Gould v VRG Management Pty Ltd - [2025] NSWSC 693

Supreme Court

New South Wales

Medium Neutral Citation: Gould v VRG Management Pty Ltd [2025] NSWSC 693
Hearing dates: 16 and 17 June 2025
Date of orders: 3 July 2025
Decision date: 03 July 2025
Jurisdiction: Equity - Duty List
Before: Williams J
Decision:
See orders at [128].

Catchwords:
CIVIL PROCEDURE — Interlocutory applications — Freezing orders – Ex parte — Duty of disclosure — Whether plaintiffs failed to put before the Court all material facts and arguments within their knowledge which the defendants, if present, could be expected to have brought to the Court’s attention — Held: Material non-disclosure, which was deliberate on the part of the plaintiffs and inadvertent on the part of counsel appearing at the ex parte hearing — Held: Freezing orders discharged — Held: Plaintiffs not permitted to treat the hearing of the defendants’ application to discharge the freezing orders as a de novo application for the freezing orders or equivalent orders under r 25.3 of the Uniform Civil Procedure Rules

Legislation Cited:
Corporations Act 2001 (Cth), ss 206A, 206B
Uniform Civil Procedure Rules 2005 (NSW), rr 25.11, 25.3

Cases Cited:
Natural & Great Pty Ltd v Lane Cove Business Park Pty Ltd [2022] NSWSC 274
Papas v Grave [2013] NSWCA 308
Walter Rau Nesser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955

Texts Cited:
N/A

Category: Procedural rulings
Parties: Vanda Russell Gould (First Plaintiff)
Shane Michael Styles (Second Plaintiff)
Grace Yan Wing Yau (Third Plaintiff)
VRG Management Pty Ltd (ACN 667 168 890) (First Defendant)
John Thomas Nichols (Second Defendant)
Leagou Pty Ltd (ACN 002 965 326) (Third Defendant)
Dermute Pty Ltd (ACN 086 374 763) (Fourth Defendant)
Melbourne Corporation of Australia Pty Ltd (ACN 000 172 798) (Fifth Defendant)
Philadelphia Investments Pty Ltd (ACN 001 740 138) (Sixth Defendant)
CVC Loan Managers Pty Ltd (ACN 101 447 429) (Seventh Defendant)
Southsea Nominees Pty Ltd (ACN 084 859 683) (Eighth Defendant)
B&C Administration Services Pty Ltd (ACN 649 452 531) (Ninth Defendant)
Representation:
Counsel:
Mr D Pritchard SC with Mr D Edney (Plaintiffs)
Mr R Scruby SC with Mr J Willis and Mr T Goldberg (Defendants)
Solicitors:
Ironbridge Legal (Plaintiffs)
Mark Ord Lawyer & Consultant (Defendants)

File Number(s): 2025/205944
Publication restriction: N/A

Judgment

Introduction

The Gould Family Trust (the Trust) is a discretionary trust established by deed of settlement dated 1 July 1985 that established the Trust (the Deed).
Clause 15 of the Deed conferred on “the Parent” a power to remove any trustee or to appoint any new or additional trustee of the Trust.
Clause 21 of the Deed conferred on the trustee a power to “by resolution or deed revoke add to or vary all or any of the trusts contained in this Deed”.
The first plaintiff, Vanda Russell Gould, is “the Parent” named in the Deed.
Mr Gould exercised his power under clause 15 to appoint the first defendant, VRG Management Pty Ltd (VRGM) as the trustee of the Trust in April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 693
Decision Date: 03 July 2025

CaseChat Overview and Summary

The plaintiffs, Gould, sought freezing orders against VRG Management Pty Ltd, the defendant, in an ex parte application, which were subsequently granted. VRG Management then applied to discharge the freezing orders. The court had to determine whether the plaintiffs had failed to disclose all material facts and arguments within their knowledge that the defendants could have brought to the court’s attention. This included assessing whether the non-disclosure was deliberate or inadvertent and whether the plaintiffs were permitted to treat the hearing of the discharge application as a de novo application for the freezing orders.

The court found that the plaintiffs had deliberately failed to disclose material facts that were within their knowledge. Counsel for the plaintiffs, who appeared at the ex parte hearing, had inadvertently failed to disclose material facts that were within their knowledge. The court held that the plaintiffs had not discharged their duty of disclosure. The court determined that the freezing orders should be discharged and that the plaintiffs were not permitted to treat the hearing of the discharge application as a de novo application for the freezing orders.

The court further held that the plaintiffs' failure to disclose the material facts was deliberate on their part and inadvertent on the part of counsel. The court found that the plaintiffs' conduct in failing to disclose the material facts was dishonest, and that this conduct warranted the discharge of the freezing orders. The court held that the plaintiffs were not permitted to treat the hearing of the discharge application as a de novo application for the freezing orders or equivalent orders under rule 25.3 of the Uniform Civil Procedure Rules. The freezing orders were discharged.

The court made no orders as to costs.

Orders