NGI Savannah Living Communities Pty Ltd v Dunne [2025] QSC 92

COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - DISOBEDIENCE OF ORDERS OF COURT - where the plaintiff alleges the first defendant breached the terms of a freezing order in five particularised circumstances - where there was no evidence the first defendant was personally served with the order, but the order was made by consent and the first defendant filed an affidavit in accordance with one of the requirements of the order - whether the first defendant had knowledge of the terms of the order - whether there was an irregularity in the form of the freezing order, because it did not have a statement written on it or attached to it in terms of r 665(3) of the Uniform Civil Procedure Rules 1999 (Qld), such that proceedings for contempt cannot lie - whether the assets of the seventh defendant company are the first defendant's assets within the meaning of the freezing order - whether the charges of contempt are proved beyond reasonable doubt

Acts Interpretation Act 1954 (Qld) s 32C

Uniform Civil Procedure Rules 1999 (Qld) r 269, r 260A, r 260B, r 371(1), r 371(2), r 661(1), r 665(3), r 898(2)(a), r 904, r 930, r 932

Berghofer v Wicks [2024] QSC 4, applied

Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24; [2022] 2 WLR 703, considered

Burton v Spencer [2015] QSC 187, cited

Camm v ASI Development Co Pty Ltd [2007] QCA 317, applied

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, cited

Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233, applied

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261, cited

Convoy Collateral Ltd v Broad Idea International Ltd [2023] AC 389, cited

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, cited

FM Capital Partners Ltd v Marino [2018] EWHC 2889; [2019] 1 WLR 1760, cited

Group Seven Ltd v Allied Investment Corporation Ltd [2013] EWHC 1509; [2014] 1 WLR 735, considered

Jones v Australian Competition and Consumer Commission [2010] FCAFC 136; (2010) 189 FCR 390, cited

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, cited

Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, cited

Lakatamia Shipping Co Ltd v Su [2015] 1 WLR 219, considered

Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394, cited

Madeira v Roggette Pty Ltd [1990] 2 Qd R 357, considered

R v Webb-Italia [2025] QCA 51, cited

Re Intex Consultants Pty Ltd [1986] 2 Qd R 99, cited

Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd (2022) 12 QR 67; [2022] QSC 194, cited

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, cited

Salomon v A Salomon & Co Ltd [1897] AC 22, cited

The Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia Queensland Branch [1988] 2 Qd R 385, cited

Viterra BV v Shandong Ruyi Technology Group Company Ltd (2022) 291 FCR 640, cited

Witham v Holloway (1995) 183 CLR 525, cited

D de Jersey KC and P Williams for the plaintiff (applicant)

D Savage KC and M Downes for the first defendant (respondent)

• [1] On 16 October 2018, the plaintiff, NGI Savannah, commenced proceedings against eight defendants, including Mr Dunne and MP01 Pty Ltd, seeking, among other things, compensation for misleading and deceptive conduct engaged in by Mr Dunne in connection with the acquisition and management of a retirement village. The following day, 17 October 2018, the plaintiff obtained an order, on an ex parte basis, freezing the assets of all defendants to varying extents and ancillary orders requiring the defendants to identify their assets.[1] On the return date of that order, 26 October 2018, there was a further hearing and the freezing and ancillary orders were made again, this time on notice and by consent. Those orders were subsequently extended, and varied in some respects, on five occasions, before finally lapsing on 31 August 2024.
• [2] The matter proceeded to trial, as against Mr Dunne and MP01 Pty Ltd only, in March 2023. Judgment was delivered for the plaintiff in December 2023, as against Mr Dunne for almost $3 million (including interest) and, as against MP01 Pty Ltd, for $237,500. The judgments remain unpaid.
• [3] By the present application, filed on 6 November 2024, the plaintiff seeks to have Mr Dunne punished for contempt, on the basis of five particularised occasions on which he is alleged to have thwarted the freezing order by dealing with his property (as defined in the order) in a manner inconsistent with the terms of the order. Although Mr Dunne is now bankrupt, the plaintiff has obtained leave to proceed with this contempt application (exhibit 1).
• [4] For the following reasons, I find that Mr Dunne has committed contempt by failing to comply with the freezing order as particularised in charges 3, 4 and 5; but I am not satisfied to the requisite standard that he has done so in the manner alleged in charges 1 and 2.
• [5] The jurisdiction of this Court to punish for contempt is both inherent and provided for under chapter 20, part 7 of the Uniform Civil Procedure Rules 1999 (Qld) () I gratefully adopt the summary of the relevant principles that apply to proceedings for contempt involving the breach of a court order which appears in the judgment of Burns J in at - .

Were the terms of the order clear and capable of compliance?

• [7] The relevant parts of the freezing order, made on 26 October 2018, are as follows:

1. (a) The first defendant [Mr Dunne] must not remove from

Australia or in any way dispose of, deal with or diminish the value of any of his assets in Australia ("Australian Assets") up to the unencumbered value of AUD$3,700,000 until 5pm on the return date.

(b) If the unencumbered value of the first defendant's Australian

assets exceeds AUD$3,700,000, the first defendant may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of the first defendant's Australian assets still exceeds AUD$3,700,000.

1. (a) The seventh defendant [MP01 Pty Ltd] shall not remove

from Australia or in any way dispose of, deal with or diminish the value of any of its Australian assets up to the unencumbered value of AUD$350,000 until 5 pm on the return date.

(b) If the unencumbered value of the seventh defendant's

Australian assets exceeds AUD$350,000, the seventh defendant may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of the seventh defendant's Australian assets still exceeds AUD$350,000.

1. For the purpose of this order, a defendant's assets include:

(a) all of the defendant's assets, whether or not they are in the defendant's name and whether they are solely or co-owned;

(b) any assets the defendant owns as a trustee;

(c) any asset which the defendant has power, directly or indirectly, to dispose of or deal with as if it were the defendant's own (the defendant is to be regarded as having such power if a third party holds or controls the asset in accordance with the defendant's direct or indirect instructions); and

(d) the following assets in particular:

(i) Any debt (payable now or in the future) to a defendant.

(ii) Cash held (now or in the future) by a defendant.

(iii) Any money in any bank account.

(iv) Any shares owned or held by a defendant.

(v) The real property located at 22 Jamieson Street, Bulimba, Queensland, more particularly described as Lot 24 on RP12562, being the land contained in title reference 11915236.

(vi) Money held in the bank accounts having account numbers 10314146 and 10314154 held with the Bulimba branch of the Commonwealth Bank of Australia (having BSB 064103).

(a) on or before Friday, 2 November 2018, to the best of the defendant's ability inform the plaintiff in writing of all the defendant's assets in Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of the defendant's interests in the assets; and

(b) on or before Friday, 2 November 2018, swear and serve on the plaintiff an affidavit setting out the above information..."

• [8] It is not contended by Mr Dunne that the order was not clear or capable of being complied with. However, as I will come to below, there are some respects in which there is a dispute about whether what Mr Dunne is alleged to have done contravened the terms of the order.

Mr Dunne had knowledge of the terms of the order, at least as at 2 November 2018

• [9] The principle, that it must be proved an alleged contemnor had knowledge of the terms of the order, is also expressed in the UCPR. Rule 898(2)(a) UCPR provides that an order that requires a person to abstain from performing an act (such as a freezing order) may, subject to rule 904, be enforced by punishment for contempt. Rule 904 then provides:

"904 Prerequisite to enforcement by contempt or seizing property

(1) Unless the court otherwise orders, a non-money order may be enforced by contempt proceedings or seizing a person's property only if -

(a) the person against whom the order is to be enforced is served personally with a copy of the order; and

(b) for an order requiring a person to perform an act within a time specified in the order, the order is served a reasonable time before the end of the time specified in the order.

(2) Subrule (1) does not apply to a non-money order requiring a person to perform an act within a time specified in the order or requiring a person to abstain from performing an act, if the person has notice of the order because -

(a) the person was present when the order was made; or

(b) the person was notified of the terms of the order by telephone or in another way a reasonable time before the end of the time for performance of the act or before the time when the prohibited act was to be performed as the case requires."[4]

• [10] In Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233 at [21] Philippides J confirmed that r 904(2):

"... is consistent with the position at common law. At common law, there is no broad rule that the accused must be proved to have been fully aware of the precise terms of the order or undertaking. In relation to a prohibitory order, it is sufficient that he or she 'knows the substance of the prohibition and knowingly acts contrary to it' (see Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 (FC) at 403) or has knowledge at a level that would induce an honest, reasonable, and responsible person to check the precise terms of the order: see Madeira v Roggette Pty Ltd [1990] 2 Qd R 357 at 365-366 (affirmed in Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394). See also United Telephone Company v Dale [1884] UKLawRpCh 13; (1884) 25 Ch D 778 at 787, Foley v Herald Sun TV Pty Ltd [1981] VicRp 34; [1981] VR 315 and Sun Newspapers Ltd v Brisbane TV Ltd [1989] FCA 534; (1989) 92 ALR 535 at 538."[5]

• [11] In Madeira v Roggette Pty Ltd [1990] 2 Qd R 357, one of the cases referred to by Philippides J in the passage above, de Jersey CJ said, at 366:

"... [a person] who, as here, knew that a court order had been made, knew some of its terms, appreciated its rationale, and appreciated that taking certain steps would defeat its purpose entirely, could hardly repel contempt proceedings by establishing that he had not seen the order and read all of its detailed provisions, even though he could have done so had he wished."[6]

• [12] There is no evidence of Mr Dunne being personally served with the freezing order. However, having regard to the following matters, I am satisfied beyond reasonable doubt that he had knowledge of the order.
• [13] The order sheet on the Court's file records that, on 26 October 2018, when the freezing order was remade, each of the first to eighth defendants (including Mr Dunne and MP01 Pty Ltd) were represented by Mr Wilson of Dowd[7] & Co, solicitors. The order is recorded on that order sheet as being made by consent.[8] The order as filed (court document 17) likewise records that it was made by consent.
• [14] A week later, on 2 November 2018, as required by order 14, an affidavit of Mr Dunne was filed (court document 19). The footer on the front page of the affidavit, and each exhibit certificate, shows Dowd & Co as the solicitor, and the email address of "cwilson" at Dowd & Co. For completeness, I note that a notice of change of solicitor was filed on 31 August 2021, recording that Mr Dunne's current solicitor, Enyo Lawyers, "now act for the first and seventh defendants in the place of Dowd and Company Lawyers".
• [15] The affidavit of Mr Dunne commences as follows:

"1. I am the First Defendant to these proceedings, as well as the sole director of the Second, Third, Fourth, Seventh and Eighth Defendants. I am duly authorized to swear this affidavit on behalf of those entities.

1. 2. In accordance with ex-parte orders of Justice Boddice dated 17 October 2018, and the subsequent orders of 26 October 2018, I depose to the assets I hold within Australia, and those held by the Second, Third, Fourth, Seventh and Eighth Defendants."

• [16] It is strongly arguable that the fact the freezing order was made by consent on 26 October 2018, at a time when Mr Dunne's then legal representative was present in court to convey his (and the other defendants') consent, supports a finding of sufficient notification for the purposes of r 904(2).[9] However, it is not necessary to rely only upon an inference to be drawn from the fact that the order was made by consent to reach such a conclusion. The terms of Mr Dunne's affidavit, filed a week after the order was made, in accordance with order 14, and referring to the order, establish that he had the requisite knowledge of the order at that time (2 November 2018) - either in all its terms, or in such terms as would induce an honest, reasonable, and responsible person to check the precise terms of the order.
• [17] Counsel for Mr Dunne argued that it was not open to draw an inference as to Mr Dunne's knowledge of the terms of the order, including because it was not open, in a contempt proceeding, to apply the process of reasoning approved in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. I accept that, by analogy with the approach in criminal proceedings,[10] the principle in Jones v Dunkel cannot generally be relied upon in proving a charge of contempt, because there is no expectation, in such a proceeding, as there is of a party to civil litigation, that the person charged will give or call evidence.[11] The principle in Jones v Dunkel is often misunderstood. It is limited to the proposition that an unexplained refusal by a party to give evidence or to call witnesses or to lead other evidence may, in appropriate circumstances, entitle the tribunal of fact to draw an inference that the uncalled evidence would not have assisted that party's case.[12] I place no reliance on the fact that Mr Dunne called no evidence. He was entitled to do that, and to require that the plaintiff prove the charges of contempt against him. The finding that I make, as to his knowledge of the terms of the freezing order, is on the basis of an inference I am satisfied is the only reasonable and rational inference to draw, from the facts I find proved, that the freezing order was made by consent on 26 October 2018 and that Mr Dunne swore an affidavit seven days later in accordance with part of that order and making reference to it.

Is there an irregularity in the form of the order?

• [20] Mr Dunne next argues that he cannot be punished for contempt because the order made on 26 October 2018 was required to have a statement written on it, or attached to it, in terms of r 665(3) UCPR, but did not.
• [21] Rule 665 UCPR provides as follows:

(1) An order requiring a person to perform an act must specify the time within which the person is required to perform the act.

(2) If an order requires a person to perform an act immediately or immediately on the happening of a specified event or to perform an act but does not stipulate a time for the performance, the court may, by order, stipulate a time within which the person liable must perform the act.

(3) An order requiring a person to perform an act must have written on it or attached to it the following statement or a statement to the same effect -

'If you, [state name of person required to perform act] do not obey this order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt.'.

(4) The court may vary a time specified in an order for the performance of an act."[13]

• [22] In Camm v ASI Development Co Pty Ltd [2007] QCA 317, at pp 10-11, Keane JA (then of the Court of Appeal), with whom Muir JA and Douglas J agreed, said that:

"The purpose of r 665(3) is not merely to provide the party who has the benefit of the order with a basis for inferring deliberate disobedience from non-compliance, though it may incidentally have that effect. The rule is also apt to ensure that the recipient of the order is given fair notice that non-compliance may give rise to proceedings for contempt so that the recipient may conduct himself or herself as to avoid or minimise that peril."

• [23] A failure to comply with the rules is an irregularity (r 371(1) UCPR) and the Court has broad power to make a range of orders where there has been a failure to comply with the rules (r 371(2) UCPR). In Camm, at p 12, the Court observed, however, that:

"... because observance of the procedure prescribed for the pursuit of applications affecting the liberty of the subject is a matter strictissimi iuris, a court should not excuse non-compliance with the rules unless it can be satisfied that the person sought to be imprisoned has not been disadvantaged by the non-compliance."

• [24] Counsel for Mr Dunne submitted that the words "an order" in r 665(3) should be construed as meaning the whole of any order made by the Court, whether it includes "an order requiring a person to perform an act" with other orders not meeting that description, or comprises only an order of that kind. The argument in this regard is that, although there may have been no requirement to include or attach a statement in terms of r 665(3) if the order included only the "freezing order" provisions, because it also included an order "requiring a person to perform an act", namely file an affidavit identifying their/its assets, the failure to do so means that proceedings for contempt cannot lie.
• [25] I reject that submission, for the following reasons.
• [26] The parts of the order "freezing assets of the defendants" (relevantly including orders 5 to 13) are not "order(s) requiring a person to perform an act"; they are negative orders, restraining, or prohibiting the defendants from performing certain acts. Accordingly, the requirement in r 665(3) UCPR does not apply to those parts of the order.[14] The rule may apply to order 14 (which required the provision of information as to each defendant's assets). As it happens, order 14 was complied with by Mr Dunne, by the filing of the affidavit already referred to above. This proceeding concerns alleged conduct in breach of the negative restraint imposed by clause 5.
• [27] The "order" referred to in r 665(3) is an order of a specific kind. It goes without saying that "an order" in that rule could be read, depending on the context, as incorporating the plural, "orders".[15] But, whether it is singular or plural, the rule only applies to a particular type of order, namely, "an order requiring a person to perform an act". It follows that, if the rule does not apply to "an order(s)" - because it is not an order requiring a person to perform an act - even if that order is made at the same time as an(other) order to which the rule does apply, the failure to include or attach the statement cannot be relied upon to prevent enforcement for breach.[16]
• [28] In this regard, the terms of r 665(3) reflect the clear distinction in terms of the procedure to be adopted where it is sought to enforce an order that requires the doing of an act, as opposed to an order that a person refrain from doing something. It would be inconsistent with that long-standing distinction to construe r 665(3) in such a way as to prevent proceedings for contempt in respect of failure to comply with a prohibitory, or negative, order to which the rule does not apply.

"On or about 19 December 2019 [Mr Dunne] caused or permitted an all present and after acquired property (All PAAP) commercial security interest in respect of MP01 Pty Ltd ... to be registered on the Personal Property Securities Register in favour of Hallmark Investing Pty Ltd ...

(i) [Mr Dunne] was at all material times the sole director, shareholder and secretary of MP01 Pty Ltd ..."[19]

• [33] The evidence before the Court establishes to the requisite standard that:

(a) Mr Dunne was the sole director, secretary and shareholder of MP01 Pty Ltd as at 19 December 2019;[20] and

(b) on 19 December 2019, an "all present and after-acquired property" commercial security interest, granted by MP01 Pty Ltd to Hallmark Investing Pty Ltd, was registered on the Personal Property Securities Register.[21]

• [34] The plaintiff invites the Court to infer that, because Mr Dunne was the sole director and shareholder of MP01 Pty Ltd, it could not have been anyone other than Mr Dunne who caused the security interest to be registered. I accept that is the only reasonable inference to draw in the circumstances.
• [35] The plaintiff submits this was a breach of order 5(a) of the freezing order because it involved Mr Dunne dealing with "his assets", as defined in paragraph 13(c) of the freezing order. The plaintiff submits that MP01 Pty Ltd's assets fell within paragraph 13(c):

"as they were, so far as the first defendant [Mr Dunne] was concerned, 'any asset which the defendant has power, directly or indirectly, to dispose of or deal with as if it were the defendant's own (the defendant is to be regarded as having such power if a third party holds or controls the asset in accordance with the defendant's direct or indirect instructions)'."

• [36] The plaintiff also submits that shares held by Mr Dunne in MP01 Pty Ltd were "his assets" for the purposes of the freezing order.
• [37] The plaintiff submits that the effect of registration of the security interest was that Mr Dunne "dealt with and diminished the value of his assets contrary to paragraphs 5(a) and 13(c) of the freezing orders".
• [38] I accept that, in so far as Mr Dunne is concerned, "his assets" include the shares he holds in MP01 Pty Ltd. However, I do not accept that the underlying assets of the company, MP01 Pty Ltd, are "his assets", notwithstanding the broad language used in paragraph 13(c) of the freezing order. The contention that they are Mr Dunne's assets is inconsistent with a clear and persuasive line of English cases, commencing with Group Seven Ltd v Allied Investment Corporation Ltd [2013] EWHC 1509; [2014] 1 WLR 735 - or perhaps, more accurately, commencing with Salomon v A Salomon & Co Ltd [1897] AC 22, the case which established the fundamental principle that a company has a separate legal personality from its shareholders.
• [39] In the Group Seven case, the plaintiff sought to have one of the defendants, Mr Sultana, committed for contempt of court for his alleged breach of a freezing order. It was alleged Mr Sultana had disposed of one of "his assets", being a debt of US$500,000 owed to a company, Wealthstorm Pty Ltd, of which he was the sole director and shareholder, by settling the company's claim in relation to the debt for US$200,000. The freezing order included a provision in almost identical terms to paragraph 13 of the order in this case - particularly paragraph 13(c). Justice Hildyard posed the relevant question as follows:

"does a company which has a sole director, who also owns all its shares, hold or control its assets in accordance with that sole director and shareholder's 'direct or indirect instructions' within the meaning of" paragraph 13(c) of the freezing order?

• [40] He found the answer to that question was clearly "no", explaining as follows:

"65 In my judgment, settled principles of company law, as explained in the judgments of Rimer and Patten LJJ in the decision of the Court of Appeal in Prest v Prest [2013] UKSC 34; [2013] 2 AC 415 (Thorpe LJ dissenting on the true scope of section 24(1)(a) of the Matrimonial Causes Act 1973 and its interplay with those company law principles, which he did not doubt), mandate the answer: which is 'No'. This response may dilute the efficacy of the standard CPR form of freezing order, and surprise and unsettle not a few; but to my mind, there is no escape from it.

66 Two paragraphs, in particular, in the judgment of Rimer LJ explain this negative answer. Paras 104 and 105 (in material part) read as follows:

'104. ... It is heretical to suggest that the total control that a single individual is (and will always be) entitled to exercise over the affairs of his one-man company is a feature resulting in the company's assets becoming assets to which he is 'entitled', and therefore, to which the company is not entitled ... The logic ... [would] ... be that a one-man company can never own its assets beneficially but can only ever hold its assets as the nominee of its sole controller. That is what Lord Wrenbury said is not the law [in Macaura v Northern Assurance Co Ltd [1925] AC 619, 633].

'105. The flaw in the 'power equals property' approach is that it ignores the fundamental principle that the only entity with the power to deal with its assets is the company. Those who control its affairs - even if the control is in a single individual - act merely as the company's agents. Their agency will include the authority to procure an exercise by the company of its dispositive powers in respect of its property, but those powers are still exclusively the company's own: they are not the agents' powers. When and if the agents act as such, and procure a company disposition, the property which immediately before the disposition belonged to the company will become the property of the disponee. Until then, it remains the property of the company and belongs beneficially to no one else.'

67 Echoing Mr Tager's submissions, as quoted above, I accept that in signing and sealing the settlement agreement on behalf of Wealthstorm Ltd, and in procuring it thereby to discount the loan, Mr Sultana was not, as a matter of law, instructing Wealthstorm Ltd either directly or indirectly; he was not telling a third party what to do, he was acting in right and on behalf of the company. He was the means whereby the company, as an artificial creation, acted."[22]

• [41] The reasoning of Hildyard J was adopted by the Court of Appeal in Lakatamia Shipping Co Ltd v Su [2015] 1 WLR 219.[23] The question in that case was whether the freezing order, which included an equivalent extended definition of a defendant's assets, had the direct effect of freezing the assets of three non-defendant companies of which the first defendant, Mr Su, was the direct or indirect 100% shareholder and a director. The primary judge had held that they were. The Court of Appeal held that an asset of a company of which a single person is the sole director and shareholder is not an asset of that person, within the extended definition of "assets" (as appears in paragraph 13(c) of the freezing order), that is, an asset which the defendant "has power, directly or indirectly, to dispose of or deal with as if it were the defendant's own".[24] However, the Court did accept that the assets of the company were "covered" by the freezing order in the sense that the person in the position of Mr Su (or, here, Mr Dunne) - that is, the owner of the company - is restrained from diminishing the value of their shareholding in the company, by procuring the company from making dispositions likely to result in such diminution, unless that can be brought within the order's exception for the ordinary course of business.[25]
• [42] The point was later addressed by the Board of the Privy Council in Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24; [2022] 2 WLR 703, with the same distinction being observed - between the assets of the company itself, which were not capable of being described as the assets of the majority shareholder (within the terms of the extended definition of assets in the freezing order) and the majority shareholder's shareholding in the company (which was covered by the freezing order, as his asset).[26]
• [43] A useful discussion of both Broad Idea and Lakatamia appears in the decision of Stewart J in at [78]-[100]. Stewart J applied those authorities to hold that the assets of a particular company, CSTT Singapore, were not the assets of its 100% shareholder, Ruyi (within the meaning of the extended definition in the freezing order), since there was no suggestion Ruyi was beneficially entitled to those assets. Once Ruyi became bound by the order, however, it would "itself be restrained from causing CCST Singapore to sell, dispose of or otherwise diminish the value of its assets because to do so would be to diminish the value of Ruyi's assets (ie, to devalue Ruyi's shareholding in CSTT Singapore)" (at [102]-[103]).

"Mr Dunne's position as sole director and sole shareholder of the Development Companies does not mean that, if he were to cause any of those companies to deal with the caveated properties, he would, as a matter of law, be instructing that company directly or indirectly so as to engage para 13(c) of the Freezing Order. He would not be telling that company, as a third party, what to do. Rather, he would be acting in right of and on behalf of the company."

• [45] Further, Cooper J found that there was insufficient evidence to support an inference that the development companies did not own the property beneficially, or conversely that Mr Dunne was beneficially entitled to those properties, so as to engage paragraph 13(a) (at [78] and [84]). His Honour accepted - and indeed it was not controversial - that Mr Dunne's shareholdings in each of the development companies were assets of Mr Dunne's, falling within the scope of the freezing order, such that if Mr Dunne were to act in a matter which caused the value of those shareholdings to diminish, then he would, subject to any relevant exceptions, contravene paragraph 5(a) of the freezing order (see at [39]). However, it was not accepted that any dealings with the properties, in the context of the proposed development of them, would diminish the value of Mr Dunne's shares in those companies (see at [94]).
• [46] Counsel for the plaintiff submitted that these authorities are distinguishable, because MP01 Pty Ltd is a party to, and bound by, the freezing order. That would be a matter of distinction if this case was concerned with whether there had been a breach of the freezing order by MP01 Pty Ltd. However, because this case is about whether Mr Dunne is guilty of contempt, the principle articulated in the line of authorities above applies without distinction.
• [47] I am satisfied, to the requisite standard, that Mr Dunne caused or permitted the security interest in respect of MP01 Pty Ltd to be registered. But I am not satisfied that, in doing so, he dealt with, or diminished the value of any of his assets, in breach of paragraph 5(a) of the freezing order, read with paragraph 13(c) of the order. The assets of MP01 Pty Ltd are not Mr Dunne's assets. Whilst Mr Dunne's shareholding in MP01 Pty Ltd is "his asset" for the purposes of the order, there was no evidence of, or submission about, the basis on which the Court should find, beyond reasonable doubt, that enabling the registration of the security interest over the property of MP01 Pty Ltd necessarily results in a diminution of the value of Mr Dunne's shareholding. An assumption that this must be so is not sufficient for the purposes of a contempt proceeding.
• [48] Accordingly, I am not satisfied that charge 1 is proved.

"On or about 2 April 2020 [Mr Dunne] caused or permitted mortgage numbered 719989295 to be registered on the title to the Jamieson Street Property.

(i) [Mr Dunne] was at all material times the sole director, shareholder and secretary of MP01 Pty Ltd...;

(ii) MP01 Pty Ltd ... was at all material times the trustee of the MP01 Discretionary Trust;

(iii) MP01 Pty Ltd ... as trustee of the MP01 Discretionary Trust is and was at all material times registered owner of the Jamieson Street Property;

(iv) in his affidavit affirmed in this proceeding on 2 November 2018 (paragraph 22), [Mr Dunne] identified, as was the fact, that the unencumbered value of the Jamieson Street Property was approximately $850,000;

(v) in his affidavit affirmed in this proceeding on 2 November 2018, [Mr Dunne] identified, as was the fact, that the Jamieson Street Property was "my home" (paragraph 5); and

(vi) [Mr Dunne] was at all material times a 'Class A' beneficiary of the MP01 Discretionary Trust."

• [50] The evidence before the Court establishes to the requisite standard that:

(a) Mr Dunne was the sole director, secretary and shareholder of MP01 Pty Ltd as at 2 April 2020;[27]

(b) MP01 Pty Ltd is the trustee of the MP Trust, a discretionary trust;

(c) Mr Dunne is the Principal under the MP Trust trust deed and, in that capacity, one of the Class A Beneficiaries;[28]

(d) MP01 Pty Ltd is the owner, as trustee, of the property located at Lot 24 on RP 12562, which is the property located at 22 Jamieson Street, Bulimba (the Jamieson Street property referred to in the particulars);[29]

(e) MP01 Pty Ltd, as mortgagor, granted a mortgage to Hallmark Investing Pty Ltd, as mortgagee, in respect of the Jamieson Street property, which mortgage was registered on 2 April 2020;[30] and

(f) Mr Dunne executed the mortgage, as the sole director and secretary of MP01 Pty Ltd.[31]

• [51] There is a suggestion, in the report to creditors provided by the administrators of MP01 Pty Ltd in May 2024, that this mortgage was granted to secure a loan of $1,500,000 from Hallmark Investing Pty Ltd, which was used to discharge existing debts in relation to the purchase of the Jamieson Street property and to develop the property.[32] However, this suggestion is no more than speculation and does not support a finding to this effect.
• [52] In one respect, this charge raises the same legal issue as charge 1, albeit the legal and factual framework is different because, in the case of the Jamieson Street property, it is an asset of MP01 Pty Ltd which is expressly held on trust. The authorities discussed above recognise that the expanded definition of "asset" which appears in an order such as paragraph 13 of the freezing order may operate where the evidence establishes that a company's asset(s) is in fact beneficially owned by the alleged contemnor. The plaintiff emphasises Mr Dunne's position as sole director, secretary and shareholder of MP01 Pty Ltd, the fact that he is the Principal under the MP Trust, and the broad power conferred on MP01 Pty Ltd, as trustee, under clause 7 of the trust deed to transfer the whole of the trust fund to other trusts of the beneficiaries "in its absolute discretion". However, as counsel for Mr Dunne submits, Mr Dunne is not the only beneficiary of the MP Trust.
• [53] The plaintiff also submits that, in any event, the Jamieson Street property is Mr Dunne's asset within the meaning of paragraph 13(d) of the freezing order, which is to be read disjunctively from paragraph 13(c).
• [54] A return to legal principle assists to resolve this dispute. The purpose of a freezing order is to prevent frustration of the court's processes; or, put another way, "to facilitate the enforcement of a judgment or order for the payment of money by preventing assets against which such a judgment could potentially be enforced from being dealt with in such a way that insufficient assets are available to meet the judgment".[33]
• [55] Although MP01 Pty Ltd is a party to the proceedings, in the present context (proceedings for contempt brought against Mr Dunne), in order to understand the effect of paragraph 13 of the freezing order, it is apt to think of MP01 Pty Ltd as a third party, in asking the question whether its asset (the Jamieson Street property), held on trust pursuant to the MT Trust deed, is an asset of Mr Dunne's.

"(i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including 'claims and expectancies', of the judgment debtor or potential judgment debtor; or

(ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor."[34]

• [57] Justice Stewart in Viterra BV v Shandong Ruyi Technology Group Company Ltd (2022) 291 FCR 640 at [73] suggests that subsequent decisions may have expanded these circumstances. However, the justification for a freezing order, by reference to what is described as the "enforcement principle", was recently affirmed by the Privy Council in Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24; [2022] 2 WLR 703 at [88]- [89], as follows:

"88 The enforcement principle also explains the basis and scope of the jurisdiction to grant a freezing injunction against a third party against whom no claim for substantive relief lies (ie a 'non-cause of action defendant'). The ordinary prerequisite for granting such an injunction (before taking account of discretionary factors) is that the third party is in possession or control of an asset against which a judgment could be executed. That test may be satisfied because there is good reason to suppose that the asset is beneficially owned by a defendant against whom the claimant has obtained or has a right to obtain a judgment, as in the Chabra case. But it may also be satisfied in other ways: for example, where the defendant would have a right of indemnity against the third party which could be enforced by a receiver (C Inc plc v L [2001] 2 All ER (Comm) 446); or where a transaction by which the defendant transferred an asset to the third party might be avoided under section 423 of the Insolvency Act 1986 (Lemos v Lemos [2001] EWCA Civ 704; [2017] 1 P & CR 12); or where enforcement of a judgment against the defendant might lead to its liquidation whereupon the liquidator would be able to pursue a claim against the third party (Revenue and Customs Comrs v Egleton [2007] Bus LR 44). In each case the key question is whether the assets are or would be available to satisfy a judgment through some process of enforcement: see also Cardile v LED Builder Pty Ltd ; 2011 (1) CILR 178, para 43; , paras 146-154; at ; ; , para 32.

1. 89 Although it is unnecessary to make the enforcement principle dependent on the identification of a legal or equitable right, there is no harm in expressing the interest of the applicant which a freezing injunction seeks to protect in these terms, provided it is understood to be different, and different in character, from the right on which a cause of action for substantive relief is based. The interest protected by a freezing injunction is the (usually prospective) right to enforce through the court's process a judgment or order for the payment of a sum of money. A freezing injunction protects this right to the extent that it is possible to do so without giving the claimant security for its claim or interfering with the respondent's right to use its assets for ordinary business purposes. The purpose of the injunction is to prevent the right of enforcement from being rendered ineffective by the dissipation of assets against which the judgment could otherwise be enforced."

• [58] In the context of considering charge 2, I am not satisfied, beyond reasonable doubt, that it is appropriate to reach the conclusion that the Jamieson Street property is Mr Dunne's asset, for the purposes of paragraphs 5(a) and 13 of the order. The complex legal questions, among others:

(a) of how to construe paragraph 13(c) of the freezing order, in so far as the Jamieson Street property is concerned, having regard to the authorities discussed above in relation to charge 1; and

(b) whether and, if so, how, the judgment debt against Mr Dunne could be enforced against the Jamieson Street property,

were not addressed by counsel for the plaintiff. In fairness, I observe that the nuance of these points only occurred to me on a careful reading of the authorities cited by counsel for Mr Dunne in their written submissions at [19] and [21] in the course of writing these reasons.

• [59] There appears to have been an assumption that Mr Dunne's "ownership" and control of MP01 Pty Ltd was a sufficient answer, for the purposes of charges 1 and 2. But, for the reasons already given, it is not. And without resolving those questions, the proper construction and operation of paragraphs 13(c) and 13(d) of the order remain in doubt. It is difficult to conclude that Mr Dunne should be regarded as the beneficial owner of the Jamieson Street property, when he is one of a number of beneficiaries of the MP Trust. In so far as paragraph 13(d) is concerned, even if one reads that disjunctively, so that the effect is to declare that the Jamieson Street property is a defendant's (relevantly, Mr Dunne's) asset, regardless of whether any of the other subparagraphs of paragraph 13 apply, one then hits the brick wall of principle - how can that be the case, if any judgment debt against Mr Dunne could not be enforced against the Jamieson Street property?
• [60] In the end, I come back to the fact that this is a contempt proceeding, in which the plaintiff bears the onus of proving the charge, beyond reasonable doubt. Since these legal questions remain unanswered, the charge is not proved to my satisfaction to that standard.

• [61] Charges 3, 4 and 5 all allege that Mr Dunne transferred his shareholding in various companies, as follows:

"[Charge 3] On or about 14 March 2023 [Mr Dunne] transferred his shareholding in MP01 Pty Ltd ... to Phantom Cigar Pty Ltd ... and resigned as a director of MP01 Pty Ltd ...

(i) the fully paid share capital of MP01 Pty Ltd ... was $10.00, consisting of ten $1.00 ordinary shares; and

(ii) before 14 March 2023 [Mr Dunne] was the sole director and shareholder of MP01 Pty Ltd ...

[Charge 4] On or about 14 March 2023 [Mr Dunne] transferred his shareholding in Phantom Cigar Pty Ltd ... to Lifestyle Resorts 685 Pty Ltd ... and resigned as a director of Phantom Cigar Pty Ltd ...

(i) the fully paid share capital of Phantom Cigar Pty Ltd ... was $10.00, consisting of ten $1.00 ordinary shares; and

(ii) before 14 March 2023 [Mr Dunne] was the sole director and shareholder of Phantom Cigar Pty Ltd ...

[Charge 5] On or about 14 March 2023 [Mr Dunne] transferred his shareholding in Lifestyle Resorts 685 Pty Ltd ... to Phantom Cigar Pty Ltd ... and resigned as a director of Lifestyle Resorts 685 Pty Ltd ...

(i) the fully paid share capital of Lifestyle Resorts 685 Pty Ltd ... was $10.00, consisting of ten $1.00 ordinary shares; and

(ii) before 14 March 2023 [Mr Dunne] was the sole director and shareholder of Lifestyle Resorts 685 Pty Ltd ..."

• [62] The evidence before the Court establishes to the requisite standard that:

(a) Mr Dunne was the sole director, secretary and shareholder of MP01 Pty Ltd up to 14 March 2023;[35]

(b) on 14 March 2023, Mr Dunne ceased to be the director and secretary of MP01 Pty Ltd;[36]

(c) the share capital of MP01 Pty Ltd consists of one $1.00 share;

(d) on 14 March 2023, Mr Dunne transferred his one share in MP01 Pty Ltd to Phantom Cigar Pty Ltd;

(e) from 25 January 2022 to 14 March 2023, Mr Dunne was the sole director of Phantom Cigar Pty Ltd;[37]

(f) prior to 14 March 2023, Mr Dunne was also the sole shareholder of Phantom Cigar Pty Ltd, which had a share capital consisting of ten $10.00 shares;[38]

(g) on 14 March 2023, Mr Dunne ceased to be the director of Phantom Cigar Pty Ltd[39] and transferred his ten shares in Phantom Cigar Pty Ltd to Lifestyle Resorts 685 Pty Ltd;[40]

(h) from 6 October 2021 to 14 March 2023, Mr Dunne was the sole director, secretary and shareholder of Lifestyle Resorts 685 Pty Ltd, which had a share capital of 100 $1.00 shares;

(i) on 14 March 2023, Mr Dunne ceased to be the director and secretary of Lifestyle Resorts 685 Pty Ltd[41] and transferred his 100 shares in Lifestyle Resorts 685 Pty Ltd to Phantom Cigar Pty Ltd;[42]

• [63] The facts of each of charge 3, 4 and 5 are proved beyond reasonable doubt. The particulars are not accurate, in terms of the description of the share capital of MP01 Pty Ltd and Lifestyle Resorts 685 Pty Ltd. But that does not affect my conclusion as to proof of the essential elements of each charge.[43]
• [64] The plaintiff submits that, in each case, the conduct the subject of charges 3, 4 and 5 was in breach of paragraph 5(a) of the freezing order - which restrained Mr Dunne from disposing of his assets. I am satisfied that, as Mr Dunne's shares held in the various companies are plainly "his assets", the transfer of those shares to other entities does contravene paragraph 5(a) of the order.
• [65] The only argument against this on behalf of Mr Dunne is that in each case, the charge is a composite one (combining transfer of shares and resignation as a director) and, since the freezing order did not restrain Mr Dunne from resigning as a director of any company, that conduct cannot be said to contravene the freezing order. The argument is that the charge fails, because the second part of it is not a breach of the freezing order.
• [66] I reject that argument. I accept the plaintiff's submission that what is restrained by paragraph 5 of the freezing order is "dealing with" his (Mr Dunne's) assets, and that concept is broad enough to capture resigning as the sole director at the same time as transferring his shares - as a result of which Mr Dunne not only divested himself of the property comprising the shares, but also of any control over the company.
• [67] I am satisfied that charges 3, 4 and 5 are proved, beyond reasonable doubt.
• [68] I am therefore satisfied that the first defendant, Mr Dunne, has committed contempt by failing to comply with the freezing order as particularised in charges 3, 4 and 5.
• [69] Following delivery of these reasons, and in consultation with the parties, I will list the matter for further hearing as to the appropriate punishment (r 930 UCPR) and costs (r 932 UCPR).

[1] See rr 259, 260A and 260B of the Uniform Civil Procedure Rules 1999 (Qld).

[2] Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261 at [139].

[3] Witham v Holloway (1995) 183 CLR 525 at 534; Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294 at [25], [65] and [107].

[5] See also Albion Mill FCP Pty Ltd v FKP Commercial Developments Pty Ltd [2019] 2 Qd R 426 at [47] per Sofronoff P, referring to Re Intex Consultants Pty Ltd [1986] 2 Qd R 99 at 106-107.

[6] The Full Court (Thomas, Moynihan and Ambrose JJ) affirmed his Honour's decision in this regard: Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 at 403 and 404.

[7] Mis-spelled as "Doud" on the court order sheet.

[8] See r 661(1) of the UCPR as to the written record of the terms of an order made on a court file, or a document on the file, being sufficient proof of the making of the order unless or until the order is filed.

[9] Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233 at [23]- [25].

[10] As to which, see R v Webb-Italia [2025] QCA 51 at [29]- [33].

[11] See Jones v Australian Competition and Consumer Commission [2010] FCAFC 136; (2010) 189 FCR 390 at [24]- [35], referring to RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 632-3 and Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [5]- [12].

[12] As summarised in Jones v ACCC, at [20].

[14] Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233 at [19] per Philippides J; see also Re Intex Consultants Pty Ltd [1986] 2 Qd R 99 at 108 per Thomas J (in relation to the equivalent former rule, O 44 r 4 of the Supreme Court Rules). See also Burton v Spencer [2015] QSC 187 at [60].

[15] Section 32C of the Acts Interpretation Act 1954 (Qld).

[16] As noted by Thomas J in Re Intex Consultants Pty Ltd [1986] 2 Qd R 99 at 108.10 (a case concerned with O 44 r 4 of the former Rules of the Supreme Court, the analogous predecessor to r 665(3)).

[17] See The Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia Queensland Branch [1988] 2 Qd R 385 at 387-388 per McPherson J.

[18] Cf the discussion in Burton v Spencer [2015] QSC 187 at [66]- [129], which concerned the "second order" and "third order", as defined in [3], both of which were orders requiring Mr Spencer to do an act (and therefore were orders to which r 665(3) applied); as opposed to the "first order", restraining Mr Spencer from doing an act (to which r 665(3) did not apply (see [60]).

[19] ACN's omitted from the wording of the charge (and also below).

[20] Affidavit of Hill, at pp 127 and 129 (ASIC extract of MP01 Pty Ltd); para [1] and [28] of the affidavit of Mr Dunne filed 2 November 2018.

[23] See also FM Capital Partners Ltd v Marino [2018] EWHC 2889; [2019] 1 WLR 1760.

[24] At and [28]-[31] per Tomlinson LJ, [41] per Sir Bernard Rix and [50]-[51] per Rimer LJ.

[25] At [23]-[24] per Tomlinson LJ, [43] per Sir Bernard Rix and [44] per Rimer LJ.

[26] See Convoy Collateral Ltd v Broad Idea International Ltd [2023] AC 389 at [108]-[112].

[27] Affidavit of Hill, at pp 127 and 129 (ASIC extract of MP01 Pty Ltd); para [1] and [28] of the affidavit of Mr Dunne filed 2 November 2018.

[32] Affidavit of Hill, at pp 330 and 341.

[33] Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24; [2022] 2 WLR 703 at [84]- [86].

[43] Berghofer v Wicks [2024] QSC 4 at [16].