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:

1. 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.

2. 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.

3. 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.

4. 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).

5. 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.   

Background

1. 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. 

2. 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).  

3. 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).

4. On 2 November 2023, pursuant to the Murray Preservation Orders, Ms Bennett on behalf of InCor Holdings produced an affidavit providing details of the location of assets held by it (Bennett Asset Affidavit).[1]  Mr Sullivan deposes in the Sullivan Freezing Affidavit that, based on his review of the Bennett Asset Affidavit, he believes that InCor Holdings and Pangaea hold or held assets in brokerage accounts with Euroz and Canaccord.  Specifically, in the schedule to the Bennett Asset Affidavit, the following appears:[2]

   [1] Sullivan Freezing Affidavit, page 325.

   [2] Sullivan Freezing Affidavit, page 61.

   Besra Gold Inc

   41,100,000 shares are held via the Pangaea account at Euroz Hartleys account 5064121

   Western Gold Resources

   15,460,643 shares held via the InCor Holdings account with Euroz Hartleys account 5064010

   173,044 shares held via the Pangaea account with Euroz Hartleys account 5064121

   …

   Cascadero

   …

   32,121,045 shares held via InCor Holdings account with Canaccord (Perth, AU) account ICG-013076

   …

   Mr Sullivan goes on to depose that unless 'InCor Holdings and Pangaea have breached the Murray preservation order, the assets held in the brokerage accounts described in the Bennett Asset Affidavit should still be there'.[3]  

   [3] Sullivan Freezing Affidavit, par 12.

5. On 14 November 2023, Justice Milman of the Supreme Court of British Columbia heard the injunction and disclosure application and granted an injunction (Milman Injunction Order).  The injunction was only against the Injunction Defendants.  In addition to certain freezing assets, Milman Injunction Order contained concomitant disclosure orders requiring the Injunction Defendants to produce a list, verified by affidavit, setting, in detail, all of their assets worldwide as at the date of the order (Injunction Disclosure Order).

6. The Injunction Defendants unsuccessfully appealed the Milman Injunction Order.

7. Mr Sullivan deposes that as at the date of swearing the Sullivan Freezing Affidavit (9 February 2025), the Injunction Defendants had not complied with the disclosure orders in the Milman Injunction Order.[4]  Counsel advised that this was an error and that in fact InCor Holdings had complied.[5]  Mr Sullivan then goes on to set out various attempts in correspondence to seek compliance with the disclosure orders in the Milman Injunction Order.[6]  These efforts were not successful, so on or around 12 September 2024, on behalf of the Plaintiffs, Mr Sullivan's office filed an application seeking an order that the Pangaea, Ms Bennett and Mr Molyviatis were in contempt of the Milman Injunction Order (Contempt Application).  In the meantime, Mr Sullivan was engaged in the process of examination for discovery of Ms Bennett and Mr Molyviatis.  This process appears to have been hampered by the Injunction Defendants regularly changing counsel.  

   [4] Sullivan Freezing Affidavit, par 20.

   [5] Transcript 28 February 2025, page 11.  This is also apparent from the decision of Justice Kircher which I refer to later: see Sullivan Freezing Affidavit, page 308.

   [6] Sullivan Freezing Affidavit, pars 21 - 27.

8. On or around 4 October 2024, the Plaintiffs filed and served an application seeking among other things, a summary trial application against InCor Holdings, Pangaea, Mr Molyviatis and Ms Bennett.  This was in relation to two loans.  The balance of the claims were left to be pursued in a future trial. 

9. On 8 October 2024, on the hearing of the Contempt Application, Justice Walker of the Supreme Court of British Colombia made a further order requiring Pangaea, Ms Bennett and Mr Molyviatis to produce asset lists.  Mr Sullivan deposes that to the best of his information, knowledge and belief, none of Pangaea, Ms Bennett or Mr Molyviatis have complied with this order.[7]

   [7] Sullivan Freezing Affidavit, par 41.

10. The summary trial application and the contempt were heard on 24 and 25 October 2024 before Justice Kirchner of the Supreme Court of British Colombia.   The BC Defendants did not respond to either application nor attend the hearing. 

11. On 13 December 2024, Justice Kircher delivered judgment on the summary trial application.  The reasons for the decision are annexed to the Sullivan Freezing Affidavit.[8]  His Honour made what I have defined as the BC Judgment.  In relation to the Registration Application, it relevantly provides:[9]

    [8] Sullivan Freezing Affidavit, pages 305 - 340.

    [9] Sullivan Freezing Affidavit, pages 301 and 302.

    3.InCor Holdings is ordered to pay to the plaintiffs the sum of $6,308,050 plus prejudgment interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79 of $687,286.95 on the sum of $6,308,050 from May 17, 2021 to December 13, 2024 (the "Cascadero Amount").

    4. InCor Holdings is ordered to pay post judgment interest on the Cascadero Amount to be determined in accordance with the Court Order Interest Act.

    5. Judgment against InCor Holdings for the failure to deliver 500,000 ordinary shares of InCor Holdings, with damages to be assessed (the "InCor Holdings Shares Amount").

    6. InCor Holdings is ordered to pay pre-and-post-judgment interest on the InCor Holdings Shares Amount to be determined in accordance with the Court Order Interest Act.

    7. InCor Holdings and Pangaea are jointly and severally liable to pay to the plaintiffs the sum of $2,200,000, plus pre-judgment interest of $238,749.36 in accordance with the Court Order Interest Act from June 21, 2021 to December 13, 2024 (the "Pangaea Amount").

    8. InCor Holdings is ordered to pay post judgment interest on the Pangaea Amount to be determined in accordance with the Court Order Interest Act.

    …

    14. The Respondents are jointly and severally ordered to pay special costs incurred by the Plaintiffs for these Applications, payable forthwith, in any event of the cause, once assessed.

12. Mr Sullivan then deposes that to the best of his knowledge, information and belief, InCor Holdings and Pangaea have failed to pay the Plaintiffs at all in accordance with the BC Judgment.[10]

    [10] Sullivan Freezing Affidavit, par 45.

13. Justice Kircher then went on to consider the contempt application.  His Honour found that each of Pangaea, Ms Bennett and Mr Molyviatis was in contempt of the Injunction Disclosure Order.[11]  The remedial order made in response to the contempt was in the following terms:

    [11] Sullivan Freezing Affidavit, page 301.

    9.The Contemnors are ordered to post security for good behaviour in the aggregate amount of $8,858,080, with the Supreme Court of British Columbia by February 12, [2025], the ("Posting Date") as follows: 2.0X

    a. Ms. Bennett and Mr. Molyviatis are jointly and severally ordered to post security in the amount of $6,808,050; and

    b. Pangaea is ordered to post security in the amount of $2,050,000. (the "Security for Good Behaviour Order")

    10. After fully complying with the Asset Disclosure Order, Ms. Bennett and Mr. Molyviatis may apply to the Court prior to the Posting Date to vary or set aside the Security for Good Behaviour Order on the following bases:

    a. that the applying party has not been responsible for or participated in any unlawful dissipation of InCor Holdings' or Pangaea's assets, including any dissipation that is contrary to the Asset Preservation Order; or

    b. that compliance with the Security for Good Behaviour Order is impossible

    11. Any party that applies to vary or set aside the Security for Good Behaviour Order must propose other measures that would suitably sanction and purge their contempt.

14. I am not told in the affidavit material whether this order has been complied with.

Does RSC O 52A apply?

1. By RSC O 52A(2)(1) the court may make an order (a freezing order), upon or without notice to the respondent, for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. The object of a freezing order is not to provide security to a plaintiff.[12]  It is a drastic remedy which should not be granted lightly.[13]

   [12] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [2018] WASCA 174 [44] (judgment of the court) (Duro); Belmont Tyre & Auto Service Centre Pty Ltd v Ampak Holdings Pty Ltd [2023] WASC 230 [37] (Seaward J).

   [13] Duro [44]; Belmont [37].

2. The freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.[14]  The court may also make any order that the court considers appropriate ancillary to a freezing order or prospective freezing order.[15]  This includes an order made for purpose of eliciting information relating to assets relevant to the freezing order or prospective freezing order.[16]  

   [14] RSC O 52A r 2(1).

   [15] RSC O 52A r 3(1).

   [16] RSC O 52A r 3(2)(a).

3. The court may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent.[17]

   [17] RSC O 52A r 4.

4. In PT Bayan Resources TBK v BCBC Singapore Pte the High Court held that RSC O 52A validly empowered the court to grant a freezing order where the prospective judgment is a judgment of a foreign court that the applicant intends to register pursuant to the FJA.[18]

   [18] PT Bayan Resources TBK v BCBC Singapore Pte [2015] HCA 36; (2015) 258 CLR 1 [1], [50] (French CJ, Kiefel, Bell, Gageler and Gordon JJ), [58] - [61] (Keane and Nettle JJ).

5. So far as is relevant to the Freezing Application, by RSC O 52A r 5(1)(b)(ii), the rule applies if an applicant 'has a good arguable case on an accrued or prospective cause of action that is justiciable in, … in the case of a cause of action to which subrule (3) applies - another court'. RSC O 52A r 5(3) provides:

   (3)This subrule applies to a cause of action if -

   (a)there is a sufficient prospect that the other court will give judgment in favour of the applicant; and

   (b)there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

6. The fact that the Supreme Court of British Colombia has in fact given judgment in terms of the BC Judgment means that the r 5(3)(a) is readily satisfied.

7. As to the prospects of the BC Judgment being registered in this court, by FJA s 6 a judgment creditor under a judgment to which FJA pt 2 applies may apply to 'the appropriate court' to have the judgment registered in the court. FJA pt 2 applies to the Supreme Court of British Colombia.[19]  As the BC Judgment is a judgment for a monetary amount the Supreme Court is an 'appropriate court'.[20] 

   [19] Foreign Judgments Regulations 1992 (Cth) (Regulations) rr 3-4 and Schedule, Item 3.

   [20] FJA s 6(2)(c).

8. Mr Harder deposes that to the best of his knowledge, information and belief, InCor Holdings and Pangaea have failed to pay the Plaintiffs at all in accordance with the BC Judgment.[21]  He also deposes that his counsel in Canada and Australia are authorised to take necessary steps to register the BC Judgment in Australia, commence enforcement proceedings against InCor Holdings and Pangaea, and seek to preserve the assets of Pangaea and InCor Holdings from dissipation.[22]  As mentioned, the Plaintiffs have commenced the Registration Application.

   [21] Harder Affidavit, par 7.

   [22] Harder Affidavit, par 9.

9. In my view there is a sufficient prospect that the BC Judgment will be registered in this court for me to be readily satisfied that the Plaintiffs have a good arguable case on an accrued or prospective cause of action that is justiciable in another court. 

10. Accordingly I am of the view that the Plaintiffs have properly invoked RSC O 52A.

Is there a danger that the assets of InCor Holdings and/ or Pangaea will be dissipated?

1. By RSC O 52A r 5(4):

   The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur -

   (a)the judgment debtor, prospective judgment debtor or another person absconds; or

   (b)the assets of the judgment debtor, prospective judgment debtor or another person are -

   (i)removed from Australia or from a place inside or outside Australia; or

   (ii)disposed of, dealt with or diminished in value.

2. As set out at [9], to the best of the knowledge of the plaintiffs:

   (a)Pangaea holds shares in Besra Gold Inc in its account with Euroz;

   (b)Pangaea holds shares in Western Gold Resources in its account with Euroz;

   (c)InCor Holdings holds shares in Western Gold resources in its account with Euroz; and

   (d)InCor Holdings holds shares in Cascadero in its account with Canaccord.

3. The correspondence attached to the Sullivan Freezing Affidavit is to the effect that Euroz has offices in Perth and Canaccord has offices in Melbourne.[23] 

   [23] Sullivan Freezing Affidavit, pages 342 and 345.

4. I am satisfied that there is sufficient information to the effect that both Pangaea and InCor Holdings have assets within Australia to justify making a freezing order.

5. As to the risk of dissipation, the risk of danger must be real or substantial, as opposed to a remote, speculative or theoretical possibility.  The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities, but it is not necessary to establish that it is more probable than not that judgment will be unsatisfied unless a freezing order is made.[24]  The fact that assets within the jurisdiction are moveable and the defendants are located outside the jurisdiction is not sufficient to warrant an inferential finding that there is a danger of dissipation.  There must be evidence before the court from which a prudent, sensible, commercial person can properly infer a danger of default if assets are removed from the jurisdiction.[25]  The risk of danger must be real or substantial, as opposed to a remote, speculative or theoretical possibility.  The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities, but it is not necessary to establish that it is more probable than not that judgment will be unsatisfied unless a freezing order is made. Ultimately, it is a question for evaluation by the issuing court as to whether the degree of the danger or risk is sufficient to justify an order in the terms which the court is asked to make.[26]

   [24] Duro [43]; Belmont [37].

   [25] Jadewest 2024 Pty Ltd v BTFMS Pty Ltd [2024] WASC 166 [45] (Hill J); Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014 [12] (Kenny J).

   [26] Duro [44]; Belmont [37].

1. Mr Sullivan deposes:[27]

   46. Based on the evidence I have reviewed including the evidence of Bennett and Molyviatis, I understand that Bennett and Molyviatis are the controlling minds of Pangaea and InCor Holdings.

   47. As a result of the conduct of Pangaea and InCor Holdings (or their representatives Molyviatis and Bennett), including their lack of any response or communication since the fall of 2024, their evidence at discovery outlined above, their failure to comply with the Injunction Order, and their failure to comply with the October 2024 Asset List Order, I am not aware of the status of their assets since the they produced the Bennett Asset Affidavit in November 2023.

   48. Having regard to the conduct of Pangaea and InCor Holdings (and their representatives Molyviatis and Bennett) deposed to herein, I am very concerned that unless restrained they will dissipate their Australian assets.

   [27] Sullivan Freezing Affidavit, pars 46 - 48.

2. Given the conduct of Ms Bennett and Mr Molyviatis in the Supreme Court of British Colombia, I consider Mr Sullivan's concerns as to a risk of  dissipation to be well founded.

3. For the purposes of RSC O 52A r 5(4) I am satisfied that, having regard to all the circumstances, in particular the conduct of the Injunction Defendants in the BC Action, there is a danger that any judgment registered in this court by the Plaintiffs will be wholly or partly unsatisfied because the assets of InCor Holdings and/or Pangaea that are currently within the jurisdiction might be either:

   (a)removed from Australia or from a place inside or outside Australia; and/ or

   (b)disposed of, dealt with or diminished in value.

Should the court exercise its discretion to make a freezing order?

1. Determining the first two issues in favour of the Plaintiff's means that the jurisdiction to make a freezing order was enlivened.  All relevant discretionary factors are considered together in the exercise of the discretion whether to grant the orders sought.  The relevant factors include:[28]

   (a) the strength of the plaintiff's case;

   (b)the danger of frustration of a prospective judgment;

   (c)any discretionary considerations which mitigate against the granting of a freezing order, such as a delay in bringing an application, or a lack of candour in the materials placed before the court; and

   (d)the balance of convenience.

   [28] Jadewest [46], [59]; Belmont [37].

2. The Plaintiffs' case is very strong, given that the BC Judgment has been made and remains unsatisfied.  The danger of frustration of enforcement proceedings in Australia is very real given the conduct of the Injunction Defendants in the BC Action to date and the nature of the assets, being shares.  There are no discretionary considerations suggesting that it is not appropriate to grant the order.  The balance of convenience favours the grant of an order.  In this regard, I note the undertaking as to damages by the Plaintiffs. 

3. For these reasons, I was of the view that it was appropriate to make the Freezing Order.

Service - InCor Holdings and Pangaea

1. As to service, an application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia), relevantly, under RSC O10.[29]  As the Freezing Application is in respect of a matter of thing connected with Australia, shares held by Australian brokers, no leave is required to serve outside the jurisdiction.[30]

   [29] RSC O 52A r 7.

   [30] RSC O 10 r 5(d)(iii).

2. A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.[31]

   [31] O 10 r 12.

3. Mr Sullivan deposes that on the last occasion on which a lawyer acting for InCor Holdings and Pangaea filed a Notice of Intention to Withdraw as Lawyer in the BC Action, the following addresses for service were provided:[32]

   (a)InCor Holdings: 1-4 Argyll St, London W1F 7LD, United Kingdom; [email protected]; and

   (b)Pangaea: 1 Farrer Pl, Sydney NSW 2000, Australia; [email protected].

   [32] Sullivan Freezing Affidavit, par 56.

4. Mr Sullivan goes on to depose that in accordance with the Notice of Intention to Withdraw as Lawyer, and the information received from Ms Bennett, where ordinary service is required in the BC Action, his office has served InCor Holdings and Pangaea by email at [email protected].  He says that given the records offices for InCor Holdings and Pangaea are respectively located in England and Belize, he believes it will be more efficient to serve each defendant through this email.

5. Given the approach taken by InCor Holdings and Pangaea to the BC Action which I have described above, the Plaintiffs are entitled to some latitude as to service.  Accordingly, I granted leave to serve by email as requested.

Should orders be made against Euroz and / or Canaccord?

1. By RSC O 52A r 5(5):

   The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that -

   (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because -

   (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

   (ii) the third party is in possession of, or in a position of control or influence concerning, assets or

   (b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

2. As I have noted ([9] and [31]), from the Bennett Asset Affidavit, it appears that InCor Holdings and Pangaea hold assets in brokerage accounts at Euroz and Canaccord.  

3. On 24 October 2023, Mr Sullivan sent a letter to Michael Bartley, Private Wealth Advisor of Euroz, providing notice to Euroz of the BC Injunction and Disclosure Application.  The letter informed Euroz that the order sought, amongst other things, seeks to prevent third parties with notice from dealing with any brokerage or bank accounts of the above defendants.[33]

   [33] Second Sullivan Affidavit, par 50, pages 342 - 343.

1. On 24 October 2023, Mr Sullivan sent a letter to Marcus Freeman, Managing Director & Chief Executive Officer of Canaccord, and Daniel Sharp, Director of Corporate Finance of Canaccord, providing notice to Canaccord of the Injunction and Disclosure Application.  The letter informed Canaccord that the order sought, amongst other things, seeks to prevent third parties with notice from dealing with any brokerage or bank accounts of the above defendants.[34]

   [34] Second Sullivan Affidavit, par 51, pages 344 - 346.

2. On 30 October 2023, pursuant to the Murray Preservation Order, counsel for the Injunction Defendants sent a letter to Sandrine Captieux, Associate Advisor of Canaccord, in the following terms.[35]

   We write on the instruction of our clients, InCor Holdings Ltd, George Molyviatis, Jocelyn Bennet, and Pangaea Resources Limited, one or more of whom holds one or more brokerage accounts with you.

   This letter is an irrevocable instruction from and on behalf of each and all of them to retain any proceeds from the sale of any securities of Besra Gold Inc., Cascadero Copper Corporation, Search Minerals Inc., Western Gold Ltd. and LeadFX Inc. in any and all of their brokerage accounts pending further notification from us.

   For the avoidance of doubt this instruction does not restrict our clients' ability to trade the stated securities. These instructions are communicated to you on a confidential basis.

   You may confirm these instructions with the holder of the account, who are in copy, directly.

   [35] Second Sullivan Affidavit, par 53, page 350.

3. On 30 October 2023, pursuant to the Murray Preservation Order, counsel for the Injunction Defendants sent a letter to Mr Bartley in the following terms:[36]

   We write on the instruction of our clients, InCor Holdings Ltd, George Molyviatis, Jocelyn Bennet, and Pangaea Resources Limited, one or more of whom holds one or more brokerage accounts with you.

   This letter is an irrevocable instruction from and on behalf of each and all of them to retain any proceeds from the sale of any securities of Besra Gold Inc., Cascadero Copper Corporation, Search Minerals Inc., Western Gold Ltd. and LeadFX Inc. in any and all of their brokerage accounts pending further notification from us.

   For the avoidance of doubt this instruction does not restrict our clients' ability to trade the stated securities.

   These instructions are communicated to you on a confidential basis. You may confirm these instructions with the holder of the account, who are in copy, directly.

   [36] Second Sullivan Affidavit, par 52, page 348.

4. Mr Sullivan deposes that between 25 October 2023 to 12 August 2024, he regularly advised Mr Bartley that the disposition of any proceeds of securities of specific issuers held in the brokerage accounts of InCor Holdings, Molyviatis, and Pangaea continue to be frozen pursuant to the Injunction Order.[37]

   [37] Second Sullivan Affidavit, par 55.

5. Mr Sullivan then concludes:[38]

   I understand the relief sought in Australia may have impact upon Euroz Hartleys and Canaccord Genuity, in that it would require them to take or maintain certain internal administrative steps to ensure the assets are not dissipated and follow the instructions of the Court. I do not believe this order would have any impact on their interests, other than that internal administrative step, just described.

   [38] Second Sullivan Affidavit, par 55.

6. In these circumstances, I am satisfied that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because both Euroz and Canaccord, who are each in a position to control assets of InCor Holdings and Pangaea, being the shares in their brokerage accounts, will be instructed to deal with the shares in a manner that removes control of them, or their proceeds, out of Australia.

7. On this basis, I considered that it was appropriate to make the ancillary orders sought against Euroz and Canaccord.

8. Again, I note the undertaking as to damages by the Plaintiffs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

OB

Associate to the Hon Justice Gething

7 MARCH 2025