Supreme Court of Tasmania|2025-12-05

The applicant submitted this passage was apposite in this case and submitted that the court should infer that that the defendant has caused an uncommercial disposal of the economic interest in HGM and HMU to frustrate the court's processes by seeking to alienate assets for the purpose of defeating Goshawk's claim for damages in the principal proceedings.
I was satisfied that the balance of convenience and interests of justice favoured the making of those orders to preserve the status quo in circumstances where there is a danger that the assets belonging to the respondents to the application might be dissipated in the absence of such an order. The urgent ex parte orders were granted upon Goshawk giving the usual undertaking as to damages. I adjourned the proceedings for the shortest time possible to enable the respondents to be given notice of the proceedings and an opportunity to be heard as to the continuation of the freezing order.
The orders made (as amended on 5 December 2025) are in the terms set out below. The matter is adjourned for further hearing on a date to be fixed.

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.

(a) 'applicant', if there is more than one applicant, includes all the applicants;

(b) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation;

(c) 'third party' means a person other than you and the applicant;

(d) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.

(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 or with your encouragement or in any other way.

(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.

(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$36,400,000 (thirty six million, four hundred thousand Australian dollars) (the 'Relevant Amount').

(b) If the unencumbered value of your Assets exceeds the Relevant Amount, you may dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Assets still exceeds the Relevant Amount.

(c) If the unencumbered value of the First Respondent's Australian Assets is less than the Relevant Amount, and the Respondent has assets outside Australia ('ex-Australian Assets'), an order that the Respondent must not dispose of, deal with or diminish the value any of the Respondent's Australian Assets and ex-Australian Assets of the unencumbered value of the Relevant Amount.

ORDERS AS TO EACH OF THE SECOND RESPONDENT AND THIRD RESPONDENT:

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') or outside Australia ('ex-Australian Assets').

ORDERS AS TO THE FIRST RESPONDENT, THE SECOND RESPONDENT AND THE THIRD RESPONDENT:

ORDERS FOR THE PURPOSES OF PARAGRAPHS (4) AND (5)

(a) Your assets include:

All your assets, whether or not they are in your name and whether they are solely or co-owned.

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).

The assets comprising the mining operations and related business(es) of the Second Respondent and Third Respondent which mining operations are located in Tasmania and known as Hellyer Gold Mine and/or Hellyer Mine.

If any or all of the assets have been sold, the net proceeds of the sale of the assets which have been sold.

(b) The value of your assets is the value of the interest you have individually in the assets.

ORDERS AS TO EACH OF THE FIRST RESPONDENT, SECOND RESPONDENT AND THIRD RESPONDENT:

(a) At or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your Australian Assets and ex-Australian Assets (worldwide), 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; and

(b) Within 10 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.

(a) This paragraph (8) applies if you are not a corporation and you wish to object to complying with paragraph 7 on the grounds that some or all of the information required to be disclosed may tend to prove that you:

have committed an offence against or arising under an Australian law or a law of a foreign country; or

are liable to a civil penalty.

(b) This paragraph (8) also applies if you are a corporation and all of the persons who are able to comply with paragraph 7 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 6 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:

have committed an offence against or arising under an Australian law or a law of a foreign country; or

are liable to a civil penalty.

(c) You must:

disclose so much of the information required to be disclosed to which no objection is taken; and

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

file and serve on each other party a separate affidavit setting out the basis of the objection.

(a) paying your reasonable legal expenses;

(b) dealing with or disposing of any of your assets in the ordinary and proper course of your business such as paying business expenses bona fide and properly incurred; and

(c) in relation to matters not falling within (a) or (b), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a binding contract entered into before this order was made, provided that before doing so you give the applicant at least three working days written notice of the particulars of the obligation.

You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied, on terms. Such exception may include the sale of the assets including the mining operations and related business(es) of the Second Respondent and Third Respondent which mining operations are located in Tasmania and known as Hellyer Gold Mine and/or Hellyer Mine, with particulars of any such sale or proposed sale to be provided to the applicant on request including provision of the applicable contract for sale. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of 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.

(a) This order will cease to have effect in respect of the First Respondent, if the First Respondent:

pays the sum of AUD $36,400,000 into Court; or

pay that sum into a joint bank account in the name of your lawyer and the lawyer for the applicant as agreed in writing between them; or

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 to 11(a) above, you must as soon as practicable file with the Court and serve on the applicant notice of that fact.

PERSONS OTHER THAN THE APPLICANT AND FIRST RESPONDENT, SECOND RESPONDENT AND THIRD RESPONDENT

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.

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.

Restraint on dealings with shares held by Fourth Respondent in Second Respondent and Third Respondent

The Fourth Respondent is restrained from dealing with, disposing, encumbering, transferring or otherwise in any way diminishing the value of its shares held in each of the Second Respondent and the Third Respondent.

(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) inform the applicant in writing of particulars of, and provide documents (as defined in the Evidence Act 2001 (Tas)), including any share sale and purchase agreement(s) or similar, share transfer forms, relevant board minutes and resolutions, correspondence and records showing consideration paid by you, if any, including bank statements recording same ("Documents"), which concern your acquisition as transferee of the shares you now hold in each of the Second Respondent and the Third Respondent, which shares were acquired from Ivy Resources Pty Ltd, the Fifth Respondent, as transferor, as recorded by notification of change in shareholdings in each of the Second Respondent and Third Respondent filed with ASIC on or about 6th and 7th November 2025; and

(b) within 10 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information and particulars and annexing the Documents.

Restraint on dealing with consideration received for transfer of shares to Fourth Respondent

The Fifth Respondent is restrained from dealing with, disposing, encumbering, transferring or otherwise in any way diminishing the value of any asset including funds or payment or receipt of value in any form, received as consideration for the transfer of its shares held in each of the Second Respondent and the Third Respondent as transferor, to the Fourth Respondent as transferee.

(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) inform the applicant in writing of particulars of, and provide documents (as defined in the Evidence Act 2001 (Tas)), including any share sale and purchase agreement(s) or similar, share transfer forms, relevant board minutes and resolutions, correspondence, and records showing consideration received, if any, including bank statements recording same ("Documents"), which concern your disposal as transferor of the shares you previously held in each of the Second Respondent and the Third Respondent, which shares were acquired from you as transferor by the Fourth Respondent as transferee, as recorded by notification of change in shareholdings in each of the Second Respondent and Third Respondent filed with ASIC on or about 6th and 7th November 2025; and

(b) within 10 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information and particulars and annexing the Documents.

Restraint on dealing with shares held by Sixth Respondent in Fifth Respondent, Ivy Resources Pty Ltd

The Sixth Respondent is restrained from dealing with, disposing, encumbering, transferring or otherwise in any way diminishing the value of its shares held in the Fifth Respondent.

(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) provide a copy of your current share register showing current shareholders in you; and

(b) within 10 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information and particulars and annexing the Documents.

Restraint on dealings with shares held by First Respondent in Keen Pacific Limited (BVI Company Number 1477915)

The First Respondent is restrained from dealing with, disposing, encumbering, transferring or otherwise in any way diminishing the value of its shares held in Keen Pacific Limited, which is incorporated in the British Virgin Islands, BVI Company number 1477915.

The costs of this application are reserved to the Court hearing the application on the Return Date.
That the plaintiff provides an additional submission relating to the process referred to in r 937E(5)(b).
I certify for counsel.

Goshawk Mining Pty Ltd v Hellyer Metal Pty Ltd [2025] TASSC 66 (5 December 2025)

In relation to my conclusion that Goshawk's has a good arguable case in the principal proceedings in the Court, I have regard to the affidavit of Mr Saxby, pars 6-20 and the overviews set out in Goshawk Mining Pty Ltd v Hellyer Metals Ltd & Others [2025] TASSC 18 at [5]- [13], and Goshawk Mining Pty Ltd v Hellyer Metals Ltd & Others (No 2) [2025] TASSC 52 at [3]- [7].
As to the evidence before the Court on the urgent hearing without notice to the respondents, the applicant requested to be released from the Harman undertaking in relation to the affidavits of Karl Guillermo Adolfsson, sworn on 15 September and 10 October 2025, on the basis that those affidavits were filed in support of an earlier application for security for costs in these proceedings but which did not proceed, and so they had not previously been read. I acceded to that request and release the applicant from the undertaking in relation to those affidavits. The following affidavits were therefore read on the application for the urgent interlocutory order:
1. Affidavit of Bradley Saxby, sworn 2 December 2025;
2. Affidavit of John Wilson, sworn 2 December 2025;
3. Affidavit of Karl Guillermo Adolfsson, affirmed 15 September 2025; and
4. Affidavit of Karl Guillermo Adolfsson, affirmed 10 October 2025.
Goshawk submitted that the Court should be satisfied that there is a danger that assets will be dissipated in disregard of - or in an attempt to frustrate - the Courts processes on the basis of the following considerations. Goshawk submits that Hellyer Gold Mines Pty Ltd (HGM) and Hellyer Metals Underground Pty Ltd (HMU) represent significant proportions of the value held by the Hellyer group of companies; and that the transfer of these valuable assets suggests a real risk of dissipation of the defendant's assets which may frustrate the Courts processes in relation to the extant proceedings between Goshawk and Hellyer. Goshawk submits these efforts are "concerted" and that "there is a design to it".
The plaintiff's principal submission on the application was that the respondent's share transfers in relation to HGM and HMU appear to be designed to defeat a prospective judgment in favour of Goshawk and they are legally reversible. The applicant submitted that the Court should freeze the respondents' assets in order to prevent injustice and ensure enforceability of a prospective judgment.
The applicant submitted that the associations between the respondents and the defendant, Hellyer Metals Pty Ltd, are explained by Mr Saxby at pars 21-28 of his affidavit and further demonstrated by the 'current structure' document referred to by Mr Saxby at par 21 of his affidavit, which is to be found at p 53 of the affidavit (page 65 of the .pdf).
The evidence suggests that the entities within the Hellyer group of companies have caused valuable assets (the shares in HMU and HGM) to be transferred to Celestial Pacific Group Pty Ltd (Celestial Group), which is a company owned by Celestial Investments Pty Ltd (Celestial Investments) which is in turn owned by Mr Alan Bates, a business associate of Mr Graham Cox who until 22 October 2025 was a director of Hellyer Metals. Mr Saxby provided evidence of Mr Bates' association with Mr Cox and with the Gaston group of companies and Gaston's association with and shareholding in Hellyer Metals at pars 40-42. Ms Louise Horrocks is a director and secretary of Celestial Group and she is Hellyer Metals' General Counsel. Celestial Group and Celestial Investments were incorporated on 5 November 2025, being on or about the same day that the shares in HGM and HMU were transferred to Celestial Group by the relevant entities within the Hellyer group of companies.
Counsel for Goshawk submitted that in the event of judgment being entered against the defendant Hellyer Metals Pty Ltd in the principal proceedings and such judgment not being satisfied, the defendant, Hellyer Metals Pty Ltd, could be wound up in liquidation and Goshawk would claim as a creditor in the liquidation within which process Celestial Group may be obliged to disgorge the shares it now holds in HMG and HMU in order to contribute to satisfying Hellyer Metals' judgment debt. Goshawk submitted further that on behalf of creditors in the liquidation process, the liquidator would recover assets of the defendant, Hellyer Metals Pty Ltd, for distribution to creditors - including Goshawk as the judgment creditor. Goshawk submitted further that Celestial Group is not an unrelated transferee of the shares in HMG and HMU held by Hellyer group companies.
The applicant addressed the issue of the process in the Court, which is or may ultimately be available to it as a result of a prospective judgment, under which process the third parties may be obliged to disgorge assets or contribute toward satisfying the prospective judgment. I note that after the interim freezing order was made, the applicant provided written submissions on 4 December 2025 on this point which provide the support for the submission as to the available processes which was made in general terms at the initial oral hearing. I have incorporated these submissions into these reasons. Goshawk submitted that the transfers likely constitute uncommercial transactions and creditor-defeating dispositions under the Corporations Act 2001 (Cth), ss 588FB, 588FDB, and 588FE. If that were established, these transactions are voidable in liquidation, enabling "clawback by a liquidator". Goshawk submitted further that the share transfers may be voidable under laws preventing alienation of property to defraud creditors, namely the Conveyancing and Law of Property Act 1884 (Tas), s 40, the Property Law Act 1974 (Qld), s 228 and the Conveyancing Act 1919 (NSW), s 37A.
Goshawk submitted that in relation to the power to make a freezing order in respect of property of a non-party, in Cardile v LED Builders Pty Ltd (1999) HCA 18, 198 CLR 380 at [57], Gaudron, McHugh, Gummow and Callinan JJ stated:

Goshawk Mining Pty Ltd v Hellyer Metal Pty Ltd [2025] TASSC 66

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (32 paragraphs)

Parties

Cases Cited (2)

Goshawk Mining Pty Ltd v Hellyer Metal Pty Ltd [2025] TASSC 66 (5 December 2025)