Pickett v Amin

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2023 05623

BETWEEN:

MICHAEL JOHN PICKETT (a person under disability who sues by his Litigation Guardian, WESLEY SEAN PICKETT) and another in accordance with the Schedule	Plaintiffs
v
SHAFQUAT AMIN and another in accordance with the Schedule	Defendants

AND BETWEEN:

SHAFQUAT AMIN	Plaintiff by Counterclaim
v
WESLEY SEAN PICKETT and others in accordance with the Schedule	Defendants by Counterclaim

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JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2025
DATE OF RULING:	4 July 2025
CASE MAY BE CITED AS:	Pickett & Anor v Amin & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 400

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PRACTICE AND PROCEDURE — Freezing order — Application to discharge freezing order based on material change in circumstances — Where the plaintiff no longer has standing to pursue the proceeding — Where the undertaking as to damages is not continuing — Where the proceeding is to be temporarily stayed pending the outcome of another yet to be commenced proceeding — Brimaud v Honeyset Instant Print Ltd (1988) 217 ALR 44 — National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 — Rozenblit v Vainer [2019] VSCA 164 — Distinctive FX Pty Ltd v Van Der Slot [2016] VSCA 39.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms CH Sparke KC	Schembri + McCluskys
For the Defendants	Mr ST Pitt KC with Ms BHR Ridgeway	Hall & Wilcox

Contents

A.. Introduction

B.. The question of standing

B.1          The defendants’ submissions regarding standing
B.2          Wesley’s submissions regarding standing
B.3          Defendants’ submissions in reply
B.4          Consideration

C.. Applicable legal principles

D.. Defendants’ submissions

D.1         Changes in circumstances from when the Freezing Order was made
D.1.1        Nature of interests sought to be preserved by the Freezing Order have shifted
D.1.2        Delay

D.2 Merits of the Foreshadowed Probate Proceeding
D.3 Continuing financial burden of the Freezing Order

E... Wesley’s submissions

E.1          Merits of the plaintiffs’ case – arguable case
E.2          Quantum and nature of the claims made in the Recovery Proceeding
E.3          The defendants’ financial position and risk of dissipation of assets

F... Defendants’ submissions in reply

G.. Consideration

G.1 Has there been a material change in circumstances since the Freezing Order was made?
G.2 In all the circumstances of this case, do the interests of justice require the Freezing Order to be varied or discharged?

H.. Conclusion

HER HONOUR:

A Introduction

Michael Pickett was 81 years old at the time of his death on 27 February 2025.[1] Michael never married nor had children. His closest living relatives were his brother, Max Pickett, and Max’s two sons, Wesley Pickett and Scott Pickett, who were Michael’s nephews. Prior to being hospitalised in September 2023 and subsequently moving into residential aged care, Michael lived in the house he owned at 3 The Avenue, Chelsea. The Amin family lived next-door to Michael at 1 The Avenue, Chelsea: Shafquat Amin (known as Shak), his wife Rahna Amin, and their two daughters.
[1]With no disrespect to the individuals involved, I will refer to them by their first names so as to avoid confusion.
This proceeding was commenced on 29 November 2023 by Wesley as litigation guardian for Michael, being then a person under a disability, against Shak and Rahna as defendants (Recovery Proceeding). Broadly speaking, by the Recovery Proceeding, Michael sought the return of certain assets, which were said to be his property. The claims made in the Recovery Proceeding primarily concern properties which were allegedly either transferred from Michael to one or more of the defendants, or properties purchased by one or more of the defendants using money emanating from Michael, as well as other claims as to the transfer of monies.[2]
[2]The relevant properties are: 31 Camp Street, Chelsea; 1 The Avenue, Chelsea; 10 Fox Road, Narre Warren North; 74 Hallam North Road, Hallam North; and 1 Moonya Road, Carnegie.
On 30 November 2023, a freezing order was granted by Harris J of this Court on an ex parte basis over what comprised the entirety of the defendants’ assets, save for certain exceptions, which exceptions relevantly included the payment of $2,000 per week for ordinary living expenses and the payment of $20,000 on reasonable legal expenses (Freezing Order).
The Freezing Order was subsequently varied on several occasions.[3]
[3]The freezing order was varied on 7 December 2023 (Watson J); 18 December 2023 (Richards J); 22 December 2023 (Richards J); 17 April 2024 (Moore J); 5 September 2024 (Matthews J); 9 September 2024 (Matthews J); 15 November 2024 (Matthews J); 7 February 2025 (Matthews J) and 20 February 2025 (Matthews J).
By consent between the parties, Keleb Pty Ltd (Keleb) was joined to the Recovery Proceeding as the second plaintiff pursuant to orders made on 31 May 2024. Michael was a director and shareholder of Keleb. Shak was also a director and shareholder of Keleb. The plaintiffs allege that within the same series of transactions that Michael complains of, Shak has misappropriated funds belonging to Keleb and applied them to the purported purchase of real properties from Michael. The plaintiffs also allege that Rahna received Keleb’s funds with the knowledge that their receipt was the product of an alleged breach of fiduciary duty by Shak to Keleb.
Relevantly, Michael made three wills prior to his death on 1 February 2014 (First Will), 10 June 2016 (Second Will), and 6 June 2017 (Third Will) (together, the Wills). The salient features of the Wills are as follows:
(a)Each Will was prepared by a solicitor.
(b)The First Will provided that:
(i)Max, Shak and Rahna were the executors;
(ii)there were specific bequests of a boat and mooring to Michael’s friend Ken Sincock, of $500,000 to each of Wesley and Scott, and of Michael’s shares in Keleb to Shak;
(iii)the residue of the estate was left to Shak; and
(iv)Michael declared that in making his will he had “carefully considered the circumstances of [Max] and resolved not to provide any provision for him”.
(c)Under the Second Will:
(i)Shak and Rahna remained executors, however Max was no longer an executor;
(ii)the same specific bequests were made;
(iii)the residue of the estate was left to Shak and Rahna; and
(iv)the same declaration regarding Max was made.
(d)Under the Third Will:
(i)Shak and Rahna remained executors;
(ii)the specific bequests to Ken Sincock and Shak remained unchanged, save that Michael directed Shak to take on the directorship of Keleb. The Third Will did not contain any specific bequests to Scott or Wesley;
(iii)the residue of the estate was left to Shak and Rahna; and
(iv)Michael declared that in making his will he had “carefully considered the circumstances of my brother [Max] and my nephews [Wesley] and [Scott] and resolve not to provide any provision for them as they each have sufficient assets of their own.”
On 19 July 2024, Max commenced another proceeding in this Court, proceeding number S ECI 2024 03728, seeking a court-authorised will to be made on behalf of Michael (Statutory Will Proceeding). The statutory will which Max sought to be made on behalf of Michael would have had the effect of leaving Michael’s estate equally between Wesley and Scott, and nothing to Shak or Rahna.
As the defendants submit, there was an “obvious strategic symbiosis” between the Recovery Proceeding, which sought to claw assets back into Michael’s possession, and the Statutory Will Proceeding, which sought to have them distributed to Michael’s nephews upon his death.
On 15 November 2024, I made orders that the Recovery Proceeding and the Statutory Will Proceeding be heard together and fixed them for a trial commencing on 2 June 2025. Various orders for the completion of pleadings, evidence, disclosure of documents and other pre-trial orders were made at that time.
As noted above, Michael died on 27 February 2025. It is common ground that as a result of Michael’s death:
(a)the orders sought by the Statutory Will Proceeding became unavailable, as the Court can only make a statutory will for a person during their lifetime; and
(b)Wesley’s authority to act as Michael’s litigation guardian ceased.
On 11 April 2025, I made orders by consent between the parties in respect of both proceedings. Relevantly:
(a)the trials of both proceedings were vacated;
(b)timetabling orders in respect of the defendants’ foreshadowed application regarding costs in both proceedings were made;
(c)timetabling orders for a foreshadowed application by the defendants to discharge the Freezing Orders were made; and
(d)it was noted that once the foreshadowed applications in the Recovery Proceeding regarding the Freezing Order and costs were determined, the parties intended that the Recovery Proceeding be stayed.
By summons filed 17 April 2025, the defendants applied for the discharge of the Freezing Order (Discharge Application). In support of this application, the defendants rely on two affidavits sworn by Shak: one on 17 April 2025 (Shak’s First Affidavit) and the other on 16 May 2025 (Shak’s Second Affidavit); and the written outline of submissions dated 20 May 2025 (Defendants’ Written Submissions). Wesley opposes the Discharge Application, and relies on his affidavit affirmed 1 May 2025 (Wesley’s Affidavit) and the written outline of submissions dated 27 May 2025 (Wesley’s Written Submissions). The relevant evidence is summarised in the background set out above and referred to when discussing the parties’ submissions and my analysis.
This decision concerns the Discharge Application.
On 9 May 2025, the defendants applied for probate of the Third Will, and on 19 March 2025, Max lodged a probate caveat against the granting of probate. As at the date of this hearing, the grounds of objection were yet to be filed. It appears to be common ground that these matters will result in a contested probate proceeding (Foreshadowed Probate Proceeding). It also seems to be common ground that the Foreshadowed Probate Proceeding will be complex, require consideration of all of the Wills, and will be hard fought. The defendants submit that it will take some two to three years for an outcome to be achieved in the Foreshadowed Probate Proceeding; Wesley submits that this will take 18 months to two years.

B The question of standing

Before turning to other relevant issues, I must first address the question of the plaintiff’s standing in the Recovery Proceeding, including in respect of the Discharge Application.
As noted above, Wesley commenced the Recovery Proceeding as Michael’s litigation guardian. Michael is the plaintiff in the proceeding, but functioned as such through his litigation guardian. With Michael’s death, Wesley is no longer his litigation guardian and Michael is no longer the plaintiff in the Recovery Proceeding.
The defendants allege, and Wesley concedes, that at this time no person currently has standing to be substituted as a plaintiff in Michael’s place in the Recovery Proceeding. Until the Foreshadowed Probate Proceeding is concluded, there is no legal personal representative for Michael’s deceased estate. Without a legal personal representative, there is no one to pursue the Recovery Proceeding.

B.1 The defendants’ submissions regarding standing

The defendants submit that while Wesley has made an affidavit in defence of the Discharge Application, he has no standing upon which to prosecute the Recovery Proceeding or the continuation of the Freezing Order. He is no longer a litigation guardian. There is no grant of representation in force authorising him to act on behalf of Michael’s estate or any will appointing him as executor of Michael’s estate. No order has been made pursuant to r 16.03(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) authorising him to represent Michael’s estate for the purposes of the Recovery Proceeding. He has no interest in the outcome of the Recovery Proceeding: if Max is successful in the Foreshadowed Probate Proceeding in having the Wills set aside, then the intestacy provisions will apply and Max would be the sole beneficiary of Michael’s estate in those circumstances. Max would likely be appointed to act as administrator of Michael’s estate and he would likely be the appropriate substitute plaintiff in the Recovery Proceeding.
The defendants submit that there is no direct evidence before the Court as to Max’s actual intentions and wishes regarding the Recovery Proceeding. He has not gone on affidavit in respect of the Discharge Application. The defendants submit that Wesley has no real standing, he has not taken on the role of contradictor, but is really pursuing Max’s interests as he is the only one who can benefit from intestacy.
The defendants submit that Wesley is now seeking to maintain a Freezing Order that he has no interest in maintaining.

B.2 Wesley’s submissions regarding standing

At the commencement of her oral submissions, Ms Sparke KC clarified that she appeared for Wesley (she had earlier announced her appearance as for the plaintiff).
Wesley accepts that if the defendants are granted probate of any of the Wills, then the defendants as executors will have standing to be substituted as plaintiff in Michael’s place in the Recovery Proceeding; however, it would be pointless to pursue the claims as the assets sought to be recovered would be returned to the defendants under the probated Will. Wesley submits that if the defendants are not granted probate for any of the Wills, then Max would be the legal personal representative and have standing to be substituted as plaintiff, and the Recovery Proceeding will be pursued.
Wesley submits that although no person currently has standing to be substituted as plaintiff in Michael’s place, as Michael’s litigation guardian he should nevertheless be heard on the Discharge Application as an exercise of the Court’s inherent jurisdiction to “prevent their processes being used in a manner which gives rise to injustice.”[4]
[4]Jago v District Court of NSW [1989] HCA 46, [14]; (1989) 168 CLR 23, 31 (Mason CJ) (Jago).
Wesley accepts that he was now opposing the Discharge Application for Max. Ms Sparke KC stated that Max was present in court, had participated in discussions she had had with Wesley about the case, and the Court should infer that he acquiesces in the position adopted by Wesley and supports it.
Wesley submits that he does not really have a choice but to respond to the Discharge Application, and since he has been the active protagonist it was appropriate for him to be heard on the application.
Wesley submits that the Rules in respect of freezing orders focus on preventing frustration of the Court’s processes rather than the protection of a person’s interests, in that the focus is on protecting assets from dissipation. Wesley relies on Jago for the general proposition it stands for.
The Recovery Proceeding is on foot, which needs to be stayed until a legal personal representative is determined. Wesley submits that someone needs to be a contradictor for the Discharge Application for the protection of Michael’s estate.
Wesley submits that the Civil Procedure Act 2010 (Vic) (CPA) requires the parties to minimise expenses, and that if the defendants’ argument regarding standing is correct, then Ms Sparke KC would need to get instructions from Max to issue a fresh proceeding seeking a freezing order. This would seek to protect the assets of the estate if Max ends up being appointed as the legal personal representative for Michael’s estate. This was said to be inefficient and inconvenient.
Wesley concedes that this does not give him legal standing, but contends that this should not stop the Court hearing from him and maintaining the Freezing Order.

B.3 Defendants’ submissions in reply

The defendants contend that Wesley’s reliance on Jago is misplaced as it has nothing to do with freezing orders. Rather, the decision is about the stay of a criminal trial —and provides a general statement about the Court protecting its own processes.
The defendants contend that Wesley’s submission as described in paragraph 28 above is incorrect. It was said that a freezing order was a ‘nuclear weapon’ in the Court’s arsenal and convenience was not a sufficient justification for making or maintaining one. According to the defendants, due to no one currently having standing as plaintiff in the Recovery Proceeding, what should happen is the Freezing Order should be discharged and that would leave Max to pursue whatever course he considered appropriate.

B.4 Consideration

As already noted, it is common ground that Wesley does not have standing and there was no one else before me who did.
As I apprehend it, the defendants’ position on standing was not directed to whether the Court should receive evidence from Wesley or hear submissions from him in opposition to the Discharge Application. Rather, their position was that Wesley’s lack of standing and there being no one currently with standing to be substituted as plaintiff in the Recovery Proceeding was a factor, indeed a significant one, that should bear heavily on the Court’s exercise of its discretion in respect of the Freezing Order.
In other words, the standing issue was relied on as one of the reasons justifying the discharge of the Freezing Order. The defendants did not submit that I should disregard Wesley’s affidavit or his submissions.
In light of this, I consider that this is the way I should deal with the standing issue. When determining whether to maintain, discharge or vary the Freezing Order, I will take into account the fact that Wesley does not have standing, and nor does anyone else, to be substituted as a plaintiff in the Recovery Proceeding or defend the Discharge Application. However, I will receive and have regard to Wesley’s evidence and submissions.

C Applicable legal principles

A freezing order is interlocutory in nature. In respect of applications to set aside, vary or discharge an interlocutory order, McLellan J in Brimaud v Honeyset Instant Print Ltd stated (emphasis added):[5]
Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.
The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature and injunctions (or undertakings) made or given by agreement and without contest “until further order”.
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application.
[5](1988) 217 ALR 44, 46 (Brimaud v Honeyset) (citations omitted), applied in [2011] VSC 60, [44] (Judd J). See also Zhang v Zhang (No 2) (2025) FCA 98 (Neskovcin J); National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900, [104] (Henry J) (NAB v Human Group).

In this instance, while the Freezing Order was initially made ex parte and therefore without an initial contest, it returned to the Court on several occasions for it to be extended. The defendants were present and represented at those times. Hence, the defendants must show that there has either been “a material change of circumstances since the original application was heard” or the discovery of new material which could not reasonably have been put before the Court when the Freezing Order was made. The defendants rely on a material change of circumstances in making their Discharge Application.
Neither party specifically took me to cases considering the discharge of a freezing order. Wesley referred to Vasilaras & Co Pty Ltd v Laprese[6] as support for the proposition that having made a freezing order, a Court should not be quick to reverse it save for good reason and the dictates of justice. However, I note that Derham AsJ prefaced this proposition with the statement that “Where there is an application for a variation of the terms of the freezing order, the variation is dictated by what justice demands in the particular circumstances of the case.”[7]
[6][2019] VSC 56, [73] (Vasilaras v Laprese).
[7]Vasilaras v Laprese [73], referring to Bird v McComb (No 3) [2011] FCA 697 and Deputy Commissioner of Taxation v Gashi [2012] VSC 401, [16]. Vasilaras v Laprese was cited approvingly in Plus Recruitment Pty Ltd v Phillips (No 2) [2019] VSC 611 (Lyons J).
In their submissions, rather than specifically relying on cases considering the discharge or variation of freezing orders, the parties approached the analysis from first principles. Here, they set out the principles applicable to granting a freezing order and then making submissions as to whether those principles were satisfied in the current circumstances of this case.
In my view, I need to start by considering whether there has been a material change in circumstances and then apply the general principles regarding freezing orders to the circumstances currently obtaining.
The general principles regarding freezing orders are conveniently stated by the Court of Appeal in Rozenblit v Vainer.[8] Although the issue in that case was a freezing order pending appeal, the principles are the same. The Court of Appeal stated:[9]
[8][2019] VSCA 164 (McLeish and Niall JJA) (Rozenblit).
[9]Rozenblit, [19] (citations omitted).
(1)The purpose of granting a freezing order is to prevent the frustration or inhibition of the Court’s process by seeking to meet a danger that a prospective judgment of the Court will be wholly or partly unsatisfied. Its purpose is not to provide security in respect of a prospective judgment or order.
(2)A freezing order is to be viewed as an extraordinary interim remedy. The order is a drastic remedy which calls for a high degree of caution on the part of the Court before an order is made.
(3)An applicant for a freezing order pending appeal will be required to establish that there is a good arguable case that the appeal will succeed. This means that it can be seen from the available material that the appeal has a real prospect of success.
(4)It must be shown that there is a reasonable possibility, not necessarily more than a 50 per cent chance, that assets may be disposed of or dealt with or diminished in value if an order is not made.
…
(6)The value of the assets covered by a freezing order should not exceed the likely maximum amount of the applicant’s claim, including interest and costs.
(7)As a condition of making a freezing order it will normally be appropriate to require the applicant to give undertakings to the Court, including the usual undertaking as to damages, supported if necessary by the provision of security.
(8)The order being discretionary, other considerations including the balance of convenience may bear upon the Court’s ultimate decision, but it is not a distinct requirement that the balance of convenience favours the making of the order.
(9)The inherent jurisdiction of the Court is preserved and r 37A.05 simply addresses the minimum requirements that ordinarily need to be satisfied in an application.
The principles relevant to an application for a freezing order were set out by J Forrest J in Zhen v Mo[10] as follows:
[10][2008] VSC 300, [22]–[30] (citations omitted).
First, that a freezing order, by its very nature, is a drastic remedy and a court must exercise a high degree of caution before taking a step which will interfere with a party’s capacity to deal with his or her assets.
Second, the order is not designed to provide security for the applicant’s claim. It is solely directed to preserving assets from being dissipated, thereby frustrating the court process.
Third, the applicant bears the onus both in satisfying the Court that the order should be continued and in satisfying the Court as to the amount which is to be the subject of the order.
Fourth, that an order can only be made on the basis of admissible evidence which supports the contentions made by the party seeking the order. Speculation and guesswork is no substitute for either the facts or inferences properly drawn from proved facts.
Fifth, that before such an order can be made it is necessary that the applicant establish:
(a)an arguable case against the defendant; and
(b)that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the defendant’s actions in either removing the assets or disposing or dealing with them so as to diminish their value.
Sixth, the balance of convenience must favour the granting of the freezing order.
Seventh, that there is no set process determining the exact nature of an order. The order will be framed according to the circumstances of the case.
Eighth, the applicant must establish with some precision the value of prospective judgment. The order should not unnecessarily tie up a party’s assets and property.
Finally, there may be discretionary considerations which militate against the granting of a freezing order, such as delay in bringing the application on before the court or a lack of candour in the materials placed before the court.
In Samimi v Seyedabadi; Seyedabadi v Samimi, McColl JA stated that the applicant for a freezing order must:[11]
… demonstrate a good arguable case on a justiciable cause of action.
…
The expression “good arguable case” is used “in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50 percent chance of success.”
… “the court should not be drawn into a premature trial of the action, rather than a preliminary appraisal of the plaintiff’s case”.
[11]Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279, [68]–[69] (Samimi) (citations omitted).
A distinction is sometimes drawn in the authorities between freezing orders in the context of cases where a proprietary claim is made with ones where there is no proprietary claim. In NAB v Human Group, Henry J conveniently synthesised the cases on this issue. In summary, where there is no proprietary claim, the object of a freezing order is to restrain the owner from dissipating their property to preserve the integrity of the Court’s processes. On the other hand, the object of a freezing order in a proprietary claim is to preserve the property to ensure it is available to the plaintiff should it prove its claim to that property.[12] Her Honour went on to say:[13]
When freezing orders are made in relation to non-proprietary claims, the usual position is that defendants generally have an entitlement to use their assets for legitimate purposes, such as to pay their ordinary living and business expenses and their reasonable legal expenses in defending the claims made against them.
In contrast, there is no reason, in general, why defendants should be permitted to use property or money belonging to another in order to pay their legal costs or other expenses. There is an obvious risk of injustice if assets the subject of the proprietary claim are used to finance the defendants’ litigation as the money is not the defendants at all but represents money which is held on trust for the plaintiff.
….
In cases concerning proprietary claims, a “careful and anxious judgment” is required whereby the Court must assess whether any injustice to a plaintiff … would be outweighed by the potential injustice to the defendants … if they were precluded from accessing funds and therefore perhaps denied the opportunity to advance an arguable defence.
The weighing of the interests of justice may involve a consideration of whether a defendant has shown that it is necessary for them to have access to funds over which a proprietary claim is made in order to defend the proceedings and other relevant discretionary factors that may be relevant…
[12]NAB v Human Group, [107].
[13]NAB v Human Group, [109]–[112] (citations omitted).
Henry J also stated that “there is no predisposition to allow the defendants access to frozen funds that are subject to a proprietary claim” to pay their living and legal expenses — “the starting position is that defendants will not be entitled to such access unless they can demonstrate that the interests of justice weigh in their favour.”[14]
[14]NAB v Human Group, [154] (cited in Westpac Banking Corporation v Forum Finance Pty Limited (Freezing Order Variation No 2) [2022] FCA 1206, [12]) (Westpac v Forum Finance).
In Distinctive FX Pty Ltd v Van Der Slot,[15] the Court of Appeal considered this issue. Beach and McLeish JJ recognised that cases such as His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc[16] and Palmer v MacDonnell Shire Council[17] stand for the proposition that in cases where the frozen property is trust property, the Court “should be attentive to [the] protection of such property”[18] and where the funds are trust funds, the question of recoverability of such funds is an important factor in determining whether access should be granted.[19] However, the Court of Appeal rejected the proposition that these were predominant considerations: rather, they were factors, possibly even important ones, for the Court to consider when undertaking the balancing exercise in weighing the interests of justice.[20]

D Defendants’ submissions

[15][2016] VSCA 39 (Beach and McLeish JJA) (Distinctive FX).

[16][2006] NSWCA 277 (Petar).

[17][2011] NTCA 2; (2011) 29 NTLR 90 (Palmer v MacDonnell Shire).

[18]Petar, [85]; Palmer v MacDonnell Shire, [36].

[19]Petar, [60]; Palmer v MacDonnell Shire, [38].

[20]Distinctive FX, [21]–[23].

D.1 Changes in circumstances from when the Freezing Order was made

The defendants submit that Michael’s death and its effect on the Recovery Proceeding and the Statutory Will Proceeding, together with the probate application and Max’s probate caveat, and the Foreshadowed Probate Proceeding, constitute a material change in circumstances from when the Freezing Order was made. In particular:
(a)the Recovery Proceeding is no longer of benefit to Michael but rather represents the possibility of a benefit to Max as beneficiary on intestacy. This is dependent on the outcome of the Foreshadowed Probate Proceeding which seeks to overturn the Wills;
(b)because his role as litigation guardian ceased upon Michael’s death, Wesley no longer has standing to participate in the Recovery Proceeding as representative of Michael’s interests;
(c)the parties face significant further litigation, including not only the finalisation of the Recovery Proceeding, but the commencement and completion of the Foreshadowed Probate Proceeding, before the defendants’ interests in the property the subject of the Freezing Order may be displaced; and
(d)the defendants, as named executors of the Third Will, have the power to act on behalf of Michael’s estate, as well as being the owners at law of all of his real and personal property as from the moment of death. They have the right, and the duty, to get in and secure Michael’s assets.
The defendants say that there has been a significant change in circumstances as to whose interests are served by the Freezing Order and what the dictates of justice require. Further, the balance of convenience has shifted (avalanched) away from maintaining the Freezing Order.

D.1.1 Nature of interests sought to be preserved by the Freezing Order have shifted

The defendants submit that it is no longer the case that what is sought to be preserved by the Freezing Order is simply a prospective judgment for the plaintiff in the Recovery Proceeding. What is sought to be preserved is a prospective judgment for the plaintiff (whoever that may be) in the Recovery Proceeding, the utility of which is entirely dependent upon the outcome of the Foreshadowed Probate Proceeding (which is ambitious at best). In particular, the defendants submit that:
(a)on any view, setting aside three valid and solicitor-drafted wills is an ambitious undertaking;
(b)the persons who may benefit from the Recovery Proceeding have changed: either they will be the defendants if one of the Wills is granted probate, which would be a circular result as the assets would be clawed back from the defendants and then given to them under the probated Will; or it will be Max, if none of the Wills are probated, on the basis of intestacy;
(c)if the First or Second Will is granted probate, then the specific bequests of $500,000 to each of Wesley and Scott will need to be made. In the inventory of assets and liabilities filed in support of his application for probate, Shak listed the value of Michael’s estate as $1,501,860.05. Therefore, regardless of whether any assets are returned to Michael’s estate via the Recovery Proceeding, there are sufficient assets in the estate to pay these legacies; and
(d)if any of the Wills are probated, then the Recovery Proceeding would just be an expensive waste of time, money and the Court’s resources.
The defendants acknowledge that some of the causes of action relied upon by Michael in the Recovery Proceeding are proprietary in nature, but they submit that with Michael’s death, these are no longer proprietary claims. They submit that Max does not have any proprietary claims as the only beneficiary of Michael’s intestate estate if none of the Wills are probated. All that a beneficiary has, either under a will or upon intestacy, is a right to the due administration of the estate. A beneficiary does not have a proprietary interest in the estate.
The defendants submit that the arguments made by Wesley as to the defendants’ access to the frozen assets based on the assets being the subject of proprietary claims is therefore misplaced. The defendants say that this is another area in which the circumstances have changed: claims which were previously proprietary in nature are no longer such.

D.1.2 Delay

The defendants submit that there is now going to be a significant delay before matters are resolved. Mr Pitt KC estimates, based on his experience of contested probate matters, that the Foreshadowed Probate Proceeding will take some two to three years to conclude. If Max is successful in that proceeding and chooses to revive the Recovery Proceeding, that will take further time. This is to be contrasted with the fact that prior to Michael’s death, the Recovery Proceeding and the Statutory Will Proceeding were listed for trial commencing 2 June 2025. It is likely that judgment would be some time this year, at which point the Freezing Order would come to an end. Instead, the parties agree that the Recovery Proceeding will need to be stayed pending the outcome of the Foreshadowed Probate Proceeding.

D.2 Merits of the Foreshadowed Probate Proceeding

The defendants submit that in order for the prospect of judgment sought to be preserved by the Freezing Order to materialise, not only will the legal personal representative of Michael’s estate need to be successful in the Recovery Proceeding, Max will also need to successfully impugn all of the Wills in the Foreshadowed Probate Proceeding.
The defendants contend that this is a highly unlikely scenario; it is submitted that the prospects that Max will succeed in setting aside all three Wills of the deceased are low. They say that the case to be put by Max in the Foreshadowed Probate Proceeding is very weak, and that this is a significant discretionary factor on the Discharge Application. Of Max’s likely case in the Foreshadowed Probate Proceeding, the defendants submit that:
(a)each of the Wills enjoys the presumption of validity.[21] They were prepared by experienced, independent solicitors, and were executed in accordance with the requirements of the Wills Act 1997 (Vic). In addition, the Second Will was accompanied by a medical certificate from Michael’s regular GP;
(b)each will is rational on its face. The defendants shared a close and loving relationship with Michael, who was a father figure to Shak. Shak provided almost daily care and attended many, if not all, of Michael’s medical appointments. The defendants changed their plans to relocate to the United Kingdom in 2014 in order to remain in Melbourne and to provide care to Michael, at Michael’s insistence;
(c)in contrast, the deceased had a fractured and acrimonious relationship with Max, Wesley and Scott, who visited him rarely and provided no care. At around the time the Second and Third Wills were made, Max and Michael sold properties they jointly owned, and Max raised no issues about Michael’s capacity;
(d)siblings and nephews are not persons ordinarily considered to be owed a moral duty by a testator,[22] and it is unremarkable that Michael precluded them from his Wills. The statements made in each Will show that he turned his mind whether to leave anything to Max, Wesley or Scott;
(e)the medical evidence relied upon by Wesley and exhibited to the Wesley Affidavit selectively includes a handful of observations (none of which are contemporaneous with the execution of the Wills) from which the Court is asked to draw an inference of a lack of testamentary capacity. If there was anything to Wesley’s contentions regarding Michael’s capacity, there would be a clear short statement about it. None of that type of material is in the medical evidence relied upon by Wesley;
(f)in comparison, medical evidence to be relied upon by the defendants includes several cognitive tests which were undertaken by Michael after the preparation of the Wills. These note no significant cognitive impairment as being identified in the deceased;
(g)the fact that the solicitors’ Will files do not expressly refer to a consideration about Michael’s testamentary capacity is hardly surprising. Responsible and experienced solicitors who have no concerns about capacity do not usually put something on the file: rather, such matters are documented when the solicitor has a doubt or concern and then investigates it. Here, all that is currently available are the solicitors’ files: as yet, none of the solicitors who prepared the Wills or witnessed them have given evidence, and courts typically regard the evidence of solicitors in those circumstances as the best evidence of testamentary capacity.[23]
[21]Veall v Veall (2015) 46 VR 123, 168.
[22]Neither relationship is an eligible category under which to bring a claim for further provision pursuant to Part IV of the Administration and Probate Act 1958 (Vic).
[23]Relying on Drivas v Jakopovic [2019] NSWCA 218; cited in Makripoulias v Arhontovasilis [2022] VSC 53, [31].

D.3 Continuing financial burden of the Freezing Order

The defendants make the below submissions in respect of the financial burden of the Freezing Order. In short, they contend that the imposition of the Freezing Order has resulted in extreme prejudice to them in conducting their personal affairs and their defence of the proceedings brought against them. Furthermore, the balance of convenience no longer falls in favour of continuing the Freezing Order but rather in favour of discharging it.
Save for certain carve-outs, the Freezing Order covers the entirety of the defendants’ assets. The present carve-outs of the Freezing Order include:
(a)living expenses limited to $2,000 per week; and
(b)legal expenses for the Recovery Proceeding and Statutory Will Proceeding of $397,000 to the conclusion of the mediation which had been timetabled in those proceedings.[24]
[24]The carve-out for legal expenses includes a cap of $397,000; however, only $260,576.38 has been released from funds held in trust. The difference between these two sums was intended to permit the defendants to pay legal costs with funds sourced from their income or from friends and family.
It is a requirement that the plaintiff establish with precision the amount of the prospective judgment. The defendants contend that the figure of $7,050,574 relied upon by Wesley involves double-counting, and the maximum monetary relief under the Recovery Proceeding is approximately $4,730,574.
Following Michael’s death, the timetable in place, which had included the preparation of witness statements and the mediation of the two proceedings, was overtaken by the new circumstances. While the Statutory Will Proceeding has no more work to do (save for the question of costs), the controversy between the parties remains and will take the form of the new Foreshadowed Probate Proceeding.
The proceedings to date and the proceedings to come are complex and factually dense. The Foreshadowed Probate Proceeding will traverse many of the same legal and factual issues and is not anticipated to be any less hard-fought.
In proceedings with issues of such magnitude and consequence for the defendants, it is important that the defendants be properly represented. Wesley and Max have briefed senior counsel to advance their interests via the current proceedings. It is appropriate that the defendants have the opportunity to do the same.
Additionally, the defendants are presently the subject of a police investigation instigated by Wesley, arising from the same subject matter as this civil dispute. It is appropriate that they be afforded the opportunity to obtain legal advice in relation to their rights in that investigation.
The manner in which the proceedings collectively have been litigated by the respective plaintiffs to date has exacerbated the cost to the defendants. The proceedings have been marred by unnecessary obstacles presented by Wesley and Max.
Most recently, Wesley, Max, and their lawyers withheld the fact of Michael’s death from the defendants for a period of almost three weeks. During this time, their lawyers agitated for urgent interlocutory steps to be taken in proceedings that are now agreed to be stayed.
As set out in the defendants’ affidavit material, the defendants’ financial circumstances under the Freezing Order are said to be grim:
(a)Shak works as an Uber driver, following a long period out of the workforce where he was caring for Michael. His re-entry into the workforce is hampered by his health, and by the ongoing police investigation. His income for the last month totaled $2,476 before expenses and tax;
(b)Rahna works as a teacher, earning a salary of $7,846 per month before tax;
(c)they derive rental income from 1 Moonya Road, Carnegie, which last month comprised a total of $427.60 net, following payment of property expenses;
(d)the amount of funds carved out for the defendants’ living expenses are insufficient to meet their needs. One of their daughters is in her penultimate year of schooling at Haileybury College. While the defendants have been able to obtain loans from family members for the second term’s fees, the third term’s fees of $10,081.25 are overdue and the fourth term’s fees are imminent. The effect on the defendants’ daughter being required to move schools at this stage would be profound and unable to be rectified by invoking the undertaking given by Wesley as to damages made in support of the Freezing Order; and
(e)the defendants owe land tax of $32,986.34 and council rates of $4,775.63, which they are unable to pay under the Freezing Order.
The defendants submit that there is little prospect that the Foreshadowed Probate Proceeding and the Recovery Proceeding will be finalised in the near or even medium-term future. The prejudice suffered by the defendants under the Freezing Order is accordingly too high to justify its continuation.
The defendants submit that the issue of standing has an important impact on the continuation of the Freezing Order, as there is now no one giving the usual undertaking as to damages. Wesley gave the undertaking, as Michael’s litigation guardian, when he obtained the Freezing Order. But that is no longer continuing, and no one has stepped forward to provide an undertaking as to damages. As noted in Rozenblit, an undertaking as to damages is usually required when obtaining a freezing order. One has not been proffered here after Michael’s death.

E Wesley’s submissions

E.1 Merits of the plaintiffs’ case – arguable case

Wesley submits that the strengths of the plaintiffs’ case against the defendants in the present proceedings has not been questioned. Apart from this assertion, which given the vigour with which the defendants have defended the present proceedings I have cause to doubt, all of Wesley’s submissions about an arguable case focus on the Foreshadowed Probate Proceeding.
After canvassing some of the authorities in respect of contested probate applications, which I do not need to traverse here, Wesley submits the following in respect of the merits of the Foreshadowed Probate Proceeding:
(a)The Wills were not rational, particularly in light of Michael’s relationships with the defendants, his family and his close friend and carer, James Marshall.
(b)There is sufficient evidence to raise the Court’s suspicions that Michael did not have the capacity to make the Wills in light of the matters referred to in Wesley’s Affidavit, including:
(i)the available medical evidence regarding Michael’s bouts of confusion, memory difficulties, strokes, questionable decisions regarding his health care, and other health problems between 2010 and 2017;
(ii)the available documentary evidence indicating that Michael had a poor understanding of the nature and extent of his assets in 2014;
(iii)the inclusion of clauses in the Second and Third Wills that gifted assets that Michael had sold in 2015;
(iv)James Marshall is not left any gift, despite being Michael’s close friend and later carer, noting that Michael had purchased 31 Camp Street for James to live in;
(v)the lack of any evidence that Michael’s medical practitioner gave any thought to the test for testamentary capacity, including when conducting the various cognitive tests in 2019 to 2023 that the defendants rely upon;
(vi)the files produced by the respective solicitors regarding the Wills contain no evidence that the solicitors who prepared the Wills considered whether Michael had testamentary capacity; and
(vii)the medical certificate that Shak alleges “accompanied” the 2016 Will was dated 10 days after the 2016 Will was signed. Further, there is a lack of evidence that Michael’s medical practitioner considered the test for testamentary capacity when issuing that certificate.
(c)There is sufficient evidence to raise the Court’s suspicions that the Wills were made in suspicious circumstances given:
(i)Shak’s involvement in the preparation of the Wills, in particular the First Will; and
(ii)Shak (in relation to the First Will), then both defendants (in relation to the Second and Third Wills), obtained a substantial benefit under the Wills.
If the evidence as a whole arouses the Court’s suspicions, Max will have discharged his evidentiary onus.
The defendants will then have difficulty affirmatively proving the validity of the Wills as:
(a)although the Wills were prepared by solicitors, that fact alone cannot determine the validity of a Will where the Court’s suspicions have been aroused;
(b)the files regarding the Wills contain no evidence that:
(i)the solicitors who prepared the Wills considered whether Michael had testamentary capacity;
(ii)the Wills were read or explained to Michael before he signed them; and
(c)there is no evidence that Michael’s medical practitioners considered the test for testamentary capacity.
In the foregoing, Wesley submits that it is “more than barely capable of serious argument” that probate in relation to the Wills will not be granted.

E.2 Quantum and nature of the claims made in the Recovery Proceeding

Without traversing all of the evidence and submissions in respect of the quantum of the Recovery Proceeding, it suffices for these purposes to note that Wesley alleges that the plaintiffs’ quantified claims in the Recovery Proceeding are at least $7,050,574, he refutes the defendants’ contention that this figure involves some double counting, and he alleges that there are further claims that have not yet been quantified.
The plaintiffs have pleaded proprietary claims in relation to all the real property held by the defendants since the Recovery Proceeding was issued, namely:
(a)31 Camp Street and 1 The Avenue, which the defendants allege was gifted to them;
(b)10 Fox Road, noting that the defendants have admitted that Michael contributed $960,000 to the $1,650,000 purchase price;
(c)74 Hallam North Road, noting that the defendants have admitted that Michael contributed $1,005,269.46 of the $1,006,269.46 paid to purchase that property; and
(d)1 Moonya Road, noting that:
(i)the defendants have admitted that part of the monies transferred by Keleb was applied to this purchase;
(ii)the plaintiffs claim that $370,000 transferred by Keleb was paid to Michael at the settlement of his “sale” of 31 Camp Street and 1 The Avenue, and then $370,000, was transferred from Michael’s account to the defendants’ account and applied to the defendants’ purchase of 1 Moonya Road; and
(iii)the purchase price was $1,700,000.
By agreement and pursuant to variations to the Freezing Order made by consent, the defendants sold 10 Fox Road and 74 Hallam North after the Freezing Order was made to avoid mortgagee sales.
Wesley deposes that the sales of 10 Fox Road and 74 Hallam North enabled the payment of:
(a)$2,601,353.74 in total to discharge the defendants’ three mortgages; and
(b)$689,567.51 to discharge Michael’s mortgage (noting the defendants admit that drawdowns on Michael’s loans were transferred to them).
Wesley deposes that the remaining net proceeds of sale of 10 Fox Road and 74 Hallam North were applied as follows:
(a)$260,576.38 in total to the defendants for their legal costs (noting they had sought more);
(b)$121,687.77 in total to the defendants for their living expenses (noting they had sought more), including loan repayments pending the September 2024 settlement of the sale of 74 Hallam North; and
(c)$275,000 to Michael’s aged care residence as his refundable accommodation deposit, which will be released by the aged care residence upon the grant of probate or letters of administration.
In the foregoing, Wesley submits that Michael’s proprietary claims to 10 Fox Road and 74 Hallam North, valued at $1,966,569.46 in total, arguably extend to:
(a)the remaining $275,000 of the proceeds of sale of 10 Fox Road and 74 Hallam North; and
(b)a proprietary interest in 1 Moonya Road as:
(i)the defendants borrowed $1,494,000 to complete the purchase of that property; and
(ii)the proceeds of sale of 10 Fox Road and 74 Hallam North were applied to discharge the mortgages securing that $1,494,000.
Wesley submits that the claims made in the Recovery Proceeding remain proprietary claims, despite Michael’s death, since Max would be pursuing those claims in his capacity as legal personal representative (if he succeeds in the Foreshadowed Probate Proceeding) and not as the beneficiary of Michael’s intestacy. In this regard, Wesley submits that the nature of the claims in the Recovery Proceeding have not changed.

E.3 The defendants’ financial position and risk of dissipation of assets

Wesley submits that the defendants were living beyond their means prior to the Freezing Order being made, although the defendants dispute this. I do not need to describe this in any further detail, as I do not consider it of particular relevance to the matter before me.
Wesley points out that the defendants have valued their current assets at $4,010,000, although $4 million of this is comprised of the value the defendants ascribe to 1 The Avenue, 31 Camp Street and 1 Moonya Road. Wesley submits that given Shak deposes that the defendants now have $10,940 in savings and are not able to fund their living expenses from their income, which is now $157,469.52 gross per year, the sale of another property is likely if the Freezing Order is discharged.
Wesley refutes the defendants’ contention that the Freezing Order has operated oppressively, submitting that:
(a)The defendants’ private school fees, loan repayments and other expenses were paid in accordance with the Freezing Order as varied. Further, given that the mortgages that the defendants could not afford to service have been discharged, the Freezing Order has not operated oppressively.
(b)That said, the defendants do appear to be unable to live within their means. Despite tripling their income since December 2023, having all of their mortgages discharged, and no longer having to pay land tax or other outgoings in relation to the two properties that have sold, the defendants still claim that they are unable to pay their living expenses. No detail has been given as to how the defendants have spent their income. However, Wesley submits that:
(i)an annual income of $157,469.52 gross is sufficient to pay all reasonable living expenses in the circumstances, particularly for a family who is living rent and mortgage free; and
(ii)the defendants should not have an unfettered discretion to further erode the plaintiffs’ proprietary claims to fund their living expenses.
Wesley also submits that the defendants have the potential to earn more income, as Shak is currently working as an Uber driver and has not said that he is not in a position to now look for better paid full-time work.
Wesley submits that the defendants are currently a long way from being able to wholly satisfy any judgment made against them in the Recovery Proceeding.
Wesley also submits that if the Discharge Application is granted, it is more than reasonably possible that the proceeds of sale of another property will be substantially or wholly dissipated, and the defendants will likely spend more on their living expenses and legal costs than the Court would likely consider reasonable, given:
(a)the Court has previously refused to vary the Freezing Order to allow all of the amounts sought by the defendants to pay their living and legal expenses. If the Freezing Order is discharged, they will have an unfettered discretion as to their spending;
(b)the defendants’ spending since February 2024 (when the sale of 10 Fox Road settled), including $38,220 for one child’s annual private school fees. Wesley submits that this is an inexplicable expense in light of the defendants’ income in December 2023 when they were earning $51,645.84 annually; and
(c)the defendants’ likely legal costs in relation to:
(i)the Foreshadowed Probate Proceeding, for which they say that they have retained senior counsel;
(ii)obtaining legal advice in relation to the execution of a search warrant at their residence and related matters; and
(iii)defending criminal charges, if charged.
(d)As Shak might be charged with criminal offences, it is also possible that the defendants will sell one or more of the remaining real properties held in their names and leave the jurisdiction if the Freezing Order is discharged. In this regard, Wesley submits that Shak deposes that his Pakistani passport has expired. However, Wesley says there appears to be no reason why he could not renew it. In addition, Rahna is a British citizen.
Wesley refutes the defendants’ position that, as the plaintiffs have briefed senior counsel, it is appropriate that they do so as well. In this regard, Wesley submits that the defendants are not entitled to “equality of arms”; rather, they are only entitled to what is sufficient and reasonable to permit a fair trial. In Westpac v Forum Finance, the Court dismissed an application to vary freezing orders which would have permitted the spending of further sums alleged to be the subject of proprietary claims on legal costs. In that case, Thawley J said:[25]
As to general approach, the estimate appears to have been formulated on the basis that it is appropriate in the circumstances of this case for the Tesoriero Parties at this point in time to have “equality of arms” rather than focussing on what is sufficient and reasonable to permit a fair trial.
[25]Westpac v Forum Finance, [33].
Wesley also contends that the Pickett family has a sentimental attachment to two of the properties, being 31 Camp Street and 1 The Avenue. Moreover, there would be commercial value in selling 31 Camp Street, while selling 1 The Avenue and 3 The Avenue together as a development site given these are adjacent properties.
Wesley submits that while further applications to vary the Freezing Order are likely to whittle away the remaining assets, the Court has already provided for an efficient process ‘on the papers’ for such applications.

F Defendants’ submissions in reply

In reply, the defendants emphasise that in light of Michael’s death and the Foreshadowed Probate Proceeding, there is nobody to continue the undertaking as to damages if the Freezing Order is maintained. Rozenblit makes it clear that an undertaking as to damages is usually required to be given when seeking a freezing order. The defendants say that the undertaking was given when the Freezing Order was made, and was continued when its duration was extended. However, this has now fallen away.
The defendants say that further, by opposing the Discharge Application, Wesley is seeking to continue a Freezing Order for a proceeding which is about to be stayed. It is therefore being used as a form of security which is not a permitted purpose for a freezing order.
The defendants submit that the way Wesley describes the proprietary claims shows how indirect and remote Max’s claim now is. It is unknown whether he will be the legal personal representative, and if he is, whether he will continue with the Recovery Proceeding. These serious uncertainties justify the discharge of the Freezing Order. The defendants do not agree with Wesley’s submission that the claims in the Recovery Proceeding remain proprietary in nature. They say the situation is more complex than that. When I asked Mr Pitt KC about Wesley’s submission that given Max would be pursuing the Recovery Proceeding in his capacity as legal personal representative, the interests pursued would still be proprietary, Mr Pitt KC stated that when the legal personal representative chooses to proceed with a particular action, they need to do so with the interests of the beneficiaries of the estate in mind. So, if the legal personal representative was Max, he would be pursing the claims in that capacity to claw back assets for the benefit of the intestacy beneficiaries. In this way, it is different to how the Recovery Proceeding started, where it was Michael (through his litigation guardian) seeking to get assets back for himself. Now, if it is Michael’s estate pursuing the Recovery Proceeding, ultimately it would be for the benefit of the intestacy beneficiaries, who do not have a proprietary interest.

H Conclusion

For the reasons set out above, I will make orders to the effect that:
(a)if a LPR Application is not filed and served by 4.00pm on 11 July 2025, then the Freezing Order is discharged;
(b)by 4.00pm on 11 July 2025, the solicitors for Wesley and Max are to inform my Chambers whether a LPR Application has been filed and served and, if so, provide a copy of the application; and
(c)if an application has been made in accordance with paragraph (a), then the Discharge Application be adjourned to a date to be fixed.

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SCHEDULE OF PARTIES

S ECI 2023 05623
BETWEEN: (original proceeding)
MICHAEL JOHN PICKETT (a person under disability who sues by his Litigation Guardian, WESLEY SEAN PICKETT)	First Plaintiff
KELEB PTY LTD (ACN 006 606 051)	Second Plaintiff
- v -
SHAFQUAT AMIN	First Defendant
RAHNA ANWAR AMIN	Second Defendant
AND BETWEEN: (counterclaim)
SHAFQUAT AMIN	Plaintiff by Counterclaim
WESLEY SEAN PICKETT	First Defendant by Counterclaim
MAX ANTHONY PICKETT	Second Defendant by Counterclaim
KELEB PTY LTD (ACN 006 606 051)	Third Defendant by Counterclaim
MICHAEL JOHN PICKETT	Fourth Defendant by Counterclaim

[2025] VSC 400

4 July 2025