendant)
Marie Lombardi (Eighth Defendant)
Representation: Counsel:
M Davis (Plaintiff)
Solicitors:
Enterprise Legal (Plaintiff)
File Number(s): 2025/00345667
Publication restriction: Nil
By Summons filed in Court on 8 September 2025, the plaintiff, Australia Wide Lining Pty Ltd, sought ex parte freezing orders against eight defendants: DECC Credit Pty Ltd (DECC Credit), DECC Pty Ltd (D****ECC), DECC Credit (NSW) Pty Ltd (DECC Credit (NSW)), DECC Credit (QLD) Pty Ltd (DECC Credit (QLD)), VF4 Properties Pty Ltd (VF4), Frank Lombardi, Vincenzo Di Falco, and Marie Lombardi (together, the defendants).
The ex parte application came before the Court in the Duty List on Monday, 8 September 2025 at which time the application was heard by me. Mr M Davis of counsel appeared for the plaintiff, who made oral submissions and otherwise relied on written submissions of Mr J Dooley of counsel dated 8 September 2025 (PWS). The plaintiff read and relied on an affidavit of Peta Joy Gray affirmed 8 September 2025 (Affidavit) and Exhibits PJG-1 to PJG-12 (Exhibit****s). Ms Gray is the solicitor with conduct of this matter for the plaintiff.
I made the orders as sought (with slight non-substantive amendments) (the freezing orders) at 10:00am on Tuesday, 9 September 2025. A copy of those orders is annexed to these reasons.
At the time of making the freezing orders, I informed the plaintiff I would provide my written reasons for decision at a later time.
I have sought to deliver these reasons as expeditiously as possible given the ex parte nature of the application and having regard to the significance of the orders to the defendants. These are my reasons for making the orders.
The plaintiff was a subcontractor of DECC Credit, which in turn is a contractor to Wollongong City Council. The subcontract is dated 15 March 2024 (the Subcontract).
Mr Lombardi is the sole shareholder and director of DECC Credit, DECC, and DECC Credit (NSW).
Mr Di Falco is the sole director and shareholder of DECC Credit (QLD) and appears to be its “Queensland Manager”.
The directors and shareholders of VF4 are Mr Di Falco and Ms Lombardi. As Ms Lombardi shares a common last name with Mr Lombardi, and they share a common street address, the plaintiff has inferred that Mr Lombardi and Ms Lombardi are related or married.
On 20 May 2025, the plaintiff issued a payment claim on DECC Credit.
On 3 June 2025, DECC Credit issued a payment schedule.
On 17 June 2025, the plaintiff applied for an adjudication under the Building and Construction Industry (Security of Payment) Act 1999 (NSW).
On 25 June 2025, DECC Credit issued an adjudication response.
On 4 July 2025, an adjudicator issued an adjudication determining that $1,733,741.97 was owing from DECC Credit to the plaintiff (the adjudication decision). The plaintiff received the adjudication decision on 9 July 2025. The adjudication decision also included determinations that DECC Credit was to pay the plaintiff interest on the money it was found to owe, and that DECC Credit was to pay 100% of the adjudication fees and expenses.
There are three sets of proceedings between the plaintiff and DECC Credit associated with the adjudication decision or the Subcontract (Affidavit at [11]).
On 18 July 2025, DECC Credit filed a Summons in this Court, seeking to restrain the plaintiff from obtaining an adjudication certificate or a judgment in connection with the adjudication decision. On the same day, Peden J made ex parte orders (18 July Orders) broadly in the form sought by DECC Credit.
The 18 July Orders made by Peden J required DECC Credit to pay money into Court. Consequently, on 21 July 2025, as required by the 18 July Orders, DECC Credit paid into Court the sum of $1,733,741, that sum evidently being the sum which was payable by DECC Credit.
On 22 July 2025, following a contested hearing, Peden J made orders (22 July Orders) that were described by the plaintiff in these proceedings in the following way (PWS [14]):
“… Peden J dissolved the injunction. The effect of that was the plaintiff was able to file the adjudication certificate as a judgment, and enforce it accordingly (s 25 of the BACISOP Act): DECC Credit Pty Ltd v Australia Wide Lining Pty Ltd [2025] NSWSC 826. Her Honour ordered the release of $1,733,741.97, which had been paid into court by DECC Credit Pty Ltd. This may have been in the expectation that DECC Credit would follow the ‘pay now fight later’ regime of the BACISOP Act. Her Honour made further orders (varying one of the orders of 18 July 2025) on 25 July 2025.”
On 31 July 2025, the plaintiff obtained a “Notice of Orders Made” in the form of a judgment order in this Court (which appears to have been made on 30 July 2025) in the amount of $1,791,637.19 (the Notice) in respect of the adjudication determination (a copy of which was included in the documents before the Court (Exhibits at p 38)).
The plaintiff has more recently discovered five key “events” that caused concern and underpin the current ex parte application:
The day prior to the funds being released from the Court (ie, 22 July 2025), DECC (of which Mr Lombardi is the sole shareholder and director) registered (on the Personal Properties Securities Register (PPSR)) a Security Interest against DECC Credit (the judgment debtor, of which Mr Lombardi is also the sole shareholder and director) in relation to a General Security Agreement (the Security Agreement). There are no other related-entity PPSR registrations. The plaintiff is concerned that the effect of the Security Agreement is that, if DECC Credit is wound up, DECC would take priority over the plaintiff.
The Commonwealth Bank has advised that it has only $8,000 available to meet the garnishee order, despite the release of over $1.7 million from Court (per the 22 July Orders).
The information referred to above (per the second event) indicated that the estimated $1.7 million that had been paid into Court was not paid to DECC Credit, and the plaintiff does not know where the amount was paid.
In order to meet the statutory demand, DECC Credit has filed a new proceeding, seeking significant damages in respect of an alleged delay by the plaintiff in performing works. The plaintiff does not ask this Court to adjudicate on this issue (noting the Court is not in a position to do so). However, the plaintiff anticipates that in response to DECC Credit’s claim, it will contend the claim is fatally flawed as there is a liquidated damages clause which solely deals with delay damages, which, importantly is capped at 5% of the contract sum. The plaintiff submitted that the 5% cap, if operative, would mean the offsetting claim would be insufficient to resist the statutory demand (the offsetting claim). In their submissions, the plaintiff accepted that those proceedings would need to take their course.
On 21 August 2025, the day the Summons and Commercial List Statement were filed (in relation to the alleged offsetting claim), DECC Credit (NSW) and DECC Credit (QLD) were incorporated. As to these, Mr Lombardi is sole director and shareholder of DECC Credit (NSW), and Mr Di Falco is sole director and shareholder of DECC Credit (QLD). On 22 August 2025 Mr Di Falco and Ms Lombardi were appointed as directors and shareholders of VF4.
In its application before me, the plaintiff referred to the five events as a “flurry of activity” which was said to give rise to a real concern that the defendants were taking steps to render nugatory a judgment in this Court by setting up new companies into which the $1.7 million paid out of Court could be transferred, so as to frustrate the Court’s processes and keep the judgment money out of the hands of the plaintiff. On this issue the plaintiff made the further submission (at PWS [23]):
“The court can comfortably conclude that there is a serious question that DECC Credit Pty Ltd has no intention of paying the judgment, despite Peden J ordering the release of funds to it; that the funds released by the court are not in the possession of DECC Credit Pty Ltd; and that there are steps being taken in the DECC group to keep out of the plaintiff’s hands the fruits of the judgment ordered to be paid to it, by the lodgement of security interests and creation of other companies, with distancing of Frank Lombardi from some of them.”
“[28] It could fairly be said that the case against the parties other than DECC Credit Pty Ltd is inferential, based on a combination of facts, and curiosities in timing, rather than any firm evidence.
[29] In ‘reply’ to that, the circumstances are such that full investigations are not possible without the defendants being given time to further their (inferred) aims without an order protecting the concern of the court to make sure its judgments are paid; and the circumstances are such that a serious question arises.”
“These facts give rise to a serious question to be tried as to the following causes of action:
(a) Section 37A of the Conveyancing Act 1919 (NSW) [Conveyancing Act]: There is a serious question about whether DECC Credit Pty Ltd has alienated property (namely the $1.7 million) with an intent to defraud creditors, namely the plaintiff. The transaction pursuant to which that was effected is voidable at the suit of the plaintiff, for example, if there has been an intra-company loan.
(b) Unconscionable conduct, s 20 of the Australian Consumer Law: There is a serious question about whether the defendants have engaged in unconscionable conduct, by thwarting the payment to the plaintiff of the judgment debt by moving money out of DECC Credit Pty Ltd to other members of the group, or to Mr Lombardi, Mr Di Falco, or Marie Lombardi, in order to defeat the judgment. There is a serious question as to whether conduct of that nature is “unconscionable” and therefore would fall within the section.
(c) Conspiracy to injure by lawful means: The elements of the tort of conspiracy to injure by lawful means are (Australia Pacific Investments (Qld) Pty Ltd & Anor v Najibi General Trading Company LLC & Ors [2020] QSC 173 at [31]; Australian Woll Innovation Ltd v Newkirk [2005] FCA 290 at [60]-[61]):
(i) there was a combination or agreement between two or more persons;
(ii) the sole or dominant purpose of the combination or agreement was to injure the plaintiff;
(iii) the combination or agreement was carried into effect by the defendants’ conduct;
(iv) the defendants’ conduct in carrying the combination or agreement into effect caused damage to the plaintiff.
“[30] The principles relevant to whether a freezing order should be made are well understood.
[31] The power to make a freezing order is within the inherent jurisdiction of this Court ‘to make such orders as that Court may determine to be appropriate “to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction”’: see PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at 18.
[32] Rule 25.11 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is a further source of the Court’s jurisdiction to make freezing orders. That rule provides:
25.11 Freezing order (cf Federal Court Rules Order 25A, rule 2)
(1) The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.
(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
[33] Whether drawing on the Court’s inherent jurisdiction or statutory power, the primary objective of a freezing order is the same: that is, as was explained by a majority of the High Court in PT Bayan Resources TBK v BCBC Singapore Pte Ltd at 19 [46], to protect ‘a prospective enforcement process’. French CJ, Kiefel, Bell, Gageler and Gordon JJ quoted Lord Nicholls of Birkenhead in Mercedes Benz AG v Leiduck [1996] AC 284 at 306, where his Lordship said:
Although normally granted in the proceedings in which the judgment is being sought, [a freezing order] is not granted in aid of the cause of action asserted in the proceedings, at any rate in any ordinary sense. It is not so much relief appurtenant to a money claim as relief appurtenant to a prospective money judgment. It is relief granted to facilitate the process of execution or enforcement which will arise when, but only when, the judgment for payment of an amount of money has been obtained.
[34] The matters that must be established by a party seeking a freezing order are as stated by Gleeson CJ in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-2 (Meagher JA and Rogers AJA agreeing at 326 and 327 respectively):
The remedy is discretionary, but it has been held that, in addition to any 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 (bold added).
[35] These factors are, to a large extent, mirrored in UCPR r 25.14, although UCPR r 25.14(1)(b) refers to an applicant having a ‘good arguable case’.
[36] In relation to the first of these matters, satisfaction of a prima facie or good arguable case does not require that the plaintiff show on the interlocutory evidence that the plaintiff’s case will more probably than not succeed at a final hearing. The threshold for establishing the first requirement is relatively low. See, for example, Samimi v Seyedabadi [2013] NSWCA 279 at [69] per McColl JA.
[37] In relation to the second issue – the risk of dissipation – there must be facts from which a prudent, sensible, commercial person can properly infer a danger of default if assets are removed from the jurisdiction: see generally Severstal Export GMVH v Bhusan Steel Limited (2013) 84 NSWLR 141; [2013] NSWCA 102 at [57] – [59] per Bathurst CJ with whom Beazley P and Barrett JA agreed.
[38] It is also clear that a Court should not lightly grant a freezing order given the serious impact that it might have on the affairs of the defendant: see Cardile v LED Builders Pty Limited (1999) 198 CLR 380 at 403; [1999] HCA 18 at [51].”
37A Voluntary alienation to defraud creditors voidable
(1) Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced.
Property includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest.
Having regard to all of the circumstances, including the events set out at paragraphs 11 to 24 above, I am satisfied that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because the following might occur: the assets of the judgment debtor, prospective judgment debtor are disposed of, dealt with or diminished in value (per UCPR r 25.14(4)(b)(ii)).
The plaintiff has put before the Court evidence of the Notice, and the relevant background and more recent key events which satisfy me of a debt owing in the context of apparent non-payment, and what the plaintiff has referred to as a “confluence of circumstances”. On this issue, I accept the submissions of the plaintiff, which state (PWS at [24](d)):
“There is a serious question to be raised about these issues given the confluence of circumstances, being the recalcitrance to pay, release of money by the Court, non-satisfaction pursuant to the garnishee order, the PPSR interest (and curious timing), the incorporation of the new entities (again with curious timing), and that Mr Lombardi is the man sitting behind most of the corporations, with his spouse/relative and Queensland Manager sitting behind the others.”
The plaintiff also seeks to rely on UCPR r 25.14(5) which provides as follows:
(5) The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that—
(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or
(ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or
(b) a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
On being satisfied on the above issues, I am satisfied that it is appropriate to exercise my discretion and make the freezing orders, as well as ancillary orders.
In making the orders, I am of the view that that the scope of the orders minimise the impact on the defendants as much as was possible. In that, included in the orders sought were “exceptions to this order”, which included a weekly living allowance and scope for payment of reasonable legal expenses, as well as an order not prohibiting dealings with assets in the ordinary and proper course of business.
Further, in relation to the order for “provision of information”, the defendants will have been allowed five full working days to provide this information before the first return date.
In making these orders, I recognise that a court should not lightly grant a freezing order given the serious impact that it might have on the affairs of a defendant.
**********
The Summons be made returnable on Wednesday 17 September 2025 at 10am before the Duty Judge.
The time for service of the Summons, and the affidavit of Peta Joy Gray sworn on 8 September 2025, be abridged to 5pm on Tuesday 9 September 2025.
The Summons, the affidavit of Peta Joy Gray sworn on 8 September 2025, and these orders may be served:
a. on the first to third defendants, sixth defendant and eighth defendant by emailing them to:
i. Chris Nielsen, of McCullough Robertson, at XXX@mccullough.com.au; and
ii. Bruzzano & Associates at XXX@bruzzano.com.au; and
b. On the fourth defendant, fifth defendant and seventh defendant by emailing them to Vincenzo Di Falco at XXX@decc.com.au.
The Court notes that the plaintiff gives the Usual Undertaking as to Damages.
The Court makes orders in the form of “Annexure A” against each of the eight defendants, namely:
a. DECC Credit Pty Ltd (the first defendant);
b. DECC Pty Ltd (the second defendant);
c. DECC Credit (NSW) Pty Ltd (the third defendant);
d. DECC Credit (QLD) Pty Ltd (the fourth defendant);
e. VF4 Properties Pty Ltd (the fifth defendant);
f. Frank Lombardi (the sixth defendant);
g. Vincenzo Di Falco (the seventh defendant); and
h. Marie Lombardi (the eighth defendant).
Annexure A [based on the example in Practice Note SC GEN 14]
TO: DECC Credit Pty Ltd, DECC Pty Ltd, DECC Credit (NSW) Pty Ltd, DECC Credit (Qld) Pty Ltd, VF4 Properties Pty Ltd, Frank Lombardi, Vincenzo Di Falco, and Marie Lombardi
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.
TO: DECC Credit Pty Ltd, DECC Pty Ltd, DECC Credit (NSW) Pty Ltd, DECC Credit (Qld) Pty Ltd, VF4 Properties Pty Ltd, Frank Lombardi, Vincenzo Di Falco, and Marie Lombardi
This is a ‘freezing order’ made against you on Tuesday 9 September 2025 by Justice Bennett following a hearing on Monday 8 September 2025 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 affidavit of Peta Joy Gray dated 8 September 2025.
THE COURT ORDERS:
INTRODUCTION
1. (a) The application for this order is made returnable immediately.
(b) The time for service of the Summons and affidavit of Peta Joy Gray dated 8 September 2025 is abridged and service is to be effected by 5pm on Tuesday 9 September 2025.
2. Subject to the next paragraph, this order has effect up to and including 5pm on Wednesday 17 September 2025 (‘the return day’). On the return day at 10am there will be a further hearing in respect of this order before the Court.
3. 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.
4. In this order:
‘applicant’, if there is more than one applicant, includes all the applicants;
‘you’, where there is more than one of you, includes all of you and includes you if you are a corporation;
‘third party’ means a person other than you and the applicant;
‘unencumbered value’ means value free of mortgages, charges, liens or other encumbrances; and
5. (a) 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.
(b) 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
6. (a) 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$1,791,637.19 (‘the Relevant Amount’).
(b) 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.
7. For the purposes of this order,
(1) 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);
(2) the value of your assets is the value of the interest you have individually in your assets.
PROVISION OF INFORMATION
8. Subject to paragraph 9, 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 in Australia, 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 5 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.
9.(a) This paragraph (9) applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i) have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii) are liable to a civil penalty.
(b) This paragraph (9) also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i) have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii) 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
10. This order does not prohibit you from:
(a) paying up to $2,000 a week on 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.
11. 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.
12. (a) This order will cease to have effect if you:
(i) pay the sum of AUD$1,791,637.19 into Court; or
(ii) 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
(iii) provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court.
(b) 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.
(c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact.
COSTS
13. The costs of this application are reserved to the judge hearing the application on the return day.
PERSONS OTHER THAN THE APPLICANT AND RESPONDENT
14. Set off by banks
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.
15. Bank withdrawals by the respondent
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.
SCHEDULE A
UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT
(1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
(2) As soon as practicable, the applicant will file and serve upon the respondent copies of:
(a) this order;
(b) the Summons 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 (or draft affidavits);
(ii) exhibits capable of being copied;
(iii) any written submission; and
(iv) any other document that was provided to the Court.
(d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court.
(3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
NAME AND ADDRESS OF APPLICANT'S LEGAL REPRESENTATIVES
The applicant’s legal representatives are:
Enterprise Legal Qld
Level 1, 11 Annand Street, Toowoomba QLD 4350
Phone: (07) 4646 2621; 04XX XXX XXX (After Hours)
Email: XXX@enterpriselegal.com.au; XXX@enterpriselegal.com.au
Fixing formatting of quote in [30]
Australia Wide Lining Pty Ltd
DECC Credit Pty Ltd [2025] NSWSC 1043
(2015) 258 CLR 1
(1989) 18 NSWLR 319
(2013) 84 NSWLR 141
(1999) 198 CLR 380
Despite the release of the funds that had been paid into Court, there has been no payment by DECC Credit to the plaintiff, nor has there been an explanation the lack of payment.
In the meantime, the plaintiff has issued a statutory demand and garnishee order, and sought a certificate under the Contractors Debt Act 1997 (NSW). There has been no payment in response to any of these steps taken by the plaintiff.