Ronald Henk Brinkman v Cottesloe Apartments (WA) Pty Ltd
[2025] WASC 403
•26 SEPTEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RONALD HENK BRINKMAN -v- COTTESLOE APARTMENTS (WA) PTY LTD [2025] WASC 403
CORAM: SEAWARD J
HEARD: 11 SEPTEMBER 2025
DELIVERED : 11 SEPTEMBER 2025
PUBLISHED : 26 SEPTEMBER 2025
FILE NO/S: CIV 1868 of 2025
BETWEEN: RONALD HENK BRINKMAN
Plaintiff
AND
COTTESLOE APARTMENTS (WA) PTY LTD
First Defendant
CENTAUR PROPERTY HOLDINGS PTY LTD
Second Defendant
KEYSTONE FAIRLIGHT PTY LTD
Third Defendant
Catchwords:
Practice and Procedure - Freezing Order - Jurisdictional questions - Discretionary considerations - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 52A
Transfer of Land Act 1893 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| First Defendant | : | No appearance |
| Second Defendant | : | C Terren |
| Third Defendant | : | J Allison |
Solicitors:
| Plaintiff | : | In Person |
| First Defendant | : | No appearance |
| Second Defendant | : | Stork Davies Legal Advisors |
| Third Defendant | : | Thomson Geer |
Case(s) referred to in decision(s):
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [2018] WASCA 174; (2018) 53 WAR 201
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188
SEAWARD J:
Introduction
This is an application by Mr Ronald Brinkman pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) (RSC), the plaintiff in this matter, for freezing orders in relation to properties of which the first defendant, Cottesloe Apartments WA Pty Ltd, is the registered proprietor.
Background
The background to Mr Brinkman's application for freezing orders is somewhat convoluted. I will therefore commence with an overview summary of the background, and how the parties got here.
Mr Brinkman's substantive claim
The plaintiff in this matter, Ronald Brinkman, commenced an action by writ filed on 5 August 2025.
In broad terms, Mr Brinkman seeks various relief, including declarations, damages or restitution or a constructive trust in relation to a property that he claims to have a legal and equitable interest in, being Lot 25 (formerly Lots 25 and 26), 3 Fairlight Street, Mosman Park (Property).
The Property was part of a development in Mosman Park being undertaken by the first defendant, Cottesloe Apartments (WA) Pty Ltd. The other two defendants provided funding to the first defendant, and hold various securities over property owned by Cottesloe Apartments (WA) Pty Ltd.
Mr Brinkman is self‑represented in this litigation. Mr Brinkman also currently resides in the Philippines and travels to Perth for court appearances.
Mr Brinkman has also filed a document which purports to be a statement of claim. However, that document is in the form of an affidavit with seven volumes of supporting documents, totalling around 2,000 pages. It does not comply with the rules and will, in due course, requires amendment.
In broad terms, Mr Brinkman claims that he entered into a contract with the first defendant to purchase the Property. That contract consisted of a contract for the purpose of Lot 25 (26 June 2021) and a second contract for the purchase of Lot 26 (8 December 2021) and then a side deed (9 December 2022) when the two lots were combined. Copies of these agreements are included in the volumes of papers accompanying Mr Brinkman's statement of claim.
Mr Brinkman's case is that the first defendant wrongfully terminated that contract. That termination occurred by letter dated 1 July 2024 and the reason given for the termination was that it was in accordance with cl 9.2 of the contracts which provided that either party could terminate the contracts if the strata titles were not released by the specified date.
Mr Brinkman's case is that the failure for the strata titles to be issued by the relevant date was caused by the first defendant's deliberate actions in not taking the steps it was required to under the contracts, or not taking them until too late such that the strata titles could never have been issued by the required date.
Mr Brinkman's case is that he has incurred the following losses:
Item
Amount
Cash payments to the first defendant under the contracts
$552,464.05
Whitegoods and fixtures supplied
$108,084.18
Design and architectural services (provided by Mr Brinkman's employees)
$250,950.00
Legal costs
$24,770.66
Other costs
$5,840.17
Total
$942,109.06
Application for interlocutory orders
On the same day as Mr Brinkman filed his writ and statement of claim, Mr Brinkman also filed the following documents:
(1)a letter to the Listings Clerk of the court, seeking to have his chamber summons listed urgently owing to the risk of dissipation of sale proceeds of the Property;
(2)a certificate of urgency;
(3)a minute of proposed orders;
(4)a request for waiver of the conferral requirements;
(5)an undertaking as to damages;
(6)an affidavit of Mr Brinkman in support of his chamber summons, sworn 5 August 2025; and
(7)an affidavit of Alex Fernando Mora, sworn 5 August 2025.
No chamber summons was filed by Mr Brinkman, but the relief sought in the statement of claim includes the following:
5.An order that AUD $980,000.00 of the net proceeds from the auction or sale of Lot 25, 3 Fairlight Street, Mosman Park, be preserved in a trust or escrow account pending final determination of this proceedings, pursuant to the principles established in Cardile LED Builders Pty Ltd (1999) 198 CLR 380 and Foran v Wight (1989) 168 CLR 385.
First return date - 15 August 2025
The matter first came before me on 15 August 2025, which was a date when Mr Brinkman was in Perth and able to attend court.
Mr Brinkman filed evidence of service of the above documents on each of the defendants. The time for filing an appearance to the writ had not yet expired.
The first defendant had not filed an appearance prior to the hearing on 15 August 2025 and did not appear. The second defendant filed an appearance and appeared by counsel, whilst the third defendant filed a conditional appearance on 14 August 2025, and appeared by counsel.
At the appearance on 15 August 2025, I was satisfied as a result of my exchanges with Mr Brinkman that the interlocutory orders he was seeking were a form of freezing order. In this regard, the minute of proposed orders filed by Mr Brinkman on 5 August 2025 sought the following orders:
1.The sum of AUD $1,000,000.00 from the proceeds of sale of Lots 25 and 26, 3 Fairlight Street, Mosman Park WA, currently due to be settled on or about 2 September 2025, be preserved and held in escrow, pending further order of the Court.
2. The above sum is to be:
a)Held in a controlled monies account or solicitor's trust account nominated by the Defendants or their legal representatives;
b)Not disbursed, transferred, or otherwise dealt with by the Defendants or any third party without leave of the Court.
3.The Plaintiff is to provide an Undertaking as to Damages to the Court in the terms dated 5 August 2025.
4.The costs of this application be reserved.
What also became apparent from my review of the documents, and exchanges with Mr Brinkman and the other counsel, was that Mr Brinkman was proceeding on the basis of a misunderstanding as to the ownership status of the Property. That misunderstanding arose as follows.
Mr Brinkman had previously lodged a caveat over the Property to protect his claimed interest in the Property. In due course, at the first defendant's request, the Registrar of Titles had issued Mr Brinkman with a notice pursuant to s 138B of the Transfer of Land Act 1893 (WA). Mr Brinkman then commenced an action in this court to extend the operation of his caveat. That application was heard by Solomon J in March 2025. In the course of those hearings it transpired that the first defendant (who did appear and was represented by counsel) had entered into a contract for sale of the Property at a significantly higher price than that Mr Brinkman had contracted to purchase the Property for. After some consideration, Mr Brinkman chose not to press his claim to extend the caveat, and to instead commence an action against the first defendant for damages.
Mr Brinkman then seems to have become aware that on 2 August 2025, the first defendant was proposing to sell the Property. Details of this proposed sale are contained in Mr Brinkman's affidavit in support of his chamber summons and the affidavit of Mr Mora.
That affidavit evidence included Mr Mora deposing to how he attended at an auction for the sale of the Property on 2 August 2025. At that auction the Property was passed in, but the sellers continued to negotiate.
It was on this basis that Mr Brinkman was seeking his urgent interlocutory orders in the form of a modified freezing order. Mr Brinkman was concerned that the original contract for sale had not proceeded, and he was concerned that the imminent sale of the Property may result in the dissipation of the first defendant's funds, potentially frustrating any future judgment of this court in his favour.
However, at the hearing on 15 August 2025, counsel for the second defendant indicated to the court that a search of the Property with Landgate revealed that the Property had already been sold by the first defendant and was transferred to new owners on 17 June 2025. Accordingly, the auction Mr Mora attended was not a sale by the first defendant, but rather a sale by the new registered proprietor.
In all the circumstances, on 15 August 2025, I decided to adjourn the proceedings for a directions hearing until 1 September 2025 to enable:
(1)Mr Brinkman to undertake further inquiries in relation to the sale of the Property and to put on evidence which supported his claim for freezing orders, in particular evidence to support his assertion that the was a risk that the assets of the first defendant would be dissipated such that any future judgment of this court in his favour may be frustrated, as his affidavit evidence filed to date did not address this issue in sufficient detail;
(2)to enable the second and third defendants to consider their respective positions; and
(3)to provide time for the first defendant to file an appearance and consider its position.
The directions hearing listed for 1 September 2025 was later administratively changed to 5 September 2025.
Second return date - 5 September 2025
In the lead up to the second return date, the following documents were filed by the parties:
(1)affidavit of Mr Brinkman, sworn 17 August 2025, attaching an updated Landgate search for the Property;
(2)fourth affidavit of Mr Brinkman, sworn 19 August 2025;
(3)fifth affidavit of Mr Brinkman, sworn 3 September 2025;
(4)sixth affidavit of Mr Brinkman, sworn 5 September 2025;
(5)affidavit of Andrew Outhwaite, sworn 3 September 2025; and
(6)second defendant's outline of submissions opposing interim relief, dated 4 September 2025.
Mr Brinkman also provided a current ASIC search for the first defendant.
No appearance was filed by the first defendant.
At the directions hearing on 5 September 2025, Mr Brinkman again represented himself and the second and third defendants appeared by counsel. There was no appearance by the first defendant. By the time of this hearing, the third defendant's appearance had become unconditional.
Mr Brinkman also filed evidence of service of my orders dated 15 August 2025 and the orders relisting the directions hearing, on the first defendant.
The further affidavit evidence filed by Mr Brinkman was primarily directed to the following matters:
(1)a current Landgate search for the Property;
(2)the evidentiary basis for Mr Brinkman's claim that the assets of the first defendant might be disposed of, dealt with or diminished in value. In this regard, the affidavit evidence disclosed:
(a)the content of Mr Brinkman's interactions with the first defendant;
(b)the content of Mr Outhwaite's interactions with the first defendant;
(c)the results of a Personal Property Securities Register (PPSR) search for the first defendant, which identified four active security registrations, each over all present and after acquired property of the first defendant. Two of the security registrations are for the second and third defendants;
(d)the results of a Landgate search for the first defendant, which revealed that the first defendant is the registered proprietor of five properties in the same development as the Property - being Lots 13, 14, 17, 19 and 21, 3 Fairlight Street (unsold properties);
(e)evidence that the unsold properties are currently being marketed for sale, and two of the unsold properties are under offer; and
(f)evidence that the unsold properties each of mortgages registered on their certificates of title, and the mortgagees are the second and third defendants.
During the second return date, I asked Mr Brinkman to clarify the interlocutory orders he was seeking. I raised this question as the documents filed by Mr Brinkman appeared to seek different orders to those originally sought in the minute of proposed orders dated 5 August 2025. In particular, in [28] of Mr Brinkman's fifth affidavit, he sought the following orders:
(a)that the Defendants, jointly and severally, be restrained from selling, transferring, or further encumbering Lots 13, 14, 17, 19 and 21 or any other Lots that are unsold without leave of the Court; or alternatively
(b)That upon any sale of these lots, the Defendants, jointly and severally, cause the net proceeds of sale up to the sum of AUD $980,000 be paid into Court or to a controlled monies account to be held pending further order.
In response to these orders, the second defendant filed submissions opposing the application for an injunction or freezing orders. In response, Mr Brinkman had filed his sixth affidavit (which was really in the form of submissions) which asserted that he was not seeking to prevent the sale of the unsold properties.
It became apparent during exchanges with Mr Brinkman that, notwithstanding the orders sought in his fifth affidavit, Mr Brinkman was not in fact seeking any order that prevented the sale of the unsold properties. Rather, Mr Brinkman was seeking orders that the proceeds of the sale of the unsold properties be frozen.
I clarified with Mr Brinkman whether he was seeking orders that the net proceeds of the sale of the unsold properties, after the second and the third defendants had been paid their entitlements, were frozen, or whether he was seeking to prevent the second and third defendants from being paid out their entitlements under their security documents.
Mr Brinkman's primary position was to prevent the distribution of all of the proceeds of the sale of the unsold properties, including to the second and the third defendants, or in the alternative he was seeking to freeze the net proceeds. Mr Brinkman was not aware of how much was owed by the first defendant to the second and third defendants.
The position of the second and third defendants was that if Mr Brinkman was only seeking to freeze the assets of the first defendant, including only the net proceeds of the sale of the unsold properties, then they did not seek to be heard on the application for freezing orders, save as to the precise terms of the order so as to determine whether the orders may, inadvertently, freeze their clients' assets or moneys owed.
However, if Mr Brinkman was seeking to prevent the sale of the unsold properties, or prevent the payment of their clients' entitlements under their security documents, then they did seek to be heard and did oppose the application.
At the conclusion of the directions hearing, I indicated to the parties that I would be assisted by each of the defendants filing an affidavit as to the current amounts owing to them by the first defendant under the terms of their security documents.
I made orders for the filing of this information and relisted the matter for 11 September 2025, and I indicated that I would make a decision at the conclusion of that hearing as to Mr Brinkman's application for freezing orders.
Third return date - 11 September 2025
Prior to the third return date, each of the second and third defendants filed affidavit evidence as ordered, which provides as follows:
(1)the second defendant holds a general security over all property of the first defendant, and is the first ranking mortgagee in respect of the unsold properties. Under the terms of the security, the second defendant is owed approximately $2,635,638 as at 8 September 2025, excluding legal costs and other expenses. Interest is accruing at a rate of approximately $1,036 per day; and
(2)the third defendant's mortgage secures the obligations of the first defendant pursuant to the underlying loan agreement between the two with respect to the unsold properties. Under the terms of the loan agreement, the amount currently due and payable by the first defendant (inclusive of interest) is $10,641,812.84. As at 1 October 2025, the interest payable will increase by a further 5%.
Mr Brinkman then filed reply submissions to those affidavits, submitting that:
(1)the affidavits did not comply with my orders of 5 September 2025;
(2)no weight should be given to the payout figures provided because amongst other matters, no supporting documents (including loan agreements) are provided; there is no breakdown as to how the figures have been calculated; the figures do not seem plausible when compared to what Mr Brinkman says is the sale prices or estimated sale prices and Town of Mosman documents regarding construction costs; one of the affidavits refers to 'belief'; the affidavits do not detail the effect of repayments from sales of other lots in the development; and
(3)in those circumstances, Mr Brinkman submits that the court should now take the stronger course of ordering that the full balance of proceeds be preserved in escrow as opposed to the net proceeds.
Mr Brinkman and counsel for the first and second defendants appeared at the third return date. There was no appearance by the first defendant. Each made oral submissions. Mr Brinkman's oral submissions were generally consistent with his written submissions. Mr Brinkman clarified that he was seeking a freezing order over the proceeds of the sale of the unsold properties that would go to either of the defendants.
Mr Brinkman accepted that third parties should be paid out first, for example, the settlement agent and the selling agent. Mr Brinkman emphasised the prejudice to him if the freezing orders were not made and said there was no prejudice to either of the defendants. The second and third defendants also made submissions. Each submitted that their affidavit complied with the orders that were made on 5 September 2025 and were consistent with the request from the court in exchanges with counsel.
Each of the second and third defendants submitted that on the basis of the amounts owing by the first defendant, there was no utility in granting a freezing order over the first defendant's share of the proceeds. To the extent Mr Brinkman was now seeking a freezing order in relation to the share of the proceeds of the sale of the unsold properties that would go to the second and third defendants, then Mr Brinkman did not meet the criteria for establishing the freezing order as against the second or third defendants.
In particular, Mr Brinkman was unable to demonstrate that there would be any dissipation of the assets by the second or third defendants such that there was a prospect that any prospective judgment against either would be unsatisfied.
Legal principles
Mr Brinkman seeks a freezing order made pursuant to O 52A r 5 of the RSC, which relevantly provides as follows:
(1)This rule applies if -
…
(b)an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in -
(i)the Court; …
…
(4)The Court may make a freezing order or an ancillary order or both against a … prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a … prospective judgment will be wholly or partly unsatisfied because any of the following might occur -
(a)the … prospective judgment debtor … absconds; or
(b)the assets of the … prospective judgment debtor … are -
(i)removed from Australia or from a place inside or outside Australia; or
(ii)disposed of, dealt with or diminished in value.
The legal principles relevant to the grant of freezing orders are usefully set out in the decisions of Cardile v LED Builders Pty Ltd,[1] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq)[2] and Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd.[3] By way of summary, the key principles from these authorities are:
[1] Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [25] ‑ [53].
[2] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [2018] WASCA 174; (2018) 53 WAR 201 [39] ‑ [61].
[3] Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188 [129] ‑ [144].
(1)the court has inherent or implied power to make a freezing order to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction. The purpose of a freezing order is to preserve the efficacy of the execution which would lie against an actual or prospective judgment debtor. The object is to protect the integrity of the court's processes once they are set in motion;
(2)the object of a freezing order is not to provide security to a plaintiff;
(3)a freezing order is a drastic remedy which should not be granted lightly;
(4)in order that a freezing order be made, a plaintiff must show, relevantly, a good arguable case that it has an accrued or prospective cause of action justiciable in the court. A good arguable case will be, 'a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success'. The test has also been described as being a case which is reasonably arguable on legal and factual matters;
(5)a plaintiff must also show that:
(a)the assets of the prospective judgment debtor might be disposed of, dealt with or diminished in value;
(b)there is a danger that the prospective judgment will be wholly or partly unsatisfied; and
(c)that danger arises because the assets of the prospective judgment debtor are disposed of, dealt with or diminished in value;
(6)the risk of danger must be real or substantial, as opposed to a remote, speculative or theoretical possibility. The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities, but it is not necessary to establish that it is more probable than not that judgment will be unsatisfied unless a freezing order is made. Ultimately, it is a question for evaluation by the issuing court as to whether the degree of the danger or risk is sufficient to justify an order in the terms which the court is asked to make;
(7)it is not necessary that the respondent must act for the purpose of avoiding judgment before a freezing order can be granted; and
(8)the strength of the plaintiff's case, the danger of frustration of a prospective judgment, the balance of convenience and any other relevant discretionary factors are all considered together in the exercise of the discretion.
Jurisdictional questions
Good arguable case
Given the length of Mr Brinkman's statement of claim, and the associated seven volumes of affidavit evidence in support, it is not possible to summarise all aspects of Mr Brinkman's case or the evidence in support, and it is not necessary to do so.
I am satisfied from my review of the statement of claim and affidavit evidence filed, including the transcripts of the caveat proceedings before Solomon J, that in all the circumstances, Mr Brinkman has demonstrated that he has a good arguable case in relation to his allegations that the first defendant breached the contract for sale. In this regard, as outlined above in my discussion of the legal principles, the threshold for meeting this test is low.
In so finding I, of course, do not make any final or conclusive finding as to whether Mr Brinkman will ultimately be successful or not in the proceeding. I observe that my findings for the purposes of this interlocutory application are based on the affidavit evidence of Mr Brinkman only, as the first defendant has not filed an appearance or appeared at any hearings to date.
It is difficult for me to form an assessment of the strength of Mr Brinkman's case based only on the material he has filed, but doing the best I can, I do not consider Mr Brinkman's case can be described as weak. Rather, I consider it can be described as reasonable.
However, having reviewed the statement of claim and the filed material, I am not satisfied in all the circumstances that Mr Brinkman has demonstrated that he has a good arguable case as against the second defendant or the third defendant.
It is difficult to discern from the material before the court the precise cause of action as against the second and third defendants. At its highest, it appears to be that the second defendant arranged for the engagement of a project manager to attempt to progress the development. Mr Brinkman's materials refer to each of the second and the third defendants being put on notice by him that he claimed a legal or equitable interest in the Property. However, there is no allegation that the second or third defendants themselves breached the contract, and nor could there be as they were not parties to the contract. There is also no allegation that the second and third defendants did not, themselves, have an interest in the Property, being their respective interests as registered mortgagees. At best, the case appears to be that the second and third defendants were paid, from the proceeds of the settlement of the Property, amounts owing to them under their respective security documents.
Assets might be disposed of dealt with or diminished in value
Mr Brinkman's case on this aspect of the second jurisdictional question is put on the basis that the first defendant is in, and has been in for some time, financial difficulty. Mr Brinkman relies on his various email communications with the first defendant and the project manager engaged by the second defendant. Mr Brinkman also relies on the affidavit of Mr Outhwaite in which Mr Outhwaite deposes to his experiences and conversations with representatives of the first defendant. Mr Brinkman also relies upon his searches of the PPSR in this regard.
In terms of assets, the only evidence as to any assets held by the first defendant are the unsold properties, and each of those are being advertised for sale, with two properties being under offer.
Having considered all of the evidence before me, I am satisfied that Mr Brinkman has demonstrated that the assets of the first defendant might be disposed of, dealt with or diminished in value.
The evidence before me demonstrates that the first defendant owes a significant amount of money to the second and third defendants, and also that the properties that it does own are all currently for sale, with two under offer, and therefore in the process of being disposed of.
However, Mr Brinkman has not put on any evidence suggesting that the assets of the second or third defendants might be disposed of, dealt with or diminished in value, or any evidence to suggest that if successful against either defendant, that they will be unable to satisfy any judgment. I therefore do not find that Mr Brinkman has established this aspect of the second jurisdictional question.
Danger that the prospective judgment will be wholly or partially unsatisfied
I only have limited information before me as to the total value of the first defendant's assets. However, that is, in part, due to the non‑attendance by the first defendant. Mr Brinkman has provided what he can. Mr Brinkman has served the first defendant with all court documents at its registered office, and the first defendant has not filed an appearance or attended any of the return dates.
The assets which Mr Brinkman has been able to identify are the unsold properties. I do not have a current valuation of the unsold properties. The marketing material provided to Mr Brinkman in 2021 had the properties in the development being advertised for sale for amounts in the range of $399,000 to $725,000. Mr Brinkman's two properties were for sale at amounts significantly higher than these properties, being representative of these two properties being the penthouse units.
The affidavit evidence filed by the second and third defendants indicates that the amount owed by the first defendant on its securities is in the vicinity of $13.2 million. The second and third defendants have registered mortgages. I do not accept Mr Brinkman's criticisms of the affidavit evidence filed by the second and third defendants.
The affidavit evidence complies with the order I made and is consistent with the exchanges with counsel on the second return date. This is an interlocutory application and not a trial. Therefore, it is not necessary for the defendants to file all of the documents they might file at trial to prove their securities and amount owing. There is no reason, based on the evidence before me, to go behind the facts disposed of in the affidavits filed by the second and third defendants.
Mr Brinkman's submission that the figures in the affidavits must be wrong is based on his assumptions, and not evidence, about a number of factors including the sale prices and the total costs. It is also based on the Town of Mosman Park documents. It is somewhat unclear, looking at those documents, whether the figures being referred to, which are referring to construction costs, include all of the construction costs incurred, or whether they include figures going to any other non‑construction costs incurred by the first defendant, including costs of financing, or whether the securities include other debts that were owed by the first defendant.
The short point is that the submissions call for speculation where there is insufficient evidence for the court to speculate. To the extent Mr Brinkman's submissions suggest that there is some sort of deliberate intention to identify an incorrect figure, or that the incorrect figure is the result of some inappropriate conduct, there is insufficient evidence for me to draw that conclusion and I do not accept that submission.
Accordingly, even making an allowance for an increase in the sale prices of the unsold properties to date, the evidence is suggestive that the amounts owing to the second and third defendants will likely exceed the value of the unsold properties.
A real question therefore arises as to whether Mr Brinkman can satisfy me that there is a danger that a prospective judgment of this court will be wholly or partially unsatisfied because assets of the first defendant might be removed or otherwise disposed of, dealt with or diminished in value. Rather, the evidence is suggestive of a danger that a prospective judgment of this court could be wholly or partially unsatisfied because other money is owed by the first defendant and would need to be paid to the second and third defendants in priority to Mr Brinkman in any event.
Further, there is no evidence before me that there is any danger that a prospective judgment of this court will be wholly or partially unsatisfied because assets of the second or third defendants might be removed or otherwise disposed of, dealt with or diminished in value.
Accordingly, I do not consider that the plaintiff has discharged its onus of proof in relation to this aspect of the second jurisdictional question.
Discretionary considerations
I am also of the view that even if Mr Brinkman were to be able to satisfy me of each of the jurisdictional questions, I would not exercise my discretion to grant the freezing orders on the basis of the information I currently have before me. The following factors taken together are relevant to my decision in this regard.
First, Mr Brinkman is seeking freezing orders against all three defendants. While Mr Brinkman has been able to satisfy me that he has a reasonable cause of action against the first defendant, he has not been able to satisfy me of the remaining jurisdictional issues against the first defendant. At its heart, a real issue arises here as to whether it is the disposal of assets that will result in any prospective judgment being unsatisfied by the first defendant, as opposed to the first defendant simply having insufficient funds to pay all the money that he is owing.
Secondly, Mr Brinkman has not been able to satisfy me of any of the jurisdictional questions in relation to the second and third defendants.
Thirdly, given the amount owing by the first defendant to the second and third defendants, there is presently no real utility in granting the freezing orders. This is because on the basis of the evidence before the court, it is not clear there would be any net proceeds that would be available to satisfy any prospective judgment of this court that could be the subject of a freezing order against the first defendant.
Fourthly, Mr Brinkman claims that all three defendants are jointly and severally liable for the amounts he claims are owing. In these circumstances, given Mr Brinkman has failed to satisfy me of the jurisdictional questions in relation to the second and third defendants, Mr Brinkman has not explained why this means there is a real possibility that a judgment would not be satisfied. However, in relation to this point, I have taken into account that Mr Brinkman is not legally represented and it may be that liability, if established, is not joint and several.
Fifthly, in considering the various discretionary factors, I have also had regard to the legal principles set out earlier in my reasons, including that the object of a freezing order is not to provide security to a plaintiff and that a freezing order is a drastic remedy which should not be granted lightly.
Sixthly, there is presently no draft order before me that would address how the proceeds of the sale of the unsold properties are proposed to be dealt with over the course of the sale of the five properties.Given the sale prices are unclear, there remains a real possibility that the amount Mr Brinkman wishes to freeze may involve the sale of more than one property. It is not the role of the court to attempt to craft such an order, but in any event, I am concerned that there may be difficulties in doing so in a manner that still permits the sale of the properties and does not leave third parties at risk of inadvertently failing to comply with the orders and therefore holding up the sales.
Seventhly, in considering the various discretionary factors, I have not overlooked the undertaking provided by Mr Brinkman. However, I have some concerns about the strength of that undertaking based on the evidence currently before the court. Mr Brinkman is not currently living in the jurisdiction and is travelling between the Philippines and Western Australia. Mr Brinkman has indicated he does not own a residence in Western Australia at present, given the difficulties that occurred with this contract. While there has been a reference from the bar table to Mr Brinkman owning an engineering company, I do not have any evidence in this regard and therefore the evidence before the court does not clearly demonstrate the strength of the undertaking.
Finally, I have considered the potential prejudice to Mr Brinkman if the freezing orders are not made. However, that prejudice must be weighed against the interests of all parties, including any future purchases of the unsold properties, and, in light of Mr Brinkman being unable to satisfy me of all of the jurisdictional requirements.
Conclusion
Accordingly, for all of these reasons, I decline to grant the freezing orders sought by Mr Brinkman.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Hon Justice Seaward
26 SEPTEMBER 2025
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