//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2022] FCA 951
Federal Court of Australia
2022-08-10
Opal International P, Halley J
Original judgment source is linked above.
Service on Cindy Kilian (AKA Cindy Kilianova and Finnian Ken) 3. Pursuant to r 10.44(1) of the Federal Court Rules 2011 (Cth) (FCR), the applicant is granted leave to serve on Cindy Kilian copies of the following documents in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965: a. the Interlocutory Process and its supporting affidavits; and b. these orders. 4. Pursuant to FCR r 1.34, the requirement for service of the documents referred to in Order 3 above on Cindy Kilian in accordance with one of the methods in FCR r 10.44(1) is dispensed with. 5. Pursuant to FCR r 10.49, copies of the documents referred to in Order 3 above may be served on Cindy Kilian by way of: a. sending a message to the Cindy Kilianova FaceBook account, which reads as follows: "Orders have been made against Cindy Kilian (AKA Cindy Kilianova, Finnian Ken), Opal International P Pty Ltd, D R and MConstruction Pty Ltd, Malixconstructions Pty Ltd, Metro Hubb Pty Ltd and Secret Sen Pty Ltd by the Federal Court of Australia. Please contact Nicholas Dale of Swaab on [REDACTED]." b. sending a message to the [REDACTED] Instagram account, which reads as follows: "Orders have been made against Cindy Kilian (AKA Cindy Kilianova, Finnian Ken), Opal International P Pty Ltd, D R and MConstruction Pty Ltd, Malixconstructions Pty Ltd, Metro Hubb Pty Ltd and Secret Sen Pty Ltd by the Federal Court of Australia. Please contact Nicholas Dale of Swaab on [REDACTED]." c. emailing copies of the documents to the solicitors for the first defendant, Shadi Qaqour, marked with attention to Cindy Kilian (AKA Cindy Kilianova and Finnian Ken). d. by delivering copies of the documents to [REDACTED]. 6. Pursuant to FCR r 1.39, the time for service of the documents referred to in Order 3 above on Cindy Kilian be abridged to 5.00 pm on Monday, 15 August 2022.
Service on incorporated respondents 7. Pursuant to FCR r 1.39 and r 10.24, the time for service of the Interlocutory Process and the supporting affidavits and these orders be abridged to 5.00 pm on Monday, 15 August 2022, with service to be effected on the respective persons named below by the following means: a. as to D R and MConstruction Pty Ltd ACN 639 668 849, by leaving a copy at, or posting a copy to the address of its sole director, Mark Maximos, being [REDACTED]. b. as to Malixconstructions Pty Ltd ACN 639 668 938, by leaving a copy at, or posting a copy to the address of its sole director, Dua'a Tayseer Mohammad Alquoqa, being [REDACTED]. c. as to Secret Sen Pty Ltd ACN 644 009 450, by leaving a copy at, or posting a copy to the address of its sole director, Omar Eddine, being [REDACTED]. d. as to each of the above companies, emailing a copy of the documents to the solicitors for the first defendant, Shadi Qaqour, marked with attention to each company. 8. Pursuant to FCR r 1.39, the time for service of the Interlocutory Process and the supporting affidavits and these orders onto Opal International P Pty Ltd ACN 638 962 222 and Metro Hubb Pty Ltd ACN 640 233 021 be abridged to 5.00 pm on Monday, 15 August 2022.
Freezing and ancillary orders 9. On the undertakings set out in Schedule A herein pursuant to s 23 of the Act and FCR rr 7.32, 7.33 and 7.34: a. a freezing order be made against each of the first to sixth respondents to the Interlocutory Process in the form set out in Annexure A to these orders until 6.00 pm on Thursday, 18 August 2022 or further order of the Court; b. a further information eliciting order be made against the first to sixth respondents to the Interlocutory Process in the form set out in Annexure A to these orders.
Joinder 10. Pursuant to FCR r 9.05, orders that: a. Cindy Kilian (AKA Cindy Kilianova, Finnian Ken) be joined as the ninth defendant in these proceedings; b. Opal International P Pty Ltd ACN 638 962 222 be joined as the tenth defendant in these proceedings; c. D R and MConstruction Pty Ltd ACN 639 668 849 be joined as the eleventh defendant in these proceedings; d. Malixconstructions Pty Ltd ACN 639 668 938 be joined as the twelfth defendant in these proceedings; e. Metro Hubb Pty Ltd ACN 640 233 021 be joined as the thirteenth defendant in these proceedings; and f. Secret Sen Pty Ltd ACN 644 009 450 be joined as the fourteenth defendant in these proceedings. 11. The relief granted in Order 9 be listed for further hearing before Justice Halley at 10.15 am on 18 August 2022. 12. Leave be granted to the applicant to enter these orders forthwith. 13. Liberty to the parties to apply on 24 hours' notice to the Commercial and Corporations Duty Judge for New South Wales. THE COURT NOTES:
Introduction 1 By an interlocutory process filed 10 August 2022 by leave and pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and rr 7.32 and 7.33 of the Federal Court Rules 2011 (Cth) (Rules), the plaintiff seeks freezing orders against the following persons and companies: (a) Cindy Kilian, AKA Cindy Kilianova and Finnian Ken; (b) Opal International P Pty Ltd (ACN 638 962 222); (c) DR and MConstruction Pty Ltd (ACN 639 668 849); (d) MalixConstructions Pty Ltd (ACN 639 668 938); (e) Metro Hubb Pty Ltd (ACN 640 233 021); and (f) Secret Sen Pty Ltd (ACN 644 009 450) (together, New Characters). 2 The plaintiff also seeks orders for leave to serve Ms Kilian overseas and substituted service, and to join each of the New Characters to these proceedings. The freezing orders are sought in aid of the ultimate relief intended to be sought by the plaintiff against the New Characters. 3 The plaintiff has previously sought, and obtained, freezing orders against the present defendants: Scottish Pacific Business Finance Pty Ltd v Qaqour, in the matter of Penny World Pty Ltd (receivers and managers appointed) [2022] FCA 725 (Yates J) (Earlier Proceedings). 4 The plaintiff relies on the following evidence in support of the application for freezing orders and other matters set out in the interlocutory process: (a) an affidavit of Justin Nicholas Doczy, sworn 14 June 2022, together with Exhibit JND-1 to that affidavit; (b) an affidavit of Grahame Ward, sworn 14 June 2022, together with Exhibit GW-1 to that affidavit; (c) an affidavit of Nicholas Anthony James Dale, sworn 14 June 2022, together with Exhibit NAJD-1 to that affidavit; (d) an affidavit of Grahame Ward, sworn 17 June 2022; (e) an affidavit of Nicholas Anthony James Dale, sworn 9 August 2022, together with Exhibit NAJD-3 to that affidavit; (f) an affidavit of Mark Maximos, affirmed 8 August 2022; (g) an affidavit of Omar Jamal Eddine, affirmed 8 August 2022; and (h) an affidavit of Nicholas Anthony James Dale sworn 10 August 2022.
Background 5 The background to these proceedings and the claims made by the plaintiff are set out in the judgment of Yates J in the Earlier Proceedings at [17]-[42]. For present purposes, it is sufficient to note that the plaintiff's primary business is the provision of debtor finance to borrowers. The finance is provided by taking an assignment of debts owed to its clients, being debts owed by the customers of those clients, and by advancing to those clients amounts which are the subject of facility limits. 6 On 11 December 2019, the plaintiff entered into a debtor finance facility agreement with the fifth defendant (Penny World Pty Ltd). That facility was guaranteed by the first defendant (Shadi Qaqour), the second defendant (Wizly Pty Ltd) and a deregistered company (Penny Panel Machine Pty Ltd). 7 The first defendant is the sole director, secretary and shareholder of the fifth defendant. 8 The plaintiff advanced more than $3,120,489.85 to the fifth defendant based on invoices that now appear to have been fabricated. 9 Significantly, the purported invoices include invoices and associated delivery dockets purportedly issued to entities which bear similar names to the seventh defendant and the New Characters. 10 The plaintiff is concerned that the defendants, in particular the first defendant, have engaged in a fraudulent scheme in which companies have been incorporated with similar names to real companies, which were represented as the purported customers of the fifth defendant. 11 The similarity in the names is striking as demonstrated by the following table: Purported Customer Associated New Characters And Constructions Pty Ltd (ABN 29 166 454 539) D7, AndConstruction Pty Ltd (ACN 638 960 899) DR & M Constructions Pty Ltd (ABN 15 002 343 071) DR and MConstruction Pty Ltd (ACN 639 668 849) Malix Construction Pty Ltd (ABN 32 630 130 488) MalixConstructions Pty Ltd (ACN 639 668 938) Metro Hub Pty Ltd (ABN 36 621 377 231) Metro Hubb Pty Ltd (ACN 640 233 021) Opal International Pty Ltd (ABN 28 143 579 319) Opal International P Pty Ltd (ACN 638 962 222) Secret Sin Pty Ltd (ABN 31 159 760 719) Secret Sen Pty Ltd (ACN 644 009 450)
12 On 23 May 2022, the plaintiff appointed receivers and managers to the fifth defendant. In his affidavit sworn on 8 August 2022, Mr Eddine gives evidence that he first met the first defendant at a café in Bankstown in early 2020. He states that a few months after he met the first defendant, the first defendant convinced him to assist in establishing companies and bank accounts. Mr Eddine gives evidence that he received a payment of $2,000 from the first defendant into his bank account each time he set up a company at the request of the first defendant and he, in turn, paid $1,000 to the first defendant from his own account. He gives evidence that in or about mid-2020, the first defendant gave him two A4 pages setting out the names of "Secret Sen Pty Ltd" and another company. 13 Mr Eddine gives further evidence that, despite being a signatory to the accounts, he did not process transactions on them nor deposit any money to any account. He recalls that, at times during conversations with the first defendant regarding various bank account details, he heard the sound of typing on a computer keyboard. 14 Mr Eddine gives evidence he formed the view that, by reason of that fact and that he did not process any transactions on bank accounts in the names of those companies in which he was a director, the first defendant had internet banking access to the various bank accounts. 15 In his affidavit affirmed on 8 August 2022, Mr Maximos gives evidence that he met Ms Kilian in about 2016 and that he was introduced to her as the first defendant's girlfriend. 16 He gives evidence that, in approximately April or May 2022, the first defendant asked that he transfer the shares in two companies into the first defendant's name because Ms Kilian was returning overseas to Canada to live. He also states that the first defendant asked him to become a director of each of the following companies: (a) Malixconstructions Pty Ltd ACN 639 668 938; and (b) D R & MConstruction Pty Ltd ACN 639 668 849. 17 He gives further evidence that, some months ago, the first defendant said to him words to the effect: When Malixconstructions and DR & MConstructions opened bank accounts in about March 2020, Cindy Kilian was the signatory of the accounts and I have internet banking access to the accounts. 18 Mr Maximos also gives evidence that, approximately two weeks ago, he had a conversation with the first defendant in words to the following effect: [Mr Maximos]: "How are you able to transfer funds? How are you able to survive? How can you pay Omar's lawyer $3,000 or your rent when your accounts are frozen? I can't do that." [The first defendant]: "Cindy. She left accounts behind when she left the country." 19 On 14 June 2022, the Court made freezing orders against the first to fourth defendants and on 17 June 2022, the Court made freezing orders against the sixth to eighth defendants. The Court subsequently granted leave to the plaintiff to apply for the issue of subpoenas for production of various banks. 20 In his affidavit sworn on 10 August 2022, Mr Dale gives evidence that following the making of those orders, the plaintiff filed and served subpoenas, and over a period of weeks, those subpoenas have been returned before the Court. 21 I note that, from time to time, the Court has made orders for access to documents produced under those subpoenas and Mr Dale gives evidence that he has inspected those documents. Those documents have included bank account statements referring to the balance outstanding to the credit of bank accounts which are the subject of the freezing orders made on 14 and 17 June 2022. 22 Mr Dale gives evidence that on reading these bank account statements, he has observed that none of the accounts which are subject to the freezing orders and for which the plaintiff has had access to bank account statements, contain significant funds.
Freezing orders 23 In order to make freezing orders, I need to be satisfied that: (a) the plaintiff has a reasonably arguable case, both on the law and the facts; (b) there is a danger that a prospective judgment would be wholly or partially unsatisfied because the assets of the prospective judgment debtor or another person are removed from Australia or from a place inside or outside Australia or that the assets may be disposed of, dealt with, or diminished in value; and (c) the balance of convenience favours the granting of the freezing orders. 24 I am satisfied, based on the submissions of counsel for the plaintiff, Mr Oakes, who appears before me today on this urgent interlocutory ex parte application, that the evidence establishes a strong prima facie case that each of the New Characters, including Ms Kilian, have been involved in the alleged fraudulent scheme propounded by the first defendant. 25 The evidence establishes that Ms Kilian has been a director of each of the other companies comprising the New Characters and in that respect, in particular, I note that she was a director of MalixConstructions Pty Ltd (ACN 639 668 938) and Metro Hubb Pty Ltd (ACN 640 233 021) until March of this year. In those circumstances, I am satisfied that, together with the other evidence, there is a strong prima facie case that Ms Kilian has been involved in the alleged fraudulent scheme as outlined in the judgment of the Earlier Proceedings. 26 I am also satisfied that there is a serious prospect that Ms Kilian and each of the companies comprising the New Characters may have funds that have been generated from this alleged fraudulent scheme in their bank accounts. 27 I make those findings particularly given the absence of any funds found in the bank accounts that have been inspected to date and the similarity of the names of the New Characters with the purported customers as set out in the table above. 28 In addition to there being a strong prima facie case, I am satisfied that the balance of convenience favours the making of the freezing orders. The prima facie case is a strong case, there is a departure from the jurisdiction of a significant potential player in the scheme and there is evidence that the existing freezing orders have been circumvented by having access to accounts which are not currently subject of the freezing orders and in those circumstances there is a real risk there will not be funds ultimately available to satisfy any judgment that might ultimately be delivered against the defendants in these proceedings. 29 For that reason, I am prepared to make, and believe it is appropriate to make, the freezing orders as sought out in the Interlocutory Process.
Substituted service 30 The plaintiff seeks substituted orders for service with respect to each of the following entities: (a) D R and MConstruction Pty Ltd ACN 639 668 849, by leaving a copy at, or posting a copy to the address of its sole director, Mark Maximos, being [REDACTED] [REDACTED] [REDACTED]; (b) Malixconstructions Pty Ltd ACN 639 668 938, by leaving a copy at, or posting a copy to the address of its sole director, Dua'a Tayseer Mohammad Alquoqa, being [REDACTED] [REDACTED] [REDACTED]; and (c) Secret Sen Pty Ltd ACN 644 009 450, by leaving a copy at, or posting a copy to the address of its sole director, Omar Eddine, being [REDACTED][REDACTED] [REDACTED]. 31 I am satisfied that those orders for substituted service are appropriate and would be likely to bring to the attention of each of those defendants the orders sought in the interlocutory process. 32 The position with respect to Ms Kilian is more complicated. The evidence establishes that Ms Kilian is likely in Canada and, therefore, cannot be served in Australia. In order to effect service outside the jurisdiction in Canada, the plaintiff has sought an order under r 10.44 of the Rules for leave to serve the interlocutory process, the orders of the Court and affidavits relied upon in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (Hague Convention). 33 Mr Dale gives evidence that Ms Kilian is likely to be located in Canada, the proposed method of service is by process server, the Hague Convention applies in relation to service in Canada and that the proposed method of service is permitted under the Hague Convention. 34 That evidence is based on a review of the website address "dgrlegal.com" and the official website of the Hague Conference on Private International Law (HCCH) located at "www.hcch.net". 35 Mr Dale also annexes to his affidavit sworn on 10 August 2022 extracts from the Hague Conference on Private International Law website that confirm the contracting parties to the Hague Convention and information in relation to service of documents in Canada under the Hague Convention. 36 Further, Mr Dale gives evidence that, based on the enquiries that he has undertaken and which members of his staff have made, he has not been able to ascertain the current address of Ms Kilian in Canada. 37 I am satisfied that, in all the circumstances, it would not be practicable to attempt service on Ms Kilian notwithstanding the requirement under the Hague Convention to attempt service in a foreign jurisdiction before it is appropriate to consider substituted service. Dispensation pursuant to r 1.34 to comply with r 10.49 of the Rules is exercised rarely, typically only where there is real urgency for service and where the evidence suggests an impossibility or serious impracticability in service by means contemplated by the Hague Convention: Park (as trustee of the bankrupt estate of Tschannen) v Tschannen and Another (2016) 341 ALR 452; [2016] FCA 137 at [15] (Edelman J); Australian Information Commission v Facebook Inc [2020] FCA 531 at [63] (Thawley J);Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 at [73] (Downes J). 38 I am satisfied that in this case there is a real urgency for service as there is a real risk that the funds will be dissipated given the inability to date to access any funds in the accounts in respect of which searches, or information, have already been obtained, and that there is a serious impracticability in service by means contemplated in the Hague Convention. I am satisfied that the proposed orders for substituted service sought in the interlocutory process are, with the addition of the last known address as recorded in the Australian Securities and Investments Commission register for Ms Kilian in Australia, sufficient to give rise to a reasonable probability that Ms Kilian will have the matters brought to her attention, that is, these orders, the interlocutory process and the evidence relied upon. 39 I note, in that respect, that the substituted service orders in part provide for sending messages to the Cindy Kilianova Facebook account and to the Instagram account of "Ms Kilianova". I am satisfied on the evidence that there is a reasonable probability that Ms Cindy Kilianova is a pseudonym that has been used by Ms Kilian given a number of factors that have been identified by the plaintiff including the connection with Canada and her apparent age. If there is any issue with that, no doubt, Ms Kilianova, if she exists independently of Ms Kilian, will draw that to the Court's attention and to the plaintiff's attention very quickly.
Other orders sought 40 I note that the plaintiff by its counsel, Mr Oakes, provides the usual undertaking as to damages. Further, I note that the plaintiff seeks orders for delayed service on the New Characters given the concern that the funds may well be dissipated immediately on service of the orders, interlocutory process and affidavits. In that respect, I accept it as appropriate, in the first instance, that the orders be served on the relevant financial institutions by 6.00 pm today and that service on the New Characters be delayed until on or before 5.00 pm on Monday, 15 August 2022. 41 The plaintiff also seeks orders that each of the New Characters be joined as parties to the proceedings. I am satisfied that it is appropriate to make an order pursuant to r 9.05 of the Rules to the effect that each of the New Characters be joined as a party to the proceedings.
Disposition 42 The orders sought in the interlocutory process, subject to the amendments that I have outlined above, will be made. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.
SCHEDULE OF PARTIES NSD 444 of 2022 Defendants Fourth Defendant: OMAR JAMAL EDDINE Fifth Defendant: PENNY WORLD PTY LTD (RECEIVERS & MANAGERS APPOINTED) ACN 123 180 503 Sixth Defendant: CONSTRUCTIONS AU PTY LTD ACN 652 441 104 Seventh Defendant: ANDCONSTRUCTION PTY LTD ACN 638 960 899 Eighth Defendant: CCS 136 CASTKEREAGH PTY LTD ACN 157 791 869
Scottish Pacific Business Finance Pty Ltd
Qaqour, in the matter of Penny World Pty Ltd