QBE Insurance (Australia) Limited v Robinson

[2025] WASC 78

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   QBE INSURANCE (AUSTRALIA) LIMITED -v- ROBINSON [2025] WASC 78

CORAM:   STRK J

HEARD:   10 MARCH 2025

DELIVERED          :   10 MARCH 2025

PUBLISHED           :   11 MARCH 2025

FILE NO/S:   COR 32 of 2025

BETWEEN:   QBE INSURANCE (AUSTRALIA) LIMITED

Plaintiff

AND

KEIRA MELDRUM ROBINSON

First Defendant

MATHEW DOUGLAS ROBINSON

Second Defendant

Catchwords:

Practice and procedure - Freezing orders - Ex parte application for freezing orders and ancillary orders - Whether plaintiff has a good arguable case - Whether there is danger a prospective judgment will be wholly or partially unsatisfied - Whether discretion should be exercised in favour of the applicant - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 182
Rules of the Supreme Court 1971 (WA), O 52A, O 59 r 9(2), O 67B r 5
Supreme Court Act 1935 (WA), s 16(1)(d)(i), s 32

Result:

Ex parte application for freezing orders granted

Category:    B

Representation:

Counsel:

Plaintiff	:	WCJ Zappia
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Dentons Australia
First Defendant	:	No appearance
Second Defendant	:	No appearance

Cases referred to in decision:

Allianz Australia Insurance Ltd v Yu [2024] NSWSC 31

BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239

BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380

Deputy Commissioner of Taxation v Winter (1988) 92 FLR 327

Distinctive FX Pty Ltd v Wright [2015] VSC 299

Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81

Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49

Heperu Pty Ltd v Belle (formerly Cincotta) [2009] NSWCA 252; (2009) 76 NSWLR 230

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Jadewest 2024 Pty Ltd v BTFMS Pty Ltd [2024] WASC 166

KGL Health Pty Ltd v Mechtler [2007] FCA 1410

Nesci-Lawrence as Executor of the Estate v Ginbey [2023] WASC 339

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188

Perth Mint v Mickelberg (No 2) [1985] WAR 117

Re Diplock; Diplock v Wintle [1948] Ch 465

Rimex Wheel Pty Ltd v Wulff [2018] WASC 180

Tesari Pty Ltd v Rebelos [2018] WASC 352

Victoria University of Technology v Wilson [2003] VSC 299

Zhen v Mo [2008] VSC 300

STRK J:

(This judgment was delivered extemporaneously and has been edited from the transcript to correct infelicities of language and so as to include complete references and citations.)

Introduction

1. The plaintiff is an insurance company. The first defendant is a former employee of the plaintiff, having held the position of service manager in the plaintiff's workers' compensation claims team. The second defendant is related to the first defendant.

2. By an originating process filed on 6 March 2025, the plaintiff commenced a proceeding against the defendants under s 182 of the Corporations Act 2001 (Cth); in the Court's common law jurisdiction for deceit and money had and received, and in the Court's equitable jurisdiction for breach of fiduciary duty and equitable fraud; under O 52A of the Rules of the Supreme Court 1971 (WA); and in the Court's inherent jurisdiction.

3. These reasons concern the plaintiff's ex parte application for interlocutory relief in the form of freezing orders sought under O 52A of the Rules of the Supreme Court, or further or alternatively in the Court's inherent jurisdiction, which was heard on an urgent basis on 10 March 2025.

4. At the hearing of that application, the plaintiff particularly pressed the Court to order that the first defendant not remove from Australia or in any way dispose of, deal with or diminish the value of any of her assets in Australia up to the unencumbered value of $600,983.55; and the second defendant not dispose of the Tesla Model Y vehicle registered in his name.

5. The defendants have not been served with any documents filed in the proceeding, including the originating process. The plaintiff says that the application has been made without notice to the defendants because of the defendants' lack of identifiable assets in Western Australia and the risk that the defendants will dissipate the assets that the plaintiff has been able to identify, being the Tesla vehicle, any money held in three bank accounts,[1] and potentially money held in a superannuation fund.[2]

   [1] Plaintiff's outline of submissions par 3.

   [2] Supplementary affidavit of LJ Massey sworn on 10 March 2025.

6. In support of the application, the plaintiff filed minutes (and an amended minute) of proposed orders addressed to each defendant; a memorandum pursuant to O 59 r 9(2) of the Rules of the Supreme Court setting out the grounds for the requested waiver of conferral; a certificate of urgency; an undertaking as to damages proffered by the plaintiff; an outline of submissions; and a list of authorities.

7. The plaintiff relied upon four affidavits in support of the interlocutory application, being the affidavit of Louise Jane Massey, a partner of Dentons (the solicitors for the plaintiff), sworn on 6 March 2025; the affidavit of Jessica Erin Rooke, a senior manager in Group Investigations employed by the plaintiff, sworn on 6 March 2025; the supplementary affidavit of Ms Rooke sworn on 7 March 2025; and the supplementary affidavit of Ms Massey sworn on 10 March 2025.

8. At the hearing of the ex parte application for interlocutory relief, only the plaintiff's version of the facts was before me. The materials before the Court were detailed, particularly the claims against the first defendant based upon the business records of the plaintiff which were created by the plaintiff's employees and/or agents.[3]

   [3] Affidavit of JE Rooke sworn 6 March 2025 par 5.

9. For the purpose of determining the interlocutory application, I have accepted the version of facts as presented in the supporting affidavits and I have found that the evidence has met the test set out in O 52A of the Rules of the Supreme Court. I do not however make any factual determinations, nor is it necessary for me to do so. Nothing in these reasons should be taken as amounting to any final or conclusive finding of fact.

10. A freezing order is a drastic remedy. For the following reasons, I intend to grant a freezing order, but of relatively short duration. The defendants will have a full opportunity to contest the continuation of the freezing order or raise any other matter on the return date. Because of the nature of the orders, it is desirable for my reasons for granting ex parte relief be available to the defendants as soon as possible, in addition to the transcript of hearing. In the circumstances, these reasons are provided in a somewhat truncated form.

The plaintiff's version of facts

1. The details of the plaintiff's application were summarised at pt A of the originating process. As noted above, the plaintiff is an insurance company which provides among other products, workers' compensation insurance. The first defendant is a former employee of the plaintiff, having held the position of service manager in the plaintiff's workers' compensation claims team from 29 October 2019 to 9 December 2024.[4]

   [4] Affidavit of JE Rooke sworn 6 March 2025 par 18.

2. The plaintiff says that an internal investigation by it identified 17 transactions between March 2023 and December 2024 (with a total monetary amount of $397,947) whereby the first defendant directed plaintiff funds to be paid to accounts in the first defendant's name or to her benefit (for instance by directing funds to be paid to the account of a Tesla dealership to enable her or the second defendant to acquire a Tesla motor vehicle).[5] The plaintiff also says that the payments were made by the first defendant re-opening paid out claims and purporting to pay out those claims again, but instead of paying out the claimants, the first defendant caused the funds to be paid to accounts in the first defendant's name or to her benefit.[6]

   [5] Originating process filed 6 March 2025 pt A, par A.4.

   [6] Originating process filed 6 March 2025 pt A, par A.5.

3. In her affidavit sworn on 6 March 2025, among other things Ms Rooke deposed that in her role as a senior manager in Group Investigations it is her role to oversee the plaintiff's complex investigations undertaken by the Group division (employed by AUSPAC (Australia Pacific) or QBE Group that are Australian based); and fraud and misconduct by employees of the plaintiff and/or their representatives.[7]

   [7] Affidavit of JE Rooke sworn 6 March 2025 par 12.

4. Ms Rooke deposed to the investigation undertaken in relation to the actions of the first defendant, in circumstances where a concern was raised with Ms Rooke on 20 February 2025 by Shannon Cleary, the Head of Workers Compensation Claims Western Australia.[8]

   [8] Affidavit of JE Rooke sworn 6 March 2025 par 16.

5. Ms Rooke in her affidavit described the steps she immediately undertook to gather information;[9] the information ascertained by Ms Rooke on 21 February 2025 as to actions by the first defendant;[10] to having prepared on 21 February 2025 an escalation report to be provided to the plaintiff's executives which provided a summary of the investigation, financial impact, status of the investigation, control environment and contributing factors, brand, media and customer service concerns;[11] and to having prepared on 27 February 2025 an update to the escalation report to be provided to the plaintiff's executives.[12] 

   [9] Affidavit of JE Rooke sworn 6 March 2025 par 20.

   [10] Affidavit of JE Rooke sworn 6 March 2025 par 21.

   [11] Affidavit of JE Rooke sworn 6 March 2025 par 22, JER-7.

   [12] Affidavit of JE Rooke sworn 6 March 2025 par 24, JER-12.

6. As Ms Rooke further deposed that:

   (a)the initial escalation report recorded that 11 instances had been identified by Ms Rooke and Ms Cleary between April 2023 and November 2024 where the first defendant had reopened paid out claims, did not attach any supporting documents such as invoices, did not record any file notes to provide an explanation for what was being done and then made a payment to an account held by the first defendant, or over which she had control;[13]

   (b)in the update to the escalation report that Ms Rooke had prepared, Ms Rooke recorded that an additional two transactions between April 2023 and November 2024 had been identified;[14] and

   (c)on 3 March 2025, Ms Rooke had identified four additional transactions between 27 September 2022 and 27 December 2024.[15]

   [13] Affidavit of JE Rooke sworn 6 March 2025 par 26, JER-7.

   [14] Affidavit of JE Rooke sworn 6 March 2025 par 27, JER-12.

   [15] Affidavit of JE Rooke sworn 6 March 2025 par 28.

7. As to the 17 identified transactions between September 2022 and December 2024, Ms Rooke deposed that in total, $397,947 had been paid by the plaintiff into six bank accounts, which transactions were created by the first defendant or a user called 'Super User'; and approved by the first defendant's direct reports or by the first defendant.[16] Among other things, Ms Rooke deposed to the account name (if any) that was entered for each transaction, and attached to her affidavit various screenshots from the plaintiff's claim systems for the payments that were made together with emails in relation to the payments.[17]

   [16] Affidavit of JE Rooke sworn 6 March 2025 par 29.

   [17] Affidavit of JE Rooke sworn 6 March 2025 pars 35 - 55, JER-13 - JER-26.

8. As to the aggregate of moneys that the plaintiff says was misappropriated, Ms Rooke deposed to her belief that a total of $397,947 had been transferred into the first defendant's accounts, or accounts which the first defendant had control, or to someone closely associated with the first defendant, and the plaintiff had been unable to recover any of those moneys.

9. The plaintiff further contends that the first defendant is not entitled to the moneys she received through the identified 17 transactions;[18] and that the Tesla vehicle is registered in the second defendant's name and was paid for by at least some of the money that the first defendant obtained from the 17 transactions.[19]

   [18] Plaintiff's outline of submissions par 25; affidavit of JE Rooke sworn 6 March 2025 pars 21, 23, 24, 26, 58.

   [19] Plaintiff's outline of submissions par 26; affidavit of JE Rooke sworn 6 March 2025 pars 24(c)(iii), 53 ‑ 55.

The claims against the defendants and the relief sought

1. The plaintiff says that the first defendant's conduct constituted a breach of the Corporations Act, constituted the tort of deceit, was in breach of the fiduciary duties owed to the plaintiff, and constituted equitable fraud.

2. By this proceeding the plaintiff seeks orders freezing the first defendant's assets pending trial, restraining the second defendant from disposing of the Tesla vehicle registered in his name, and various final orders to, in effect, compensate the plaintiff for its losses.

Final relief

1. By way of final relief, as set out in the originating process, the plaintiff seeks the following:

   1.An order for compensation under s 1317H of the Corporations Act against the first defendant.

   2. Alternatively, damages against the first defendant.

   3. Alternatively, equitable compensation against the first defendant.

   4. Alternatively, an order that the first defendant pay restitution to the plaintiff in the amount of $397,947 for moneys had and received by the first defendant to the use of the plaintiff.

   5.Further or alternatively, a declaration that the second defendant holds the Tesla vehicle registered in his name on constructive trust for the plaintiff.

   6. Further or alternatively, an order that the second defendant deliver up the Tesla vehicle registered in his name to the plaintiff.

   7.In the alternative to order 1 and 2 above, an order that the second defendant pay restitution to the plaintiff.

   8.Interest on any amount that the first or second defendants are ordered to pay the plaintiff at the rate prescribed by s 32 of the Supreme Court Act 1935 (WA).

   9. Costs

2. As to interest, the plaintiff claims that a total of $397,947 was misappropriated by 17 different transactions, the first on 27 September 2022, and the last on 27 December 2024.[20]

   [20] Affidavit of JE Rooke sworn 6 March 2025 pars 58 - 59.

3. The plaintiff says that for the purposes of this application, it is entitled to interest on the moneys misappropriated in the amount of $25,056.55 calculated at the rate of 6% per annum from the date of each misappropriated payment to the date this proceeding was commenced (that is, 6 March 2025).[21]

   [21] Affidavit of JE Rooke sworn 6 March 2025 par 59, JER-28.

4. As to costs, Ms Massey, an experienced litigator, made an affidavit in respect of the anticipated legal costs of the plaintiff. Among other things, she deposed that as at 6 March 2025, Dentons had incurred $15,912.88 including GST in legal fees in preparation of the originating process dated 6 March 2025, by which this proceeding had commenced.

5. Ms Massey also deposed that it was difficult to estimate the likely costs of prosecuting this proceeding to trial in circumstances where it was in its infancy, and she did not know whether the defendants intend to defend the allegations against them. With those caveats, and assuming that the allegations would be fully defended and that the plaintiff would at least be put to proof on each of the material allegations that it makes against the defendants, Ms Massey's estimated that the future costs and disbursements up to and including preparing for and attending at a trial of not more than three days to be around $177,980, which estimate was made with reference to the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2024 (WA).

6. That is, taking into account the costs incurred to date, the total estimated costs of the proceeding is about $194,000.

Interlocutory relief

1. By way of interlocutory relief, as set out in the originating process, the plaintiff seeks the following:

   1. An order and ancillary orders (initially on an interim ex parte basis) pursuant to O 52A of the Rules of the Supreme Court, further or alternatively in the Court's inherent jurisdiction, that the first defendant be restrained from removing from Australia or in any way disposing of, dealing with or diminishing the value of any of her assets in Australia up to the unencumbered value of $600,983.55 which order and ancillary orders ought be in the form of the minute of proposed orders attached to the originating process marked Attachment A.

   2. An order and ancillary orders (initially on an interim ex parte basis) pursuant to O 52A of the Rules of the Supreme Court, further or alternatively in the Court's inherent jurisdiction, that the second defendant be restrained from disposing of the Tesla vehicle registered in his name which order and ancillary orders ought be in the form of the minute of proposed orders attached to the originating process marked Attachment B.

   3. An order that the plaintiff, the defendants, or any party with a sufficient interest have liberty to apply on 24 hours' notice to vary or discharge the orders.

2. The plaintiff seeks that the first defendant's assets, including the first defendant's interest in the Robinson Superannuation Fund, be frozen up to the unencumbered value of $600,983.55 made up by:[22]

   (a) $397,947.25 the first defendant received because of the transactions;

   (b) $25,056.75 in interest calculated on the $397,947.25; and

   (c) $177,980.20 in anticipated legal costs.

   [22] Plaintiff's outline of submissions par 42.

Assets available to the defendants

1. In terms of the assets available to the defendants, there is evidence that the first defendant holds the Tesla vehicle registered in the name of the second defendant.[23]

   [23] Affidavit of JE Rooke sworn 6 March 2025 pars 24(c)(iii), 60.

2. Ms Rooke in her first affidavit also deposed to the basis of her belief that the first defendant holds two employee payroll accounts;[24] and that the first defendant holds a non-payroll account with the Commonwealth Bank of Australia, which account is held in the names of the first defendant and the second defendant.[25]

   [24] Affidavit of JE Rooke sworn 6 March 2025 pars 56, 57, 61.

   [25] Affidavit of JE Rooke sworn 6 March 2025 par 57.

3. Ms Massey in her supplementary affidavit deposed to searches that were undertaken of the register managed by the Australian Securities and Investments Commission (ASIC) on 10 March 2025. Among other things, Ms Massey deposed that ASIC searches were conducted for the first defendant and second defendant which revealed that the first defendant and the second defendant are both directors of M & K Robinson Super Pty Ltd. Further, she deposed that an ASIC search was conducted for M & K Robinson Super Pty Ltd as trustee for the Robinson Superannuation Fund ABN 93 905 549 597, which revealed that both the first defendant and the second defendant are shareholders of that entity, which is a superannuation trustee proprietary company.[26]

   [26] Supplementary affidavit of LJ Massey sworn on 10 March 2025 pars 5 - 8, LJM-2, LJM-3, and par 9 - 10, LJM-4.

Applicable legal principles

1. The principles to be applied to freezing order applications are well settled. I summarised the same in Tesari Pty Ltd v Rebelos [2018] WASC 352 at [28] - [33], which principles were more recently articulated and applied by Hill J in Nesci-Lawrence as Executor of the Estate v Ginbey [2023] WASC 339 at [5] - [8] and in Jadewest 2024 Pty Ltd v BTFMS Pty Ltd [2024] WASC 166 at [41] ‑ [43], [46]. The principles were also summarised in submissions filed in advance of the ex parte hearing at pars 4 - 18.

Jurisdiction and power

1. As was observed on behalf of the plaintiff, the Court has the power to make a freezing order pursuant to both its inherent jurisdiction and s 16(1)(d)(i) of the Supreme Court Act.[27] Further, O 52A r 2(1) of the Rules of the Supreme Court allows the Court to make a freezing order to prevent the frustration or inhibition of the Court's processes by preventing, or attempting to prevent, the risk that a judgment or prospective judgment of the Court being wholly or partially unsatisfied; O 52A r 3(1) of the Rules of the Supreme Court allows the Court to make an order ancillary to a freezing order as the Court considers appropriate, including orders eliciting information relating to assets relevant to the freezing order; and O 52A r 5 of the Rules of the Supreme Court allows the Court to make a freezing order against a prospective judgment debtor if the Court is satisfied that there is a good arguable case and there is a danger that a prospective judgment will be wholly or partially unsatisfied because:

   (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.[28]

The exercise of jurisdiction

[27] Plaintiff's outline of submissions par 4. See also BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239 [25] - [34], [48] - [50].

[28] Plaintiff's outline of submissions pars 5, 6, 7.

1. The purpose of a freezing order is to prevent frustration or abuse of the process of the Court, not to provide security in respect of a judgment or order, nor to substitute for the use and methods of execution.[29]

   [29] Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [43], referring to Jackson v Sterling Industries Ltd (1987) 162 CLR 612, 626, 633, 637, and Deputy Commissioner of Taxation v Winter (1988) 92 FLR 327, 328 - 331. See also Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd [2011] WASC 188 [134].

2. In the present case, I must be satisfied of the following before the Court's discretion to make a freezing order is enlivened.

3. First, that the plaintiff has a good arguable case against the defendants on an accrued cause of action that is justiciable in the Court.

4. Secondly, that there is a danger that the prospective judgment will be wholly or partly unsatisfied because assets of the defendants might be removed or otherwise disposed of, dealt with or diminished in value.

5. The remedy is discretionary. The strength of the plaintiff's case, the danger of frustration of a prospective judgment, the balance of convenience and any other relevant discretionary factors are all considered together in the exercise of the discretion whether to grant the orders sought.[30]

   [30] Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188 [142], citing Perth Mint v Mickelberg (No 2) [1985] WAR 117, 119, and Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 54 - 55.

6. As to the appropriate form of relief, as was observed in Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd at [138], the moulding of appropriate relief depends upon the circumstances of the case. The general principle which informs the exercise of the power is that the Court may make such orders as are needed to ensure the effective exercise of the jurisdiction invoked.[31]

   [31] Plaintiff's outline of submissions par 11; Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [138], citing Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1, 32, and Cardile v LED Builders Pty Ltd [41] ‑ [42].

Determination

Good arguable case

1. I have had regard to the case that the plaintiff says it intends to press against the first defendant and the second defendant (as described in the oral and written submissions made on behalf of the plaintiff and as framed in the originating process). However, in determining this interlocutory application, the primary focus must be on the evidence. It is not sufficient to establish a good arguable case that a claim be asserted in an indorsement, a draft pleading, or an originating process.[32]

   [32] Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188 [154], citing KGL Health Pty Ltd v Mechtler [2007] FCA 1410 [9] - [12].

2. On the evidence before me, I am satisfied that the plaintiff has demonstrated that it has a good arguable case against the first defendant and the second defendant on an accrued cause of action that is justiciable in the Court. Through the affidavits read, particularly those of Ms Rooke, the plaintiff has established that it has a reasonably arguable case on legal and factual matters.[33]

   [33] As noted in Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188, [144], in BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 [5], Le Miere J treated the requirement of a 'good arguable case' as equivalent to the general law requirement that the plaintiff must establish that it has a reasonably arguable case on legal and factual matters.

3. On behalf of the plaintiff, it was submitted that the acts of the first defendant were particularly egregious given, among other things, her position as an employee (which was one of trust), and her actions which were described as being in furtherance of concealment. In all of the circumstances deposed to, it was submitted that the plaintiff's causes of action against the first defendant are at least:

   (a) breach of s 182 of the Corporations Act, as it is alleged that the first defendant was an employee who used her position to benefit herself and others within her family, which the plaintiff says is a prima facie breach of s 182;[34]

   (b) breach of fiduciary duty, which the plaintiff says can be made on two bases. First, the plaintiff says that a thief holds stolen property on trust, and if a thief transfers that property to a third party, it is a breach of trust, so, the conveyance of the Tesla vehicle to the second defendant was a breach of trust. Secondly, the plaintiff says that the first defendant also owed the plaintiff a fiduciary duty to avoid conflicts between duty and interest, and the first defendant's conduct constituted a breach of that duty; [35]

   (c) money had and received;[36] and

   (d) deceit, which the plaintiff says requires that a false representation be made knowingly or without belief in its truth, or recklessly, not caring whether it be true or false, with the intention that the plaintiff should believe and act on the false representation; and to be actionable, the plaintiff's reliance on the false representation must result in damage to the plaintiff. In this case, the plaintiff contends that the first defendant made representations to employees of the plaintiff with respect to workers' compensation claims, which the first defendant must have known were false, which representations were relied on by the plaintiff's employees and which led to the authorisation of the claims, which ultimately was the means through which the first defendant was able to allegedly misappropriate the funds.[37]

   [34] Plaintiff's outline of submissions par 27(a), footnote 12.

   [35] Plaintiff's outline of submissions par 27(a)(ii), footnote 13, citing Fistar v Riverwood Legion and Community Club Ltd [2016] NSWCA 81 [39].

   [36] Plaintiff's outline of submissions par 27(a)(iii).

   [37] Plaintiff's outline of submissions par 27(a)(iv), footnote 14, citing Allianz Australia Insurance Ltd v Yu [2024] NSWSC 31 [289].

4. As to the remedies available to the plaintiff against the first defendant, the plaintiff contends that it is entitled to compensation pursuant to s 1317H of the Corporations Act; equitable compensation; and damages.

5. On behalf of the plaintiff it was submitted that the plaintiff's causes of action against the second defendant are at least money had and received; or knowing receipt. It says that the remedies available to the plaintiff are restitution;[38] declaratory orders that the Tesla vehicle is held by the second defendant on constructive trust for the plaintiff; and an order that the Tesla vehicle be delivered up to the plaintiff.

   [38] Plaintiff's outline of submissions par 28(b)(i), footnote 15, referring to Heperu Pty Ltd v Belle (formerly Cincotta) [2009] NSWCA 252; (2009) 76 NSWLR 230 [143], [144], [153] - [163], as to interaction and differences between an action for money had and received and equitable tracing as well as the point in time in which the value of the benefit is to be assessed.

6. Based on the affidavit evidence, which is detailed, and having had regard to the potential defences of the defendants, as identified by counsel for the plaintiff, it is open to find that the plaintiff has a reasonably arguable case on legal and factual matters as against the first defendant and the second defendant.[39]

Danger that the prospective judgment will be wholly or partially unsatisfied

[39] Plaintiff's outline of submissions pars 29 - 33.

1. The plaintiff acknowledged that it must demonstrate that there is a danger that a prospective judgment will be wholly or partly unsatisfied, and in this regard referred to the decision of Le Miere J in BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 at [15], where his Honour observed that:

   The onus of proving the risk of judgment being rendered fruitless is on the plaintiff. The standard of proof of danger of non-satisfaction of judgment is that the risk must be real and not fanciful. While the inference of risk cannot usually be drawn from the fact that a plaintiff has a sufficiently arguable cause of action, evidence going to the plaintiff's cause of action can in some cases be relied upon in drawing the inference of danger. One example of this is where the case made out against the defendant is one of serious dishonesty involving diversion of money from its proper channels: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319.

2. I have proceeded on the basis that the affidavit evidence relied upon by the plaintiff in seeking to establish an arguable case against the defendants may also be relied upon to demonstrate that there is a danger that a prospective judgment will be wholly or partially unsatisfied because assets of the defendants might be removed or otherwise disposed of, dealt with or diminished in value. Further, in the disposition of the application, I was also cognisant that where the allegation made against a defendant concerns serious dishonesty, that evidence of itself may satisfy the Court that the requisite danger exists.[40]

   [40] See also Distinctive FX Pty Ltd v Wright [2015] VSC 299 [39], citing Victoria University of Technology v Wilson [2003] VSC 299 [33]; and Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 325F - 326A.

3. The affidavit evidence strongly suggests apparent dishonesty on the part of the first defendant.

4. On behalf of the plaintiff it was also submitted that because the vast majority of the money the first defendant was alleged to have stolen was cash, and the only other identifiable asset is the Tesla vehicle, there is a real danger that the first defendant will be able to readily dissipate the assets that could be utilised to satisfy any judgment obtained by the plaintiff. That is, if the first defendant was dishonest enough to misappropriate funds and conceal the misappropriations, then it is reasonable to infer that once becoming aware of the claims against her, she might seek to put her assets or any of the funds she misappropriated out of the reach of the plaintiff.[41] I give this submission weight in light of the evidence read.

   [41] Plaintiff's outline of submissions par 38.

5. I am satisfied, to the requisite degree, that there is a danger that the prospective judgment will be wholly or partially unsatisfied because assets of the first defendant and the Tesla vehicle might be removed or otherwise disposed of, dealt with or diminished in value.

Discretion

1. There may be discretionary considerations which mitigate against the granting of a freezing order, such as delay in bringing an application, or a lack of candour in the materials placed before the Court.[42]

   [42] Zhen v Mo [2008] VSC 300 [30].

2. The application was made on behalf of the plaintiff in circumstances where a concern was first raised with Ms Rooke on 20 February 2025, an investigation was undertaken promptly thereafter,[43] and this proceeding was commenced on 6 March 2025. There appears to have been no delay in bringing the application.

   [43] Affidavit of JE Rooke sworn 6 March 2025 par 16.

3. As to candour, the evidence presented on behalf of the plaintiff is detailed. However, as previously noted, the defendants will have a full opportunity to contest the continuation of the freezing order or raise any other matter, including any lack of candour, on the return date.

4. The exercise of discretion requires a balancing of interests. As was noted by counsel for the plaintiff, in BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd at [22], Le Miere J held as follows:[44]

   The balance of convenience is relevant to the granting of a freezing order. Having regard to the nature of the remedy, once the other prerequisites are made out and subject to any other discretionary factors, the balance of convenience will almost inevitably lie in favour of the grant of the order, because the potential damage to the plaintiff of being unable to satisfy the judgment will outweigh the inconvenience to the defendant of being subjected to a properly drawn freezing order: see Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49, 54 (Young J); Goumas v MacIntosh [2002] NSWSC 713.

   [44] Plaintiff's outline of submissions par 39.

5. It was submitted on behalf of the plaintiff that the balance of convenience favours the grant of interlocutory relief as:[45]

   (a) there is at least a reasonably arguable case on a legal and factual basis;

   (b) the plaintiff has satisfied the other jurisdictional prerequisites and proffered an undertaking as to damages in the usual form; and

   (c) there are no concerns - of the kind that the High Court in Cardile v LED Builders Pty Ltd at [52] cautioned about - in respect of the quantification and identification of damages pursuant to the undertaking as to damages.

   [45] Plaintiff's outline of submissions par 40.

6. Counsel for the plaintiff also submitted that the balance of convenience favours the grant of relief because the plaintiff claims a proprietary interest (by way of constructive trust) in the Tesla vehicle because the plaintiff contends that the vehicle was purchased with misappropriated funds.[46] The plaintiff presses for the preservation of that vehicle pending the trial of the substantive application for relief.

   [46] Plaintiff's outline of submissions par 1(b), footnote 1, citing Heperu Pty Ltd v Belle (formerly Cincotta) [2009] NSWCA 252; (2009) 76 NSWLR 230 [155], [163]; Re Diplock; Diplock v Wintle [1948] Ch 465, 530, 542, 544.

7. In all of the circumstances, I find that it is appropriate to grant the freezing orders ex parte. I am prepared to do so on the basis that a prompt return date is fixed, that the defendants have liberty to apply at short notice, and (following an exchange with counsel for the plaintiff) the orders include the usual carve outs for ordinary living expenses and reasonable legal expenses. In the exercise of discretion, I have also weighed the protection afforded to the defendants by the undertaking as to damages.

Undertaking as to damages

1. The plaintiff has proffered an undertaking, the benefit of which extends to any person (whether or not a party) affected by the operation of the requested order.

2. The provision of the undertaking, which is entirely appropriate in the circumstances, supports the grant of interlocutory relief.

Conclusion

1. For these reasons, I will make freezing orders against the defendants. The freezing orders will have a return date of 13 March 2025 at not before 11.00 am, although there will be liberty to apply on three hours' notice.

2. I will also make an ancillary order concerning the provision of information with respect to assets held by the defendants.

3. As to the value of assets to be covered by the freezing orders, I note that the plaintiff estimate their presently identified claims as against the first defendant, inclusive of interest and the estimated further legal costs and disbursements, to be in the order of $600,983.55 AUD. The plaintiff says that that sum is the appropriate figure for inclusion in a freezing order against the first defendant, with an order that the second defendant be restrained from disposing of the Tesla vehicle registered in the name of the second defendant, and with orders restraining the defendants from causing or allowing the transfer of any money or assets by or from M & K Robinson Super Pty Ltd as trustee for the Robinson Superannuation Fund, to any person unless the first defendant continues to hold up to the unencumbered value of $600,938.55 AUD and ancillary orders concerning any replacement of the trustee.

4. The value of assets covered by a freezing order should not exceed the likely maximum value of the plaintiffs' claim, but this may include interest and costs.[47]

   [47] Rimex Wheel Pty Ltd v Wulff [2018] WASC 180 [48], referring to Consolidated Practice Directions PD 9.6.1 par 11. 

5. I am prepared to fix the sum of $600,983.55 as the figure for inclusion in the freezing order against the first defendant, allowing $397,947 as the likely value of the plaintiff's claims, interest estimated at $25,056.55, and $177,980 for future estimated costs. In my view, on the materials before me, fixing such an amount would not go beyond what is in reasonable protection of the plaintiff's rights.

6. Ordinary living expenses and reasonable legal expenses will be excluded from the first defendant's freezing orders. I have fixed the amounts for the first defendant at $700 per week and $12,000, respectively (noting that there will be liberty to apply in respect of these amounts).

7. An order will be made today, restricting access to the originating process, to all documents filed subsequently, the transcript of the ex parte hearing and these reasons pursuant to the Rules of the Supreme Court O 67B r 5, until further order of the Court. That restriction order will be vacated upon the plaintiff giving notice to the Court that the freezing orders have been served on each of the defendants.

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

CR

Associate to the Honourable Justice Strk

11 MARCH 2025