Goyal, in the matter of Biotech Energy Pty Ltd (Receivers and Managers Appointed) v Keane
[2022] FCA 631
•27 May 2022
FEDERAL COURT OF AUSTRALIA
Goyal, in the matter of Biotech Energy Pty Ltd (Receivers and Managers Appointed) v Keane [2022] FCA 631
File numbers: NSD 393 of 2022
NSD 395 of 2022Judgment of: JAGOT J Date of judgment: 27 May 2022 Catchwords: PRACTICE AND PROCEDURE — urgent ex parte applications for asset preservation and search orders — where strong prima facie case establishing real risk of dissipation of assets and destruction of incriminating information — applications granted Legislation: Federal Court Rules 2011 (Cth) rr 1.39, 7.1, 10.24 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 5 Date of hearing: 27 May 2022 Counsel for the Plaintiffs: Mr D Stack Solicitor for the Plaintiffs: Baker & McKenzie ORDERS
NSD 393 of 2022 IN THE MATTER OF BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 653 465 644 AND ANOTHER
BETWEEN: RAHUL GOYAL AND CATHERINE MARGARET CONNEELY IN THEIR CAPACITIES AS JOINT RECEIVERS AND MANAGERS OF CERTAIN ASSETS OF BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 653 465 644
First Plaintiff
BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 653 465 644
Second Plaintiff
KCK INVESTMENTS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 630 858 034
Third Plaintiff
AND: CAMERON KEANE
Defendant
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.In the first instance, service of the Originating Process filed on 26 May 2022 (Process) be dispensed with.
2.In the first instance, the Process be returnable at 9:00 am on 27 May 2022.
3.In the first instance, the Plaintiffs have leave to read in this proceeding, the affidavit affirmed by Rahul Goyal on 26 May 2022 (Innovation affidavit) in the proceeding brought by Innovation Structured Finance Co., LLC against Biotech Energy Pty Ltd (receivers and managers appointed) and Cameron Keane.
4.Pursuant to rule 1.39 of the Federal Court Rules 2011 (Cth) (Rules), the time for service of the Process, the affidavit affirmed by Rahul Goyal on 26 May 2022 (Receiver affidavit) and the Innovation affidavit be abridged to 5:00 pm on 30 May 2022.
5.Pursuant to rule 10.24 of the Rules, service of the Process, the Receiver affidavit and the Innovation affidavit of the Defendant, will be deemed effective upon the Plaintiffs sending a copy of those documents and these orders by email to Nicholas Chase Berry of ERA Legal at [email protected].
6.The Process be returnable before Justice Halley or another judge at 10:15am on 1 June 2022.
7.The parties have liberty to apply on the giving of reasonable notice and specifying the relief to be sought.
8.Orders be made in terms of Annexure A.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE A
PENAL NOTICE
TO: CAMERON KEANE
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
TO:CAMERON KEANE
This is a 'search order' made against you on 27 May 2022 by Justice Jagot at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order.
Name and address of the plaintiffs' lawyers
Tower One, International Towers Sydney, Level 46, 100 Barangaroo Avenue, Barangaroo, NSW 2000
Maria.O'[email protected], (02) 8922 5222
THE COURT ORDERS:
Introduction
1.The application for this order is made returnable immediately and the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 5:00 pm on 30 May 2022.
2.Subject to the next paragraph, this order has effect up to and including 1 June 2022 (‘Return Date’). On the Return Date at 10:15am there will be a further hearing in respect of this order before Justice Halley or another judge.
3.You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph.
4.This order may be served only between 9:00 am and 5:00 pm on a business day.
5.In this order:
(a)'applicant' means the person who applied for this order, and if there is more than one applicant, includes all the applicants.
(b)'independent computer expert' means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order.
(c)'independent lawyer' means the person identified as the independent lawyer in the search party referred to in Schedule A to this order.
(d)'listed thing' means any thing referred to in Schedule A to this order.
(e)'premises' means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent's control on or about the premises or that are otherwise identified in Schedule A.
(f)'search party' means the persons identified or described as constituting the search party in in Schedule A to this order.
(g)'thing' includes a document.
(h)'you', where there is more than one of you, includes all of you and includes you if you are a corporation.
(i)any requirement that something be done in your presence means:
(ii)in the presence of you or of one of the persons described in (6) below; or
(iii)if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below.
6.This order must be complied with by:
(a)yourself;
(b)any director, officer, partner, employee or agent of yourself; or
(c)any other person having responsible control of the premises.
7.This order must be served by, and be executed under the supervision of, the independent lawyer.
Entry, search and removal
8.Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.
9.Having permitted members of the search party to enter the premises, you must:
(a)permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete;
(b)permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;
(c)disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;
(d)disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;
(e)do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;
(f)permit the independent lawyer to remove from the premises into the independent lawyer's custody:
(i)the listed things or things which reasonably appear to the independent lawyer to be the listed things and any things the subject of dispute as to whether they are listed things; and
(ii)the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and
(g)permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent lawyer to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.
Restrictions on entry, search and removal
10.This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority.
11.You are not required to permit anyone to enter the premises until:
(a)the independent lawyer serves you with copies of this order and any affidavits referred to in in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and
(b)you are given an opportunity to read this order and, if you so request, the independent lawyer explains the terms of this order to you.
12.Before permitting entry to the premises by anyone other than the independent lawyer, you, for a time (not exceeding two hours from the time of service or such longer period as the independent lawyer may permit):
(a)may seek legal advice;
(b)may ask the Court to vary or discharge this order;
(c)(provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent lawyer in (if you wish) a sealed envelope or container; and
(d)may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent lawyer in (if you wish) a sealed envelope or container.
13.Subject to paragraph 22 below, the independent lawyer must not inspect or permit to be inspected by anyone, including the applicant and the applicant's lawyers, any thing handed to the independent lawyer in accordance with subparagraphs 12(c) and (d) above and the independent lawyer must deliver it to the Court at or prior to the hearing on the Return Date.
14.During any period referred to in paragraph 12 above, you must:
(a)inform and keep the independent lawyer informed of the steps being taken;
(b)permit the independent lawyer to enter the premises but not to start the search;
(c)not disturb or remove any listed things; and
(d)comply with the terms of paragraphs 25 and 26 below.
15.Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent lawyer for safekeeping pending resolution of the dispute or further order of the Court.
16.Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent lawyer must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's lawyers a copy of the list signed by the independent lawyer.
17.The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent lawyer to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions.
18.If the independent lawyer is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent lawyer may permit the search to proceed and the listed things to be removed without full compliance.
19.The applicant's lawyer and the independent lawyer must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return date or other time fixed by further order of the Court.
Computers
20.
(a)If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant's lawyers (independent computer expert).
(b)Any search of a computer must be carried out only by the independent computer expert.
(c)The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
(d)The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.
(e)The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent lawyer, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
(f)The independent lawyer must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties.
(g)If no independent computer expert has been appointed, but the independent lawyer considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent lawyer may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21.
(a)This paragraph (21) applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This paragraph (21) applies if you are a corporation and all of the persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c)You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken; and
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
Inspection
22.Prior to the Return Date, you or your lawyer or representative shall be entitled, in the presence of the independent lawyer, to inspect any thing removed from the premises and to:
(a)make copies of the same; and
(b)provide the independent lawyer with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.
Provision of Information
23.Subject to paragraph 24 below, you must:
(a)at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to:
(i)the location of the listed things;
(ii)the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
(iii)the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
(iv)details of the dates and quantities of every such supply and offer.
(b)within 7 working days after being served with this order, make and serve on the applicant an affidavit setting out the above information.
24.
(a)This paragraph (24) applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c)You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken; and
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
Prohibited Acts
25.Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.
26.Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court
Costs
27.The costs of this application are reserved to the Court hearing the application on the Return Date.
Schedule A
Premises
The premises located at:
1.50-52 Rowley Road, Burpengary QLD 4505 (Residential Address).
2.Level 38, 71 Eagle Street, Brisbane QLD 2000 (Business Address).
(and including any vehicle or vehicles under the respondent's control on or about those premises.)
Listed Things
1.Any computer or other electronic device on which data is created or stored and on which the Defendant:
(a)retains the electronic books and records of the Second Plaintiff (Biotech);
(b)retains the electronic books and records of the Third Plaintiff (KCK); and/or
(c)sends emails from the email accounts: [email protected]; or
to locate all documents which record or refer to:
(d)Any application made, or to be made, by Biotech to AusIndustry or the Australian Taxation Office seeking or in connection with a research and development refund on or since 1 July 2021.
(e)The preparation of any application made, or to be made, by Biotech to AusIndustry or the Australian Taxation Office seeking or in connection with a research and development refund on or since 1 July 2021.
(f)Any advice concerning any application made, or to be made, by Biotech to AusIndustry or the Australian Taxation Office, given on or since 1 July 2021.
(g)Any advice concerning the entitlement of Biotech to any research and development refund from the Australian Taxation Office, given on or since 1 July 2021.
(h)Any research or development undertaken by Biotech on or since 1 July 2021.
(i)Any expenditure made by Biotech on research and development on or since 1 July 2021.
(j)Any invoices received by Biotech on or since 1 July 2021.
(k)The financial statement (including balance sheets, profit and loss statements, cash flow statements and ledgers) of Biotech for the period on or since 1 July 2021.
(l)The tax returns, business activity statements and/or GST returns lodged, or to be lodged, for Biotech on or since 1 July 2021.
(m)The preparation of any tax returns, business activity statements and/or GST returns for Biotech undertaken on or since 1 July 2021.
(n)The preparation of any financial statement (including balance sheets, profit and loss statements, cash flow statements and ledgers) for Biotech undertaken on or since 1 July 2021.
(o)The financial position of Biotech on or since 1 July 2021.
(p)The monies received and paid out by Biotech on or since 1 July 2021.
(q)Any application made, or to be made, by KCK to AusIndustry or the Australian Taxation Office seeking or in connection with research and development refunds since 1 July 2020.
(r)The preparation of any application made, or to be made, by KCK to AusIndustry or the Australian Taxation Office seeking or in connection with a research and development refund on or since 1 July 2020.
(s)Any advice concerning any application made, or to be made, by KCK to AusIndustry or the Australian Taxation Office seeking or in connection with a research and development refund, given on or since 1 July 2020.
(t)Any advice concerning the entitlement of KCK to any research and development refund from AusIndustry or the Australian Taxation Office given on or since 1 July 2020.
(u)Any research or development undertaken by KCK on or since 1 July 2020.
(v)Any expenditure made by KCK on research and development on or since 1 July 2020.
(w)Any invoices received by KCK on or since 1 July 2020.
(x)The financial statement (including balance sheets, profit and loss statements, cash flow statements and ledgers) of KCK for the period on or since 1 July 2020.
(y)The tax returns, business activity statements and/or GST returns lodged, or to be lodged, for KCK on or since 1 July 2020.
(z)The preparation of any tax returns, business activity statements and/or GST returns for KCK undertaken on or since 1 July 2020.
(aa)The preparation of any financial statement (including balance sheets, profit and loss statements, cash flow statements and ledgers) for KCK undertaken on or since 1 July 2020.
(bb)The financial position of KCK on or since 1 July 2020.
(cc)The monies received and paid out by KCK on or since 1 July 2020.
Search Party
2.The independent lawyers:
(a)Paul Betros, a partner of HopgoodGanim Lawyers.
Address: Level 8, Waterfront Place, 1 Eagle Street, Brisbane QLD 4000.(b)Darrell Jardine, a partner of HopgoodGanim Lawyers.
Address: Level 8, Waterfront Place, 1 Eagle Street, Brisbane QLD 4000.
3.The applicant's lawyer or lawyers:
(a)Ian Innes, a partner of Baker McKenzie.
Address: 8/175 Eagle St, Brisbane City QLD 4000.(b)Emily Ng, an employee of Baker McKenzie.
Address: 8/175 Eagle St, Brisbane City QLD 4000.
4.Other members of the search party:
(a)Anthony Feldman of FTI Consulting in the capacity of an independent computer expert.
Address: Central Plaza CP1, 345 Queen St, Brisbane City QLD 4000.(b)Brian Duong of FTI Consulting in the capacity of an independent computer expert.
Address: Central Plaza CP1, 345 Queen St, Brisbane City QLD 4000.
Schedule B
Undertakings Given to the Court
Undertakings given to the Court by the applicant:
1.The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
2.The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
4.The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.
Undertakings given to the Court by the applicant's lawyer
5.The applicant's lawyer will pay the reasonable costs and disbursements of the independent lawyer and of any independent computer expert.
6.The applicant's lawyer will provide to the independent lawyer for service on the respondent copies of the following documents:
(a)this order;
(b)the application for this order for hearing on the Return Date;
(c)the following material in so far as it was relied on by the applicant at the hearing when the order was made:
(i)affidavits (or draft affidavits);
(ii)exhibits capable of being copied (other than confidential exhibits);
(iii)any written submission; and
(iv)any other document that was provided to the Court.
(d)a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and
(e)the originating process, or, if none was filed, any draft originating process produced to the Court.
7.The applicant's lawyer will answer to the best of the lawyer's ability any question as to whether a particular thing is a listed thing.
8.The applicant's lawyer will use the lawyer's best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
9.The applicant's lawyer will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
10.The applicant's lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
11.The applicant's lawyer will not disclose to the applicant any information that the lawyer acquires during or as a result of execution of the search order, without the leave of the Court.
12.The applicant's lawyer will use best endeavours to follow all directions of the independent lawyer.
Undertakings given to the Court by the independent lawyer
13.The independent lawyer will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking Part B (2) of the above (undertakings by the applicant's lawyer or lawyers).
14.Before entering the premises, the independent lawyer will:
(a)offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and
(b)inform the respondent of his or her right to take legal advice.
15.Subject to undertaking (4) below, the independent lawyer will retain custody of all things removed from the premises by the independent lawyer pursuant to this order until delivery to the Court or further order of the Court.
16.At or before the hearing on the Return Date, the independent lawyer will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's lawyers and to the respondent or the respondent's lawyers. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.
17.The independent lawyer will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.
18.The independent lawyer will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
19.The independent lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
Undertakings given to the Court by the independent computer expert
20.The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
21.The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
22.The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
23.The independent computer expert will use best endeavours to follow all directions of the independent lawyer.
Schedule C
Affidavits Relied On
| Name of deponent | Date affidavit made |
| Rahul Goyal Rahul Goyal | 26 May 2022 26 May 2022 |
Name and address of applicant's lawyers
The Applicant's lawyers are:
Baker McKenzie
c/o Maria O'Brien
Address:
Tower One – International Towers Sydney, Level 46, 100 Barangaroo Avenue, Barangaroo, NSW 2000
Email:
Maria.O'[email protected] and [email protected]
Tel:
(02) 8922 5222
Fax:
(02) 9225 1595
ORDERS
NSD 395 of 2022 IN THE MATTER OF BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 653 465 644 AND ANOTHER
BETWEEN: INNOVATION STRUCTURED FINANCE CO., LLC
Plaintiff
AND: BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 653 465 644
First Defendant
CAMERON KEANE
Second Defendant
ORDER MADE BY:
JAGOT J
DATE OF ORDER:
27 MAY 2022
PENAL NOTICE
TO: BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED),
ACN 653 465 644
AND TO:CAMERON KEANE
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
UPON THE PLAINTIFF GIVING TO THE COURT THE USUAL UNDERTAKING AS TO DAMAGES AND AN UNDERTAKING TO COMMENCE SUBSTANTIVE PROCEEDINGS AGAINST THE DEFENDANTS WITHIN 28 DAYS, THE COURT, ON AN EX PARTE BASIS, ORDERS THAT:
1.In the first instance, service of the Originating Process filed on 26 May 2022 (Process) be dispensed with.
2.In the first instance, the Process be returnable at 9:00 am on 27 May 2022.
3.In the first instance, the Plaintiffs have leave to read in this proceeding, the affidavit affirmed by Rahul Goyal on 26 May 2022 (Receiver affidavit) in the proceeding brought by Rahul Goyal and Catherine Margaret Conneely, in their capacity as receivers of specified assets of Biotech Energy Pty Ltd (receivers and managers appointed) and KCK Investments Pty Ltd (receivers and managers appointed), against Cameron Keane.
4.Pursuant to rule 1.39 of the Federal Court Rules 2011 (Cth) (Rules), the time for service of the Process, the affidavit affirmed by Rahul Goyal on 26 May 2022 (Innovation affidavit) and the Receiver affidavit be abridged to 5:00 pm on 30 May 2022.
5.Pursuant to rule 10.24 of the Rules, service of the Process, the Innovation affidavit and the Receiver affidavit on the Defendants, will be deemed effective upon the Plaintiffs sending a copy of those documents and these orders by email to Nicholas Chase Berry of ERA Legal at [email protected].
6.The Process be returnable before Justice Halley (or another judge) at 10:15 am on 1 June 2022.
7.The parties have liberty to apply on the giving of reasonable notice and specifying the relief to be sought.
8.Subject to the order in paragraph 9 below, until 5:00 pm on 1 June 2022, the First Defendant, by itself, its directors, officers, servants, agents and/or employees, be restrained from charging, withdrawing, transferring or otherwise dealing with, disposing of or diminishing the value of the monies credited to the bank account maintained by the First Defendant with the Australia and New Zealand Banking Group, BSB: 014304; Account number 293 201 593 (Account), if in doing so, the net value of the Account is or would fall below an unencumbered value of $865,174.00.
9.The order in paragraph 8 above, does not prevent:
a.the First Defendant from paying from the Account ordinary and reasonable business expenses;
b.the First Defendant from paying from the Account costs reasonably incurred in these proceedings; and/or
c.Australia and New Zealand Banking Group from exercising any right of set-off which it may have in respect of the Account.
10.Pursuant to rule 1.39 of the Rules the undertaking to be provided by the Plaintiff to the Court, pursuant to rule 7.1 of the Rules, to commence a proceeding in relation to the subject matter of this application be extended to 28 days after this application has been determined.
11.Orders be made in terms of Annexure A.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE A
PENAL NOTICE
TO: BIOTECH ENERGY PTY LTD (RECEIVERS AND MANAGERS APPOINTED),
ACN 653 465 644
AND TO:CAMERON KEANE
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
TO:BIOTECH ENERGY PTY LTD (Receivers and Managers Appointed),
ACN 653 465 644
AND TO: CAMERON KEANE
This is a 'search order' made against you on 27 May 2022 by Justice Jagot at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order.
Name and address of the plaintiffs' lawyers
Tower One, International Towers Sydney, Level 46, 100 Barangaroo Avenue, Barangaroo, NSW 2000
Maria.O'[email protected], (02) 8922 5222
THE COURT ORDERS:
Introduction
1.The application for this order is made returnable immediately and the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 5:00 pm on 30 May 2022.
2.Subject to the next paragraph, this order has effect up to and including 1 June 2022 (‘Return Date'). On the Return Date at 10:15am there will be a further hearing in respect of this order before Justice Halley or another judge.
3.You may apply to the Court at any time to vary or discharge this order; including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph.
4.This order may be served only between 9:00 am and 5:00 pm on a business day.
5.In this order:
(a)'applicant' means the person who applied for this order, and if there is more than one applicant, includes all the applicants.
(b)'independent computer expert' means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order.
(c)'independent lawyer' means the person identified as the independent lawyer in the search party referred to in Schedule A to this order.
(d)'listed thing' means any thing referred to in Schedule A to this order.
(e)'premises' means the premises and any of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent's control on or about the premises or that are otherwise identified in Schedule A.
(f)'search party' means the persons identified or described as constituting the search party in in Schedule A to this order.
(g)'thing' includes a document.
(h)'you', where there is more than one of you, includes all of you and includes you if you are a corporation.
(i)any requirement that something be done in your presence means:
(ii)in the presence of you or of one of the persons described in (6) below; or
(iii)if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below.
6.This order must be complied with by:
(a)yourself;
(b)any director, officer, partner, employee or agent of yourself; or
(c)any other person having responsible control of the premises.
7.This order must be served by, and be executed under the supervision of, the independent lawyer.
Entry, search and removal
8.Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.
9.Having permitted members of the search party to enter the premises, you must:
(a)permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete;
(b)permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;
(c)disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;
(d)disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;
(e)do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;
(f)permit the independent lawyer to remove from the premises into the independent lawyer's custody:
(i)the listed things or things which reasonably appear to the independent lawyer to be the listed things and any things the subject of dispute as to whether they are listed things; and
(ii)the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and
(g)permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent lawyer to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.
Restrictions on entry, search and removal
10.This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority.
11.You are not required to permit anyone to enter the premises until:
(a)the independent lawyer serves you with copies of this order and any affidavits referred to in in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and
(b)you are given an opportunity to read this order and, if you so request, the independent lawyer explains the terms of this order to you.
12.Before permitting entry to the premises by anyone other than the independent lawyer, you, for a time (not exceeding two hours from the time of service or such longer period as the independent lawyer may permit):-
(a)may seek legal advice;
(b)may ask the Court to vary or discharge this order;
(c)(provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent lawyer in (if you wish) a sealed envelope or container; and
(d)may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent lawyer in (if you wish) a sealed envelope or container.
13.Subject to paragraph 22 below, the independent lawyer must not inspect or permit to be inspected by anyone, including the applicant and the applicant's lawyers, any thing handed to the independent lawyer in accordance with subparagraphs 12(c) and (d) above and the independent lawyer must deliver it to the Court at or prior to the hearing on the Return Date.
14.During any period referred to in paragraph 12 above, you must:
(a)inform and keep the independent lawyer informed of the steps being taken;
(b)permit the independent lawyer to enter the premises but not to start the search;
(c)not disturb or remove any listed things; and
(d)comply with the terms of paragraphs 25 and 26 below.
15.Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent lawyer for safekeeping pending resolution of the dispute or further order of the Court.
16.Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent lawyer must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's lawyers a copy of the list signed by the independent lawyer.
17.The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent lawyer to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions.
18.If the independent lawyer is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent lawyer may permit the search to proceed and the listed things to be removed without full compliance.
19.The applicant's lawyer and the independent lawyer must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the return date or other time fixed by further order of the Court.
Computers
20.
(a)If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant's lawyers (independent computer expert).
(b)Any search of a computer must be carried out only by the independent computer expert.
(c)The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
(d)The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.
(e)The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent lawyer, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
(f)The independent lawyer must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties.
(g)If no independent computer expert has been appointed, but the independent lawyer considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent lawyer may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21.
(a)This paragraph (21) applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This paragraph (21) applies if you are a corporation and all of the persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c)You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken; and
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
Inspection
22.Prior to the Return Date, you or your lawyer or representative shall be entitled, in the presence of the independent lawyer, to inspect any thing removed from the premises and to:
(a)make copies of the same; and
(b)provide the independent lawyer with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.
Provision of Information
23.Subject to paragraph 24 below, you must:
(a)at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to:
(i)the location of the listed things;
(ii)the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
(iii)the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
(iv)details of the dates and quantities of every such supply and offer.
(b)within 7 working days after being served with this order, make and serve on the applicant an affidavit setting out the above information.
24.
(a)This paragraph (24) applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(b)This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(ii)are liable to a civil penalty.
(c)You must:
(i)disclose so much of the information required to be disclosed to which no objection is taken; and
(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.
Prohibited Acts
25.Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.
26.Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court
Costs
27.The costs of this application are reserved to the Court hearing the application on the Return Date.
Schedule A
Premises
The premises located at:
1.50-52 Rowley Road, Burpengary QLD 4505 (Residential Address).
2.Level 38, 71 Eagle Street, Brisbane QLD 2000 (Business Address).
(and including any vehicle or vehicles under the respondent's control on or about those premises.)
Listed Things
1.Any computer or other electronic device on which data is created or stored on which the Second Defendant:
(a) retains the electronic books and records of the First Defendant; and
(b) sends emails from the email accounts [email protected] or [email protected] (Email Accounts)
to locate:
(c) email from [email protected] to [email protected] sent 31 January 2022 at 9:13am with subject "Biotech Submission";
(d) email from [email protected] to [email protected] sent 1 March 2022 at 7:22am with subject "Biotech Comfort Letter";
(e) email from [email protected] to Marcus Ellson sent on 7 April 2022 at 6:54am with subject "Biotech Submission",
(f) all emails sent by any officer or employee of Pathfinder Consulting Group Pty Ltd (Pathfinder) to either of the Email Accounts which:
(i)attach any letter or report issued by Pathfinder to Biotech Energy Pty Ltd (Biotech); and/or
(ii)refer to any letter or report issued by Pathfinder to Biotech;
(g) all emails sent from either of the Email Accounts to any officer or employee of Pathfinder which:
(i)attach any letter or report issued by Pathfinder to Biotech; and/or
(ii) refer to any letter or report issued by Pathfinder to Biotech;
(h)all emails sent from either of the Email Accounts to any officer or employee of Radium Capital Pty Ltd (Radium) which:
(i)attach any letter or report issued by Pathfinder to Biotech; and/or
(ii) refer to any letter or report issued by Pathfinder to Biotech.
(i)all emails sent by any officer or employee of Radium to either of the Email Accounts which:
(i) attach any letter or report issued by Pathfinder to Biotech; and/or
(ii) refer to any letter or report issued by Pathfinder to Biotech;
Search Party
1.The independent lawyers:
(a)Paul Betros, a partner of HopgoodGanim Lawyers.
Address: Level 8, Waterfront Place, 1 Eagle Street, Brisbane QLD 4000.
(b)Darrell Jardine, a partner of HopgoodGanim Lawyers.
Address: Level 8, Waterfront Place, 1 Eagle Street, Brisbane QLD 4000.
2.The applicant's lawyer or lawyers:
(c)Ian Innes, a partner of Baker McKenzie.
Address: 8/175 Eagle St, Brisbane City QLD 4000.
(d)Emily Ng, an employee of Baker McKenzie.
Address: 8/175 Eagle St, Brisbane City QLD 4000.
3.Other members of the search party:
(e)Anthony Feldman of FTI Consulting in the capacity of an independent computer expert.
Address: Central Plaza CP1, 345 Queen St, Brisbane City QLD 4000.
(f)Brian Duong of FTI Consulting in the capacity of an independent computer expert.
Address: Central Plaza CP1, 345 Queen St, Brisbane City QLD 4000.
Schedule B
Undertakings Given to the Court
Undertakings given to the Court by the applicant:
1.The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
2.The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
4.The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.
Undertakings given to the Court by the applicant's lawyer
1.The applicant's lawyer will pay the reasonable costs and disbursements of the independent lawyer and of any independent computer expert.
2.The applicant's lawyer will provide to the independent lawyer for service on the respondent copies of the following documents:
(a)this order;
(b)the application for this order for hearing on the Return Date;
(c)the following material in so far as it was relied on by the applicant at the hearing when the order was made:
(i)affidavits (or draft affidavits);
(ii)exhibits capable of being copied (other than confidential exhibits);
(iii)any written submission; and
(iv)any other document that was provided to the Court.
(d)a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and
(e)the originating process, or, if none was filed, any draft originating process produced to the Court.
3.The applicant's lawyer will answer to the best of the lawyer's ability any question as to whether a particular thing is a listed thing.
4.The applicant's lawyer will use the lawyer's best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
5.The applicant's lawyer will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
6.The applicant's lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
7.The applicant's lawyer will not disclose to the applicant any information that the lawyer acquires during or as a result of execution of the search order, without the leave of the Court.
8.The applicant's lawyer will use best endeavours to follow all directions of the independent lawyer.
Undertakings given to the Court by the independent lawyer
1.The independent lawyer will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking Part B (2) of the above (undertakings by the applicant's lawyer or lawyers).
2.Before entering the premises, the independent lawyer will:-
(a)offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and
(b)inform the respondent of his or her right to take legal advice.
3.Subject to undertaking (4) below, the independent lawyer will retain custody of all things removed from the premises by the independent lawyer pursuant to this order until delivery to the Court or further order of the Court.
4.At or before the hearing on the Return Date, the independent lawyer will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's lawyers and to the respondent or the respondent's lawyers. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.
5.The independent lawyer will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.
6.The independent lawyer will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
7.The independent lawyer will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
Undertakings given to the Court by the independent computer expert
1.The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
2.The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
3.The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
4.The independent computer expert will use best endeavours to follow all directions of the independent lawyer.
Schedule C
Affidavits Relied On
| Name of deponent | Date affidavit made |
| Rahul Goyal | 26 May 2022 |
Name and address of applicant's lawyers
The Applicant’s lawyers are:
Baker McKenzie
c/o Maria O'Brien
Address:
Tower One – International Towers Sydney, Level 46, 100 Barangaroo Avenue, Barangaroo, NSW 2000
Email:
Maria.O'[email protected] and [email protected]
Tel:
(02) 8922 5222
Fax:
(02) 9225 1595
REASONS FOR JUDGMENT
JAGOT J:
The matter before me this morning is an ex parte application brought on an appropriately urgent basis for asset preservation and search orders against the defendants. The first application is an application for asset preservation and search orders against the defendants, and the second application brought by the receivers appointed by Innovation Structured Finance Co LLC on 11 April 2022 over certain assets of the first defendant and KCK Investments Pty Limited involves search orders and the production of certain books and records. The applications are both supported by affidavits of the receiver, Rahul Goyal, of 26 May 2022, and I have taken evidence in the one proceeding to be evidence in both proceedings.
I have also had the benefit of reading the outline of submissions prepared on behalf of the plaintiffs by their counsel. I have marked those submissions as an exhibit, which will be retained on the Court’s file. Those submissions accurately summarise the evidence in Mr Goyal’s affidavits. They also disclose the reasons why I have been persuaded to make the asset preservation orders and search orders sought by the respective plaintiffs (with the other substantive orders for the production of the companies’ books to the appointed receivers not being presently sought).
The evidence establishes a strong prima facie case for the plaintiffs’ claims against the defendants and also establishes, in respect of the asset preservation order, a real risk of dissipation of the assets and, in respect of the search orders, a real risk that there will be incriminating information subject to a real possibility of destruction or manipulation by the defendants.
Accordingly, I have been satisfied, as set out in the written submissions, that the requirements for making both the asset preservation order and the search orders are made out, the orders as sought should be made, and that the terms of the orders which I have discussed in detail during the hearing with the plaintiffs’ counsel properly reflect the scope of the relief which should be granted on this ex parte basis.
The only other matters I should note are:
(1)I have extended the time for the commencement of the substantive proceedings to 28 days on the basis that the plaintiff is located overseas and is a subsidiary of a credit investment fund incorporated in the United States, which I accept will or may reasonably require a somewhat longer period in order for the commencement of the substantive proceedings; and
(2)I have accepted the undertaking as to damages provided by the plaintiffs on the basis of the information currently available, but have also suggested that counsel may wish to obtain further information about the money in a bank account which is held by the plaintiff in Australia before the return date of the proceedings, which will be, at this stage, on 1 June 2022.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot. Associate:
Dated: 30 May 2022
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