consideration
13 The plaintiff, save in respect of the question of the mortgage payments and a weekly allowance, strongly opposes any variation to the freezing order, for the primary reasons outlined above. The plaintiff refers to a number of authorities to suggest that interlocutory injunctions, including freezing orders, should ordinarily only be varied or discharged in exceptional circumstances and should only be varied where there has been a material change of circumstance since the original application was heard or the discovery of new material which could not reasonably have been put before the Court at the hearing of the original application. On that basis the plaintiff says there should be no variation because the question of indebtedness to the solicitors by the defendants should have been raised at the freezing order hearing, as should have been the question of provision for continuing legal services in relation to this proceeding. Similarly, the question of an expert and the expenses associated with the expert should have been then raised. As to the amount of $10,000 to be paid to the former administrator, now liquidator, Mr Lopez, the plaintiff says that this is not an expense relevant to these proceedings and so there is no justification for any funds affected by the freezing order to be applied towards it.
14 So far as the Court's power to vary a freezing order is concerned, there can be little doubt about it. Similarly, it is also clear that having made a freezing order a court should not be quick to reverse it save for good reason and the dictates of justice. In making the order, I made it plain at [99] that the order was interlocutory in nature and made until judgment and it remained open to the defendants to apply to the Court to discharge or modify the orders should appropriate circumstances arise. That is a conventional statement of the circumstances in which discharge or variation might occur. There are numerous authorities, indeed too many to list, that make this point. It is sufficient for present purposes to refer to what her Honour, Collier J, said to similar effect at [28] of Bird v McComb (No 3) [2011] FCA 697 and the authorities there noted. Ultimately, the grant or discharge or variation of an interlocutory injunction, including a freezing order will be dictated by what justice demands in the particular circumstances of the case.
15 When the freezing order was made in this case, the defendants did not make any submissions, even though they could have and did make submissions about other matters, concerning the amount of living expenses or the need to service mortgages in respect of certain properties owned by Mr Gilmour. Nor did they raise the question of their ongoing legal fees and the need to pay for an expert witness in this proceeding.
16 Nonetheless, in my view, they are items that, in all the circumstances, fall into the category of what I might call refinements to the terms of the freezing order and do not strike at the basis of the grant of the freezing order or otherwise seek to undermine the basis upon which the freezing order was granted. This is not a case, therefore, where it can truly be said that the terms of the variation in substance constitute an appeal against the order earlier made. These sorts of expenses should have been thought about earlier but obviously were not given proper attention on behalf of the defendants at the time the freezing order application was argued and the freezing order granted.
17 The primary objection therefore that needs to be considered, in my view, in the current circumstances is whether the defendants in fact do have other means available to them to meet a number of the expenses mentioned in the variation application. The further means affidavit put on by Mr Gilmour addresses that question. I am reasonably satisfied in the circumstances that if there were not some variations to the existing freezing order, some injustice is reasonably likely to be visited upon the defendants.
18 Turning then to each of the variations raised, the first in (a) is variation to permit the payment of $27,000 (in round terms) to pay for the legal services provided up to and including 2 May 2012 by the defendants' solicitors. It seems to me it is unnecessary to doubt that that expense has been incurred. It is not necessary for me in these circumstances to act as some sort of taxing officer in order to assess whether those expenses have been reasonably incurred. No issue of reasonableness is raised on the materials. I would allow a variation of the freezing order to this end.
19 As to the variation proposed in (b) to permit the payment of $50,000 for ongoing legal services in relation to the matter, I have noted that this is an estimate made by the defendants' solicitors from in effect 2 May 2012 up to and including the trial of this proceeding, including dealing with an expert witness. Taking a global approach to this, and without the benefit of any detailed estimate or bill of likely costs prepared by the solicitors for the defendants, I would be prepared at this stage to allow say $35,000 on account of ongoing legal services. I do this because the proceeding is at a point where, following the proceeding whereby leave to commence the derivative action was undertaken and the various interlocutory battles between the parties, much of the legal preparation for trial must already have been done. It only remains really for the new expert witness to be briefed and then for final getting up prior to trial. Without the benefit of anything but a global estimate by the solicitors for the defendants as to what their ongoing legal fees are likely to be, I consider a sum of $35,000 to be adequate at this point.
20 As to the variation proposed in (c) of $35,000 to be paid to an expert witness, I accept that a new expert will be required, the defendants' former expert having passed away some time ago. Once again, there is nothing but the global estimate of the solicitors for the defendants as to what the expert witness might cost. In all the circumstances, that being the only information given to me, I would allow only the sum of $15,000. Obviously I consider that it is appropriate to allow some funds to be released to this end to avoid the defendants suffering an injustice of not being able to call an expert at the hearing. I would allow variation as sought in (c) but only to the extent of $15,000.
21 As to the variation required in respect of (d) of a further payment of up to $10,000 to Mr George Lopez, the current liquidator, I accept the submissions made on behalf of the plaintiff that it is by no means clear that Mr Lopez is important in the scheme of this proceeding as it goes to trial. From the defendants' point of view, Mr Lopez is able to provide useful information to them or their expert from the administration work already done and possibly from the liquidation yet to be completed. But the liquidator is not in that sense a person undertaking some review of the statement of claim, at least not for the purpose of these proceedings. I would doubt that he would be called as a expert at the hearing. All the information tells me, in light of the defendants' desire to call another expert witness, that Mr Lopez is not important and it is not necessary for funds to be released from the freezing order, so to speak, to meet Mr Lopez' further investigations. I would therefore not allow a variation in terms of (d) of any sum.
22 As to the proposed variation in (e) of a weekly allowance of $1,000 to be paid for usual living expenses of the defendants, which must mean Mr Gilmour, I would allow that sum. There is nothing to suggest that $1,000 estimate per week is unreasonable. The plaintiff does not oppose this order.
23 As to the proposed variation in (f) of the payment of the monthly mortgage sums earlier identified of $1,584 and $4,381.39, I would also allow these variations to be made. There is, in all of the circumstances, no particular reason to think that the defendants have the means to meet these expenses if the variation of the freezing order is not made. It would be unjust and indeed unfair from the plaintiff's point of view if the properties, which are the subject of the freezing orders, should be put at risk by the non-payment of the payments due in respect of the securities over them. I would therefore allow the variation in terms of (f). The plaintiff in the end does not oppose this order.
24 In these circumstances orders to that effect should be made, along with an order that the defendants pay the plaintiff's costs of the application. In my view, the matters raised in the main are ones that could have been raised at the time the freezing order was made or that are not issues for which the plaintiff should have to bear the costs of responding. The plaintiff also reasonably acknowledged the appropriateness of some variations after the needs affidavit of Mr Gilmour was filed.