FAMILY LAW - MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST - related litigation pending before Perram J of the Federal Court of Australia fixed to commence at trial in April 2026.

FAMILY LAW - DISCLOSURE - IMPLIED UNDERTAKING - application by a respondent in s 79 litigation to be released from the implied undertaking arising from Hearne v Street - application granted.

FAMILY LAW - PUBLICATION OF INFORMATION - s 114Q Family Law Act - whether provision enlivened.

Family Law Act 1975 (Cth) s 114Q

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04

Baden Delvaux & Lecuit v Societe Generale [1992] 4 All ER 161

Barnes v Addy [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244

Danks & McCabe [2022] FedCFamC1F 960

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576

Home Office v Harman [1983] AC 280

Jess & Jess [2021] FedCFamC1F 24

Liberty Funding v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Littlefield v Pemble [2023] FedCFamC1A 198; (2023) 67 Fam LR 603

Pace & Halkias [2021] FamCAFC 81

Sahadi v Savva [2016] FamCAFC 65; (2016) 55 Fam LR 278

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Sweetman v Australian Thoroughbred Finance Pty Ltd (unreported, Federal Court of Australia, 23 July 1992)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

UPON THE COURT BEING INFORMED that the orders set out below are made without prejudice to the respondent's ability to object to the tender of any document identified in the Annexure hereto in Federal Court of Australia proceedings No. NSD 555 of 2019 and NSD 2080 of 2016 and, in consenting to these orders, the respondent makes no admission as to the admissibility of any document in those proceedings and that in using and/or disclosing any document identified in the Annexure to these orders pursuant to orders 1 to 3 below, V Company -

(i) shall be bound by the implied undertaking as described in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 with respect to the use or disclosure of the documents in Federal Court of Australia proceedings No. NSD 555 of 2019 and NSD 2080 of 2016; and

(ii) shall maintain the confidentiality of the documents in accordance with the confidentiality arrangements that have been agreed between V Company and the parties to these proceedings.

1. V Company is released from the implied undertaking as described in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 with respect to the documents identified in the Annexure hereto for the purposes of their use by V Company in Federal Court of Australia proceedings No. NSD 555 of 2019 and NSD 2080 of 2016.
2. Pursuant to r 6.04(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), V Company is granted permission to disclose the contents of the documents in the Annexure to these orders to use those documents for the purposes of Federal Court of Australia proceedings No. NSD 555 of 2019 and NSD 2080 of 2016 and to disclose those documents to the following persons -

(a) Mr AA;

(b) Mr BB;

(c) Mr CC;

(d) V Company's solicitors at HWL Ebsworth Lawyers;

(e) V Company's counsel; and

(f) experts retained on behalf of V Company.

1. Pursuant to s 114Q(2)(b) of the Family Law Act 1975 (Cth), the court approves the communication of any matter within s 114Q(1) to the extent such a communication occurs by reason of the use of the documents identified in the Annexure hereto in accordance with order 1 above.
2. There is no order as to costs.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Minke & Minke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By application dated 17 October 2025 V Company sought orders that it be released from the implied undertaking arising from the decision in Hearne v Street[1] in relation to documents identified in the annexure to the application to enable those documents to be put before Perram J of the Federal Court of Australia during the trial of proceeding NSD 555 of 2019 and of proceeding NSD 2080 of 2016, fixed for April 2026 ("the litigation before Perram J"). Independently, I am required to separately adjudicate upon the questions before me as orders of the court must be made - irrespective of consent hence these reasons.
2. The application was initially opposed. Later, consent was given.
3. These reasons address my decision acceding to the application brought by V Company. Specifically -

(a) I release V Company from the Hearne v Street implied undertaking so as to enable it to adduce evidence in documentary form in the litigation before Perram J derived from disclosure arising in this litigation in this court;

(b) I give permission to V Company, pursuant to rule 6.04(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the rules") to disclose the contents of documents in annexure A to V Company's application and to use those documents in the litigation before Perram J; and

(c) pursuant to s 114Q(2)(b) of the Family Law Act I approve the communication of any matter within the contemplation of s 114Q(1) of the Family Law Act to the extent that such communication occurs by reason of the use of documents in accordance with paragraph 1 of these orders.

1. On 28 February 2025 I made orders vacating the trial date for this proceeding which was fixed to commence on 31 March 2025. On the same day I made orders permitting V Company to search the court file in this proceeding.
2. The litigation before Perram J has been fixed for trial to commence on 20 April 2026. Pleadings in that litigation have closed. V Company has been ordered to file its expert evidence by 21 November 2025. The issues in the litigation before Perram J include a Barnes v Addy[2] claim. Relevantly, in that Barnes v Addy claim knowledge according to the Baden scale[3] will be in issue. In debate on 21 October 2025 Mr DD KC for V Company informed me that V Company will put in issue the state of knowledge of the relevant witnesses about the circumstances in which funds were applied for the acquisition of the Suburb B property.
3. Annexure A to V Company's application in a proceeding was prepared by V Company's legal representatives. In it, V Company recorded the affidavits filed in this proceeding in this court, the paragraphs of each such affidavit and the manner in which each paragraph of each affidavit was relevant to the litigation before Perram J. So far as the affidavit of Mr Minke made 26 February 2024 was concerned, in annexure A V Company asserted as follows -

(a) at paragraphs 48, 49 and 54 of Mr Minke's 26 February 2024 affidavit, Mr Minke deposed to a share issue in EE Ltd and a shareholders agreement which provided for Minke Investments to increase its shareholding in EE Ltd, a share resolution and a share issue that V Company says was made without the knowledge or consent of Mr AA or Mr BB or V Company and in respect of which Minke Investments gave no consideration with the consequences in respect of that share issue as are set out in paragraph 44 of the further amended statement of claim;

(b) at paragraph 52 of Mr Minke's affidavit made 26 February 2024 Mr Minke addressed V Company's alleged funding obligations, a matter V Company contends will be a critical issue in the litigation before Perram J;

(c) at paragraphs 53, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77 and 78 of Mr Minke's 26 February 2024 affidavit, Mr Minke addressed the valuation, sale process and share sale in EE Ltd and related dealings and in paragraph 74 of Mr Minke described the sale price as being applicable to a "distressed sale" yet V Company alleges that the sale to T Company was at an undervalue, that V Company alleges Mr Minke knowingly was involved in dishonest breaches of fiduciary duties and trust as part of a dishonest and fraudulent design arising from matters that included the T Company sale as well as the EE Ltd share issue and others, in consequence of Mr Minke's alleged knowing assistance, that V Company alleges that Minke Investments held equity in EE Ltd on a constructive trust for the benefit of, among others, V Company;

(d) between paragraphs 87 to 94 of Mr Minke's 26 February 2024 affidavit, Mr Minke addressed the manner in which Mr Minke directed the proceeds derived from the sale from T Company to FF Company and the receipt of proceeds from H Investment Trust in respect of which V Company contends it is entitled to trace the proceeds of its equitable proprietary interest in EE Ltd's equity held by V Company into hands to which those proceeds have been paid;

(e) between paragraphs 101 and 104 of his 26 February 2024 affidavit Mr Minke addressed the establishment of the GG Group business and investments in it by H Investment Trust;

(f) between paragraphs 121 and 124 of his 26 February 2024 affidavit Mr Minke addressed a restructure of the assets in GG Group;

(g) between paragraphs 126 and 130 and paragraph 138 of his 26 February 2024 affidavit, Mr Minke addressed the purchase of the Suburb B property, distributions to facilitate that from the H Investment Trust and its renovation;

(h) at paragraph 133 of his 26 February 2024 affidavit Mr Minke addressed why the Suburb B property was registered in the sole name of the wife;

(i) at paragraph 152 of his 26 February 2024 affidavit Mr Minke addressed the way the HH Bank Facility secured by the Suburb B property was used;

(j) between paragraphs 185 and 187 of his 26 February 2024 affidavit Mr Minke addressed repaying the debt then outstanding to Commonwealth Bank of Australia by EE Holdings Pty Ltd; and

(k) between paragraphs 188 and 194 of his 26 February 2024 affidavit Mr Minke addressed the sale by H Pty Ltd in EE Holdings Pty Ltd to JJ Pty Ltd and the proceeds it and M Pty Ltd received.

1. V Company focused on the affidavit of Ms Minke made 8 February 2023. In particular, V Company asserted as follows -

(a) in paragraph 21 of her affidavit Ms Minke addressed the equity generated by the November 2023 restructuring deal and the causal link between that equity raising and the purchase of the Suburb B property;

(b) in paragraph 25 of her affidavit Ms Minke addressed the purchase of the Suburb B property and the way that property was used as security for the loan facility advanced by HH Bank which Ms Minke contended was used by Ms Minke for ongoing business investments including the establishment of GG Group; and

(c) in paragraph 27 of her affidavit, Ms Minke identified funds from the HH Bank facility that were used to purchase the real property at City KK.

1. Ms Minke made a further affidavit, it being dated 26 February 2024 V Company contended that the following parts of that affidavit bore upon this application, namely -

(a) between paragraphs 31 and 39 of that affidavit Ms Minke addressed difficulties between Mr Z and Mr AA/Mr BB, indicating an intention to remove Mr AA and Mr BB's interests from business, a matter, so V Company contended, may be relevant in the cross-examination of Mr Minke;

(b) between paragraphs 74 and 75 as well as in paragraphs 83 to 85 of her 26 February 2024 affidavit, Ms Minke deposed to the sale from T Company to FF Company, the receipt of funds from that transaction and the use to which those funds were put about which V Company has an interests in exploring; and

(c) in paragraphs 93, 94 and 97 Ms Minke addressed the deed of loan which Ms Minke impugns about which V Company may wish to cross-examine Mr Minke.

1. Mr C made an affidavit on 12 March 2024 to which he exhibited a valuation concerning the Suburb B property. V Company has indicated that it may wish to cross-examine Mr C on the value he ascribed to the Suburb B property if V Company presses to trace the equitable interest it asserts into the Suburb B property.
2. Ms Minke made a further affidavit on 12 March 2024. In it she asserted that the deed of loan was not true and correct. V Company has indicated that it may wish to cross-examine Mr Minke, possibly limited to credit, on the truth and correctness of the deed of loan. To the affidavit of Mr LL made 13 March 2024, Mr LL exhibited the expert report of Ms F dated 25 January 2024. V Company has indicated that the Ms F report may provide the forensic basis for the issue of one or more subpoenae for use in the litigation before Perram J.
3. Ms D made an affidavit dated 12 March 2024 to which she exhibits a report on the value of the interest held by H Investment Trust in J Pty Ltd and K Pty Ltd. V Company has indicated that it wishes to put before Perram J the Ms D report.
4. Mr Minke made another affidavit, this one dated 12 March 2024. In it Mr Minke gave his version of matters in paragraphs 34 and 35 of Ms Minke's affidavit. V Company says it may wish to cross-examine Mr Minke on any discrepancy that emerges between Ms Minke's viva voce version of events and Mr Minke's. V Company is also interested in the expert reports exhibited to that affidavit as exhibits MRM 5 and MRM 7 as they bear upon Ms F's 25 January 2024 report.
5. Mr P made an affidavit on 18 March 2024 to which he exhibited valuation reports of the Suburb B property as well as the City KK property. V Company has indicated it is keen to pursue those valuations if V Company becomes entitled to trace its equitable interests to the Suburb B property as well as to the City KK property.
6. The joint expert statements of Ms D and of Ms F along with the affidavit of Mr S are of interest to V Company, so Mr DD KC submitted.

1. In its most classic formulation, in essence the implied undertaking to which the decision in Hearne v Street is directed prohibits a party to this litigation from disclosing documents or information derived from disclosure for any purpose other than for which it was given (unless received into evidence) without leave of the court. The implied undertaking has been the subject of a vast number of decided cases, including Jess & Jess (No 15)[4] on which V Company relied on this application.
2. V Company seeks leave of this court to be relieved of the implied undertaking forbidding it from using information derived from disclosure for a purpose other than that for which it was given. The documents in respect of which V Company seeks to be relieved of the implied undertaking were each produced by compulsion or specific court order, none has been received into evidence and each is impressed with the implied undertaking. While V Company sought leave to rely on the documents in annexure A (canvassed above), which leave was opposed, V Company has endeavoured to invoke the legal criteria for the grant of leave set out in the decision of Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[5] a decision of Wilcox J of the Federal Court of Australia applying the test that then prevailed (Home Office v Harman),[6] the 2008 decision in Hearne v Street then being several years away from being decided. That said, the principle established in Home Office v Harman was applied in Crest Homes PLC v Marks,[7] each decision holding that the court will not release or modify the implied undertaking given on discovery -

(a) save in special circumstances; and

(b) where the release or modification will not occasion injustice to the person giving discovery.

1. The decision of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd is ordinarily attributed as being the Australian source of jurisprudence on the elements of the test for the existence of "special circumstances" to which the House of Lords decisions in Home Office v Harman and Crest Homes PLC v Marks direct attention. In fact, prior to the decision of Wilcox J in Springfield Nominees, Burchett J discussed the requirement of special circumstances in Holpitt Pty Ltd v Varimu Pty Ltd[8] as did Lockhart J in Sweetman v Australian Thoroughbred Finance Pty Ltd (unreported, 23 July 1992). Wilcox J was persuaded to adopt the reasoning of Lockhart J and of Burchett J. Wilcox J held as follows -

"For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding."

1. The decision of Wilcox J in Springfield Nominees was embraced by the Full Court of the Federal Court in Liberty Funding v Phoenix Capital Ltd.[9] There, it was held that the notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. The Full Court held that in all the circumstances good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for non-litigious purposes. It was held that the discretion is broad and all the circumstances of the case must be examined. The court referred to the seven indicia postulated by Wilcox J, holding that those matters are a helpful guide. The decision in Liberty Funding was adopted in this court in Pace & Halkias[10] and at first instance in Danks & McCabe[11] and more recently in Littlefield v Pemble.[12] Whether leave should be given or refused is not to be influenced by questions of admissibility in the other court, as was held in Sahadi v Savva.[13]
2. The elements set out in the seven criteria mentioned in Springfield are a useful guide yet none, in and of itself, is determinative of the outcome of the application. In my view, as was held in Liberty Funding, not every passage of a document needs to possess some probative value for it to be utile in the second proceeding (here, in the litigation before Perram J). However, in my view, the documents set out in annexure A (the details of which were canvassed above) show that the documents for which V Company seeks leave to be relieved of the implied undertaking are, or are likely to be, probative in the litigation before Perram J.
3. Expressed most basically, the litigation before Perram J involves allegations that breaches of fiduciary duties were engaged in, those duties being owed to V Company. It also involves allegations that Mr Z and another engaged in a dishonest and fraudulent design against V Company. It further involves allegations that Mr Minke knowingly assisted in Mr Z's breaches of duty and of trust, that by reason of those breaches a constructive trust arose in favour of V Company and that V Company is entitled to trace the proceeds of sale of Minke Investments's equitable proprietary interest in EE Ltd and that Mr Z, Mr Minke and H Pty Ltd is liable as a constructive trustee to V Company.
4. Having surveyed the manner in which the documents sought by V Company relies on those documents, it seems to me that each document in annexure A is relevant to one or more of the matters in issue in the litigation before Perram J.
5. It is also relevant to observe that the documents which V Company wishes to put before Perram J are in the main affidavits and expert reports. It is probable that those documents will be adduced in evidence before Perram J, although I do not wish to be taken to be so presumptuous as to predict how the trial before Perram J will unfold. In those circumstances, the documents mentioned in Annexure A are likely to be used by V Company in the formulation of subpoenae it may issue. The information in those documents is likely to provide the basis of instructions to V Company's experts as well.
6. Applying the criteria in Liberty Funding, I take the view that grounds exist for V Company to be relieved of the implied undertaking to which, absent order, it would be bound.
7. No sensible basis has been shown to refuse the orders V Company seeks. In any event, it will be a matter for Perram J to admit or to exclude evidence - howsoever obtained - during the running of the trials that his Honour will conduct. As to the issue of s 114Q of the Family Law Act, I take the view, as I did in Jess & Jess,[14] that publication to the Federal Court of Australia is not publication to "the public" or to "a section of the public".

1. I make orders by consent in terms of paragraphs 1, 2, 3 and 4 of the minute of proposed consent orders emailed to my chambers on 24 October 2025.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

• Paragraphs 33-39;
• Paragraphs 48-78;
• Paragraphs 87-97;
• Paragraphs 101-104;
• Paragraphs 121-124;
• Paragraphs 126-130;
• Paragraph 133;
• Paragraph 138;
• Paragraph 152;
• Paragraph 185-193;
• Subparagraphs (a) and (c) of paragraph 194;
• Pages 1053 to 1150 of Exhibit [MRM]-1;
• Pages 1232 to 1239 of Exhibit [MRM]-1; and
• Pages 1467 to 1566 of Exhibit [MRM]-1.

2024-02-26_Affidavit of

[Mr Minke] on

26_02_2024_OT29608618_v1

• Paragraph 21;
• Paragraph 25;
• Paragraph 27;
• Paragraph 76 from the second sentence which starts 'the cash balance' to the end of the table; and
• Annexure E, being the [H Investment Trust] financial report for the year ending 30 June 2021.

2023-02-08_Affidavit of [Ms Minke] on 08_02_2023_OT21975607_v1

Financial Questionnaire of [Mr Minke]

dated 22 February 2023

2023-02-22_Questionnaire Financial_OT22208434_v1

• Paragraphs 31-39;
• Paragraphs 74-75;
• Paragraphs 83-85;
• Paragraphs 93-94;
• Paragraph 97;
• Paragraph 121;
• Tab 13 of Exhibit-[MSM];
• Tab 16 of Exhibit-[MSM];
• Pages 646-655 of Tab 17 of Exhibit-[MSM];
• Pages 1255-1262 of Tab 38 of Exhibit-[MSM].

2024-02-26_Affidavit of [Ms Minke] on 26_02_2024_OT29618199_v1

2024-03-12_Affidavit of

[Mr C] on

12_03_2024_OT29918388_v1

2024-03-12_Affidavit of

[Ms Minke] on

12_03_2024_OT29907007_v1

2024-03-13_Affidavit of

[Mr LL] on

13_03_2024_OT29953761_v1

2024-03-12_Affidavit of [Ms D] on 11-03-

2024_OT29927982_v1

2024-03-12 Affidavit of [Mr Minke] on

11_03_2024_OT29903859_v1

• Expert report annexed at Exhibit [MRM]-5; and
• Exhibit [MRM]-7.

2024-03-12_Affidavit of

[Mr Minke] on 11-03-

2024_OT29928301_v1

• Annexure C to the Affidavit;
• Annexure D to the Affidavit;
• Annexure F to the Affidavit; and
• Annexure G to the Affidavit.

2024-03-18_Affidavit of [Mr P] on

18_03_2024_OT30032907_v1

• Annexure B joint statement filed by Ms F and Ms D (being pages 41-75 of the annexures to the Affidavit).

2024-11-18_Affidavit of

[Ms Minke] on

18_11_2024_OT35143973_v1

2024-11-18_Affidavit of [Mr S] on

18_11_2024_OT35143175_v1

[1] [2008] HCA 36; (2008) 235 CLR 125.

[2] [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244.

[3] Baden Delvaux & Lecuit v Societe Generale [1992] 4 All ER 161.

[5] (1992) 38 FCR 217.

[6] [1983] AC 280.

[9] [2005] FCAFC 3; (2005) 218 ALR 283.

[10] [2021] FamCAFC 81.

[11] [2022] FedCFamC1F 960.

[12] [2023] FedCFamC1A 198; (2023) 67 Fam LR 603.

[13] [2016] FamCAFC 65; (2016) 55 Fam LR 278.

[14] [2021] FedCFamC1F 24.