Olds v Vella

Mr Hartley deposes in his affidavit sworn on 21 July 2026 that Mr Vella died in December 2025. He was the de facto partner of the Plaintiff’s mother, Louise Olds, from approximately 2007. Mr Hartley, on information and belief, identifies the assets of or associated with the Deceased as including several companies and trusts, four licensed premises and three real properties, including one in Condobolin called Mulguthrie Station. That there appears to be a considerable number of assets does not, of course, reveal the value of the Estate because that requires consideration of offsetting liabilities and valuation evidence. In answer to a question raised by me, Mr Hartley expressed the opinion that it appeared that the Estate was worth a considerable sum. Whether that is ultimately established remains to be seen, but at least from the size of the asset pool there may well be a proper foundation for that assessment.

In any event, in determining whether to grant a freezing order, being an interlocutory injunction, I must be satisfied first as to the existence of a prima facie case and, secondly, that the balance of convenience favours the making of such an order: see, eg, Australian Broadcasting Corporation v O*’*Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] (Gummow and Hayne JJ).

As to the assessment of a prima facie case, that is a matter of considerable difficulty at this stage for at least a few reasons. The allegations against the Deceased are those contained in the Statement of Claim. No affidavit has thus far been filed, even in this application, by the Plaintiff to substantiate those allegations. The highest the evidence rises is in paragraph 15 of Mr Hartley’s affidavit, where he deposes that criminal charges were laid against the Deceased on 16 August 2021, and that an apprehended domestic violence order (ADVO) was made on that date. For reasons that remain unclear, no criminal trial took place before the Deceased’s death. The ADVO may have been made based upon the uncorroborated evidence of the Plaintiff herself, without a contested hearing, but that again is unclear from the affidavit.

The alleged perpetrator of the assaults is now dead, and this will make it extremely difficult, I would imagine, for the Estate to answer allegations which, unless corroborated, will almost entirely, if not entirely, rely upon the testimony of the Plaintiff herself.

There is a concern, in my mind, as to whether this matter rises to the level of a prima facie case merely because in August 2021 charges were laid and an ADVO was made, in circumstances where the Deceased is no longer alive and able to respond to these allegations.

Even if I were otherwise satisfied that there was a prima facie case, the balance of convenience does not satisfy me that an injunction should be granted, at least on the present state of the evidence. That may change, depending upon what evidence can be obtained in the future.

The affidavit of Mr Hartley indicates that on 10 July 2026 he sent a letter to Coleman Greig Lawyers enclosing a sealed copy of the Statement of Claim and a psychiatric report of Dr Justine Schelle. He sought a written undertaking that no assets would be distributed until the claim was resolved, and if no such undertaking were received, an application for a freezing order would be made. There have been further epistolary exchanges between Mr Hartley and Coleman Greig Lawyers, the upshot of which is that, as at today’s date, no undertaking has been received.

Merely because an undertaking has not been given in response to a Statement of Claim alleging damages arising from sexual assault, or indeed, in relation to any other sort of claim made against the Deceased’s Estate does not in my mind give rise to a justifiable apprehension that the assets of the Estate are being dissipated. Of course, the executor or executors of the Estate, who Mr Hartley indicates have received a grant of probate, have obligations to administer the Estate. That, of itself, is not an act of dissipation.

The executors of the Estate are required to administer the Estate including its liabilities, both crystallised, in terms of debts and other obligations, and contingent, in relation to the nature of the claim brought by the Plaintiff in these proceedings. I have no reason, at this stage, to be satisfied that the executors, who exercise an important function overseen by the Court, would not act strictly in accordance with their obligations to administer the Estate responsibly. In addition, merely not providing an undertaking does not give rise, of and by itself, and without more, to a justifiable concern that there will be the frittering away of the Estate assets.

The other issue which must be taken into consideration is whether the Plaintiff’s proffered undertaking as to damages, which is an essential part of the balance of convenience, is real or illusory. If, as Mr Hartley contends, this is an Estate that is worth a considerable sum of money, the damages that could arise from interfering with the transfer of assets could be very considerable. They may include taxation implications.

There is no evidence about the Plaintiff’s ability to satisfy that undertaking. Mr Hartley, in an oral exchange with the Court, confirmed that the Plaintiff indeed has few or no assets. Whether or not she would be able to obtain a third party to provide an undertaking on her behalf is presently unknown, and that may be a matter for contemplation in the future. Nevertheless, as at today, the Plaintiff offers what I consider to be an illusory undertaking. It would afford no real protection against the substantial prejudice to the executors of the Estate if they were prevented from carrying out their duties.

Finally, I should also add that the quantum of the claim, which Mr Hartley suggests could be around $1 million, may be substantially smaller than the overall value of assets in the Estate. This means that a blanket injunction to cover all assets (to an unencumbered value of $2 million) which, as I have already stated, appears to involve several businesses, properties and companies, would be a very significant overreach. A more limited form of injunction, which requires the executors to retain, before distribution, assets either in the form of property, cash or otherwise, in the amount of, for example, $1 million, would match the estimated amount of the Plaintiff’s claim and provide her with sufficient comfort that, if her claim ultimately succeeds, there would be money available. But that is not to suggest that any plaintiff is entitled to security for judgment. All a plaintiff is entitled to, in terms of a freezing order, is for the assets to be restrained if there is a real risk of dissipation.

At the present time, for the reasons I have outlined, the evidence does not persuade me of that, and as such the application for an injunction is refused. As there is no active defendant, I will make no order as to costs.