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[2024] FCA 334
Federal Court of Australia
2024-04-02
Mr J, Halley J
Original judgment source is linked above.
A. At the ex parte hearing on 2 April 2024, the applicants, by their Counsel, gave the usual undertaking as to damages, included at Schedule A of "Annexure A" and "Annexure B", annexed to these orders.
A. Introduction 1 By an interlocutory application filed on 28 March 2024 (interlocutory application), the applicants seek freezing orders against each of the first respondent, Paul Jacque Giezekamp (also known as Paul Jacques Giezekamp) and the second respondent, U Money Australia Pty Ltd (ACN 159 776 888). 2 The second respondent is a company of which the first respondent is the sole director and in which the first respondent owns 950 of the 1,000 issued shares. The first respondent's mother, Astrida Giezekamp, holds the remaining 50 issued shares. 3 The immediate catalyst for the application is that a major asset of the first respondent, a property at 238 Darling Street, Balmain, New South Wales (Property) has been listed for auction on 11 April 2024. Each of the applicants is a person or entity that has engaged in commercial dealings with the first respondent and has allegedly incurred significant losses from those dealings. In broad terms, the applicants contend that they were induced by the respondents to enter into joint venture agreements and loan agreements with the first respondent and related entities of the first respondent with respect to the development of properties in New South Wales and Victoria. 4 The applicants seek to pursue claims in these proceedings against the respondents for misleading and deceptive conduct under the provisions of the Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2010 (Cth), for moneys had and received, and contractual claims. 5 The application for freezing orders is supported by significant and extensive affidavit evidence from the applicants. The applicants rely on the following affidavits: (a) the affidavit of Julie Anne Simmons sworn on 27 March 2024; (b) the affidavit of Bruce Saunders sworn on 27 March 2024; (c) the affidavit of Mark Hamilton-Jessop sworn on 27 March 2024; (d) the affidavit of Jeffery Tam sworn on 25 March 2024; (e) the affidavit of Graham Leggate sworn on 27 March 2024; (f) the affidavit of Haggan Shakespeare sworn on 25 March 2024; (g) the affidavit of Malcolm Brown sworn on 27 March 2024; (h) the affidavit of Catherine Cochlin sworn on 27 March 2024; (i) the affidavit of Delwin Lewis sworn on 28 March 2024; and (j) the affidavit of Stig Brixen sworn on 28 March 2024. 6 In addition, the applicants rely on an affidavit from their solicitor, Russell Phair sworn on 28 March 2024. 7 The applicants seek damages against the first respondent and the second respondent in an aggregate amount of more than $9 million.
B. Principles 8 The principles applicable to the making of a freezing order by this Court are well settled. 9 For a freezing order to be made, the Court must be satisfied of three matters. 10 First, the applicant has established that there is a good or reasonably arguable case both on the law and the facts: Deputy Commissioner of Taxation v Vasiliades (2014) 323 ALR 59; [2014] FCA 1250 at [35] (Gordon J); Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [68] (Gaudron, McHugh, Gummow and Callinan JJ); and r 7.35(1) of the Federal Court Rules 2011 (Cth) (Rules). 11 Second, having regard to all the circumstances, there is a danger that a judgment or a prospective judgment will be wholly or partly unsatisfied because, inter alia, the judgment debtor or prospective judgment debtor may abscond, or the assets of the judgment debtor or prospective judgment debtor are removed from Australia or from a place inside or outside Australia, or disposed of or dealt with or diminished in value: Vasiliades at [35] (Gordon J); r 7.35(4) of the Rules. 12 Third, the balance of convenience must favour the making of the orders: Vasiliades at [35] (Gordon J); BGS Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 at [22] (Le Miere J).
C. Consideration 13 I am satisfied that the applicants have at least reasonably arguable cases on both the law and the facts. 14 Counsel for the applicants, Mr J Baird, exhaustively took the Court through the affidavit evidence on which the applicants rely to establish that they have at least a reasonably arguable case on the law and the facts, both with respect to misleading and deceptive conduct and with respect to moneys had and received and breach of contract. 15 In addition, the twelfth applicants, SJB Investments Holdings Pty Ltd, Stig Brixen and Michelle Brixen have obtained a judgment from the County Court of Victoria which has subsequently been registered in the New South Wales Supreme Court in an amount of $514,996.04. 16 As to the prospective claims that the balance of the applicants have against the respondents, in particular, the first respondent, counsel for the applicants fairly raised with the Court that a number of the representations sought to be relied upon by the applicants in their affidavit evidence were oral and the precise nature of the representations, in particular, whether they are best characterised as future or present representations are matters that will have to be the subject of specific pleadings, and with respect to the oral representations, may be the subject of contested evidence from the first respondent. 17 Having said that, I accept, as submitted by counsel for the applicants, that most of the representations on which the applicants seek to rely, as set forth in their affidavit evidence, are written and contained in the joint venture agreements and loan agreements that the applicants entered into with the first respondent and his related entities, including the second respondent. 18 I have placed particular weight on the extent to which the first respondent has entered into arrangements in which conflicting and contradictory interests have been created by him with different applicants with respect to Unit 3 at 8 Eileen Street, Hadfield, Victoria. 19 Further, I have had particular regard to evidence given by the applicants of loans made by them to the first respondent and related entities for the purported purpose of enabling the purchase of properties in circumstances where those properties had already been purchased by the first respondent and his related entities. 20 What emerges from the affidavit evidence relied on by the applicants today is a course of conduct by a property developer who appears to be prepared to enter into arrangements which contain obligations which he has failed to perform and appears never had any intention to perform. 21 I am also satisfied that there is a significant danger that both the judgment obtained by the twelfth applicant and the prospective judgments that are sought to be obtained by the first to eleventh applicants will be wholly or partly unsatisfied, for the following reasons. 22 First, the first respondent has left behind a large number of uncompleted projects with limited opportunities to realise any value from them. At least on the evidence in the applicants' affidavits, that would not enable the applicants to recover the amount of the moneys that they had invested or advanced to the first respondent and his related entities to the extent that they had otherwise been able to obtain any security to support those investments or advances. 23 Second, the first respondent has, at least for the past several months, refused to respond to requests for information, clarification or recompense from the applicants and is currently located in Serbia. The first respondent has advised several of the applicants that he is currently in Serbia for the purpose of trying to secure the release of his two infant children in circumstances where his partner has allegedly fled to Serbia with the children and is refusing to allow them to return to Australia. 24 Third, the scale and significance of the amounts that the applicants claim are owed to them are in aggregate, a figure of in excess of $9 million. 25 Fourth, the refusal of the first respondent to engage in any meaningful communication with the applicants and his current indeterminate stay overseas combined with the imminent potential sale of his principal asset which has been valued on a valuation that he himself procured in 2023 of some $18 million. 26 Finally, I am satisfied that the balance of convenience favours the making of the freezing orders. The orders sought by the applicants do not operate to prevent or otherwise hinder the potential sale of the Property. Rather, the orders only provide for the proceeds of the sale of the Property, if it proceeds, to be paid into an interest bearing account in the joint names of the solicitors for the first respondent and the solicitors for the applicants. In contrast, if the freezing orders are not granted, there is a danger that the first respondent will dissipate the proceeds of any sale of the property and remove them from the jurisdiction, particularly, given the current location of the first respondent and the extent of the amounts that are alleged to be owed by him to the applicants. 27 I am also satisfied that it is appropriate that orders be made for the respondents to provide affidavits disclosing their current assets and liabilities. 28 In addition, I note the following. 29 First, the Property is currently held in the name of both the first respondent and his mother, Mrs Giezekamp, as tenants in common in equal shares. It is therefore necessary to ensure that the freezing orders are brought to her attention as soon as possible so that she can consider what if any steps that she wishes to take with respect to the freezing orders. 30 Second, both the first and second applicants and the sixth applicant have commenced proceedings in the District Court of New South Wales in February 2024 seeking recovery of the sum of $500,000 and $314,908.06, respectively. 31 It will be necessary for both those proceedings to be discontinued if those claims are sought to be litigated in this Court, together with the claims advanced by the third to fifth applicants and the seventh to eleventh applicants.
D. Disposition 32 For these reasons, I am satisfied that orders should be made in substantially the form of the freezing and ancillary orders sought by the applicants in the interlocutory application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.
SCHEDULE OF PARTIES NSD 355 of 2024 Applicants Fourth Applicant: MARC HAMILTON-JESSOP Fifth Applicant: JEFFREY TAM Sixth Applicant: GRAHAM LEGGATE Seventh Applicant: SHAKESPEAREAN PTY LTD (ACN 669 735 602) Eighth Applicant: MALCOLM BROWN Ninth Applicant: D & W LEWIS PTY LTD (ACN 655 256 116) Tenth Applicant: CATHERINE COCHLIN Eleventh Applicant: DAVID COCHLIN Twelfth Applicant: SJB INVESTMENT HOLDINGS PTY LTD (ACN 605 861 372), STIG BRIXEN AND MICHELLE BRIXEN
Simmons
Giezekamp