Rasia Group v Crawford (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

DUTY JUDGE – SLOSS J

S ECI 2025 04071

BETWEEN:

RASIA GROUP (and others according to the Schedule of Parties)	Plaintiffs
- v -
MATTHEW PHILLIP CRAWFORD	Defendant
- and -
BORANUP HOLDINGS PTY LIMITED (ACN 149 990 803) (and others according to the Schedule of Parties)	Third Party Respondents

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JUDGE:	Sloss J
WHERE HELD:	Melbourne
DATES OF HEARING:	19, 22 September 2025
DATE OF JUDGMENT:	30 September 2025
CASE MAY BE CITED AS:	Rasia Group v Crawford (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 619

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PRACTICE AND PROCEDURE – Return of ex parte freezing order against a prospective judgment debtor in a proceeding in a foreign court − Where plaintiffs acknowledged that there was material non-disclosure at ex parte hearing − Where plaintiffs amended their case in the proceeding in the foreign court and sought to have the ex parte freezing order continued or a fresh freezing order made on similar terms − Where plaintiffs established a good arguable case with sufficient prospect of a favourable judgment in the foreign court − Where plaintiffs failed to demonstrate a danger or risk that the defendant will dissipate his assets − Ex parte freezing order discharged – Application for fresh freezing order not granted – Foreign Judgments Act 1991 (Cth) – Foreign Judgments Regulations 1992 (Cth) − Supreme Court General Civil Procedure Rules (2025) (Vic) Order 37A – Inherent jurisdiction of the Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr O Bigos KC with Ms L Hamzi	Robinson Gill Lawyers
For the Defendant and Third Party Respondents	Ms P Thiagarajan SC with Mr N Luxton and Dr M Harding	CMS Cameron McKenna Nabarro Olswang Australia

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The ‘new’ pleaded basis for the claims against Mr Crawford.............................................. 15

The inter partes hearing on 19 September 2025......................................................................... 18

The gist of the dispute between the parties............................................................................. 20
The non-disclosure was inadvertent and a freezing order should be granted........ 20
The defendant contends that there was material non-disclosure when the Freezing Order was made and accordingly the Freezing Order should be discharged forthwith 22

Non-disclosure of material facts at the ex parte hearing...................................................... 22
Consideration and disposition........................................................................................ 26

Consideration and disposition...................................................................................................... 30

Freezing order – applicable legal principles............................................................................... 30

Do the plaintiffs have a ‘good arguable case’ and a realistic or sufficient prospect of success?........................................................................................................................................................ 34

The expert evidence......................................................................................................................... 35

Malicious prosecution................................................................................................................ 40
Whether the defendant was the prosecutor?................................................................. 41
Were the proceedings determined in the plaintiffs’ favour?...................................... 55
Whether the defendant brought the proceedings without reasonable and probable cause?.................................................................................................................................. 59
Whether the defendant bought the proceedings maliciously?................................... 68
Whether the plaintiffs have suffered loss which sounds in damages as a result of the defendant’s actions?.............................................................................................. 70

Conclusion of Mr Quest KC...................................................................................................... 71
Conclusion of Dr Mitchell KC................................................................................................... 71

Consideration and disposition...................................................................................................... 71

Abuse of process......................................................................................................................... 72
Consideration and disposition.................................................................................................. 75
Causing loss by unlawful means.............................................................................................. 75
Consideration and disposition.................................................................................................. 76
Conspiring with intent to injure the plaintiffs by unlawful means..................................... 77

Consideration and disposition...................................................................................................... 78

Risk of dissipation of assets.......................................................................................................... 78

Mr Crawford’s ‘complex corporate structure’.............................................................. 80

Consideration and disposition.................................................................................................. 95

Balance of convenience................................................................................................................... 98

Consideration and disposition................................................................................................ 102

Conclusion....................................................................................................................................... 102

Appendix 1: Corporate Structure Chart of Companies including Third Party Respondents 103

Appendix 2: Affidavit Material filed between 17 July 2025 and 19 September 2025 2020 104

HER HONOUR:

Introduction

On 23 July 2025, on the application of Rasia Group, Rasia FZE and Mondoe Company Limited (the plaintiffs), the Court made an ex parte interim freezing order, with worldwide effect, against Matthew Phillip Crawford (the defendant) and several third party corporate respondents (the third party respondents) associated with Mr Crawford (Freezing Order).

The Freezing Order was granted in aid of proceedings commenced by the plaintiffs in May 2025 against Mr Craig Ransley and Mr Crawford in the Grand Court of the Cayman Islands (Cayman Proceedings). The Cayman Proceedings concern a dispute with respect to a winding up petition issued on 1 May 2020 (Petition) by Red Wolf Resources Ltd (Red Wolf) (a company incorporated in the British Virgin Islands (BVI)) against Rasia,[1] a Cayman Islands exempted company that operated as an investment fund and was placed in liquidation on 1 October 2022. The plaintiffs claim that Messrs Ransley and Crawford procured Red Wolf to issue and prosecute the Petition improperly. In essence, they assert that Messrs Ransley and Crawford brought the Petition for collateral purposes, namely, causing economic harm to Rasia, and as a result of the Petition, Rasia was wound up.
[1]According to the Statement of Claim that was issued by the plaintiffs in the Cayman Proceedings (on 28 May 2025):
5.RF Investment Holdings Limited (formerly known as Rasia) (Rasia) is a Cayman Islands exempted company, incorporated on 29 May 2017 and dissolved on 6 August 2024 pursuant to a petition dated 30 April 2020 issued by Red Wolf on 1 May 2020 under cause number FSD 81 of 2020 (RPJ) in the Grand Court of the Cayman Islands (the Petition).

Relevantly for present purposes, the claims made by the plaintiffs against Mr Crawford are for monetary relief including interest and costs, totalling in the order of (at least) USD$26,744,404.70,[2] (being in the order of AUD$42 million).
[2]Comprised of:
(a)USD$22,319,217.70 on account of the loss of value of the shares in Rasia [ASOC [108(f)];
(b)legal costs of USD$1,213,433 incurred by Rasia in defending the proceedings in relation to the Petition [ASOC [108(e)] ;
(c)USD$3,211,754 in losses claimed by Rasia FZE in unpaid performance fees due to it from Rasia pursuant to an investment agreement dated 31 May 2017 [ASOC [109(b)]].

Each of the plaintiffs is located overseas — Rasia Group is based in the Cayman Islands, Rasia FZE is based in the United Arab Emirates and Mondoe is based in the Cayman Islands — and is represented by the same firm of solicitors in this proceeding, namely, Robinson Gill.

The defendant, Mr Crawford, is a mining executive. While he is an Australian citizen, with an address in Augusta, Western Australia, he is often located in Mongolia where several of his companies are based and/or conduct mining operations. Of the 10 third party respondents, two are companies incorporated in Australia,[3] four are companies registered in Singapore[4] and the remaining four are Mongolian companies.[5] It appears that Mr Crawford owns, or through his corporate structure controls, 100% of the shares in each of the third party respondents.[6]
[3]Boranup Holdings Pty Ltd and Bridge Mining Holdings Pty Ltd.
[4]Bridge Mining Pte Ltd, Terra Infrastructure Pte Ltd, Tellus Marketing Pte Ltd, and Tellus Commodities Pte Ltd.
[5]Terra Energy LLC, Tsagaan Uvuljuu LLC, Enkhtunkh Orchlon LLC and Alagtevsh LLC.
[6]See the corporate structure chart provided by the plaintiffs , which is reproduced in Appendix 1 to these reasons.

When service of the ex parte interim Freezing Order and associated Court documents proved difficult, the plaintiffs sought, and obtained on 13 August 2025, orders for substituted service and an extension of the Freezing Order. Subsequently, conditional appearances were filed by the defendant and each of the third party respondents.[7] The defendant and each of the third party respondents are represented by the same firm of solicitors, CMS Cameron McKenna Nabarro Olswang Australia.
[7]Orders were made on 28 August 2025 and 25 September 2025, among other things, extending the period of 14 days specified in Rule 8.08(4) of the Supreme Court (General Civil Procedure) Rules 2015 for the defendant and third party respondents to make application by summons in relation to the conditional appearances filed, to 14 October 2025 and ordering that, if such summons is filed, it shall be listed for hearing on a date to be fixed.

On the return of their amended summons filed on 2 September 2025, the plaintiffs effectively seek to continue the Freezing Order, or obtain a fresh freezing order in substantially the same terms, or obtain a confined ‘notification order’,[8] in each case pursuant to Order 37A of the Supreme Court (General Civil Procedure) Rules 2025 (the Rules) and/or in the Court’s inherent jurisdiction against the defendant and each of the third party respondents. The plaintiffs also seek an ancillary order under rule 37A.03 of the Rules, further or alternatively in the Court’s inherent jurisdiction, requiring the defendant and each of the third party respondents to disclose by way of affidavit, details of all of his or its assets worldwide, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of his or its interest in the assets.
[8]Parbery v QNI Metals Pty Ltd (2018) 358 ALR 88, [55] (Bond J); [2018] QSC 107, [55].

The plaintiffs are of the view that, in due course, the Grand Court will deliver judgment in their favour in the Cayman Proceedings, whereupon they intend to apply to the Supreme Court of Victoria to register and enforce the (prospective) judgment against Mr Crawford and his associated companies (being the third party respondents to this proceeding) under the Foreign Judgments Act 1991 (Cth).[9] In furtherance of that objective, and to facilitate the effective execution of the (prospective) judgment (once registered in this Court), the plaintiffs seek relief in this Court by way of a freezing order. In that regard, the plaintiffs are concerned that there is a real danger or risk that when time comes for the Supreme Court to register and enforce the (prospective) judgment of the Grand Court against Mr Crawford, it will be wholly or partially unsatisfied because:

·Mr Crawford absconds; or
·Mr Crawford’s assets or those of the entities in which he has a direct or indirect interest are removed from Australia or from a place outside Australia or disposed of, dealt with or diminished in value.

[9]The Grand Court of the Cayman Islands is specified in the Foreign Judgments Regulations 1992 (Cth) as a ‘Superior Court’ for the purposes of the Foreign Judgments Act 1991 (Cth).

Mr Crawford submitted that the Freezing Order should not be continued because:[10]

a.There was material non-disclosure in the plaintiffs’ application for the Freezing Order;
b.The plaintiffs have abandoned the original basis on which the Freezing Order was sought and now accept that it was, in fact, without basis;
c.The plaintiffs have failed to establish a good arguable case for their claim against Crawford in the Cayman Proceedings;
d.The plaintiffs have failed to establish a risk of dissipation of Crawford’s assets, so as to entitle the plaintiffs to the Freezing Order; and
e.The balance of convenience does not favour continuation of the Freezing Order.

[10]Defendant’s outline (18.09.2025) at [3].

By way of prompt response to service upon him of the ex parte Freezing Order, Mr Crawford filed evidence on affidavit (inter alia) to the effect that he ceased to be a director of Red Wolf on or about 13 August 2019, before the Petition was filed in the Cayman Islands (on 1 May 2020).

In essence, Mr Crawford and the third party respondents contend that the material non-disclosure on the hearing of the plaintiffs’ ex parte application on 21 July 2025 was that the plaintiffs failed to notify the Court that Mr Crawford had ceased to be a director of Red Wolf on or around 13 August 2019, before the Petition was filed in the Cayman Islands (1 May 2020). That is to say, at the hearing on 21 July 2025, the plaintiffs’ application for ex parte relief was presented to the Court on the basis (then) outlined in the Writ of summons that was issued in the Cayman Proceeding, namely that Messrs Ransley and Crawford caused Red Wolf, ‘of which they were co-directors’,[11] to file and prosecute a Petition in the Grand Court of the Cayman Islands to wind up Rasia. Not surprisingly, when granting the ex parte relief sought, the Court proceeded on that basis.
[11]Plaintiffs’ outline of submissions for ex parte freezing order application (plaintiffs’ outline (18.07.2025)), at [6].

In these circumstances, Mr Crawford seeks the immediate discharge of the Freezing Order, with costs against the plaintiffs.

The plaintiffs now appear to acknowledge that an ‘incorrect impression’ was created before the judge hearing the ex parte application. They submit:[12]

3.The Plaintiffs and their legal representatives were unaware, prior to reading the first affidavit of the Defendant dated 27 August 2025, that he had ceased to be a director of Red Wolf on or around 13 August 2019. They acknowledge that the way in which the Plaintiffs’ materials filed in support of the freezing order application are expressed may have given the Court the incorrect impression that the Defendant was a director of Red Wolf at the time the Petition was issued and prosecuted. The Plaintiffs and their legal representatives apologise to the Court.[13]
4.However, the Plaintiffs submit that the Court should exercise its discretion to continue the freezing order, or alternatively to make a fresh freezing order, on the same terms as the current freezing order or alternatively on a more limited basis.

[12]Plaintiffs’ outline of submissions (16.09.2025), at [3]−[4] (emphasis added in bold and italics).

[13]Affidavit of Peter Hayden dated 4 September 2025, [17] (First Hayden Affidavit); Second Affidavit of Joseph Borkowski dated 3 September 2025, [9] (Second Borkowski Affidavit).

Once the plaintiffs and their legal representatives were apprised of the information about Mr Crawford’s position as a director of Red Wolf, as contained in his affidavit filed in this proceeding on 27 August 2025, the plaintiffs’ solicitor in the Cayman Islands ‘caused the statement of claim to be amended’ and an amended statement of claim was prepared and filed in the Cayman Proceedings on 4 September 2025.[14] Relevantly, the amendments made were to the following effect (amendments shown in red):[15]
[14]First Hayden Affidavit, at [10].
[15]First Hayden Affidavit, exhibit PH-1.

___________________________________
AMENDED STATEMENT OF CLAIM

INTRODUCTION

1.By these proceedings, the First Plaintiff, Second Plaintiff and the Third Plaintiff (together the Plaintiffs) make the following claims against Craig Anthony Ransley (the First Defendant or Mr Ransley) and Matthew Phillip Crawford (the Second Defendant or Mr Crawford) (together the Defendants):
(a) The First Plaintiff claims damages against the First Defendant for fraudulent misrepresentation, malicious prosecution and/ or abuse of process;

(b) The First Plaintiff claims damages against the Second Defendant for malicious prosecution and/ or abuse of process;
(c) The Second and Third Plaintiffs claim damages against the Defendants for causing loss to the Second and Third Plaintiffs by unlawful means; and
(d) The Plaintiffs claim damages against the Defendants for conspiring with Red Wolf Resources Limited (Red Wolf) and Mr James Dauman (Mr Dauman) with intent to injure the Plaintiffs by unlawful means.

(together, the Claims)
THE PARTIES
2.The First Plaintiff (Rasia Group) is a company incorporated in the Cayman Islands in 2012, founded and wholly owned by Mr Joseph K. Borkowski (Mr Borkowski).

3.The Second Plaintiff (Rasia FZE) is a company incorporated in the United Arab Emirates in 2009, founded by and wholly owned by Mr Borkowski.

4.The Third Plaintiff (Mondoe Cayman Islands) is a Cayman Islands exempted company incorporated in 2017, founded by and wholly owned by Mr Borkowski.

5.RF Investment Holdings Limited (formerly known as Rasia) (Rasia) is a Cayman Islands exempted company, incorporated on 29 May 2017 and dissolved on 6 August 2024 pursuant to a petition dated 30 April 2020 issued by Red Wolf on 1 May 2020 under cause number FSD 81 of 2020 (RPJ) in the Grand Court of the Cayman Islands (the Petition).

. . .
10.Red Wolf is a company incorporated in the British Virgin Islands on 13 December 2017, which was struck off the British Virgin Islands Register of Companies on 4 May 2023 due to non-payment of annual fees.

11.The First Defendant wholly owned and controlled Red Wolf. The First Defendant has been a director of Red Wolf since its incorporation. Mr Borkowski was a director of Red Wolf from 24 March 2018 to 5 November 2018 in relation to a transaction described below. On 5 November 2018, the Second Defendant became a co-director of Red Wolf. The Second Defendant resigned as a director of Red Wolf on or about 13 August 2019.

12.The Second Defendant also wholly owned and controlled Landing Point Limited (Landing Point), a company incorporated in the British Virgin Islands on 10 July 2019 and struck off the British Virgin Islands Register of Companies on 10 July 2023 due to non-payment of annual fees. The Second Defendant was at all material times the sole shareholder and sole director of Landing Point. Landing Point’s conduct is to be attributed to the Second Defendant.

13.Mr Dauman was at all material times an agent of and/or director of Island Sands Corporation, a company established under the laws of Seychelles.

. . .

THE PETITION

56.Notwithstanding that Red Wolf’s shares were liable to be unwound pursuant to the Transaction Agreement, on 1 May 2020 Red Wolf, falsely representing itself to be a contributory, issued the Petition against Rasia in the Grand Court of the Cayman Islands on the grounds that it was just and equitable to wind up Rasia pursuant to section 92(e) of the Companies Act (as revised). Red Wolf and Landing Point jointly instructed and funded attorneys Carey Olsen (Singapore) LLP and Carey Olsen (Cayman) LLP (together, Carey Olsen) to issue, serve and prosecute the Petition.

57.The Petition alleged that the following grounds justified the winding up of Rasia:

(a)Red Wolf’s loss of confidence in Mr Borkowski and Rasia Management in continuing to manage Rasia on the basis of:
i)An alleged failure to provide information to Red Wolf relating to Rasia;
ii)Allegedly suspicious performance records;
iii)An alleged risk of dilution of Rasia’s most significant asset by way of a proposed share issuance in BPCI;
iv)An alleged failure by Kirkham to adhere to its contractual obligations; and
v)Other alleged conduct of Mr Borkowski and the Investment Manager.

(b)An alleged serious risk of dissipation by Rasia of Red Wolf’s assets :in Rasia based on the above;
(c)The alleged agreement of Rasia and Red Wolf that it should be wound up and that there was a need for independent liquidators to be appointed; and
(d)An alleged breach of Red Wolf’s claim to have legitimate expectations that Rasia would operate as a private fund for the First Defendant and his associates.

. . .

Landing Point’s Support for the Petition
61.On 1 June 2020, the Second Defendant caused Landing Point, as a purported shareholder in Rasia, to provided a letter of support for the Petition to Red Wolf’s attorneys, requesting that the letter be brought to the Court’s attention, and the letter was brought to the Court’s attention.

Strike Out Application

62.On 8 July 2020, Rasia filed an application in the Petition proceedings seeking an order that the Petition be struck out or dismissed on the basis that Red Wolf did not have standing to bring the Petition as, pursuant to the revocation clause in the Transaction Agreement, Rasia had removed Red Wolf as a subscriber on 6 July 2020 (the Strike Out Application).

63.Rasia was unable to locate a copy of the Transaction Agreement and relied on board minutes dated 2 January 2018, 1 April 2018, 30 June 2018, and 12 November 2018, recording the terms of the Transaction Agreement (the Board Resolutions) and associated with the implementation of each component of the Transaction Agreement as evidence of the terms of the Transaction Agreement.
. . .
69A.The Second Defendant caused Landing Point to jointly instruct and fund Carey Olsen to issue, serve and prosecute the Petition, including Red Wolf’s response to the Strike Out application.
. . .
73.Numerous legal articles referencing the Judgment, including by Carey Olsen ~~Red Wolf’s attorneys~~, were subsequently published on the internet.
. . .

Winding Up of Rasia
74.As a result of the Petition, the termination of all essential fund service providers to Rasia and the resulting 17-month freeze in operations, the Prime Broker’s disposal of the Terracom shares and the significant costs incurred in defending the Petition, Rasia was unable to continue trading as an investment fund, including being unable to process or receive subscriptions and monies or maintain a bank or investment account, and became insolvent due to unpaid legal fees.
75.In the circumstances, on 1 October 2021, Rasia consented to a winding up order being made against it, without prejudice to its opposition to the grounds in the Petition, and official liquidators were appointed.

Discovery of the Transaction Agreement & Kirkham Liquidation
76.On 20 November 2020, Kirkham was placed into liquidation by the Singapore High Court on the basis of the serious misconduct of Kirkham’s management, including the Defendants. The Defendants had control of Kirkham’s files at all material times until their termination from their management roles at Kirkham between 14 and 19 March 2020.
77.On 20 November 2020, an :independent liquidator, JK Medora & Co LLP, was appointed over Kirkham (the Kirkham Liquidator) by the Singapore High Court. The Kirkham Liquidator instructed an independent forensic investigator, KPMG Services Pte Ltd (KPMG) to review the Kirkham files. During the course of that review, a signed copy of the Transaction Agreement was located :in the files of Kirkham. The Kirkham Liquidator sent a copy of the Transaction Agreement to Mr Borkowski on 11 July 2022.

Setting aside of the Judgment
78.On 11 August 2022, Rasia (acting by its board) issued a summons to re-open the Preliminary Issue and adduce new evidence of the Transaction Agreement.
79.On 15 September 2022, following an agreement between Rasia and Red Wolf, the Hon. Justice Parker, judge of the Grand Court ordered, inter alia, that:
‘The [Strike Out] Judgment and the findings of fact therein are set aside, shall not give rise to any estoppel whatsoever and the matters addressed in the [Strike Out] Judgment are open to be determined afresh in light of all available evidence, should they arise, in the liquidation of the Company and/or in any other proceedings (but, for the avoidance of doubt, nothing in this Order is intended to set aside or permit redetermination of the Winding Up Order).’
80.In the premises, the Petition proceedings were not determined in favour of Red Wolf. The Hon. Justice Parker set aside all the findings of fact he had made in the Judgment on the Preliminary Issue.

…

CLAIMS

Fraudulent Misrepresentation

84.The First Plaintiff claims that the First Defendant made the Representations in order to induce Rasia to enter into the Transaction Agreement.

. . .

Malicious Prosecution

93.The First Plaintiff claims that the Defendants caused Red Wolf to issue, serve and prosecute the Petition against Rasia maliciously and without reasonable or probable cause.

94.The First Defendant was the director and sole shareholder of Red Wolf, and the Second Defendant was its co-director from 5 November 2018 until on or about 13 August 2019. ~~Red Wolf’s conduct in~~ The issuing, serving and prosecuting the Petition is to be attributed to the Defendants. The First Defendant was a director and sole shareholder of Red Wolf and caused it to issue, serve and prosecute the Petition and the Second Defendant participated and/ or combined with the First Defendant to cause Red Wolf to issue, serve and prosecute the Petition by;

(a)jointly instructing (via Landing Point) Carey Olsen to issue, serve and prosecute the Petition;
(b)jointly funding (via Landing Point) Carey Olsen to issue, serve and prosecute the Petition; and
(c)causing Landing Point to provide Landing Point’s letter of support for the Petition.

95.As to the absence of reasonable or probable cause the First Plaintiff says that there was no credible material available to the Defendants:

(a) to justify Red Wolf’s claim to have standing to issue and pursue the Petition;

(b) to justify the basis of and/ or grounds in the Petition;

(c) to justify the service of the Petition on the Administrator and/ or the Prime Broker; and/ or

(d) to justify the continuation of the prosecution of the Petition after Red Wolf had been notified that its subscription had been unwound on 6 July 2020 pursuant to the terms of the Transaction Agreement.

96.The Petition was maliciously issued, served and prosecuted by the Defendants in that:

(a)The Defendants caused or were involved in causing Red Wolf to prosecute and/ or continue to prosecute the Petition for the collateral purpose of attempting to fraudulently establish a 78% shareholding in Rasia and/ or to deprive the Second and Third Plaintiffs of their proper economic interests in Rasia, in that:

i)the Defendants knew that the Transaction Agreement, which the First Defendant had signed, existed within the Kirkham files which they managed, and failed to cause Red Wolf to disclose it in the Petition and/ or disclose that Red Wolf’s subscription in Rasia was liable to be unwound pursuant to the terms of the Transaction Agreement;
ii)the Defendants knew that Mr Borkowski had exclusively funded Rasia and, in support of Red Wolf’s argument that the Transaction Agreement did not exist, caused Red Wolf to assert in the proceedings that the First Defendant caused Mr Borkowski to establish Rasia on the First Defendant’s behalf and that the First Defendant was the majority beneficial owner of Rasia;
iii)once the existence of the Transaction Agreement was raised by Rasia in the Strike Out Application, the Defendants caused Red Wolf to make further false statements in the proceedings in furtherance of the above collateral motive in that through, inter alia, the false written and oral statements of the First Defendant and Mr Dauman, Red Wolf:
1)falsely claimed that Rasia had mainly been funded by the First Defendant when Red Wolf knew it had been funded by Mr Borkowski;
2)relied on emails forged by Mr Dauman, which the Defendants knew to be forged, in support of the assertion that Rasia had been funded mainly by the First Defendant and falsely asserted that those emails were in fact authentic;
3)falsely accused Mr Borkowski of fabricating the existence of the Transaction Agreement and Board Resolutions and of giving false evidence in a fraudulent attempt to appropriate the Red Wolf’s shareholding in Rasia; and
4)falsely procured the Judgment and received the benefit of it until agreeing that it should be set aside after a copy of the Transaction Agreement was found by the Singapore Liquidator in the Kirkham files and brought to the attention of the Grand Court by Mr Borkowski on behalf of Rasia.

(b)The Defendants caused or were involved in causing Red Wolf to prosecute the Petition for the collateral purpose of causing economic harm to Rasia and/ or the value of the Second and Third Plaintiffs’ interests in Rasia, in that:

i)Red Wolf was not a contributory of Rasia. Paragraphs 96 (a) (i) (ii) and (iii) are repeated;

ii)Red Wolf did not have reasonable and probable cause for the service of the Petition on the Prime Broker and Administrator. There was no requirement for the Defendants to cause Red Wolf to serve the Petition on the Prime Broker and/ or Administrator. The issue as to service of the Petition other than upon Rasia at its registered office was a matter to be dealt with in accordance with the Company Winding Up Rules upon direction from the Court, nevertheless the Defendants caused Red Wolf to serve the Petition on the Administrator and Prime Broker.

Abuse of Process

97.Further or alternatively, the First Plaintiff claims that the issue, service and prosecution of the Petition caused by the Defendants, or in which the Defendants were involved, was undertaken maliciously and constituted an abuse of process in that the Defendants used the legal proceedings, or caused them to be used, for collateral purpose/s. Paragraph 96 is repeated.

98.By reason of the malicious prosecution and/ or abuse of process above Rasia suffered loss and damage.

Causing Loss by Unlawful Means

99.The Second and Third Plaintiffs’ claim that the Defendants intended to and have caused loss to Rasia and the Second and Third Plaintiffs by unlawful means, namely that the Defendants’ actions in causing or being involved in causing the issue, service and prosecution of the Petition, supported by Landing Point, were unlawful acts and constitute malicious prosecution and/or abuse of process actionable at the suit of Rasia, as pleaded at paragraphs 93 to 98 above (the Unlawful Acts).

100.As to the Defendants’ intention to cause loss to the Second and Third Plaintiffs, paragraph 96 is repeated.

101.The Unlawful Acts had the foreseeable result of:

(a) causing the insolvency of Rasia;

(b) the procurement of the Judgment which deprived the Third Plaintiff of its entire shareholding in Rasia and attributed a majority shareholding to Red Wolf and/ or a shareholding to Landing Point; and/ or

(c) the winding up of Rasia and all associated costs.

102.The Unlawful Acts interfered with:

(a) the freedom of the Second and Third Plaintiffs to deal with Rasia in their capacity as majority shareholders of Rasia; and/or
(b) the freedom of the Second Plaintiff to deal with Rasia in its capacity as Investment Advisor.

103.By reason of the Unlawful Acts, the Second and Third Plaintiffs have suffered loss and damage.

Unlawful Means Conspiracy

104.Further or alternatively, the Plaintiffs claim that the Defendants and Red Wolf and/ or Mr Dauman with intent to injure the Plaintiffs conspired and combined to injure the Plaintiffs by unlawful means, namely by issuing, serving and prosecuting the Petition, or being involved in that conduct, which constitute the Unlawful Acts, as pleaded at paragraphs 93 - 98 above.

105.The Unlawful Acts were carried out by the Defendants and Red Wolf and/or Mr Dauman in furtherance of the conspiracy. As to the forseeable result of the Unlawful Acts, paragraph 101 is repeated.

106.The Defendants and Red Wolf and/or Mr Dauman intended to injure the Plaintiffs by means of the Unlawful Acts. Paragraph 96 is repeated. Red Wolf carried out the Unlawful Acts, the Defendants caused Red Wolf to cany out the Unlawful Acts, the First Defendant and Mr Dauman each knowingly made false statements on behalf of Red Wolf and the Second Defendant caused Landing Point to support the Petition in support of the Unlawful Acts.

107.By reason of the Unlawful Acts, the Plaintiffs have suffered loss and damage.

Loss and Damage
. . .
AND the Plaintiffs claim:
(1)       Rescission of the Transaction Agreement;
(2)       Damages;
(3)       Aggravated and/ or exemplary damages;
(4)       Interest;
(5)       Costs; and
(6)       Such further or other relief as the Court may deem fit.
DATED THIS 28th day of May 2025
AMENDED THIS 4th day of September 2025 pursuant to GCR Order 20, r.3 (1)
_______________________________
MOURANT OZANNES (CAYMAN) LLP

The ‘new’ pleaded basis for the claims against Mr Crawford

As will be noted, the claims made against Mr Crawford in the Amended Statement of Claim remain claims for damages for malicious prosecution and/or abuse of process, causing loss by unlawful means, and conspiring with Red Wolf and Mr Dauman with intent to injure the plaintiffs by unlawful means. However, insofar as they relate to or concern Mr Crawford, the pleaded basis for those claims no longer relies on the (now acknowledged) erroneous basis that Mr Crawford was a director of Red Wolf, but rather on:

a) his involvement via Landing Point Limited (of which he was (then) the sole director and shareholder), a (then) shareholder of Rasia, in the conduct of Red Wolf in filing the Petition against Rasia, contending that Landing Point’s conduct is to be attributed to him;

b) Landing Point’s (alleged) role and involvement in instructing and funding attorneys Carey Olsen (Singapore) LLP and Carey Olsen (Cayman) LLP (together, Carey Olsen) to issue, serve and prosecute the Petition, which they say is borne out by information recorded in the fee slips that were rendered by Carey Olsen;

c) Mr Crawford’s (alleged) role in causing Landing Point, ‘as a purported shareholder in Rasia’, to provide a letter of support for the Petition to Red Wolf’s attorneys, and requesting that the letter be brought to the Court’s attention, which it was;

d) Mr Crawford’s (alleged) role in causing Landing Point, to jointly instruct and fund Carey Olsen to issue, serve and prosecute the Petition, including Red Wolf’s response to the application brought by Rasia to strike out the Petition (the Strike Out application) on the basis that Red Wolf did not have standing to bring the Petition (because under the revocation clause in the Transaction Agreement,[16] Rasia had removed Red Wolf as a subscriber on 6 July 2020).

[16]The Transaction Agreement (see Ex JB-1, at 160-161) was an agreement entered into by Rasia (signed by Mr Borkowski), Red Wolf (signed by Mr Ransley) and Mondoe (signed by Mr Borkowski), in December 2017 by which it was agreed that Rasia would provide bridge financing to Kirkham International Pte Limited (a Singaporean incorporated company) in relation to the acquisition of Kirkham by Terracom Limited (an Australian incorporated company, founded by Mr Ransley, and listed on the Australian Stock Exchange (ASX)).

The plaintiffs also rely upon the (allegedly misleading) case presented by Red Wolf in the Grand Court of the Cayman Islands on the hearing of the preliminary issue as to the standing of Red Wolf to present the Petition, where they say the existence of the Transaction Agreement was a material consideration before the Court. In essence, Red Wolf had contended that the Transaction Agreement was a fabrication, as were the corresponding Board resolutions, and that Rasia had been funded mainly by Mr Ransley, not by Mr Borkowski, and that Red Wolf held approximately 78% of the shareholding in Rasia. The plaintiffs say that when judgment was delivered on the preliminary issue in July 2021, Parker J made various findings of fact, including that ‘the Transaction Agreement did not exist and was an invention by Mr Borkowski to unwind Red Wolf’s shareholding’.[17] However, when Kirkham was subsequently placed in liquidation in November 2020, a signed copy of the Transaction Agreement was discovered by an independent forensic investigator on the files of Kirkham and the Kirkham liquidator provided a copy to Mr Borkowski in July 2022. In August 2022, Rasia issued a summons to re-open the preliminary issue and adduce new evidence of the Transaction Agreement, and on 15 September 2022, following an agreement reached between Rasia and Red Wolf, Parker J ordered inter alia that:[18]

The [Strike Out] Judgment and the findings of fact therein are set aside, shall not give rise to any estoppel whatsoever and the matters addressed in the [Strike Out] Judgment are open to be determined afresh in light of all available evidence, should they arise, in the liquidation of the Company and/or in any other proceedings (but, for the avoidance of doubt, nothing in this Order is intended to set aside or permit redetermination of the Winding Up Order).

[17]Amended Statement of Claim, at [71(a)].

[18]Amended Statement of Claim, at [79].

The plaintiffs allege that Mr Ransley and Mr Crawford ‘had control of Kirkham’s files at all material times until their termination from their management roles at Kirkham between 14 and 19 March 2020’.[19] Relevantly, in support of their inter partes application for a freezing order, they effectively submit that Mr Crawford had knowledge of the Transaction Agreement (a matter which Mr Crawford denies), and must have known of its existence when the Petition seeking to wind up Rasia was issued by Red Wolf on 1 May 2020.
[19]Amended Statement of Claim, at [76].

Against the background of the enhanced claims made by the plaintiffs in the Amended Statement of Claim in the Cayman Proceedings, at the mention before the Court in this proceeding held on 12 September 2025 at the request of the plaintiffs, counsel for the defendant and third party respondents complained that the plaintiffs, on the return of the ex parte freezing order, had effectively abandoned their original case and were now seeking to substantiate their ‘new application’ for a freezing order ‘on a new basis’. Senior counsel, Ms Thiagarajan SC, submitted:[20]

The basis upon which the plaintiffs obtained their [ex parte] relief has now been abandoned by them.
In the circumstances, those orders made on that false basis should be discharged. The plaintiffs have now unable to substantiate and defend the orders obtained on an ex parte basis have clearly made, within the orders made in relation to that ex parte freezing order, a new application on a new basis. There is a new amended statement of claim and material in support of that filed on 4 September 2025. And just to clarify for the record, Your Honour, on the last occasion we were before the court, Dr Bigos made submissions to you in relation to the time that was required to serve papers.
No mention was made of amending the statement of claim. The first time we received notice of an amended case was on 4 September, to shore up the relief obtained. And we say that’s quite improper.

[20]Transcript, 12.09.25, at 7-8.

At the mention, the Court made orders (inter alia) re-fixing the date for the hearing of the plaintiffs’ application for a freezing order (to 19 September 2025), providing for the filing of a confidential affidavit of Mr Crawford and also a redacted version, and setting a new timetable for the respective parties to file responding affidavit material and submissions in advance of the re-scheduled hearing. The plaintiffs filed their further affidavit material and an outline of submissions at 4.00pm on 16 September 2025 and the defendant and third party respondents filed (at 12 noon on 18 September 2025) a substantial body of responding affidavit material and submissions addressing what they contended were the shortcomings in the plaintiffs’ case and the reasons why the freezing order should be discharged.

The body of affidavit material (including exhibits) filed by the respective parties between the initiation of the proceeding on 17 July 2025 and the hearing on 19 September 2025 occupies almost 4,000 pages. A listing of the material appears in Appendix 2 to these reasons.

The inter partes hearing on 19 September 2025

At the hearing on 19 September 2025, the plaintiffs relied on the following affidavits filed on behalf of the plaintiffs:

a) Affidavit of Joseph Borkowski (the founder, director and 100% shareholder of all three plaintiff companies) sworn 8 July 2025;

b) (Second) Affidavit of Joseph Borkowski sworn 3 September 2025;

c) (Third) Affidavit of Joseph Borkowski sworn 16 September 2025;

d) Affidavit of Peter Hayden (a partner in the firm of Mourant Ozannes (Cayman) LLP who has had the conduct of the Cayman proceedings on behalf of plaintiffs) sworn 4 September 2025;

e) Second Affidavit of Peter Hayden sworn 15 September 2025;

f) Affidavit of Eleanor Morgan (an attorney practising in the British Virgin Islands and a partner of Mourant Ozannes, BVI, a British Virgin Islands partnership) sworn 4 September 2025;

g) Second Affidavit of Eleanor Morgan sworn 15 September 2025;

h) Affidavit of David Quest KC (an expert witness who is a King’s Counsel practising in England and the Cayman Islands, and a Deputy High Court Judge sitting in the King’s Bench Division of the English High Court), affirmed on 15 September 2025;

i) Affidavit of Hector George Robinson KC (an expert witness who is an attorney-at-law and a Kings Counsel in practice as a commercial litigator in the Cayman Islands and is a partner of Mourant Ozannes (Cayman) LLP) sworn 8 July 2025; and

j) (Second) Affidavit of Hector George Robinson KC sworn 4 September 2025;

The plaintiffs also relied on the plaintiffs’ outline of submissions dated 16 September 2025 (plaintiffs’ outline (16.09.2025)).

The plaintiffs handed up several other ‘aides- mémoire’, prepared for the assistance of the Court, being a Chronology, an Organogram of companies and an Organogram of third party respondents.

At the hearing, the defendant and third party respondents relied on the following material filed on their behalf:

a) Affidavit of Matthew Phillip Crawford (the defendant) affirmed on 27 August 2025;

b) Second Affidavit of Matthew Phillip Crawford affirmed on 11 September 2025;

c) Third Affidavit of Matthew Phillip Crawford (Confidential) affirmed on 11 September 2025;

d) Fourth Affidavit of Matthew Phillip Crawford affirmed on 18 September 2025;

e) Affidavit of Dr Paul Stuart Mitchell KC (an expert witness who is a King’s Counsel called to the Bars of England and Wales and the British Virgin Islands, and practising mainly in commercial law. He is also a Deputy High Court Judge sitting in the King’s Bench Division of the London Circuit Commercial Court), affirmed on 11 September 2025;

f) Second Affidavit of Dr Paul Stuart Mitchell KC affirmed on 17 September 2025;

g) Affidavit of Jeremie Alexander Witt (a solicitor and principal of CMS Cameron McKenna Nabarro Olswang Australia with the care and conduct of the matter on behalf of the defendant and the third party respondents) sworn on 27 August 2025;

h) Second Affidavit of Jeremie Alexander Witt sworn on 11 September 2025;

i) Affidavit of Norman Hau (an expert witness who is a legal practitioner of the British Virgin Islands and the Hong Kong Office Head of Disputes and Restructuring of Conyers Dill & Pearman) sworn on 11 September 2025; and

j) Second Affidavit of Norman Hau sworn on 18 September 2025.

The defendants also relied on their outline of submissions dated 27 August 2025 (defendant’s outline (27.08.2025)) and outline of submissions dated 18 September 2025 (defendant’s outline (18.09.2025)).

Counsel for the defendants and third party respondents handed up several other aides-mémoire for the assistance of the Court, being a Chronology, Dramatis Personae, Location of Key Documents, a corporate structure diagram and a summary of general principles in the relevant authorities.

The gist of the dispute between the parties
The non-disclosure was inadvertent and a freezing order should be granted

The plaintiffs submit that the ‘material non-disclosure’ complained of — namely, their failure to inform the Court on the hearing of the ex parte application for a freezing order that Mr Crawford had ceased to be a director of Red Wolf in August 2019, and thus was not a director of Red Wolf when the Petition was lodged — was inadvertent and was not deliberate or intentional. They accept that there was non-disclosure — and that as a result the judge was given an incorrect impression — and apologise for having done so. Counsel for the plaintiffs confirmed that neither the plaintiffs nor their lawyers knew that information at the time when the ex parte hearing took place, and say they only became aware of it upon reading Mr Crawford’s affidavit affirmed on 27 August 2025.[21]
[21]Transcript,19.09.25, at 4 (Dr Bigos KC).

The plaintiffs acknowledge that on the materials before the Court there is a divergence of views about whether they should reasonably have known that information at the time of the ex parte hearing, by way of seeking and obtaining ‘Norwich Pharmacal relief’,[22] but they submit there is ‘little to be gained by focusing on that debate’.[23] Rather, they say, the most efficient pathway forward, consistent with the overarching purpose, is ‘to focus on what should be done with a freezing order in the exercise of the court’s discretion’, contending that it is appropriate for the court ‘to continue the (present) freezing order or alternatively to make a fresh freezing order in similar terms or in more limited terms’. [24]
[22]The basis of the Norwich Pharmacal relief in the BVI (like in most other common law jurisdictions) is derived from the House of Lords decision in Norwich Pharmacal Company v Commissioner of Customs and Excise [1974] AC 133. (See Affidavit of Norman Hau sworn on 11 September 2025, at [32])
[23]Transcript,19.09.25, at 4 (Dr Bigos KC).
[24]Transcript,19.09.25, at 4 (Dr Bigos KC).

The plaintiffs consent to an order that they pay the costs of the defendant and third party respondents thrown away by reason of the amendments to the statement of claim in the Cayman proceedings.[25]
[25]Plaintiffs’ outline (16.09.2025), at [26].

Relevantly, they submit that on the material before the Court:[26]
[26]Transcript,19.09.25, at 5 (Dr Bigos KC).

a) there is a good arguable case on the amended statement of claim (filed in the Cayman proceedings);

b) there is a risk of dissipation of assets in the absence of a freezing order; and

c) the balance of convenience favours the continuation of the freezing order or the making of a fresh freezing order with appropriate carve-outs.

The defendant contends that there was material non-disclosure when the Freezing Order was made and accordingly the Freezing Order should be discharged forthwith

Mr Crawford submitted that the Freezing Order should not be continued because:

a) there was material non-disclosure in the plaintiffs’ application for the Freezing Order;

b) the plaintiffs have abandoned the original basis on which the Freezing Order was sought and now accept that it was, in fact, without basis;

c) the plaintiffs have failed to establish a good arguable case for their claim against Mr Crawford in the Cayman Proceedings;

d) the plaintiffs have failed to establish a risk of dissipation of Mr Crawford’s assets, so as to entitle the plaintiffs to the Freezing Order; and

e) the balance of convenience does not favour continuation of the Freezing Order.

In these circumstances, Mr Crawford seeks the immediate discharge of the Freezing Order, with costs against the plaintiffs.

Non-disclosure of material facts at the ex parte hearing

Counsel for the respective parties commenced by addressing the issue of material non-disclosure.

The applicable legal principles are not in dispute. The plaintiffs accept that an applicant for a freezing order is under a duty, at an ex parte hearing, to make full, frank and fair disclosure to the Court of all material facts known to the applicant or which would have been known if the applicant had made proper inquiries.[27]
[27]Plaintiffs’ outline of submissions (16.09.2025), at [6], citing Thomas A Edison Ltd v Bullock (1912) 15 CLR 679. 681-2 (Isaacs J); Argyle Building Services Pty Ltd v Mark Franek [2020] VSC 166, [160] (Digby J); Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427, [8] (Habersberger J).

The defendant relies upon Argyle Building Services Pty Ltd v Mark Franek, where Digby J summarised the principles concerning the obligation of full and frank disclosure in ex parte applications seeking a freezing order, as follows:[28]
[28][2020] VSC 166, [160]

Accordingly, on an ex parte application seeking a freezing order it is incumbent upon the applicant to make full and frank disclosure of all material matters known to that party or which would have been known to that party if it applied reasonable diligence. Those obligations include:
(a)the applicant has an obligation to make full and frank disclosure of all material facts;[29]
(b)the disclosure must include matters which would have been raised by the respondent in their defence if they had been present;[30]
(c)it is for the Court and not the applicant to decide what is a material fact requiring disclosure;[31]
(d)the applicant must make proper enquiries before the making of the application, the extent of which enquiries depends on the circumstances of the case;[32]
(e)the applicant has a duty not only to disclose material facts that are known but material facts which the applicant would have known if they made appropriate enquiries;[33]
(f)if the applicant fails in its duty to disclose all material facts, the usual outcome will be to discharge the freezing order, regardless of whether the non-disclosure is deliberate or innocent;[34]
(g)if the freezing order is discharged due to the applicant’s failure to make full and frank disclosure, the applicant may still apply for a further freezing order.[35]

[29]Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427, [8]; Brink’s-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[30]Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [20].

[31]Brink’s-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[32]Brink’s-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[33]Brink’s-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[34]Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [21]; Brink’s-MAT Ltd v Elcombe & Ors [1988] 3 All ER 188 at 192-193 cited with approval in Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [23].

[35]Westpac Banking Corporation v Hilliard and Ors [2001] VSC 187, [22].

Further, the defendant submitted it is not enough for an applicant to say, as the plaintiffs do in this case, that it did not know the true facts. Rather, counsel for the defendant contends it is clear that the duty ‘is not restricted merely to facts actually known’ but applies also ‘to any additional facts which the applicant would have known if the relevant enquiries had been made’.[36]
[36]Main- Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd [2009] VSC 435, at [14] (Davies J).

In the present case, the defendant submitted that ‘the key and essential premise’ upon which the plaintiffs’ case for an ex parte freezing order was based, was that Mr Crawford was a director of Red Wolf, and had procured Red Wolf to file and prosecute the Petition.[37] However, and notwithstanding that the company search exhibited to Mr Borkowski’s first affidavit[38] notified in the ‘Transaction History’ that there was a ‘Register of Directors – Registration of Changes’ event recorded on the register on 10 September 2019, the matter was not investigated. The defendant submitted that this entry on the company search ‘clearly indicated recent changes in particulars of the register of directors’ and (when exhibited to an affidavit) ‘ought to have prompted a company search to determine whether Mr Crawford’s directorship had been the subject of recent change prior to the occurrence of the matters alleged against him’.[39]
[37]Defendant’s outline (18.09.2025), at [57].
[38]Affidavit of Joseph Borkowski sworn 8 July2025, exhibit JB-1, at 91-92.
[39]Defendant’s outline (18.09.2025), at [58].

As matters transpired, even though the company search of Red Wolf was obtained on 7 July 2023,[40] — two years before the freezing order was sought — ‘the Plaintiffs did not contact Mr Crawford to ask whether he was a director of Red Wolf at the time when the Petition was issued, nor did they make any other inquiries to confirm who the directors of Red Wolf were at the relevant time’.[41]
[40]Affidavit of Joseph Borkowski sworn 8 July2025, Ex JB-1, 90.
[41]Defendant’s outline (18.09.2025), at [61].

The plaintiffs have filed affidavit evidence from Ms Eleanor Morgan, an attorney in the firm retained by them in the BVI[42] as to company searches and what information they record, and steps one might take to ascertain further information. Ms Morgan gave evidence to the effect that ‘it was not possible to ascertain Red Wolf’s directorships, other than from Red Wolf itself or by an order of the BVI Court’.[43] The plaintiffs also maintained that their lawyers were concerned not to alert or ‘tip off’ Mr Crawford to the prospect that a proceeding might later be issued claiming relief against him,[44] and they were also seeking to contain the costs involved.
[42]Affidavit of Eleanor Morgan (an attorney practising in the British Virgin Islands and a partner of Mourant Ozannes, BVI, a British Virgin Islands partnership) sworn 4 September 2025
[43]Defendant’s outline (18.09.2025), at [79], citing the Affidavit of Eleanor Morgan, at [25], [26].
[44]Second Affidavit of Peter Hayden sworn 15 September 2025, at [9].

The defendant responded by filing expert evidence from Mr Norman Hau, another legal practitioner in the BVI,[45] deposing as to his experience of ascertaining specific information of the kind in question here, including through the use of applications for Norwich Pharmacal relief,[46] coupled with a ‘seal and gag’ order. Mr Hau referred to a recent article authored by Ms Morgan and published by the Mourant firm on its website entitled ‘Documents and information that can be obtained in respect of a BVI company’,[47] which conveyed the following information:[48]

a.It is possible to obtain documents concerning BVI companies that are not publicly available by applying for a Norwich Pharmacal order addressed to the company’s registered agent, bank or broker.
b.‘A Norwich Pharmacal order compels the third party to disclose relevant documents which may include registers of members and directors…’
c.‘Registered agents are usually obliged to notify their clients of any such application, which may frustrate the purpose. However, the risk of ‘tipping off‘ may be eliminated by obtaining a so-called ‘seal and gag‘ order. Applications for ‘seal and gag‘ orders are made without notice to a respondent and usually before an application for a Norwich Pharmacal order…’

[45]Affidavit of Norman Hau (an expert witness who is a legal practitioner of the British Virgin Islands and the Hong Kong Office Head of Disputes and Restructuring of Conyers Dill & Pearman) sworn on 11 September 2025

[46]The basis of the Norwich Pharmacal relief in the BVI (like in most other common law jurisdictions) is derived from the House of Lords decision in Norwich Pharmacal Company v Commissioner of Customs and Excise [1974] AC 133. (See Affidavit of Norman Hau sworn on 11 September 2025, at [32])

[47]Affidavit of Norman Hau, exhibit NH-1, 263-265

[48]Defendant’s outline (18.09.2025), at [81].

The defendant submitted that the expert evidence given by Mr Hau in his affidavit, is to the effect that:[49]

a.In the Company Search Report for Red Wolf, the ‘change’ in the register of directors could have related to the appointment of a new director or the replacement of an existing director on the board of Red Wolf [27].
b.In the Company Search Report, the filings concerning Red Wolf directors in September 2019 ‘indicate at the very least a possibility that Mr Crawford was no longer on the board of directors of Red Wolf’, and it would have been ‘reasonable for the Plaintiff to investigate the existence of any reasonable doubt that he was not a director at the time Red Wolf brought its petition against the Plaintiff’ [30].
c.An application for a Norwich Pharmacal order could have been made in order for Red Wolf’s registered agent to disclose the company’s register of directors [32]-[41].
d.In relation to an application for a Norwich Pharmacal order, the BVI courts could have made both gagging orders and sealing orders, preventing a potential defendant from being ‘tipped off’ [42]-[46].

[49]Defendant’s outline (18.09.2025), at [82] citing affidavit of Norman Hau sworn 11 September 2025, at [27], [30], [32]-[41] and [42]-[46].

In his second affidavit, Mr Hau also gave evidence of the cost likely to be encountered when seeking a Norwich Pharmacal order and the time he estimated it would take to obtain such an order. Mr Hau said that, in his experience (in the example he cited), a Norwich Pharmacal order would take about three weeks to obtain, and cost in the order of US$54,000 to US$57,000.[50]
[50]Second Hau affidavit, at [10]-[19].

The defendant also observed that on 21 May 2025, Mr Crawford received a ‘Notice of Assignment’ from Rasia Group (c/o Mourant Ozannes (Cayman) LLP), informing him that Rasia’s right, title and interest in claims had been assigned to the Rasia Group.[51] Mr Hayden of Mourant gave evidence in his second affidavit to the effect that the purpose of such a Notice of Assignment is to notify the recipient of potential claims that have been assigned to the assignee, here, the Rasia Group. Accordingly, the defendant submitted that having received this notification, Mr Crawford was already on notice that a claim might be forthcoming.
[51]Affidavit of Joseph Borkowski sworn 8 July 2025, Ex JB-1 27-9. Also 3^rd Affidavit of Matthew Crawford sworn 11 September 2025, at [6].

Consideration and disposition

In the present case, the issue of material non-disclosure falls to be assessed in the context where the applicant was seeking a ‘penal order’ from the Court, which was intended to have effect ‘worldwide’, and the application was being made in the absence of the defendant.[52] That is to say, the fact that the application was being made ex parte necessarily renders it incumbent upon the applicant to make full and frank disclosure of all material matters known to that party. But when the application is one seeking that a penal order be made, the need for reasonable diligence is more acute — or actively enlivened — because of the penal consequences, and requires that all necessary or appropriate enquiries be made.
[52]The proposed freezing order seeks to restrain the defendant from disposing of, or dealing with, his assets worldwide (up to a limit which includes the prospective judgment debt plus interest and costs), including his real property in Australia and his interests in the third party respondents such as the Mongolian Companies that own the various mining tenements.

It is clear from the submissions made and relied on by the plaintiffs at the ex parte hearing on 21 July 2025 that the defendant’s (alleged) status as a director of Red Wolf was a bedrock or foundational element of the pleaded case being (or to be) pursued by the plaintiffs in the (substantive) Cayman Proceedings, and thus also was central to the application for a freezing order sought in this Court.

The plaintiffs’ outline of submissions filed in advance of the ex parte hearing stated:[53]

6.The Writ claims that the Defendant and Mr Ransley caused a British Virgin Islands company of which they were co-directors (Red Wolf Resources Limited) to file and prosecute a Petition in the Grand Court to wind-up Rasia, a company in which:[54]
(a) Rasia FZE owned 100% of the management shares; and
(b)Rasia FZE and Mondoe Company Limited, between them, owned 100% of the participating shares.

[53]Plaintiffs’ outline of submissions for ex parte freezing order application (18.07.2025) (plaintiffs’ outline (18.07.2025)), at [6].

[54]Borkowski Affidavit, [8], [17].

Against that background, in determining to grant an ex parte freezing order, his Honour found, and proceeded on the (now acknowledged as ‘erroneous’) basis that, Mr Crawford was a director of Red Wolf from November 2018 — and his Honour was unaware that Mr Crawford had retired as a director on or about 14 August 2019.

That erroneous finding, being a foundational element of the pleaded case in the Cayman Proceedings, operated to ‘infect’ his Honour’s analysis and assessment of whether the plaintiffs have a ‘good arguable case’ for a freezing order with ‘sufficient prospects of success’. In particular, it influenced the findings his Honour made when considering the allegations of malicious prosecution, abuse of process and conspiracy, particularly his Honour’s assessment that Mr Crawford’s conduct, in pursuing the Petition and in denying the existence of the Transaction Agreement and claiming that Mr Borkowski’s allegations about it were fabricated, ‘can be described as serious dishonesty’. Not surprisingly, the defendant submitted that those findings are highly contentious and wrong.

In my view, when one looks carefully at the body of affidavit material the plaintiffs presented and relied on before the Court on the ex parte hearing, it was not sufficient for them to rely on instructions from Mr Borkowski. In my view, the alleged status of Mr Crawford was a material matter. Thus, it was incumbent on the plaintiffs’ legal representatives to make reasonable enquiries directed to clarifying the status of Mr Crawford as a director of Red Wolf, in advance of filing their application.

In this regard, by way of example, the expert evidence given by Mr Hau was to the effect that when one perused the transaction report contained in the Company search report for Red Wolf, the filings concerning Red Wolf directors in September 2019 ‘indicate at the very least a possibility that Mr Crawford was no longer on the board of directors of Red Wolf’, and he deposes that it would have been ‘reasonable for the Plaintiff to investigate the existence of any reasonable doubt that he was not a director at the time Red Wolf brought its petition against the Plaintiff’.[55]
[55]Affidavit of Norman Hau sworn 11 September 2025, at [30].

It should also not have passed unnoticed that the Petition that was filed by Red Wolf in the Grand Court of the Cayman Islands on 1 May 2020 did not state that Mr Crawford was a director of Red Wolf at that time. As will be noted in the extract below, the ‘Petitioner’ was Red Wolf which was stated as being ‘wholly owned and managed by its director Mr Craig Ransley’[56] and Mr Crawford is mentioned as being ‘the sole director and shareholder of Landing Point Limited’.[57] The Petition states:

The Petitioner
5.   Red Wolf Resources Limited (the ‘Petitioner’ or ‘Red Wolf’) is an investment holding company incorporated in the British Virgin Islands. It is wholly owned and managed by its director Mr Craig Ransley (‘Mr Ransley’).
6.   The Petitioner holds 16,033.201839 of the Participating Shares issued by the Company, (approximately 78%).
Other Participating Shareholders
7.   To the best of the Petitioner’s knowledge, the Company’s other Participating Shares are held by Landing Point Limited (approximately 6%) and Rasia Group (approximately 16%).
8.   Matthew Crawford (‘Mr Crawford’) is the sole director and shareholder of Landing Point Limited.

[56]Mr Crawford’s evidence is that Mr Craig Wallace replaced him when he retired as a director of Red Wolf in August 2019 and it is likely that Mr Wallace was a director of Red Wolf when the Petition was filed.

[57]Affidavit of Joseph Borkowski sworn 8 July2025, Ex JB-1, 93-116 at 94.

It follows that I do not agree with the plaintiffs’ submission that ‘this is not a case in which the plaintiffs could reasonably have known that the defendant had ceased to be a director of Red Wolf on 13 August 2019’.[58]
[58]Plaintiffs’ outline (16.09.2025), at [16].

In my view, if the plaintiffs’ legal representatives were informed or instructed by Mr Borkowski to the effect that Mr Crawford was a director of Red Wolf at the time when the Petition was lodged, the contra indications in the material presented before the Court on the ex parte application suggested that they should have been ‘on enquiry’, necessitating them making reasonable enquiries to investigate whether or not he was actually a director at the time Red Wolf brought its Petition. But they failed to do so.

The evidence is that the non-disclosure in relation to the defendant’s status as a director was inadvertent and not intentional. The defendant does not suggest otherwise. While the plaintiffs and their legal representatives have apologised to the Court, and have indicated that they consent to an order that they pay the defendant’s (and third party respondents’) costs thrown away by reason of the amendments, the form of their acknowledgement is, in my view, less than contrite, and somewhat disappointing. The form of words used by counsel in their submissions is effectively the same as that used by each of Mr Borkowski and Mr Hayden in their respective affidavits, when addressing the matter, as follows:[59]

3.The Plaintiffs and their legal representatives were unaware, prior to reading the first affidavit of the Defendant dated 27 August 2025, that he had ceased to be a director of Red Wolf on or around 13 August 2019. They acknowledge that the way in which the Plaintiffs’ materials filed in support of the freezing order application are expressed may have given the Court the incorrect impression that the Defendant was a director of Red Wolf at the time the Petition was issued and prosecuted. The Plaintiffs and their legal representatives apologise to the Court.[60]

[59]Plaintiffs’ outline (16.09.2025), at [3] (emphasis in bold italics added).

[60]Affidavit of Peter Hayden dated 4 September 2025, [17] (First Hayden Affidavit); Second Affidavit of Joseph Borkowski dated 3 September 2025, [9] (Second Borkowski Affidavit).

As the defendants observed in their responding submissions,[61] in circumstances where the plaintiffs expressly relied upon Mr Crawford having the status of a director of Red Wolf as a key plank of their case for the grant of the ex parte freezing order, it is not at all surprising that his Honour referred to it as underpinning the Freezing Order.
[61]Defendant’s outline (18.09.2025), at [64].

It is also clear that the plaintiffs had both the Landing Point letter that was filed in support of the Petition and the sheaf of Carey Olsen invoices at the time when the application for the ex parte Freezing Order was made, but neither was disclosed before the Court. The defendant submitted:[62]

110.The Plaintiffs have not provided any explanation for why these materials were filed in relation to the inter partes hearing, but not the ex parte hearing. It is apparent that this is because the basis for the Plaintiffs’ claim has changed, and the Plaintiffs’ original argument for its ‘good arguable claim’ before this Court has fallen away. It has searched around to find another basis for its Freezing Order.
[62]Defendant’s outline (18.09.2025), at [110].

Consideration and disposition

In the circumstances, in my view, the ex parte Freezing Order should not be renewed or extended by the Court. The preferable course is to consider afresh the body of affidavit material (including that which has been recently filed) and determine what, if any, relief is necessary or appropriate, based on the evidence now before the Court.

Freezing order – applicable legal principles

As Hargrave J observed in Choice Planning Pty Ltd & Anor v Mider @ Franklin Street Pty Ltd & Ors:[63]

[4]The circumstances in which the Court may exercise its inherent power to make a freezing order is the subject of harmonised court rules, which apply in all superior courts in Australia. The harmonised rules reflect, and are informed by, the numerous reported cases dealing with the Court’s extraordinary power to freeze the assets of a judgment debtor, prospective judgment debtor or a third party in circumstances where there is a risk that they may act to frustrate or inhibit the Court’s process by taking steps which will or may result in a judgment or prospective judgment of the Court being wholly or partly unsatisfied. In Victoria, O 37A of the Supreme Court (General Procedure) Rules 2005[64] applies to applications for a freezing order.

[63][2015] VSC 59, at [4] (Choice Planning).

[64]Nowadays, O 37A of the Supreme Court (General Procedure) Rules 2025.

Generally speaking, r 37A.05 sets out the minimum requirements for the making of a freezing order.[65] Rule 37A.05(1) states that r 37A.05 applies, among other things, if an applicant has a ‘good arguable case on an accrued or prospective cause of action that is justiciable’ in the Court.
[65]Rule 37A.06 makes clear that the Court also retains its inherent jurisdiction to make a freezing order or an ancillary order.

Where the freezing order or ancillary order is sought against a third party, r 37A.05(5) goes further and requires that the Court must be satisfied, having regard to all the circumstances, that—

(a)there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied because—
(i)the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(ii)the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

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

The legal principles to be applied by the Court in deciding whether or not to grant a freezing order are well-established.

In Rozenblit v Vainer,[66] the Court of Appeal considered the principles governing freezing orders pending an appeal, noting that by virtue of r 64.36(1), the Court of Appeal ‘has the same powers as the judge in the Trial Division had, which extends to the making of a freezing order pending the hearing and determination of the application for leave to appeal and any appeal’.[67] Their Honours observed that ‘[t]he freezing order’s purpose of preventing frustration or abuse of the process of the Court applies equally pending trial or pending appeal’[68] and they proceeded to summarise the relevant principles as follows:[69]
[66][2019] VSCA 164 (Rozenblit).
[67][2019] VSCA 164, [10] (McLeish and Niall JJA), citing Ketchum International plc v Group Public Relations Holdings Ltd [1996] 4 All ER 374, 381 (Stuart‑Smith LJ, with Peter Gibson and Ward LJJ agreeing); Tomasetti v Brailey [2012] NSWCA 6; Aspermont Ltd v Lechmere Financial Corporation (2002) 27 WAR 1; Sopov v Kane Constructions Pty Ltd [2009] VSCA 216.
[68][2019] VSCA 164, [18] (McLeish and Niall JJA).
[69][2019] VSCA 164, [19] (McLeish and Niall JJA).

(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.
(5)In the case of an order against a third party, it must be shown that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the third party’s ability to exercise power in respect of the relevant assets, or that a court process may be available to the applicant as a result of a prospective judgment, under which the third party may be obliged to disgorge assets or contribute to satisfying the prospective judgment.
(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.

It also seems clear, following the decision of the High Court in PT Bayan Resources TBK v BCBC Singapore Pte Ltd,[70] that it is within the inherent power of a state Supreme Court to make a freezing order in relation to an anticipated judgment in a foreign court (that is specified as a ‘Superior Court’ in the Schedule to the Foreign Judgments Regulations 1992 (Cth)) which foreign judgment when made would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth).
[70](2015) 258 CLR 1 (PT Bayan Resources).

In PT Bayan Resources, where a freezing order was made by the Supreme Court of Western Australia on an ex parte application by a plaintiff in a proceeding pending in the High Court of Singapore, the High Court held that the Supreme Court had inherent power to make a freezing order to prevent the abuse or frustration of its process, including in relation to a prospective judgment of a foreign court which, when made, would be registrable by order of the Supreme Court. In a joint judgment, French CJ, Kiefel, Bell, Gageler and Gordon JJ stated:[71]

50The power to make a freezing order in relation to an anticipated judgment of a foreign court, which when made would be registrable by order of the Supreme Court under the Foreign Judgments Act, is within the inherent power of the Supreme Court. That is because the making of the order is to protect a process of registration and enforcement in the Supreme Court which is in prospect of being invoked[72] . The criteria set out in O 52A, r 5 of the Supreme Court Rules are appropriately tailored to the exercise of that inherent power. Such issues of principle or degree as might arise in the working out of those criteria go to the exercise of that inherent power, not to its existence.[73]

[71](2015) 258 CLR 1, 20-21 [50] (French CJ, Kiefel, Bell, Gageler and Gordon JJ). See also the joint judgment of Keane and Nettle JJ (at [64]-[78] where their Honours discuss ‘The doctrinal basis of freezing orders’.

[72]cf Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141 at 155 [53].

[73]cf Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 616.

The Court also held that in circumstances where, as here, the prospective enforcement process sought to be protected by the freezing order depended on the present existence of the Foreign Judgments Act, the application for freezing orders was a proceeding within the federal jurisdiction of the Supreme Court conferred by s 39(2) of the Judiciary Act 1903 (Cth).

Do the plaintiffs have a ‘good arguable case’ and a realistic or sufficient prospect of success?

The threshold requirement embodied in r 37A.05(1), that the applicant for a freezing order have a ‘good arguable case’, is generally regarded as ‘one which is more than barely capable of serious argument, and yet not necessarily one which the judge considers would have better than a 50 per cent chance of success’.[74]
[74]Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft, mbH & Co KG (‘The Niedersaschen’) [1983] 2 Lloyd’s Rep 600, 605; [1984] 1 All ER 398, 404 (Mustill J).

31.Mr Borkowski has exhibited the Letter of Support to his 2nd affidavit in this action. The Letter of Support was not exhibited to his 1st affidavit filed with respect to the Plaintiffs’ ex parte application for a freezing order.

Counsel for the plaintiffs pointed out that the allegation made concerning BPCI, the Indonesian company, in relation to the LSSA, is an allegation that was then rejected by the Indonesian Court, in circumstances where ‘that allegation of the existence of that agreement was shown to have been inaccurate in a judgment shortly thereafter’[246] delivered on the hearing of a bankruptcy petition. Relevantly, the (translated version of the) judgment (which is exhibited to Mr Borkowski’s third affidavit) states: [247]

Considering that the Petitioner’s arguments [sic] between the Bankruptcy Petitioner and the Bankruptcy Petitionee are associated with the Loan and Stockpile Security Agreement dated 12 June 2019 as amended by Deed of Variation No. 01/BPCI/12-2019 dated 15 December 2019 (see Evidence P-6), wherein based on the Agreement, the Bankruptcy Petitionee has debt which is due and payable to the Bankruptcy Petitioner in the amount of USD 1,354,000 (one million three hundred and fifty-four thousand United States of America Dollars) (‘Debt’);
Considering that during the proceeding, the SOP Petitioner was unable to prove the original of Evidence P-6, namely Loan and Stockpile Security Agreement between PT Borneo Prima Coal Indonesia and Red Wolf Resources Limited which was made on 12 June 2019 and the original Evidence P-6 namely Deed of Variation No. 01/BPCI/12-2019 between PT Borneo Prima Coal Indonesia and Red Wolf Resources Limited dated 15 December 2019. Therefore, in accordance with Article 1888 of the Indonesian Civil Code and Jurisprudence Verdict of the Supreme Court of Indonesia No. 3609 K/Pdt/1985 where a photocopy of evidence was never submitted or the original letter never existed, such must be disregarded as evidence;
Considering that in regards to other evidence presented by the Petitioner, namely Evidence P-8 through Evidence P-10 in the form of the 1^st Demand Letter from Allen & Gledhill to PT Borneo Prima Coal Indonesia dated 2 April 2020, such cannot solely stand to prove the existence of debt;
Considering that the Petitioner failed to prove its argument that there is a legal relationship, namely whether there is the existence of debt and whether the debt has been due and payable between the Petitioner and the Petitionee. Therefore, the Panel of Judges state that between the Petitioner and the Petitionee, it is unproven that there is a debt which has been due and payable so that the provision of Article 2 paragraph (1) of Law Number 37, Year 2004, on the Bankruptcy and SOP is not fulfilled to grant the Petition for Bankruptcy Declaration…

[246]Transcript 19.09.2025, at 57 (Dr Bigos KC).

[247]Third Borkowski affidavit, Ex JB-3 at 105 (emphasis in bold italics added).

The next matter the plaintiffs rely on in relation to risk of dissipation is to point to what the defendant has not said in this proceeding. The plaintiffs observe that even though Mr Crawford has now filed four affidavits in this proceeding, ‘in none of them does he swear [or affirm] that he does not plan to and will not dispose of his assets or the assets of the third parties, including the Mongolian companies’.[248] They submit that he has had ‘opportunities to state that he wasn’t going to transfer any of the assets or dissipate them, but none of those opportunities have been taken’[249] and that while that by itself would not be enough, ‘it heightens the ability to make an inference about a reasonable possibility of a risk of dissipation’.[250]
[248]Transcript 19.09.2025, at 57 (Dr Bigos KC). See also plaintiffs’ outline (16.09.2025), at [46].
[249]Ibid.
[250]Ibid.

The defendant contends that the plaintiffs’ allegations do not provide palpable evidence of ‘serious dishonesty’. Counsel points out that, unlike the decided cases involving ‘serious dishonesty’ — which permit an inference to be drawn where there is serious dishonesty involving (for e.g.) diversion of money from proper channels — ‘[t]here is no evidence of fraud or diversion of funds in this case’.[251] Referring to cases such as Bunnings Pty Ltd v McMillin,[252] Patterson v BTR Engineering (Aust) Ltd[253] and KTC v Singh,[254] counsel submitted:[255]

It’s not enough to have an allegation. What is required is a strong prima facie case of the defendant having fraudulently misappropriated assets or of serious dishonesty.
. . . . But what we clearly don’t have here is a diversion of funds. This isn’t a fraud case.
We say that Justice Cosgrave was led into error in his findings due to the allegations against Mr Crawford because he found that Crawford had denied the existence of the transaction agreement and claimed that Borkowski’s allegations were fabricated, which, as I’ve taken the Court to, Mr Crawford didn’t do. Then, it said that he persisted with the winding up when he knew Borkowski was telling the truth and that he consented to the strikeout being set aside. For the reasons I’ve already covered, Crawford wasn’t involved in any way in the strikeout and didn’t instruct the petition to be issued.

[251]Defendant’s outline (18.09.2025), at [162].

[252][2005] VSC 131, [6] (Kaye J).

[253]1989) 18 NSWLR 319, 325-326 (Gleeson CJ).

[254][2018] NSWSC 1510 (White J).

[255]Transcript 22.09.2025, at 148 (Ms Thiagarajan SC).

Further, counsel observed, that with the Amended Statement of Claim having been filed, ‘the plaintiffs have pivoted’[256] and the case now advanced by them is one where the allegations with respect to dishonesty are formulated in different terms:[257]

In short terms, it is said that there is evidence that Crawford supported the Petition, ‘in the manner set out in the ASOC, as well as preparing and affirming an affidavit reiterating his support for the petition which he was prepared to file in the Grand Court‘.

[256]Transcript 22.09.2025, at 148 (Ms Thiagarajan SC).

[257]Defendant’s outline (18.09.2025), at [166], citing plaintiffs’ outline (16.09.2025) at [48].

Counsel then addressed the plaintiffs’ allegations in the Amended Statement of Claim, where the gist of the complaints made about Mr Crawford’s support for the Petition is that ‘(i) Red Wolf and Landing Point jointly instructed Carey Olsen to issue, serve and prosecute the Petition [56]; and (ii) Landing Point provided the Letter of Support [61]’.[258] The defendant submitted that the plaintiffs’ allegations ‘do not provide palpable and demonstrated evidence of serious dishonesty’ for the following reasons:[259]
[258]Defendant’s outline (18.09.2025), at [166].
[259]Defendant’s outline (18.09.2025), at [168] (emphasis in original).

(a)The Letter of Support was dated 1 June 2020, more than one month before Rasia purported to cancel Red Wolf’s Rasia shares and issued the strike out application. Rasia’s dispute concerning Red Wolf’s standing arose from 6-8 July 2020. Therefore, it cannot have been dishonest for Crawford to have signed the Letter of Support.
(b)The affidavit of Crawford, which does not appear to have been filed, was affirmed on 3 July 2020.[260] Once again, this is before the strike out application was issued on 8 July 2020. Further, the affidavit was not served. Therefore, it cannot have been dishonest for Crawford to have affirmed an affidavit in advance of any knowledge by him of the Transaction Agreement (and therefore any potential issue of Red Wolf’s standing) and that was not used.
(c)The Petition was issued by Red Wolf, not Landing Point. There is no evidence that Crawford had management control of Red Wolf, by which he could cause the company to issue the Petition. In relation to the Carey Olsen invoices, Crawford has provided uncontested affidavit evidence in his 2nd affidavit that:
(i)The Carey Olsen invoices were not for one legal proceeding, but for a variety of matters, including the termination of Crawford’s roles at KIPL and BPCI, and the termination of Ransley from KIPL [53];
(ii)Crawford’s involvement was limited to assisting with factual matters in relation to the Petition as supporting shareholder, and his involvement ended in September 2020, after a medical procedure [54]-[57];
(iii)Crawford did not provide instructions in relation to the filing or running the Petition, and did not receive advice on behalf of Red Wolf [54];
(iv)There is no evidence that either Crawford, or Landing Point, paid any invoices relating to the Petition, and the Plaintiffs have not provided any contrary evidence [58]-[61].

[260][11], 4^th [Crawford] affidavit

Further, the defendant submitted that there is substantial evidence that the plaintiffs’ contemporaneous complaints about dishonesty in the Petition relate to Mr Ransley, and not Mr Crawford.[261]
[261]Defendant’s outline (18.09.2025), at [169],

Counsel for the defendant also pointed to the orders that were made in the Grand Court of the Cayman Islands when setting aside the Strike Out Decision dated 15 September 2022, when it was ‘ordered by consent that Red Wolf’s costs of the Petition in the sum of US$782,426 be paid from cash on hand reported by Rasia’s liquidators’.[262] They submit that when this order is considered, it raises ‘serious doubts concerning whether Rasia’s liquidators considered Red Wolf to have been dishonest at all’ because:[263]

171.If Rasia’s liquidators believed that Red Wolf had acted dishonestly in pursuing the Petition, it is inexplicable that they would have agreed to Red Wolf being paid over A$1 million in costs out of the company’s assets. Crawford’s lawyer raised this issue in his affidavit dated 11 September 2025,[264] but Borkowski did not provide any response, seeking to explain the costs order.

[262]Defendant’s outline (18.09.2025), at [170]; Orders dated 15 September 2022 in the Grand Court, pp 211, JB-1; [29], 1st Borkowski affidavit.

[263]Defendant’s outline (18.09.2025), at [171].

[264][4]-[5], 2nd Witt affidavit.

In respect of the asserted risk of dissipation of assets said to arise from the assets of the defendant and third party respondents being held in a complex corporate structure ‘in an attempt to make them judgment-proof’,[265] counsel for the defendant contended that there is no evidence that Mr Crawford deliberately created any structure to avoid claims.[266] Rather, they say, the evidence given by Mr Crawford in his third affidavit (reproduced above) demonstrates that the corporate structure was the result of the acquisition of the Mining Business in 2022 from Ms Yuan, and was not ‘invented improperly by Crawford or the companies that he controls’.[267] On the other hand, they submit that Mr Borkowski’s belief that Ms Yuan was a nominee of Mr Crawford ‘is mere “speculation and guesswork” (adopting the language in Zhen v Mo[268])’[269] and is a matter that Mr Crawford expressly denies in his fourth affidavit.
[265][45(c)], 1st Borkowski affidavit.
[266]Defendant’s outline (18.09.2025), at [172].
[267]Defendant’s outline (18.09.2025), at [176].
[268]A reference to Zhen v Mo [2008] VSC 300, [22]-[30], where J Forrest J summarised the principles for the grant of freezing orders.
[269]Defendant’s outline (18.09.2025), at [177].

In respect of Mr Crawford’s ‘failure’ to depose that he does not intend to dissipate his assets, counsel for the defendants responded by submitting that ‘it’s clearly implied in what Mr Crawford does dispose, that he does not intend to and will not dissipate his assets’.[270] Relevantly, in his second affidavit Mr Crawford gave evidence that he had been given formal notice of the assignment of Rasia’s claims by a Deed of Assignment dated 25 March 2024 together with a Court Order approving the assignment,[271] and stated that:[272]

46.…on receipt of this document, I understood there was a possibility of claims and that if claims were to be made, they had now been assigned to Rasia Group. I did not take any steps as a result of receiving this notification.

[270]Transcript 22.09.2025, at 153 (Ms Thiagarajan SC).

[271]Second Crawford affidavit, at [45]-[47].

[272]Second Crawford affidavit, at [46].

In his third affidavit, Mr Crawford elaborated further, stating:[273]

6.… As explained in my second affidavit, in May 2025, I was given notice of assignment of potential claims by Rasia. Upon receiving this notice, I have not dissipated my assets. I consider that the reasons provided for suggesting that I would dissipate my assets are false, for the reasons specified in my second affidavit and this my third affidavit.

[273]Third Crawford affidavit, at [6].

Accordingly, counsel for the defendant submitted that there is evidence before the Court that can be relied upon and as ‘the burden of proving risk of dissipation rests with the plaintiffs, the defendant bears no burden of proving that he does not intend to dissipate’.[274]
[274]Transcript 22.09.2025, at 154 (Ms Thiagarajan SC).

In the circumstances, the defendant submitted that the plaintiffs have failed to provide ‘cogent evidence of risk of dissipation of assets which could provide sufficient grounds for a Freezing Order’.[275]
[275]Defendant’s outline (18.09.2025), at [178].

Consideration and disposition

In the present case, the plaintiffs placed much emphasis on Mr Crawford’s ‘complex corporate structure’ which is effectively the repository of his interests in mining tenements and licences in Mongolia. It is unclear what is the true value of those Mongolian mining assets.

The evidence is that Mr Crawford acquired these (or his interest in these) Mongolian mining assets on 27 October 2022, when Ms Tao Yuan transferred the entire shareholding in Bridge Mining Singapore (her company) to Bridge Mining Australia (which is Mr Crawford’s company) ‘as part of a management buyout’ and in circumstances where the ‘Mining Business’ had substantial debts. Nothing more is known about the ‘management buyout’ or the consideration for the transfer or the price at which it was stated to take place.

Ms Yuan herself had earlier acquired the Mongolian mining business in mid-2020 from persons or entities associated with Mr Crawford. At that point in time, the Mongolian mining business was being operated through three Singaporean companies, named Tellus Marketing Pte Ltd, Terra Infrastructure Pte Ltd and Tellus Commodities Pte Ltd. The source of the mining assets was TerraCom, a company associated with Mr Ransley (a director of Red Wolf at the time the Petition was lodged). The ASX Announcement made by TerraCom at the time of the sale, in June 2020, stated that:[276]

The assets are being sold as a going concern and therefore Bridge Resources has accepted the existing net liabilities of the entities, up to US$28 million. The total consideration received from the sale is US$3.

[276]First Borkowski affidavit, Ex JB-1 at 232.

Ms Yuan incorporated Bridge Mining Singapore for the purpose of owning the shares in the Mongolian companies that operated the Mining Business and to operate the Mining Business. Mr Crawford was engaged as an advisor on the transaction. At some point, but it is unclear when, Ms Yuan also appointed Mr Crawford to run the Mongolian Coal business. He says this was because Ms Yuan and her colleagues only had experience in trading commodities, and did not have experience in operating coal mines.

The objective evidence shows that these Mongolian mining assets have been the subject of two transactions between related parties: the first took place in or around June 2020 (shortly after the Petition was lodged) and the second in October 2022 ‘as part of a management buyout’. It is unclear what the consideration for the transaction was in each case, having regard to the apparent indebtedness of the mining business and/or the net liabilities of the relevant entities.

Mr Crawford says that the corporate structure through which the Mongolian mining assets are held was not created by him, but rather was ‘inherited’ (so to speak) or acquired as a bundle from Ms Yuan. Mr Crawford was an advisor on the transaction in October 2022 when Ms Yuan acquired her interest, but there is no evidence that he played any role in advising on the structure that was adopted by Ms Yuan when she purchased the mining business.

The corporate structure adopted appears complex, but is actually very simple, in that it effectively enables the ultimate beneficial owner to transfer the whole structure that holds the Mongolian mining assets in a single stroke of the pen, thereby effectively transferring or assigning the shares. In circumstances where there is no evidence about the consideration for the sale of the mining assets to Mr Crawford on the ‘management buyout’ or the terms on which the sale took place, it is unclear whether the transaction documents provide any scope for the sale to Mr Crawford to later be unwound (along the lines of what took place with the Rasia shares under the Transaction Agreement), and for the Mongolian mining assets or shares to be transferred to or re-vested in Ms Yuan.

There are circumstances in which a freezing order may be granted even though there is no evidence of the respondent’s positive intention to frustrate a judgment: Deputy Commissioner of Taxation v Hua Wang Bank Berhad.[277] But, as Kenny J observed in that case:[278]

12The fact that assets within the jurisdiction are moveable, and that the respondent is incorporated outside the jurisdiction is not enough to warrant an inferential finding of danger of dissipation. Rather, there must be facts from which, to quote Lawton LJ in Third Chandris Shipping Corporation v Unimarine SA [1979] 1 QB 645 (‘Chandris’) at 671 ‘a prudent, sensible commercial’ person can ‘properly infer a danger of default if assets are removed from the jurisdiction’.

[277][2010] FCA 1014 at [10] (Kenny J).

[278][2010] FCA 1014 at [12].

In this case, there is no direct evidence of a positive intention on Mr Crawford’s part to frustrate a judgment, and on the evidence before the Court it is difficult to infer the existence of a real danger that there might be a removal of the assets from the jurisdiction, which would have the effect of frustrating the judgment. In this regard, the evidence is that on or about 21 May 2025, Mr Crawford was given notice of the assignment of Rasia’s claims by the plaintiffs’ solicitors, but there is no evidence that he took any steps by way of dissipation of his assets in response.

The present case is not one like Patterson v BTR Engineering (Aust) Ltd,[279] where the interests of justice may support the grant of a freezing order to prevent the dissipation of assets pending the hearing of an action, even though the risk of dissipation is less probable than not. As counsel for the defendant submitted:[280]

It's not enough to have an allegation. What is required is a strong prima facie case of the defendant having fraudulently misappropriated assets or of serious dishonesty.
. . . . But what we clearly don't have here is a diversion of funds. This isn't a fraud case.

[279](1989) 18 NSWLR 319, 325-326 (Gleeson CJ).

[280]Transcript 22.09.2025, at 148 (Ms Thiagarajan SC).

In the circumstances, I am not satisfied that the plaintiffs have established that there is cogent evidence before the Court of a risk of dissipation of assets that would support the making of a freezing order.

Balance of convenience

Finally, the applicant must establish that the balance of convenience favours the continuation of the Freezing Order, or the making of a fresh freezing order in similar terms: Zhen v Mo.[281] In Bradto Pty Ltd v State of Victoria,[282] the Court of Appeal expressed the balance of convenience as the court taking the course of action with the lowest risk of injustice. The Court of Appeal stated:[283]

35.In our view, the flexibility and adaptability of the remedy of injunction as an instrument of justice will be best served by the adoption of the Hoffman approach.[[284]] That is, whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.

[281][2008] VSC 300, [27].

[282](2006) 15 VR 65.

[283](2006) 15 VR 65 at [35].

[284][The ‘Hoffman approach’ is a reference to Hoffman J’s judgment in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670]

Here, the plaintiffs submit that the balance of convenience favours the continuation of the Freezing Order, or the making of a fresh freezing order in similar terms. The proposed freezing order seeks to restrain the defendant from disposing of, or dealing with, his assets worldwide (up to a limit which includes the prospective judgment debt plus interest and costs), including his real property in Australia and his interests in the third party respondents such as the Mongolian mining companies and Terra Energy LLC. The proposed freezing order would also prevent the defendant from disposing of his shares in Boranup (an Australian company of which Crawford is the sole shareholder and director) and from disposing of, or dealing with, assets which are held by a third party in accordance with his instructions.

The plaintiffs submit that the proposed carve-out for reasonable legal expenses ‘up to a total of $500,000’ and for ordinary living expenses ‘up to a total of $10,000 per week’ are satisfactory. They also submitted that if the Freezing Order is continued, or a fresh freezing order in similar terms is made, then ‘the Plaintiffs would be amenable to paying $100,000 into their Australian solicitors’ trust account, so as to provide security for the usual undertaking as to damages’.[285]
[285]Plaintiffs’ outline (16.09.2025), at [51].

The plaintiffs have also put forward for consideration by the Court, as an alternative to making the proforma freezing order that prohibits dealings with assets, a form of freezing order that is framed as a confined ‘notification order’, along the lines of that discussed by Bond J in Parbery v QNI Metals Pty Ltd.[286]
[286](2018) 358 ALR 88, 101-102 [55]; [2018] QSC 107, [55].

In Parbery, Bond J, being satisfied that the power to make a freezing order under Rule 260A of the Uniform Civil Procedure Rules 1999 (Qld)[287] would permit the making of an order in the ‘notification injunction’ form, was of the view that such an order may be made in circumstances where the court is satisfied that it is appropriate and in the interests of justice to do so. His Honour stated:[288]

[62]The result is that I think that there is one overall question governing the exercise of power under r 260A, namely is a freezing order necessary for the purpose of preventing frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. In seeking to answer that question the Court should address the three considerations which have been identified as relevant to the grant of freezing orders in the exercise of the inherent jurisdiction. I should also remark that r 260A is not worded in a way which would suggest any departure from the inherent jurisdiction’s focus on the effect rather than the purpose of the defendant’s conduct, occurring or apprehended.

[287]Rule 260A provided:

260AFreezing order

(1)The court may make an order (a freezing order) for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.

(2)A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

[288](2018) 358 ALR 88, 103 [62]; [2018] QSC 107, [62].

Here, the confined form of ‘notification order’ proposed by the plaintiffs is one that would require the defendant and third party respondents to give the plaintiffs a reasonable period of notice (e.g. 5 business days’ notice) prior to disposing of any assets which exceed a particular monetary threshold in value (e.g. $50,000) or in the case of specified assets, such as shares in nominated companies, that they may not be disposed of, charged or otherwise dealt with by [the defendant] without notice (e.g. 5 business days’) being given to the [plaintiffs’] solicitors.[289]
[289]Adapting the form of wording in Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636. See also the later case of Vitterra, which used the form of wording ‘disposed of, dealt with, or diminished in value’.

The plaintiffs submit that, in the present case:[290]

52.… That ‘notification order’ would give the Plaintiffs an opportunity, after receiving notice, to apply to obtain freezing orders. It would also cause minimal, if any, interference in the affairs of the Defendant and Third Party Respondents and thereby alleviates any prejudice and the need for any security for the undertaking as to damages.

[290]Plaintiffs’ outline (16.09.2025), at [52].

In the present case, the defendant and third party respondents on the other hand, contend that the balance of convenience militates against the continuation of, or making of a fresh, freezing order. They submit that the following factors are relevant:[291]
[291]Defendant’s outline (18.09.2025) at [181]-[186].

181.First, Crawford has real concerns that the Freezing Order will cause damage to the Mining Business, which is negotiating significant coal contracts.128 There is a risk that if customers learn of the Freezing Order, this may affect their intention to conduct business. As a matter of common sense, if customers learn of the Mining Business experiencing a Freezing Order for up to A$42 million, this may have an impact on their purchasing decisions.
182.In his 3^rd affidavit, Borkowski suggests that, ‘In my experience, a freezing order would not affect international purchasers of coal’.129 It is not explained how Borkowski would have such knowledge (unless he was the subject to a freezing order himself).
183.Second, in the exercise of its discretion, the Court will be less inclined to grant a freezing order in circumstances where it is satisfied that the plaintiff does not have the wherewithal to honour its undertaking, because of the practical difficulties the defendant is likely to encounter in enforcing an undertaking as to damages: Blue Mirror Pty Ltd v Pegasus Australia Developments Pty Ltd [2021] NSWSC 961, [86].
184.Relevantly, the Plaintiffs are not incorporated in Australia. Rasia Group (P1) is incorporated in the Cayman Islands, Rasia FZE (P2) is incorporated in the United Arab Emirates, and Mondoe Company Limited (P3) is incorporated in the Cayman Islands.130 There is no evidence that any of the Plaintiffs have assets in Australia. Indeed, there is no evidence of the Plaintiffs’ assets at all.
185.Third, in applying for the ex parte Freezing Order, the Plaintiffs did not offer to provide security or fortification for their undertaking as to damages. This is despite the Freezing Order providing for the restraining of Crawford, and the Third Party Respondents in Australia, Singapore and Mongolia operating the Mining Business, up to A$42 million. The Freezing Order is wide-reaching, but the Plaintiffs have now offered to provide only A$100,000 into their Australian solicitor’s trust account as security for the usual undertaking as to damages. That is, on its face, woefully inadequate given the scale of the coal contracts Mr Crawford states that may be affected by the Freezing Order.
186.In summary, the balance of convenience militates against the continuation of the Freezing Order.

When responding to the alternative form of freezing order proposed by the plaintiffs, being the confined form of ‘notification order’, counsel for the defendant submitted that while it may be ‘less severe’, it is nevertheless a freezing order, and as such it is still a draconian interference.[292]
[292]Transcript 22.09.2025, at 157 (Ms Thiagarajan SC), citing Viterra BV v Shandong Ruyi Technology Group Co Ltd [2022] FCA 215 at [28] per Stewart J and Candy v Holyoake [2017] 2 All ER (Comm) 513, [2017] EWCA Civ 92 at [35]-[36] (Gloster VP, Jackson LJ agreeing).

Consideration and disposition

In circumstances where the risk of dissipation of assets has not been made out by the plaintiffs, the issue of balance of convenience does not fall to be determined.

Conclusion

For the reasons set out above, I am of the view that in circumstances where there has been material non-disclosure, the ex parte Freezing Order should not be continued and must be discharged.

Having considered all of the material presented before the Court on the plaintiffs’ application for a fresh freezing order in similar terms, I am satisfied that the plaintiffs have, on each of their claims for malicious prosecution, abuse of process, causing loss by unlawful means, and unlawful means conspiracy, demonstrated a good arguable case with sufficient prospect of success before the Grand Court in the Cayman Islands. However, my finding that the plaintiffs have failed to establish that there is cogent evidence before the Court of a risk of dissipation of assets that would support the making of a freezing order is fatal to the success of the plaintiffs’ application.

I will hear from the parties on the appropriate form of order, including as to costs.

APPENDICES

Appendix 1: Corporate Structure Chart of Companies including Third Party Respondents

Appendix 2: Affidavit Material filed between 17 July 2025 and 19 September 2025 2020

Hearing	Hearing date	File Date	File Name	Page length
Ex parte application seeking a freezing order (heard by Cosgrave J)	21 July 2025	Jul 17, 2025	Affidavit of Hector Robinson KC	1063
		Jul 17, 2025	Affidavit of Joseph Borkowski	277
		Jul 17, 2025	Affidavit of Rachael McKendrick	82
Application seeking orders for substituted service and an extension of the freezing order	13 August 2025	Aug 12, 2025	Second affidavit of Rachael McKendrick	32
	13 August 2025	Aug 13, 2025	Third affidavit of Rachael McKendrick	12
Application for orders setting down a timetable for the filing of documents and a further extension of, and amendments to, the freezing order	28 August 2025	Aug 27, 2025	Fourth Affidavit of Rachael McKendrick	38
		Aug 27, 2025	Fifth Affidavit of Rachael McKendrick	27
		Aug 27, 2025	Affidavit of Matthew Crawford	14
Mention with respect to the filing of confidential material, amendment to the timetable for the filing of documents and a further extension of the freezing order; (and further orders made on the papers dated 16 September 2025 concerning what information constitutes ‘confidential information’)	12 September 2025	Sep 5, 2025	Affidavit of Eleanor Morgan	66
		Sep 5, 2025	Affidavit of Hector Robinson KC	119
		Sep 5, 2025	Second affidavit of Joseph Borkowski	213
		Sep 5, 2025	Affidavit of Peter Hayden	28
		Sep 11, 2025	Affidavit of Norman Hau	277
		Sep 11, 2025	Affidavit of Jeremie Witt	67
		Sep 11, 2025	Affidavit of Dr Paul Mitchell KC	841
		Sep 11, 2025	Second Affidavit of Jeremie Witt	97
		Sep 11, 2025	Second Affidavit of Matthew Crawford	121
Application in respect of the freezing order	19 September 2025	Sep 15, 2025	Third Affidavit of Matthew Crawford	9
		Sep 16, 2025	Second Affidavit of Peter Hayden	104
		Sep 16, 2025	Affidavit of David Quest KC	195
		Sep 16, 2025	Second Affidavit of Eleanor Morgan	5
		Sep 16, 2025	Third Affidavit of Joseph Borkowski	113
		Sep 18, 2025	Second Affidavit of Dr Paul Mitchell KC	172
		Sep 18, 2025	Fourth Affidavit of Matthew Crawford	5
		Sep 18, 2025	Second Affidavit of Norman Hau	10
Total pages				3987

[293]Defendant’s material in italics.

SCHEDULE OF PARTIES

S ECI 2025 04071

BETWEEN:

RASIA GROUP	First Plaintiff
RASIA FZE	Second Plaintiff
MONDOE COMPANY LIMITED	Third Plaintiff
- and -
MATTHEW PHILLIP CRAWFORD	Defendant
BORANUP HOLDINGS PTY LIMITED (ACN 149 990 803)	First Third Party Respondent
BRIDGE MINING HOLDINGS PTY LIMITED (ACN 663 120 081)	Second Third Party Respondent
BRIDGE MINING PTE LTD	Third Third Party Respondent
TERRA INFRASTRUCTURE PTE LTD	Fourth Third Party Respondent
TELLUS MARKETING PTE LTD	Fifth Third Party Respondent
TELLUS COMMODITIES PTE LTD	Sixth Third Party Respondent
TERRA ENERGY LLC	Seventh Third Party Respondent
TSAGAAN UVULJUU LLC	Eighth Third Party Respondent
ENKHTUNKH ORCHLON LLC	Ninth Third Party Respondent
ALAGTEVSH LLC	Tenth Third Party Respondent

HGR-1

[2025] VSC 619

30 September 2025