Zhao v Bonheur Holdings Pty Ltd atf Bonheur Holdings Trust

Supreme Court of NSW|2020-05-07|Before: Williams J, Mr P

A. Introduction

These reasons for judgment concern the plaintiffs' application made by notice of motion filed on 29 April 2020 for freezing orders and ancillary orders against each of the first and second defendants pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 25.11, 25.12 and 25.14 and/or the Court's inherent jurisdiction. The freezing orders sought would restrain the first and second defendants from removing from Australia, disposing of, dealing with or diminishing the value of their assets up to the unencumbered value of $2,800,000 and $500,000 respectively (the Application).
The Application was made on notice to the defendants and was the subject of an inter partes hearing on the afternoon of 4 May 2020 and on 7 May 2020. The length of the hearing is attributable to the wide-ranging factual matters relied on and the extensive evidence adduced by the plaintiffs in support of the Application, and the scope of the responsive evidence adduced by the defendants.
The plaintiffs relied on the following evidence in support of the Application: 1. an affidavit of the first plaintiff, Yan Zhao, affirmed on 25 March 2020 of 357 paragraphs, and Exhibit YZ-1 to that affidavit (an exhibit containing 186 documents, which was provided to the Court in electronic form only and which was Exhibit 1 on the application); 2. a further affidavit of the first plaintiff affirmed on 27 April 2020 of 133 paragraphs, and Exhibit YZ-2 to that affidavit (an exhibit containing 69 documents, which was provided to the Court in electronic form only and which was Exhibit 2 on the application); 3. Tab 19 of Exhibit YZ-2, which was omitted from the electronic copy of YZ-2 and which was therefore tendered separately as Exhibit 3 on the application; 4. a further affidavit of the first plaintiff affirmed on 6 May 2020 of 40 paragraphs and four annexures; and 5. an email which was tendered as Exhibit 4 on the application.

Plaintiffs' application to re-open their case on the notice of motion

The principles applicable to an application by a party for leave to re-open its case are well established and were conveniently summarised by White J in FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 at [30]-[33]: "30. The principles upon which the Court acts on applications of the present kind are settled. The overriding principle is the interests of the administration of justice having regard to all the circumstances of the case: Inspector‑Gen eral in Bankruptcy v Bradshaw [2006] FCA 22 at [2 4], [2 6]; Brown v Petranker (1991) 22 NSWLR 717 at 72 8; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 47 8; Harrington‑Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338, (2004) 207 ALR 483 at [12 1]; Wal sh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, (2014) 243 IR 468 at [ 48]. 31. In Brads haw, Kenny J identified at [24 ] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. Although it is not necessary to categorise the present case into any of those classes, the second and fourth seem to be the most apt. 32. The matters bearing on the interests of justice in a case like the present are various. They include: the public interest (and the interest of the particular parties) in litigation being conducted efficiently and expeditiously; the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing; the significance of the proposed new evidence and submissions in the context of the trial; the explanation for the evidence not having been led at the trial; the likely prejudice to the opposing party if the application is allowed; the potential detriment to the applying party if the application is refused, and; any delay by an applicant in seeking leave to reopen. 33. Regard should be had generally to the overarching purpose stated in ss 37M and 37N of the Federal Court of Au stralia Act 1976 ( Cth ). It is a relevant consideration that evidence was not led, or submissions were not made, at trial because of a tactical decision from which the applying party wishes to resile. It is also relevant that a mistake leading to the matter not having been agitated at trial is attributable to the litigant's legal representatives and not to the litigant personally. However, the circumstance that the evidence was not led, or the submissions were not made, by reason of the negligence of the party or its legal representatives, is not necessarily fatal to an application for reopening being allowed. In LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1141 at [34] Lindgren J said: 'Clearly, the fact that a failure to make submissions on a point is, as here, solely attributable to the neglect or default of the party seeking leave will militate against the granting of the application for leave. But it will not necessarily defeat the application in all cases.'"
FYD Investments Pty Ltd v Promptair Pty Ltd was a case in which the application for leave to re-open was made after judgment had been reserved. However, the principles summarised by White J are equally applicable to a case such as the present in which the application is made during closing submissions after each party has closed its case: see, for example, Koonara Management Pty Limited v Rockliff (No. 2) [2019] FCA 808; (2019) 137 ACSR 215 at [20]-[27]. Paragraph [33] of White J's reasons for judgment in FYD Investments Pty Ltd v Promptair Pty Ltd apply equally to cases in this Court, having regard to the provisions of ss 56 to 58 of the Civil Procedure Act 2005 (NSW).
In summary, after weighing the considerations referred to above in the circumstances of this case, I have decided that the interests of the administration of justice favour refusal of the plaintiffs' application to re-open for the purpose of adducing evidence of the first plaintiff's financial capacity to honour her undertaking in relation to damages. My reasons for that decision are set out in Section F below.

Plaintiffs' application for freezing orders and ancillary orders

It is well established that an applicant for a freezing order is required to demonstrate: 1. a good arguable case against the defendants against whom the freezing order is sought, in the sense that the case is more than barely capable of serious argument, albeit not necessarily one which the court considers to have a better than fifty per cent chance of success: see, for example, Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321 (Gleeson CJ) and 326 (Meagher JA); Samimi v Seyedabadi [2013] NSWCA 279 at [69] per McColl JA, citing Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG 'The Niedersachsen' [1983] 1 WLR 1412; [1984] 1 All ER 398 at 404 per Mustill J; and 2. a danger that any judgment obtained by the plaintiff against the defendant will be wholly or partly unsatisfied because the defendant's assets might be disposed of, dealt with or diminished in value. This danger must be established by evidence, rather than being merely asserted. The evidence may take a number of forms, including direct evidence that the defendant has previously acted in a way which shows that its probity is not to be relied on. However, it is not necessary for a plaintiff to show that the defendant has a positive intention of evading a judgment. It is sufficient if the defendant's conduct or proposed conduct is, objectively speaking, calculated to have the effect of frustrating the enforcement of any judgment that the plaintiff may obtain: UCPR r 25.11; Samimi v Seyedabadi [2013] NSWCA 279 at [72]-[74] per McColl JA, citing Frigo v Culhaci [1998] NSWCA 88 at pages 6 and 8 per Mason P, Sheller JA, Sheppard AJA and Finn v Carelli [2007] NSWSC 261 at [4] per Brereton J (as his Honour then was).
In some circumstances, such as where the plaintiff's case against the defendant involves proof of fraud, demonstration of a good arguable case may also have a bearing on or even satisfy the second limb: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325-326 (Gleeson CJ) and 326 (Meagher JA).
Assuming that the two matters above are established, discretionary considerations must also be taken into account, including whether the plaintiff has proceeded diligently and expeditiously in applying for the freezing order: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [53] per Gaudron, McHugh, Gummow and Callinan JJ; see also Samimi v Seyedabadi [2013] NSWCA 279 at [75] per McColl JA.
As the Court of Appeal said in Frigo v Culhaci [1998] NSWCA 88 at page 6 per Mason P, Sheller JA, Sheppard AJA, in a passage subsequently approved in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [51] per Gaudron, McHugh, Gummow and Callinan JJ, a freezing order: "… is a drastic remedy which should not be granted lightly ... if granted, [it] imposes a severe restriction upon a defendant's right to deal with his or her assets. It is granted at the suit of a plaintiff whose status as a creditor is in dispute … Its purpose is to preserve the status quo, not to change it in favour of the plaintiff. The function of the order is not to provide a plaintiff with security in advance for a judgment that he hopes to obtain and that he fears might not be satisfied…"
In summary, I note the defendants' concession that the plaintiffs have established a good arguable case against the defendants for damages for breach of contract, for monies owing under loan agreements and for misleading or deceptive conduct. After taking into account the evidence and the parties' written and oral submissions, I have concluded that the plaintiffs have failed to establish a risk that any judgment that may be awarded in their favour will be wholly or partly unsatisfied by reason of a course of conduct by the defendants dissipating their assets. I have therefore dismissed the plaintiffs' notice of motion.
In view of that conclusion referred to above, it was not necessary for me to consider discretionary factors of the kind referred to in Cardile v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18 at [53] per Gaudron, McHugh, Gummow and Callinan JJ.

C. Structure of these reasons

The balance of these reasons are structured as follows: 1. Part D below outlines the nature of the case pleaded by the plaintiffs and the scope of the defendants' concession made on the hearing of the notice of motion that the plaintiffs have a good arguable case (in the sense described in the authorities referred to above) against the defendants; 2. Part E below outlines the history of this proceeding in relation to freezing orders prior to the conclusion of the hearing of the present Application; 3. Part F below considers the plaintiffs' application for leave to re-open their case on the notice of motion in order to adduce evidence of the first plaintiff's capacity to pay any damages that she may be ordered to pay in accordance with her undertaking; and 4. Part G below considers the Application.
I have considered all of the parties' written and oral submissions, and the evidence to which they referred me in those submissions. It was desirable to determine the Application promptly. In the short time available to prepare these reasons, I have endeavoured to convey the substance of the submissions and the evidence to which the parties referred in those submissions that has informed my judgment, without necessarily recording every detail of those submissions and the evidence.

D. Nature of the Plaintiff's Case

This proceeding was commenced in July 2019.
The plaintiffs' current pleading is the Second Further Amended Statement of Claim filed on 4 February 2020 (the Claim). The defendants filed a Defence to the Claim on 10 February 2020 (the Defence).
The Claim pleads that: 1. the second defendant breached an agreement entered into with the plaintiffs in June 2017 concerning the resale of a property that the plaintiffs had earlier contracted to purchase from the second defendant (paragraphs 4 to 13 of the Claim); 2. a deed of rescission signed by the plaintiffs on 31 January 2018 in relation to an earlier contract for sale of land between the plaintiffs and the second defendant is invalid, unenforceable, null, void and of no effect (paragraphs 13A to 13F of the Claim); 3. alternatively, if that deed of rescission is enforceable, the plaintiffs were induced to enter into it by misleading or deceptive conduct of the second defendant, and the plaintiffs have thereby suffered loss (paragraphs 13G to 13O of the Claim); 4. a document entitled "Deed of Recession" was signed by the second plaintiff on 23 February 2018, in circumstances where: 1. the second defendant had provided the "Deed of Recession" to the first plaintiff through DocuSign on the morning of 23 February 2018, but the plaintiff had not in fact viewed or signed the "Deed of Recession", or authorised any person to sign it on her behalf, on 23 February 2018, or on any other date (paragraphs 14 and 15 of the Claim); 2. the second defendant sent an email to the second plaintiff on two occasions on the afternoon of 23 February 2018 attaching a link to the "Deed of Recession", which included a DocuSign record that the "Deed of Recession" had been viewed by the first plaintiff and signed by her earlier that day (paragraphs 16 and 17 of the Claim); and 3. "In the premises pleaded in [16] and [17] above, [the second defendant] or [the first defendant], knowing that he had on 21 February 2018 presented a copy of it to Ms Zhao and she had refused to sign it, misrepresented to [the second plaintiff] that [the first plaintiff] had signed the Deed of Recession" (paragraph 18 of the Claim); 4. the second plaintiff signed the Deed of Recession without reading it, in the belief that the first plaintiff had signed it after carefully considering it (paragraph 19 of the Claim); 1. the second defendant has failed to pay amounts owing to the first plaintiff under various loan agreements entered into during the period between August 2017 and February 2019, and the second defendant has thereby breached those loan agreements and/or been unjustly enriched by the receipt of the moneys advanced by the first plaintiff under the loan agreements; and 2. the first defendant has failed to pay to the first plaintiff a salary owing to her under a contract of employment entered into between the first plaintiff and the first defendant in about late June 2018.
It is not necessary for present purposes to refer to the Defence in any detail. It suffices to note that the defendants deny or do not admit the allegations in the Claim, save that they admit entering into the contract for sale of land that the plaintiffs allege (and the defendants deny) was later the subject of the resale agreement referred to above.
Shortly after the commencement of the hearing of the Application on 4 May 2020, both defendants conceded that the plaintiffs had a good arguable case. In the context in which it was made, that concession was clearly referring to the pleaded case, and was a concession that the pleaded case was more than barely capable of serious argument, albeit not necessarily one which has a better than fifty per cent chance of success.
During the further hearing of the motion on 7 May 2020, a dispute emerged between the plaintiffs and the defendants about whether the pleaded case included a case of fraud on the part of the defendants.
The plaintiffs contend, and the defendants dispute, that fraud is pleaded in paragraphs 14 to 19 of the Claim.
In my opinion, paragraphs 14 to 19 of the Claim do not adequately plead and particularise a claim of fraud. Contrary to UCPR rr 14.14 and 15.3 and the well established principles concerning the need for fraud to be pleaded distinctly and with particularity, [1] there is no pleading or particulars of the facts, matters or circumstances relied on in support of the plaintiffs' allegation in paragraph 17 that, when the second defendant sent the "Deed of Recession" to the second plaintiff, he knew that the first plaintiff had refused to sign it. Indeed, it is not pleaded that the first plaintiff did in fact refuse to sign it. Rather, paragraph 15 of the Claim simply pleads that the first plaintiff had not viewed or signed it. The allegation in paragraph 15 that the first plaintiff did not even view the "Deed of Recession" sent to her appears, on the face of it, to be inconsistent with the reference in paragraph 17 to the first plaintiff having refused to sign the document.
For those reasons, I do not regard the defendants' concession that the plaintiffs have a good arguable case as a concession that the plaintiffs have demonstrated a good arguable case that one or both of the defendants committed a fraud.

E. Procedural History in relation to Freezing Orders

Except where otherwise indicated, the following account is taken from the first defendant's chronology MFI-1, and notices of motion and transcripts contained in Exhibit 7 to which that chronology refers. As I have already noted above, senior counsel for the plaintiffs indicated that the chronology was not disputed (save for the final entry).
The first plaintiff commenced this proceeding against the first and second defendants on 5 July 2019, shortly after a personal relationship between the first plaintiff and the second defendant came to an end.
On 8 July 2019, the first plaintiff filed a notice of motion seeking freezing orders and ancillary disclosure orders against the first and second defendants. The notice of motion was heard ex parte before Slattery J on the same day. The Court made freezing orders, but not disclosure orders, against both defendants. The freezing orders restrained each defendant up to and including 12 July 2019 from removing from Australia, disposing of, dealing with or diminishing the value of their assets up to the unencumbered value of $1,721,645.23. In addition to giving undertakings as to damages, the first plaintiff gave undertakings to serve on the defendants as soon as practical a copy of the orders and various other materials, including the transcript of the ex parte hearing (or, if a transcript was not available, a note of any exclusively oral allegation or submission made to the Court at the ex parte hearing).
The first plaintiff did not, at any time, comply with the undertaking to serve on the transcript or note of the ex parte hearing on the defendants.
At an inter partes hearing on 12 July 2019, the first plaintiff applied for the freezing orders to continue beyond that date and renewed the application for disclosure orders. The Court made orders extending the freezing orders and again declined to make disclosure orders.
On 4 and 6 September 2019, the matter was listed for an inter partes hearing of the defendants' application to vary the freezing orders. On each occasion, the plaintiffs' solicitor advised the Court that the plaintiffs consented to the orders sought by the defendants, and orders were therefore made by the Court on 4 September 2019 and again on 6 September 2019 varying the terms of the freezing orders.
On 23 September 2019, the defendants' solicitors sent a series of letters to the plaintiffs' solicitors, including letters: 1. requesting copies of the documents relied on by the first plaintiff at the ex parte hearing on 8 July 2019 and a copy of the transcript of that hearing; 2. advising that the defendants intended to sell a property at Terry Street, Rozelle; and 3. referring to the first plaintiff's undertaking as to damages given in support of the freezing orders, stating that extensive searches had identified little if any assets of the first plaintiff that might support that undertaking, and requesting copies of documents evidencing the first plaintiff's current assets and liabilities. The letter stated that the existence of the freezing order was harming the defendants' business, and sought an urgent response.
The letter concerning the property at Terry Street, Rozelle stated that the defendants' solicitors did not consider that freezing orders prevented the defendants from selling the property. The letter requested that, to avoid any doubt, the plaintiffs' solicitors advise as soon as possible if the plaintiffs considered that the freezing orders did preclude the sale of the property.
On 27 September 2019, the defendants' solicitors wrote to the first plaintiff in the following terms: "We refer to our letters to your solicitor on Monday 23 September 2019 and in particular to our letters dealing with your ability to give the undertaking as [to] damages, communications with third parties about the freezing order and the documents before Justice Slattery when the original order was made. Given the serious ramifications for our clients in respect of the freezing order we asked for your solicitor's urgent response. Rather than any substantive response, on 26 September 2019, we received notice that your solicitor is no longer acting. In respect of the undertaking as to damages, we reiterate that we have not been able to find any assets of substance in the jurisdiction that could possibly support the undertaking as to damages. Unless we receive a satisfactory answer to these matters by 4.00pm today, we propose to approach the duty judge to have the freezing order discharged."
On 27 September 2019, the plaintiff sent a series of letters to the defendants' solicitors that did not provide any of the information sought. The correspondence included: 1. a letter stating that "[t]he documents are on the court file and the transcript will be available from the court registry"; 2. a letter that I infer was in response to the defendants' solicitors' letter relating to Terry Street, Rozelle, which stated: "We invite you to read and construe/interpret the orders any way you wish and we will leave any interpretation required in future to be done by the Court"; 3. a letter that I infer was in response to the defendants' solicitors' letter requesting financial information in connection with the undertaking as to damages, which stated: "Your client has been represented in the Court and matters have been canvassed twice by Justice Slattery. We are not able to see how your client's business will be harmed as the orders allow for the sale of units. If you would please outline how damages may arise and quantify the potential loss it will assist me in determining the amount you may seek and what I might have to provide." 1. a further letter, which stated: "The Court will judge whether I need to provide any information given your client's treatment of me and the position he has put me in. If you are concerned, I invite you to consent to have this matter dealt with by expedition."
The defendants' solicitors wrote to the first plaintiff again on 2 and 3 October 2019 seeking financial information relevant to her capacity to pay any damages that she may be ordered to pay in accordance with her undertaking.
The defendants' solicitors also wrote to the first plaintiff on 3 October 2019 notifying her that the defendants intended to dispose of the property at Terry Street, Rozelle.
On 3 October 2019, the plaintiffs filed a notice of motion seeking (relevantly): 1. orders setting aside the orders made on 4 and 6 September varying the freezing orders; and 2. orders extending the freezing orders to include the property at Terry Street, Rozelle.
The plaintiffs' notice of motion was subsequently amended to seek orders increasing the scope and quantum of the assets to which the freezing orders applied.
In support of that motion, the plaintiffs relied on evidence of the first plaintiff to the effect that her former legal representative had consented to orders being made by the Court without the first plaintiff's consent.
The plaintiffs' notice of motion was listed for hearing before Rein J on Friday, 18 October 2019. In the meantime, there was a directions hearing before Slattery J on 16 October 2019 for the purpose of the first plaintiff being heard about whether she had in fact consented to the orders made by his Honour on 4 and 6 September 2019. The first plaintiff appeared for herself on that occasion. During the course of the directions hearing, Slattery J said to the first plaintiff: "… you need to be in a position to defend the continuation of the freezing orders on Friday and one of the points [the defendants] are taking against you, from what I read in the affidavit they have filed on Monday, is that they want to know whether your undertaking as to damages has substance, that is whether you have assets to back it up. So you need to be in a position somewhere in your evidence to be able to establish that, I imagine."
On 17 October 2019, the defendants obtained from the Court a copy of the transcript of the ex parte hearing on 8 July 2019.
The plaintiffs' motion was heard on 18 October 2019 before Rein J. The defendants moved to set aside the freezing orders made on 8 July 2019, as amended subsequently, on the grounds which included that: 1. counsel who had appeared for the first plaintiff at the ex parte hearing (and who also appeared for the plaintiffs before Rein J) [2] had made statements to the Court to the effect that the defendants had been setting up new companies, moving moneys and creating new mortgages, and those statements were not supported by the first plaintiff's evidence; 2. it had not been disclosed to the Court that the freezing orders sought would extend to assets of the second defendant's mother; and 3. the first plaintiff had failed to comply with undertakings given to the Court at the time the freezing orders were made, including the undertaking to provide a copy of the transcript or note of the ex parte hearing to the defendants.
In the course of introducing the defendants' application to set aside the freezing orders, counsel for the defendants submitted: "… your Honour should set aside the freezing orders from the start. What should then take place is, if the plaintiffs genuinely wish to bring a freezing order application they should file one with the evidence in support of it; and we should deal with it on a fair basis that my clients are on notice about what this is all about."
After a hearing of several hours, Rein J raised with the plaintiffs' counsel that statements he had made to Slattery J on 8 July 2019 were not supported by the plaintiffs' evidence. There was a short adjournment to allow the plaintiffs' counsel to take instructions, after which the plaintiffs' counsel announced that the plaintiffs' notice of motion would be withdrawn and the freezing orders would also be withdrawn. Orders to that effect were made by Rein J on that day.
On 10 February 2020, the plaintiffs' solicitors wrote to the defendants' solicitors seeking the defendants' consent to the making of fresh freezing orders.
On 16 April 2020, the plaintiffs' solicitors wrote to the second defendant's solicitors seeking information about the second defendant's financial position and stating that the plaintiffs would rely on the letter, and any response to it, in support of an application for a freezing order. The second defendants' solicitors responded on 17 April 2020, informing the plaintiffs' solicitors of the history of the matter,
The plaintiffs approached the Equity Duty Judge on 29 April 2020 and were granted leave to file their notice of motion for freezing orders. The plaintiffs did not seek ex parte freezing orders on that occasion, and the Application was listed for hearing before me on 4 May 2020.
The first defendant's written submissions dated 4 May 2020 identified numerous reasons why the first defendant submitted that the Application should be dismissed, including the plaintiffs ongoing failure to disclose their financial position, despite many previous requests made by the defendants for financial information and despite the remarks of Slattery J on 16 October 2019, to which I have referred above.

F. PLAINTIFFS' APPLICATION FOR LEAVE TO RE-OPEN

The usual undertaking as to damages is the price that an applicant pays for the drastic remedy of a freezing order.
At the time they filed their notice of motion on 29 April 2020, the plaintiffs were aware from the defendants' correspondence in September 2019 and Slattery J's remarks in October 2019 that their capacity to pay damages in accordance with the usual undertaking was in issue. This was confirmed by the first defendant's written submissions filed on 4 May 2020.
The plaintiffs have served a large volume of evidence in support of their application for freezing orders, including a further affidavit of the first plaintiff affirmed on 6 May 2020 when the Application was part heard. Yet the evidence does not touch on the plaintiffs' capacity to pay damages in accordance with the usual undertaking.
Having regard to the history of this matter set out in Section E above, the wide-ranging nature of the evidence that the plaintiffs have relied on in support of the the Application (see Section G below), and senior counsel's explanation for the failure to adduce evidence as to the adequacy of the undertaking (see Section A above), I infer that the plaintiffs have made a deliberate, tactical decision not to adduce evidence of their financial capacity to honour the undertaking.
I do not consider that the interests of the administration of justice in this case require that the plaintiffs should be afforded an opportunity to reverse that decision, which would extend the time taken in the preparation of evidence and would almost inevitably increase the hearing time required for the Application. As I mentioned above, the hearing time for this Application has already been unusually long in the Equity Duty Judge List, to the detriment of other litigants requiring matters to be heard urgently in the List. There is a public interest in applications to the Duty Judge being heard expeditiously.
Further, the defendants, having put the plaintiffs on notice many months ago that the adequacy of the undertaking as to damages was in issue, should not be put to the additional cost of reviewing, testing and responding to evidence about the plaintiffs' financial capacity at the eleventh hour. Nor should the defendants suffer the prejudice of having the prospect of a freezing order hanging over them for a longer period of time whilst the hearing time is extended and judgment is delayed in order to deal with such additional evidence.
For those reasons, the plaintiffs' application to re-open is refused.

G. PLAINTIFFS' APPLICATION FOR FREEZING AND ANCILLARY ORDERS

Is the plaintiffs' application an abuse of process?

The defendants relied on the observations of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, where his Honour said that there is a private injustice and public undesirability of permitting relitigation of matters already litigated once, including substantive interlocutory applications. His Honour said (at 46, omitting citations): "It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. … In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application."
It is possible to characterise this Application as, in substance, an application to vary the orders made on 18 October 2019 that set aside the freezing orders made in July 2019 as varied in September 2019. In my opinion, however, it is more accurately characterised as a fresh application after orders previously secured by the plaintiffs' were set aside as a result of the conduct of the plaintiffs' former counsel in securing those orders in July 2019. The same former counsel appeared for the plaintiffs at the hearing before Rein J on 18 October 2019. I have read the transcript of that proceeding, and it is clear that the plaintiffs' former counsel came to appreciate the gravity and significance of his own conduct only towards the end of that hearing. It was in that context that he obtained instructions from the plaintiffs to "withdraw" the freezing orders.
In those circumstances, I do not regard the plaintiffs' conduct in: 1. consenting to set aside the freezing orders on 18 October 2019 (rather than pressing on with the application to continue and extend the orders, and seeking to persuade the Court that the orders were warranted notwithstanding the misleading statements made to the Court by the plaintiffs' former counsel at the ex parte hearing in July 2019); and 2. delaying a fresh application for freezing orders until April 2020, as rendering this Application an abuse of process.
The first defendant's submissions identified numerous highly unsatisfactory aspects of the plaintiffs' conduct of this proceeding to date, including in relation to the freezing orders made on 8 July 2019 that remained in place until 18 October 2019. It may be that certain consequences should follow from that conduct. However, on balance, I consider that the interests of justice require that the plaintiffs should have an opportunity to make this Application, on notice to the defendants. A fresh application for freezing orders is the very course that counsel for the first defendant accepted at the hearing on 18 October 2019 was open to the plaintiffs.
This does not mean that the plaintiffs' previous conduct is irrelevant to the determination of this Application. The time taken by the plaintiffs to make this Application, and the fact that it is based principally on matters that have been known to the plaintiffs since before October 2019 (and, in some instances, before July 2019), is a matter that would have counted against the plaintiffs in the exercise of the discretion to grant freezing orders if the plaintiffs had established a risk that the defendants would deal with their assets in a manner that would frustrate the court's process.

Do the plaintiffs have a good arguable case?

As I have already referred to in Section D above, the defendants concede that the plaintiffs have a good arguable case against them in respect of the pleaded causes of action in contract and for misleading or deceptive conduct. The plaintiffs have not pleaded a case of fraud.

Is there a risk that the court's processes will be frustrated if freezing orders are not made?

The good arguable case conceded by the defendants is not, by itself, sufficient to warrant the making of freezing orders.
The plaintiffs rely on numerous matters as giving rise to a risk that the court's processes will be frustrated. I will deal with each matter in turn below.

Potential findings of serious wrongdoing against the defendants

The plaintiffs submitted that it will be open to the Court to find at trial that "fraud or serious wrongdoing was occasioned by the defendants" and that this supported the inference that the defendants would dissipate their assets (citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-322 per Gleeson CJ).
Specifically, the plaintiffs submitted that there is a good arguable case that the second defendant, acting for and on behalf of the first defendant, fraudulently affixed the first plaintiff's digital signature via DocuSign to the "Deed of Recession". I have already addressed above some of the reasons why no such case is presently pleaded by the plaintiffs. A further reason is that the Claim does not plead that the second defendant affixed the first plaintiff's digital signature to the document. Indeed, as the first defendant's submission identified, an earlier iteration of the plaintiffs' claim made a positive allegation that the first plaintiff did sign the deed.
The plaintiffs also submitted that, on the evidence served to date, it would be open to the Court to find at trial that the second defendant, acting for and on behalf of the first defendant, made misleading and deceptive representations to the plaintiffs which induced them to execute a deed of rescission on 31 January 2018.
The substance of those representations pleaded in paragraph 13G of the Claim is that: 1. the sale of the last apartment owned by the second defendant in a particular development known as the "Modulus" development would be completed shortly after completion of the construction of the development in about July 2018; 2. that the first and second defendants would enter into a further deed varying the deed of rescission to require a sum of $890,000 to be paid to the plaintiffs upon completion of the "Modulus" development, rather than on sale of the last apartment owned by the second defendant in the "Modulus" development.
The evidence relied on by the plaintiffs in support of this submission is the evidence of the first plaintiff in paragraphs 152 to 174 of her affidavit sworn on 25 March 2020. That evidence does not support the first representation above. On the contrary, in paragraph 155 of the affidavit, the first plaintiff gives an account of a conversation with the second defendant on 31 January 2018, shortly before she signed the deed of rescission, in which she said to the second defendant that, even after the completion of construction, "all the apartments may never be sold". This directly contradicts the allegation in paragraph 13J of the Claim that the first plaintiff entered into the deed of rescission acting on the faith and truth of the first representation above.
As to the second representation, the evidence raises as many questions as it answers because there is no suggestion that the first plaintiff took any steps during the period from about two weeks after entering into the deed of rescission until December 2019 to request, let alone insist, that the parties enter into the further deed that she claims was discussed on 31 January 2018. It is relevant to bear in mind that the plaintiffs' evidence was only served on 25 March 2020, and so the defendants have not yet had an opportunity to serve their evidence, including putting forward their version of the events of 31 January 2018. Whether or not it may ultimately be open to the Court to find that the defendants engaged in misleading or deceptive conduct in relation to the deed of rescission is a matter of conjecture at this stage. I do not regard the possibility of this future finding, whether considered alone or in conjunction with the other matters relied on by the plaintiff, as pointing to a risk that the execution of any judgment that may ultimately be given in favour of the plaintiff will be frustrated by the defendants dissipating their assets.

Police investigation

In her affidavit affirmed on 27 April 2020, the first plaintiff deposes that she has been informed by Detective Cameron Nicholls and Sergeant Paul Grace of the New South Wales Police that they are presently investigating the second defendant for fraud in respect of the matters that are the subject of this proceeding.
The evidence shows that, on 17 March 2020, Detective Nicholls informed the second defendant's solicitors that the investigation was suspended and was not to be the subject of further action unless further evidence was produced. There is also evidence that the police informed the first plaintiff on 18 February 2020 that the investigation had been suspended that it was unlikely that the police would be able to meet a prima facie case let alone prove the alleged offence beyond reasonable doubt. There is no evidence before me to indicate that the investigation has been re-activated since 17 March 2020.
In my opinion, a police investigation relating to alleged fraud that has been suspended due to lack of evidence does not provide any basis for inferring that the second defendant has engaged in fraud or that he, or the first defendant, may deal with assets in a way that would frustrate the court's process.

Winding up and deregistration of corporate entities related to the defendants

The plaintiffs rely on the winding up and deregistration of the following entities related to the first defendant: 1. Infratech Industries Pty Ltd; 2. Sustainable Infrastructure Pty Ltd; 3. CLES Systems Pty Ltd; 4. Modulus of Balmain Pty Ltd; and 5. Jamestown Operations Pty Ltd.
None of these companies are parties to this proceeding. Any judgment in favour of the plaintiffs in this proceeding will not be enforceable against these companies. The deregistration of these companies will therefore not frustrate the execution of any judgment in this proceeding.
The plaintiffs asserted that these companies had been deregistered despite having unpaid debts, and that this was conduct, or part of a pattern of conduct, on the part of the defendants from which the Court should infer a risk that the defendants would frustrate any judgment in favour of the plaintiff in this proceeding by dissipating their assets. Senior counsel for the plaintiffs submitted that: "One can't deregister a company if the company has debts. There is no explanation as to what has happened to those debts."
However, the defendants adduced evidence on information and belief from Ms Felicity Whiting that the companies were deregistered, or in the process of being deregistered, because they had no ongoing business and no outstanding liabilities. Ms Whiting was described in the plaintiffs' submissions as an officer or shareholder of those companies.
The evidence referred to in the plaintiffs' submissions did not establish that the companies had debts. The plaintiffs adduced evidence of having paid certain monies to the companies, but those are the same monies that the first plaintiff claims to have loaned to the second defendant for which she sues the second defendant in this proceeding. On the plaintiffs' own case, these are debts of the second defendant and not debts of the companies that have been, or are in the process of being, deregistered.
In addition, in her affidavits affirmed on 25 March 2020 and 27 April 2020, the first plaintiff deposed that she and the second plaintiff paid certain money to Infratech Industries Pty Ltd on 29 June 2017 immediately after signing the resale agreement that is the subject of this proceeding. The first plaintiff says that this was done at the request of the second defendant and on the basis that the payments would be treated as having been made towards the property that is the subject of the resale agreement.
The plaintiffs' Claim pleads that the parties to the resale agreement were the plaintiffs and the first defendant. The plaintiffs have chosen to sue the defendants for moneys owing in connection with the resale agreement. Infratech Industries Pty Ltd is not a party to this proceeding, and is in the process of being deregistered. If and to the extent that the plaintiffs claim that Infratech Industries Pty Ltd is indebted to them for the moneys allegedly paid on 29 June 2017, one would have expected the plaintiffs to have included that claim in this proceeding and to have taken steps to prevent the deregistration of Infratech Pty Ltd on the basis that they claim to be creditors of that company. There is no evidence that they have done so, or even contemplated doing so. In short, the evidence before the Court on this Application does not establish that Infratech Pty Ltd is presently indebted to the plaintiffs and is in the process of being deregistered without having repaid any such debt.
The first plaintiff also deposed to having caused third parties to make certain payments to Sustainable Infrastructure Pty Ltd in satisfaction of moneys owed by those third parties to the first defendant for the purchase a property from the first defendant. The plaintiffs did not direct the Court to any evidence to the effect that those third parties did not receive consideration for those payments. There is simply no evidence before the Court on this Application that Sustainable Infrastructure Pty Ltd is indebted to those third parties.
It is appropriate to briefly record a serious allegation made by the first plaintiff in her affidavit affirmed on 27 April 2020, and advanced in the plaintiffs' submissions until the second day of the hearing, when the allegation was very properly withdrawn by senior counsel for the plaintiffs.
In paragraph [51] of her affidavit, the first plaintiff deposed that on 11 December 2018 the second defendant had sought to obtain finance from RF Eclipse Ltd to be advanced to Sustainable Infrastructure Pty Ltd and the first defendant in the sum of $8,600,000, notwithstanding that Sustainable Infrastructure Pty Ltd had already been deregistered for four months. The first plaintiff referred to a draft letter from RF Eclipse Ltd addressed to Sustainable Infrastructure Pty Ltd setting out terms currently being contemplated for a loan of $8,600,000 to that company but describing the borrower as the second defendant.
In oral submissions on the first day of the hearing of the Application, senior counsel described this draft letter as a "critical" document and said: "One view of that document, on the face of it … is that money was going to be siphoned off to Sustainable Infrastructure or an account which now seems to be conducted by someone else. That if it wasn't repaid, [the second defendant] would be responsible for it, or liable for it, and the funds would be wherever and whoever had them. There is no explanation as to why a loan advance of $8.6 million was being sought for a company that was de-registered 4 months before the application was made. By any version of events, trying to explain that is just one which is open to an inference, at least, of dishonesty and an inference of fraud."
However, the evidence adduced by the defendants established that the draft letter dated 11 December 2018 had been emailed to both the first plaintiff and the second defendant, that the second defendant had replied to the prospective lender (copying in the first plaintiff) requesting that the reference to Sustainable Infrastructure Pty Ltd be removed because it was the wrong entity. The letter had been amended accordingly.
Immediately after the defendants adduced that evidence on the second day of the hearing of the Application, senior counsel for the plaintiffs very properly withdrew the submission that the Court should infer that the defendants had engaged in dishonesty or fraud in relation to the $8,600,000 loan application. However, it is troubling that the first plaintiff gave the evidence in paragraph [51] of her affidavit affirmed on 27 April 2020 yet failed to mention the subsequent correspondence in which the name of the borrower was corrected. That subsequent correspondence removed any basis for the plaintiffs' suggestion that the defendants had sought a loan to a deregistered company.
The plaintiffs also submitted that the deregistration of Infratech Industries Pty Ltd and CLES Systems Pty Ltd involved some sort of wrongdoing on the part of the defendants because the second defendant had previously represented to the first plaintiff that: 1. those companies were the owners of a patent that had been valued at approximately $99 million; and 2. the second defendant would transfer shares in those companies to the first plaintiffs and certain other persons.
The plaintiffs adduced evidence of a valuation of a company called Infratech CLES Pty Ltd dated 31 October 2017. The valuation report stated that it was based on the estimated present value of "projected net cash flow to equity" in year 11 plus the estimated present value of the "projected terminal equity value" at the end of year 10.
The Court was not referred to any evidence as to whether or not Infratech CLES Pty Ltd is the same as either Infratech Industries Pty Ltd or CLES Systems Pty Ltd, being the companies that the plaintiffs say are being deregistered.
Even assuming that Infratech CLES Pty Ltd has been or is being deregistered, the evidence does not enable the Court to form a view about whether the valuation was reasonable, or to make any finding about the present value of that company's assets.
The evidence therefore does not support any conclusion that the deregistration of Infratech CLES Pty Ltd (assuming that deregistration is indeed in progress) involves any wrongdoing on the part of the first defendant that might support a finding of a risk that the defendants will dissipate assets in a manner that will frustrate the court's process in this proceeding.
In her affidavit affirmed on 25 March 2020, the first plaintiff deposed to the second defendant having represented in April 2018 that he would issue her with shares in Infratech and CLES Systems Pty Ltd, which was described as being the company previously known as Infratech CLES Pty Ltd. The plaintiffs' account of the alleged representations is not supported by any contemporaneous documentary evidence. Indeed, the only contemporaneous documentary evidence referred to in the first plaintiff's affidavit does not provide for the issue of shares to the first plaintiff.
It is also relevant to note that the plaintiffs do not make any claim against the first defendant in this proceeding concerning the alleged representation. Given the wide scope of the claims that are pleaded by the plaintiffs, one would have expected this to be included in the Claim if the first plaintiff claimed to have relied on the alleged representation or to have suffered any loss as a result of the shares not being transferred to her.
Taking all of these matters into account, I consider that the plaintiffs' evidence of these alleged representations does not rise to the level that would support a conclusion that there is a risk of the defendants dissipating assets and frustrating the court's process in this proceeding.

Transfer of assets to first defendant from related entities of first defendant

The plaintiffs adduced evidence of: 1. a representation allegedly made by the second defendant to the first plaintiff to the effect that a particular asset was owned by Infratech Industries Pty Ltd; and 2. a subsequent representation allegedly made by second defendant to a third party in the presence of the plaintiff to the effect that the same asset was owned by the second defendant.
The plaintiffs did not refer the Court to any evidence in support of the proposition implicit in the plaintiffs' submission that any such transfer involved some sort of wrongdoing on the part of the first defendant that would support a conclusion that there is a risk of the defendants frustrating the court's process in this proceeding. In my opinion, if assets are being transferred to the first defendant, this would logically tend to enhance rather than diminish the plaintiffs' prospects of enforcing any judgment that may be given in their favour against the defendants.

Mortgages registered over lots in the Modulus development

The plaintiffs submit that the Court should infer some risk of dissipation of the defendants' assets that will frustrate the court's process from the fact that Lyra Holdings Pty Ltd, a related entity of the first defendant, was registered on 20 February 2019 and became the registered mortgagee over certain luxury apartments owned by the first defendant.
In circumstances where this occurred several months before this proceeding was commenced, and where the first defendant has subsequently settled claims made against by other litigants in other court proceedings (as referred to immediately below), the bare fact of these mortgages in favour of a related entity does not support a finding of a risk of frustration of the court's process in my opinion.

Alleged dissipation of assets by the defendants since the commencement of these proceedings in July 2019

The plaintiffs rely on the sale in February 2020 of property at Terry Street, Rozelle owned by the first defendant (as to ten per cent) and by the first defendant's mother (as to ninety per cent) as tenants in common.
As I have referred to in Section E above, the defendants notified the plaintiffs of this intended sale in September 2019 for the purpose of ascertaining the plaintiffs' attitude as to whether this sale was prohibited by the freezing orders then in place. (The defendants took the view that the sale was not prohibited by those orders.) The freezing orders were set aside shortly thereafter, and no steps were taken by the plaintiff to make any fresh application for freezing orders until 29 April 2020, despite the plaintiffs being on notice of the intended sale of the Rozelle property.
In all of those circumstances, the sale of the Rozelle property does not provide any basis for concluding that there is a risk that the defendants will deal with their assets in a manner that will frustrate the execution of any judgment by the plaintiff in this proceeding.
The plaintiffs also rely on payments made by the first defendant to settle claims made against it by third parties in other proceedings and disputes. There is no evidence to suggest that these disputes were not bona fide, or that the third parties were related to or associated with the first defendant.
In my opinion, the first defendant's conduct in making payments to compromise these third party claims provides no support whatsoever for a finding that the first defendant is likely to deal with its assets in a manner that frustrates the plaintiffs' ability to recover the amount of any judgment in their favour against the first defendant.

Alleged vengeful conduct of the second defendant

The plaintiffs rely on certain alleged conduct of Ms Whiting, which the plaintiffs assert is in retaliation against the first plaintiff for having caused the police to commence criminal proceedings against the second defendant for "alleged sexual intercourse without consent domestic violence related". The alleged conduct has nothing to do with any removal, dealing with or disposition of assets of Ms Whiting or the defendants.
The plaintiffs describe Ms Whiting as the de facto partner of the second defendant. Assuming for present purposes that the alleged conduct of Ms Whiting occurred, there is no evidence to support the plaintiffs' assertion that it had the alleged retaliatory motivation. Even assuming that the alleged conduct occurred and was so motivated, conduct and motivations of Ms Whiting are not to be attributed to the second defendant for the purpose of assessing any risk that the defendants might deal with their assets in a manner that frustrates the court's process.
In light of the conclusions above, it is not necessary to address the defendants' evidence and submissions as to whether the plaintiffs' evidence supports the description of the alleged conduct of Ms Whiting in the plaintiffs' submissions.
The plaintiffs also allege that the second defendant has issued subpoenas in the criminal proceedings requiring production of financial information relating to the first plaintiff, and that this is an attempt to harass or intimidate the first plaintiff.
Senior counsel for the second defendant made submissions about the relevance of the documents sought by those subpoenas to the specific allegations that are the subject of the criminal proceedings. It is neither necessary, nor appropriate, for this Court to resolve a contest between the first plaintiff and second defendant about the relevance of the documents for the purpose of determining this Application. The second defendant adduced evidence that the subpoenas have not yet been called upon, and that the first plaintiff was advised of this approximately one month ago. If and when the subpoenas are called upon, it will be a matter for the court hearing the criminal proceedings to determine the relevance of the documents to those proceedings.
On the state of the evidence before the Court on this Application, there is simply no basis to infer that the subpoenas were issued for the improper purpose alleged by the plaintiffs, as opposed on legal advice received by the second defendant from the solicitors acting for him in the criminal proceedings. In my opinion, the issue of the subpoenas does not support a finding that there is a risk of the court's process in this proceeding being frustrated.

Allegation that second defendant stated his intention to frustrate creditors' claims against himself and the first defendant

In her affidavit affirmed on 27 April 2020, the first plaintiff deposed that the second defendant told her in February 2019 that he was engaging lawyers to design a structure to "hide all our money so that no creditor can ever claim anything from us".
It is very difficult to reconcile this evidence with: 1. the evidence referred to above that the first defendant has in fact made payments to third parties to settle claims and disputes against it; and 2. the plaintiffs' failure to take any steps to apply for a fresh freezing order in the period between 18 October 2019 and 27 April 2020.
Taking the first plaintiff's evidence together with the other matters referred to immediately above, and having regard to the absence of any evidence adduced by the plaintiffs on this Application that the defendants have in fact been restructuring their assets in a manner that is calculated to have the effect frustrating the enforcement of any judgment in the plaintiffs' favour in this proceeding, I am not satisfied that the plaintiffs have established that there is a risk of the court's process being frustrated.

Other proceedings

The plaintiffs submit that the first defendant is, or has been, involved in several proceedings for failing to make payment to its creditors. The proceedings referred to in paragraph [98] of the first plaintiff's affidavit affirmed on 27 April 2020 include numerous proceedings in which the first defendant has been sued and has paid the judgment debt entered against it, and other proceedings in which the first defendant has sued third parties.
This demonstrates that the first defendant is prepared to sue third parties to enforce what it considers to be its legal rights, and provides additional evidence that the first defendant pays judgments entered against it (see also paragraph 107 above). It provides no support whatsoever for the plaintiffs' contention that there is a risk of the defendants dissipating their assets to frustrate enforcement of any judgment against it in this proceeding.

Second defendant's change of residential address

The plaintiffs say that, on 17 March 2020, the second defendant changed his residential address in ASIC's records in respect of his directorship of the first defendant.
This is irrelevant to the determination of this Application. There is no evidence that the second defendant's address is unknown to the plaintiffs, or that his address recorded in the affidavit verifying the Defence filed in this proceeding is incorrect.

Alleged marketing techniques

The plaintiffs allege that the defendants have engaged in marketing techniques that, on their face, appear to be untrue. The evidence relied on by the plaintiffs rises no higher than the first plaintiff deposing that, so far as she is aware, a certification described in one of the first defendant's marketing brochures for its property development as "aspirational", was not obtained. There is no evidence before the Court that would support a conclusion that the certification is unlikely to have been obtained because the first plaintiff was unaware of it. Nor is there any evidence that support a conclusion that the statement in the marketing brochures was untrue at the time it was made. The evidence therefore does not support a conclusion that the there is a risk of the court's process being frustrated in this proceeding.

Construction of Modulus development without a licensed builder

The plaintiffs allege that the first defendant completed the construction of one of its developments without a licensed builder during the period from 13 November 2018 to 21 December 2018. On the plaintiffs' evidence, the first defendant was issued with an interim occupation certificate for that development. The plaintiffs' evidence is an attempt to go behind that occupation certificate. Even assuming that the plaintiffs' allegation is correct, it has no bearing in my opinion on the question whether there is a risk that the defendants' dealings with their assets will frustrate the court's process in this proceeding.

Conclusion in relation to risk of frustration of the court's process

For all of the reasons above, I am not satisfied that any of the individual matters relied on by the plaintiffs support a finding that there is a risk that the defendants will deal with their assets in a manner that will frustrate the execution of any judgment against them in this proceeding. Nor am I satisfied that some combination of those matters, taken together, supports such a finding. The matter identified by the plaintiffs as "critical" had to be withdrawn when the plaintiffs' evidence on the subject was revealed to be incomplete and, therefore, misleading (see paragraphs 87 to 91 above). Having regard to the clear evidence (adduced by the plaintiffs) that the first defendant has a history of paying its judgment creditors and paying to settle disputes, the totality of the remaining matters does not support a finding that the relevant risk exists. The plaintiffs have not established that the drastic remedy of a freezing order is warranted in all the circumstances of this case.
In view of that conclusion, it has not been necessary for me to consider the adequacy of the first plaintiff's undertaking as to damages (in circumstances where the first plaintiff did not adduce any evidence of her financial capacity to pay any such damages), the absence of any undertaking as to damages given by the second plaintiff, the plaintiffs' delay since 18 October 2019 in making this Application or other factors that would have been relevant to the exercise of the Court's discretion if the plaintiffs had established the relevant risk.

Conclusion

For all of the reasons above, the plaintiffs' notice of motion filed on 29 April 2020 is dismissed.
The first defendant's written submissions indicated that it wished to be heard on the question of costs. Directions will therefore be made for all parties to provide submissions and any supporting evidence in relation to costs.
I make the following orders: 1. Order that the notice of motion filed by the first and second plaintiffs on 29 April 2020 is dismissed. 2. Direct the parties to file and serve by no later than 5:00pm on 18 May 2020 written submissions addressing the orders for which they contend and any affidavit evidence upon which they seek to rely in relation to the question of the costs of the notice of motion filed on 29 April 2020. 3. Direct that the submissions in Order 2 state whether the party seeks an oral hearing in relation to costs and, if so, why an oral hearing is necessary.

Endnotes

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573 per Brennan, Deane, Gaudron and McHugh JJ.
Not senior counsel who appeared for the plaintiffs on the hearing of the Application on 4 and 7 May 2020.

Amendments 11 May 2020 - Coversheet amendment 27 May 2020 - Amended "Parties" and "Representation" section on cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2020

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