Certane CT Pty Ltd v Wang [2025] ACTSC 420

1. This matter came before me on an urgent duty and ex parte basis by way of an originating application. The relief sought in the application was as follows: Ex parte/short service orders 1. The Plaintiff has leave to file in Court this Originating Process and the Supporting Affidavits. 2. An order that, in the first instance, service of this Originating Process be dispensed with. 3. An order that, in the first instance, this Originating Process be returnable instanter. 4. An order that the Plaintiff serve a copy of: • this Originating Process • the Supporting Affidavits • any orders made by the Court in the first instance (Freezing Order Documents) on the Defendant. 5. An order that the Freezing Order Documents be served on the Defendant by leaving a copy of the Freezing Order Documents at the O'Malley Property under covering letter addressed to the Defendant. 6. An order that the time for service of the material referred to in the preceding paragraph of this order be abridged to 5:00pm AEST on the date the business day after the first hearing of this Originating Process. 7. Subject to further order of the Court, an order that this Originating Process be returnable on a date convenient to the Court for a further hearing in respect of the orders sought by the plaintiffs in paragraph 8 below. Interim asset preservation orders 8. Upon the Plaintiff, by its counsel, giving the usual undertaking as to damages, freezing orders against the Defendant in accordance with Order A to this Originating Process. Notice of orders to third parties 9. To the extent necessary, the Plaintiff has leave to give notice of any orders made to: • the relevant authorities that record, control and regulate the ownership of real property, motor vehicles and maritime vessels and craft; • any bank, building society, cryptocurrency exchange or other financial; institution with which, to the best of the plaintiff's belief, the Defendant may operate an account or hold property; • any securities broking firm, foreign exchange broking or trading firm or futures broking firm with which, to the best of the Plaintiffs belief, the Defendant may operate any account; • any other person or entity, holding or controlling the Defendant's O'Malley Property; and any other person or entity, holding or controlling property, which, to the best of the Plaintiff's belief, may belong to the Defendant; by giving a copy of the minute of the orders to a person apparently in the employ of that entity or person.

2. The originating application identified that the final relief sought is judgment for the plaintiff in the amount of $24,712,595.54 plus further interest and fees accruing from 26 July 2025 under the letter of offer and guarantee and indemnity dated 7 July 2023 as varied by a letter of variation dated 26 April 2024.

3. On the day the application was brought before me, I granted orders consistent with those sought in the application and indicated my reasons for doing so would follow. These are those reasons.

Background

4. In support of the application and the orders sought, several affidavits were filed and read.

5. From the matters deposed to in the affidavit material, the background to the application was established and can be briefly summarised as follows.

6. The plaintiff provided a loan to a company, JJ Forrest Pty Ltd ACN 648 790 087 (‘JJ Forrest’), in its personal capacity and as trustee for JJ Forrest Unit Trust ABN 94 557 196 718 (‘JJ Forrest Unit Trust’) for the purposes of the development of a block of land located at 11-13 State Circle, in Forrest in the Australian Capital Territory (ACT) (‘the Forrest development’).

7. The defendant has been the sole director and secretary of JJ Forrest Unit Trust since 29 June 2022.

8. The sum loaned by the plaintiff to JJ Forrest Unit Trust was $24,712,595.54. The defendant gave a guarantee and indemnity which resulted in him being jointly and severally liable with the company for the debt created by the loan. The Forrest development is now in the hands of a receiver. The receiver anticipates receiving enough funds to discharge only half of the amount owed, said to be the full amount of the loan.

9. The plaintiff asserted that there is strong reason for them to believe that the defendant is taking steps to divest himself of assets and that he has fled the jurisdiction. The defendant is a citizen of China. A property owned by the defendant in O’Malley, ACT (‘the O’Malley property’) is presently marketed for sale.

10. Prior to the filing of the originating application with this court on 4 September 2025, the plaintiff had attempted to serve the defendant with a guarantor demand on numerous occasions without success, a matter to which I shall return.

Evidence

11. The evidence in support of the application included the following five affidavits: (a) Affidavit of Cathy Houston affirmed on 1 September 2025. (b) Affidavit of Attempt at Service of Tayla Kotz sworn 19 August 2025. (c) Affidavit of Attempt at Service of Paul Noonan sworn 19 August 2025. (d) Affidavit of Attempt at Service of Liam Robinson sworn 19 August 2025. (e) Affidavit of Attempt at Service of lan Woodward sworn 22 August 2025.

12. Ms Cathy Houston is a chartered accountant and a Managing Director in the asset management group of MA Financial Group. The plaintiff, Certane CT Pty Ltd (ACN 106 424 088) is a subsidiary of MA Financial Group. Ms Houston was authorised to make the affidavit on behalf of the plaintiff.

13. Ms Houston’s affidavit extensively deposed the contents of the loan documents with respect to the amount owed, and the guarantee of the loan by the defendant in his personal capacity.

14. From which it was established that on 7 July 2023 the plaintiff entered into an agreement with JJ Forrest (in its personal capacity and as trustee for JJ Forrest Unit Trust) and the defendant, under which the plaintiff agreed to provide a loan with a limit of $22,541,000 to JJ Forrest in its personal capacity as trustee of the JJ Forrest Unit Trust in connection with the Forrest development.

15. The defendant has been a director and secretary of JJ Forrest since it was incorporated on 18 March 2021 and its sole director and secretary since June 2022. Since its incorporation in March 2021 the defendant has been the sole shareholder in JJ Forrest. The defendant has also been the sole director and secretary of Keggins Investments Pty Ltd ACN 632 824 965 (‘Keggins Investments’) since 10 April 2019.

16. The defendant and Keggins Investments in its personal capacity and as trustee for the Wang Family Trust agreed to guarantee the obligations of JJ Forrest Unit Trust to the plaintiff. The agreement and obligations with respect to the guarantee were clear, precise and in writing and contained in a “Letter of Offer and Guarantee and Indemnity” (‘the Letter of Offer’) dated 7 July 2023. The Letter of Offer was varied on 26 April 2024.

17. Under the terms and conditions of the agreement JJ Forrest was required to pay to the plaintiff the aggregate of ‘advances’ (as defined in the Letter of Offer) and the balance, if any, of the ‘secured money’ (as defined in the Letter of Offer) on the ‘termination date’ (as defined in the Letter of Offer). The effect of the variation on 26 April 2024 was that the loan facility was varied to $24,848,000 and the ‘termination date’ was varied to mean 16 January 2025.

18. Ms Houston’s affidavit set out that the initial advance of $4,309,765 was made on 7 July 2023 and the lender then made advances to the borrower in accordance with the letter of offer such that the loan amount of $24,712,595.54 has been paid out to JJ Forest Unit Trust.

19. On 19 March 2025, according to the Australian Securities and Investment Commission’s (ASIC) records, a winding up application was lodged against JJ Forrest in the Supreme Court of Queensland. As a consequence of orders made in those proceedings, on 8 May 2025 JJ Forrest was placed into liquidation and a liquidator was appointed.

20. The contact details for the defendant were sent out in the affidavit of Ms Houston and included three residential addresses in the ACT. One in Bonner (‘the Bonner address’), another in Kingston and the third was the O’Malley property. The property in Kingston was transferred to new registered proprietors in September 2024.

21. An affidavit of service of Liam Robinson sworn on 19 August 2025 asserted that on 27 July 2025 he spoke to a male resident at the O’Malley property who confirmed that the defendant lived at the address. The man also informed Mr Robinson that the defendant was overseas and would be returning in two weeks.

22. As Mr Buckland noted, the remaining affidavits of service recorded that further attempts since that time to serve the defendant have been unsuccessful.

23. The Forrest development is owned by JJ Forrest Unit Trust and a title search revealed two encumbrances in addition to the mortgage: (a) a caveat lodged on 11 September 2024 by Mildesi Security Holdings Pty Ltd ACN 636 039 766 (‘Mildesi’) which is to assert an equitable interest in the property arising from an unregistered mortgage between JJ Forrest and Mildesi; and (b) a ‘first charge’ secured by the Commissioner of Revenue and lodged on 21 October 2024.

24. A title search conduct with respect to the O’Malley property revealed three encumbrances on the property: (a) mortgage registered on 11 November 2024 secured by the Commonwealth Bank of Australia; (b) a ‘First Charge’ secured by the Commissioner of Revenue lodged on 22 November 2024; and (c) a caveat secured by Eaglestone Investment Group Pty Ltd ACN 123 048 760 (‘Eaglestone Group’) lodged on 12 December 2024.

25. The Eaglestone caveat asserts an interest in the O’Malley property under an executed mortgage dated 16 October 2024. Ms Houston sets out a number of matters in support of her belief that the defendant has had “significant involvement in the affairs of” Eaglestone Group which would appear to be a group of related entities. The actual name of the entity which lodged the caveat on the O’Malley property is Eaglestone Capital Management which had Eaglestone Investment Group Pty Ltd ACN 632 700 399 as its sole shareholder since 7 November 2024. Another entity, Eagleston Investment Group ACT Pty Ltd ACN 659 548 946 was deregistered on 11 April 2025 and up until that date the defendant was listed as the sole director and secretary.

26. Another entity, Keggins 99 Pty Ltd ACN 661 107 008 (‘Keggins 99’), was incorporated on 20 July 2020 and since then the defendant has been the sole director and secretary. Keggins 99 is listed as the owner of two properties, each encumbered by a mortgage registered on 10 February 2025. The mortgages are registered to DYH Investment Group Pty Ltd ACN 623 440 880 (‘DYH Investment Group’). Since 2 August 2021 Feixiang Huang has been the sole director and secretary of DYH Investment Group.

27. Ms Houston’s affidavit identified that the defendant is listed as a director in five other entities including Keggins Estate Pty Ltd (‘Keggins Estate’), Keggins International Investment Group Pty Ltd (‘Keggins International’) and Keggins Development Head Pty Ltd (‘Keggins Development’).

28. Ms Houston’s affidavit detailed the foundation for concerns held on the part of the plaintiff that the defendant has taken steps to divest himself of his personal interests in various companies which included the following matters.

29. Keggins Estate was placed into liquidation on 4 October 2024 with the defendant recorded as the sole shareholder at the time.

30. The plaintiff issued a notice of default to the defendant on 8 October 2024. By reference to that date the defendant appears to have then taken a number of steps.

31. There was a transfer of shares in Keggins 99, by the defendant from himself to the company, Keggins 99. Ms Houston’s affidavit detailed that ASIC records relating to the share transfers indicates that the transfer was effected on 8 October 2024, the same date the notice of default was issued to the defendant.

32. Another company of which the defendant was the sole director and shareholder, Keggins International was deregistered on 27 October 2024.

33. On 20 November 2024, the plaintiff issued a second notice of default through its solicitors which recorded certain ‘Events of Default’ in addition to those set out in the 8 October 2024 letter. The notice was sent by express post to the Bonner address.

34. The affidavit of Ms Houston sets out what was referred to as a “doctored” term sheet (‘the ‘doctored’ term sheet’); a document which summarised the proposed terms of a prospective binding financial agreement. Ms Houston described the following chronology with respect to the document: (a) On or around 20 November 2024, Mr Drew Bowie, the managing director of MA Financial Group came into possession of a copy of a document described as ‘Indicative Term Sheet - 'No.11 State Circle', 11-13 State Circle, Forrest ACT 2603" dated 14 June 2023. He came into possession of the document after he was contacted by a mortgage broker in NSW, Mr Kimmorley. Mr Kimmorley was acting for Mildesi (the lodger of the caveat on the Forrest development). The broker informed Mr Bowie that Mildesi held a second ranking mortgage over the Forrest development and was seeking to buy out the plaintiff’s position under the Letter of Offer and other security documents. The broker, after receiving information from Mr Bowie as to the payout figure, expressed a view that it was higher than he expected. The broker then provided Mr Bowie with a copy of the ‘doctored’ term sheet. (b) The ‘doctored’ term sheet provided by the NSW mortgage broker purports to have been signed by Mr Bowie on 14 June 2023 on behalf of the plaintiff and accepted by Keggins 99 on 15 June 2023. (c) Ms Houston deposed that having reviewed the plaintiff’s books and records, there is no record of that version of the term sheet dated 14 June 2023. There is no record of a term sheet identical in terms to the one dated 14 June 2023 which came into Mr Bowie’s possession and which purports to have been signed by him, ever being prepared, issued or received by the plaintiff. (d) Ms Houston recorded that an indicative term sheet was issued by the plaintiff to Keggins 99. The genuine term sheet was dated 8 June 2023. Ms Houston identified differences between the genuine term sheet dated 8 June 2023 and the ‘doctored’ term sheet dated 14 June 2023 which included: (i) the use of different names; (ii) different monetary figures; (iii) different periods for the facility terms; (iv) a higher permitted maximum loan to value ratio amount.

35. The effect of the ‘doctored’ term sheet was the presentation of the Forrest Development as holding more equity than was likely to be the case.

36. Mr Buckland noted the element of potential dishonesty the circumstances of the ‘doctored’ term sheet squarely raised.

37. On 28 November 2024, the plaintiff sent a letter to an email address provided by JJ Forrest Unit Trust (and requested to be addressed to the attention of “Vincent Wang”) and by express post to JJ Forest Unit Trust providing further opportunity to respond to earlier correspondence and demanding a written explanation regarding the “doctored” term sheet by 2 December 2024. No response was received to the correspondence.

38. Another entity, Sinshin Capital Pty Ltd ACN 618 607 186 on 16 January 2025 was the subject of strike off action by ASIC at which time the defendant was the sole shareholder.

39. Under the terms of the Letter of Offer, JJ Forrest Unit Trust was obliged to pay the aggregate of the advances outstanding and the balance, if any, of the secured money on 16 January 2025 (the termination date under the variance). JJ Forrest Unit Trust did not pay the amounts on or by the termination date.

40. On 4 February 2025 the plaintiff’s solicitors notified JJ Forrest Unit Trust that the plaintiff had appointed a third party, Newpoint Advisory, to investigate and provide a report to the plaintiff in relation to the Forrest development. A copy of the notification was sent to the Bonner address as well as Keggins Investments. On 5 March 2025 a notice was issued to JJ Forrest Unit Trust in respect of repayment default (pursuant to s 93 of the Land Titles Act 1925 (ACT)).

41. On 5 March 2025 Eaglestone Group registered two Personal Property Securities Registrations against the defendant.

42. On 6 March 2025, the plaintiff appointed Newport Advisory as receiver and manager of all assets of JJ Forrest Unit Trust in accordance with the General Security Deed between the plaintiff and JJ Forrest Unit Trust. As a result of the unfinished development the receiver is arranging to complete and sell lots in the Forrest development.

43. Ms Houston’s affidavit further detailed, in light of the plaintiff’s estimate of the debt owed following sales of all lots associated with the Forrest development, the receiver’s assessment of the cost to complete the sale and the likely sale price of the lots, the estimated shortfall on the debt after realisation of the security will be $12.1 million dollars. Ms Houston noted that interest and costs continue to accrue.

44. Other than the Forrest development, JJ Forrest Unit trust does not have any other known assets.

45. On 13 March 2025 the defendant transferred all of his shares in another entity, Lawson Housing Pty Ltd ACN 673 405 448 (‘Lawson Housing’) to DYH Investment Group. Up until that date the defendant was the sole director of Lawson Housing. On that date Feixiang Huang was appointed as director of Lawson Housing. Feixiang Huang is a director of two entities within the Eagleston Group and a director of DYH Investment Group. Feixiang Huang signed the document effecting the transfer of the Lawson Housing shares on 15 March 2025. The ASIC record records that DYH Investment Group does not hold its shares in Lawson Housing beneficially.

46. Ms Houston’s affidavit also detailed that a title search confirmed that the defendant is the registered owner of the O’Malley property which was listed for sale on 19 March 2025 on ‘property.com.au’. Ms Houston nominated ‘allhomes.com.au’ and ‘realestate.com.au’ as places where the property was being marketed for sale listed with a sale price of $3,995,000+.

47. Further, Ms Houston recorded by reference to a scanned copy of the defendant’s passport which was provided prior to the finalisation of the loan agreement, that she understands the defendant to be a citizen of China.

48. On 16 May 2025 a guarantor demand was sent to the defendant by express post to the Bonner address. On 30 May 2025 the demand was returned and marked “RTS” and “customer unknown”. On 30 July 2025 documents which included the guarantor demand of 16 May 2025 were provided to the office of the agents listed to sell the O’Malley property, subsequent to which the agents requested that such conduct cease and desist. The agent communicated to the plaintiff by email and stated “we are not authorised to accept or handle any documents on behalf of Mr Wang”. As at 1 August 2025 the O’Malley property was presented and staged for sale.

49. The plaintiff is unaware of the extent of any equity held by the defendant in the O’Malley property.

50. Ms Houston identified that she is unaware of any attempts made by the defendant to contact or engage with the plaintiff.

The court’s power

51. The power of the Court to grant the relief sought arises from rr 741 and 743 of the Court Procedures Rules 2006 (ACT): 741 Freezing orders—general (1) The Supreme Court may make an order (a freezing order) for the purpose of preventing the frustration or inhibition of the court’s process by ensuring that an order or prospective order of the court is not made valueless or diminished in value. … (3) 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. (4) For the Supreme Court, a freezing order or ancillary order may be made the respondent is a party to an existing proceeding. 743 Freezing orders—order against enforcement debtor or prospective enforcement debtor or third party (1) This rule applies if— (a) an order has been given in favour of an applicant by— (i) the court; or (ii) for an order to which subrule (2) applies—another court; or (b) for the Supreme Court—an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in— (i) the court; or (ii) for a cause of action to which subrule (3) applies—another court; … (4) The court may make a freezing order or ancillary order (or both) against an enforcement debtor or prospective enforcement debtor if satisfied, having regard to all the circumstances, that there is a danger that an order or prospective order will be completely or partly unsatisfied because any of the following might happen: (a) the enforcement debtor, prospective enforcement debtor or someone else absconds; (b) the assets of the enforcement debtor, prospective enforcement debtor or someone else are— (i) removed from Australia or from somewhere in or outside Australia; or (ii) disposed of, dealt with or diminished in value.

52. As McWilliam AJ (as her Honour then was) identified in Chong v Huang [2021] ACTSC 310 at [7] the applicable principles when determining whether to grant such relief, as set out in in Owen v Owen [2019] ACTSC 108, where Murrell CJ said at [15]-[19]: The relevant rules are rr 741 and 743 of the Court Procedures Rules 2006 (ACT). Rule 741 relates to the making of a freezing order to prevent the frustration of the court's process by ensuring that a prospective order of the court is not made valueless or diminished. It applies to any costs order that might be made in connection with the current proceedings before this court. The rule that is relevant in relation to the costs order made by the New South Wales Supreme Court is r 743. It applies if an order has been given in favour of an applicant by another court and if there is a sufficient prospect that the order will be registered in or enforced by this court. Rule 743(4) provides: (4) The court may make a freezing order or ancillary order (or both) against an enforcement debtor or prospective enforcement debtor if satisfied, having regard to all the circumstances, that there is a danger that an order or prospective order will be completely or partly unsatisfied because any of the following might happen: … (b) the assets of the enforcement debtor, prospective enforcement debtor or someone else are – (ii) disposed of, dealt with or diminished in value. Under r 743(5), the court may make a freezing order against a third party where the third party holds a power of disposition over assets. The purpose of the discretionary power to make a freezing order is not to create security for the applicant; it is to prevent frustration of a court process: Jackson v Sterling Industries Ltd (1987) 162 CLR 612. Before an order is made, the applicant must establish both a good arguable cause of action and that there is a danger (or “real risk”) that a judgment debt will go unsatisfied because of the disposal of assets. In National Gallery of Australia v Beljan [2018] ACTSC 78 at [30], Mossop J said: In general terms, in order to warrant the making of a freezing order it is necessary to establish: (a) that the plaintiff has a vested and accrued cause of action against the defendant; (b) that a danger exists that if the plaintiff is successful, it will not be able to have the judgment satisfied by reason of the defendant absconding, removing assets from the jurisdiction, disposing of them within the jurisdiction or otherwise dealing with them in a manner that puts them beyond reach; and (c) the balance of convenience favoured the granting of relief.

53. Relevantly in Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961 Kunc J in the context of the equivalent rule in NSW observed at [79]-[86]: The criterion of a "good arguable case" requires proof "of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success": Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH &Co KG, The Niedersachen [1983] 1 WLR 1412; [1984] 1 All ER 398 (Ninemia) at 404 per Mustill J. In the Court's assessment of a "good arguable case", the Court "should not be drawn into a premature trial of the action, rather than a preliminary appraisal of the plaintiff's case": Ninemia at 404; see also Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [69] and [70], where McColl JA approved the observations of Mustill J in Ninemia. The second relevant criterion is whether there is a risk that the defendant will, either by absconding or dissipating its assets, render itself "judgment proof". In satisfying the Court of this criterion, it is not incumbent on the plaintiff to establish this risk or danger on the balance of probabilities: see Patterson [v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319] at 325 per Gleeson CJ; see also Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; [2013] NSWCA 102 at [57]–[60] per Bathurst CJ, with whom Beazley P and Barrett JA agreed. Rather, it is incumbent on the plaintiff to satisfy the Court that there is a danger that the prospective judgment will not be satisfied if the asset preservation order is not made, notwithstanding that the risk of that occurrence may be less probable than not. There is no requirement that evidence of the real risk that a defendant may abscond or dissipate its assets be direct; it may, and often will, be adduced by evidence that calls for inferences to be drawn. Additionally, there is no requirement imposed upon the plaintiff to adduce evidence of a positive intention by the defendant to frustrate any judgment: National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 at 277; [1990] HCA 10 per Mason CJ, Brennan and Deane JJ. Although the second criterion does not need to be established on the balance of probabilities, the plaintiff is nevertheless required to adduce "solid evidence" that there exists a real risk that the defendant will abscond or dissipate its assets; mere assertion of that risk or proof that a company is incorporated abroad and does not have assets within the jurisdiction is insufficient: Ninemia at 406; Frigo v Culhaci [1998] NSWCA 88; Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 273 ALR 194; [2010] FCA 1014 at [12] per Kenny J. As Lawton LJ explained in Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645, there must be facts from which the Court, "like a prudent, sensible commercial man, can properly infer a danger of default if assets are removed from the jurisdiction": at [56]. I would respectfully add to his Lordship's observations that there may be evidence, inferential or otherwise, demonstrating a sufficient danger of default if the defendant's assets are dissipated within the jurisdiction. In its assessment of the purported risk or danger posed by a defendant absconding or dissipating its assets, the Court may also have regard to the nature of the allegations raised against the defendant, particularly in circumstances where the "good arguable case" is one involving serious dishonesty or fraud. In Patterson, Gleeson CJ relevantly said (at 325–6): "… the evidence as to the nature of the scheme in which the appellant was allegedly involved, which established a prima facie case against him, was such as to justify the conclusion that there was a danger that the appellant would dispose of assets in order to defeat any judgment that might be obtained against him and that such danger was sufficiently substantial to warrant the injunction. There is no reason in principle why the evidence which is relevant to the first of the issues earlier referred to might not also have a bearing on the second, and this will especially be so where the prima facie case that is made out against a defendant is one of serious dishonesty involving diversion of money from its proper channels. The present is not a case in which a plaintiff who claims simply to be an unsecured creditor seeks to prevent a dissipation of assets which have no particular connection with the claim in question. This is a case in which the plaintiff claims that the defendant, making use of a corporation controlled by him, fraudulently misappropriated a large sum of money which, if it is still under the control of the appellant, would be quite likely to constitute, directly or indirectly, the bulk of his assets. As Giles J held, the nature of the scheme in which, on the evidence to date, the appellant appears to have engaged, is such that it is reasonable to infer that he is not the sort of person who would, unless restrained, preserve his assets intact so that they might be available to his judgment creditor." The third criterion — that the Court should exercise its discretion in favour of continuing the Freezing and Disclosure Orders — engages a wide range of considerations, including those set out by the High Court in Cardile [v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380] at [53] … In addition to those considerations, the discretionary considerations in an application of the present kind include the Court's assessment of the parties' respective compliance with orders of the Court and disclosure obligations, particularly those obligations impressed upon a plaintiff where asset preservation orders are obtained ex parte, which necessarily includes what is contained in [19] of Practice Note SC Gen 14. That paragraph provides: "An applicant for an ex parte freezing order is under a duty to make full and frank disclosure of all material facts to the Court. This includes disclosure of possible defences known to the applicant and of any information which may cast doubt on the applicant's ability to meet the usual undertaking as to damages from assets within Australia." If a plaintiff fails to comply with these obligations, the Court may, subsequent to its grant of an asset preservation order — which is usually the case where an order is made ex parte because evidence of a plaintiff's non-compliance with Practice Note SC Gen 14 will ordinarily be brought to the Court's attention by the party against whom the order is made — dissolve that order in the exercise of its discretion. As the High Court explained in Thomas A Edison v Bullock (1912) 15 CLR 679 at 681–2: "… it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall." Also of relevance to the Court's exercise of its discretion in applications of the present kind is the issue of whether the plaintiff has proffered an undertaking as to damages and, consequentially, the adequacy of that undertaking. An undertaking as to damages will be required in applications of the present kind unless exceptional circumstances exist justifying departure from that rule, including where the plaintiff establishes an unarguable case of fraud: see, eg, De Boer v Williams [2004] NSWSC 351 at [20] and [23] per Einstein J; Southern Tableland Insurance Brokers Pty Ltd (in liq) v Schomberg (1986) 11 ACLR 337 (Southern Tableland) at 340 per Young J (as his Honour then was), quoting Kerridge v Foley (1968) 70 SR (NSW) 251 at 255 per Sugerman JA with approval. The failure of a plaintiff to proffer an undertaking as to damages, although not ipso facto fatal to an application for an asset preservation order, weighs heavily against an order of that nature. The Court will also take into account, in the exercise of its discretion, the adequacy of that undertaking. Akin to the absence of an undertaking, the Court will be less inclined, in the exercise of its discretion, to grant an asset preservation order in circumstances where it is satisfied that a plaintiff does not have the wherewithal to honour its undertaking, either because of practical difficulties the defendant is likely to encounter in enforcing the undertaking or on account of the plaintiff's want of sufficient funds: Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing (NSW) Ltd (1987) 76 ALR 633 at 640; Southern Tableland at 342–3. If the Court is not satisfied that the undertaking proffered by the plaintiff would be sufficient to satisfy losses caused by the Court's order preserving the defendant's assets, then the Court may require security to support that undertaking: Southern Tableland at 343; Re DPR Futures Ltd [1989] 1 WLR 778 at 786.

54. By reference to those authorities, accordingly, there are two matters about which I must be satisfied. First, whether the plaintiff has a good arguable case and secondly, whether there is a real risk that the defendant will, either by absconding or dissipating assets, render himself “judgment proof”.

55. I must, if satisfied as to those matters, consider by reference to the kind of factors set out in the extract above from Kunc J in Blue Mirror, where the balance of convenience lies.

Does the plaintiff have a good arguable case?

56. The plaintiff was a lender to the defendant in his capacity as director as well as in his personal capacity. The loan agreement as I have identified was in writing, expansive, precise and clear. The defendant guaranteed to the plaintiff the obligations of JJ Forrest Unit Trust under the Letter of Offer. On the material before me it has been established that a significant sum of money was lent to JJ Forrest Unit Trust on those terms and accordingly, the defendant is jointly and severally liable for the amount now outstanding under the terms of the loan.

57. Having regard to the observations in Blue Mirror Pty Ltd as well as the considerations raised in Chong, on the material before me I am satisfied that the plaintiff has a good, arguable case.

Is there a real risk that the defendant will dissipate assets?

58. I turn to the second question of whether there is a real risk that the defendant will render himself “judgment proof”.

59. As McWilliam AJ confirmed in Chong a matter relevant to the question of whether there is real risk that the defendant will dissipate assets is whether the case involved a “real dishonesty”, citing the observations of Gleeson CJ in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325-326: In any event, for the reasons given by Giles J, I consider that the case was one in which the evidence fully justified the granting of a Mareva injunction. In particular, I consider that Giles J was correct in taking the view that the evidence as to the nature of the scheme in which the appellant was allegedly involved, which established a prima facie case against him, was such as to justify the conclusion that there was a danger that the appellant would dispose of assets in order to defeat any judgment that might be obtained against him and that such danger was sufficiently substantial to warrant the injunction. There is no reason in principle why the evidence which is relevant to the first of the issues earlier referred to might not also have a bearing on the second, and this will especially be so where the prima facie case that is made out against a defendant is one of serious dishonesty involving diversion of money from its proper channels. The present is not a case in which a plaintiff who claims simply to be an unsecured creditor seeks to prevent a dissipation of assets which have no particular connection with the claim in question. This is a case in which the plaintiff claims that the defendant, making use of a corporation controlled by him, fraudulently misappropriated a large sum of money which, if it is still under the control of the appellant, would be quite likely to constitute, directly or indirectly, the bulk of his assets. As Giles J held, the nature of the scheme in which, on the evidence to date, the appellant appears to have engaged, is such that it is reasonable to infer that he is not the sort of person who would, unless restrained, preserve his assets intact so that they might be available to his judgment creditor. (Emphasis added).

60. The matters relied on in support of the plaintiff’s suspicion that the defendant will dissipate his assets demonstrated that suspicion to be, in my view, entirely reasonable.

61. The sale of the O’Malley property (over which there are three encumbrances) and the circumstances of the ‘doctored’ term sheet, alone, in my view, demonstrated the existence of real risk that the defendant is operating to make himself “judgment proof”.

62. The chronology of events with respect to the ‘doctored’ term sheet on their face raise the real prospect that the defendant has engaged in conduct which, at the very least, sought to obscure his real financial position. The timing of the discovery of the ‘doctored’ term sheet came after the default notice on 8 October 2024. Altogether, the circumstances and effect of the ‘doctored’ term sheet elevate the risk that the defendant will continue to so operate in order to mitigate his own losses and/or avoid his liabilities to frustrate the capacity for any judgment against him to be realised.

63. Added to which is a pattern of conduct which revealed that the defendant is operating to remove himself from connection with numerous entities, all the while ignoring entirely opportunities to bring about resolution and/or provide clarity as to his circumstances with respect to the debt owed to the plaintiff. The defendant has not engaged at all with the plaintiff about his obligations under the loan agreement.

64. The action taken by ASIC and others (striking off and winding up proceedings) with respect to entities with which the defendant is connected and the timing of other conduct engaged in the defendant are matters which only further support the existence of a risk of dissipation.

65. The defendant transferred his shares in Keggins 99 on the same day as a default notice was issued (8 October 2024). Keggins 99 is an entity which owns what would appear to be substantial real property. The circumstances of the transfer and the nature of the consideration for the transfer of the shares remains unknown. The mortgage for each of the Keggins 99 properties was secured by DYH Investment Group. The mortgage registered in favour of DYH Investment Group was signed on 22 January 2025 and registered on 10 February 2025. The mortgage was signed within a week of 16 January 2025, the termination date of the loan with the plaintiff and registered within a week of notice being sent to the defendant at the Bonner address and Keggins Investments of the appointment of a third-party investigator in relation to the Forrest development.

66. DYH Investment Group has as its sole director and secretary since 2 August 2021, Feixiang Huang. DYH Investment Group is now the sole shareholder in Lawson Housing, the defendant ceasing to hold shares on 13 March 2025. On the same day Feixiang Huang was appointed sole director of Lawson Housing.

67. The circumstances and timing of the dealings that I am satisfied that the defendant has engaged in, at least since the first default notice was created, supports a conclusion that his actions may result in his assets not being preserved in order to satisfy judgment in the plaintiff’s favour.

68. Mr Buckland, whilst doing his best to fairly and properly assist the Court in the context of ex-parte proceedings, submitted that on a fair reading of the documentation, he could not identify any factor or circumstance which would weigh against the making of the orders sought. Indeed, he noted that the orders sought by the plaintiff were not a “knee-jerk” response given the lengths the material demonstrated to which the plaintiff had gone to contact the defendant to invite his response. Those are submissions with which I agree.

The balance of convenience favours granting the freezing order

69. One of the matters for consideration with respect to the balance of convenience is whether the plaintiff has given the usual undertaking as to damages. That undertaking has been proffered by the plaintiff. I accept that the plaintiff is of sufficient financial means, and I am satisfied as to the adequacy of the undertaking.

70. I note that the terms of order sought would permit the sale of the O’Malley property save that such sale is on terms acceptable to the plaintiff and on condition that the residual proceeds of the sale are deposited into Court.

71. There being no other discretionary matter that would weigh against the orders being made I consider the balance of convenience favours the grant of the freezing order and accordingly, I will make the orders sought.

Orders

72. For those reasons, I make the following orders: (a) The Plaintiff has leave to file in Court this Originating Application and the Supporting Affidavits. (b) An order that, in the first instance, service of this Originating Application be dispensed with. (c) An order that, in the first instance, this Originating Application be returnable instanter. (d) An order that the Plaintiff serve a copy of: (i) this Originating Application; (ii) the Supporting Affidavits; (iii) any orders made by the Court in the first instance (Freezing Order Documents), on the Defendant. (e) An order that the Freezing Order Documents be served on the Defendant by leaving a copy of the Freezing Order Documents at the O'Malley Property under covering letter addressed to the Defendant by close of business 8 September 2025. (f) An order that the time for service of the material referred to in the preceding paragraph of this order be abridged to 5:00pm AEST on the date the business day after the first hearing of this Originating Application. (g) Subject to further order of the Court, an order that this Originating Application be returnable on a date convenient to the Court for a further hearing in respect of the orders sought by the plaintiffs in paragraph 8 below. (h) Upon the Plaintiff, by its counsel, giving the usual undertaking as to damages, freezing orders against the Defendant in accordance with the Annexure to these orders. (i) To the extent necessary, the Plaintiff has leave to give notice of any orders made to: (i) the relevant authorities that record, control and regulate the ownership of real property, motor vehicles and maritime vessels and craft; (ii) any bank, building society, cryptocurrency exchange or other financial institution with which, to the best of the plaintiff's belief, the Defendant may operate an account or hold property; (iii) any securities broking firm, foreign exchange broking or trading firm or futures broking firm with which, to the best of the Plaintiffs belief, the Defendant may operate any account; (iv) any other person or entity, holding or controlling the Defendant's O'Malley Property; and (v) any other person or entity, holding or controlling property, which, to the best of the Plaintiff's belief, may belong to the Defendant: by giving a copy of the minute of the orders to a person apparently in the employ of that entity or person. (j) The matter is listed on 12 September 2025 before 9:45am before the Registrar in the Civil Applications list.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor Associate: P Beohm Date: 17 September 2025