Lily & Ruby Holdings Pty Ltd v Aulich Civil Law Pty Ltd (In Liquidation) (No 2)

[2025] ACTSC 72

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Lily & Ruby Holdings Pty Ltd v Aulich Civil Law Pty Ltd (In Liquidation) (No 2)

Citation: 

[2025] ACTSC 72

Hearing Date: 

4 March 2025

Decision Date: 

4 March 2025

Before:

McCallum CJ

Decision: 

(1)    Orders 3, 4, 5, 6, 7, 10, 11 and 12 of the freezing orders made by me on 19 December 2024 are extended until further order. 

(2)    I vacate directions 7, 8 and 9 made by the Deputy Registrar on 9 December 2024 and the listing for directions on 6 May 2025. 

(3)    I list the proceedings before me at 9:30am on 25 March 2025. 

(4)    I order the fourth defendant to pay the plaintiff’s costs of today, noting that their counsel travelled from Sydney prepared for a contested hearing. 

Catchwords: 

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Freezing order – where freezing orders made ex parte during term break – where defendant opposed continuation of orders but failed to take any steps to prepare for contested hearing – where solicitors for defendant failed to appear in person on return date and made last minute application to appear by telephone – freezing orders continued until further order

Cases Cited: 

Lily & Ruby Holdings Pty Ltd v Aulich Civil Law Pty Ltd (In Liquidation) [2024] ACTSC 412

Parties: 

Lily & Ruby Holdings Pty Ltd ( First Plaintiff)

Erin Brooke Taylor ( Second Plaintiff)

Aulich Civil Law Pty Ltd (In Liquidation) (First Defendant)

Peter William Woodhouse (Second Defendant)

Angiesal Pty Ltd (In Liquidation) (Third Defendant)

Benjamin Joseph Aulich (Fourth Defendant)

Gracie Gill Pty Ltd (Fifth Defendant)

Representation: 

Counsel

D J Reynolds ( Plaintiffs)

No appearance ( Defendants)

Solicitors

Bradley Allen Love Lawyers ( Plaintiffs)

No appearance ( Defendants)

File Number:

SC 260 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․These proceedings came before me on 19 December 2024 for the hearing of an urgent ex parte application by the plaintiffs for freezing orders against the fourth defendant, Mr Benjamin Aulich.  On that date, I made the orders sought, for the reasons published that day: Lily & Ruby Holdings Pty Ltd v Aulich Civil Law Pty Ltd (In Liquidation) [2024] ACTSC 412.

2․Orders made ex parte are ordinarily made only up to and including the date on which a hearing inter partes can be held.  The orders I made on 19 December 2024 were expressed to have effect up to and including the close of business on 28 January 2025 in the anticipation that, on the latter date or soon thereafter, there would be a further hearing inter partes (if sought by Mr Aulich) to consider whether the order should be continued.  As the original application was made after the end of the law term, I granted leave to Mr Aulich to apply to the duty judge during the term break if he sought an earlier hearing.

3․When the proceedings came back before me on 28 January 2025, the matter was not ready to proceed.  I directed Mr Aulich to inform the plaintiffs by close of business on 25 February 2025 of his attitude to the continuation of the freezing orders.  I extended the freezing orders until 5:00pm today.

4․The proceedings have come back before me today in circumstances where, in accordance with my direction, Mr Aulich has informed the plaintiffs that he opposes the continuation of the freezing orders beyond today.  However, no application has been filed by him (arguably none is needed) but, more importantly, no communication has been made to the Court by Mr Aulich or his solicitors to indicate that there would be a contested hearing today, and no evidence has been filed or served by him.

5․Having received notice that the continuation of the orders is opposed, Mr Reynolds of counsel, who appears for the plaintiffs, has travelled from Sydney on the understanding that there would be a contested hearing today in respect of the continuation of the orders beyond today. 

6․Mr Aulich’s solicitors, however, have not appeared.  They contacted the Court after 5:00pm yesterday evening seeking leave to appear by telephone.  That request was renewed shortly after 9:00 am this morning in circumstances where the matter was known by them to be listed at 9:30 am.  The request to appear by telephone was made at that time notwithstanding the fact that the form submitted by the solicitors for that purpose states in large letters at the top of the form that any such application must be made more than 24 hours before the hearing in question. 

7․In any event, I would not have granted Mr Aulich leave to appear by telephone today.  At best, I would have indicated that I would be prepared to accept his appearance by audiovisual link, depending on what was to happen today.  Had I been informed that there was to be a contested hearing as to the continuation of the orders and in circumstances where there is no material before the Court or on the Court file, I would likely have refused leave to appear by AVL.  In any event, in the circumstances I have described, I have proceeded on the basis that the fourth defendant has not appeared today, there being no one present in court to represent him.

8․In the fourth defendant’s absence, Mr Reynolds has very fairly informed the Court of the fourth defendant’s position in respect of directions made by the Deputy Registrar on 9 December 2024.  Order 6 made that day required the parties to give discovery on or before 3 March 2025.  Mr Aulich has given partial discovery and has sought a further two weeks to complete his discovery.  The plaintiffs do not oppose that course.

9․In the result, the balance of the timetable set by the Deputy Registrar should be vacated to ensure that discovery is complete before the plaintiffs are required to take any further step in the proceedings.  Furthermore, the fourth defendant should, notwithstanding the circumstances which I have recounted, have an opportunity to seek to have the freezing orders discharged, provided he takes the steps ordinarily required for that purpose in an orthodox way and not in the haphazard way that has been the case to date.  In the meantime, the occasion first fixed for hearing that issue having passed without being availed of, it is appropriate now to extend the orders until further order.

Orders

10․For those reasons I make the following orders: 

(5)Orders 3, 4, 5, 6, 7, 10, 11 and 12 of the freezing orders made by me on 19 December 2024 are extended until further order. 

(6)I vacate directions 7, 8 and 9 made by the Deputy Registrar on 9 December 2024, and I vacate the listing for directions on 6 May 2025. 

(7)I list the proceedings before me at 9:30am on 25 March 2025. 

(8)I order the fourth defendant to pay the plaintiff's costs of today, noting that their counsel travelled from Sydney prepared for a contested hearing. 

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: