Plaintiff v Defendant

1 On 15 August 2025, the plaintiff, Versace LED Low Energy Pty Ltd ('Versace'), obtained judgment by consent against the defendant, Mark Ploenges ('Mr Ploenges'), in the sum of $4,885,909, together with interest pursuant to s 58 of the Supreme Court Act 1986 (Vic) in the sum of $282,474.25. The Court also ordered that Mr Ploenges pay Versace's standard costs of the proceeding. Relevantly, execution of the judgment was stayed for a period of three months from the date of the orders.

2 The consent judgment had been obtained shortly prior to the commencement of the trial scheduled for 21 August 2025. In broad terms, Versace's claim was one for damages arising from a breach by Ozwide Energy Group Pty Ltd ('Ozwide') of an agreement with Versace entered into on 12 December 2023, pursuant to which Ozwide agreed to transfer 25,000 Victorian Energy Efficiency Certificates ('the EECs') to Versace on 15 January 2024. Ozwide carried on a business of creating and trading energy saving certificates and Mr Ploenges was the founder and managing director of the company. The agreement provided that if Ozwide did not transfer the EEC's by that date, it would be obliged to pay a late fee of $5,000 per day until such time as the EECs were transferred. Ozwide's obligations were guaranteed by Mr Ploenges. Mr Ploenges's defence was that the late fee constituted an unenforceable penalty and was not a genuine pre-estimate of loss.

3 By application made by summons dated 17 September 2025, Versace now applies for a post judgment freezing order against Mr Ploenges.

4 Relevantly, the application for the freezing order is made in circumstances where the stay on the consent judgment remains in place until 15 November 2025. It is also made against the background of undertakings given by Mr Ploenges to the Court on 12 May 2025, in the following terms:

(a) The defendant undertakes, through his counsel, to deposit the net proceeds of any sale of:

(a) 1 Byrne Street, Port Melbourne, Victoria;

(b) 530 Tucks Road, Shoreham, Victoria;

(c) 2/32 Starling Street, Montmorency, Victoria;

(d) 1/81 Hastings Street, Noosa Heads, Queensland; and

(e) 1508/259 Normanby Street, South Melbourne, Victoria;

('the Properties'),

after payment of reasonable selling costs and any registered encumbrances, in his solicitors, Turks Legal's trust account and not to deal with those proceeds without having prior given Versace LED Low Energy Pty Ltd, through its solicitors, BlueRock, 14 days' notice in writing.

(b) The defendant further undertakes, through his counsel, to cause Noosa Hasting Pty Ltd to deposit the net proceeds of any sale of 1/81 Hastings Street, Noosa Heads QLD, after payment of reasonable selling costs and any registered encumbrances, in his solicitors Turks Legal's trust account and not to deal with those proceeds without having given Versace LED Low Energy Pty Ltd, through its solicitors BlueRock, 14 days' notice in writing.

5 In light of those undertakings, the application for the pre-trial freezing order was not pressed.

6 The consent judgment did not displace the undertakings, which remain in place. Versace does not contend that the undertakings have been breached in any way.

7 Versace's application for a post-judgment freezing order relies upon affidavits sworn on behalf of the plaintiff's Mr Massood (Joseph) Raffo, affirmed on 31 March 2025, 23 April 2025, and 25 July 2025, and that of its instructing solicitor, David Leggatt, affirmed on 15 September 2025 ('the Leggatt Affidavit').

8 The Leggatt Affidavit exhibits a liquidator's statutory report dated 8 July 2025, prepared by Mr Manuel Hanna, an official liquidator of Romanis Cant, chartered accountants, relating to the affairs of Ozwide, which is now in liquidation. The liquidator had been appointed as voluntary administrator on 13 May 2024 and then subsequently as deed administrator on 1 October 2024.

9 The liquidator's report, inter alia, records the liquidator's estimate of a deficiency of assets over liabilities for Ozwide of $2,787,837, which is slightly less but not materially less than an estimate provided by Mr Ploenges who estimated the deficiency as $3,053,724.

10 The liquidator's report also includes a list of properties that are either owned by Mr Ploenges or his related entities. The properties correspond to the five properties set out in the undertakings provided by Mr Ploenges to the Court on 12 May 2025.

11 Relevantly, the Port Melbourne Property is described as owned by Mr Ploenges and has an estimated market value of $4,200,000, with equity of $1,834,203. The Shoreham Property has an estimated market value of $4,100,000 with equity of $778,000 and is owned jointly by Mr Ploenges and his former wife. The Montmorency Property is wholly owned by Mr Ploenges, with estimated equity of $265,987. The South Melbourne Property is owned by a company, Papa Iconic FT Pty Ltd, with an estimated equity of $183,950. Relevantly, the Noosa Heads Property is owned by Noosa Hastings Pty Ltd. The equity in that property is estimated at $1,428,000, with the estimated market value of the property at $6,600,000 and the estimated secured creditor owed $5,040,000.

12 Versace drew attention to several aspects of the liquidator's report. First, it noted that the various corporate entities referred to in the report (which were all companies controlled by Mr Ploenges) either had intercompany loans or loans owed to or from Mr Ploenges to the particular entity, that the liquidator believed that certain transactions as between Ozwide and various related entities may have constituted unfair preferences and that Ozwide had likely been insolvent from some point between 1 September 2023 and 31 December 2023 but most likely closer to the latter period.

13 Versace also drew attention to the fact that the Noosa Heads Property had been sold on 26 August 2025 for $6,200,000 which was some $400,000 less than the sale price estimate provided in the liquidator's report. Following the payout of the secured creditor, the National Australia Bank ('NAB'), of its secured debt in the amount of $5,500,140.26 and the payment of outstanding body corporate fees of $333,730.09, the sale of the Noosa Heads Property was such that the available equity was nil, in contrast to the estimate contained in the liquidator's report of $1,428,000. Versace also noted that the Shoreham Property was listed for sale and that it apprehended that the Port Melbourne Property, in which Mr Ploenges appeared to have equity of $1,800,000, was the subject of a matrimonial dispute with Mr Ploenges's wife.

14 Versace further submitted that 'it can be undoubtedly inferred, that Mr Ploenges will do everything he can to ensure that any equity he owes in the Port Melbourne Property will be transferred to his wife so that he can avoid making any payment pursuant to the judgment of this Honourable Court'. Relevant to that contention, Versace complained of the fact that notwithstanding that Mr Ploenges was the sole registered proprietor of the Port Melbourne Property, he had asserted in correspondence that his interest in that property was 50% only. Consequently, Versace had written to the solicitors for Mr Ploenges's wife seeking details of any arrangement between Mr Ploenges and his wife. There had been no response to the letter.

15 Mr Ploenges opposes the application for the freezing order. He relies upon an affidavit sworn on 2 October 2025 in which he deposed, inter alia, to the fact that on or about 11 June 2025, he had entered into an agreement with his wife (for convenience 'the wife'), from whom he was now separated, pursuant to s 90C of the Family Law Act 1975 (Cth) ('the s 90C Agreement'). He deposed that the s 90C Agreement had been entered into following each party having obtained independent legal advice and further that the terms of the agreement were confidential.

16 Mr Ploenges otherwise deposed to the fact that the collapse of his business and the separation from his wife had taken a considerable financial and emotional toll, and that he had been endeavouring to arrange his financial affairs and sell-down his assets, namely the Shoreham and South Melbourne properties, to that point without success. He deposed that he had wanted to explore all possible options available to him to avoid bankruptcy, but now anticipated that he would not be able to do so. To that end, he advised that he had recently sought advice from a trustee in bankruptcy in relation to his current financial situation.

17 In response to the service of that affidavit, Versace served a notice to produce the s 90C Agreement. After argument at the hearing on 3 October 2025 and subsequent written submissions, I ordered on 8 October 2025 that the financial agreement be produced. The s 90C Agreement is dated 11 June 2025. It was prepared by Kenna Teasdale Lawyers who act for Mr Ploenges. The agreement records statements of independent legal advice provided to Mr Ploenges by Kenna Teasdale and a separate statement of independent legal advice provided to the wife by a separate firm.

18 The Court has power to make freezing orders pursuant to its inherent power and the express power provided under ord 37A of the Supreme Court (General Civil Procedure) Rules 2025 ('the Rules'). The applicable principles have been articulated in numerous cases including by Forrest J in Zhen v Mo[1] and by the Court of Appeal in the context of a pending appeal in Rozenblit v Vainer.[2] They may be summarised as follows:

(a) A freezing order, by its very nature, is a drastic and extraordinary remedy. A Court must exercise a high degree of caution before such an order is made.

(b) The purpose of granting a freezing order is to prevent the frustration or inhibition of the Court's process by seeking to meet a danger that a prospective judgment of the Court will be wholly or partly unsatisfied.

(c) An applicant for a freezing order must establish by admissible evidence the existence of:

(i) a good arguable case against the defendant (with a real prospect of success);

(ii) there is a danger that the prospective judgment will be partly or wholly unsatisfied because of the defendant's actions in either removing assets or disposing or dealing with them so as to diminish their value. It must be shown that there is a 'reasonable possibility' that assets may be disposed of, dealt with or diminished in value if an order is not made.

(d) The applicant must establish, with some precision, the value of the prospective judgment, so that the value of the assets covered by a freezing order does not exceed the likely maximum amount of the applicant's claim, including interest and costs.

(e) As the making of a freezing order is discretionary, other considerations may weigh in favour or against the making of such an order, including: the balance of convenience; any delay in bringing the application before the Court; or any lack of candour in the materials before the Court.

19 It is not a mandatory requirement that the balance of convenience favours the grant of a freezing order.[3] As the Court of Appeal noted by way of obiter in Rozenblit:[4]

There are some references in the cases to the balance of convenience as a necessary element to be satisfied as a precondition for the making of a freezing order.

...

However, these cases concern injunctions or stays pending appeal. The joint judgment in Cardile makes it clear that a freezing order is not an injunction and that principles governing injunctions do not necessarily apply in the context of freezing orders. The judgment makes no reference in its extensive discussion of the governing principles to the balance of inconvenience. In those circumstances, although the point does not now need to be decided, our present view is that the preferable approach is to treat the balance of convenience as only one among multiple discretionary considerations rather than as a mandatory requirement.

20 In this case, the freezing order is sought after judgment has been obtained. In that context, there is no necessity to consider the question of whether the applicant has established a good arguable case or to separately consider the requirement that the applicant must establish the value of the prospective judgment so that the value of the assets covered by the freezing order do not exceed the likely amount of the claim. Those elements have been overtaken by the obtaining of judgment which necessarily fixes the value of the assets covered by the freezing order.

21 The critical element for present purposes is whether Versace can establish the requisite danger of disposal or diminution. In evaluating whether that danger exists, the nature of the claims advanced can provide a basis for inferring that the requisite risk of disposal or diminution arises. Thus, where allegations are made against a defendant which concern serious dishonesty, that evidence of itself may satisfy the Court that the requisite danger exists.[5]

22 The observations of his Honour in Distinctive FX Pty Ltd v Wright are consistent with, and appear to be drawn from, the decision of the New South Wales Court of Appeal in Patterson v BTR Engineering (Aust) Ltd where Gleeson CJ stated (emphasis added):[6]

In particular, I consider that Giles J was correct in taking the view that the evidence as to the nature of the scheme in which the appellant was allegedly involved, which established a prima facie case against him, was such as to justify the conclusion that there was a danger that the appellant would dispose of assets in order to defeat any judgment that might be obtained against him and that such danger was sufficiently substantial to warrant the injunction. There is no reason in principle why the evidence which is relevant to the first of the issues earlier referred to might not also have a bearing on the second, and this will especially be so where the prima facie case that is made out against a defendant is one of serious dishonesty involving diversion of money from its proper channels. The present is not a case in which a plaintiff who claims simply to be an unsecured creditor seeks to prevent a dissipation of assets which have no particular connection with the claim in question. This is a case in which the plaintiff claims that the defendant, making use of a corporation controlled by him, fraudulently misappropriated a large sum of money, which, if it is still under the control of the appellant, would be quite likely to constitute, directly or indirectly, the bulk of his assets. As Giles J held, the nature of the scheme in which, on the evidence to date, the appellant appears to have engaged, is such that it is reasonable to infer that he is not the sort of person who would, unless restrained, preserve his assets intact so that they might be available to his judgment creditor.

23 Similarly, Meagher JA in Patterson noted:[7]

To obtain such an injunction a plaintiff must prove two ingredients: first, that he has a prima facie case against the defendant, and secondly, that there is some risk of a dispersal by the defendant of his assets so as to defeat the value of the plaintiff's victory if he ultimately wins. Normally proof of the first ingredient alone will not suffice; normally one cannot infer a risk of dissipation of assets from the mere fact that the plaintiff has a prima facie cause of action. In normal circumstances this is particularly so in cases like the present, where there is no evidence at all what the defendant's assets are. However, in exceptional cases (of which the present is unfortunately one) one can infer the existence of the latter ingredient partly or wholly from proof of the former. This may well be the situation in all cases where the plaintiff's prima facie case against the defendant involves proof of gross dishonesty.

24 As Craig J summarised in Gracon Properties Pty Ltd v Gracievski,[8] such cases stand for the proposition that the type of conduct which supports the prima facie case may also be available for the purpose of drawing an inference as to the risk of dissipation.

25 However, such matters have no application here. There is no basis to infer the risk of dissipation of assets from the subject matter of the cause of action brought by Versace against Mr Ploenges.

26 Versace submits that the matters adverted to by the liquidator in the liquidator's report support an inference of a risk of dissipation by Mr Ploenges. I do not agree; the mere fact that Ozwide may have carried on business whilst insolvent does not, of itself, permit an inference as to the risk of dissipation. Assuming, in Versace's favour, that the liquidator's concerns are valid for present purposes, I note again that an administrator was appointed on 13 May 2024 within five months of the most likely date on which the company became insolvent. This is not a case of lengthy trading whilst insolvent or of the use of company money for personal expenses such as might more readily permit such an inference. Nor does the use of a number of corporate entities and various intercompany loans permit the relevant inference. Such commercial arrangements are not uncommon and alleged unfair preferences are far from uncommon in company liquidations.

27 Versace also submits that the s 90C Agreement shows a clear intent by Mr Ploenges to ensure that his property assets are made available to his family and not his creditors. It complains of the fact that the equity in the Port Melbourne Property of approximately $1.9 million is to be transferred to the wife, although it notes that she will take responsibility for refinancing the existing mortgage loan which has a balance of approximately $2.3 million. It otherwise notes that the Shoreham Property is to be sold, and contends that any equity in that property will be transferred to the wife. The s 90C Agreement provides for Mr Ploenges to retain his interest in the South Melbourne Property and the Montmorency Property, but Versace notes that equity in both those properties is minimal. In the circumstances, Versace has put Mr Ploenges on notice that it will be applying to the Family Court for orders setting aside the s 90C Agreement pursuant to s 172 of the Property Law Act 1958 (Vic) ('the Act').[9] Section 172 of the Act provides in substance that every alienation of property made with intent to defraud creditors shall be voidable at the instance of any person prejudiced. I note that s 172(3) of the Act provides that the section does not extend to any estate or interest in property alienated for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the alienation, notice of the intent to defraud creditors.

28 Relatedly, Versace asserts that the separation of Mr Ploenges and the wife is not genuine and as a consequence it does not accept the validity of the s 90C Agreement.

29 In light of the s 90C Agreement, Versace proffers a proposed form of freezing order in different terms to that previously sought. The freezing order originally sought by Versace was in the standard form, extending to all of Mr Ploenges's assets, with ancillary disclosure orders also sought. The revised proposed order following the production of the s 90C Agreement is limited to an order which freezes all the assets that Mr Ploenges receives under the s 90C Agreement, excluding the property assets, but extending to all other assets which he has not disclosed to the liquidator and the wife. Versace also seeks an ancillary disclosure order in respect of both categories of assets as to their value. In relation to the property assets, Versace accepts that its interest in relation to the property assets is adequately protected by the undertakings given by Mr Ploenges to the Court on 12 May 2025 with the result that the proposed form of order does not freeze those assets.

30 Versace's focus on aspects of the s 90C Agreement compels some further analysis of its content. As noted above, the agreement was made on 11 June 2025, after the date on which the undertakings were given, but before judgment was obtained by Versace against Mr Ploenges. Further, whilst Versace is correct in submitting that the agreement provides in effect for the equity value in the Port Melbourne Property to be transferred to the wife and that the property assets retained by Mr Ploenges have comparatively little value, Versace's analysis does not allow for the fact that at the time of the making of the agreement both parties, with legal advice, agreed with the estimated value of the parties' current property liabilities and financial resources as set out in Schedule B to the s 90C Agreement. That schedule, among other things, included reference to estimated equity in the Noosa Heads Property which was to be retained by Mr Ploenges of $1,060,000.

31 Although in the events which transpired, the equity available from the sale of the Noosa Heads Property did not result in the anticipated return, when one analyses the parties' joint pool of property assets by reference to the schedule of values set out in the s 90C Agreement, one ascertains total net property assets of $3,527,083 of which, the wife was to receive $2,368,203 (which equates to approximately 67%) with Mr Ploenges to receive $1,158,880 (which corresponds to almost 33%).[10] The agreement also provides for both the wife and Mr Ploenges to retain their respective superannuation entitlements, with Mr Ploenges's retained entitlements constituting 75% of the total entitlements.[11]

32 Viewed in that context, the s 90C Agreement assumes a rather different character. It is otherwise not necessary to condescend any further to the particulars of the agreement, although I note that it includes, among other things, statutory declarations by each of the wife and Mr Ploenges to the effect that they had separated and were living separately as at the date of the declaration and that there was no reasonable likelihood of cohabitation being resumed. The recitals to the agreement otherwise record that the parties had separated on 17 April 2024, that their marriage had irretrievably broken down and there was no reasonable likelihood of cohabitation being resumed although the couple was not formally divorced. Relevantly, there are three young children of the marriage, who are the subject of a shared care arrangement between the parents.

33 Having regard to all of the matters relied upon by Versace, I am not satisfied that there is a danger, in the relevant sense, that the judgment obtained by Versace will be partly or wholly unsatisfied because of Mr Ploenges's actions in either removing assets or disposing or dealing with them so as to diminish their value.

34 A freezing order is a drastic remedy, and the Court must exercise a high degree of caution before any order is made. I do not consider that the present circumstances are such as to require the making of such an order. First, as noted above, Versace initially applied for a pre-judgment freezing order which was resolved on the terms of the undertakings provided on 12 May 2025. Versace acknowledges not only that there has been no breach of the undertakings, but that those undertakings provide sufficient protection in relation to the property assets. Secondly, the s 90C Agreement was entered into on 11 June 2025. Versace's status at that stage was merely that of a prospective unsecured creditor. The fact that Mr Ploenges was facing suit from Versace at that point does not put the rest of his life in some suspensory state such that it was somehow inappropriate for him to have sought to resolve financial issues arising from the breakdown of his marriage. Further, on the basis of the material as it is presently to hand, I do not accept Versace's submission that the s 90C Agreement constitutes a sham, or that that there is a serious question to be tried as to whether it does, or whether it otherwise constitutes an attempt by Mr Ploenges to effect dispositions with intent to defraud his creditors contrary to s 172 of the Act. Whilst a different position may conceivably emerge in the event that Versace brings the foreshadowed claim in the Family Court, the contentions advanced by Versace involve allegations of a serious dishonesty on the part of Mr Ploenges and there is no sufficient basis on the evidence for me to proceed on any other basis than that the s 90C Agreement is bona fide.

35 Thirdly, the terms of the consent judgment embodied in the Court's orders on 15 August 2025, provided for a stay on execution of three months. The matters now relied upon by Versace set out in the liquidator's report, were either known to Versace or at least ascertainable by it as at the time of the making of those orders. The fact of the entry into the s 90C Agreement was also arguably ascertainable at that stage.

36 By now seeking to obtain a freezing order and associated disclosure orders against Mr Ploenges, Versace is, in effect, attempting to obtain some form of quasi security in respect of its unsecured debt over a pool of assets of an uncertain and seemingly illusory nature. Given the exclusion of the property assets from the scope of the freezing order, and the associated recognition that the undertakings provide sufficient protection in relation to the property assets, the operative scope of the freezing order extends to assets identified in the s 90C Agreement and retained by Mr Ploenges which are not amenable to meeting the judgment debt. These include his superannuation entitlements, household furniture and personal effects, and interests in various companies and trusts, the value of which has been assessed as minimal by both Mr Ploenges and the wife, each assisted by independent advice, as well as assets not disclosed by Mr Ploenges to the liquidator or the wife in circumstances where there is cogent evidence of non-disclosure. Versace has not established, to any satisfactory degree, either the existence of the assets that could otherwise meet the judgment debt or the risk of dissipation.

37 Further and contrary to Versace's submission, I do not accept that Mr Ploenges's now potential, or indeed likely bankruptcy, which will entail the preparation by him of a statement of assets and liabilities for the benefit of his trustee in bankruptcy, means that the balance of convenience favours the grant of the freezing order. The fact that such an obligation may be imposed upon Mr Ploenges as an incidence of his bankruptcy is immaterial to the question of whether a freezing order should be granted. The freezing order, in addition to requiring the provision of the disclosure affidavit, among other things, imposes additional restrictions on Mr Ploenges, the breach of which renders him amenable to proceedings for contempt. Those restrictions include, among other things, a prohibition on Mr Ploenges spending amounts on ordinary living expenses in excess of $2,000 per week and otherwise prevents him from using any assets other than for the purposes of paying 'reasonable legal expenses of this proceeding'. On their face, the exceptions would not permit Mr Ploenges to otherwise expend moneys for the purposes of any extant family law proceedings, including those now foreshadowed by Versace. Whilst it is possible that the exceptions may be amenable to later expansion by agreement between the parties, the fact that Mr Ploenges is sought to be restrained in the way embodied in the orders is an inevitable feature of the drastic remedy sought by Versace.

38 Finally, and as already noted above, Versace retains the protection of the undertakings which remain operative with respect to the property assets, in particular those with respect to the Shoreham, Montmorency and South Melbourne properties.

39 For the reasons above, the application for the freezing order is dismissed with costs.

[1] [2008] VSC 300, [22]-[30] (Forrest J) ('Zhen').

[2] [2019] VSCA 164, [19] (McLeish and Niall JJA) ('Rozenblit').

[3] Ibid, [19(8)]. See also Davis v Turning Properties Pty Ltd [2005] NSWSC 742; (2005) 222 ALR 676, [37] (Campbell J).

[4] Rozenblit (n 2), [16]-[17] (citations omitted).

[5] [2015] VSC 299 (Elliott J) ('Distinctive FX').

[6] (1989) 18 NSWLR 319, 325F-326A (Gleeson CJ with whom Meagher JA and Rogers AJA agreed) ('Patterson').

[8] [2025] VSC 590, [74].

[9] In the plaintiff's submissions dated 13 October 2025 it referred to s 142 of the Act which is clearly a typographical error.

[10] These calculations have been formulated on the following basis: Montmorency Property net equity $145,587; Port Melbourne Property net equity $1,918,203; Shoreham Property net equity $344,613; Noosa Heads Property net equity $1,060,000; South Melbourne Property net equity $58,680. The agreement provided for the wife to receive in effect the net equity of the Port Melbourne Property of $1,918,203 together with a further payment of $450,000 which was required to be paid by Mr Ploenges if necessary from the sale of the Shoreham Property.

[11] Total superannuation entitlements was $455,523, of which the wife was to retain her entitlements of $112,346 whilst Mr Ploenges was to retain his entitlements of $343,177.