Najjar (liquidator), in the matter of Zoya Investments Pty Ltd (in liq) v Rana [2025] FCA 1293

NAFIZA NAZIA NISHA (and others named in the Schedule)

1. The third to 29th defendants' application to set aside Order 2 of the Orders made on 25 September 2025, which was supported by the first and second defendants (Discharge Application), is dismissed.
2. The defendants are to pay the plaintiffs' costs of the Discharge Application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. On 25 September 2025 in my capacity as commercial and corporations duty judge I made orders, on the ex parte application of the plaintiffs, Mohammad Najjar in his capacity as liquidator of Zoya Investments Pty Ltd (in liquidation) (Liquidator) and Zoya Investments Pty Limited (in liquidation), including an order (Order 2) pursuant to s 1323(3) of the Corporations Act 2001 (Cth) that, until 6 pm on Thursday, 2 October 2025:

(1) the first, second, fifth and eighth to 29th respondents, in effect, be "prohibited from selling, disposing, transferring, dealing with, Encumbering, Diluting or otherwise diminishing the value of any assets" in which he or it has an interest up to an unencumbered value of $12.8 million;

(2) the sixth and seventh defendants be "prohibited from selling, disposing, transferring, dealing with, Encumbering, Diluting or otherwise diminishing the value of any assets in which it has an interest, including funds in any bank account, shares in any company or any real property" up to an unencumbered value of $900,000; and

(3) the third and fourth defendants each be "prohibited from selling, disposing, transferring, dealing with, Encumbering, Diluting or otherwise diminishing the value of" their respective shareholdings in Al Noor Group Pty Limited, the eighth defendant, and Al Noor Investments Pty Limited, the ninth defendant, respectively and in Fenders Hamilton Pty Limited, the 12th defendant, and any dividends paid by those companies.

1. The first and second defendants are Rizwan Rana and Satwinder Singh, the directors of Zoya Investments from its incorporation on 4 June 2014 to 11 April 2024. The third defendant, Nafia Nazia Nisha, is Mr Singh's wife and the fourth defendant, Nadia Rana, is Mr Rana's sister. In turn, Ms Nisha and Ms Rana are directors, secretaries and shareholders of some of the fifth to 29th defendants.
2. The seventh defendant, Choudhary Sohaib Ahmed, is Mr Rana's brother-in-law. He is the sole director and shareholder of Azlan Investments Pty Limited, the sixth defendant.
3. The balance of the defendants are corporate entities of which various of the individual defendants are directors or secretaries or in which shares are held by them or by entities in which they have an interest.
4. On 1 October 2025, without admission, Order 2 was extended by consent to 6 pm on 30 October 2025.
5. The defendants have now applied for Order 2 to be discharged. I note that there are two groups of defendants, each separately represented: the first and second defendants and the third to 29th defendants. The third to 29th defendants made the application and had primary carriage of its prosecution. While the first and second defendants joined the application by adopting their submissions and making some limited additional oral submissions.
6. The application for discharge of Order 2 was listed before me for hearing in my capacity as commercial and corporations duty judge on 20 October 2025. The defendants contend that Order 2 should be discharged because on the ex parte application the plaintiffs failed to disclose material facts which would tend against the Court granting the relief sought.

1. It is convenient to first set out a summary of the legal principles.
2. The plaintiffs brought their application, and Order 2 was made, pursuant to s 1323 of the Corporations Act which relevantly provides:

(1) Where:

(a) an investigation is being carried out under the ASIC Act or this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act; or

(b) a prosecution has been begun against a person for a contravention of this Act; or

(c) a civil proceeding has been begun against a person under this Act;

and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (in this section called an aggrieved person) to whom the person referred to in paragraph (a), (b) or (c), as the case may be, (in this section called the relevant person), is liable, or may be or become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for financial products or other property, the Court may, on application by ASIC or by an aggrieved person, make one or more of the following orders:

...

(e) an order prohibiting a person holding money, financial products or other property, on behalf of the relevant person, or on behalf of an associate of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the financial products or other property, to, or to another person at the direction or request of, the person on whose behalf the money, financial products or other property, is or are held;

...

(h) an order appointing:

(i) if the relevant person is a natural person - a receiver or trustee, having such powers as the Court orders, of the property or of part of the property of that person; or

(ii) if the relevant person is a body corporate - a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person;

(3) Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

(4) On an application under subsection (1), the Court must not require the applicant or any other person, as a condition of granting an interim order under subsection (3), to give an undertaking as to damages.

1. It was not in dispute that the plaintiffs, in making their application on an ex parte basis, had a duty of candour. As Isaacs J observed in Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 682:

... it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.

See too International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [131] (Hayne, Crennan and Kiefel JJ) where the statement of Isaacs J was approved. Although their Honours were in dissent, the majority (French CJ, Gummow, Heydon and Bell JJ) did not address the point.

1. In Fortescue Limited v Element Zero Pty Limited (No 2) [2024] FCA 1157 at [28]- [33] I set out a summary of the principles to be applied when considering whether to set aside an ex parte order for material non-disclosure. At [28] I referred to Savcor Pty Ltd v Cathodic Protection International APS [2005] [2005] VSCA 213; 12 VR 639 in which Gillard AJA (with whom Ormiston and Buchanan JJA agreed) said the following at [22]:

... The order is set aside because of some irregularity and not on the merits. When this jurisdiction is enlivened, the court's function is to determine on the material that was placed before the judicial officer at first instance, whether a party has failed to discharge the obligation which rests upon any party seeking an order ex parte, namely, making a full and fair disclosure of all matters within its knowledge and which are material, to the court. The court is not concerned whether the order should have been made on the material before the court. Whether or not the court will set aside the order upon proof of the failure to discharge the obligation depends upon the particular circumstances.

1. At [35] of Savcor Gillard AJA observed that the obligation is "to disclose all material facts" and that "[w]hat is a material fact is a matter which is relevant to the court's determination. To be material, it would have to be a matter of substance in the decision making process". That statement has been taken to mean that "the matter must be material in the sense of being capable of having affected the court's decision, and not that it would have affected the decision": see Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134 at [11] (Stewart J).
2. Where the Court is satisfied that there has been a failure to disclose a material fact on an ex parte application, whether or not to set aside the order is a matter of discretion: Savcor at [27]-[28]. It is not "an inflexible rule that a non-disclosure of a material fact in an ex parte application invariably leads to the order being set aside. ... Each case will depend upon its own circumstances. Justice is the determinant.": Savcor at [29].
3. An application for leave to appeal from Fortescue (No 2) on, among other grounds, that there is no residual discretion not to set aside, in that case, a search order obtained ex parte where there has been a material non-disclosure was dismissed: see Element Zero v Fortescue Limited [2025] FCA 206 (Stewart J) at [9]-[19] and in particular at [17].

1. The defendants contend that there were two categories of material non-disclosure.
2. The principal material non-disclosure relied on by the defendants concerns the plaintiffs' submission that certain properties were transferred by Zoya Investments for no consideration or at an undervalue. The defendants submit that if one looks closely at the records of the Commonwealth Bank of Australia (CBA) and Zoya Investments' accounts, it is clear that approximately $10 million of debt was discharged at the time these transfers took place.
3. In relation to this aspect of their application, the defendants submit that the plaintiffs, in their submissions on the ex parte application, did not refer to the secured debt owed to the CBA by Zoya Investments which is relevant when regard is had to the Liquidator's evidence relied on by the plaintiffs that the debt owed to the CBA had been discharged prior to Zoya Investments having been placed into liquidation.
4. The defendants submit that the Liquidator's evidence must be viewed against the evidence given by Mr Singh in relation to the consideration paid for the transfer of Zoya Investments' property and the discharge or assumption of its secured liabilities, matters which were not brought to the Court's attention on the ex parte application.
5. The defendants also submit that the plaintiffs failed to draw to the Court's attention the fact that third parties' real property assets were sold which, along with the sale of a property at 121 Parry Street, Newcastle West, New South Wales (NSW) (Parry Street Property), resulted in the discharge of approximately $10.7 million in secured debt owed to the CBA.
6. In relation to debt owing to the CBA by Zoya Investments and a restructuring embarked upon by its directors, Messrs Singh and Rana, the defendants submit:

(1) Zoya Investments' balance sheet for the financial year ended 30 June 2023 discloses two CBA facilities totalling approximately $10 million (Aggregate CBA Debt);

(2) in their written submission on the ex parte application (at [99(b)(ii)-(iv)]), the plaintiffs refer to a transaction whereby an overdraft was temporarily increased in one of Zoya Investments' accounts for the purpose of Mr Rana's property acquisition (which was also supported by further third-party real property security). That is set out in a letter dated 27 May 2025 from K&L Gates, CBA's solicitors, to Swaab, the plaintiffs' solicitors, (K&L Gates Letter) but was not disclosed on the application;

(3) that increase in the facility and passing through of the funds for the property acquisition occurred in late 2023. That facility was then almost immediately reduced to zero, including (at least in a direct sense) from the balance of the proceeds of sale referred to in the K&L Gates Letter and from $2.5 million paid by Mr Singh ($2.4 million on 23 December 2023 and $100,000 on 22 December 2023);

(4) that series of transactions, or increase and then decrease of the overdraft, occurred after June 2023 when the amount owing to CBA already equalled the Aggregate CBA Debt. That left approximately $10 million in secured debts which, on the Liquidator's own evidence, was paid prior to the liquidation;

(5) with the benefit of time, the Liquidator's evidence does not disclose the loan statements for many of the bank accounts connected to the loans secured by the mortgages over the properties that were the subject of the restructure and the plaintiffs' claims; and

(6) the schedule annexed to their submissions concerns the proposed property restructure and was prepared in consultation with the CBA.

1. The defendants also submit that the Court's attention was not drawn to the substantial director loan account recorded in Zoya Investments' balance sheet as at 30 June 2024 totalling more than $3 million or Mr Singh's evidence given in the public examinations that he had paid $2.4 million to Zoya Investments nor was a copy of the general ledger which the Liquidator says records a loan account of only $700,000 put into evidence. The defendants note that whilst attention was drawn to the email from Mr Singh confirming those funds were paid in repayment of the funds borrowed from Zoya Investments and as loans to it, for reasons which are not explained, the email did not include the attachments.
2. The defendants submit that, far from hiding assets, the evidence demonstrates that substantial funds were paid for the benefit of Zoya Investments.
3. The defendants also raise issues about the Liquidator's evidence in relation to Zoya Investments' books and records which the Liquidator said did not record that Zoya Investments was the registered proprietor of "various real property" when in fact a number of those properties were included in the books and records.
4. The other aspect of the defendants' challenge to Order 2 concerns the question of delay, which the defendants submit goes to the exercise of any discretion. They submit that while the plaintiffs' submissions on the ex parte application at [12] seek to explain the delay between the letters dated 4 and 11 December 2024 from Swaab to respectively Messrs Rana and Singh and Levitt Robinson, solicitors for Messrs Rana and Singh, threatening an application for freezing orders and the making of the ex parte application, namely the conduct of the public examinations, the plaintiffs do not explain why that correspondence was not specifically drawn to the Court's attention.
5. The defendants submit that it is clear from that correspondence that the basis for the freezing orders then asserted is substantially replicated in this proceeding.

1. The plaintiffs accept at the outset that one of the matters raised by the defendants ought to have been disclosed to the Court on the ex parte application and a second should have been corrected. Those matters respectively are that:

(1) Messrs Rana and Singh had indicated during their respective public examinations conducted in June and July 2025 that some form of consideration, and not nominal monetary consideration, had been given to Zoya Investments for the transfer of the properties situated at 64 Shamrock Street, Blackall, Queensland (Blackall Property) and 78 Toolooa Street, South Gladstone, Queensland (Gladstone Property); and

(2) the Liquidator in his affidavit sworn on 23 September 2025 (Liquidator's First Affidavit) and read on the ex parte application at [101] incorrectly stated that Zoya Investments' financial statements for the year ended 30 June 2023 did not record its ownership of four properties in NSW, namely the properties at 68 Craigie Avenue, Kanwal, NSW (Kanwal Property), 41 and 43 Denison Street, Newcastle West, NSW (Denison Street Properties) and the Parry Street Property, nor the existence of loans secured against them.

1. The plaintiffs concede that the first matter was a material fact.
2. Notwithstanding that, the plaintiffs resist the application to discharge Order 2. In short, they submit that the Court ought to reject the defendants' contentions that the other matters which they raise constituted material non-disclosure, and that it should, in any event, exercise its discretion not to discharge Order 2.

1. It is convenient to commence by considering whether, putting to one side the matter which has been conceded, the plaintiffs failed to disclose the material facts alleged.
2. Before me on the ex parte application the plaintiffs relied on the Liquidator's First Affidavit and the exhibit thereto, an affidavit sworn on 22 September 2025 by Ramesh Srinivas Chamala, a solicitor in the employ of Swaab, their written submissions and an "aide memoire" dated 25 September 2025.
3. The starting point is the Liquidators' evidence in the Liquidator's First Affidavit that:
   1. As at the date of my appointment, CBA had registered an all present and after-acquired property security interest on the Personal Property Securities Register (PPSR). However, the debts which [Zoya Investments] owed to the CBA and which were secured by way of the claimed security interest appear to have been discharged prior (sic) [Zoya Investments] entering liquidation, and I have not received any notice or claim from the CBA notwithstanding the contact that my office has had with the CBA in respect of the accounts maintained by [Zoya Investments] with the CBA.
4. Coupled with the Liquidator's evidence at [98], which listed those creditors who had lodged proofs of debt and did not include the CBA, this evidence suggested that CBA did not claim to be a creditor of Zoya Investments.
5. However, the defendants say that this evidence must be viewed against Mr Singh's evidence given in support of the application for discharge of Order 2 where:

(1) he responds to the Liquidator's evidence that among other things he had not received the asset registers for Zoya Investments saying:

this material has been provided to the Liquidator, both in the form of the Xero management accounts, by the underlying documents which have been provided using Dropbox and also CBA documents. Also, third party documents recorded the assets have been provided. For example, at pages 187 to 189 of Exhibit SS-1 is a copy of a document provided to the Liquidators and prepared by the CBA during the process of the restructure, which lists the assets (at that time) owned not only by [Zoya Investments], but some of the broader group:

(2) he says:

During my examination, I gave various evidence that the consideration paid for the various properties was the taking over and or paying of the significant debt owed by [Zoya Investments] to the CBA. That included a property the subject of a contamination issue and which was significantly overleveraged with debt compared to equity, by reason of the change in market value. However, it appears that the Liquidator has ignored (and has not referred to in his evidence or in the Applicants' Outline of Written Submissions) what I said regarding the restructure of the CBA debts, which is supported by the documents in, among other places, Exhibit MN-1.

1. The defendants also rely on the following evidence given by Mr Singh:

1. In that regard, I refer to the following parts of the [K&L Gates Letter] and comment as follows:

(a) on page 2 of the K&L Gates Letter at page 723 of Exhibit MN-1, K&L Gates write:

[Zoya Investments] and its related entities (Rana Group) sold four properties, all of which settled at the same time on 27 December 2023. This included the sale of the Parry Street Property. The total proceedings (sic) from the sale of the four properties (including the sale of the Parry Street Property) amounted to $10,742,283.65 (Total Proceeds). CBA received proceeds in the amount of $2,954,787.08 from the sale of the Parry Street Property;

(b) initially, it was intended that CBA be discharged as mortgagee in respect of the following properties:

(i) Parry Street Property (which was owned by [Zoya Investments]);

(ii) 66 Tudor Street Hamilton NSW 2303 (which is a typographical error, as it should read "56", and which was not owned by [Zoya Investments], but rather Fenders Hamilton Pty Ltd); and

(iii) 67 Stewart Avenue Hamilton South NSW 2303 (which was not owned by [Zoya Investments], but rather Mr Rana);

(c) on 20 December 2023, the Rana Group notified CBA that they were selling an additional property, located at 43 Denison Street St Hamilton East NSW 2303, at the same time as the Original Settlements (Multiple Settlements); and

(d) on 27 December 2023, completion of the Multiple Settlements occurred.

1. The effect of the above transactions was that the CBA was paid circa $10.7 million from the sale of 4 properties, three (3) of which were not owned by [Zoya Investments], but rather Fenders Hamilton and Mr Rana. I understand that each of Fenders Hamilton and Mr Rana had guaranteed the debts of [Zoya Investments].

1. At [44]-[47] of his affidavit Mr Singh annexed copies of title searches of the Parry Street Property and the properties at 56 Tudor Street, Hamilton, NSW, 67 Stewart Avenue, Hamilton South, NSW and 43 Denison Street, Hamilton East, NSW. Mr Singh continued:
   1. The relevance of these properties is that approximately $7 million was paid to discharge [Zoya Investments'] CBA bank facilities from assets which were not owned by [Zoya Investments]. To put it differently, the debts of [Zoya Investments] were paid from the sale of assets which were owned by Fenders Hamilton and Mr Rana, and not [Zoya Investments]. Nowhere in the [plaintiffs'] evidence does it disclose that fact, nor that those facts were patent from the [K&L Gates Letter].
2. Finally, the defendants refer to various "List of Transactions" documents for Zoya Investments accounts held with the CBA included in the exhibit to the Liquidator's First Affidavit which in all cases but two show a zero balance as at 13 November 2023 and in the other two cases show a zero balance as at 31 October 2022 and 25 March 2024 respectively.
3. In oral submissions the defendants referred to the balance sheets included in the exhibit to the Liquidator's First Affidavit which showed that as at 30 June 2024 the loans from the CBA, i.e. the Aggregate CBA Debt, had been reduced to zero and to title searches for some of the properties which had been the subject of mortgages in favour of the CBA which showed that after transfer, a mortgage was either registered on or appeared to remain on title. This was said to support a submission that, on transfer of the properties, the loans to the CBA were discharged, the plaintiffs ought to have informed the Court of that matter on the ex parte application and thus the properties were not transferred for no consideration.
4. To the extent the plaintiffs allege that the sales were at an undervalue the defendants submit that there was no evidence before me on the ex parte application, even on a prima facie basis, to establish that to be so.
5. The defendants also rely on the Liquidators evidence in the Liquidators' First Affidavit that:
   1. From my review of [Zoya Investments'] books and records referred to at paragraph [95] above, I am of the view that [Zoya Investments] did not maintain adequate books and records as it is required to do by section 286 of the Act.
   2. The basis for my opinion is that [Zoya Investments'] books and records did not record that [Zoya Investments] was the registered proprietor of various real properties, as well as omitting from record the various loans which were repayable by [Zoya Investments], and which were secured against various of those properties. For instance, as at 30 June 2023, [Zoya Investments] was the registered proprietor of Kanwal, Nelson Bay Road and 41 and 43 Denison Street, Parry Street, Blackall, Gladstone, North Bannister and Yellowdine Properties, and yet [Zoya Investments'] Financial Statements for the year ended 30 June 2023 did not record any of those properties in [Zoya Investments'] assets, nor any of the loans secured against those properties in [Zoya Investments'] liabilities.
6. Contrary to that evidence the balance sheet as at 30 June 2023 lists as fixed assets the Kanwal Property, Parry Street Property and the Denison Street Properties and, as set out above, records a liability to the CBA. The Liquidator accepts that he made an error in giving this evidence and says that it was inadvertent. He says that in preparing the Liquidators' First Affidavit there was "a misunderstanding of the otherwise correct understanding that several of the other properties owned by [Zoya Investments] at the time were not recorded in the relevant financial statement". These were the Blackall Property, the Gladstone Property, the property at 6579 Albany Highway, North Bannister (North Bannister Property) and the properties at lots 22, 24, 25 and 27 Great Eastern highway, Yellowdine (Yellowdine Properties).
7. As I have already observed it was apparent from the Liquidator's First Affidavit that the CBA was not a creditor of Zoya Investments. The Liquidator set out those creditors who had lodged a proof of debt (who did not include the CBA) and gave the evidence at [99] of the Liquidator's First Affidavit in relation to the CBA (see [31] above). It follows that any debt owing to the CBA must have been extinguished.
8. In addition, at the hearing of the plaintiffs' ex parte application, I was told the following things (as recorded in the plaintiffs' submissions):
   1. Throughout the period of 31 October 2022 to 20 March 2024, [Zoya Investments] transferred its title in 14 properties which are situated throughout New South Wales, Queensland and Western Australia. Mr Najjar deposes to those transactions throughout paragraphs [70] to [93] of his Affidavit.
   2. Three of those properties appear to have been transferred for valuable consideration to bona fide third parties, however the Plaintiffs contend that the Directors caused parts of the consideration paid for two of those properties to be diverted from [Zoya Investments]. Those amounts are:

(a) $1,324,000 from the sale of the Cessnock Property; and

(b) $195,000 from the sale of the Jarrahdale Property.

1. Six of the remaining 11 properties were transferred to companies of which the Directors were directors and/or shareholder, and the remaining five properties were transferred to Azlan Investments.

2. The Plaintiffs' evidence discloses that of the six properties which were transferred to companies of which the Directors were directors and/or shareholder:

(a) On 4 March 2024, [Zoya Investments] transferred its interest in the Blackall Property to QLD RAS in consideration for the sum of $1. That is despite:

(i) on 11 July 2016, [Zoya Investments] purchased the Blackall Property for the sum of $350,000;

(ii) on 22 February 2024, [Zoya Investments] obtained a valuation in respect of the Blackall Property which expressed the opinion that the Blackall Property's value was in the range of $333,000 and $366,000; and

(iii) on 9 December 2024, QLD RAS transferred its title in the Blackall Property in consideration for $506,067.47;

(b) On 4 March 2024, [Zoya Investments] transferred its interest in the Gladstone Property to QLD RAS in consideration for the sum of $1. That is despite:

(i) on 11 July 2016, [Zoya Investments] purchased the Gladstone Property for the sum of $1,240,000; and

(ii) on 24 May 2023, [Zoya Investments] obtained a valuation in respect of the Gladstone Property which expressed the opinion that the Gladstone Property's value was $1,250,000.

(c) On 13 November 2023, [Zoya Investments] transferred its interest in the Kanwal, Nelson Bay Road and 41 and 43 Denison Street Properties to, respectively, RAS Kanwal Group (10th Respondent), Salt Ash (11th Respondent) and Fenders Hamilton (12th Respondent). The settlement of those properties appears to have occurred simultaneously, and the consideration payable on those transactions was paid cumulatively. Of the cumulative consideration payable to [Zoya Investments], there was a shortfall of $166,791.

47 Of the five properties transferred to Azlan Investments:

(a) On 10 October 2014, [Zoya Investments] purchased the Yellowdine Properties. The consideration paid for those properties is expressed on the transfer document as being "pursuant to a sale of business agreement dated 10 October 2014", and the Plaintiffs have not obtained a copy of that agreement so do not know what amount was paid;

(b) On 4 November 2016, [Zoya Investments] had purchased the North Bannister Property for the sum of $330,000;

(c) On 20 March 2024, the North Bannister and Yellowdine Properties were transferred to Azlan Investments. The consideration payable for the transfer of those properties was recorded on the transfer documents as being $500,000;

(d) [Zoya Investments] does not appear to have received payment of any amount in consideration for the transfer of the North Bannister and Yellowdine Properties;

(e) On 28 January 2025, Azlan Investments transferred its interest in the North Bannister and Yellowdine Properties for the sum of $900,000.

1. Relatedly, the settlement statement for the sale of the North Bannister and Yellowdine Properties to Azlan Investments which was included in the exhibit to the Liquidator's First Affidavit indicated a sale price of $500,000 for those properties but included the following under the heading "Notes" (underlining and emphasis in the original):
   1. As instructed by the Vendor and the Buyer, the Buyer is not paying any funds for the purchase price of $500,000 at settlement, there is an arrangement between the parties.
2. It was apparent from the plaintiffs' submissions that the Court was told that there were a number of transactions entered into in the months leading up to Zoya Investments going into liquidation by which properties owned by it were transferred to third parties or companies in which Messrs Singh and/or Rana directly or indirectly had an interest. Complaint was made about the latter. For example, and putting to one side the Blackall and Gladstone Properties, in the case of two properties, the consideration was said to be diverted from Zoya Investments, in the case of three of the properties there was a shortfall and in the case of another five of the properties (North Bannister Property and Yellowdine Properties) there was a concern that no funds were received, despite the transfer stating that the total consideration was $500,000, and a suggestion that the sale may have been at an undervalue.
3. The Court was also informed that Messrs Rana and Singh claimed to be creditors of Zoya Investments as is apparent from an exchange with counsel appearing for the plaintiffs on the ex parte application (see transcript 25.9.25 at 30.40-31.46).
4. In my view there was no material non-disclosure occasioned by reason of the fact that the plaintiffs did not draw to my attention that the CBA loans were paid out on transfer of the properties and that I would infer that the purchasers took on the secured liability. At risk of repeating myself, it was made plain on the ex parte application that CBA did not claim to be a creditor. However, the plaintiffs' allegations were more nuanced than a bare assertion of no consideration in the case of most of the impugned transactions. The Court was also informed that Messrs Rana and Singh claim to be creditors of Zoya Investments.
5. I turn to consider the effect of the plaintiffs' failure to disclose on the ex parte application that Messrs Rana and Singh had indicated during their respective public examinations that some form of consideration, and not nominal consideration of $1, had been given to Zoya Investments for the transfer of the Blackall Property and the Gladstone Property. More particularly, the plaintiffs concede that they should have informed the Court that Messrs Rana and Singh had said in their public examinations that QLD RAS Investments Pty Ltd, the fifth defendant, assumed Zoya Investments' liabilities that were secured against those properties.
6. The plaintiffs concede that this omission was material. However, before proceeding further I note, and the defendants did not dispute, that the evidence before me established that the failure to bring the matter to the Court's attention was inadvertent.
7. The plaintiffs accept that if the position as asserted by Messrs Rana and Singh was established, it could reduce the quantum of the claim against QLD RAS to reflect the value of the liability assumed, as well as meet, to a degree, their submission that Messrs Rana and Singh had taken steps to dissipate Zoya Investments' assets immediately before its liquidation. The plaintiffs accept that they placed particular emphasis on the latter at the ex parte hearing.
8. The question that arises is whether given my residual discretion in the face of, in this case, a conceded material non-disclosure I should discharge Order 2. Having considered the nature of the material non-disclosure and its effect on the whole of the evidence and the issues raised on the ex parte hearing, I have determined that I would not do so. That is for the following reasons.
9. First, the failure to make the disclosure was not deliberate but, as set out above, inadvertent. It was an oversight on the part of counsel appearing on the ex parte application who spent considerable time explaining the plaintiffs' case to me and making submissions, having regard to the extensive evidence which was before me.
10. Secondly, as the plaintiffs submit, I accept that the degree of relevance and proportion which attends this matter is too slight to justify discharge of Order 2. That is principally because what the plaintiffs did not disclose was Messrs Rana and Singh's assertions about the assumption of liability by QLD RAS. Those assertions are not corroborated by Zoya Investments' records or by evidence led by the defendants on this application, which is in most general terms. Further, a notice to produce was served by the plaintiffs on Messrs Rana and Singh and QLD RAS which called for production of the following documents concerning the mortgages held by the CBA over the Blackall Property and Gladstone Property:
    1. All Documents in your possession or control relating to the discharge or release of:
       1. the Gladstone Mortgage; and
       2. the Blackall Mortgage.
    2. All bank statements in your possession or control which show any payments made in respect of the Gladstone Mortgage and the Blackall Mortgage.
    3. All correspondence and written communication between you and Commonwealth Bank of Australia in respect of:
       1. any payment made regarding the Gladstone Mortgage and the Blackall Mortgage; and
       2. the discharge or release of the Gladstone Mortgage and the Blackall Mortgage.

When called on at the hearing of the discharge application, no documents were produced.

1. The plaintiffs also contend that Messrs Rana and Singh's assertions would be weighed against the fact that they gave inconsistent and at times falsifiable evidence during the public examinations about this matter, which they say would also have been disclosed if the matter was addressed on the ex parte application. The plaintiffs set out examples of Mr Rana's evidence given during his public examination which they say was of that nature and the countervailing evidence that they would have also disclosed. I accept that would have occurred.
2. Finally, I accept the plaintiffs' submission that, even if Messrs Rana and Singh's assertions were ultimately established, they would only serve to reduce the quantum of the plaintiffs' claim by an amount equal to the liabilities secured against the Blackall Property and Gladstone Property. In that regard the plaintiffs note that, in light of the capital gain derived from the subsequent sale of the Blackall Property (approximately $156,000) and the difference between the valuation obtained for the Gladstone Property ($1.25 million) and Mr Rana's assertion that the extent of the debt secured against it was about $800,000 to $900,000, the claims asserted in respect of these transactions are likely to still exceed $500,000.
3. The final matter to consider is delay. In oral submissions senior counsel for the defendants described this as a matter going to the exercise of the discretion to discharge.
4. On the ex parte application the plaintiffs took the Court to the letters dated 4 and 11 December 2024 from Swaab to, respectively, Messrs Rana and Singh and their solicitors, Levitt Robinson. The issue raised by the defendants is that despite the passing of time since those letters were sent there is no evidence of dissipation of assets. But in the face of the letters and the whole of the evidence, I made Order 2. I am not persuaded that I would discharge Order 2 now on a discretionary or any other basis because of the complexion put on that correspondence by the defendants.

1. It follows from the above that the applications to discharge Order 2 should be dismissed. Costs should follow that result. While the application was primarily prosecuted by the third to 29th defendants, Messrs Rana and Singh both supported and joined into it. Accordingly, all of the defendants should pay the plaintiffs' costs of the application to discharge Order 2.
2. I will make orders accordingly.
3. Finally, I note that all of the defendants raised issues about the quantum of Order 2, that is the value of assets on which it operates, and the third to 29th defendants raised an issue about the Court's jurisdiction to make Order 2. Those issues were not developed in oral argument before me and it was agreed that, if the relevant defendants wished to do so, they could be raised after determination of the discharge application.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

ROSSMORE PROPERTY INVESTMENTS PTY LTD ACN 660 978 441

WESTON SUPERMARKET HOLDINGS PTY LTD ACN 605 195 417

SAR PROPERTY INVESTMENT GROUP PTY LTD ACN 674 019 517