Plaintiffs v Third Party Respondents

142 It is clear from the expert reports of Mr Quest KC and Dr Mitchell KC that there is contested evidence between the plaintiffs and the defendant as to the merits of the plaintiffs' claim for malicious prosecution and its prospects of success. Each of their views has been carefully presented and commands respect. However, as Le Miere J observed in BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3), in a case such as the present one, 'it is not possible or appropriate for the court to undertake a detailed evaluation of the prospects of' the plaintiffs succeeding in their case before the Grand Court of the Cayman Islands. Nor is it 'necessary that the court should come to the conclusion that it is more probable than not' that the plaintiffs will succeed'. [188] Rather, following the guidance of the Court of Appeal in Woodruff v Manda Capital Holdings Pty Ltd,[189] the role of this Court is 'to determine whether on the evidence there is a good arguable case as a necessary first step to determining whether it is just and appropriate to order the relief sought'.[190] That task entails ascertaining whether the claims brought by the plaintiffs are 'more than barely capable of serious argument' but 'not necessarily one which the judge believes is likely to have better than a 50 per cent chance of success'.[191]

143 It seems clear from the expert evidence presented that the tort of malicious prosecution is 'a developing area of law', particularly in the context of malicious prosecution arising from a civil claim, which operates to render this Court's task more difficult. Another aspect which exacerbates the difficulty of forming a view about the evidence is the fact that the Carey Olsen invoices have been produced but an issue of privilege has been raised.

144 Having read and considered each of the expert's opinions, I prefer the opinion presented by Mr Quest KC, which focuses not just on the pleaded case (as set out in the Amended Statement of Claim) but also considers the evidence presented before this Court. I agree with his conclusion to the effect that the plaintiffs have a realistic prospect of success on their claim for malicious prosecution, and thus have a good arguable case and sufficient prospect of success before the Grand Court in the Cayman Islands.

145 The second cause of action, which is brought by the first plaintiff, Rasia Group, alleges an abuse of process.

146 There is no dispute between the experts about the relevant legal principles pertaining to the tort of abuse of process, as outlined by Dr Mitchell KC in his first expert report, as follows:[192]

3.1. The tort of abuse of civil process is distinct from that of malicious prosecution of civil proceedings because, although a claimant must establish that a defendant's purpose in bringing proceedings was improper (i.e., the same as establishing malice in malicious prosecution), the claimant does not need to prove an absence of reasonable and probable cause or that the abusive proceedings determined in the claimant's favour: see the summary in Clerk & Lindsell at paragraph 15-69.

3.2. It is generally accepted that the tort of abuse of process has only successfully been established twice in decided cases, in Grainger v Hill [1838] EngR 365; (1838) 4 Bing NC 212, 132 ER 769 and in Gilding v Eyre [1861] EngR 793; (1861) 10 CBNS 592 (albeit Grainger was not mentioned in Gilding): see the discussion in Clerk & Lindsell at paragraph 15-72. There is a useful discussion of all the authorities regarding this tort in the relatively recent case of Kings Security Systems Ltd v King [2021] EWHC 325 (Ch), per Andrew Lenon QC sitting as a Deputy High Court Judge at [210] to [229]. The deputy judge's summary at [228] was this:

The following propositions can be extracted from these authorities.

(1) The tort is recognised as part of English law although a claim based on the tort has only succeeded in two reported cases: Grainger v Hill in 1838 and Gilding v Eyre in 1868. In a number of recent cases, its usefulness has been doubted in view of the Court's powers to control abuse of process and the overlap of the tort with the tort of malicious prosecution but they do not firmly decide that the tort no longer exists.

(2) The tort of abuse of process is committed when legal proceedings are brought for an ulterior purpose which is not within the proper scope of the legal process, e.g. for the purpose of extorting the defendant's property.

(3) The tort can be committed irrespective of whether the legal proceedings in question were determined in the defendant's favour.

(4) The bringing of legal proceedings for the purpose of achieving the natural consequences of the litigation, such as a defendant's financial ruin, is not an improper purpose.

(5) Motive and intention, e.g. the personal antagonism of a claimant towards a defendant, are in themselves irrelevant.

147 The pleaded case is set out in paragraph 97 of the Amended Statement of Claim (reproduced at [14] above), but in essence Rasia Group alleges:

Abuse of Process

1. Further or alternatively, the First Plaintiff claims that the issue, service and prosecution of the Petition caused by the Defendants, or in which the Defendants were involved, was undertaken maliciously and constituted an abuse of process in that the Defendants used the legal proceedings, or caused them to be used, for collateral purpose(s). Paragraph 96 is repeated.

148 As Dr Mitchell KC observes,[193] the plaintiffs' pleaded case relies on the facts that amount to malice on the part of the defendant for the purpose of the tort of malicious prosecution, also as disclosing the tort of abuse of process. Accordingly, he reiterates in respect of the abuse of process claim his (earlier) opinion on the pleaded case regarding malice: it 'is defective, in that the particulars of the Defendant's alleged knowledge of the Transaction Agreement are extremely thin and the evidence to support those particulars comprises bare assertion by a person with no direct knowledge of that which he asserts'.[194] Further, he says:[195]

Given that this is a tort which has never actually been successfully established since 1868, it seems to me that the Cayman Court is most unlikely to give judgment on this head of claim even if it were left undefended.

149 Mr Quest KC likewise reiterates his opinion on the merits of the pleaded case on malice and malicious prosecution, in the context of the abuse of process claim, and is of the view that 'those same facts would support a claim of abuse of process'.[196] He disagrees with Dr Mitchell KC's observation (reproduced above) that the Grand Court is unlikely to give judgment on an abuse of process claim, even if undefended. Rather, Mr Quest KC opines:[197]

1. . . . On the contrary, the paucity of authority makes it all the more unlikely, in my view, that the Grand Court would regard the claim as having no realistic prospect of success, or consider it appropriate to dismiss the claim summarily.
2. Summary dismissal would be particularly inappropriate given that the tort of abuse of process arguably performs the function of providing a remedy in cases of wrongdoing where other, more established or better defined, torts might not. Thus in Willers v Joyce, Lord Toulson said at [25]:

It is unnecessary to express a firm view on this point, but Grainger v Hill does at any rate illustrate the willingness of the court to grant a remedy, in what it regarded as novel circumstances, where the plaintiff had suffered provable loss as a result of civil proceedings brought against him maliciously and without any proper justification.

1. The tort might well be of significance in the present case if, for example, the Court found that, although the other elements were made out, the fact that the winding up order was never stayed or set aside barred any claim in malicious prosecution. In that event, a claim in abuse of process would arguably still be open to the Plaintiffs.

150 Here again, I generally prefer the opinion presented by Mr Quest KC, for the reasons outlined above when addressing malicious prosecution. I agree with his conclusion to the effect that the plaintiffs have a realistic prospect of success on their claim for abuse of process, and thus have a good arguable case and sufficient prospect of success before the Grand Court in the Cayman Islands.

151 I note Mr Quest KC's observation that the tort of abuse of process might be of significance in this case.[198] In that regard, I note that abuse of process might also assume significance if the Grand Court were of the view that for e.g., it was not proven that the defendant 'set the law in motion', but the Court was nevertheless satisfied that (as pleaded) the defendant 'was involved in' the issue, service and prosecution of the Petition.

152 In his first expert report, Dr Mitchell KC explains the constituent elements of the tort of causing loss by unlawful means as follows:[199]

a) a defendant intends to cause loss to a plaintiff;

b) in furtherance of his intention, the defendant interferes with a third party's freedom to deal with the plaintiff;

c) that interference is itself unlawful, in the sense that it gives the third party a civil claim against the defendant, or would have given the third party a claim if the third party had personally suffered loss; and

d) if the plaintiff has sustained loss.

If these elements are made out, then the plaintiff may recover damages in respect of that loss from the defendant.

153 The claim for causing loss by unlawful means, brought by the second and third plaintiffs, Rasia FZE and Mondoe Cayman Islands, is pleaded at paragraphs 99 to 103 of the Amended Statement of Claim,[200] but in essence Rasia Group alleges the 'unlawful acts', as follows:

1. The Second and Third Plaintiffs' claim that the Defendants intended to and have caused loss to Rasia and the Second and Third Plaintiffs by unlawful means, namely that the Defendants' actions in causing or being involved in causing the issue, service and prosecution of the Petition, supported by Landing Point, were unlawful acts and constitute malicious prosecution and/or abuse of process actionable at the suit of Rasia, as pleaded at paragraphs 93 to 98 above (the Unlawful Acts).

154 Dr Mitchell KC observes that the claim, as pleaded, 'is parasitic upon the contention that the pleaded facts establish the Defendant is also liable to pay damages for malicious prosecution and/ or abuse of process' and given the views he has expressed in respect of those pleaded claims, 'it follows that [his] view of the unlawful means claim is that it too looks unlikely to succeed'.[201]

155 Mr Quest KC, in his expert report, summarised his view, by stating:[202]

1. I do not think that this cause of action adds anything to the claim. It stands or falls with the claims in malicious prosecution and abuse of process.

156 Here again, I generally prefer the opinion presented by Mr Quest KC, for the reasons outlined above when addressing malicious prosecution. Noting the view

Mr Quest KC has expressed in paragraph [65] of his expert report (reproduced above), I agree with his conclusion to the effect that the plaintiffs have a realistic prospect of success on their claim for causing loss by unlawful means, and thus have a good arguable case and sufficient prospect of success before the Grand Court in the Cayman Islands.

Conspiring with intent to injure the plaintiffs by unlawful means

157 In his first expert report, Dr Mitchell KC, with reference to Clerk & Lindsell, explains that the tort of unlawful means conspiracy is made out where 'two or more persons combine and take action which is unlawful in itself with the intention of causing damage to the claimant who does incur the intended damage'.[203]

158 The unlawful means conspiracy claim, which is brought by all three plaintiffs, is pleaded at paragraphs 104 to 107 of the Amended Statement of Claim.[204] Once again the gist of the tort is 'unlawful' action. In essence, the plaintiffs again rely on the same facts that the first plaintiff pleads in support of its claim in malicious prosecution and the 'unlawful acts' pleaded under the second and third defendants' claim for damages for causing loss by unlawful means. They allege:

1. Further or alternatively, the Plaintiffs claim that the Defendants and Red Wolf and/or Mr Dauman with intent to injure the Plaintiffs conspired and combined to injure the Plaintiffs by unlawful means, namely by issuing, serving and prosecuting the Petition, or being involved in that conduct, which constitute the Unlawful Acts, as pleaded at paragraphs 93 - 98 above.

159 As Dr Mitchell KC observes in his first expert report, the claim in unlawful means conspiracy, just like the claim for causing loss by unlawful means, is 'parasitic' on the malicious prosecution claim and, in his view, 'would fail' for the same reasons.[205]

160 Mr Quest KC agrees with Dr Mitchell's statement of the elements of the tort.[206]

161 However, in his opinion, unlike the claim for causing loss by unlawful means, he is of the view that 'conspiracy does, or might, have some independent significance'.[207] He explains:[208]

1. One possible outcome of a trial is that the Plaintiffs establish claims in malicious prosecution and/or abuse of process against Mr Ransley (there is no suggestion that the claims against him have no realistic prospect of success) but not against Mr Crawford. In that event, the Plaintiffs would still have a claim in unlawful conspiracy against Mr Crawford if they could show that Mr Ransley prosecuted the proceedings with the agreement or in combination with Mr Crawford. Such a combination is pleaded in paragraph 104 of the Amended Statement of Claim and, if proved, would found an independent basis of liability for Mr Crawford (and one that would not necessarily require proof of malice on his part).

162 Here again, I generally prefer the opinion presented by Mr Quest KC, for the reasons outlined above when addressing malicious prosecution. I note the view he has expressed in paragraph [68] of his expert report,[209] that the combination pleaded, if proved, would found an independent basis of liability for Mr Crawford. I agree with his conclusion to the effect that the plaintiffs have a realistic prospect of success on their claim for causing loss by unlawful means, and thus have a good arguable case and sufficient prospect of success before the Grand Court in the Cayman Islands.

163 In order to obtain a freezing order, the second element than an applicant must show is that there is a 'reasonable possibility', not necessarily more than a 50 per cent chance, that assets may be disposed of or dealt with or diminished in value if an order is not made.[210]

164 In Deputy Commissioner of Taxation v Vasiliades,[211] Gordon J conveniently summarised the relevant principles that pertain to the risk of dissipation of assets as including the following:[212]

(1) The freezing order is not intended to operate as a form of security in advance: Cardile at [51]; Goumas v McIntosh [2002] NSWSC 713 at [23];

(2) A freezing order may be granted even though there is no evidence of the respondent's positive intention to frustrate a judgment: Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 at [10];

(3) However, there must be facts from which the Court can infer a real risk or danger that the respondent will dispose of or otherwise deal with his assets in a way that the applicant will not be able to satisfy any judgment obtained against the respondent: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319; Third Chandris Shipping Corporation v Unimarine S.A. [1979] QB 645; Hua Wang Bank Berhad at [8];

(4) Depending on the circumstances, the interests of justice may support the grant of a freezing order to prevent the dissipation of assets pending the hearing of an action, even though the risk of dissipation is less probable than not: Patterson at 325; Hua Wang Bank Berhad at [9]; and

(5) The Court may take into account the prior conduct of a respondent, the value of the prospective judgment and the assets or income available to the respondent to satisfy that judgment. Although the Court must be cautious before making freezing orders, it must be borne in mind that their very purpose is 'to ensure that assets are not alienated so as to avoid or frustrate the [C]ourt process': Deputy Commissioner of Taxation v Gashi [2010] VSC 120; (2010) 27 VR 127 at [33] citing Deputy Commissioner of Taxation v AES Services (Aust) Pty Ltd [2009] VSC 418 at [34].

165 Further, her Honour said, where a freezing order or an ancillary order is sought against a third party, the second element is different, in that the Court must be satisfied, having regard to all the circumstances, that:[213]

(1) there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied because:

(a) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

(b) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

(2) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment of the Court, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

166 The plaintiffs contend that the present case is one where the Court may infer from the totality of the evidence that there is a reasonable possibility that assets may be disposed of or dealt with or diminished in value if the freezing order is not maintained or a fresh one is not made. Counsel for the plaintiffs submitted that the test in the authorities is that an applicant needs to show a 'reasonable possibility' - not a probability - of dissipation of assets, and contended that 'the authorities also make it clear that we don't need to provide direct evidence of a risk of dissipation, it's enough for inferences to be available to be drawn. And nearly always, risk of dissipation is found through inferences'.[214] Counsel for the plaintiffs submitted that on the material before the Court the plaintiffs 'meet the test of a reasonable possibility'.[215]

167 The first of the grounds relied on by the plaintiffs as evidencing the risk of dissipation of assets is 'the complex international corporate structure'[216] adopted by Mr Crawford and his associated companies.

168 In his first affidavit, Mr Borkowski deposed to the effect that, aside from a property in Augusta, Western Australia, the only other assets of Mr Crawford of which he is aware are Mr Crawford's 'shareholdings and ultimate beneficial interest in a series of companies which ultimately hold shares in three mineral mining and exploration companies in Mongolia'.[217] The three Mongolian companies are Alagtevsh LLC, Enkhtunkh Orchlon LLC and Tsagaan Uvuljuu LLC (Mongolian mining companies), and each of them owns mining assets in Mongolia including mining tenements and exploration tenements in the South Gobi region.[218] Mr Borkowski does not know the current value of those assets.[219]

169 Mr Borkowski deposes that Mr Crawford is the 'ultimate beneficial owner' of the Mongolian mining companies, and 'his interest in these entities is held through multiple corporate layers', as is shown in the corporate structure chart (reproduced in Appendix 1 to these reasons).[220] On the corporate structure chart, ten companies are named which together comprise the third party respondents listed on the Freezing Order. The three Mongolian Companies and Terra Energy LLC (also incorporated in Mongolia) are shaded in red, and the other companies shaded in white are incorporated in Australia or Singapore.

170 According to company searches exhibited by Mr Borkowski, Mr Crawford is a 100% shareholder in each of the companies shown on the chart. He is also the sole director of each of the Mongolian mining companies and Terra Energy LLC. He is a sole director of the Australian companies, Boranup Holdings Pty Ltd and Bridge Mining Holdings Pty Limited. Of the Singaporean companies, Mr Crawford is one of three directors of Bridge Mining Pte Ltd and he is one of two directors of each of the other Singaporean companies, Tellus Marketing Pte Ltd, Terra Infrastructure Pte Ltd, and Tellus Commodities Pte Ltd.

171 When addressing the (alleged) danger that any prospective judgment debt will be unsatisfied, Mr Borkowski deposes:[221]

1. I am concerned that there is a danger that the prospective judgment of the Court (in registering and enforcing the Grand Court's judgment in the proceeding against the Defendant) will be wholly or partly unsatisfied because: (a) the Defendant absconds, or (b) the assets of the Defendant or of the entities in which the Defendant has a direct or indirect interest (including the Mongolian Companies and the assets owned by them) are removed from Australia or from a place inside or outside Australia or disposed of, dealt with or diminished in value.

45. The matters giving rise to my concerns include the following:

(a) The Defendant's wrongdoing as set out above and in the Writ;

(b) Apart from the shareholdings in the entities, the Defendant's only known asset of value in Australia is the Augusta Property;

(c) The value in the series of entities in which the Defendant has direct and indirect shareholdings is in the mining assets held by the Mongolian Companies of which the Defendant is the ultimate beneficial owner. These assets are outside of Australia and held through a complex. multi­ layered corporate structure in multiple jurisdictions. I am concerned that the structuring of the assets and entities in this way is an attempt to make them judgment-proof and remote from the Defendant;

(d) The Defendant is the sole shareholder of each of the intermediary companies, and one of only two to three directors. His position of control is such that the shares in the various intermediary companies, and his interest in the Mongolian Companies, may be readily transferred to unknown third parties. As far as I am aware, the intermediary companies in Mongolia, Singapore and Australia have no or limited business activities other than to act as intermediary holding companies on behalf of the Defendant.

172 In his third affidavit (redacted for confidentiality), Mr Crawford explained the corporate structure and its rights of rorigin. Therein, he 'vehemently disagree[s] with Mr Borkowski's assertions regarding the structuring of assets and the companies that are the First to Tenth Third Party Respondents', which he says are 'factually incorrect', and he deposes that he 'did not create the corporate structure for these companies in order to become "judgment proof"'.[222] His evidence is as follows:[223]

1. In 2020 Tao Yuan, through her business named Bridge Resources, acquired the Mongolian mining businesses operated by the Singaporean companies named Tellus Marketing Pte Ltd, Terra Infrastructure Pte Ltd and Tellus Commodities Pte Ltd (Mining Business). I was engaged as an advisor on the transaction, because of my knowledge and experience in the coal mining industry.
2. Bridge Mining Pte Ltd (Bridge Mining Singapore, the Third Third Party Respondent) was incorporated on 3 August 2020, for the purpose of owning the shares in the Mongolian companies that operated the Mining Business and to operate the Mining Business.
3. I was the Chief Executive Officer of Bridge Mining Singapore from the time of incorporation, and was responsible for managing the mining operations in Mongolia. I was appointed director of all of the Mongolian entities. Further, I was appointed as a director of Bridge Mining Singapore on 4 May 2022.
4. In October 2022, Tao Yuan agreed to transfer the Mining Business to a company that I controlled as part of a management buyout. The Mining Business had substantial debts, in circumstances where the border between Mongolia and China was closed during the COVID period by the Chinese authorities to stop the spread of COVID. Because the border was shut and we could not export coal to China, our mine as well as all mines surrounding us that used the border crossing shut down.
5. In October 2022, Bridge Mining Holdings Pty Ltd (Bridge Mining Australia, the Second Third Party Respondent) was incorporated (pp 7-9 of MC-3). Bridge Mining Australia is wholly owned by Boranup Holdings Pty Ltd, being an Australian private company that I own. I am the sole director of Bridge Mining Australia.
6. On 27 October 2022 Tao Yuan transferred the entire shareholding in Bridge Mining Singapore to Bridge Mining Australia. The effect of the share transfer was to provide for the transfer of control of the Mining Business to Bridge Mining Australia.
7. In this respect, Bridge Mining Australia was incorporated in order to hire a small Australian based team of professional staff to oversee the management of the Mining Business and to open bank accounts.
8. In these circumstances, it is wrong for Mr Borkowski to suggest that the corporate structure of the Third Party Respondents was created in order to make me 'judgment proof'. I believe that this evidence should never have been provided to this Court, and certainly not without me being given an opportunity to respond before a Court order was obtained.

173 Mr Borkowski, in his third affidavit, responded to Mr Crawford's evidence about the acquisition of the mining business in Mongolia, stating relevantly:[224]

1. At paragraphs 9 to 14 of the Third Crawford Affidavit, the Defendant deposes to the acquisition of a mining business in Mongolia. I understand this to be a reference to the sale in 2020 by TerraCom Limited, a publicly listed company (of which Craig Ransley was the founder, deputy executive chair, and chief executive), of Mongolian Assets to an entity named Bridge Resources Pte Ltd.
2. At paragraph 12, the Defendant states that the transfer of the Mongolian 'Mining Business' was pursuant to a management buyout in 2022.
3. From the initial purchase from TerraCom, based on my longstanding dealings with TerraCom, Mr Ransley and the Defendant, I believe that Tao Yuan was a nominee of the Defendant.

174 In his fourth affidavit, Mr Crawford responded to, and refuted, Mr Borkowski's assertion that Ms Yuan was his nominee, deposing as follows:[225]

1. In relation to paragraph 18 of Mr Borkowski's affidavit, Ms Tao Yuan was not my nominee for Bridge Resources Pte Limited (Bridge Resources). Bridge Resources purchased coal from the Mongolian Coal Mine previous to its ownership of the Mongolian Coal assets. Tao Yuan and her colleagues in Bridge Resources have experience in trading commodities but not operating coal mines which is why I was appointed to run the Mongolian Coal business.
2. It is my understanding that Mr Craig Wallace who at the time was a Director of TerraCom introduced Bridge Resources [to] TerraCom and in turn to the Mongolian Coal assets as he had previous business dealings with this group of people trading commodities in China. To this day I have not met Tao Yuan in person, but I have spoken to her via telephone and communicated with her by email. I have met her colleagues post Covid as they still purchase coal from the Mongolian Coal Mine. I have never been a director or shareholder in Bridge Resources Pte Limited.

175 Counsel for the plaintiffs submitted that the purported explanation given by Mr Crawford as to how he came to hold these companies, 'raises questions and concerns' in circumstances where the transfer of these entities took place between related persons.[226] The corporate structure chart shows there are multiple companies in multiple jurisdictions - Mongolia, Australia and Singapore - all of which are held by the one person, being Mr Crawford. In essence, counsel submitted that what the evidence shows is that 'the relevant Mongolian assets', or 'the relevant corporate structure', being the eight companies depicted on the corporate structure chart,[227] as lying underneath the Australian entity, Bridge Mining Holdings Pty Ltd, 'was transferred from TerraCom, a company affiliated with Mr Ransley, to Tao Yuan, who then subsequently transferred them to Mr Crawford, having been introduced by Mr Wallace, who we know is associated with Mr Ransley'.[228]

176 Counsel then sought to clarify the position and articulate more clearly what the alleged 'concern' was. He explained that:[229]

So, the source of the assets was TerraCom. The assets originated from TerraCom, a company associated with Mr Ransley. So, it moved from a Ransley affiliated company, introduced to Bridge Mining, Tao Yuan, through Mr Wallace.

177 Counsel submitted that the second transfer of the assets was in 2022, from Tao Yuan (Bridge Resources) to Mr Crawford, which took place in circumstances where Mr Borkowski believes that Tao Yuan was a nominee of Mr Crawford, whereby Ms Yuan was effectively warehousing the assets for Mr Crawford during that time.[230]

178 The 'Mr Craig Wallace' referred to above is a person that Mr Borkowski said he is familiar with. In his second affidavit, Mr Borkowski deposed:[231]

1. . . . I am familiar with Wallace. I have known him to be a business associate of Craig Ransley, having been former Deputy Chairman of Terracom Ltd (a company listed on the Australian Securities Exchange) which was founded by Craig Ransley (and who resumed as Deputy Chair and then taken the role of Chair in 2020). I became aware in 2021 that Wallace had orchestrated the development of two websites which posted personal information about my family and me. I obtained that information from IceNetworks Ltd, the website host, after bringing a proceeding in October 2021 to compel disclosure of information to me about the owner of the websites. . . .

179 Counsel for the plaintiffs submitted that 'the whole transaction smacks of transactions that are not at arm's length, but rather between business associates of one another, and having regard to the relationships between Ransley, Wallace and Crawford'.[232] Counsel identified the concern as being that 'if Mr Crawford and the other companies are prepared to be involved in such a transaction, so as to really shield the true owners, to disguise the true owners, that raises an inference that assets may well be dissipated'.[233] Further he said, the plaintiffs accept that Mr Crawford owns the assets, 'but it's really the way in which the assets came to be owned' that heightens their concern, and elaborated, as follows:[234]

It's unusual, Your Honour, to have such a complex structure of shareholdings where one person holds all the different assets. There is no reason why so many different companies are required to hold the underlying Mongolian assets in this case. Now, Mr Crawford seeks to provide an explanation of that. He says, 'I acquired them as a bundle through Tao Yuan'.

. . .

... we say that there are questions that are raised in the evidence in relation to that. And Your Honour, one of the ways in which courts infer a risk of dissipation is where there is a complex web of corporations.

. . .

It's a multinational structure, so that's the next point.

. . .

Your Honour, in our submission, the way in which the corporate structure came about in this case raises questions as to whether they were really inhouse internal transactions between associates of one another, rather than simply acquired, as is suggested by my friend's evidence, through a management buyout.

. . .

Well, Your Honour, putting oneself behind a web of companies in order to shield oneself from liability is one way in which courts can infer a risk of dissipation. Where there are so many different companies involved - it's not just one company, or a holding company that then holds another trading company. This is multiple, multiple companies in multiple jurisdictions, where the underlying assets are only held by the very bottom companies in Mongolia. So, it's the complexity of the web in our submission that raises an available inference of a risk of dissipation.

. . .

... Each company is wholly owned by the next one. And of course, the shares in each of those companies can easily be transferred; they're liquid assets that can easily be transferred within moments. It's not land that would require time to sell. Without a freezing order, Mr Crawford would simply be able to transfer the shares in one or more of those companies to another person and then put them out of our reach, and out of the reach of enforcement of a judgment. And that's why, Your Honour will see in the freezing order, we've sought in relation to the interrelated company is only a limited freeze; it's a limited freeze just held on the shares held in the next company down. It's those shares we're concerned about being transferred.

180 To make good the proposition that the Mongolian mining assets were derived from TerraCom, which was controlled by Mr Ransley, counsel for the plaintiffs referred the Court to TerraCom's ASX Announcement in June 2020, headed 'TerraCom Divests 100% of Mongolia', where it was stated:[235]

TerraCom Divests 100% of Mongolia

TerraCom Limited (TerraCom or the Company) (ASX: TER) is pleased to announce the finalisation of the sale of its Mongolian assets to Bridge Resources Pte Ltd (Bridge Resources). The sale includes the disposal of both the Baruun Noyon Uul (BNU) Coal Mine and the Enkhtunkh Orchon (EO) Coal Mine in Mongolia, along with associated legal entities (Transaction).

The assets are being sold as a going concern and therefore Bridge Resources has accepted the existing net liabilities of the entities, up to US$28 million. The total consideration received from the sale is US$3.

Bridge Resources is a Singapore coal buyer and an existing customer of BNU. They are familiar with the BNU asset and the coal produced, and are well versed in doing business in Mongolia.

Commenting on the sale, Deputy Chairman, Craig Ransley said:

TerraCom is pleased to have worked with Bridge Resources on this transaction and looks forward to a mutually prosperous working relationship between the parties in the future. Now that the sale is complete, US$28 million of net current liabilities will be removed from the Company's balance sheet and TerraCom can focus its attention on its flagship asset, Blair Athol, and the more recently acquired Universal Coal assets in South Africa.

181 Counsel observed that it appears the transfer from TerraCom to Bridge Resources (Ms Yuan) took place at a nominal consideration, being 'US$3', albeit that the Announcement mentions that Bridge Resources has accepted the existing net liabilities of the entities, up to US$28 million. He submitted that in respect of the next transfer, from Ms Yuan to Mr Crawford, 'there's no evidence of what value was paid for that next transfer in 2022', adding:[236]

Your Honour would infer that there is some significant value in these assets, nonetheless, even though they were transferred for $3. ...

There's no evidence about what the status is.

182 The second matter on which the plaintiffs rely, in combination, as support for the inference of a reasonable possibility of dissipation of assets is the allegations of serious wrongdoing against the defendant in relation to the Petition. The plaintiffs submit that:[237]

Here the evidence is that the Defendant supported the winding up petition (in the manner set out in the ASOC, as well as by preparing and affirming an affidavit reiterating his support for the petition which he was prepared to file in the Grand Court,[238]) where it was baseless to do so.

183 Counsel for the plaintiffs referred to a letter from Harneys, the lawyers acting for Rasia and Mondoe, dated 6 July 2020 that was sent by email to Carey Olsen, headed 'In the matter of Rasia - FSD81 of 2020'. Paragraphs 1 and 2 of the letter refer to the Transaction Agreement made in December 2017 between Red Wolf, Rasia and Mondoe, and states:[239]

1. ... The terms of that agreement were, relevantly for the purposes of this letter, that:

1. Red Wolf would make subscriptions-in-kind into Rasia, including subscriptions in kind of Red Wolf's shares in Kirkham International Pte Ltd (Kirkham);
2. Mondoe would transfer its shares in Rasia to Red Wolf;
3. Red Wolf was concurrently entitled to redeem up to US$500,000 worth of shares in Rasia;
4. Mr Ransley would cause Terracom Limited (Terracom) to purchase 100% of Kirkham shares (including those transferred from Red Wolf to Rasia) within 12 months at the US$39.12 million valuation Mr Ransley represented;
5. In the event that Terracom did not complete the purchase of Kirkham within 12 months, that anytime thereafter the transaction could be unwound by: (a) cancelling any non-cash transfers of participating shares and subscriptions-in-kind; (b) returning the associated Kirkham shares to Red Wolf; and (c) any redemption, if completed, be either off set against cash subscriptions or by cancelling of the redemption and return of the cash.

1. Red Wolf made subscriptions in kind of Kirkham shares on 2 January 2018 and 1 November 2018;
2. Red Wolf and its nominee HYF Limited (HYF) made a subscription in kind of a PT Borneo Prima Coal Indonesia mining royalty (the Royalty) on 1 April 2018;
3. Mondoe transferred its shares in Rasia to Red Wolf on 30 June 2018; and
4. Red Wolf redeemed US$500,000 worth of shares in Rasia on 1 July 2018.

1. The proposed purchase of Kirkham by Terracom did not take place within 12 months (or at all).
2. Accordingly, Rasia and Mondoe have exercised their right to unwind the transaction [i.e., under cl 6 of the Transaction Agreement].

1. The shares in Rasia that Red Wolf and HYF (subsequently transferred to Red Wolf's nominee Landing Pointing [sic] Ltd (Landing Point)) acquired through subscriptions in kind are cancelled and the transfer of shares to Red Wolf from Mondoe has also been cancelled. Rasia is obliged to, and is ready, willing and able, to return:

1. the Kirkham shares to Red Wolf. We enclose share transfer documents signed by Rasia.
2. the Royalty. An assignment agreement signed by Rasia will follow shortly.

1. The US$500,000 redemption made by Red Wolf has been set off against the subsequent cash subscriptions that Red Wolf made in the total amount of US$225,000, leaving a balance owed by Red Wolf to Rasia of US$275,000. Rasia requests payment of this amount within 21 days.

184 At the foot of the letter, below the signature of Harney Westwood & Riegels, it stated:[240]

Copy to: Landing Point Ltd by email to Matthew Crawford

185 Counsel for the plaintiffs observed that the letter evidences the fact that, from at least 6 July 2020, Mr Crawford knew about the cancellation of the shares that Red Wolf and Landing Point held in Rasia, but '[t]hat summary[241] was not addressed in Mr Crawford's evidence'.[242] Further, counsel submitted that the Carey Olsen invoices contain evidence that even after 6 July 2020, when the shares were unwound, 'Mr Crawford continued to instruct Carey Olsen, which then prosecuted the Petition on behalf of Red Wolf'.[243] The plaintiffs submit that while Mr Crawford sought to down play his role in relation to the Petition - contending '[t]he gist of his affidavit is he was involved only in giving factual information' - the Carey Olsen invoices 'suggest that his role was more extensive'.[244]

186 The plaintiffs submit that Mr Crawford's evidence in relation to the letter in support of the Petition sent on 1 June 2020 is likewise problematic. In Mr Crawford's second affidavit he seeks to explain why the letter was sent, stating:[245]

Letter of Support

1. On 1 June 2020, Landing Point provided a letter of support for the Petition (p 48, JB-2, Letter of Support). At the time of providing the Letter of Support, Landing Point was a shareholder of Rasia, holding approximately 6% of the participating shares. I signed the Letter of Support on behalf of Landing Point.
2. I swore an affidavit relating to factual background issues relevant to the Petition, but I am not aware whether this affidavit was filed (pp. 19-31 of MC-2).
3. Consistent with the matters set out in that affirmation, I provided the Letter of Support because I was concerned that there was a risk of dissipation of Rasia's assets.
4. In this respect, Rasia was a majority shareholder of KIPL, which controlled BPCI. KIPL was a Singapore company that was a majority shareholder in BPCI. BPCI was an Indonesian company that owned a coal mining licence in Central Kalimantan, Indonesia.
5. I was a former director of KIPL, a former president commissioner of BPCI, and a minor shareholder in KIPL. I spent considerable time at the mine site in Indonesia. It was my understanding that BPCI was acting in breach of a Loan and Stockpile Security Agreement dated 12 June 2019 between Red Wolf and BPCI (LSSA). In short, it was alleged that BPCI, under the ultimate control of Mr Borkowski, had been loading quantities of coal that were secured pursuant to the LSSA. It was due to the risk of Rasia's assets being dissipated that I provided the Letter of Support for the Petition.
6. I understood that in the event provisional liquidators were appointed, those provisional liquidators were to exercise Rasia's rights through its shareholding in KIPL, to exercise oversight of BPCI, and to ensure compliance with BPCI's contractual obligations. Further, other Rasia assets would have been protected, including its subsidiaries and investments.
7. Mr Borkowski has exhibited the Letter of Support to his 2nd affidavit in this action. The Letter of Support was not exhibited to his 1st affidavit filed with respect to the Plaintiffs' ex parte application for a freezing order.

187 Counsel for the plaintiffs pointed out that the allegation made concerning BPCI, the Indonesian company, in relation to the LSSA, is an allegation that was then rejected by the Indonesian Court, in circumstances where 'that allegation of the existence of that agreement was shown to have been inaccurate in a judgment shortly thereafter'[246] delivered on the hearing of a bankruptcy petition. Relevantly, the (translated version of the) judgment (which is exhibited to Mr Borkowski's third affidavit) states: [247]

Considering that the Petitioner's arguments [sic] between the Bankruptcy Petitioner and the Bankruptcy Petitionee are associated with the Loan and Stockpile Security Agreement dated 12 June 2019 as amended by Deed of Variation No. 01/BPCI/12-2019 dated 15 December 2019 (see Evidence P-6), wherein based on the Agreement, the Bankruptcy Petitionee has debt which is due and payable to the Bankruptcy Petitioner in the amount of USD 1,354,000 (one million three hundred and fifty-four thousand United States of America Dollars) ('Debt');

Considering that during the proceeding, the SOP Petitioner was unable to prove the original of Evidence P-6, namely Loan and Stockpile Security Agreement between PT Borneo Prima Coal Indonesia and Red Wolf Resources Limited which was made on 12 June 2019 and the original Evidence P-6 namely Deed of Variation No. 01/BPCI/12-2019 between PT Borneo Prima Coal Indonesia and Red Wolf Resources Limited dated 15 December 2019. Therefore, in accordance with Article 1888 of the Indonesian Civil Code and Jurisprudence Verdict of the Supreme Court of Indonesia No. 3609 K/Pdt/1985 where a photocopy of evidence was never submitted or the original letter never existed, such must be disregarded as evidence;

Considering that in regards to other evidence presented by the Petitioner, namely Evidence P-8 through Evidence P-10 in the form of the 1st Demand Letter from Allen & Gledhill to PT Borneo Prima Coal Indonesia dated 2 April 2020, such cannot solely stand to prove the existence of debt;

Considering that the Petitioner failed to prove its argument that there is a legal relationship, namely whether there is the existence of debt and whether the debt has been due and payable between the Petitioner and the Petitionee. Therefore, the Panel of Judges state that between the Petitioner and the Petitionee, it is unproven that there is a debt which has been due and payable so that the provision of Article 2 paragraph (1) of Law Number 37, Year 2004, on the Bankruptcy and SOP is not fulfilled to grant the Petition for Bankruptcy Declaration...

188 The next matter the plaintiffs rely on in relation to risk of dissipation is to point to what the defendant has not said in this proceeding. The plaintiffs observe that even though Mr Crawford has now filed four affidavits in this proceeding, 'in none of them does he swear [or affirm] that he does not plan to and will not dispose of his assets or the assets of the third parties, including the Mongolian companies'.[248] They submit that he has had 'opportunities to state that he wasn't going to transfer any of the assets or dissipate them, but none of those opportunities have been taken'[249] and that while that by itself would not be enough, 'it heightens the ability to make an inference about a reasonable possibility of a risk of dissipation'.[250]

189 The defendant contends that the plaintiffs' allegations do not provide palpable evidence of 'serious dishonesty'. Counsel points out that, unlike the decided cases involving 'serious dishonesty' - which permit an inference to be drawn where there is serious dishonesty involving (for e.g.) diversion of money from proper channels - '[t]here is no evidence of fraud or diversion of funds in this case'.[251] Referring to cases such as Bunnings Pty Ltd v McMillin,[252] Patterson v BTR Engineering (Aust) Ltd[253] and KTC v Singh,[254] counsel submitted:[255]

It's not enough to have an allegation. What is required is a strong prima facie case of the defendant having fraudulently misappropriated assets or of serious dishonesty.

. . . . But what we clearly don't have here is a diversion of funds. This isn't a fraud case.

We say that Justice Cosgrave was led into error in his findings due to the allegations against Mr Crawford because he found that Crawford had denied the existence of the transaction agreement and claimed that Borkowski's allegations were fabricated, which, as I've taken the Court to, Mr Crawford didn't do. Then, it said that he persisted with the winding up when he knew Borkowski was telling the truth and that he consented to the strikeout being set aside. For the reasons I've already covered, Crawford wasn't involved in any way in the strikeout and didn't instruct the petition to be issued.

190 Further, counsel observed, that with the Amended Statement of Claim having been filed, 'the plaintiffs have pivoted'[256] and the case now advanced by them is one where the allegations with respect to dishonesty are formulated in different terms:[257]

In short terms, it is said that there is evidence that Crawford supported the Petition, 'in the manner set out in the ASOC, as well as preparing and affirming an affidavit reiterating his support for the petition which he was prepared to file in the Grand Court'.

191 Counsel then addressed the plaintiffs' allegations in the Amended Statement of Claim, where the gist of the complaints made about Mr Crawford's support for the Petition is that '(i) Red Wolf and Landing Point jointly instructed Carey Olsen to issue, serve and prosecute the Petition [56]; and (ii) Landing Point provided the Letter of Support [61]'.[258] The defendant submitted that the plaintiffs' allegations 'do not provide palpable and demonstrated evidence of serious dishonesty' for the following reasons:[259]

(a) The Letter of Support was dated 1 June 2020, more than one month before Rasia purported to cancel Red Wolf's Rasia shares and issued the strike out application. Rasia's dispute concerning Red Wolf's standing arose from 6-8 July 2020. Therefore, it cannot have been dishonest for Crawford to have signed the Letter of Support.

(b) The affidavit of Crawford, which does not appear to have been filed, was affirmed on 3 July 2020.[260] Once again, this is before the strike out application was issued on 8 July 2020. Further, the affidavit was not served. Therefore, it cannot have been dishonest for Crawford to have affirmed an affidavit in advance of any knowledge by him of the Transaction Agreement (and therefore any potential issue of Red Wolf's standing) and that was not used.

(c) The Petition was issued by Red Wolf, not Landing Point. There is no evidence that Crawford had management control of Red Wolf, by which he could cause the company to issue the Petition. In relation to the Carey Olsen invoices, Crawford has provided uncontested affidavit evidence in his 2nd affidavit that:

(i) The Carey Olsen invoices were not for one legal proceeding, but for a variety of matters, including the termination of Crawford's roles at KIPL and BPCI, and the termination of Ransley from KIPL [53];

(ii) Crawford's involvement was limited to assisting with factual matters in relation to the Petition as supporting shareholder, and his involvement ended in September 2020, after a medical procedure [54]-[57];

(iii) Crawford did not provide instructions in relation to the filing or running the Petition, and did not receive advice on behalf of Red Wolf [54];

(iv) There is no evidence that either Crawford, or Landing Point, paid any invoices relating to the Petition, and the Plaintiffs have not provided any contrary evidence [58]-[61].

192 Further, the defendant submitted that there is substantial evidence that the plaintiffs' contemporaneous complaints about dishonesty in the Petition relate to Mr Ransley, and not Mr Crawford.[261]

193 Counsel for the defendant also pointed to the orders that were made in the Grand Court of the Cayman Islands when setting aside the Strike Out Decision dated 15 September 2022, when it was 'ordered by consent that Red Wolf's costs of the Petition in the sum of US$782,426 be paid from cash on hand reported by Rasia's liquidators'.[262] They submit that when this order is considered, it raises 'serious doubts concerning whether Rasia's liquidators considered Red Wolf to have been dishonest at all' because:[263]

1. If Rasia's liquidators believed that Red Wolf had acted dishonestly in pursuing the Petition, it is inexplicable that they would have agreed to Red Wolf being paid over A$1 million in costs out of the company's assets. Crawford's lawyer raised this issue in his affidavit dated 11 September 2025,[264] but Borkowski did not provide any response, seeking to explain the costs order.

194 In respect of the asserted risk of dissipation of assets said to arise from the assets of the defendant and third party respondents being held in a complex corporate structure 'in an attempt to make them judgment-proof',[265] counsel for the defendant contended that there is no evidence that Mr Crawford deliberately created any structure to avoid claims.[266] Rather, they say, the evidence given by Mr Crawford in his third affidavit (reproduced above) demonstrates that the corporate structure was the result of the acquisition of the Mining Business in 2022 from Ms Yuan, and was not 'invented improperly by Crawford or the companies that he controls'.[267] On the other hand, they submit that Mr Borkowski's belief that Ms Yuan was a nominee of Mr Crawford 'is mere "speculation and guesswork" (adopting the language in Zhen v Mo[268])'[269] and is a matter that Mr Crawford expressly denies in his fourth affidavit.

195 In respect of Mr Crawford's 'failure' to depose that he does not intend to dissipate his assets, counsel for the defendants responded by submitting that 'it's clearly implied in what Mr Crawford does dispose, that he does not intend to and will not dissipate his assets'.[270] Relevantly, in his second affidavit Mr Crawford gave evidence that he had been given formal notice of the assignment of Rasia's claims by a Deed of Assignment dated 25 March 2024 together with a Court Order approving the assignment,[271] and stated that:[272]

1. ...on receipt of this document, I understood there was a possibility of claims and that if claims were to be made, they had now been assigned to Rasia Group. I did not take any steps as a result of receiving this notification.

196 In his third affidavit, Mr Crawford elaborated further, stating:[273]

1. ... As explained in my second affidavit, in May 2025, I was given notice of assignment of potential claims by Rasia. Upon receiving this notice, I have not dissipated my assets. I consider that the reasons provided for suggesting that I would dissipate my assets are false, for the reasons specified in my second affidavit and this my third affidavit.

197 Accordingly, counsel for the defendant submitted that there is evidence before the Court that can be relied upon and as 'the burden of proving risk of dissipation rests with the plaintiffs, the defendant bears no burden of proving that he does not intend to dissipate'.[274]

198 In the circumstances, the defendant submitted that the plaintiffs have failed to provide 'cogent evidence of risk of dissipation of assets which could provide sufficient grounds for a Freezing Order'.[275]

199 In the present case, the plaintiffs placed much emphasis on Mr Crawford's 'complex corporate structure' which is effectively the repository of his interests in mining tenements and licences in Mongolia. It is unclear what is the true value of those Mongolian mining assets.

200 The evidence is that Mr Crawford acquired these (or his interest in these) Mongolian mining assets on 27 October 2022, when Ms Tao Yuan transferred the entire shareholding in Bridge Mining Singapore (her company) to Bridge Mining Australia (which is Mr Crawford's company) 'as part of a management buyout' and in circumstances where the 'Mining Business' had substantial debts. Nothing more is known about the 'management buyout' or the consideration for the transfer or the price at which it was stated to take place.

201 Ms Yuan herself had earlier acquired the Mongolian mining business in mid-2020 from persons or entities associated with Mr Crawford. At that point in time, the Mongolian mining business was being operated through three Singaporean companies, named Tellus Marketing Pte Ltd, Terra Infrastructure Pte Ltd and Tellus Commodities Pte Ltd. The source of the mining assets was TerraCom, a company associated with Mr Ransley (a director of Red Wolf at the time the Petition was lodged). The ASX Announcement made by TerraCom at the time of the sale, in June 2020, stated that:[276]

The assets are being sold as a going concern and therefore Bridge Resources has accepted the existing net liabilities of the entities, up to US$28 million. The total consideration received from the sale is US$3.

202 Ms Yuan incorporated Bridge Mining Singapore for the purpose of owning the shares in the Mongolian companies that operated the Mining Business and to operate the Mining Business. Mr Crawford was engaged as an advisor on the transaction. At some point, but it is unclear when, Ms Yuan also appointed Mr Crawford to run the Mongolian Coal business. He says this was because Ms Yuan and her colleagues only had experience in trading commodities, and did not have experience in operating coal mines.

203 The objective evidence shows that these Mongolian mining assets have been the subject of two transactions between related parties: the first took place in or around June 2020 (shortly after the Petition was lodged) and the second in October 2022 'as part of a management buyout'. It is unclear what the consideration for the transaction was in each case, having regard to the apparent indebtedness of the mining business and/or the net liabilities of the relevant entities.

204 Mr Crawford says that the corporate structure through which the Mongolian mining assets are held was not created by him, but rather was 'inherited' (so to speak) or acquired as a bundle from Ms Yuan. Mr Crawford was an advisor on the transaction in October 2022 when Ms Yuan acquired her interest, but there is no evidence that he played any role in advising on the structure that was adopted by Ms Yuan when she purchased the mining business.

205 The corporate structure adopted appears complex, but is actually very simple, in that it effectively enables the ultimate beneficial owner to transfer the whole structure that holds the Mongolian mining assets in a single stroke of the pen, thereby effectively transferring or assigning the shares. In circumstances where there is no evidence about the consideration for the sale of the mining assets to Mr Crawford on the 'management buyout' or the terms on which the sale took place, it is unclear whether the transaction documents provide any scope for the sale to Mr Crawford to later be unwound (along the lines of what took place with the Rasia shares under the Transaction Agreement), and for the Mongolian mining assets or shares to be transferred to or re-vested in Ms Yuan.

206 There are circumstances in which a freezing order may be granted even though there is no evidence of the respondent's positive intention to frustrate a judgment: Deputy Commissioner of Taxation v Hua Wang Bank Berhad.[277] But, as Kenny J observed in that case:[278]

1. The fact that assets within the jurisdiction are moveable, and that the respondent is incorporated outside the jurisdiction is not enough to warrant an inferential finding of danger of dissipation. Rather, there must be facts from which, to quote Lawton LJ in Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645 ('Chandris') at 671 'a prudent, sensible commercial' person can 'properly infer a danger of default if assets are removed from the jurisdiction'.

207 In this case, there is no direct evidence of a positive intention on Mr Crawford's part to frustrate a judgment, and on the evidence before the Court it is difficult to infer the existence of a real danger that there might be a removal of the assets from the jurisdiction, which would have the effect of frustrating the judgment. In this regard, the evidence is that on or about 21 May 2025, Mr Crawford was given notice of the assignment of Rasia's claims by the plaintiffs' solicitors, but there is no evidence that he took any steps by way of dissipation of his assets in response.

208 The present case is not one like Patterson v BTR Engineering (Aust) Ltd,[279] where the interests of justice may support the grant of a freezing order to prevent the dissipation of assets pending the hearing of an action, even though the risk of dissipation is less probable than not. As counsel for the defendant submitted:[280]

It's not enough to have an allegation. What is required is a strong prima facie case of the defendant having fraudulently misappropriated assets or of serious dishonesty.

. . . . But what we clearly don't have here is a diversion of funds. This isn't a fraud case.

209 In the circumstances, I am not satisfied that the plaintiffs have established that there is cogent evidence before the Court of a risk of dissipation of assets that would support the making of a freezing order.

210 Finally, the applicant must establish that the balance of convenience favours the continuation of the Freezing Order, or the making of a fresh freezing order in similar terms: Zhen v Mo.[281] In Bradto Pty Ltd v State of Victoria,[282] the Court of Appeal expressed the balance of convenience as the court taking the course of action with the lowest risk of injustice. The Court of Appeal stated:[283]

1. In our view, the flexibility and adaptability of the remedy of injunction as an instrument of justice will be best served by the adoption of the Hoffman approach.[[284]] That is, whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.

211 Here, the plaintiffs submit that the balance of convenience favours the continuation of the Freezing Order, or the making of a fresh freezing order in similar terms. The proposed freezing order seeks to restrain the defendant from disposing of, or dealing with, his assets worldwide (up to a limit which includes the prospective judgment debt plus interest and costs), including his real property in Australia and his interests in the third party respondents such as the Mongolian mining companies and Terra Energy LLC. The proposed freezing order would also prevent the defendant from disposing of his shares in Boranup (an Australian company of which Crawford is the sole shareholder and director) and from disposing of, or dealing with, assets which are held by a third party in accordance with his instructions.

212 The plaintiffs submit that the proposed carve-out for reasonable legal expenses 'up to a total of $500,000' and for ordinary living expenses 'up to a total of $10,000 per week' are satisfactory. They also submitted that if the Freezing Order is continued, or a fresh freezing order in similar terms is made, then 'the Plaintiffs would be amenable to paying $100,000 into their Australian solicitors' trust account, so as to provide security for the usual undertaking as to damages'.[285]

213 The plaintiffs have also put forward for consideration by the Court, as an alternative to making the proforma freezing order that prohibits dealings with assets, a form of freezing order that is framed as a confined 'notification order', along the lines of that discussed by Bond J in Parbery v QNI Metals Pty Ltd.[286]

214 In Parbery, Bond J, being satisfied that the power to make a freezing order under Rule 260A of the Uniform Civil Procedure Rules 1999 (Qld)[287] would permit the making of an order in the 'notification injunction' form, was of the view that such an order may be made in circumstances where the court is satisfied that it is appropriate and in the interests of justice to do so. His Honour stated:[288]

[62] The result is that I think that there is one overall question governing the exercise of power under r 260A, namely is a freezing order necessary for the purpose of preventing frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. In seeking to answer that question the Court should address the three considerations which have been identified as relevant to the grant of freezing orders in the exercise of the inherent jurisdiction. I should also remark that r 260A is not worded in a way which would suggest any departure from the inherent jurisdiction's focus on the effect rather than the purpose of the defendant's conduct, occurring or apprehended.

215 Here, the confined form of 'notification order' proposed by the plaintiffs is one that would require the defendant and third party respondents to give the plaintiffs a reasonable period of notice (e.g. 5 business days' notice) prior to disposing of any assets which exceed a particular monetary threshold in value (e.g. $50,000) or in the case of specified assets, such as shares in nominated companies, that they may not be disposed of, charged or otherwise dealt with by [the defendant] without notice (e.g. 5 business days') being given to the [plaintiffs'] solicitors.[289]

216 The plaintiffs submit that, in the present case:[290]

1. ... That 'notification order' would give the Plaintiffs an opportunity, after receiving notice, to apply to obtain freezing orders. It would also cause minimal, if any, interference in the affairs of the Defendant and Third Party Respondents and thereby alleviates any prejudice and the need for any security for the undertaking as to damages.

217 In the present case, the defendant and third party respondents on the other hand, contend that the balance of convenience militates against the continuation of, or making of a fresh, freezing order. They submit that the following factors are relevant:[291]

1. First, Crawford has real concerns that the Freezing Order will cause damage to the Mining Business, which is negotiating significant coal contracts.128 There is a risk that if customers learn of the Freezing Order, this may affect their intention to conduct business. As a matter of common sense, if customers learn of the Mining Business experiencing a Freezing Order for up to A$42 million, this may have an impact on their purchasing decisions.
2. In his 3rd affidavit, Borkowski suggests that, 'In my experience, a freezing order would not affect international purchasers of coal'.129 It is not explained how Borkowski would have such knowledge (unless he was the subject to a freezing order himself).
3. Second, in the exercise of its discretion, the Court will be less inclined to grant a freezing order in circumstances where it is satisfied that the plaintiff does not have the wherewithal to honour its undertaking, because of the practical difficulties the defendant is likely to encounter in enforcing an undertaking as to damages: Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961, [86].
4. Relevantly, the Plaintiffs are not incorporated in Australia. Rasia Group (P1) is incorporated in the Cayman Islands, Rasia FZE (P2) is incorporated in the United Arab Emirates, and Mondoe Company Limited (P3) is incorporated in the Cayman Islands.130 There is no evidence that any of the Plaintiffs have assets in Australia. Indeed, there is no evidence of the Plaintiffs' assets at all.
5. Third, in applying for the ex parte Freezing Order, the Plaintiffs did not offer to provide security or fortification for their undertaking as to damages. This is despite the Freezing Order providing for the restraining of Crawford, and the Third Party Respondents in Australia, Singapore and Mongolia operating the Mining Business, up to A$42 million. The Freezing Order is wide-reaching, but the Plaintiffs have now offered to provide only A$100,000 into their Australian solicitor's trust account as security for the usual undertaking as to damages. That is, on its face, woefully inadequate given the scale of the coal contracts Mr Crawford states that may be affected by the Freezing Order.
6. In summary, the balance of convenience militates against the continuation of the Freezing Order.

218 When responding to the alternative form of freezing order proposed by the plaintiffs, being the confined form of 'notification order', counsel for the defendant submitted that while it may be 'less severe', it is nevertheless a freezing order, and as such it is still a draconian interference.[292]

219 In circumstances where the risk of dissipation of assets has not been made out by the plaintiffs, the issue of balance of convenience does not fall to be determined.

220 For the reasons set out above, I am of the view that in circumstances where there has been material non-disclosure, the ex parte Freezing Order should not be continued and must be discharged.

221 Having considered all of the material presented before the Court on the plaintiffs' application for a fresh freezing order in similar terms, I am satisfied that the plaintiffs have, on each of their claims for malicious prosecution, abuse of process, causing loss by unlawful means, and unlawful means conspiracy, demonstrated a good arguable case with sufficient prospect of success before the Grand Court in the Cayman Islands. However, my finding that the plaintiffs have failed to establish that there is cogent evidence before the Court of a risk of dissipation of assets that would support the making of a freezing order is fatal to the success of the plaintiffs' application.

222 I will hear from the parties on the appropriate form of order, including as to costs.

Appendix 1: Corporate Structure Chart of Companies including Third Party Respondents

Appendix 2: Affidavit Material filed between 17 July 2025 and 19 September 2025 2020

Ex parte application seeking a freezing order (heard by Cosgrave J)

Application seeking orders for substituted service and an extension of the freezing order

Application for orders setting down a timetable for the filing of documents and a further extension of, and amendments to, the freezing order

Mention with respect to the filing of confidential material, amendment to the timetable for the filing of documents and a further extension of the freezing order;

(and further orders made on the papers dated 16 September 2025 concerning what information constitutes 'confidential information')

[1] According to the Statement of Claim that was issued by the plaintiffs in the Cayman Proceedings (on 28 May 2025):

5. RF Investment Holdings Limited (formerly known as Rasia) (Rasia) is a Cayman Islands exempted company, incorporated on 29 May 2017 and dissolved on 6 August 2024 pursuant to a petition dated 30 April 2020 issued by Red Wolf on 1 May 2020 under cause number FSD 81 of 2020 (RPJ) in the Grand Court of the Cayman Islands (the Petition).

(a) USD$22,319,217.70 on account of the loss of value of the shares in Rasia [ASOC [108(f)];

(b) legal costs of USD$1,213,433 incurred by Rasia in defending the proceedings in relation to the Petition [ASOC [108(e)] ;

(c) USD$3,211,754 in losses claimed by Rasia FZE in unpaid performance fees due to it from Rasia pursuant to an investment agreement dated 31 May 2017 [ASOC [109(b)]].

[3] Boranup Holdings Pty Ltd and Bridge Mining Holdings Pty Ltd.

[4] Bridge Mining Pte Ltd, Terra Infrastructure Pte Ltd, Tellus Marketing Pte Ltd, and Tellus Commodities Pte Ltd.

[5] Terra Energy LLC, Tsagaan Uvuljuu LLC, Enkhtunkh Orchlon LLC and Alagtevsh LLC.

[6] See the corporate structure chart provided by the plaintiffs , which is reproduced in Appendix 1 to these reasons.

[7] Orders were made on 28 August 2025 and 25 September 2025, among other things, extending the period of 14 days specified in Rule 8.08(4) of the Supreme Court (General Civil Procedure) Rules 2015 for the defendant and third party respondents to make application by summons in relation to the conditional appearances filed, to 14 October 2025 and ordering that, if such summons is filed, it shall be listed for hearing on a date to be fixed.

[8] Parbery v QNI Metals Pty Ltd [2018] QSC 107; (2018) 358 ALR 88, [55] (Bond J); [2018] QSC 107, [55].

[9] The Grand Court of the Cayman Islands is specified in the Foreign Judgments Regulations 1992 (Cth) as a 'Superior Court' for the purposes of the Foreign Judgments Act 1991 (Cth).

[10] Defendant's outline (18.09.2025) at [3].

[11] Plaintiffs' outline of submissions for ex parte freezing order application (plaintiffs' outline (18.07.2025)), at [6].

[12] Plaintiffs' outline of submissions (16.09.2025), at [3]−[4] (emphasis added in bold and italics).

[13] Affidavit of Peter Hayden dated 4 September 2025, [17] (First Hayden Affidavit); Second Affidavit of Joseph Borkowski dated 3 September 2025, [9] (Second Borkowski Affidavit).

[14] First Hayden Affidavit, at [10].

[15] First Hayden Affidavit, exhibit PH-1.

[16] The Transaction Agreement (see Ex JB-1, at 160-161) was an agreement entered into by Rasia (signed by Mr Borkowski), Red Wolf (signed by Mr Ransley) and Mondoe (signed by Mr Borkowski), in December 2017 by which it was agreed that Rasia would provide bridge financing to Kirkham International Pte Limited (a Singaporean incorporated company) in relation to the acquisition of Kirkham by Terracom Limited (an Australian incorporated company, founded by Mr Ransley, and listed on the Australian Stock Exchange (ASX)).

[17] Amended Statement of Claim, at [71(a)].

[18] Amended Statement of Claim, at [79].

[19] Amended Statement of Claim, at [76].

[21] Transcript,19.09.25, at 4 (Dr Bigos KC).

[22] The basis of the Norwich Pharmacal relief in the BVI (like in most other common law jurisdictions) is derived from the House of Lords decision in Norwich Pharmacal Company v Commissioner of Customs and Excise [1973] UKHL 6; [1974] AC 133. (See Affidavit of Norman Hau sworn on 11 September 2025, at [32])

[23] Transcript,19.09.25, at 4 (Dr Bigos KC).

[24] Transcript,19.09.25, at 4 (Dr Bigos KC).

[25] Plaintiffs' outline (16.09.2025), at [26].

[26] Transcript,19.09.25, at 5 (Dr Bigos KC).

[27] Plaintiffs' outline of submissions (16.09.2025), at [6], citing Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679. 681-2 (Isaacs J); Argyle Building Services Pty Ltd v Mark Franek [2020] VSC 166, [160] (Digby J); Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427, [8] (Habersberger J).

[28] [2020] VSC 166, [160]

[29] Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427, [8]; Brink's-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[30] Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [20].

[31] Brink's-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[32] Brink's-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[33] Brink's-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[34] Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [21]; Brink's-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192-193 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[35] Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [22].

[36] Main- Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2009] VSC 435, at [14] (Davies J).

[37] Defendant's outline (18.09.2025), at [57].

[38] Affidavit of Joseph Borkowski sworn 8 July2025, exhibit JB-1, at 91-92.

[39] Defendant's outline (18.09.2025), at [58].

[40] Affidavit of Joseph Borkowski sworn 8 July2025, Ex JB-1, 90.

[41] Defendant's outline (18.09.2025), at [61].

[42] Affidavit of Eleanor Morgan (an attorney practising in the British Virgin Islands and a partner of Mourant Ozannes, BVI, a British Virgin Islands partnership) sworn 4 September 2025

[43] Defendant's outline (18.09.2025), at [79], citing the Affidavit of Eleanor Morgan, at [25], [26].

[44] Second Affidavit of Peter Hayden sworn 15 September 2025, at [9].

[45] Affidavit of Norman Hau (an expert witness who is a legal practitioner of the British Virgin Islands and the Hong Kong Office Head of Disputes and Restructuring of Conyers Dill & Pearman) sworn on 11 September 2025

[46] The basis of the Norwich Pharmacal relief in the BVI (like in most other common law jurisdictions) is derived from the House of Lords decision in Norwich Pharmacal Company v Commissioner of Customs and Excise [1973] UKHL 6; [1974] AC 133. (See Affidavit of Norman Hau sworn on 11 September 2025, at [32])

[47] Affidavit of Norman Hau, exhibit NH-1, 263-265

[48] Defendant's outline (18.09.2025), at [81].

[49] Defendant's outline (18.09.2025), at [82] citing affidavit of Norman Hau sworn 11 September 2025, at [27], [30], [32]-[41] and [42]-[46].

[50] Second Hau affidavit, at [10]-[19].

[51] Affidavit of Joseph Borkowski sworn 8 July 2025, Ex JB-1 27-9. Also 3rd Affidavit of Matthew Crawford sworn 11 September 2025, at [6].

[52] The proposed freezing order seeks to restrain the defendant from disposing of, or dealing with, his assets worldwide (up to a limit which includes the prospective judgment debt plus interest and costs), including his real property in Australia and his interests in the third party respondents such as the Mongolian Companies that own the various mining tenements.

[53] Plaintiffs' outline of submissions for ex parte freezing order application (18.07.2025) (plaintiffs' outline (18.07.2025)), at [6].

[54] Borkowski Affidavit, [8], [17].

[55] Affidavit of Norman Hau sworn 11 September 2025, at [30].

[56] Mr Crawford's evidence is that Mr Craig Wallace replaced him when he retired as a director of Red Wolf in August 2019 and it is likely that Mr Wallace was a director of Red Wolf when the Petition was filed.

[57] Affidavit of Joseph Borkowski sworn 8 July2025, Ex JB-1, 93-116 at 94.

[58] Plaintiffs' outline (16.09.2025), at [16].

[59] Plaintiffs' outline (16.09.2025), at [3] (emphasis in bold italics added).

[60] Affidavit of Peter Hayden dated 4 September 2025, [17] (First Hayden Affidavit); Second Affidavit of Joseph Borkowski dated 3 September 2025, [9] (Second Borkowski Affidavit).

[61] Defendant's outline (18.09.2025), at [64].

[62] Defendant's outline (18.09.2025), at [110].

[63] [2015] VSC 59, at [4] (Choice Planning).

[64] Nowadays, O 37A of the Supreme Court (General Procedure) Rules 2025.

[65] Rule 37A.06 makes clear that the Court also retains its inherent jurisdiction to make a freezing order or an ancillary order.

[66] [2019] VSCA 164 (Rozenblit).

[67] [2019] VSCA 164, [10] (McLeish and Niall JJA), citing Ketchum International plc v Group Public Relations Holdings Ltd [1996] 4 All ER 374, 381 (Stuart‑Smith LJ, with Peter Gibson and Ward LJJ agreeing); Tomasetti v Brailey [2012] NSWCA 6; Aspermont Ltd v Lechmere Financial Corporation [2002] WASCA 52; (2002) 27 WAR 1; Sopov v Kane Constructions Pty Ltd [2009] VSCA 216.

[68] [2019] VSCA 164, [18] (McLeish and Niall JJA).

[69] [2019] VSCA 164, [19] (McLeish and Niall JJA).

[70] [2015] HCA 36; (2015) 258 CLR 1 (PT Bayan Resources).

[71] [2015] HCA 36; (2015) 258 CLR 1, 20-21 [50] (French CJ, Kiefel, Bell, Gageler and Gordon JJ). See also the joint judgment of Keane and Nettle JJ (at [64]-[78] where their Honours discuss 'The doctrinal basis of freezing orders'.

[72] cf Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; (2013) 84 NSWLR 141 at 155 [53].

[73] cf Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 616.

[74] Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft, mbH & Co KG ('The Niedersaschen') [1983] 2 Lloyd's Rep 600, 605; [1984] 1 All ER 398, 404 (Mustill J).

[75] [2025] VSCA 164, at [90] (McLeish, Walker and Lyons JJA) .

[76] [2025] VSCA 164, at [89] (emphasis in bold italics added).

[77] See 'The 'new' pleaded basis for the claims against Mr Crawford' at [15]-[17] above.

[78] Affidavit of Hector George Robinson KC sworn on 10 July 2025 (1st Robinson Affidavit), at [15],

[79] Affidavit of Hector George Robinson KC sworn on 10 July 2025 (1st Robinson Affidavit), at [45],

[80] 1st Robinson Affidavit at [14] and [16].

[82] 15-13 Clerk & Lindsell on Torts 24th Ed page 1035 of HGR-1; Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd, [2013] UKPC 17. A copy appears at pages 575 to 645 of

[83] Second Robinson Affidavit, at [10].

[84] Second Robinson Affidavit, at [13]-[16] (emphasis in bold italics added).

[85] This appears to be an error - I cannot locate where Mr Robinson KC has expressed any opinion regarding 'fraudulent misrepresentation' - and no claim is made against Mr Crawford for 'fraudulent misrepresentation'- see Amended Statement of Claim at [1].

[86] 1st Robinson Affidavit at [36]-[39].

[87] 23-108 Clerk & Lindsell on Torts 24th Ed page 1045 of HGR-1; Baxendale-Walker v Middleton [2011] EWHC 998 at para [60]. A copy appears at pages 508 to 551 of HGR-1

[88] As noted earlier, Dr Mitchell KC is a King's Counsel called to the Bars of England and Wales and the British Virgin Islands, and practises mainly in commercial law. He is also a Deputy High Court Judge sitting in the King's Bench Division of the London Circuit Commercial Court.

[89] As noted earlier, Mr David Quest KC is an expert witness who is a King's Counsel practising in England and the Cayman Islands, and a Deputy High Court Judge sitting in the King's Bench Division of the English High Court).

[90] Quest KC expert report, at [13].

[91] Quest KC expert report, at [15].

[92] Mitchell KC second expert report, at [7].

[93] Quest KC expert report, at [16].

[94] The plaintiffs' counsel observe that while Mitchell KC uses the term 'claimant' in keeping with English usage, the term 'plaintiff' is used both in Cayman and in Victoria, and accordingly, the term 'plaintiff' is used in their submissions.

[95] [2.2]-[2.3], 1st Mitchell Report, referring to Clerk & Lindsell on Torts, 24th ed at [15-13] and Willers v Joyce [2018] EWHC 3424 at [187].

[96] 1st Robinson Affidavit at[17], Quest KC expert report, at [21].

[97] [2018] EWHC 3424 (Ch).

[98] Mitchell KC first expert report, at [2.7.6].

[99] Mitchell KC first expert report, at [2.14]-[2.15].

[100] Second Robinson Affidavit at [14].

[101] Mitchell KC first expert report, at [2.21].

[102] Mitchell KC first expert report, at [2.22].

[103] Quest KC expert report, at [26].

[104] Quest KC expert report, at [27].

[105] Quest KC expert report, at [29].

[106] Mitchell KC first expert report, at [2.14] and [2.22].

[107] Quest KC expert report, at [31].

[108] Quest KC expert report, at [35].

[109] Mitchell KC first expert report, at [2.15].

[110] Quest KC expert report, at [35].

[111] Quest KC expert report, at [36]-]37].

[112] Quest KC expert report, at [36]-[37].

[113] Second Borkowski affidavit, Ex JB-2, at 48 (emphasis in bold italics added).

[114] Second Crawford affidavit, at [22]-[31] (emphasis in bold italics added).

[115] Fourth Crawford affidavit, at [8]-[11].

[116] A copy of the First Affirmation of Matthew Crawford appears at Ex MC-2, at 1-3.

[117] Mitchell KC second expert report, at p 3 (emphasis in bold italics added).

[118] Mitchell KC second expert report, at [17] (emphasis in bold italics added).

1. In my view, the facts pleaded in the [Amended] Statement of Claim (at paragraphs 12, 56, 61, 69A, 94) if proved, would establish that Mr Crawford was a prosecutor of the proceedings, or at least that there is a realistic prospect of that being established at trial.

[120] Second Borkowski affidavit, Ex JB-2 71-192.

[121] Second Borkowski affidavit, at [17].

[122] Second Crawford affidavit, [49]-[53].

[123] Third Borkowski affidavit, at [14].

[124] Defendant's outline (18.09.2025) at [130].

[125] Defendant's outline (18.09.2025) at [131]-[133].

[126] Mitchell KC second expert report, at [18]-[21].

[127] Mitchell KC second expert report, at [24]-[25].

[128] Transcript 22.09.2025, at 160-162 (Dr Bigos KC).

[129] Hodgson v Amcor Ltd_; Amcor Ltd v Barnes (No 2_) [2011] VSC 204, at [58]-[63] (Vickery J).

[130] [2011] VSC 204, at [58]-[62].

[131] [1994] FCA 1479; (1994) 13 ACLC 55 (extract); [1994] FCA 1479; 126 ALR 58 at 68.

[132] (1985) 1 Qd R 275.

[133] Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd, ibid at [55]-[57].

[134] Transcript 22.09.2025, at 178 (Ms Thiagarajan SC).

[135] Defendant's outline (18.09.2025) at [136].

[136] Amended Statement of Claim, [62].

[137] Amended Statement of Claim [70]-[71].

[138] Amended Statement of Claim, [75].

[139] Amended Statement of Claim, [78]-[79].

[140] Amended Statement of Claim, [79].

[141] Mitchell KC first expert report, at [2.30].

[142] Mitchell KC first expert report, at [2.26]-[2.27], [2.30].

[143] Mitchell KC first expert report, at [2.31] (emphasis in bold italics added).

[144] Quest KC expert report, at [39]-[41].

[145] Quest KC expert report, at [42].

[146] Quest KC expert report, at [42]-[45].

[147] Quest KC expert report, [43]-[44], as set out above.

[148] Mitchell KC second expert report, at [28]-[30] (emphasis in bold italics added).

[149] Plaintiffs' outline (16.09.2025) at [35].

[150] [2018] EWHC 3424 (Ch) at [56].

[151] Mitchell KC first expert report, at [2.33]-[2.34].

[152] Mitchell KC first expert report, at [2.36]-[2.38].

[153] Mitchell KC first expert report, at [2.39].

[154] Mitchell KC first expert report, at [2.39]-[2.40].

[155] 1st Robinson Affidavit, at [24].

[156] Affidavit of Joseph Borkowski sworn 23 May 2025 in support of the application in the Grand Court of the Cayman Islands for leave to serve the Writ out of the jurisdiction (Leave Affidavit), at [64]; 1st Robinson Affidavit p 42, 59, JB-1 at p 29, 46.

[157] Mitchell KC first expert report, at [2.42].

[158] Mitchell KC first expert report, at [2.43]-[2.45] (emphasis in bold italics added).

[159] A copy of the First Affirmation of Matthew Crawford appears at Ex MC-2, at 1-3.

[160] Mitchell KC first expert report, at [2.46].

[161] Mitchell KC first expert report, at [2.47].

[162] Defendant's outline (18.09.2025), at [145].

[163] Quest KC expert report, at [46], citing Mitchell KC first expert report, at [2.32]-[2.37].

[164] Quest KC expert report, at [47].

[165] Quest KC expert report, at [48]-[50] (emphasis in bold italics added).

[166] Mitchell KC first expert report, at [2.39.1]-[2.39.3], [2.44], [2.45], [2.46] and [2.47] (reproduced above at [123]-[126]).

[167] Quest KC expert report, at [52].

[169] Quest KC expert report, at [53].

[170] Quest KC expert report, at [54].

[171] Quest KC expert report, at [56]-[57] (emphasis in bold italics added).

[172] Quest KC expert report, at [58].

[173] Mitchell KC second expert report, at [35]-[39].

[174] Mitchell KC first expert report, at [2.48]-[2.49].

[176] Mitchell KC first expert report, at [2.50].

[177] Defendant's outline (18.09.2025), at [148].

[178] Mitchell KC first expert report, at [2.51].

[179] Mitchell KC first expert report, at [2.52]-[2.53].

[180] Quest KC expert report, at [59].

[181] First Borkowski affidavit, Ex JB-1, at 19-24.

[182] First Borkowski affidavit, Ex JB-1, at 25-26.

[183] Mitchell KC first expert report, at [2.55].

[185] Quest KC expert report, at [60].

[186] Quest KC expert report, at [69].

[187] Mitchell KC first expert report, at [6.4].

[188] BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 3) [2013] WASC 239; (2013) 276 FLR 273, [88] (Le Miere J). The judgment was affirmed by the High Court in PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36; (2015) 258 CLR 1.

[189] [2025] VSCA 164.

[190] [2025] VSCA 164, at [89] (McLeish, Walker and Lyons JJA).

[191] [2025] VSCA 164, at [90] (McLeish, Walker and Lyons JJA).

[192] Mitchell KC first expert report, at [3.1]-[3.2] (emphasis in bold italics added).

[193] Mitchell KC first expert report, at [3.4].

[194] Mitchell KC first expert report, at [3.5].

[196] Quest KC expert report, at [61].

[197] Quest KC expert report, at [62]-[64].

[198] Quest KC expert report, at [64].

[199] Mitchell KC first expert report, at [4.1], referring to Clerk & Lindsell on Torts, 24th ed at [23-80] and OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1.

[200] Reproduced above at [14], p 13-14.

[201] Mitchell KC first expert report, at [4.2].

[202] Quest KC expert report, at [65].

[203] Mitchell KC first expert report, at [5.1], referring to Clerk & Lindsell on Torts, 24th ed at [23-108].

[204] Reproduced above at [14], p 14.

[205] Mitchell KC first expert report, at [5.2].

[206] Quest KC expert report, at [66].

[207] Quest KC expert report, at [67].

[208] Quest KC expert report, at [68].

[210] Rozenblit v Vainer [2019] VSCA 164, [19(4)].

[211] [2014] FCA 1250 (Vasiliades).

[212] [2014] FCA 1250, at [36].

[213] [2014] FCA 1250, at [37].

[214] Transcript 19.09.2025, at 34 (Dr Bigos KC).

[215] Transcript 19.09.2025, at 42 (Dr Bigos KC).

[216] Transcript 19.09.2025, at 34 (Dr Bigos KC).

[217] First Borkowski affidavit, at [36].

[218] See ASX Announcement issued by TerraCom Limited dated 12 June 2020, First Borkowski affidavit, Ex JB-1, at 232-233.

[219] First Borkowski affidavit, at [36].

[220] First Borkowski affidavit, at [37].

[221] First Borkowski affidavit, at [44]-[45] (emphasis in bold italics added).

[222] Third Crawford affidavit, at [8].

[223] Third Crawford affidavit, at [9]-[16] (emphasis in bold italics added)].

[224] Third Borkowski affidavit, at [16]-[18].

[225] Fourth Crawford affidavit, at [12]-[13] (emphasis in bold italics added)].

[226] Transcript 19.09.2025, at 43, 50 (Dr Bigos KC).

[227] See Appendix 1 to these Reasons.

[228] Transcript 19.09.2025, at 37 (Dr Bigos KC).

[229] Transcript 19.09.2025, at 40 (Dr Bigos KC).

[230] Transcript 19.09.2025, at 46 (Dr Bigos KC).

[231] Second Borkowski affidavit, at [18].

[232] Transcript 19.09.2025, at 46 (Dr Bigos KC).

[233] Transcript 19.09.2025, at 47 (Dr Bigos KC).

[234] Transcript 19.09.2025, at 47-50 (Dr Bigos KC).

[235] First Borkowski affidavit, Ex JB-1 at 232.

[236] Transcript 19.09.2025, at 52 (Dr Bigos KC).

[237] Plaintiffs' outline (16.09.2025), at [48].

[238] Second Crawford Affidavit, MC-2, pp. 19-31.

[239] Third Borkowski affidavit, Ex JB-3 at 62-63.

[240] Third Borkowski affidavit, Ex JB-3 at 63.

[241] i.e. of the relevant provisions of the Transaction Agreement, as set out in the letter from Harneys.

[242] Transcript 19.09.2025, at 53 (Dr Bigos KC).

[243] Transcript 19.09.2025, at 53 (Dr Bigos KC).

[244] Transcript 19.09.2025, at 55 (Dr Bigos KC).

[245] Second Crawford affidavit, at [25]-[31].

[246] Transcript 19.09.2025, at 57 (Dr Bigos KC).

[247] Third Borkowski affidavit, Ex JB-3 at 105 (emphasis in bold italics added).

[248] Transcript 19.09.2025, at 57 (Dr Bigos KC). See also plaintiffs' outline (16.09.2025), at [46].

[251] Defendant's outline (18.09.2025), at [162].

[252] [2005] VSC 131, [6] (Kaye J).

[253] 1989) 18 NSWLR 319, 325-326 (Gleeson CJ).

[254] [2018] NSWSC 1510 (White J).

[255] Transcript 22.09.2025, at 148 (Ms Thiagarajan SC).

[256] Transcript 22.09.2025, at 148 (Ms Thiagarajan SC).

[257] Defendant's outline (18.09.2025), at [166], citing plaintiffs' outline (16.09.2025) at [48].

[258] Defendant's outline (18.09.2025), at [166].

[259] Defendant's outline (18.09.2025), at [168] (emphasis in original).

[260] [11], 4th [Crawford] affidavit

[261] Defendant's outline (18.09.2025), at [169],

[262] Defendant's outline (18.09.2025), at [170]; Orders dated 15 September 2022 in the Grand Court, pp 211, JB-1; [29], 1st Borkowski affidavit.

[263] Defendant's outline (18.09.2025), at [171].

[264] [4]-[5], 2nd Witt affidavit.

[265] [45(c)], 1st Borkowski affidavit.

[266] Defendant's outline (18.09.2025), at [172].

[267] Defendant's outline (18.09.2025), at [176].

[268] A reference to Zhen v Mo [2008] VSC 300, [22]-[30], where J Forrest J summarised the principles for the grant of freezing orders.

[269] Defendant's outline (18.09.2025), at [177].

[270] Transcript 22.09.2025, at 153 (Ms Thiagarajan SC).

[271] Second Crawford affidavit, at [45]-[47].

[272] Second Crawford affidavit, at [46].

[273] Third Crawford affidavit, at [6].

[274] Transcript 22.09.2025, at 154 (Ms Thiagarajan SC).

[275] Defendant's outline (18.09.2025), at [178].

[276] First Borkowski affidavit, Ex JB-1 at 232.

[277] [2010] FCA 1014 at [10] (Kenny J).

[278] [2010] FCA 1014 at [12].

[279] (1989) 18 NSWLR 319, 325-326 (Gleeson CJ).

[280] Transcript 22.09.2025, at 148 (Ms Thiagarajan SC).

[281] [2008] VSC 300, [27].

[282] [2006] VSCA 89; (2006) 15 VR 65.

[283] [2006] VSCA 89; (2006) 15 VR 65 at [35].

[284] [The 'Hoffman approach' is a reference to Hoffman J's judgment in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670]

[285] Plaintiffs' outline (16.09.2025), at [51].

[286] [2018] QSC 107; (2018) 358 ALR 88, 101-102 [55]; [2018] QSC 107, [55].

(1) The court may make an order (a freezing order) for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.

(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

[288] [2018] QSC 107; (2018) 358 ALR 88, 103 [62]; [2018] QSC 107, [62].

1. [289] Adapting the form of wording in Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636. See also the later case of Vitterra, which used the form of wording 'disposed of, dealt with, or diminished in value'.

[290] Plaintiffs' outline (16.09.2025), at [52].

[291] Defendant's outline (18.09.2025) at [181]-[186].

[292] Transcript 22.09.2025, at 157 (Ms Thiagarajan SC), citing Viterra BV v Shandong Ruyi Technology Group Co Ltd [2022] FCA 215 at [28] per Stewart J and Candy v Holyoake [2017] 2 All ER (Comm) 513, [2017] EWCA Civ 92 at [35]- [36] (Gloster VP, Jackson LJ agreeing).

[293] Defendant's material in italics.