GBA Operations Pty Ltd v QC Communications Pty Ltd [2025] QDC 58

Separately, our client requires that your client undertakes (sic) not to remove from Australia, or any way (sic) dispose of, deal with, or diminish the value of any of its assets in Australia up to the unencumbered value of the Overpaid Funds of $543,114.74 until the conclusion of the Proceedings.

In the event that your client fails to provide the information and undertakings by the time required, we hold instructions to make an application for a freezing order against your client ...

• [11] In response, by a letter dated 2 April 2024, QCC's solicitors relevantly said:

With respect to giving an undertaking not to dispose of assets in Australia to the value of the Alleged Overpayment, our Client is agreeable, in principal (sic), to give such undertaking. Kindly provide us with a draft undertaking for our review.

• [12] On 4 April 2024, GBA commenced this proceeding and, on the same day, its solicitors sent a letter to QCC's solicitors in which they relevantly said:

We enclose the form of undertaking to the Court which we ask is (sic) signed and returned to us within 7 days for filing with the Court.

• [13] The enclosure was in a form with the court heading and footer, clearly designed to be a document to be filed in the court. A copy of the form, as ultimately signed by Mr Colley, is annexed to these reasons. Most relevantly, it can be seen that:

(a) it was headed "Undertaking to the court;"

(b) it commenced with the prefatory words: "The defendant hereby undertakes to the court in relation to these proceedings as follows;"

(c) it stated that the defendant warranted that its assets included four parcels of real estate that were beneficially owned by QCC; and

(d) it then set out QCC's undertaking, in particular not to dispose of, deal with or diminish the value of any of its Australian assets up to the unencumbered value of $543,114.74 until, in essence, the proceeding was at an end.

• [14] QCC's solicitors sent a copy of the signed undertaking to GBA's solicitors by email on 11 April 2024. In their covering letter, they said:

... purely in the interests of saving in the costs, time and effort of disputing an application for a freezing order, please find the enclose (sic) Undertaking.

The above Undertaking is made on a without admission basis, and on the basis that our client rejects that your client would be successful in its application for the foreshadowed freezing order. We also note that your client has not provided the standard undertaking as to damages. Nevertheless, we are instructed for the Undertaking to be filed with the Court, on the following terms:

(a) the Undertaking is made on a without admission basis; and

(b) our client reserves its right to apply to discharge the Undertaking at some later stage should the occasion for such an application arise, including an application to vary the Undertaking to require your client to provide the standard undertaking as to damages.

If your client is agreeable to the above terms regarding the Undertaking, kindly arrange for the filing of the Undertaking.

• [15] GBA's solicitors responded on 18 April 2024, confirming that "our client agrees to the terms of the undertaking," noting that the undertaking had not been dated and asking that QCC's solicitors "confirm the date upon which your client signed the undertaking so that it can be filed in complete form." They received no response to that letter.
• [16] The original undertaking was never provided to GBA's solicitors, nor was it filed in court. However, on 2 May 2024, GBA's solicitors filed an affidavit by a director of the firm, Matthew Kumnick, in which he deposed to the receipt of QCC's undertaking and the covering letter and he exhibited copies of them and of the letter of 18 April 2024.
• [17] The first time that the parties appeared before the court was on the hearing of an application by GBA for summary judgment on 29 August 2024. The undertaking was referred to by counsel for GBA and by the court in context of considering what evidence there was of QCC's financial position at the relevant time. Counsel submitted that the only evidence was "contained in an undertaking given by the defendant in the course of these proceedings, which was not to deal with assets up to the amount of the claim." That undertaking and the associated correspondence were in an exhibit to an affidavit read by GBA in the application, to which the court's attention was directed.[2]
• [18] Counsel appearing for QCC at that application simply referred to the undertaking in responding to GBA's submission that QCC had sufficient assets to repay the mistaken payment. He said:[3]

What's said against us is, "Well, you have other assets by reference to an undertaking given which refers to certain properties."

• [19] In my ex tempore reasons for dismissing the application for summary judgment, I concluded that the principal defence that may have substance and required a trial was that of a change of position by QCC to its detriment. I referred to the undertaking only inferentially, in saying that there was evidence that QCC owned four properties.[4]

• [20] Mr P O'Brien, who appeared for Mr Colley, submitted that QCC did not in fact give the undertaking to the court, but rather gave it to GBA as part of an inter partes agreement to avoid an application for a freezing order. In that case, any failure to comply with it, while possibly a breach of that agreement, cannot be a contempt of court.
• [21] Mr O'Brien submitted that whether the undertaking was given to the court is crucial to whether a breach of it may be in contempt of court. That is a question of fact and, on the evidence before the court now, it is so clear that the undertaking was inter partes, rather than given to the court, that any breach of it could not be in contempt.
• [22] In support of his submission that the undertaking was given by QCC as settlement of - and to avoid any need for - the threatened application for a freezing order, Mr O'Brien noted that, while addressed to the court, the original undertaking was not filed in court - indeed a copy was not filed as a separate document; the court was never asked to consider whether it was appropriate to accept the undertaking, which it may not have done, especially where GBA gave no cross-undertaking as to damages; nor did the court rely on the undertaking (at least as an undertaking rather than as evidence of QCC's ownership of assets) in making any orders.
• [23] Mr O'Brien submitted that an undertaking in lieu of an injunction, even though addressed to the court as an undertaking to it and even if filed, is not in fact given to the court unless and until the court has considered whether it is an appropriate undertaking that the court should accept and does in fact accept it. In order to accept an undertaking, the court must consider its terms and be satisfied that it would have jurisdiction and power to make an order to the effect of the undertaking, or some other order if it had not been proffered, and whether it is appropriate in all the circumstances to accept the undertaking. It should also seek an assurance by the representatives of the party proposing to give the undertaking that it has been explained to the party, who understands its meaning and the ramifications of giving it.[5]
• [24] In considering these issues and whether an undertaking should be accepted, the court should be guided by the principles that govern the grant of an injunction, including any limitations on the court's jurisdiction or power to grant an injunction.[6]
• [25] An important factor in determining whether it is appropriate to accept an undertaking is whether the other party in the proceeding proffers an undertaking as to damages. Rarely, if ever, would it be appropriate for a court to accept an undertaking in the absence of a cross-undertaking as to damages.
• [26] An undertaking that is simply given inter partes is not capable of acceptance by the court and breach of such an undertaking cannot constitute contempt of court. The undertaking in this case was simply an agreement between the parties and not an undertaking to the court. Mr O'Brien contended that it was similar to the undertaking given and considered in Oswal v Burrup Holdings Ltd (No 2),[7] in which the court summarily dismissed an application for contempt on the basis that the undertaking had not been given to the court.
• [27] Mr O'Brien submitted that the court's jurisdiction in this case was not invoked by or at the time of the undertaking in this case. First, because neither the original undertaking nor a copy of it was filed as a separate document: it was only part of the evidence given by Mr Kumnick in an affidavit filed by GBA. Secondly, that affidavit was not filed in the course of invoking the court's jurisdiction by, for example, an application for a freezing order which might be substituted by an appropriate undertaking in lieu of such an order. Although the proceeding seeks final relief within the court's jurisdiction, no application was on foot within the proceeding seeking injunctive relief in lieu of which the undertaking might be given. Thirdly, when the undertaking was referred to by counsel and the court, during the hearing of the application for summary judgment, it was not considered and accepted by the court as an undertaking but simply as evidence of QCC's ownership of the properties referred to in it.
• [28] Mr O'Brien submitted that, even if the court were satisfied from the correspondence and the terms of the undertaking, that the parties (and particularly QCC and Mr Colley) intended that it be given to the court, such an intention would not be sufficient to satisfy the requirement that it be given to the court. Although there is not one single process for giving an undertaking to a court, it is crucial that the court become aware of the undertaking and accept and act on it as an undertaking, not just for another purpose such as being evidence of facts stated in it.[8]
• [29] Finally, Mr O'Brien submitted that, given the potential sanction of contempt that attaches to an undertaking to the court, it must be clear, beyond reasonable doubt, that an undertaking was given to the court and not just inter partes. An important factor in determining that is whether there was a cross-undertaking as to damages.[9] It must also be clear that the court accepted - whether tacitly or expressly - the undertaking offered.[10] In the circumstances of this case, there must be a reasonable doubt about those facts, especially as GBA did not give a cross-undertaking as to damages. Therefore, the application for contempt cannot succeed and should be dismissed summarily.

• [30] Counsel for GBA reminded me that this is an application for summary dismissal. The court may strike out or dismiss an application for contempt only in the clearest of cases, adopting a cautious approach. Such an order may only be made where the application suffers from some irremediable defect or is so obviously untenable that it cannot possibly succeed. It will not be so where there is a real question of fact to be determined.[11] At this stage of the proceeding, it is not necessary to demonstrate beyond reasonable doubt that the undertaking was given and was operative.
• [31] In considering the application, therefore, for present purposes I need only consider whether GBA has a reasonably arguable case that QCC's undertaking was given to the court. Unless Mr Colley demonstrates that GBA's contentions are so obviously untenable that it cannot succeed in proving that the undertaking was given to the court, then the court should dismiss this application and the question whether that fact is proved will fall to be determined at the hearing of the application for contempt.
• [32] Here, counsel submitted, it is abundantly clear, or at least there is a reasonable possibility, that GBA has a reasonable, if not good, prospect of demonstrating that, in the circumstances of this case, the undertaking was in fact given to the court.
• [33] The undertaking was in fact filed in court. While the original was not, a copy of the undertaking, together with QCC's solicitors' letter setting out the conditions on which the undertaking was given, was effectively filed by being exhibited to Mr Kumnick's affidavit. There was no purpose to that affidavit and its exhibits being filed other than to give the undertaking to the court. This was done, in essence, as agent for QCC, which had expressly authorised and requested that GBA's solicitors file the undertaking. In giving that authority, QCC had also expressly considered the absence of an undertaking as to damages by GBA and yet had decided to give the undertaking notwithstanding that absence. Furthermore, the court subsequently sanctioned particular courses of action (dismissal of GBA's application for summary judgment and later orders for further disclosure by QCC) on the faith of the terms of the undertaking.
• [34] In these circumstances alone, there is a reasonable prospect that the court will find that the undertaking was given to and accepted by the court.
• [35] But further, counsel submitted, the purported principles relied on by QCC in support of its contentions about what is necessary for an undertaking to be made to the court, are incorrect in some respects.
• [36] First, the court clearly had jurisdiction to accept the undertaking in lieu of determining a possible application for a freezing order. Its jurisdiction was enlivened under s 68 of the District Court of Queensland Act 1967, when the claim was filed seeking relief within the court's monetary and other jurisdiction given under that section. Having that jurisdiction, the court has the powers under s 69, which include a power to make a freezing order under chapter 8 of the Uniform Civil Procedure Rules 1999. In seeking and proffering the undertaking to avoid the filing of an application for such an order, the parties were acting in accordance with their obligations under UCPR rule 5. It would have been contrary to a proper method of conducting the proceeding for an application to have to be filed and an undertaking then to be given in open court in order for the undertaking to have any force. There was no need for an application to be filed before the court had the power to accept the undertaking.
• [37] Secondly, there is no prerequisite that an undertaking given to the court must expressly be accepted or recorded by the court for the undertaking to become operative.[12] There may be circumstances in which the court can properly draw an inference that an undertaking was given or that the court accepted it. The circumstances may include, and those inferences may be drawn from, the parties' conduct and the court's conduct of the case.[13]
• [38] Thirdly, the cases relied on by QCC in submitting that the undertaking was not made to the court or it was not accepted by the court are distinguishable on their facts. In Thomson, the High Court determined that the Federal Court did not, at the time, have any jurisdiction to make an injunction in the circumstances and therefore it did not have the jurisdiction to accept an undertaking in lieu of an injunction. In Oswal, the undertaking was never filed nor otherwise communicated to the court, whereas here it was filed and, if that were insufficient, it was later drawn to the court's attention in the summary judgment application. In U & I Global, it was conceded that the undertaking was made inter partes.
• [39] Counsel also noted that Oswal was not a pre-trial application for summary dismissal of the principal application, but was a final decision concerning a no case to answer submission that had been made by Mr Oswal after the close of Burrup's case. Different principles apply on such an application to those that apply in an interlocutory application for summary dismissal.
• [40] Fourthly, the parties' intentions may, in some circumstances, be relevant. In this case, their intention was expressly that the undertaking be given to the court, not just inter partes, in a manner that saved time and expense: by simply filing the undertaking rather than going through the process of GBA unnecessarily filing an application for a freezing order and QCC then offering the undertaking at a hearing.
• [41] It would be open to the court to draw the inference from all the conduct and circumstances that not only was a clear undertaking given, but also the court accepted it so that it became operative.[14]
• [42] In GBA's submission, there is a reasonable prospect that, at the trial of the principal application, the court will find that the undertaking was made to the court and therefore Mr Colley's application ought be dismissed.

• [43] An important factor in determining this summary application is that GBA need only demonstrate that it has a reasonably arguable case that Mr Colley's undertaking was made to the court. The principles outlined in [30] above apply. Unless it would be unarguable that GBA might demonstrate beyond reasonable doubt, at the hearing of the contempt application, that the undertaking was not given to the court or did not become operative, the court should not dismiss the substantive application at this stage.
• [44] There is no doubt that the parties intended that the undertaking be one given to the court. They appear both to have considered at the time that it would be sufficient, for that to occur, for QCC, by its director, to sign the written undertaking and to have it filed in court.
• [45] While the original was not filed, it was necessary to file the undertaking together with the conditions on which QCC had agreed to give it, as those conditions were only stated and accepted by correspondence, not stated in the undertaking itself. An arguably appropriate way to do that was, as GBA did, to file an affidavit deposing to and exhibiting copies of that correspondence and the undertaking. I consider it arguable that that constituted a proper manner of proffering the undertaking to the court.
• [46] The parties' intentions are not determinative, but they are relevant. It is notable that, until this application was filed, Mr Colley and QCC had never suggested that the manner in which the undertaking was proffered to the court was inappropriate or ineffective to constitute a binding obligation to the court.
• [47] I consider that this case is distinguishable from those relied on by Mr Colley, for the reasons given by counsel for GBA. Another distinction, emphasised by Mr O'Brien for Mr Colley, was that in each of those cases the court's jurisdiction had been invoked by an interlocutory application,[15] but I consider that it remains arguable that an undertaking to the court can be given in a proceeding within jurisdiction, at a time when no formal interlocutory application is on foot.
• [48] I do not consider that any particular process is required for an undertaking to be given effectively to a court. While ordinarily undertakings are given in open court and are considered and expressly or tacitly accepted by the court, it is arguable that that is not strictly necessary in all cases. I do not, with respect, agree that an undertaking must always be accompanied by an express assurance by a party's legal representative that the party understands it. Such an assurance, even if it were required, is implicit when a legal representative gives an undertaking to the court. Although it was not QCC's lawyers who filed the undertaking in this case, filed with it was their letter stating expressly that QCC agreed to give it on the conditions stated and they asked GBA's solicitors to file it. That conduct similarly implied that QCC had considered, received legal about, and agreed to give, the undertaking.
• [49] It is arguable that, in the light of the philosophy of the UCPR expressed in rule 5, the manner in which the undertaking was negotiated and then given to the court by being filed at QCC's express request and after considering and accepting the absence of an undertaking as to damages, was sufficient to constitute the undertaking as one given to the court and effectively binding on QCC from the time it was filed. I do not think that the failure to file the original is fatal.
• [50] At the least, it is arguable that, even if it did not operate immediately upon its filing, the undertaking became operative once its existence was drawn to the court's attention and the court relied on it in determining a course of action. Arguably, that occurred at the hearing of the summary judgment application. Of course, if it only became operative at that time, any steps taken by QCC before then may not have been in contempt. On the other hand, even if it only became operative then, it would have been highly misleading of QCC, by its counsel, not to inform the court that events since it was filed had superseded and made the proffered undertaking inappropriate.
• [51] GBA has filed substantive material in support of its application for contempt. However, I was informed that it may wish to file further material (although not, I understand, about the circumstances in which the undertaking was produced). Mr Colley has not yet decided whether to adduce evidence, although I was informed that he may do so.

• [52] I consider there to be an arguable case that QCC gave the undertaking to the court and that it became operative upon its filing as an exhibit to Mr Kumnick's affidavit. Therefore, it is not appropriate to dismiss GBA's application on a summary basis.
• [53] The application for summary dismissal will be dismissed. I shall hear the parties as to costs and as to directions for the final hearing of the application for contempt.

[1] Strictly speaking, he probably should have been joined as second defendant in the proceeding, but nothing turns on how he has been brought before the court.

[2] Transcript 1-12: affidavit of Mr Kumnick filed on 19 March 2025, p 17.

[4] Transcript of reasons, 1-4: Kumnick p 46.

[5] Relying on remarks by Spender J cited in U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26, 29.

[6] Thomson Australian Holding Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 164-165.

[7] [2012] FCA 1187; (2012) 208 FCR 425, discussed by Barker J in particular at [85].

[8] Oswal, [59], [70], [75]-[76], [87].

[9] Srotyr v Clissold [2015] NSWSC 1770, [20]-[21].

[11] O'Conner v Hough [2016] QSC 4; [2016] 2 Qd R 543, [15]-[16].

[12] Oswal, [74], [77]; Housewives United Buyers' Cooperative Ltd v Trustees of the Sisters of St Joseph (1980) 42 FLR 106.

[15] The same applies to another case referred to by counsel for GBA, in which the relevant undertaking had been given in an application for interim relief: Goodberry Holdings Pty Ltd v Senatore [2005] ACTSC 141.