RAB's Plumbing Services Pty Limited; in the matter of Elite Civil Management Pty Ltd v Elite Civil Management Pty Ltd

Federal Court of Australia|2014-03-20|Before: Jagot J, Flick J

REASONS FOR JUDGMENT (EX TEMPORE) 1 On 7 March 2014, there was electronically filed in this Court an Originating Process in which the First Plaintiff was named as Rab's Plumbing Services Pty Limited. Proceeding number NSD 247/2014 was allocated to this matter and was assigned to Jagot J as Docket Judge. There were a number of other plaintiffs identified in the schedule to that Originating Process. The Defendants to that proceeding were Elite Civil Management Pty Limited, Elite Civil Group Pty Limited and SSI Recruitment Pty Limited. 2 The proceeding came before Jagot J on 11 March. On that date, there was filed in Court a further Originating Process in which the Plaintiff was Sydney Trucks & Machinery Centre Pty Limited. This matter was assigned proceeding number NSD257/2014. On 11 March 2014, her Honour made orders pursuant to s 472(2) of the Corporations Act 2001 (Cth), appointing provisional liquidators to each of those three companies. 3 Now before the Court is an "Interlocutory process" - and not an "Interlocutory Application" - in which the provisional liquidators are the Applicants seeking orders pursuant to Div 7.4 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules 2011"). That application and the supporting affidavits were filed in proceeding number NSD 247/2014. Freezing orders are sought against Mr Vince Santoro as First Respondent, Ms Rene Santoro as Second Respondent, Mr Adrian Santoro as Third Respondent and Ms Danielle Santoro as Fourth Respondent. Mr Vince Santoro is the controlling mind of each of the corporate defendants and a director of SSI Recruitment Pty Limited. Ms Rene Santoro, his wife, is a director of Elite Plant Hire Pty Limited. Mr Adrian Santoro is a director of Elite Civil Group Pty Limited. Ms Danielle Santoro is a minor and is not a director of any of the corporate defendants. 4 Leave is granted to file in Court the Interlocutory Process, together with the affidavit of Mr Daniel Friskin sworn on 19 March 2014 (together with the exhibit to that affidavit) and a further affidavit of Mr Mark Bannister sworn on 19 March 2014. Mr Bannister, it may be noted, has occupied since June 2013 the position of financial controller of the Elite Group of companies. 5 The making of an order pursuant to Div 7.4 of the Federal Court Rules involves the exercise of a discretion on the part of the Court: see Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321 per Gleeson CJ. The purpose of making such an order, it is well-recognised, was said by Stone J in Elderslie Finance Corporation Limited v Newpage Pty Limited [2007] FCA 61 at [14] to be to: …protect the processes of the court from abuse not to provide security for the applicant for such an order... In exercising the discretion, it must necessarily be recognised that the making of an order is "a substantial encroachment on a defendant's basic right and freedom to deal with property": see KGL Health Pty Ltd v Mechtler [2007] FCA 1410 at [12] per Tamberlin J. 6 The general principles to be applied when exercising the discretion have also been frequently canvassed and have been conveniently summarised by Kenny J in Deputy Commission of Taxation v Hua Wang Bank Berhad [2010] FCA 1014, (2010) 80 ATR 449. Her Honour was there dealing with the predecessor provision to Div 7.4, namely, order 25A of the now repealed Federal Court Rules. But, for present purposes, the Rules are in substantially the same terms. Her Honour summarised the general principles as follows: [8] In substance, O 25A re-states the current judge-made law with respect to freezing orders. A brief reference to the cases is useful to show how, and in what circumstances, the courts have previously thought it appropriate to make such an order. The cases speak of the need for the applicant to establish, first, a prima facie cause of action against the respondent, and, secondly, a "danger" or "real risk" that a judgment debt will go unsatisfied because assets are removed from the jurisdiction or disposed of in some way: see Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 ('Patterson') at 321-2 per Gleeson CJ, with whom Meagher JA generally agreed; and Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1983] 1 WLR 1412 ('Ninemia Maritime') at 1422-3. In the latter case (at 1422), the Court of Appeal in England described the test as "whether, on the assumption that the plaintiffs have shown at least 'a good arguable case', the court concludes, on the whole of the evidence then before it, that the refusal of a Mareva injunction would involve a real risk that a judgement or award in favour of the plaintiffs would remain unsatisfied". [9] 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 per Gleeson CJ; Peter Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders (LexisNexis Butterworths, Australia, 2008) ('Biscoe') at p 209 [6.17], citing Patterson, Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 ('Glenwood') at 54, and Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [14] per Kiefel J referring to Victoria University of Technology v Wilson [2003] VSC 299 at [36]. As Redlich J noted in the last-mentioned case (at [36]), "[w]hat must be established is a sufficient likelihood of risk which in the circumstances of a particular case justifies an asset preservation order". [10] A freezing order may be granted even though there is no evidence of the respondent's positive intention to frustrate a judgment: see National Australia Bank Ltd v Bond Brewing Holdings Ltd (1990) 169 CLR 271 at 277 per Mason CJ, Brennan and Deane JJ; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 394 [26]; Glenwood at 53 per Young CJ; and Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 ('Riley McKay') at 276. In Riley McKay at 276, the Court of Appeal of the New South Wales Supreme Court said, and I accept, that the jurisdictional basis for relief of this kind "is directed to dispositions … which are intended to frustrate, or have the necessary effect of frustrating, the plaintiff in his attempt to seek through the court a remedy for the obligation to which he claims the defendant is subject" (emphasis added). In this case, there is no direct evidence of positive intention on the respondents' part to frustrate a judgment. Nonetheless, the Commissioner argues that there is a danger of the removal of assets from the jurisdiction, which would have the effect of frustrating any judgment; (2010) 80 ATR 449, 453. 7 It is r 7.35 which now requires, inter alia, that the Court be satisfied that the applicant has a good arguable case, and that the case is justiciable in this Court. Rule 7.35(4) refers in particular to the court being satisfied that "there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied" for one or other of a number of reasons. 8 In addition to the general principles summarised by Kenny J, reference may also be made to the following observations of Edmonds J in Curtis v NID Pty Limited [2010] FCA 1072 as to what constitutes a "good arguable case", namely: [6] Though the respondents have filed a defence in opposition to the applicant's statement of claim in the substantive proceedings, they do not dispute that he has a 'good arguable case'. The threshold is a very low one: in Ninemia Maritime Corp v Trave Schiffahrtsgesselschaft mbH und Co KG (The Niedersachsen) [1983] Com LR 234 at 235 (affirmed on appeal: [1983] 1 WLR 1412), Mustill J (as his Lordship then was) said that a good arguable case is one 'which is more than barely capable of serious argument, and yet not necessarily one the judge considers would have better than a fifty per cent chance of success'. This test has since been applied in numerous domestic cases: Errigal Ltd v Equatorial Mining Ltd [2006] NSWSC 953 (White J); Pure Logistics Pty Ltd v Scott [2007] NSWSC 595 (McDougall J); Westpac Banking Corporation v McArthur [2007] NSWSC 1347 (Barrett J). His Honour there also addressed the content of the term "danger" as follows: [9] 'Danger', however, is not defined. In some cases, judges have employed the phrase 'real risk' to identify the degree to which a plaintiff must demonstrate that a prospective judgment will go unsatisfied: see, for example, Cardile at [122] per Kirby J; Ninemia [1983] 1 WLR 1412 at 1422 per Kerr LJ. In others, it has been said that an applicant must establish 'a sufficient likelihood of risk which in the circumstances of a particular case justifies an asset preservation order': Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [14] per Kiefel J, approving Victoria University of Technology v Wilson [2003] VSC 299 at [36] per Redlich J. There is even a third view, namely, that the plaintiff establishes 'a sufficient apprehension of dissipation of the … assets': Vaughan v Duncan [2007] NSWSC 811 at [5] per Hamilton J. [10] What is settled, however, is that solid evidence of a danger of dissipation or disposal of assets be produced. The relevant test was enunciated by Brereton J in Finn v Carelli [2007] NSWSC 261 at [4], where his Honour referred to the NSW Court of Appeal's decision in Frigo v Culhaci [1998] NSWCA 88: 'It is not necessary for an applicant to show that the respondent has a positive intention of evading a judgment, and it is sufficient to show that the course on which the respondent proposes to embark is, objectively speaking, calculated to have that effect. But as the Court of Appeal made clear in Frigo v Culhaci, an applicant must establish, by evidence and not mere assertion, that there is a real danger that by reason of the respondent absconding or otherwise dealing with assets, the applicant will not be able to have its judgment satisfied. While acknowledging that there has been much debate as to the precise degree to which that has to be shown, the Court emphasised that mere assertion that the defendant was likely to put assets beyond the plaintiff's reach was inadequate, for which the Court cited Ninemia Maritime Corp v Trave GmbH & Co Kg (The Niedersachsen) [1984] 1 All ER 298 as well as Patterson v BTR Engineering.' 9 In the application now before the court, the court can proceed upon the basis that it was appropriate for a provisional liquidator to have been appointed. The court can also proceed upon the basis that the material set forth in Mr Bannister's Affidavit and Mr Friskin's Affidavit provide a sufficiently certain factual basis for the court to be satisfied that unless the orders as sought are made, the assets of one or other of the companies now in provisional liquidation will be dissipated. There is, for example, in the Affidavit of Mr Friskin, evidence that Mr Vincent Santoro, the First Respondent, approached the Commonwealth Bank on 18 March 2014 and effected the transfer of a sum of money in excess of $30,000 from the account of Elite Civil Group Pty Limited, and that such moneys may well have been deposited to an account in the name of Ms Danielle Santoro, the Fourth Respondent. By the end of February 2014 over $130,000 had been transferred and of this amount $100,000 had been withdrawn in cash. There is also evidence given by Mr Bannister as to moneys being transferred from the account of Elite Civil Group Pty Limited and transferred into one of approximately 25 debit cards held in the name of Ms Rene Santoro, the Second Respondent between July 2012 and March 2014. There is no evidence before the court as to moneys being transferred to the benefit of the Third Respondent, Mr Adrian Santoro. Mr Anderson, who appears for the liquidators, frankly accepts that the only reason to include him is that he is a director of Elite Civil Group Pty. 10 Orders are made in the form annexed hereto. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 20 March 2014 Annexure A Federal Court of Australia No. NSD247/2014 District Registry: SYDNEY Division: General In the Matter of: ELITE CIVIL MANAGEMENT PTY LTD A.C.N. 162 085 234 elite civil group pty ltd A.C.N. 144 808 775 ssi recruitment pty ltd A.C.N. 162 084 871 RAB'S PLUMBING SERVICES PTY LIMITED A.C.N. 102 773 820 First Plaintiff AND OTHERS named in the schedule ELITE CIVIL MANAGEMENT PTY LIMITED A.C.N. 162 085 234 First Defendant AND OTHERS named in the schedule TO: VINCE SANTORO (A.K.A. VINCENZO SANTORO and VINCENT SANTORO) This is a 'freezing order' made against you on 20 March 2014 by Justice Flick at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order. THE COURT ORDERS: INTRODUCTION

(a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and interlocutory process is abridged and service is to be effected by emailing a copy of the interlocutory process, together with the affidavits of Daniel Frisken sworn on 20 March 2014 and Mark Bannister sworn on 19 March 2014 to Detective Bird of the New South Wales Police by 6pm on 20 March 2014.
Subject to the next paragraph, this order has effect up to and including 9.30am on 25 March 2014 ('the Return Date'). On the Return Date at 9.30 am there will be a further hearing in respect of this order before Justice Jagot.
Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
In this order: (a) 'applicant', if there is more than one applicant, includes all the applicants; (b) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; (c) 'third party' means a person other than you and the applicant; (d) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.
(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

FREEZING OF ASSETS 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia. 7. For the purposes of this order, (1) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the assets of the businesses known as Elite Civil Management Pty. Limited (A.C.N. 162 085 264), Elite Civil Group Pty. Limited (A.C.N. 144 808 775), Elite Plant Hire Pty. Limited (A.C.N. 119 806 718) and SSI Recruitment Pty. Limited (A.C.N. 162 804 871) or, if any or all of the assets have been sold, the net proceeds of the sale ; and (ii) any money in any bank account held or controlled by you, or to which you have access. (2) the value of your assets is the value of the interest you have individually in your assets.

EXCEPTIONS TO THIS ORDER 8. This order does not prohibit you from: (a) paying up to $2,000 a week on your ordinary living expenses; (b) paying up to $10,000 on your reasonable legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 9. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. COSTS 10. The costs of this application are reserved to the Court hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 11. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 12. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (i) affidavits (or draft affidavits); (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B

AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Mark Bannister 19 March 2014 (2) Daniel Frisken 20 March 2014

NAME AND ADDRESS OF APPLICANT'S LAWYERS The applicant's lawyers are: ERA Legal Commercial, Insolvency & Litigation Lawyers Level 8, 45 Clarence Street SYDNEY NSW 2000 Telephone 02 9324 5300 Facsimile 02 9324 5322 Contact: Daren J Anderson

PENAL NOTICE TO: VINCE SANTORO (A.K.A. VINCENZO SANTORO and VINCENT SANTORO) IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. Annexure B Federal Court of Australia No. NSD247/2014 District Registry: SYDNEY Division: General In the Matter of: ELITE CIVIL MANAGEMENT PTY LTD A.C.N. 162 085 234 elite civil group pty ltd A.C.N. 144 808 775 ssi recruitment pty ltd A.C.N. 162 084 871 RAB'S PLUMBING SERVICES PTY LIMITED A.C.N. 102 773 820 First Plaintiff AND OTHERS named in the schedule ELITE CIVIL MANAGEMENT PTY LIMITED A.C.N. 162 085 234 First Defendant AND OTHERS named in the schedule TO: RENE SANTORO This is a 'freezing order' made against you on 20 March 2014 by Justice Flick at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order. THE COURT ORDERS: INTRODUCTION

(a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and interlocutory process is abridged and service is to be effected by emailing a copy of the interlocutory process, together with the affidavits of Daniel Frisken sworn on 20 March 2014 and Mark Bannister sworn on 19 March 2014 to Detective Bird of the New South Wales Police by 6pm on 20 March 2014.
Subject to the next paragraph, this order has effect up to and including 9.30am on 25 March 2014 ('the Return Date'). On the Return Date at 9.30 am there will be a further hearing in respect of this order before Justice Jagot.
Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
In this order: (e) 'applicant', if there is more than one applicant, includes all the applicants; (f) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; (g) 'third party' means a person other than you and the applicant; (h) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.
(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

FREEZING OF ASSETS 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia. 7. For the purposes of this order, (3) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (iii) the assets of the businesses known as Elite Civil Management Pty. Limited (A.C.N. 162 085 264), Elite Civil Group Pty. Limited (A.C.N. 144 808 775), Elite Plant Hire Pty. Limited (A.C.N. 119 806 718) and SSI Recruitment Pty. Limited (A.C.N. 162 804 871) or, if any or all of the assets have been sold, the net proceeds of the sale ; and (iv) any money in any bank account held or controlled by you, or to which you have access. (4) the value of your assets is the value of the interest you have individually in your assets.

EXCEPTIONS TO THIS ORDER 8. This order does not prohibit you from: (a) paying up to $2,000 a week on your ordinary living expenses; (b) paying up to $10,000 on your reasonable legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 9. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. COSTS 10. The costs of this application are reserved to the Court hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 11. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 12. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (v) affidavits (or draft affidavits); (vi) exhibits capable of being copied; (vii) any written submission; and (viii) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B

AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Mark Bannister 19 March 2014 (2) Daniel Frisken 20 March 2014

PENAL NOTICE TO: RENE SANTORO IF YOU: (C) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (D) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. Annexure C Federal Court of Australia No. NSD247/2014 District Registry: SYDNEY Division: General In the Matter of: ELITE CIVIL MANAGEMENT PTY LTD A.C.N. 162 085 234 elite civil group pty ltd A.C.N. 144 808 775 ssi recruitment pty ltd A.C.N. 162 084 871 RAB'S PLUMBING SERVICES PTY LIMITED A.C.N. 102 773 820 First Plaintiff AND OTHERS named in the schedule ELITE CIVIL MANAGEMENT PTY LIMITED A.C.N. 162 085 234 First Defendant AND OTHERS named in the schedule TO: ADRIAN SANTORO This is a 'freezing order' made against you on 20 March 2014 by Justice Flick at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order. THE COURT ORDERS: INTRODUCTION

(a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and interlocutory process is abridged and service is to be effected by emailing a copy of the interlocutory process, together with the affidavits of Daniel Frisken sworn on 20 March 2014 and Mark Bannister sworn on 19 March 2014 to Detective Bird of the New South Wales Police by 6pm on 20 March 2014.
Subject to the next paragraph, this order has effect up to and including 9.30am on 25 March 2014 ('the Return Date'). On the Return Date at 9.30 am there will be a further hearing in respect of this order before Justice Jagot.
Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
In this order: (i) 'applicant', if there is more than one applicant, includes all the applicants; (j) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; (k) 'third party' means a person other than you and the applicant; (l) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.
(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

FREEZING OF ASSETS 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia. 7. For the purposes of this order, (5) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (v) the assets of the businesses known as Elite Civil Management Pty. Limited (A.C.N. 162 085 264), Elite Civil Group Pty. Limited (A.C.N. 144 808 775), Elite Plant Hire Pty. Limited (A.C.N. 119 806 718) and SSI Recruitment Pty. Limited (A.C.N. 162 804 871) or, if any or all of the assets have been sold, the net proceeds of the sale ; and (vi) any money in any bank account held or controlled by you, or to which you have access. (6) the value of your assets is the value of the interest you have individually in your assets.

EXCEPTIONS TO THIS ORDER 8. This order does not prohibit you from: (a) paying up to $2,000 a week on your ordinary living expenses; (b) paying up to $10,000 on your reasonable legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 9. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. COSTS 10. The costs of this application are reserved to the Court hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 11. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 12. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (ix) affidavits (or draft affidavits); (x) exhibits capable of being copied; (xi) any written submission; and (xii) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B

AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Mark Bannister 19 March 2014 (2) Daniel Frisken 20 March 2014

PENAL NOTICE TO: ADRIAN SANTORO IF YOU: (E) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (F) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. Annexure D Federal Court of Australia No. NSD247/2014 District Registry: SYDNEY Division: General In the Matter of: ELITE CIVIL MANAGEMENT PTY LTD A.C.N. 162 085 234 elite civil group pty ltd A.C.N. 144 808 775 ssi recruitment pty ltd A.C.N. 162 084 871 RAB'S PLUMBING SERVICES PTY LIMITED A.C.N. 102 773 820 First Plaintiff AND OTHERS named in the schedule ELITE CIVIL MANAGEMENT PTY LIMITED A.C.N. 162 085 234 First Defendant AND OTHERS named in the schedule TO: DANIELLE SANTORO This is a 'freezing order' made against you on 20 March 2014 by Justice Flick at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order. THE COURT ORDERS: INTRODUCTION

(a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and interlocutory process is abridged and service is to be effected by emailing a copy of the interlocutory process, together with the affidavits of Daniel Frisken sworn on 20 March 2014 and Mark Bannister sworn on 19 March 2014 to Detective Bird of the New South Wales Police by 6pm on 20 March 2014.
Subject to the next paragraph, this order has effect up to and including 9.30am on 25 March 2014 ('the Return Date'). On the Return Date at 9.30 am there will be a further hearing in respect of this order before Justice Jagot.
Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
In this order: (m) 'applicant', if there is more than one applicant, includes all the applicants; (n) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; (o) 'third party' means a person other than you and the applicant; (p) 'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.
(a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

FREEZING OF ASSETS 6. (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia. 7. For the purposes of this order, (7) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (vii) the assets of the businesses known as Elite Civil Management Pty. Limited (A.C.N. 162 085 264), Elite Civil Group Pty. Limited (A.C.N. 144 808 775), Elite Plant Hire Pty. Limited (A.C.N. 119 806 718) and SSI Recruitment Pty. Limited (A.C.N. 162 804 871) or, if any or all of the assets have been sold, the net proceeds of the sale ; and (viii) any money in any bank account held or controlled by you, or to which you have access. (8) the value of your assets is the value of the interest you have individually in your assets.

EXCEPTIONS TO THIS ORDER 8. This order does not prohibit you from: (a) paying up to $2,000 a week on your ordinary living expenses; (b) paying up to $10,000 on your reasonable legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 9. You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly. COSTS 10. The costs of this application are reserved to the Court hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANT AND RESPONDENT 11. Set off by banks This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 12. Bank withdrawals by the respondent No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT (1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. (2) As soon as practicable, the applicant will file and serve upon the respondent copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicant at the hearing when the order was made: (xiii) affidavits (or draft affidavits); (xiv) exhibits capable of being copied; (xv) any written submission; and (xvi) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process, or, if none was filed, any draft originating process produced to the Court. (3) As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it. (4) The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. (5) If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. (6) The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. (7) The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets. SCHEDULE B

AFFIDAVITS RELIED ON Name of deponent Date affidavit made (1) Mark Bannister 19 March 2014 (2) Daniel Frisken 20 March 2014

PENAL NOTICE TO: DANIELLE SANTORO IF YOU: (G) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (H) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (2)

Cases Cited (15)

Cited By (1)