Supreme Court (General Civil Procedure) Rules 2025, ord 37A.

Rozenblit v Vainer [2019] VSCA 164; Kajula Pty Ltd v Downer EDI Limited [2024] VSCA 236; Patterson v BTR Engineering (1989) 18 NSWLR 319; KTC v Singh [2018] NSWSC 1510; Victoria University of Technology v Wilson [2003] VSC 299; RHG Mortgage Corporation Ltd v Kelly [2016] WASC 169; Lakatamia Shipping Company Ltd v Morimoto [2019] EWCA Civ 2203, applied.

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442, considered.

Ms P Thiagarajan SC with Mr N Luxton and Dr M Harding

1. The applicants seek leave to appeal against a decision of a judge of the Trial Division refusing to make freezing orders against the first respondent ('Mr Crawford') and the second to eleventh respondents (the 'Third Party Respondents'). The freezing orders were sought in support of a prospective judgment (which it was anticipated would be registered in Victoria) in proceedings commenced by the applicants in the Grand Court of the Cayman Islands (the 'Grand Court' and the 'Cayman Islands proceedings').
2. While the judge found that there was a good arguable case in respect of the Cayman Islands proceedings, the judge was not satisfied that there was a risk of dissipation of assets with the result that it was not necessary for the judge to exercise her discretion in deciding on an appropriate form of relief.
3. In substance, the applicants contend that the judge misapplied the requirement of a 'reasonable possibility' of dissipation (the 'dissipation issue'). The respondents dispute that the judge erred in relation to the dissipation issue. Further, by notice of contention, the respondents submit that the applicants have not established that there was a good arguable case in the Cayman Islands proceedings against Mr Crawford (the 'arguable case issue').
4. For the reasons that follow, we consider that the judge did not err in relation to the arguable case issue but did err in relation to the dissipation issue. As a result, in the exercise of our discretion, we decline to make a freezing order but consider it appropriate to make an order requiring that notice be given to the applicants of any material dealing with the respondents' assets, subject to certain exceptions which we will address further below.

The applicants and the petition to wind up Rasia

1. The first applicant ('Rasia Group') was incorporated in the Cayman Islands in 2012. The second applicant ('Rasia FZE') was incorporated in the United Arab Emirates in 2009. The third applicant ('Mondoe') is a Cayman Islands exempted company incorporated in 2017. RF Investment Holdings Limited (formerly known as 'Rasia') was a Cayman Islands exempted company incorporated in 2017 and operated as an investment company. It appears that each of Rasia FZE and Mondoe owned shares in Rasia.
2. On 1 May 2020, a petition was issued by Red Wolf Resources Ltd ('Red Wolf') in the Grand Court to wind up Rasia (the 'Petition'). Carey Olsen Singapore LPP ('Carey Olsen') acted for Red Wolf, and Harney Westwood & Riegels ('Harneys') acted for Rasia.
3. At the time the Petition was filed, Rasia held investments in a number of companies, including: (a) shares in Kirkham International Pte Ltd ('Kirkham'), which is a Singaporean company; (b) shares in TerraCom Ltd ('TerraCom'), which is an Australian company; and (c) an effective 100 per cent interest in PT Borneo Prima Coal Indonesia.

1. On 1 May 2020, when the Petition was filed, the shareholders of Rasia included Red Wolf as to 78 per cent and Landing Point Ltd ('Landing Point') as to 6 per cent.
2. Red Wolf acquired its shares in Rasia pursuant to a transaction agreement between Raisa, Red Wolf and Mondeo made in December 2017 (the 'Transaction Agreement'). At that time, Rasia was under the control of Joseph Borkowski. Clause 6 of the Transaction Agreement provided that shares acquired pursuant to that agreement could be cancelled if certain conditions were not met, including relevantly if TerraCom did not purchase Kirkham within 12 months. The applicants also contend that Landing Point acquired its shares in Rasia as a result of the Transaction Agreement through a related company of Red Wolf called HYF Limited.
3. Craig Ransley was the founder and sole shareholder of Red Wolf, and he has been a director of Red Wolf at all relevant times. The other directors of Red Wolf have been Mr Borkowski between 24 March 2018 and 5 November 2018, Mr Crawford between 5 November 2018 and 13 August 2019, and Craig Wallace from 13 August 2019.
4. Mr Ransley signed the Transaction Agreement on behalf of Red Wolf. Mr Borkowski signed that agreement on behalf of Rasia and Mondoe.
5. Landing Point was owned and controlled by Mr Crawford. Landing Point acquired its shares in Rasia on 1 December 2019 from HYF Limited. Mr Borkowski deposed that HYF Limited was owned by Red Wolf and by Mr Crawford as a nominee of Mr Ransley.
6. On 1 June 2020, Landing Point sent a letter in support of the Petition to wind up Rasia (the 'Letter of Support').

Challenge to Red Wolf's standing to bring the Petition

1. On 6 July 2020, Rasia purported to cancel the shares held by Red Wolf and Landing Point in Rasia pursuant to the Transaction Agreement. Notification was given by a letter dated 6 July 2020 from Harneys to Carey Olsen (the 'Harneys letter') which stated it was copied by email to Mr Crawford.
2. As a result, on 8 July 2020, Rasia applied to strike out the Petition on the basis that Red Wolf did not have standing as Red Wolf ceased to be a shareholder of Rasia on 6 July 2020.
3. The strike out application was heard over seven days with the 'two protagonists' giving evidence, namely Mr Ransley and Mr Borkowski.[1] Mr Borkowski gave evidence of the right to cancel the shares of Red Wolf and Landing Point pursuant to the Transaction Agreement. However, a copy of the Transaction Agreement could not be located. In opposing the strikeout application, Red Wolf contended, and Mr Ransley gave evidence, that the Transaction Agreement was a fabrication.
4. On 28 July 2021, Parker J of the Grand Court delivered the Judgment on the strikeout application, concluding that the Transaction Agreement was an 'invention of [Mr Borkowski] conceived in order to try to demonstrate a contractual right to unwind [Red Wolf's] shareholding', with the result that Red Wolf had standing to prosecute the Petition.[2] In the circumstances, on 1 October 2021, Rasia consented to a wind up order (the 'Winding Up Order').
5. However, on 13 July 2022, Mr Borkowski obtained a copy of the Transaction Agreement from the liquidator of Kirkham.
6. As a result, in August 2022, Rasia made an application to reopen the Petition on the question of standing. Following an agreement between Red Wolf and Rasia's liquidators, on 15 September 2022, the Grand Court ordered that:

The Strike Out Judgment and the findings of fact therein are set aside ... (but, for the avoidance of doubt, nothing in this Order is intended to set aside or permit redetermination of the Winding Up Order).[3]

1. Thus, while the Judgment and the factual findings within it were set aside, the Winding Up Order remained on foot. It appears that this was because of the significant passage of time since the Winding Up Order was made in October 2021 - ie nearly one year earlier.
2. We pause to note that Carey Olsen issued invoices to Red Wolf and Landing Point with the subject heading 'Dispute in relation to Cayman Islands Fund' for fees incurred between 5 March 2020 and 30 August 2022 (the 'Carey Olson invoices').
3. By a deed of assignment between the liquidators of Rasia and the Rasia Group dated 25 March 2024, Rasia assigned all its rights, titles and interests in any claims, actions, demands or proceedings to the Rasia Group. On 23 July 2024, the Grand Court made orders sanctioning that assignment.
4. Notice of the assignment was given to Mr Crawford on or about 21 May 2025 (the 'notice of assignment').
5. The Cayman Islands proceedings were commenced on 28 May 2025 against Mr Crawford and Mr Ransley. The writ was endorsed with a statement of claim ('SOC') that alleged the following claims in respect of Red Wolf's prosecution of the Petition: malicious prosecution, abuse of process, causing loss by unlawful means and unlawful means conspiracy. The SOC alleged that both Mr Ransley and Mr Crawford were, at all relevant times, directors of Red Wolf and claims were made against each of them on that basis. While Mr Ransley was a director of Red Wolf at all relevant times, Mr Crawford was not. We will address this further below.

1. On 17 July 2025, the applicants applied ex parte to the Supreme Court of Victoria for freezing orders against Mr Crawford and the Third Party Respondents on the basis that Mr Crawford was a director of Red Wolf and that the Third Party Respondents were companies controlled by Mr Crawford. It is not in dispute that Mr Crawford owns the shares directly or indirectly in the Third Party Respondents for the purpose of holding various Mongolian mining assets. Two of the Third Party Respondents are incorporated in Australia, four are incorporated in Singapore and four are incorporated in Mongolia. An annexure of the structure and shareholders' assets of the Third Party Respondents is annexed to these reasons.
2. On 23 July 2025, Cosgrave J granted an ex parte freezing order in favour of the applicants against Mr Crawford and the Third Party Respondents (the '23 July order').
3. On or about 20 August 2025, the originating process, court documents and the 23 July order were served on Mr Crawford. Thereafter, the 23 July order was extended on six occasions by Sloss J at a number of hearings concerning whether the freezing orders ought be continued. Mr Crawford and the Third Party Respondents disputed the continuation of the freezing orders.
4. On 27 August 2025, Mr Crawford filed and served an affidavit in this proceeding (the 'first Crawford affidavit'). Relevantly, he deposed that he ceased to be a director of Red Wolf on 13 August 2019 and was not a director of Red Wolf at the time when the Petition was issued and prosecuted. As a result, Mr Crawford and the Third Party Respondents applied to set aside the 23 July order on the ground of material nondisclosure and on the ground there was not a good arguable case in the Cayman Islands Proceedings.
5. In response, the applicants' evidence was that it was only after the first Crawford affidavit was filed that they became aware that Mr Crawford was not a director at the relevant time. In these circumstances, the applicants acknowledged that there had been an inadvertent nondisclosure and resisted the discharge of the 23 July order, and alternatively applied for a fresh freezing order either on similar terms to the 23 July order or a more limited basis - ie, by making a 'notification order'.[4]
6. In support of these applications, the applicants relied upon an amended statement of claim dated 4 September 2025 in the Cayman Islands proceedings ('ASOC')[5] which pleaded the same causes of action as the SOC, but amended the allegations against Mr Crawford to focus on his involvement in the Petition through Landing Point. This was primarily based upon:

(a) the Letter of Support dated 1 June 2020, referred to at [13] above;

(b) an affidavit sworn by Mr Crawford in support of the Petition on an unknown date in July 2020 which may or may not have been filed (the 'Crawford Petition affidavit'); and

(c) the Carey Olson invoices, referred to at [21] above, which contained a number of narrations referring to Mr Crawford.

1. All these applications were heard by Sloss J on 19 and 22 September 2025. On 30 September 2025, Sloss J delivered her reasons.[6] Relevantly, the judge concluded that:

(a) the evidence was that the applicants' non-disclosure when seeking the freezing order on an ex parte basis was inadvertent and not intentional;

(b) nevertheless, the applicants should have been 'on enquiry' from the Red Wolf company search as to whether or not Mr Crawford was a director of Red Wolf;[7]

(c) as there had been an inadvertent material nondisclosure, the 23 July order should not be continued and must be discharged;

(d) the preferable course in these circumstances was to consider afresh the affidavit material and what, if any, relief is necessary or appropriate;

(e) the applicants had a good arguable case in respect of each of the claims in the ASOC with sufficient prospects of success before the Grand Court;

(f) the Court was not satisfied there was a risk of dissipation of assets by Mr Crawford or the Third Party Respondents that would support the making of a freezing order; and

(g) the balance of convenience did not fall to be determined.

1. On 1 October 2025, Sloss J made orders discharging the 23 July order.

1. The applicants' proposed grounds of appeal are:

(a) the judge erred in finding there was no risk of dissipation of assets (proposed ground 1);

(b) the judge erred in failing to take into account a material consideration in determining whether there was a reasonable possibility of the dissipation of assets (proposed ground 2), namely:

(i) the allegations of wrongdoing against Mr Crawford, which gave rise to an inference of a risk of dissipation of assets; and

(ii) the applicants' four contentions in relation to the dissipation issue, which established a reasonable possibility of dissipation of assets by Mr Crawford;

(c) the judge erred by failing to determine the balance of convenience in favour of the applicants (proposed ground 3).

1. The proposed grounds of the respondents in their notice of contention are:

(a) the judge erred by failing to conclude that the applicants did not have a good arguable case against Mr Crawford in the Cayman Islands proceedings; and

(b) the judge so erred because she did not take into account all relevant evidence.

Proposed ground 1 and 2: the dissipation issue

1. Proposed grounds 1 and 2 relate to the dissipation issue. It is appropriate that we deal with them together.

1. As to the applicable standard of review in relation to the dissipation issue, the applicants submitted that the correctness standard applied because:

(a) the ultimate question of whether to grant a freezing order under ord 37A is discretionary;

(b) for the court to be satisfied that there is a danger or risk of the dissipation of assets under r 37A.05(4), it 'must be shown 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 [a freezing] order is not made';[8]

(c) as a result, the legal criterion necessary to answer the question in (b) demands a 'unique outcome', with the result that the correctness standard applies.[9]

1. As to the relevant principles relating to proving the dissipation issue, the applicants submitted that the court frequently relies upon inference as there is rarely direct evidence of conduct deliberately designed to frustrate the processes of the court.[10] Further, the court may draw an inference of a danger or risk of dissipation of assets from a number of factors, including where the claim advanced in respect of the present or prospective judgment raises serious wrongdoing.[11]
2. As to the application of all these principles, the applicants advanced four bases before the judge, which they submitted in combination supported the inference that there was a risk of dissipation of assets, namely that:

(a) the assets of value of the respondents, comprising Mongolian mining assets, were held through a complex, multi-layered corporate structure involving multiple jurisdictions with Mr Crawford's control of the various intermediary companies meaning that assets are capable of being readily transferred away by him (the 'complex structure basis');

(b) Mr Crawford's acquisition of the Mongolian mining assets came about through non-arm's-length, related party transactions between business associates (the 'related party transactions basis');

(c) the Cayman Islands proceedings made allegations of serious wrongdoing against Mr Crawford, including that he was involved in the malicious prosecution of the winding up application and was prepared to continue to support the Petition when he believed it was baseless to do so (the 'serious wrongdoing allegations basis'); and

(d) Mr Crawford had not deposed in any of his four affidavits in this proceeding that he would not dissipate the Mongolian mining assets despite deposing that he had not yet dissipated any assets (the 'no undertaking basis').

1. The applicants contended that, while the judge recited each of these matters or bases in the Reasons, in her analysis, the judge failed to address the serious wrongdoing basis and the no undertaking basis, and failed to address all four bases in combination.

1. As to the complex structure basis, the applicants submitted that the complexity of Mr Crawford's elaborate corporate structure for holding the Mongolian mining assets by the 10 Third Party Respondents in three jurisdictions (most of those companies having no other purpose than to hold shares) was sufficient to warrant an inference that there was a risk of dissipation.
2. In this context, they noted that all assets owned by Mr Crawford, save for a property in Augusta in Western Australia valued at AUD840,000, were held via the Third Party Respondents. They referred to the judge's finding that the corporate structure 'effectively enables the ultimate beneficial owner to transfer the whole structure that holds the Mongolian mining assets in a single stroke of the pen'.[12] Thus, the applicants contended that this structure was adopted by Mr Crawford to make the Mongolian mining assets judgment proof.
3. The applicants contended that these matters, alone or in combination with the other bases relied upon, support an inference of a risk of dissipation of assets.

1. The applicants noted that were two relevant transactions by reason of which Mr Crawford acquired the Mongolian mining assets. They referred to the affidavit of Mr Crawford sworn 11 September 2025 (the 'third Crawford affidavit') in which Mr Crawford refuted any suggestion that the structure was adopted to render the Mongolian assets judgment proof. He deposed that:

(a) the first transaction in 2020 was the transfer of the Mongolian mining assets (then operated by three Singaporean companies) from TerraCom to Tao Yuan (the 'first transaction');

(b) as part of the first transaction Ms Yuan incorporated a Singapore holding company ('Bridge Mining Pte Ltd Singapore') to own the shares in the operating companies;

(c) Mr Crawford advised Ms Yuan in relation to the first transaction, was the CEO of Bridge Mining Pte Ltd Singapore after the first transaction and became a director in May 2022;

(d) the second transaction in 2022 was the transfer of shares in Bridge Mining Pte Ltd Singapore to an Australian company incorporated by Mr Crawford ('Bridge Mining Holdings Pty Ltd') with another Crawford company ('Boranup Holdings Pty Ltd') owning all the shares in Bridge Mining Holdings (the 'second transaction'); and

(e) the second transaction was part of a management buyout at a time when the businesses controlling the Mongolian mining assets had substantial debts because of border closures due to the COVID-19 pandemic.

1. As to the first transaction, the applicants relied upon an ASX announcement issued by TerraCom dated 12 June 2020 that the sale price for the first transaction was USD3, given that the then existing liabilities of the entities that controlled the Mongolian mining assets were up to USD28 million. The applicants noted that there was limited material before the Court in relation to the circumstances of the first transaction given that, at that time, Mr Ransley was in charge of TerraCom and was also a director of Red Wolf.
2. As to the second transaction, the applicants relied upon the evidence of Mr Borkowski that '[f]rom the initial purchase from TerraCom, based on my longstanding dealings with TerraCom, Mr Ransley and [Mr Crawford], I believe that Tao Yuan was a nominee of [Mr Crawford]'.[13]
3. The applicants also relied upon the evidence of Mr Crawford denying the suggestion that Ms Yuan was his nominee. Mr Crawford deposed that he was appointed as the CEO of Bridge Mining Pte Ltd Singapore because Ms Yuan had not had experience in running coal mines and he understood that Mr Wallace, as a director of TerraCom, introduced Ms Yuan to the possibility of purchasing the Mongolian mining assets. He also deposed he had never met Ms Yuan in person, but had spoken to her by telephone and communicated with her by email.
4. The applicants noted that there was limited material before the Court in relation to the circumstances of the second transaction, given that Mr Wallace was a business associate of Mr Ransley. They submitted that Mr Crawford's evidence about the second transaction raised further questions about the relationship between Mr Crawford, Mr Wallace, Mr Ransley and Ms Yuan and the way in which the assets were transferred pursuant to the second transaction. These matters support an inference of a risk of dissipation of assets in combination with the other bases relied upon by the applicants for such an inference.

1. The applicants submitted that the judge should have inferred a risk of dissipation by reason of the allegations of serious wrongdoing against Mr Crawford in the Cayman Islands proceedings, given the judge's conclusion that there was a good arguable case against Mr Crawford for all of those claims. The applicants contended the judge erred by concluding to the contrary.
2. The applicants noted that all these causes of action involved serious wrongdoing, akin to allegations of serious dishonesty (based upon Mr Crawford's involvement in support of the prosecution of the Petition after 6 July 2020 when it was baseless to do so). Further, those causes of action were supported by evidence available at this stage of the proceeding.
3. The applicants contended that there is nothing in the authorities which limits the court's ability to draw an inference only in cases where it has been established there is 'a strong prima facie case of the defendant's having fraudulently misappropriated assets or of serious dishonesty'.[14]
4. The applicants noted that Mr Crawford sought to limit his involvement in the Cayman Islands proceedings to 'confirming factual matters', that he was 'not otherwise instructing Carey Olsen ... or otherwise prosecuting the Petition' and that he 'did not make decisions on strategic matters for the petitioner, Red Wolf'.[15]
5. By contrast, the applicants relied upon the Letter of Support, and the Crawford Petition affidavit. They also relied upon Mr Crawford's involvement in relation to the Petition as recorded in the Carey Olsen invoices. They submitted it ought be inferred that Mr Crawford knew of the Transaction Document from the time the Petition was issued because:

(a) the Transaction Agreement was produced by the liquidator of Kirkham in July 2022;

(b) Mr Crawford was a director of Kirkham from 15 March 2016 until 25 February 2020; and

(c) Rasia became an 80 per cent shareholder in Kirkham by reason of the Transaction Agreement.

1. In these circumstances, the applicants submitted that the Court ought be slow to accept the limited evidence of Mr Crawford that he:

(a) did 'not recall receiving any written notification about the existence or terms of the Transaction Agreement, nor being told about it by Mr Borkowski' when Landing Point became a shareholder of Rasia;[16] and

(b) first saw the Transaction Agreement when it was annexed to the first affidavit of Mr Borkowski sworn 8 July 2025.

1. Further, the applicants relied upon a number of narrations contained in the Carey Olsen invoices, including for:

(a) 1 June 2020 - 'drafting letter of support for landing point [sic]', ie the Letter of Support; and

(b) 1 July 2020 - 'drafting first affidavit of Matthew Crawford', ie the Crawford Petition affidavit.

1. The applicants noted that the narrations in the Carey Olson invoices evidenced Mr Crawford's involvement after the Harneys letter (copied to Mr Crawford), which informed him of the Transaction Agreement and that the shares of Red Wolf and Landing Point in Rasia had been cancelled. The applicants referred to the narrations in the Carey Olsen invoices for:

(a) 7 July 2020 - 'Call with Craig [Ransley] / Matt [Crawford] / A&G discussing Harneys letter regarding alleged Mondoe agreement and strategy on response';

(b) 9 July 2020 - which refers to the summons for the strike out application and a 'conference call with Craig [Ransley] and Matt [Crawford]';

(c) 20 July 2020 - 'Considering letter from Harneys re without prejudice offer; emails with Craig [Ransley] and Matt [Crawford] re above; telephone attendance on Matt [Crawford]; telephone attendance on Craig [Ransley]; considering draft directions and emails with Cayman team re above; preparing points for response to Harneys';

(d) 22 July 2020 - which refers to calls with 'Stephen, Craig [Ransley], Matt [Crawford] and Sanjiv to discuss approach going forward in relation to the P[rovisional ]L[iquidation] / standing issues'; and

(e) 18 September 2020 - 'Emails with counsel re strategy for hearing;[17] email with Matt C[rawford]; drafting amendments to letter to Harneys; emails with Cayman team'.

1. The applicants submitted that Mr Crawford's evidence as to his limited involvement in the Cayman Islands proceedings is in contrast with the contemporary evidentiary record indicating that Mr Crawford was very much engaged in the prosecution of the Petition and the strikeout application, which has resulted in the claims in the ASOC involving Mr Crawford's engagement in serious dishonesty or wrongdoing by maintaining his involvement in the prosecution of the Petition, particularly after the Harneys letter.
2. We pause to note that there is a dispute between the applicants and Mr Crawford as to whether these invoices are privileged. We will deal with this issue below.

1. The applicants relied upon the fact that Mr Crawford did not undertake in any of his affidavits that he would not dissipate the Mongolian mining assets despite making the point that he had not yet dissipated any assets. They submitted that this failure supports an inference of a risk of dissipation of assets in combination with the other three bases upon which they relied.
2. The applicants submitted that, while Mr Crawford gave evidence that (having received the notice of assignment on 21 May 2025) he did not take any steps to dissipate assets, the value of that evidence is limited given the nature of Mr Crawford's evidence in relation to the notice of assignment, namely:

(a) he 'did not know precisely why the Notice of Assignment had been sent to [him]' and 'was not aware of any particular claims that could have been made against [him]';[18] and

(b) he 'was not notified of these proceedings, or approached by the [applicants] or their solicitors at any point about the Cayman Islands proceedings ... before [he] was served with these proceedings on or about the evening of 20 August 2025'.[19]

1. The applicants referred to the fact that the notice of assignment did not specify the claims to be made or the persons against whom claims would be made. As a result, the applicants contended that the judge placed too much emphasis on Mr Crawford's evidence as set out in the previous paragraph in concluding that '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'.[20]
2. Relying upon these four bases in combination, the applicants submitted that the Court should find that there was a reasonable possibility of dissipation and that a 'prudent, sensible commercial' person would 'properly infer a danger of default'.[21]
3. As to proposed ground 2, if the applicable standard for review is House v The King (the 'House standard' or 'House error'), then, as set out in [39] above, the applicants submitted that the judge erred by failing to take into account the serious wrongdoing basis and the no undertaking basis. In their submission, her Honour also failed to address all four bases in combination.
4. The applicants contended the judge made further House errors in [208] of the Reasons, where she stated in substance that:

(a) '[t]he present case is not one like Patterson v BTR Engineering (Aust) Ltd, 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'; and

(b) she accepted the submission of counsel for the respondents below that '[i]t'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'.

1. The applicants submitted that, to the extent that the reference to the 'present case' in this paragraph was intended to capture the allegations of Mr Crawford's wrongdoing, it failed to address the merits and factual foundations of the claims in the Cayman Islands proceedings. The applicants also contended that this paragraph of the Reasons was an incorrect summary of the relevant proposition in Patterson. Further, it merged two distinct concepts, namely (a) the test for risk of dissipation, and (b) when the court is permitted to draw an inference.

1. The respondents raised five issues for consideration.
2. The first issue was whether leave should be granted. The respondents submitted that leave to appeal ought be refused given that this was an application to appeal from an interlocutory decision and the applicants had not shown that they would suffer substantial injustice.[22] This was because there was no clear evidence that the respondents would dissipate the assets if no freezing order was made and because the applicants had a cause of action for the same loss against other wrongdoers. Counsel referred to the default judgment obtained by the applicants against Red Wolf and Mr Ransley in the proceedings in the British Virgin Islands for the same torts/causes of action. As a result, the applicants could look to other parties to meet any damages that might be awarded in the Cayman Islands proceedings.
3. The second issue was the appellate standard of review in relation to the decision of the judge. The respondents submitted that the House standard applied because:

(a) based on the relationship between the Court's inherent jurisdiction, r 37A.02(1) and r 37A.05, the reference to the 'reasonable possibility' of dissipation in r 37A.05(4) is not a reference to a discrete evaluative test that must be satisfied before a freezing order may be granted: it is one of a number of discretionary factors that the Court may take into account when deciding whether to grant a freezing order; and

(b) to determine if the correctness test ought apply, one does not look solely at whether there is a unique outcome as opposed to a range of possible outcomes: rather, it is necessary to look at a number of matters including the breadth of the evaluative power afforded to the primary decision maker.[23]

1. In oral argument, the respondents also referred to the decision in Deputy Commissioner of Taxation v Huang.[24] The respondents emphasised that the two purposes of a freezing order are to prevent the frustration of the Court's processes, and to meet the danger that a judgment or prospective judgment will be wholly or partly unsatisfied.[25] As a result, the respondents contended that the dissipation issue cannot be considered separately from the ultimate question of whether it is appropriate to make a freezing order, as that begs the question of whether the risk or danger is 'sufficiently substantial to warrant the freezing order'.[26]
2. The respondents submitted that by applying the House standard, there is a strong presumption that a first instance decision involving a discretionary judgement should be affirmed unless the appellate court is satisfied it is clearly wrong. That presumption may only be overcome where the primary judge has erred by acting upon a wrong principle, giving weight to extraneous or irrelevant matters, failing to give sufficient weight to relevant considerations or making a mistake as to the facts.
3. The third issue was, if the correctness standard applies, whether the judge erred in concluding that there was no real possibility of dissipation of the respondents' Mongolian mining assets. The respondents contended that the judge did not err because the bases upon which the applicants sought to infer a reasonable possibility of a risk of dissipation alone or in combination did not give rise to such an inference.
4. The respondents submitted that the complex structure and the related party transaction bases did not support an inference of a risk of dissipation because:

(a) the structure for the holding of the Mongolian mining assets was, in fact, quite simple, as the judge correctly concluded;

(b) there was no evidence to support a jump from the judge's correct conclusion that those assets could be transferred by a stroke of the pen to a conclusion that there was a risk of dissipation to frustrate a judgment debt;[27]

(c) Mr Crawford gave evidence that Bridge Mining Holdings Pty Ltd, a company owned by Boranup Holdings Pty Ltd (which is owned by Mr Crawford), had acquired the corporate structure for the mining business in 2022 as a result of a straightforward share acquisition from Ms Yuan. Thus, the corporate structure was not created to make Mr Crawford 'judgment proof' as the applicants asserted; and

(d) further, the fact that Mr Crawford acquired the Mongolian business following a management buyout cannot be evidence of a risk of dissipation, given that the relevant share transaction occurred two and a half years before the Cayman Islands proceedings.

1. As to the relationship between the parties to the first and second transactions, the respondents submitted that the business relationship between Mr Ransley and Mr Crawford was not a sufficient basis to conclude that those transactions were not at‑arm's‑length. The respondents noted that the applicants relied upon the fact that Mr Borkowski 'believe[d]' that Ms Yuan was the owner of the Mongolian assets as a nominee of Mr Crawford on the basis of unspecified 'longstanding dealings with TerraCom, Mr Ransley and [Mr Crawford]'.[28] The respondents contended that this was not a sufficient basis to support such an inference. In any event, they referred to Mr Crawford's express denial that Ms Yuan was his nominee.
2. As to the serious wrongdoing allegation basis, the applicants relied upon their notice of contention to the effect that the application in the Cayman Islands proceedings did not have any good arguable claims.
3. In any event, the respondents contended that in order for evidence supporting a good arguable case to have a bearing on the risk of dissipation, that evidence must relate to that risk. As a consequence, the fact that the asserted case involves some claim about dishonesty is not enough: nor is it enough to produce evidence of 'sharp' or 'unfair' conduct.[29] Rather, the evidence must support a reasonable inference that there is a reasonable possibility that Mr Crawford, unless restrained, would not preserve his assets.[30]
4. The respondents contend that the authorities evidence the following principles:

(a) such an inference will be available, for example, where the good arguable case is 'one of serious dishonesty involving diversion of money from its proper channels';[31]

(b) such serous dishonesty concerns misappropriating assets, lying about assets or hiding assets;[32]

(c) alleged misconduct in litigation and in running spurious arguments does not support an inference of a real risk of dissipation of assets;[33] and

(d) alleged insolvent trading of itself does not permit an inference of a risk of dissipation.[34]

1. In any event, there was little or no evidence to conclude Mr Crawford's involvement in the Cayman Islands proceedings was 'dishonest' in circumstances where:

(a) the Petition was issued by Red Wolf (controlled by Mr Ransley) and not Landing Point (controlled by Mr Crawford);

(b) the Letter of Support and the Crawford Petition affidavit were prepared before Rasia purported to cancel Red Wolf's shares in Rasia and Mr Crawford had never seen the Transaction Agreement;

(c) Mr Crawford's evidence that he had limited involvement in the Cayman Islands proceedings referred to at [51] above;

(d) in the Cayman Islands proceedings, Mr Borkowski gave evidence that the Petition was a response to legal actions against Mr Ransley;

(e) there was no evidence that Landing Point and Mr Crawford paid the Carey Olsen invoices; and

(f) when the Judgment was set aside, the liquidators of Rasia agreed for Red Wolf to be paid USD782,426.

1. The respondents also relied upon the judge's conclusion that it was unclear whether the Carey Olsen invoices would be admissible in the Cayman Islands proceedings. The respondents ultimately conceded in this Court that they were relevant and would be admissible in this proceeding for the limited purpose of the dissipation issue if they satisfied the test set out, for example, in Hodgson v Amcor Ltd,[35] namely they do not directly or indirectly disclose communication concerning matters which are privileged. Counsel for the respondents submitted that the nature of the narrations in those invoices, relied on by the applicants, rendered them privileged.
2. It is appropriate that we deal with this submission now. In short, this submission has no factual basis and must be rejected. This is because the relevant narrations relied upon (set out at [54] and [55] above) do not disclose the substance of legal advice or privileged communications in relation to the Petition or more generally. Rather, they only record the topics or issues discussed at a very high level of generality.
3. As to the no undertaking basis, the respondents referred to the evidence of Mr Crawford that he had not dissipated his assets after learning of the notice of assignment. In any event, as a matter of law, the absence of an undertaking not to dissipate is not evidence of a risk of dissipation.[36]
4. Finally, the respondents relied upon the applicants' delay in seeking freezing orders. The respondents noted that the applicants had knowledge by April 2023 of the events which are the subject of the Cayman Islands proceedings and that the deed of assignment was executed in March 2024, yet they only applied for the freezing orders in July 2025. The respondents submitted that this delay may provide evidence that there is no reasonable possibility of dissipation.[37]
5. In the event that the House standard applies, the respondents contended that the judge did not fail to take into account all material considerations in determining that the applicants had failed to demonstrate a real risk of dissipation.
6. The respondents submitted that the judge set out the factual foundation of the four bases and analysed these bases. The respondents contended that, in light of all these bases, the judge relevantly concluded that:

(a) there was no evidence of any positive intention to frustrate a prospective judgment or of a danger of default;

(b) the nature of the allegations did not constitute a risk of dissipation given there was no allegation of fraudulent misappropriation of assets or of serious dishonesty against Mr Crawford; and

(c) 'there is no evidence that he took any steps by way of dissipation of his assets in response',[38] notwithstanding he 'understood there was a possibility of claims'.[39]

1. The fifth issue was that, in any event, the balance of convenience does not favour the grant of a freezing order or a notification order. We will deal with these submissions below.

1. The principles upon which leave is to be granted are as follows:

(a) this Court may only grant leave under s 14C of the Supreme Court Act 1986 if satisfied that the proposed appeal has real prospects of success; and

(b) even if so satisfied, this Court may refuse leave in the exercise of its residual discretion, such as when no substantial injustice will be done if the decision at first instance is allowed to stand and in recognising that a 'tight rein' ought be applied before granting leave in matters of practice and procedure.[40]

1. In our view, the proposed appeal in respect of the dissipation issue has reasonable prospects of success. Further, we decline to exercise our residual discretion to refuse leave notwithstanding the nature of the interlocutory order made by the judge. This is because we consider it is appropriate that this Court hear the appeal on the dissipation issue in light of the arguments raised. Further, the order of the judge is not a matter of practice and procedure in the strict sense, as it is likely to materially affect the rights and entitlements of the applicants. This is because we are satisfied that the failure to make a freezing order may have a substantial impact on the applicants if they are successful in the Cayman Islands proceeding. As a result, we grant leave to appeal in respect of proposed grounds 1 to 3.

Consideration of the appellate standard of review issue

1. Order 37A of the Rules generally governs the Court's jurisdiction to make freezing orders. The relevant parts of ord 37A provide:

37A.02 Freezing order

(1) The Court may make an order (a freezing order), upon or without notice to the respondent, 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.

...

37A.03 Ancillary order

(1) The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers appropriate.

(2) Without limiting the generality of paragraph (1), an ancillary order may be made for either or both of the following purposes -

(a) eliciting information relating to assets relevant to the freezing order or prospective freezing order;

(b) determining whether the freezing order should be made.

37A.05 Order against judgment debtor or prospective judgment debtor or third party

(1) This Rule applies if -

(a) judgment has been given in favour of an applicant by -

(i) the Court; or

(ii) in the case of a judgment to which paragraph (2) applies, another court; or

(b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in -

(i) the Court; or

(ii) in the case of a cause of action to which paragraph (3) applies, another court.

(2) This paragraph applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

(3) This paragraph applies to a cause of action if -

(a) there is a sufficient prospect that the other court will give judgment in favour of the applicant; and

(b) there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

(4) The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied because any of the following might occur:

(a) The judgment debtor, prospective judgment debtor or another person absconds; or

(b) The assets of the judgment debtor, prospective judgment debtor or another person are:

(i) removed from Australia or from a place inside or outside Australia; or

(ii) disposed of, dealt with or diminished in value.

1. However, ord 37A operates coextensively with the Court's inherent jurisdiction to make freezing orders.[41] Indeed, so much is clear from r 37A.06 of the Rules, which provides that '[n]othing in this Order limits the inherent, implied or statutory jurisdiction of the Court to make a freezing order or an ancillary order'.
2. It is not in dispute that the decision whether to grant or to refuse to grant a freezing order is discretionary. Such decisions ultimately involve what the interests of justice require having regard to the particular circumstances of each case. However, the applicants submitted that the question of whether there is a reasonable possibility of dissipation is subject to the correctness standard of appellate review. By contrast, the respondents submitted that the House standard applied to both the dissipation issue and the arguable case issue as part of the exercise of the overall discretion.
3. In our view, it is unnecessary to decide which appellate standard of review applies in respect of the dissipation issue or the arguable case issue. This is because we have concluded that, in relation to the dissipation issue, the judge erred in the House sense (which would cause us to reconsider this issue) and we have also concluded that the judge's conclusion was not correct. So too, as we set out below in relation to the arguable case issue, we consider that the judge did not err in the House sense, and we have concluded that the judge's conclusion was correct in relation to that issue.
4. However, we wish to express our preliminary view that we consider both the arguable case issue and the dissipation issue are subject to the correctness standard. This is because the 'juridical foundation'[42] of the power to make an order under r 37A.05 is the need to establish: (a) a good arguable case (r 37A.05(1)(b)); and (b) that there is a reasonable possibility of a risk of dissipation of assets (r 35A.05(4)) and we are inclined to the view that the legal criterion to be applied in establishing each of these elements permits only one legal answer.
5. It is important to emphasise the significance of the discretion vested in the Court in determining the ultimate decision as to whether to grant a freezing order or other relief if satisfied of the arguable case issue and the dissipation issue. Importantly, in deciding that ultimate question, the judge is able to assess the strength of the good arguable case (if possible), the degree of risk of dissipation (if possible, beyond the requisite reasonable possibility of risk), the nature and extent of the prejudice to the parties in making or not making the order, and any other relevant matter, such as delay, in order to meet the justice of the particular case.
6. In this context, we agree with the view expressed by this Court in Rozenblit that the 'preferable approach is to treat the balance of convenience as only one among multiple discretionary considerations rather than as a mandatory requirement'.[43]

Consideration of the reasonable possibility of dissipation

1. As the judge correctly explained in her reasons, the second enquiry on an application for a freezing order is whether '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'.[44] The test has been expressed as requiring facts that must be sufficient to show that '"a prudent, sensible commercial" person can "properly infer a danger of default if assets are removed from the jurisdiction"'.[45] There was no dispute about this test.
2. Further, in making this assessment, the following principles are clear from the authorities:

(a) a mere assertion that there is a reasonable possibility of the dissipation of assets is not enough, as 'solid evidence' is required to show this. As a result, the fact that assets within the jurisdiction are capable of being moved, or that the respondent is an entity incorporated outside the jurisdiction does not, in and of itself, evince a reasonable possibility that a prospective judgment would go unsatisfied;[46]

(b) in many applications for a freezing order, there will be no direct evidence of conduct deliberately designed to frustrate the court's processes. As a result, the court is often required to draw an inference as to the risk of dissipation of assets based on admissible evidence;[47]

(c) that inference may be drawn from the nature of, or more particularly, the evidence relied upon in support of, the good arguable case;[48]

(d) such an inference is more likely to be drawn where the evidence of the good arguable case involves the fraudulent misappropriation of assets;[49] and

(e) such inference may be drawn where there is evidence that the good arguable case involves serious dishonesty or serious wrongdoing; however, in order to draw such an inference, the evidence in support of the arguable case must bear upon the danger or risk of dissipation of assets.[50]

1. Thus, in our view, it will depend upon the circumstances of the case as to whether the evidence in support of the good arguable claim alleging serious dishonesty or serious wrongdoing will itself be sufficient to found an inference of a risk of dissipation of assets.
2. In light of these principles, we consider that the judge erred in the House sense when she accepted the respondents' submission that '[i]t'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.'[51] This error would cause us to reconsider the dissipation issue. Further, for the reasons that follow, we have formed a different view to the judge on the dissipation issue.
3. The first matter relied upon by the applicants was the complex structure basis. The structure of ownership of the Mongolian mining assets was not in dispute. As the judge correctly concluded, while appearing at one level complex, the corporate structure adopted by Mr Crawford was simple, and by virtue of this structure he has been in control of those assets - and has had the ability to transfer them - since 2022. While the fact that the assets are in control of a respondent to an application for a freezing order is a relevant factor, it is rarely determinative in itself.
4. The second and associated basis was the related party transaction basis, namely that Mr Crawford's acquisition of the Mongolian mining assets was not the result of an at‑arm's‑length transaction, but a related party transaction between associates. At the outset, it is clear from the evidence that there has been a close business relationship between Mr Ransley and Mr Crawford for some time. Further, it is also apparent that there is or has been a relationship between Mr Ransley, TerraCom and Mr Wallace on the one hand and Ms Yuan on the other in relation to the first transaction, and between Ms Yuan and Mr Crawford in relation to the second transaction.
5. The applicants relied upon the limited nature of the evidence filed by the respondents, in particular in relation to the true nature of the relationship between Mr Ransley and Mr Crawford, and the circumstances of the first and the second transactions, which they contended raised further questions about the relationship between Mr Crawford, Mr Wallace, Mr Ransley and Ms Yuan. In our view, it is highly relevant to the dissipation issue that neither the true nature of these relationships nor all the relevant circumstances relating to these transactions (including the price paid in respect of the second transaction and/or the nature of the management buyout) have been deposed to by the respondents.
6. In this context, the applicants submitted that the structure of the ownership of the Mongolian mining assets by Mr Crawford was for the purpose of rendering those assets 'judgment proof'. We cannot accept that submission on the evidence before us. Relatedly, based on the evidence before us, we cannot accept the applicants' submission that Ms Yuan held the Mongolian mining assets as the 'nominee of Mr Crawford'. This is because the basis of Mr Borkowski's belief for this assertion was not made plain, as set out in [72] above.
7. Nevertheless, the failure of the respondents, and in particular Mr Crawford, to explain the matters referred to in [99] above raises real concerns about the true relationship of the relationship between Mr Ransley and Mr Crawford and between Mr Crawford, Mr Wallace, Mr Ransley and Ms Yuan in the context of the first and second transactions. We say this conscious of the fact that Mr Crawford expressly denied that Ms Yuan held the Mongolian mining assets as his nominee and that he did not structure his holdings to make them judgment proof. In this context, we are unable to accept the applicants' submission that, on the evidence before us, the second transaction was a 'straightforward share acquisition from Ms Yuan'.
8. As to the serious wrongdoing allegations basis, the applicants relied upon the allegations in the ASOC in the Cayman Islands proceedings as giving rise to allegations of serious dishonesty or serious wrongdoing.
9. For the purpose of deciding the dissipation issue, we will proceed on the basis that:

(a) the judge was correct to conclude that there was a good arguable case; and

(b) consistent with the principles set out in [94] above, the risk of dissipation may be inferred where there is evidence of serious dishonesty or serious wrongdoing giving rise to the good arguable case.

1. In our view, at the heart of the allegations in the Cayman Islands proceedings is the allegation that the Petition was maintained after Mr Ransley and Mr Crawford were informed by the Harneys letter that the shares of Red Wolf and Landing Point in Rasia were cancelled. It is their conduct after that time, in light of this knowledge, that is the subject of the allegation of serious dishonesty or serious wrongdoing in the claims made for malicious prosecution, abuse of process, causing loss by unlawful means and unlawful means conspiracy.
2. Based on the evidence before this Court, Red Wolf (of which Mr Ransley was a director) was the moving party in relation to the prosecution of the Petition. Red Wolf brought the Petition as the 78 per cent shareholder in Rasia. Most relevantly, Red Wolf opposed the strike out application on the basis that the Transaction Agreement was a fabrication and Mr Ransley gave evidence to this effect at the hearing of the strike out application. As Parker J recorded in his reasons, 'C[raig ]R[ansley] says that it is commercially absurd that he would agree to give up his valuable interests held through the company in the event that a transaction which was beyond his control (i.e. the purchase by TerraCom of Kirkham) did not materialise.'[52] Of course, it later became evident that the Transaction Agreement was not a fabrication and that the Transaction Agreement had been signed by Mr Ransley (on behalf of Red Wolf). In these circumstances, we consider that the evidence relating to the claims against Mr Ransley in the Cayman Islands proceedings raises questions of serious wrongdoing and/or serious dishonesty against him.
3. While the position of Mr Crawford is different to the position of Mr Ransley, we have formed the view that it is open for this Court to conclude that Mr Crawford knew, at or about 6 July 2020, about the Transaction Agreement and its terms and, as a consequence, to infer that his involvement in the Petition after that time constituted serious dishonesty and/or serious wrongdoing on his part. This is for a number of reasons.
4. First, there is Mr Crawford's evidence as set out [53] above that he did not recall receiving any written notification (or any oral notification from Mr Borkowski) about the existence or terms of the Transaction Agreement at the time Landing Point became a shareholder of Rasia and that he first saw the Transaction Agreement when annexed to Mr Borkowski's affidavit sworn 8 July 2025. However, we agree with the applicants that Mr Crawford's evidence in this regard is very limited. Most relevantly, he does not depose that he was unaware of the Transaction Agreement or its effect on and after 6 July 2020 when he received the Harneys letter (written on behalf of Rasia and Mondoe). In our view, it is significant that that letter:

(a) stated that Landing Wolf's shares had been cancelled pursuant to the terms of an agreement between Red Wolf, Rasia and Mondoe made in December 2017 - ie the Transaction Agreement; and

(b) set out all the relevant terms of the Transaction Agreement and steps taken and transfers made pursuant to that agreement.

1. Second and relatedly, the narrations in the Carey Olsen invoices (issued to Landing Point and Red Wolf) set out at [55] above record that the 'strategy' to be adopted in response to the Harneys letter was discussed with Mr Crawford. They relevantly record:

(a) a call the next day with Mr Ransley and Mr Crawford and others 'discussing Harneys letter regarding alleged Mondoe agreement and strategy on response';

(b) a conference call with Mr Ransley and Mr Crawford on 9 July 2020 in the context of the summons for the strike out application;

(c) emails and discussions with Mr Ransley and Mr Crawford on 20 July 2020 in the context of various matters including '[c]onsidering letter from Harneys re without prejudice offer' and 'considering draft directions and emails with Cayman team re above; preparing points for response to Harneys';

(d) calls on 22 July 2020 with Mr Ransley, Mr Crawford and others 'to discuss the approach going forward in relation to the PL / standing issues'; and

(e) an email on 18 September 2020 to Mr Crawford in the context of 'emails with counsel re strategy for hearing; email with Matt C; drafting amendments to letter to Harneys; emails with Cayman team'.[53]

1. Third, there is the evidence that the Transaction Agreement made in December 2017 was produced from the files of Kirkham by its liquidator in 2022 in circumstances where Mr Crawford was a director of Kirkham between March 2016 and February 2020. This is significant given that Rasia became an 80 per cent shareholder of Kirkham pursuant to the Transaction Agreement during the period of Mr Crawford's directorship. In our view, a director of Kirkham would have known or would have made enquiries as to the basis upon which such a majority shareholding in Kirkham had been obtained - ie via the Transaction Agreement. Such an inquiry is all the more likely given his close relationship with Mr Ransley.
2. In all these circumstances, it is open to infer from the evidence filed in this application in relation to the causes of action in the Cayman Islands proceedings that Mr Crawford knew of the terms of the Transaction Agreement in July 2020, and that his involvement in the Petition after this time constituted serious dishonesty and/or serious wrongdoing on his part. That is relevant to whether there is a reasonable possibility of dissipation of Mr Crawford's assets. We make this finding conscious that Mr Crawford deposed only to having a limited involvement in the Cayman Islands proceedings. However, as noted above, the narrations in the Carey Olsen invoices are apparently inconsistent with this evidence.
3. It is important to note, however, that we have only concluded on the evidence before this Court that there is a proper basis to conclude that Mr Crawford had or knew the terms of the Transaction Agreement. That is sufficient for the purpose of this application. Whether he in fact had or knew of the terms of that agreement will be a matter for trial in the Cayman Islands proceedings.
4. As to the no undertaking basis, we are not satisfied that this fact alone forms a basis to conclude that there is a reasonable possibility of dissipation of assets. Nevertheless, this fact may be taken into account with other relevant matters.
5. We will now turn to consider all these bases in combination. We are satisfied that there is a proper basis to infer a reasonable possibility of dissipation by Mr Crawford in light of our findings that:

(a) Mr Crawford has the ability to dispose of the Mongolian mining assets as set out in [97] above;

(b) the close relationship between Mr Ransley and Mr Crawford, with it being a matter of concern that the true nature and extent of that relationship was not explained by the respondents as set out in [98], [99] and [101] above;

(c) the evidence in support of the good arguable case (including the evidence relating to the claims against Mr Ransley in the Cayman Islands proceedings), raises questions of serious dishonesty and/or serious wrongdoing against Mr Ransley as set out in [105] above;

(d) from the evidence in support of that good arguable case, it is open to infer that Mr Crawford has been involved in serious dishonesty and/or serious wrongdoing as set out in [106] to [111] above;

(e) the unexplained nature of all the relevant circumstances of the first and second transactions resulting in Mr Crawford's acquisition of the Mongolian mining assets which raises real concerns in relation to the true bases of those transaction as set out in [98] to [101] above; and

(f) having regard to (a) to (e) above, Mr Crawford's failure to offer any undertaking to the applicants, either not to dissipate his assets or to notify the applicants of his intention to deal with those assets.

1. Most relevantly, our concerns about the unexplained matters as to the true nature of the relationships in [99] and of the two transactions relating to the transfer of the Mongolian mining assets go to the heart of Mr Crawford's close relationship and the extent of his dealings with Mr Ransley. We consider these matters are highly relevant to the risk of dissipation in light of the evidence of serious dishonesty and/or serious wrongdoing on the part of Mr Ransley and Mr Crawford, his business associate. Once again, we highlight that there is evidence from which it is open to infer that Mr Crawford engaged in serious dishonesty and/or serious wrongdoing in the particular circumstances of the prosecution of the Petition, most relevantly after 6 July 2020. The nature of that dishonesty went to the heart of Red Wolf's ability to prosecute or maintain the Petition. In this application, the respondents did not contend to the contrary. Moreover, in our view, dishonesty or wrongdoing of that nature evinces an intention to wilfully disregard the rights of another - in this case, Rasia.
2. We have reached this conclusion notwithstanding Mr Crawford's evidence that, after becoming aware of the notice of assignment, he did not take any steps to dissipate his assets. This is because the limited nature of this evidence as set out in [59(a)] and [59(b)] above is far from determinative. Further, we have reached this conclusion in a context where we are not persuaded that there was any relevant delay by the applicants in bringing the application for a freezing order relevant to the dissipation issue.
3. In all the circumstances, we are satisfied that we should infer that there is a reasonable possibility that the assets of Mr Crawford may be dealt with in such a way that all or part of any prospective judgement against him will be unsatisfied.

1. This issue is the subject of the notice of contention.

1. As the judge noted, the threshold requirement embodied in r 37A.05(1)(b) is that the applicants for a freezing order have a 'good arguable case'. The judge referred to the comments of this Court that:

[w]hile it is desirable not to explicate the criterion of a 'good arguable case' in fixed terms for every case, it has been said that it must be 'sufficiently plain that there is a serious question to be tried and that the plaintiff has a realistic prospect of success' ie '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'.[54]

1. The applicants contended that each of the four causes of action in the Cayman Islands proceedings gave rise to a good arguable case. The applicants relied upon the expert evidence of Hector Robinson KC and David Quest KC. The respondents relied upon the expert evidence of Dr Paul Mitchell KC. The judge considered this expert evidence in respect of each cause of action.
2. For the purpose of this application, it is sufficient if the applicants establish that they have a good arguable case in respect of any of the four causes of action alleged in the Cayman Islands proceedings. As a result, we will consider the tort of abuse of process, which we view as being dispositive of the issue.
3. The Reasons record that, notwithstanding the paucity of authority, there was no dispute between the experts about the principles pertaining to the tort of abuse of process, which include the following:

(a) although there is some overlap between the principles applicable to the tort of abuse of process and the tort of malicious prosecution, the tort of abuse of process is distinct from that of malicious prosecution because although the claimant must establish that the defendant's purpose in bringing proceedings was improper, for abuse of process the claimant is not required to prove an absence of reasonable and probable cause or that the abusive proceedings were determined in the claimant's favour;

(b) 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; and

(c) motive and intention (eg personal antagonism towards the defendant) are in themselves irrelevant.

1. As to the allegations in the Cayman Islands proceedings, the ASOC relevantly alleged:

1. Further or alternatively, the First Plaintiff [Rasia Group] claims that the issue, service and prosecution of the Petition caused by the Defendants [Mr Ransley and Mr Crawford], 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 a collateral purpose/s. Paragraph 96 is repeated.
2. Paragraph [96] of the ASOC relevantly alleged that the 'Petition was maliciously issued, served and prosecuted' by Mr Ransley and Mr Crawford because they:

caused or were involved in causing Red Wolf to prosecute and/ to continue to prosecute the Petition for the collateral purpose of attempting to fraudulently establish a 78% shareholding in Rasia and/or to deprive [Rasia FZE and Mondeo] of their proper economic interests in Rasia ...

1. Further, [96] of the ASOC relevantly alleged that this was because:

[T]he Defendants knew that the Transaction Agreement, which the First Defendant had signed, existed within the Kirkham files which they managed, and failed to cause Red Wolf to disclose it in the Petition and/or to disclose that Red Wolf's subscription in Rasia was liable to be unwound pursuant to the terms of the Transaction Agreement[.]

1. Dr Mitchell opined that, in light of these particulars, 'the Cayman Court is most unlikely to give judgment on this head of claim even if it were left undefended'.[55] Mr Quest disagreed, concluding that, given the paucity of authority, it was unlikely that the Grand Court would regard the abuse of process claim 'as having no realistic prospect of success, or consider it appropriate to dismiss the claim summarily'.[56] In so concluding, Mr Quest relied upon the judgement of Lord Toulson of the UK Supreme Court in Willers v Joyce at [25].[57] Mr Quest continued:

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.[58]

1. The judge concluded that she generally preferred the opinion of Mr Quest for the reasons that he gave. In particular, she agreed with his conclusion to the effect that the applicants have a realistic prospect of success on their claim for an abuse of process and thus a good arguable case.
2. Further, the judge concluded, consistent with the evidence of Mr Quest, that the abuse of process claim might also 'assume significance' if the Grand Court considered it was not proven that Mr Crawford 'set the law in motion' (ie, by instigating the proceeding), 'but the Court was nevertheless satisfied that (as pleaded [in the ASOC]) [Mr Crawford] "was involved in" the issue, service and prosecution of the Petition'.[59]

1. Consistent with their submissions in relation to the dissipation issue, the respondents contended that the House standard applied to the arguable case issue. The respondents did not address the leave issue in relation to the notice of contention.
2. The respondents submitted that the judge erred in the House sense in concluding that she preferred the evidence of Mr Quest over that of Dr Mitchell. The respondents based this submission, for the most part, on the judge's analysis of the malicious prosecution claim and submitted that the same error was evident in the judge's analysis of the other claims.
3. In summary, the applicants submitted that there was no House error. This was because, so they contended, a House error 'is not committed by a failure to take into account relevant evidence, let alone a failure to give an exposé of every component of such evidence'. Instead, the error arises only where there is a failure to take into account a 'material consideration'. This is especially so given that:

(a) the court is one of first instance, and therefore is not required to 'give a line by line account' of every piece of evidence;

(b) the court is not required to do so where that evidence has in fact been considered;[60] and

(c) courts are discouraged, in considering whether there is a good arguable case, to engage in a 'mini‑trial',[61] including in a case concerning a developing area of law.

1. In any event, the applicants submitted that the primary judge expressly referred to and considered Dr Mitchell's evidence. As a result, they submitted that the notice of contention is focused on the question of a failure to accept, rather than a failure to 'engage with' or 'refer to', Dr Mitchell's evidence.

1. In light of the Reasons and the submissions, we will turn to our analysis of the notice of contention.
2. In our view, it is unnecessary to decide which appellate standard of review applies in respect of the arguable case issue, given that we have concluded that the judge did not err in the House sense, and that the judge's conclusion was correct, in relation to this issue.
3. It is important to recognise that each of the causes of action relied upon in the Cayman Islands proceedings, and most relevantly the torts of abuse of process and malicious prosecution in the context of civil proceedings, are developing areas of law.
4. Further, it is appropriate to note what constitutes binding precedent in the Cayman Islands. Relevantly, Mr Quest was not challenged when he opined that:

(a) the Cayman Islands is a common law jurisdiction developing its own jurisprudence through decisions of the Grand Court (a court of first instance) and the Cayman Islands Court of Appeal;

(b) the final appeal from the Cayman Islands Court of Appeal is to the Privy Council in the UK and decisions of the Privy Council on such appeals are binding on Cayman Islands courts;

(c) where there is no Cayman Islands case law on a particular issue, Cayman Islands courts will look to decisions of the courts of England and Wales, and of the courts of other Commonwealth jurisdictions with:

(i) decisions of the UK Supreme Court, and the English and Welsh Court of Appeal being regarded as highly persuasive;

(ii) decisions of the Privy Council on appeals other than from the Cayman Islands Court of Appeal and decisions of the highest courts of other Commonwealth jurisdictions being regarded as highly persuasive;

(iii) decisions of the English High Court being regarded as persuasive; and

(d) none of the decisions in (c) above are binding on Cayman Islands courts.

1. Based on the House standard, we have formed the clear view that the judge did not err in the House sense in her analysis of the abuse of process claim.
2. The judge set out the relevant evidence of Dr Mitchell and Mr Quest in relation to the abuse of process claim. Of course, in light of the overlap of some of those issues with the malicious prosecution claim, that analysis has to be read in light of the judge's lengthy consideration of the expert evidence in respect of the malicious prosecution claim.
3. The judge then addressed the substance of the arguments of each expert in relation to the abuse of process claim, preferring the evidence of Mr Quest. As set out in [126] and [127] above, most relevantly, she concluded in accordance with his evidence that the applicants had a realistic prospect of success on their claim for abuse of process.
4. The Reasons were prepared in respect of an application for a freezing order and there was a degree of urgency about the delivery of Reasons given the interim freezing order had been maintained since 23 July 2025. There was a substantial body of material to be addressed by the judge in relation to the application. The Reasons disclose that the judge considered in detail the expert evidence which lay at the heart of the arguable claim issue and formed a view having considered that evidence. This is in a context where the tort of abuse of process in relation to civil proceeding is developing. Further, we agree that a judge, in considering whether there is a good arguable case in such an application, should not engage in a mini‑trial, all the more so where the relevant law is yet to be settled.[62]
5. Turning to the correctness standard, like the judge, we also prefer the opinion of Mr Quest. In our view, his analysis is more consistent with developing nature of the tort of abuse of process. Having regard to the expert evidence, at the heart of such a claim is the question of whether the person was relevantly involved in a proceeding issued or maintained for an improper purpose to the knowledge of that person.
6. In light of our conclusions in relation to the serious wrongdoing allegation basis, there is, in our view, a good arguable case against Mr Crawford in this regard.
7. Further, in relation to any deficiencies in the particulars of Mr Crawford's knowledge of the Transaction Agreement in the ASOC, there is before this Court additional evidence of Mr Crawford's knowledge of the Transaction Agreement. We refer to our comments in [107] and [109] above and, most relevantly, to the terms of the Harneys letter which set out the substance of the terms of the Transaction Agreement and that pursuant to that agreement, the shareholding of Red Wolf and Landing Point in Raisa were cancelled. Based on these matters alone, it would be open to infer that Mr Crawford knew about the Transaction Agreement and its terms on or about 6 July 2020.
8. We are conscious that there is a dispute as to whether the Carey Olsen invoices will be admissible at the trial of the Cayman Islands proceedings. Nevertheless, to the extent that these invoices are admissible, they confirm our conclusion that it is open to infer that Mr Crawford knew about the Transaction Agreement and its terms at about that time.
9. As a result of these matters, it follows that the judge was correct to conclude that there was a good arguable case for the tort of abuse of process.

1. Given her finding on the dissipation issue, the judge did not address the balance of convenience and whether she would grant the relief sought by the applicants. However, in light of our conclusions set out above, it is necessary for this Court to consider these matters. This is the subject of proposed ground 3.
2. Relevantly, the applicants submitted that the making of a freezing order, or at least the notification order proposed them, carried a lower risk of injustice.[63]
3. As to the proposed freezing order, the applicants submitted that it was confined in respect of specific assets, and permitted exceptions for (amongst other things) ordinary living and business expenses. The applicants submitted that, although the freezing orders may result in some reputational harm to the Third Party Respondents, that is not a sufficient reason not to make them in this case. The applicants emphasised that they had offered to pay AUD100,000 by way of security for the undertaking as to damages - a figure offered in circumstances where Mr Crawford's expected damage was not quantified and an alternate figure for security was not provided by the respondents.
4. The respondents made the following submissions in opposing any grant of relief in the exercise of any discretion:

(a) the material nondisclosure at the ex parte hearing in July 2025 is a discretionary factor operating against the grant of a freezing order, particularly where the acknowledgement was, in the words of the judge, 'less than contrite, and somewhat disappointing';[64]

(b) in circumstances where the Cayman Islands proceedings have no connection with Australia, where most of the Third Party Respondents are incorporated overseas and Mr Crawford is not based in Victoria, and where the assets sought to be frozen are almost entirely outside Australia, 'circumspection and care' and a 'cautious' approach ought be adopted when exercising the discretion to grant a worldwide freezing order;[65]

(c) Mr Crawford deposed that he is concerned that there is a risk '[a] freezing order will cause substantial loss to the Mongolian mining business' and may adversely affect his customers' willingness to conduct business with him;[66]

(d) the applicants have only offered security for the undertaking as to damages in the sum of AUD100,000, which is inadequate given the risk of damage set out in (c) above; and

(e) the applicants had delayed in applying for the freezing order, having had knowledge of the relevant facts concerning the Transaction Agreement since April 2023 and having assignment of the claim since March 2024.

1. Further, the respondents submitted that the alternative proposal of the notification order is not a lesser remedy, and may indeed be more onerous than the freezing order, and should therefore be rejected. This is because the respondents submitted the notification order proposed by the applicants does not specify a sum in respect of which notification is to be given, and does not specify whether notification is required for ordinary living or business expenses.
2. During the course of oral arguments, the applicants addressed their non-disclosure at the time of obtaining the 23 July order, contending that they had already been 'punished' for their material nondisclosure by virtue of having the initial freezing order discharged, notwithstanding that this nondisclosure was 'inadvertent', rather than 'deliberate or intentional'.[67]
3. In our view, having regard to the good arguable case and the reasonable possibility of dissipation, the interest of justice require the imposition of an appropriately formulated notification order. We will comment on the form of an appropriate order below.
4. In the particular circumstances of this case, we do not consider that the imposition of a freezing order is appropriate. This is for a number of reasons. First, there is the evidence of Mr Crawford that there is a risk that the imposition of a freezing order will cause substantial loss to the Mongolian mining business and will adversely affect his customers' willingness to conduct business with him. Those matters are contained in parts of Mr Crawford's affidavit sworn 11 September 2025, which are marked as confidential so we will not refer to them further. It suffices to say that we accept that there is a risk that the imposition of a freezing order may cause significant loss to the respondents.
5. Second and relatedly, we are far from satisfied of the applicants' ability to honour any undertaking as to damages if a freezing order is made and the applicants are not ultimately successful in the Cayman Islands proceedings. This is in circumstances where there is no evidence before the Court as to the applicants' assets and we are far from satisfied that security in the sum of AUD100,000 offered by the applicants is adequate in light of the risk of loss referred to in the previous paragraph.
6. We have reached this conclusion conscious that we are unable to form any concluded view as to the strength of the claims in the Cayman Islands proceedings, save that we are satisfied there is a good arguable case in respect of the abuse of process claim. We have also reached this conclusion conscious that we are unable to form a concluded view as to the extent of the risk of dissipation save that there is a reasonable possibility of a risk of dissipation of assets by Mr Crawford.
7. Third, in our view, it is relevant to the exercise of our discretion that the applicants did not consider it appropriate to apply for an interim freezing order from this Court pending the hearing and determination of this application.
8. For completeness, in reaching this decision, we have not taken into account the applicants inadvertent disclosure on the ex parte application. In our view, it is appropriate to consider the discretion as to relief in light of the applicant's' acknowledgement of inadvertent disclosure. Further, in reaching this decision, we have concluded that there was no relevant delay on the part of the applicants in bringing the Cayman Islands proceedings or in seeking freezing orders. This is in light of the nature of the claims pleaded in the Cayman Islands proceedings which involve difficult and developing areas of law.
9. Further, we consider that an appropriately formulated notification order carries a lower risk of injustice than a freezing order. This is primarily for the reasons set out in [152] and [153] above. Further, the respondents did not depose as to any particular prejudice arising from a notification order. As a result, it would appear to allow Mr Crawford to conduct the Mongolian mining business without the burden of a freezing order. Finally, a notification order provides an appropriate degree of protection to the applicants in light of the matters set out above.
10. As to the terms of the notification order, it is important to acknowledge the different positions of Mr Crawford, the Third Party Respondents who only own shares, and the Third Party Respondents who own shares, mining tenements and exploration tenements and/or licences.
11. In the case of Mr Crawford, we consider it is appropriate that he gives at least five business days' prior written notice to the applicants before disposing of, dealing with, or diminishing the value of any assets exceeding a specified sum, to be the subject of further argument. We note the applicants specified AUD50,000 in their proposed notification order annexed to the amended application for leave to appeal. In our view, the amount of AUD100,000 is more appropriate. Further, that order ought not prohibit Mr Crawford and would not require him to notify the applicants of payments for his ordinary living expenses, for his reasonable legal expenses, or prevent him dealing with or disposing of assets in the ordinary and proper course of his business, including paying business expenses bona fide and properly incurred.
12. In the case of each of the companies which owns shares, namely Boranup Holdings Pty Limited, Bridge Mining Holdings Pty Limited, Bridge Mining Pte Ltd, Terra Infrastructure Pte Ltd, Tellus Marketing Pte Ltd and Tellus Commodities Pte Ltd, we consider it is appropriate that each gives at least five business days' prior notice to the applicants before disposing of, dealing with, or diminishing the value of any shares that it may hold.
13. In the case of each of the companies which owns shares and/or mining and exploration tenements and/or licences, namely Terra Energy LLC, Enkhtunkh Orchlon LLC, Alagtevsh LLC, and Tsagaan Uvuljuu LLC, we consider it is appropriate that each gives at least five business days' prior notice to the applicants before disposing of, encumbering or otherwise dealing with or diminishing the value of any shares and/or mining and exploration tenements and/or exploration licences.
14. Further, in respect of each of the Third Party Respondents, the order ought not prohibit any of them from, and would not require them to notify the applicants of, paying their legal expenses, or dealing with or disposing of their assets in the ordinary and proper course of their business, including paying business expenses bona fide and properly incurred.
15. We are conscious that the notification order apply to all of the assets of the respondents, including those in excess of the sum of AUD42 million, which the applicants contend is the likely amount of any prospective judgment in the Cayman Islands proceedings. Nevertheless, there is little or no evidence before us from the respondents as to the value of their assets, let alone a value in excess of this sum.
16. Moreover, the notification order is of somewhat limited application. This is because, in the case of the Third Party Respondents, the notification order only applies to their shareholdings and their mining and exploration tenements and/or licences. Further, in the case of Mr Crawford, he is free to deal with assets not exceeding AUD100,000. In these circumstances, we consider it appropriate not to apply these orders to the assets of the respondents with a value of or in excess of AUD42 million.
17. The notification order will be made on the condition that the applicants give the usual undertaking as to damages, and pay security in the sum of AUD100,000. We note that the respondents proffered an undertaking of AUD100,000 in respect of the freezing order. In our view, imposing a payment as a condition of the notification order is an appropriate recognition of the risk of damage which may occur to the applicants by reason of the notification order and is in support of the undertaking as to damages when the applicants have put forward no evidence of their ability to meet the undertaking.
18. Finally, in light of the affidavit material filed by the respondents, we consider it is appropriate that we make an ancillary order to the effect that the respondents file an affidavit within seven business days, deposing to their assets wherever located, giving their value, location and details including any mortgages, charges or other encumbrances and the extent of the respondents' interest in those assets. This is in light of the fact that we are not satisfied that Mr Crawford has deposed clearly as to the nature, extent or value of the assets of the respondents in this proceeding.
19. As a result, it is appropriate that we hear from the parties on the final terms of the notification order.

1. In all these circumstances, we would grant leave to appeal in respect of proposed grounds 1 to 3, and we would allow grounds 1 and 3. We would dismiss the notice of contention.

• BRIDGE MINING HOLDINGS PTY LTD (ACN 663 120 081)

[1] Re Rasia (Grand Court of the Cayman Islands, Parker J, 28 July 2021) (the 'Judgment'), [7].

[3] Order of Parker J in Re Rasia (Grand Court of the Cayman Islands, FSD Cause No 81 of 2020 (RPJ), 15 September 2022).

[4] On notification orders or notification injunctions: see, eg, Parbery v QNI Metals Pty Ltd [2018] QSC 107; (2018) 358 ALR 88 (Bond J); [2018] QSC 107.

[5] The total amount claimed exceeded USD26 million (approximately AUD42 million).

[6] Rasia Group v Crawford [2025] VSC 619 (Sloss J) ('Reasons').

[8] Rozenblit v Vainer [2019] VSCA 164, [19(4)] (McLeish and Niall JJA) ('Rozenblit').

[9] Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169, 174 [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30.

[10] Deputy Commissioner of Taxation v AES Services (Aust) Pty Ltd [2009] VSC 418, [35] (J Forrest J) ('AES Services').

[11] Deputy Commissioner of Taxation v Seabrooke [2012] FCA 1158, [12] (Siopis J); Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 325 (Gleeson CJ) ('Patterson').

[13] Borkowski affidavit, sworn 16 September 2025 (the 'third Borkowski affidavit').

[14] Patterson (1989) 18 NSWLR 319, 325 (Gleeson CJ) ('Patterson'); KTC v Singh [2018] NSWSC 1510, [8] (White J).

[15] Crawford affidavit, sworn 11 September 2025 (the 'second Crawford affidavit'), [54].

[16] Second Crawford affidavit, [16].

[17] We note that the first day of the hearing for the strike out application was the 28 September 2020.

[18] Second Crawford affidavit, [46].

[21] Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645, 671-2 (Lawton LJ), cited in Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194, 197-8 [12] (Kenny J); [2010] FCA 1014 ('Hua Wang Bank Berhad').

[22] Noting that a risk of substantial injustice was not sufficient: Lanzer v Lombardo [2025] VSCA 229; Priceline Pty Ltd v JHY Nominees Pty Ltd (2010) 27 VR 513; [2010] VSCA 129.

[23] See, eg, Helensburg Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 424 ALR 1, 18 [77]-[81] (Edelman J); [2025] HCA 29.

[24] (2021) 273 CLR 429; [2021] HCA 43 ('Huang').

[25] Ibid 443 [17] (Gageler, Keane, Gordon and Gleeson JJ); [2021] HCA 43. See Supreme Court (General Civil Procedure) Rules 2025, r 37A.02(1) (the 'Rules').

[26] Huang [2021] HCA 43; (2021) 273 CLR 429, 443-4 [18] (Gageler, Keane, Gordon and Gleeson JJ); [2021] HCA 43.

[27] Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194 [56] (Kenny J); [2010] FCA 1014.

[28] Third Affidavit of Joseph Borkowski, [18].

[29] Rohan v Pavloff Family Investments Pty Ltd [2023] VSC 175, [57] (Nichols J).

[30] Patterson (1989) 18 NSWLR 319, 325-6 (Gleeson CJ); Lakatamia Shipping Company v Morimoto [2020] 2All ER (Comm) 359, [34(4)] (Haddon-Cave LJ, Richards LJ agreeing at [84], McCombe LJ agreeing at [89]) ('Lakatamia').

[31] Patterson (1989) 18 NSWLR 319, 325 (Gleeson CJ).

[32] Ibid 321 (Gleeson CJ), Royal Express v Huang [2021] FCA 585, [1], [9]-[12], [29], [31] (O'Bryan J); AES Services [2009] VSC 418, [35]-[36] (J Forrest J).

[33] Portbury Development Co Pty Ltd v Ottedin [2012] VSC 147, [42]-[46] (Habersberger J) (Portbury').

[34] Versace LED Low Energy Pty Ltd v Ploenges [2025] VSC 653, [26] (M Osborne J).

[35] [2011] VSC 204, [58]-[62] (Vickery J).

[36] Tomasetti v Brailey [2012] NSWCA 6, [18].

[37] Hurst v Prasad [2012] FCA 1562, [63]-[64].

[39] Second Crawford affidavit, [46].

[40] Kajula Pty Ltd v Downer EDI Limited [2024] VSCA 236; (2024) 76 VR 75, 99 [83]-[84] (Macaulay, Lyons and Orr JJA); [2024] VSCA 236.

[41] Rozenblit v Vainer [2019] VSCA 164, [19(9)] (McLeish and Niall JJA); Argyle Building Services Pty Ltd v Franek [2020] VSCA 196, [67] (Kyrou, McLeish and Niall JJA).

[42] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442, 460 [24] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.

[43] Rozenblit [2019] VSCA 164, [17] (McLeish and Niall JJA).

[44] Reasons, [62], quoting ibid [19(4)] (McLeish and Niall JJA).

[45] Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194, 197 [12] (Kenny J); [2010] FCA 1014, quoting Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645, 671 (Lawton LJ).

[46] Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194, 197 [11] (Kenny J); [2010] FCA 1014, quoting Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398, 406-7 (Mustill J) ('Ninemia Maritime').

[47] Patterson (1989) 18 NSWLR 319, 325-6 (Gleeson CJ, Rogers AJA agreeing at 327); Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194, 197 [10]-[11] (Kenny J); [2010] FCA 1014, quoting Ninemia Maritime [1984] 1 All ER 398, 406-7 (Mustill J).

[48] Patterson (1989) 18 NSWLR 319, 325 (Gleeson CJ, Rodgers AJA agreeing at 327), 326 (Meagher JA).

[49] Ibid 325 (Gleeson CJ, Rodgers AJA agreeing at 327); KTC v Singh [2018] NSWSC 1510, [8] (White J); Lakatamia [2019] EWCA Civ 2203, [34(4)] (Haddon‑Cave LJ, Richards LJ agreeing at [84], McCombe LJ agreeing at [89]); AES Services [2009] VSCA 418, [35]‑[36] (J Forrest J).

[50] Patterson (1989) 18 NSWLR 319, 325 (Gleeson CJ, Rodgers AJA agreeing at 327), 326 (Meagher JA) referring to 'gross dishonesty' (; Lakatamia [2019] EWCA Civ 2203, [34(4)] (Haddon-Cave LJ, Richards LJ agreeing at [84], McCombe LJ agreeing at [89]); Victoria University of Technology v Wilson [2003] VSC 299, [33] (Redlich J); RHG Mortgage Corporation Ltd v Kelly [2016] WASC 169, [36]-[38] (Pritchard J); Deputy Commissioner of Taxation v Gashi [2010] VSC 120; (2010) 27 VR 127, [34] (Bell J); [2010] VSC 120; Portbury [2012] VSC 147, [45] (Habersberger J).

[53] We note the hearing of the strike out application commenced on 28 September 2020.

[54] Reasons, [67], quoting Woodruff v Manda Capital Holdings Pty Ltd [2025] VSCA 164, [90] (McLeish, Walker and Lyons JJA).

[57] [2016] UKSC 43.

[60] Pollard v RRR Corporation Ltd [2009] NSWCA 110, [62] (McColl JA, Ipp JA agreeing at [1], Bryson AJA agreeing at [85]); Ming v DPP (NSW) [2022] NSWCA 209, [43] (Kirk JA, White JA agreeing at [1], Mitchelmore JA agreeing at [2]).

[61] Magomedov v TGP Group Holdings (SBS) LP [2023] EWHC 3134 (Comm), [27] (Butcher J); Dos Santos v Unitel SA [2024] EWCA Civ 1109, [100] (Flaux C, Popplewell LJ agreeing at [122], Falk LJ agreeing at [132]).

[62] We note the description of Gaudron J that there is a dearth of reported cases in Australia in which plaintiffs have managed to successfully establish their tortious claim of abuse of process, that the 'same pattern can be observed in other jurisdictions', and that the 'cases in this area speak in terms that are not entirely explicit': Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 553; [1992] HCA 34.

[63] Bradto Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65, [35] (Maxwell P and Charles JA); [2006] VSCA 89.

[65] Talacko v Talacko [2009] VSC 349, [35] (Kyrou J); _Credit Suisse Fides Trust SA v Cuogh_i [1998] QB 818, 831 (Bingham LJ).

[66] Third Crawford affidavit, [19]-[21] which are confidential.