//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 827
Supreme Court of NSW
2026-07-14
Bennett J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Modern Caves Pty Ltd v Shafren [2026] NSWSC 827
Hearing dates: 8, 9 July 2026
Date of orders: 9 July 2026
Decision date: 14 July 2026
Jurisdiction: Equity - Duty List
Before: Bennett J
Decision: Search Order granted, see [79]
Catchwords: CIVIL PROCEDURE — Interim preservation — Search orders — Grounds on which ordered —Plaintiff and builder entered into cost plus construction contract — Defendant employee of builder and apparently provided services to plaintiff through builder — Where evidence suggests defendant has charged for “excessive and implausible” hours — Where evidence of potential concealment of conduct by defendant when questioned about hours charged — Where publicly available information and information obtained by plaintiff concerning other construction projects also adds to plaintiff’s suspicion as to defendant’s conduct — Search order granted
Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2, Australian Consumer Law, s 18
Uniform Civil Procedure Rules 2005 (NSW), rr 25.20, 25.23
Cases Cited: Barnes v Addy (1874) LR 9 Ch App 244
GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd [2022] NSWSC 857
Jemella Australia Pty Ltd v Internet Mantonarketing Pty Ltd [2008] FCA 13
Kupang Resources Pty Ltd v Commonwealth of Australia (No 4) [2025] NSWSC 1477
Li v Perpetual Holdings Pty Ltd [2025] NSWSC 175
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Texts Cited: Practice Note SC Gen 13
Category: Principal judgment
Parties: Modern Caves Pty Ltd (Plaintiff)
James Alexander Scott Shafren (Defendant)
Representation: Counsel:
B Le Plastrier / E Miers (Plaintiff)
Solicitors:
Keystone lawyers (Plaintiff)
File Number(s): 2026/00282217
Publication restriction: Nil
This judgment relates to an ex parte application for a S****earch O****rder made by Modern Caves Pty Ltd (the plaintiff) that I heard as Duty Judge on Wednesday, 8 July 2026. I heard further brief submissions on Thursday, 9 July 2026. I made the Search Order sought on Thursday, 9 July 2026. I indicated at the time of making the Search Order that I would provide my reasons for decision at a later time, given the context of a busy Duty List.
At the hearing of the application, Mr B Le Plastrier of counsel and Ms E Miers of counsel appeared for the plaintiff. The plaintiff provided detailed written submissions (PWS), with pinpoint references to the relevance evidence, which were of considerable assistance to the Court. Additional to the evidence cited in PWS, I was taken to additional parts of the evidence throughout the course of the hearing in support of the application.
I have sought to provide these reasons as expeditiously as possible, noting I have not had the benefit of any transcript. These are my reasons for making the Search Order.
The application took place in the broad context of a C****ontract that was executed on 10 August 2023 between parties who are described in the contract as the “Owner” and the “Builder”. The Contract was a Cost Plus (Residential) construction contract.
I will say more about the Contract shortly, but for present purposes I note that the plaintiff in these proceedings is the Owner referred to in the Contract. The defendant is an employee and, from the inferences I expand on at [11]-[14], the “Builder**’**s director” who was employed by the Builder to “carry out work, including administrative work, under the contract”.
Basebuild Pty Limited (Basebuild) is the Builder referred to in the Contract. Basebuild is the company through which the defendant provided his services to the plaintiff.
In these proceedings, and as the primary basis of the Search Order sought, the plaintiff submits the defendant has charged for excessive and implausible hours in his work as Builder’s director and to have engaged in possible fraud.
In making its application for the Search Order, the plaintiff relied on two affidavits, and associated exhibits:
The affidavit of Bryce Richards affirmed 7 July 2026 (Richards affidavit or RA), together with three exhibits: BR-1, BR-2, and BR-3. The Richards affidavit ran to 43 pages with 89 paragraphs. Pages 30 to 43 of the affidavit comprised “Annexure A” which ran from pages 30 to 43. In relation to those Exhibits:
(a) BR-1 comprised 8 lever arch folders of documents; (b) BR-2 comprised 2 lever arch folders of documents; and (c) BR-3 comprised a 14-page bundle of documents.
(a) JP-1 comprised a 40 page bundle of documents.
Mr Richards is:
a solicitor employed by Keystone Lawyers;
is the solicitor on the record for the plaintiff; and
the solicitor who has daily carriage of the matter.
Mr Du Plessis is a Certified Encase and Fraud examiner.
Elaborating on the Contract, amongst other things, it provided that the costs for an “individual Builder” or “Builder**’s director**” for carrying out work, including administrative work, under the contract was at the rate of $300.00 per hour (BR-1 8).
Clause 17 of the Contract provided the following (bold in original):
“(a) The Owner must pay to the Builder’s account nominated in this Contract the Cost of Works as set out in Schedule 1 Part A when completed, except for minor defects and or omissions, and …
…
(c) A claim for payment by the Builder is to identify:
(i) the work for which payment is required;
(ii) the Cost of Works performed in this period;
(iii) a brief description of any variations relative to the initial scope of work under the contract;
(iv) the fee payable under Schedule 1 Part B; and
(v) GST.”
Annexure C to the Contract set out the “Employee labour rates per Schedule 2 Part A” and indicated that the Director was to be paid at $300 per hour. This is consistent with the rate for the Builder’s director already set out at Schedule 1 Part A (and referred to at [11] above).
In the various timesheets issued from the time of the commencement of the Contract the defendant was described as “Director / Registered Building Practitioner” (for example, see BR-1 3101). I infer the defendant was the Builder’s director of the Contract.
Schedule 1 Part B provided that the Owner would pay the Builder the “Cost of Works” per Schedule 1 Part A, together with an additional fee equal to 15% of the Cost of Works (Builder**’**s margin) and various items referred to elsewhere (BR-1 8).
The Builder’s margin was later reduced to 10% by agreement (RA [10]).
The plaintiff included in its evidence current and historical ASIC searches in relation to numerous companies associated with the defendant and Basebuild. Those companies include:
Basebuild;
Shafren Group Pty Ltd (Shafren Group);
Smart Base Solutions Pty Ltd;
Shafcon Pty Ltd;
Shafren Assets Pty Ltd;
Shafren Family Holdings Pty Ltd;
Shafren Super Pty Ltd; and
Sharfen Investments Pty Ltd.
Searches as to the contractor’s licence for Basebuild and the Shafren Group were also undertaken (RA [14]-[25]).
The various searches disclosed that the defendant was (RA [26]):
A registered building practitioner;
The director, corporate secretary and nominated supervisor of Shafren Group Pty Ltd;
A director of Smart Base Solutions Pty Ltd, together with two of his brothers;
The sole director and company secretary of Shafcon Pty Ltd;
The sole director and company secretary of Shafren Assets Pty Ltd;
The sole director and secretary of Shafren Family Holdings Pty Ltd, which:
(a) is the sole shareholder of the Shafren Group Pty Ltd; (b) is the sole shareholder of Shafren Assets Pty Ltd; (c) is a shareholder of Smart Base Solutions Pty Ltd; (d) is the sole shareholder of Shafcon Pty Ltd; and (e) has Shafren Investments Pty Ltd listed as its sole shareholder. Shafren Investments Pty Ltd has a “Rebecca Kathryn Shafren” listed as the sole director, company secretary and shareholder; and
The sole director and sole shareholder of Shafren Super Pty Ltd.
In relation to the progress Tax Invoices and “Schedule of Hours Worked” or “Weekly Timesheets by Employee” provided by Basebuild to the plaintiff for payment, I note those documents were provided either under the letterhead of Basebuild (for example, see BR-1 3098-3106) or a combination of both Basebuild and the Shafren Group Pty Ltd (see BR-2 465-474, 800-808).
Before the Court was extensive documentary evidence provided in support of its application (10 lever arch folders).
The plaintiff submits the defendant has systematically charged the plaintiff for excessive and implausible working hours on the project (RA [27]-[36]). The progress claims show the defendant frequently billing between 17 and 19.5 hours per day, culminating in monthly claims for up to 494 hours. The hours and other relevant information to this application were summarised in Annexure A to the Richards Affidavit, noting however that not all alleged excess were included in that summary (RA [27]-[28]).
I do not propose to set out in great detail the contents of Annexure A. I note, however, that the examples contained in Annexure A run from 1 April 2025 to 5 March 2026. For each row of the table comprising Annexure A, there is a date on which the defendant claimed to have worked, the number of project hours claimed, and the nature of the activities that were said to have been undertaken.
As well as the activities that appear to have been claimed and otherwise undertaken in performance of his responsibilities as Builder’s director, on a particular date, for each of the days for the project entries, the plaintiff has also included information that was publicly available to it in relation other activities the defendant is said to have undertaken on that same day. For example, the logs from fitness tracking platform Strava, which records the date and length of physical exercises, show the defendant consistently doing roughly one to two hours of exercise each day (RA [38]-[40]). There is evidence of further activities from sports league websites and Facebook posts (RA [41]-[45]).
For example, in the three days of 3, 4, and 5 November 2025, the defendant claimed to have worked 17, 18 and 18 hours each day respectively.
On each of those days, he undertook a morning workout for 1 hr, 1 hour and 3 minutes, and 1 hour and 56 minutes, respectively. There was some other “night activity” said to have taken 1 hour and 2 minutes on 3 November 2025 according to his Strava posts (RA 31).
Another example is for 10, 11, 12, 13, and 14 November 2025. On those 5 days the defendant claimed to have worked 17, 18.5, 17, 15, and 17 hours each day respectively.
On each of those days, he undertook a morning workout for 1 hr and 1 minute, 1 hour and 1 minute, and 1 hour and 3 minutes, 1 hour and 4 minutes, and 1 hour and 44 minutes, respectively. There was some other “night activity” said to have taken 1 hour and 5 minutes on 10 November 2025 according to his Strava posts (RA 31).It was submitted that the times claimed in relation to the work undertaken by the defendant was excessive and implausible (PWS [3]).
The defendant also recorded completing two hours of work on his wedding day, the ceremony being held in Toowoomba (BR-1 3377). The plaintiff submitted that such invoicing is particularly demonstrative of the implausible character of the alleged conduct (PWS [3]). I raise the reference to this submission and supporting evidence at this point, however do not propose to return to it. I do not consider I can necessarily take judicial notice that it is implausible for a groom to work for two hours on his wedding day.
25.20 Requirements for grant of search order
(cf Federal Court Rules Order 25B, rule 3)
The court may make a search order if the court is satisfied that—
(a) an applicant seeking the order has a strong prima facie case on an accrued cause of action, and
(b) the potential or actual loss or damage to the applicant will be serious if the search order is not made, and
(c) there is sufficient evidence in relation to a respondent that—
(i) the respondent possesses important evidentiary material, and
(ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.
“[39] The relevant matters to be considered when exercising the discretion to grant search orders was described by Brereton J (as his Honour then was) in Brags Electric Pty Ltd t/as Inscope Building Technologies v Gregory [2010] NSWSC 1205:
‘[18] Generally speaking, an applicant for an Anton Pillar order must show a strong prima facie case, serious potential or actual damage to the plaintiff, clear evidence that the defendant has in its possession incriminating documents or things, and a real possibility that they may be destroyed before any inter-partes application can be disposed of, is that the risk of damage occasioned to the defendant and its affairs by the order is not excessive or disproportionate to the legitimate object of the order. Although sometimes strong adverbs are used — such as “extremely” strong prima facie case or “very serious” potential damage [see Austress Freyssinet at [15]] — I am not convinced that those extreme adverbs form part of the test. In every case, the court will be involved in balancing the strength of the case, the seriousness of the damage, the gravity of the risk of destruction, and the potential injury to the defendant. These are factors to be taken into account in the exercise of a discretion, rather than essential proofs.’”
It is Basebuild that is the party to the Contract. However, under the Contract the defendant’s payment entitlement, through payment of the Owner to the Builder (Basebuild), is through his role as Builder’s director and registered building practitioner.
The plaintiff submits it has a claim against Basebuild. Whilst Basebuild is not a party to this application, I will set out the claim the plaintiff makes against Basebuild also so as to provide context for the claim against the defendant, which provides the basis of this application.
In relation to Basebuild, the plaintiff submits:
A claim for breach of the Contract. The Contact entitled Basebuild to recover only the actual costs of the Works, including the costs of the defendant’s time for “performing work” under the Contract at the agreed rate of $300 per hour (plus the agreed Builder’s margin). The submission of progress claims seeking payment for work not actually performed constituted a breach of the Contract;
A claim for misleading and deceptive conduct contrary to s 18 of the Competition and Consumer Act 2010 (Cth), Schedule 2, Australian Consumer Law (the ACL). By issuing progressive claims, timesheets and supporting statutory declarations, Basebuild represented that the claimed hours had been worked on the plaintiff’s project when they had not; and
A claim of deceit. Basebuild knowingly made false representation as to the hours worked on the project with the intention that the plaintiff rely upon those representations in making payment. The stolen funds are trust property in the hands of Basebuild. Accordingly, proprietary remedies are available against Basebuild.
Section 18 of the ACL relevantly provides:
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Relevantly, the plaintiff submits the Court ought to be satisfied it has a strong prima facie case against the defendant in relation to (PWS [6](b)):
A claim that he is involved in Basebuild’s alleged contravention of s 18 of the ACL. The defendant personally prepared, approved and verified the timesheets and statutory declarations, knew the hours claimed had not in fact been worked, and was therefore knowingly concerned in the making of the misleading representations; and
A claim under both limbs of Barnes v Addy (per Barnes v Addy (1874) LR 9 Ch App 244).
In Li v Perpetual Holdings Pty Ltd [2025] NSWSC 175, Peden J summarised the two limbs of Barnes v Addy in the following way (at [102]-[103] and [105]-[107]):
“Knowing receipt
[102] The relevant test for liability in knowing receipt under the first limb of Barnes v Addy (1874) LR 9 Ch App 244 was set out by Gleeson JA (Beazley P; Barrett JA agreeing) in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 (Simmons) at [88]:
(1) the existence of a trust, or a fiduciary duty, with respect to property (trust property);
(2) the misapplication of trust property by the trustee or fiduciary;
(3) the receipt of trust property by the third party;
(4) knowledge by the third party, at the time he or she received the relevant property, that it was trust property and that it was being misapplied or, in the case of breach by a fiduciary, that the trust property was transferred pursuant to a breach of fiduciary duty.
[103] For Jiawen to succeed in knowing receipt, he had to establish that the corporate defendants had, at the very least, knowledge of ‘circumstances which to an honest and reasonable person would have indicated’ that Jiawen’s money was trust property when received by the corporate defendants and was transferred to them in breach of trust: Blue Mirror Pty Ltd v Tan & Tan Australia Pty Ltd (in liq) [2024] NSWCA 253 at [30] (Leeming JA; Ward P and Mitchelmore JA agreeing); Simmons at [88]-[92].
…
Knowing assistance
[105] To succeed, Jiawen must have established that there was a ‘dishonest and fraudulent breach of fiduciary duty’ or trust on the part of Perpetual, the corporate defendants assisted in that breach, and the corporate defendants had ‘sufficient knowledge of the breach’: Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151 at [243] (Gleeson, Leeming and White JJA); Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62 at [152] (Leeming JA, Bell P and Brereton JA agreeing); Simmons at [111]-[115].
[106] ‘Sufficient knowledge’ is, at the very least, ‘knowledge of circumstances which would indicate the facts to an honest and reasonable man’: Simmons at [113].
[107] A ‘dishonest and fraudulent’ breach of fiduciary duty or trust is one that amounts to ‘a transgression of ordinary standards of honest behaviour’: Hasler v Singtel Optus Ltd (2014) 87 NSWLR 608 at [122]-[124] (Leeming JA; Gleeson JA agreeing).”
I am satisfied that the plaintiff has a strong prima facie case on an accrued cause of action as against the defendant, based on the evidence before the Court in this application, and that those allegations relate to serious dishonesty on the part of the defendant. I have accepted the submissions of the plaintiff set out at PWS [6]-[16], and I have reviewed the evidence relied on in support of those submissions and am of the view that the submissions have a sound evidentiary basis. Somes of this evidence is set out above under “Relevant facts”, however in the interests of brevity, not all evidence I have had regard to is explicitly set out in these reasons.
In being so satisfied, I accept that central to the causes of action potentially against Basebuild and the defendant is the contention of the charged hours on the part of the defendant are excessive and implausible.
As part of this, I accept the basal contention that the hours claimed by the defendant under the Contract are excessive and implausible. I have reached the requisite satisfaction for this based upon the evidence of the hours worked themselves, that is, frequently billing between 17 and 19.5 hours of work per day, which is in my view, highly implausible. I am comforted in this satisfaction having regard to the other evidence of activities the defendant did near contemporaneously to these long working hours, such as consistent physical exercise.
I have also had regard to the evidence supporting a finding that the defendant was working at other projects, at the same time as working on the plaintiff’s project (PWS [9]-[10], RA [59]-[60], [51]-[58]). I accept that this evidence not only goes to the improbability of the hours claimed against the project of the plaintiff, and thus the prima facie case, but that it also goes to serious dishonesty of the defendant, in that concurrent claims are made for hours worked on different projects, which cannot be reconciled (PWS [11]).
I accept that serious issues have been raised by the evidence and the claims made, and in particular that the evidence raises a strong possibility that deceit or fraud has been perpetrated by Basebuild, or at the very least, breaches of contract or contraventions of the ACL. I consider the evidence is clear that the evidence underpinning the claim against Basebuild is the same or similar evidence that underpins the claim again the defendant, either under the ACL or in relation to the two limbs of Barnes v Addy.
I accept the submissions made by the plaintiff that unless a Search Order is made, that the potential or actual loss or destruction of the relevant evidentiary material will cause serious forensic prejudice (PWS [17]-[23]). In relation to the terms of r 25.20(b), I am satisfied that the potential or actual loss or damage to the plaintiff will be serious if the Search Order is not made.
The plaintiff’s causes of action all centre on evidence of what the defendant was doing during the hours when he claims to have been working on the plaintiff’s project. The evidence sought to be accessed by the Search Order will be used to map and establish the defendant’s movements and locations against what the plaintiff alleges to be excessive and implausible billing claims (PWS [20]). That evidence will include:
Physical documents such as original timesheets, statutory declarations, and handwritten notes detailing the work on projects located at Basebuild and the defendant’s registered business and residential address at X (RA [77]-[78]);
Digital evidence stored on mobile phones, laptops, tablets, smart watches, vehicle GPS tracking systems, and in cloud data storage systems (including “Procore” software environment).
I accept the plaintiff’s submission that the electronic devices and cloud accounts contain the metadata, GPS logs, and internal communications provide necessary if the plaintiff is to track the defendant’s movements during the contested billing period (PWS [21]). That is, without the preservation of the documents and devices, the plaintiff will suffer irreparable prejudice. I accept the submission that the defendant’s apparent scheme is sophisticated, involving apparently duplicated billing across concurrent corporate entities. If the defendant was permitted the securely wipe his electronic devices, delete cloud data, or destroy the handwritten notes and timesheets, the plaintiff will fundamentally be deprived of the ability to untangle the full extent of the conduct, trace the misappropriated funds, or accurately quantify its damages (PWS [22]).
The plaintiff recognised the seriousness of the allegations that are claimed, and submitted that this reinforced the need to preserve the contemporaneous documentary and electronic evidence. In support of its application, the plaintiff relied on what was said by the Court of Appeal in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 (Gleeson JA) at [74]-[75]:
“[74] Fraud must be specifically pleaded: UCPR 14.14(3). Likewise an allegation of dishonesty must be pleaded clearly and with particularity. The pleader must not use language which is equivocal, rendering it doubtful whether the pleader is in fact relying on an allegation of dishonesty: Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] 1 Ch 250 at 268 (Buckley LJ). Similar principles apply to claims alleging accessory liability under Barnes v Addy: Farah at [170]; Yeshiva Properties No 1 Pty Ltd v Joan Marshall [2005] NSWCA 23 at [14] (Bryson JA; Mason P and Beazley JA agreeing)
[75] One further matter must be mentioned. UCPR 15.3 requires that a pleading must give particulars of any fraud on which the party relies. Authority requires that particulars of fraud must be exactly given: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538.”
The plaintiff contends it is required to demonstrate both the nature of the documents or items the proposed defendant has in their possession and the reason why those materials are important for advancing the plaintiff’s case (PWS [24]). I accept as much.
In seeking to satisfy the Court on this issue, the plaintiff has put before the Court evidence which it says establishes that the defendant holds critical physical and digital material at the registered business and residential address of the defendant. In its submissions, orally and in writing (PWS [25]), the Court was taken to evidence in relation to various devices and accounts and the like, where the plaintiff explained the relevance of that evidence to the plaintiff’s potential cause of action.
Based on the evidence before the Court, and also having regard to the context of the prima facie case and what it is that the plaintiff will be seeking to prove, I am satisfied there is sufficient evidence that the defendant possesses important evidentiary material in relation to the causes of action against Basebuild and the defendant. As I have already stated, and as was submitted, central to the causes of action available to the plaintiff is the contention that the charged hours were excessive and implausible (PWS [7]). I accept that it is the defendant’s hours that were charged which are in contention, and therefore it is the defendant who will be in possession of the relevant and important evidentiary material.
The plaintiff contended there exists a real possibility that relevant evidentiary material will be concealed, secreted or destroyed if notice of this proceeding is given before a Search Order is executed, having regard to the strong prima facie evidence of deliberate dishonesty the defendant had committed. In relation to the legal test to be applied, I would add that the “relevant evidentiary evidence” must be “important”, and that any prima facie dishonesty must be “serious”.
In making this submission, the plaintiff relies on evidence before the Court going to the issues already discussed above, as well as evidence the plaintiff says goes to attempts by the defendant to conceal, evade, and otherwise cover up his conduct, which was described as deliberately dishonest (PWS [27], RA [27]-[69]).
The evidence referred to included attempts on the part of the plaintiff to question various claims in relation to hours worked, which were met with what the plaintiff describes as attempts to cover up inconsistences and to be evasive. The plaintiff relied on evidence that the defendant and perhaps Basebuild unilaterally removed the plaintiff’s access to the construction documentation management system (RA [61]-[69]). I accept the plaintiff’s characterisation of the conduct of the defendant as dishonest in this way.
As an example, the plaintiff relied on evidence that the defendant changed the software from “Procore” (being a site construction documentation management system) to a new system which the plaintiff could not access. This was said to be a unilateral decision, where the plaintiff was told that that it will no longer have “direct access” to the data. The plaintiff was also told that the “Historical Procore data has been archived or migrated” (RA [61]-[64]).
In seeking to rely on evidence of the past conduct of the defendant that has been characterised as being seriously dishonest, the plaintiff submits there is a real possibility that the defendant might destroy important evidentiary material. In relation to the inference the plaintiff asks the Court to draw in respect of past dishonesty, the plaintiff makes the following submissions as to the evidence and the law (PWS [18]-[19]).
The plaintiff says (at PWS [28]) that the objective contemporaneous evidence, together with the broader evidence of deliberate dishonesty (also see evidence cited per Relevant facts and prima facie case, above) provides the factual basis for inferring that in the future the defendant may conceal, alter or destroy incriminating evidence if given advance notice of these proceedings. The plaintiff says this proposition is consistent with both the rationale underlying search orders (also known as Anton Piller orders, see Practice Note SC Gen 13) and the reasoning adopted by the NSW Court of Appeal in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 (Patterson). The plaintiff submitted that the principle referred to in has subsequently been applied in the context of orders by Spender J in [2008] FCA 13 (). In *,* Spender J held that the respondents’ deliberate dishonesty and concealment of their commercial activities constituted the evidentiary bases for inferring that they would also destroy incriminating evidence. No additional direct evidence of an intention to destroy documents was required.
“It is far from clear that Giles J, in applying the test originally propounded by Young J, regarded himself as applying a test which was relevantly different from that established in the earlier authorities. 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.”
As is proper in ex parte applications, the plaintiff raised for the Court’s consideration possible defences that may have been raised on the part of the defendant (PWS [40]).
The first potential defence raised was that, in circumstances where the defendant’s timesheets indicated he was working, but there was evidence he was not observed onsite, that he may have been working at home.
To this the plaintiff submitted that this contention does not explain duplicated billing across multiple projects, nor other documentary inconsistencies raised by the plaintiff. I accept this submission.
The second potential defence raised by the plaintiff was that the recreational activity records obtained by the plaintiff do not conclusively establish that the defendant was not performing work during the relevant work periods. It was said that those records only form one component of a broader body of contemporaneous evidence relied on by the plaintiff.
I accept this concession. As will be recalled when I was considering the evidence before the Court in relation to the plaintiff’s prima facie case, I indicated that I had reached the requisite satisfaction without having regard to the non-work activities (see [45]).
The third possible defence raised by the plaintiff was that any duplicated billing across the plaintiff’s project (RA [51]-[58]), and other projects, may have resulted from administrative error or poor record-keeping, rather than deliberate dishonesty. To this the plaintiff suggested that whether an explanation exists is a matter for trial and does not diminish the existence of a strong prima facie case or the need to preserve the contemporaneous records from which that issue will ultimately be determined.
I accept these submissions. I would add that, to the extent there may have been administrative errors or poor record-keeping, it will also be in the interest of the defendant that the evidence sought is protected and available for use by both parties in any proceedings.
Even if the Court is satisfied in relation to each of the elements of r 25.20, it remains a matter of discretion as to whether the Court will make a Search Order.
I accept the submission of the plaintiff that the Court ought to exercise its discretion in the circumstances of this application. In this, I accept there is a real possibility that ordinary discovery orders would be thwarted or frustrated by actions of the defendant.
The plaintiff has recognised that a Search Order is an extraordinary intervention and says that the proposed Search Order has been drafted with a focus on proportionality and includes robust safeguards for the protection of the defendant. For example, the proposed search party will be as small as practicable and excludes the plaintiff.
Further, the plaintiff submits that the proposed Search Order is proportionate to the relief sought as the plaintiff has exercised restraint in identifying limited categories of documents to be seized. It is said that the items are confined to the specific accounting records, emails, devices, and metadata necessary to untangle aspects of the conduct, including any overcharging scheme, and ensuring the orders are not used improperly to bypass any discovery process. I accept the submission that the “Listed Things” in Schedule A to Annexure A of the proposed Search Order discloses a focus limited to the issues associated with the plaintiff’s accrued cause of action.
I further note that the form of proposed Search Order more generally appears consistent with the terms of Practice Note SC Gen 13 and thus contains important safeguards. An independent solicitor is appointed to supervise the search and provide a report to the Court, which is mandatory under r 25.23. There is also the appointment of an independent computer expert.
Importantly, the plaintiff has also proffered the usual undertaking as to damages and undertakes to submit to any order the Court considers just for the payment of compensation to any person affected by the operation of the Search Order. Each of the plaintiff, its solicitor, the independent solicitor, and the independent computer expert have also proffered undertakings, as required by Practice Note SC Gen 13.
I have already been satisfied in relation to the terms of r 23.20. Having considered further issues relevant to the exercise of discretion, I have decided to exercise the discretion of the Court and make the proposed Search Order.
For the reasons set out above, on 9 July 2026 I made the following orders:
Pursuant to r 25.20 of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff be granted leave to file in Court:
(a) the Summons; (b) the affidavit of Bryce Richards affirmed on 7 July 2026; and (c) the affidavit of Jean-Pierre Du Plessis sworn on 7 July 2026.
Annexure A to Orders of Bennett J on 9 July 2026.docx (161 KB, pdf)
**********
Modern Caves Pty Ltd
Shafren
(1989) 18 NSWLR 319
(2023) 113 NSWLR 151
(2020) 104 NSWLR 62
(2014) 87 NSWLR 608
(1986) 6 NSWLR 534
The plaintiff also relied on evidence from work that the defendant had carried out on other projects, where the defendant was billing for time on that other project, and where overlapping times have been established (PWS [9]-[10], RA [59]-[60], [51]-[58]).
Before the Court was also evidence that when the defendant was questioned about his hours, he sought to conceal his conduct by deliberately restricting the plaintiff’s access to the construction documentation management system (PWS [13], RA [62](b)).
The plaintiff stated that the alleged fraudulent overcharging was facilitated and maintained through the creation of false documents. Those false documents were in evidence and included verified timesheets and executed statutory declarations affirming that the hours were true and accurate (PWS [14], RA [30]-[35]).
It was submitted that the flagrant nature of the alleged fraud ought to satisfy the Court that the destruction, removal, or deletion of evidentiary material is a real possibility if the defendant were to give standard notice of a discovery obligation. In making the Search Order, it was submitted that the Court will ensure that essential evidence is preserved and remains available for the ultimate trial (PWS [5]).
As acknowledged by the plaintiff, the circumstances of Patterson related to a Mareva injunction, rather than a search order. Notwithstanding this, I accept that the principles cited in Patterson (and Jemella) may provide guidance when a Court comes to consider whether to make a search order, and in particular the considerations that arise under r 25.20(c)(ii).
Relevantly, in Patterson, Gleeson CJ (Meagher JA agreeing) stated (at 325-326) (bolding added):