Plaintiffs v Defendants

2 The freezing order did not prevent Ms Saini from completing the sale of the property and paying the proceeds after the discharge of her mortgage and sale costs into court.

3 However, the terms of the freezing order made on 28 October 2025 did not permit Ms Saini to deal with the frozen assets for the purpose of paying for ordinary living expenses or reasonable legal expenses.

4 On 10 November 2025 I amended,[1] and extended the operation of the freezing order by consent, until 4:15pm today, 20 November 2025.

5 It is not in dispute that the freezing order ought to be continued until further order. The contentious aspect of the dispute is that Ms Saini submits that the Court should vary the freezing order in order to enable her to pay for her ordinary living expenses and reasonable legal expenses from the proceeds of the sale of the Lamb Grove Property, the settlement of which is due to complete imminently.

6 Ms Saini's application is opposed by the plaintiffs.

7 The plaintiffs relied on the following affidavit material:

(a) the affidavit of Chris Mackay dated 23 October 2025; and

(b) the affidavit of Robert Scott Ditrich dated 18 March 2025.

(a) the affidavit of Ranjit Saini dated 11 November 2025;

(b) the affidavit of Nicholas McKenzie-McHarg dated 11 November 2025; and

(c) the second affidavit of Ranjit Saini dated 19 November 2025.

9 The plaintiffs objected to the tender of the second affidavit of Ms Saini on the basis that its late service would cause prejudice. I admitted it into evidence provisionally under s 57 of the Evidence Act 2008 (Vic). I am now satisfied that it is relevant and that no relevant prejudice would be suffered by the plaintiffs from its tender absolutely. I have admitted it on that basis.

10 The presently relevant background to this proceeding is as follows.

11 On 18 March 2025, the plaintiffs commenced the proceeding by originating process. As against Ms Saini, the plaintiffs seek the following relief:

(a) repayment of the sum of $22,700 pursuant to s 588FF of the Corporations Act 2001 (Cth), on the basis that the payments were insolvent transactions, uncommercial transactions and unreasonable director related transactions and thereby voidable;

(b) compensation for damage suffered representing an amount the Court considers to be the fair value of the first plaintiff's café business, which was allegedly transferred for no consideration to the second defendant, Pearson and Murphys Pty Ltd (ACN 657 926 095) (Pearson and Murphys), on the basis that such transfer was a creditor defeating disposition, with which Ms Saini procured, engaged, encouraged or was involved in by reason of s 588GAC(2) or s 1317E(4) of the Corporations Act 2001 (Cth); and,

(c) further, or alternatively, an amount equal to the profits of Pearson and Murphys from its operation of the business transferred to it, pursuant s 1317H of the Corporations Act 2001 (Cth).

12 It was common ground on the application that the claims against Ms Saini and Pearson and Murphys are substantially overlapping.

13 On 28 April 2025 Ms Saini filed a Notice of Appearance.

14 On 3 June 2025 Pearson and Murphys filed a Notice of Appearance.

15 Both Ms Saini and Pearson and Murphys are represented and have been represented by Merton Lawyers since the Notice of Appearances were filed.

16 As identified, the issue presented for determination is a narrow one, namely, whether or not the terms of the freezing order ought to be varied so as to provide for provision for the payment of Ms Saini's ordinary living expenses and reasonable legal fees out of the frozen assets.

17 The parties agreed on the applicable principles.

18 In Vasilaras v Laprese, Derham AsJ provided the following summary of principles:[2]

Where there is an application for a variation of the terms of the freezing order, the variation is dictated by what justice demands in the particular circumstances of the case. The following matters are established by the authorities:

(a) the Court may vary the terms of the order to give the defendant access to assets in order to meet, amongst other things, legal expenses of defending proceedings providing the purpose does not conflict with the purpose for which the order was made;

(b) having made a freezing order, a Court should not be quick to reverse it save for good reason and the dictates of justice;

(c) the defendant carries the burden of establishing the lack of assets, other than those bound by the injunction, out of which the expenses might be paid;

(d) a general assertion about inability to pay expenses is insufficient;

(e) when a defendant seeks variation of a freezing order allowing a specific dealing, even for intended permitted purposes, it is relevant to take into account whether the defendant has access to other sources of funds for those purposes;

(f) where the plaintiff seeks the recovery of money allegedly held by the defendant on trust, an order allowing the defendant to use part of the money to pay legal expenses does no more than permit to be done what otherwise would constitute a contempt of court. If the plaintiff succeeded at trial, the order would not necessarily bar the plaintiff from recovering the money from the solicitors to whom the payment for the expenses was made;

(g) it may be appropriate in the interests of justice to refuse a variation where the variation requested, if granted, would give rise to a substantial risk that any judgment obtained by the plaintiffs would be rendered nugatory due to the limited remaining assets held by the defendants, so that the effect of the variation, if ordered, would more than likely frustrate the plaintiffs in their attempt to seek a remedy at law.

19 The summary of principles articulated by AsJ Derham in Vasilaras was endorsed by Delany J in Zhang v Zhao (No 2)[3] and by Lyons J (as his Honour then was) in Plus Recruitment Pty Ltd v Phillips (No 2).[4]

20 In Plus Recruitment, Lyons J cited Vasilaras with approval and then went on to say at paragraphs [46]-[47]:[5]

Based on the authorities to which I was referred in argument, I am unable to conclude that there is invariable requirement, as contended by the plaintiff, that in the case of a limited freezing order, the defendant carries the onus of otherwise establishing that he or she does not have other available assets out of which expenses might be paid. My reluctance to accept such an invariable requirement is also because I am conscious that, in making such a freezing order, the Court is exercising a discretion: a variety of considerations may be relevant. The task of the Court is to consider all the evidence and circumstances to determine, in light of the matters relevantly identified in Rule 37A.05 of the Supreme Court (General Civil Procedure) Rules 2015, what is just and convenient.

However, I accept that, in an application for a limited freezing order where the defendant seeks a carve out to meet legal costs or other expenses:

(a) a relevant factor will usually be whether the defendant has sufficient available assets (other than those which are the subject of the freezing order) to meet those costs; and

(b) the defendant will bear the evidential burden to establish that he or she does not have sufficient available assets to meet those costs.

21 To those observations, I would add that general principles regarding inferences and fact finding also remain relevant. The principle in Blatch v Archer[6] permits the Court to draw adverse inferences against a party in circumstances where they have failed, in response to evidence adduced by the another party, to adduce "material evidence" which is "peculiarly within" their knowledge. As Beazley P explained in Gerard Cassegrain & Co Pty Limited v Cassegrain:[7]

Blatch v Archer is authority for the proposition that where material evidence is peculiarly within a party's knowledge, it may be sufficient for the opposing party to adduce slight evidence of a matter in issue. The other party ... then faces a tactical decision as to whether to adduce evidence to explain that 'slight evidence' given by the other party. If a decision is made not to call evidence, there is a risk the court may draw inferences contrary to the interests of the other party who chose not to respond to the evidence adduced...

22 The maxim in Blatch v Archer that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" also bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available.[8]

23 Ms Saini submitted that she had disclosed all of the assets which she owns and to which resort might be had to pay her living expenses and legal costs.

24 By way of summary, Ms Saini gave evidence and/or submitted that:

(a) she owns the Lamb Grove Property. The Lamb Grove Property was sold on 9 October 2025 for $725,000 and is subject to a mortgage with Bank West in the amount of $464,294.60. The Lamb Grove Property is scheduled to settle on 24 November 2025, at which point the balance of the sale proceeds will be paid into the trust account of Merton Lawyers;

(b) other than the Lamb Grove Property, she owns no other real property in Australia;

(c) she is the owner of three bank accounts in Australia, each with balances of:

(i) $38.39 (in the case of the Commonwealth Bank Account ending in '5887');

(ii) $72.00 (in the case of the Bankwest Bank Account ending in '8727'); and

(iii) (-) $1,309.02 (in the case of the Westpac Bank Account ending in '9854');

(d) she receives a gross annual wage of $70,668 from Pearson and Murphys;

(e) she does not hold any petty cash in Australia;

(f) she does not own a motor vehicle;

(g) she owns household contents and personal property valued at approximately $15,000; and

(h) she owns one superannuation account in Australia with Hostplus, which has a balance of approximately $35,000.

25 Ms Saini has also disclosed that she is the sole director and shareholder of the following companies:

(a) Pearson and Murphys;

(b) Guruji Ashirwad Pty Ltd (ACN 674 188 026);

(c) Guru Aasra Pty Ltd (ACN 662 445 249); and

(d) Guru Parsad Pty Ltd (ACN 678 471 979) ('Guru Parsad').

26 In relation to Pearson and Murphys, Ms Saini has given evidence that it:

(a) is the owner of one bank account, which is held with the Commonwealth Bank and has a current balance of $1,142.88;

(b) made a loss in the 2023/2024 financial year of $40,093.00;

(c) owns a 2023 Honda CR-V valued at approximately $32,500, which is subject to finance from Dealer Motor Finance Australia in the sum of $25,000;

(d) as at 2 July 2025, held a petty cash balance of $5,968.00.

27 Ms Saini estimates her present total weekly expenditure to be between $950 and $1,600. Ms Saini submits that this range will need to factor in rental costs for a property in Deer Park as she will no longer reside in the Lamb Grove Property.

28 In respect of her legal costs Ms Saini relies on the affidavit of the principal of Merton Lawyers, Mr McKenzie-McHarg. Mr McKenzie-McHarg has provided an estimate of the legal costs of running the proceeding to trial of up to $148,400 excluding GST. Merton Lawyers acts in the proceeding, as I have said, for both Pearson and Murphys and Ms Saini.

29 I am not satisfied on the evidence before the Court that Ms Saini has discharged her evidential burden in respect of ordinary living expenses or reasonable legal costs.

30 I have reached that conclusion as a consequence of the following matters.

31 First, despite filing two affidavits of her own, and an affidavit of Mr McKenzie-McHarg, Ms Saini does not depose, as Mr Keogh properly conceded, to the fact that she actually needs to have resort to the frozen assets in order to meet her ordinary living expenses and reasonable legal expenses. Whilst in certain circumstances such a conclusion may be capable of being clearly inferred from the other evidence filed, the failure to squarely give evidence as to these matters in the context of the additional concerns with the evidence presented (which I address below), means that I cannot be satisfied, in the absence of evidence squarely deposing to these matters, that Ms Saini is unable to meet her ordinary living expenses and reasonable legal expenses without access to the frozen assets.

32 Second, the evidence disclosed that in the last three financial years the sum of $528,534.84 has been transferred from Pearson and Murphys' bank account to a bank account in Ms Saini's name. What has happened to that money and where it is now held, was not addressed at all by Ms Saini in her evidence. In a written submission dated 14 November 2025 the plaintiffs drew attention to her failure to address in her evidence the fact that significant funds had historically been transferred to her from Pearson and Murphys. Mr Keogh properly acknowledged that in Ms Saini's 19 November 2025 affidavit, she failed to address that very criticism.

33 Third, Ms Saini has been selective in the way in which she has sought to present her evidence as to her financial position. In respect of her bank accounts and the bank account of Pearson and Murphys, she has simply exhibited screen shots of the balance of an account at a date proximate to the filing of her first affidavit. This does not allow any interrogation of the transactions within the account to occur. For example, it does not allow one to assess whether or not in the days leading up to the balance date, significant transfers have occurred to diminish the identified balance of the account.

34 Ms Saini's approach to exhibiting her bank statements on the application is to be contrasted with her approach when exhibiting the bank statement of Guru Parsad, a company of which she is the sole director and shareholder. In that case, she exhibited the entirety of the bank statement for a period from August 2025 to November 2025.

35 Fourth, and relevant to the question of whether or not the frozen funds are necessary to meet reasonable legal expenses, the disclosure with respect to the financial position of Pearson and Murphys is inadequate. It is to be remembered that the second and third defendants have jointly retained Merton Lawyers. The evidence on the application revealed that in a portion of the 2025 financial year (until 31 March 2015), $166,810 had been transferred from Pearson and Murphys' bank account to Ms Saini and in addition ATM withdrawals of $171,950 had been made. As with Ms Saini's bank accounts, only a screenshot of the bank statement of Pearson and Murphys was exhibited. The inference that is available on this material is that significant cash has been generated by Pearson and Murphys through the conduct of its business. Ms Saini, the sole director and shareholder, did not depose to the fact that Pearson and Murphys is unable to meet the legal expenses of Merton Lawyers, in circumstances where the allegations against Pearson and Murphys and Ms Saini are substantially overlapping.

36 Fifth, the disclosure concerning Ms Saini's involvement in and the financial position of Guru Parsad has been unsatisfactory. Ms Saini is the sole director and shareholder of Guru Parsad. However, she deposes to not having an active role in the business of the company. This was contradicted by the bank statement of Guru Parsad which, on one view, at least on its face, discloses the regular injection of funds by Ms Saini into the company and the occasional transfer of funds from the company to Ms Saini. Moreover, Ms Saini's initial disclosure was careful to identify that she was not paid a wage by Guru Parsad. However, in response to the plaintiffs' submissions of 14 November 2025 when attention was drawn to the fact that she had not declared whether she received any other sums from the company whether by loan or dividend, she subsequently deposed, in very generic terms, to the fact that she had 'occasionally accessed drawings of the companies in which I have an interest in as either a director and/or a shareholder'. Noting the significance of the bank transfers from Pearson and Murphys to Ms Saini, generic and high level evidence of this type with respect to another company at least requires an explanation of what drawings Ms Saini has made from Guru Parsad and any other company and if they are relevant and substantial, what has relevantly become of those monies. In this regard, I also observe and rely upon the fact that no financial statements of Guru Parsad were tendered in evidence.

37 Sixth, the evidence adduced does not actually say in terms that Ms Saini is presently liable to meet legal expenses incurred by Merton Lawyers. While such a conclusion may be inferred from paragraph 3 of Mr McKenzie-McHarg's affidavit which states that the variation is sought for the purpose of 'paying her reasonable legal expenses', Mr McKenzie-McHarg's affidavit only describes his prospective estimate of legal costs. More importantly, in circumstances where the frozen asset is real property or the sale proceeds of that property when settlement occurs and Merton Lawyers have been on the record for Ms Saini for almost seven months, a conclusion that Ms Saini is unable to meet her reasonable expenses from assets other than frozen assets would require at a minimum:

(a) evidence as to what, if any, funds are presently held by Merton Lawyers on trust and available to discharge the expenses estimated by Mr McKenzie-McHarg;

(b) the identity of the party that has thus far been meeting legal expenses and if it is Ms Saini, how she has hitherto met those expenses;

(c) disclosure of the fact that Ms Saini is at present legally liable to meet reasonable legal expenses incurred on her behalf by Merton Lawyers;

(d) evidence from Ms Saini as the sole director and shareholder of Pearson and Murphys, that Pearson and Murphys is unable to meet the legal expenses of defending the claim and/or evidence identifying and explaining the extent to which Pearson and Murphys is able to meet those expenses, in circumstances where the claims are substantially overlapping.

38 The absence of bank statements and the concomitant absence of visibility created by the mere exhibiting of screenshots was the subject of criticism by the plaintiffs in their supplementary submissions dated 14 November 2025. Yet the 19 November 2025 affidavit of Ms Saini, which Mr Keogh submitted was prepared in response to those submissions, failed to address that criticism. Similarly, the fact that there was no evidence that Ms Saini or Pearson and Murphys had been paying the costs of Merton Lawyers to date, was the subject of criticism and noted by the plaintiffs in their written submissions dated 14 November 2025. Again, the affidavit of 19 November 2025 did not address that criticism. All of these matters were matters that were readily within the power of Ms Saini to clarify or contradict. I have taken that into account in considering whether or not Ms Saini has satisfied her evidential burden, consistently with the principle articulated in Blatch v Archer.

39 In reaching the conclusions above, I have not lost sight of the fact that the claim made against the sale proceeds is not a proprietary claim and is made in personam. Nor have I lost sight of the fact that a freezing order of the type made here does not extend to the assets of a third party company merely because the respondent is its sole or controlling shareholder and director.[9]

40 The difficulties with Ms Saini's application for a variation are of a fundamental nature. Substantial and essential matters of proof, within her own control, and the deficiency of which she was squarely on notice of, have not been addressed. In the circumstances, I conclude that she has not discharged her evidential burden. No relevant prejudice was identified which would otherwise militate in favour of granting the variation sought. In fact, as Mr Paterson properly accepted, if a variation application was subsequently made with a proper evidentiary foundation, it can be addressed on its merits, subject of course, to the question of costs.

41 Upon the continuation of the undertakings proffered to Cosgrave J on 28 October 2025, I make orders in the following terms:

(a) The operation of the freezing order made by the Honourable Justice Cosgrave on 28 October 2025, as varied and extended by the Honourable Justice Craig on 10 November 2025, be extended until further order of the Court.

(b) Costs are reserved.

(c) Liberty to apply

BOBBY N BISHMEET PTY LTD (IN LIQUIDATION) (ACN 153 032 850)

ROBERT SCOTT DITRICH IN HIS CAPACITY AS LIQUIDATOR OF BOBBY N BISHMEET PTY LTD (IN LIQUIDATION)

[1] Paragraph 2 of the orders made on 10 November 2025 relevantly stated: 'The freezing order in the form of the order and Penal Notice attached to the October 2025 Order ('Freezing Order') is varied such that the words in paragraph 6(a)(ii)(C) of the Freezing Order are deleted and replaced with the words "thereafter to pay into the statutory trust account of Merton Lawyers the balance of all proceeds of sale, up to the amount of $1.2 million.'

[2] (2019) VR 155 177 [73](omitting citations) (Vasilaris).

[3] [2025] VSC 340.

[4] [2019] VSC 611.

[5] Plus Recruitment, 11 [46]-[49].

[6] [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969.

[7] (2013) 87 NSWLR 284, 292 [26] (Beazley P).

[8] See: BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227, [125] (Gleeson J); Re Mentmore 313 Pty Ltd [2024] NSWSC 325 (Black J) and Dyldam Developments Pty Limited [2019] NSWSC 1518 (Black J).

[9] Peter Biscoe KC, Freezing and Search Orders (LexisNexis, 3rd ed, 2022) at [2.39] and the cases cited therein.