Harder v InCor Holdings Ltd - [2025] WASC 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HARDER -v- INCOR HOLDINGS LTD [2025] WASC 72
CORAM:   GETHING J
HEARD:   7 MARCH 2025
DELIVERED          :   7 MARCH 2025
FILE NO/S:   CIV 1217 of 2025
BETWEEN:   LORNE HARDER
First Plaintiff
SPRINGHILL INVESTMENTS LTD
Second Plaintiff
HARDER INVESTMENTS LTD
Third Plaintiff
AND
INCOR HOLDINGS LTD
First Defendant
PANGAEA RESOURCES LTD
Second Defendant
EUROZ HARTLEYS LTD
Third Defendant
CANACCORD GENUITY FINANCIAL LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application for freezing order - Ex parte application - Where the prospective cause of action is a foreign judgment which is to be registered in the Supreme Court - Turns on own facts

Legislation:

Foreign Judgments Act 1991 (Cth) s 6, s 7
Rules of the Supreme Court 1971 (WA) O 50 r 5(d)(iii), O 52A

Result:

Freezing order granted

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr D J Pratt
Second Plaintiff	:	Mr D J Pratt
Third Plaintiff	:	Mr D J Pratt
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	DWF (Australia)
Second Plaintiff	:	DWF (Australia)
Third Plaintiff	:	DWF (Australia)
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Case(s) referred to in decision(s):

Belmont Tyre & Auto Service Centre Pty Ltd v Ampak Holdings Pty Ltd [2023] WASC 230
Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014
Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [2018] WASCA 174
Jadewest 2024 Pty Ltd v BTFMS Pty Ltd [2024] WASC 166
PT Bayan Resources TBK v BCBC Singapore Pte [2015] HCA 36; (2015) 258 CLR

GETHING J:

By ex parte notice of motion filed 21 February 2025 (Freezing Application) Lorne Harder, Springhill Investments Ltd (Springhill) and Harder Investments Ltd (Harder Investments) (collectively, Plaintiffs) sought an order restraining the four defendants from dealing with certain assets. The Plaintiffs assert that there is a sufficient prospect that a judgment of the Supreme Court of British Columbia dated 13 December 2024 (BC Judgment) will be registered in this court pursuant to Foreign Judgments Act 1991 (Cth) (FJA) and Rules of the Supreme Court 1971 (WA) (RSC) O 44A to invoke the court's jurisdiction to make a freezing order pursuant to RSC O 52A.
On 21 February 2025 the Plaintiffs also filed an ex parte notice of motion seeking an order registering the BC Judgment in this court (Registration Application). The Plaintiffs wanted the Freezing Application dealt with ahead of the Registration Application because of RSC O 44A r 11(1). This rule provides that no step may be taken to enforce a registered judgment until the expiration of the period within which the judgment debtor may apply to set aside the registration. In the circumstances of this case it…

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.

Keep reading for free

Create a free CaseChat account to read Harder v InCor Holdings Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 72
Decision Date: 7 MARCH 2025

CaseChat Overview and Summary

In the matter of Harder v InCor Holdings Ltd, the plaintiffs sought a freezing order in relation to assets held by the defendants, who were alleged to have engaged in fraudulent activities against the plaintiffs. The case was heard in the Supreme Court of Australia. The legal issues at hand primarily revolved around whether the court should grant the freezing order, which would prevent the defendants from disposing of their assets, and whether the order should be made ex parte, meaning without the defendants being present or having notice of the application.

The court examined the specific circumstances of the case, including the nature of the prospective cause of action, which was a foreign judgment to be registered in the Supreme Court. The court had to determine whether it was appropriate to deal with the freezing application before the registration application, in light of RSC O 44A r 11(1), which states that no steps may be taken to enforce a registered judgment until the expiration of the period within which the judgment debtor may apply to set aside the registration. Additionally, the court considered the affidavit material in support of the registration application and identified a deficiency that required the plaintiffs to address.

After considering the evidence and arguments presented, the court decided to grant the freezing orders sought by the plaintiffs. The court noted that it was appropriate to determine the freezing application before the registration application, given the specific circumstances of the case. Furthermore, the court found that the affidavit material in support of the registration application was deficient and allowed the plaintiffs to address the issue. The freezing orders were made to protect the plaintiffs' interests pending the outcome of the legal proceedings. The court's decision was based on the unique facts of the case and the need to balance the interests of both the plaintiffs and the defendants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 21 February 2025 the Plaintiffs also filed an ex parte notice of motion seeking an order registering the BC Judgment in this court (Registration Application). The Plaintiffs wanted the Freezing Application dealt with ahead of the Registration Application because of RSC O 44A r 11(1). This rule provides that no step may be taken to enforce a registered judgment until the expiration of the period within which the judgment debtor may apply to set aside the registration. In the circumstances of this case it is appropriate to determine the Freezing Application before the Registration Application. In any event, when the Registration Application came on for mention at the hearing on 28 February 2025, I identified a deficiency in the affidavit material in support, which I considered appropriate to allow the Plaintiffs to address. The Registration Application was adjourned to 7 March 2025. Two of the defendants against whom the BC Judgment was entered were InCor Holdings Ltd (InCor Holdings) and Pangaea Resources Ltd (Pangaea). InCor Holdings and Pangaea are the first and second defendants to the Freezing Application. The third defendant is Euroz Hartleys Ltd (Euroz), and the fourth defendant is Canaccord Genuity Financial (Canaccord). The Plaintiffs assert that each is a broker who holds shares for one or other of InCor or Pangaea. The Freezing Application was supported by:(a)an affidavit of Mr Harder affirmed 19 February 2024 (Harder Affidavit);(b)an affidavit of Partick James Sullivan (counsel for the Plaintiffs in the Supreme Court of British Columbia) affirmed 19 February 2025 (Sullivan Freezing Affidavit);(c)an undertaking as to damages by each Plaintiff; and(d)submissions in support (Freezing Submissions). At a hearing on 28 February 2025 I made the freezing orders sought by the Plaintiffs. The orders I made are set out in the schedule to these reasons (Freezing Order). I informed counsel that I would publish my reasons for making the Freezing Order. Those reasons follow. Over a period between 2019 and 2021 Mr Harder, through Springhill or Harder Investments, invested some CAN $7 million in companies owned by or associated with Ms Bennet and Mr Molyviatis, including InCor Holdings and Pangaea (BC Defendants). He also loaned some CAN $11.35 million to those companies in multiple transactions. In the fall of 2023, the Plaintiffs retained Mr Sullivan's firm to commence proceedings against the BC Defendants seeking to recover the funds that had been advanced to them. The action was commenced in October 2023 (BC Action). The claims were founded in fraudulent misrepresentation, negligence, unlawful means conspiracy, breach of contract, and unjust enrichment. At the same time, the Plaintiffs applied for a Mareva injunction and disclosure orders against the BC Defendants (BC Injunction and Disclosure Application). On 27 October 2023, Mr Molyviatis, Ms Bennett, Pangaea and InCor Holdings (Injunction Defendants) entered into a consent order which required the preservation of specific securities and proceeds of the sale of those securities pending the hearing of the injunction and disclosure application. The consent order was made by Justice Murray of the Supreme Court of British Columbia (Murray Preservation Orders).