Woodruff v Manda Capital Holdings Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0107

JOSEPHINE ELIZABETH WOODRUFF	Applicant
v
MANDA CAPITAL HOLDINGS PTY LTD (ACN 168 795 088)	Respondent

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JUDGES:	McLEISH, WALKER and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2025
DATE OF JUDGMENT:	8 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 164
JUDGMENT APPEALED FROM:	[2024] VSC 495 (Connock J)

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PRACTICE AND PROCEDURE – Freezing order – Whether good arguable case – Applicable principles – Whether judge erred in applying s 1274B(2) of the Corporations Act 2001 (Cth) where evidence to the contrary of ASIC documents tendered – Whether judge impermissibly elevated ASIC documents to ‘prima facie evidence unless proven to the contrary’ – Whether judge impermissibly shifted burden of proof – Judge appropriately weighed relevant evidence in concluding good arguable case – Leave to appeal granted – Appeal dismissed.

Supreme Court (General Civil Procedure) Rules 2015 ord 37A; Corporations Act 2001 (Cth), ss 231, 1274B(2).

Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co (‘The Niedersachsen’) [1983] 1 WLR 1412; [1984] 1 All ER 398, applied; Rozenblit v Vainer [2019] VSCA 164, considered; Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41, considered.

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Counsel
Applicant:		Mr C G Juebner KC with Mr L M Stanistreet
Respondent:		Mr S D Hay KC with Mr I Hristovski
Solicitors
Applicant:	Mr G Pharmacis, Pharmacis Canning
Respondent:	Mr H Chait, Meerkin & Apel Lawyers

McLEISH JA
WALKER JA
LYONS JA:

Introduction

This is an application for leave to appeal from a freezing order made against the applicant, Ms Woodruff, in favour of the respondent, Manda Capital Holdings Pty Ltd. The freezing order restrained the applicant from dealing with her 70 shares in Point Bay Developments Pty Ltd (‘PB Developments’ and the ‘70 PB shares’), a company controlled by her domestic partner, Chris Pappas.
In making the freezing order, the judge concluded that there was a good arguable case that the 70 PB shares were subject to a guarantee charge given by Mr Pappas in favour of the respondent.
Central to the judge’s conclusion that there was a good arguable case were two forms lodged electronically with the Australian Securities and Investments Commission (‘ASIC’) by PB Developments, acting through its accountant, Mr Graeme Gillard (the ‘Form 484s’). The first Form 484 notified ASIC of a transfer of the 70 PB shares from the applicant to Mr Pappas. It was lodged at 6.18 pm on 25 February 2020. The second Form 484 notified ASIC of a transfer of the 70 PB shares from Mr Pappas back to the applicant. It was lodged on the same day, at 6.33 pm. Each Form 484 contained a statement that the information was certified as true and complete by ‘Chris Pappas’, although the forms were not signed.
The applicant now seeks leave to appeal the judge’s decision. In substance, the applicant contended that the judge erred in concluding there was a good arguable case which entitled the respondent to relief against her for the following reasons:
(a)the judge misapplied s 1274B(2) of the Corporations Act 2001 (Cth) (‘the Act’) by:
(i)wrongly elevating the evidentiary status of the two Form 484s (proposed ground 1(a)(i)); and
(ii)shifting the burden on the freezing order application by requiring the applicant to disprove that the respondent had a good arguable case (proposed grounds 1(a)(ii) and (iii)); and
(b)further and relatedly, as a result of the misapplication of s 1274B(2) of the Act, the judge’s conclusion that there was a good arguable case was against the weight of the evidence (proposed ground 1(b)).
While there were two other proposed grounds of appeal, in oral argument counsel for the applicant accepted that proposed ground 1, which turned on the misapplication of s 1274B(2) of the Act, was the determinative ground and proposed grounds 2 and 3 could only succeed if the applicant were successful on proposed ground 1. As a result, we will proceed on this basis.
For the reasons that follow, we would grant leave to appeal but dismiss the appeal.

Relevant facts

Mr Pappas is a property developer. Relevantly, Mr Pappas is, and has been since 21 November 2018, the sole director of PB Developments, formerly known as Austpro Australia Pty Ltd.
By an agreement dated 12 November 2018, the respondent agreed to lend the principal amount of $18 million to Austpro Management Services Pty Ltd (‘Austpro Management’ which appears to be another entity related to Mr Pappas) to fund the development of an apartment building in Bunbury, Western Australia (the ‘Loan Agreement’). On the same day, Mr Pappas and a related trustee company (‘Statemark’) executed a guarantee and indemnity in support of the Loan Agreement (the ‘Guarantee’). Relevantly under the Guarantee, Mr Pappas agreed to charge in favour of the respondent his right, title and interest in any personal property he then owned or which he acquired after entering into the Guarantee (the ‘Guarantee charge’).[1]
[1]Clause 13 of the Guarantee. Clause 1.2 of the Guarantee defines ‘personal property’ as having the same meaning as in the Personal Property Securities Act 2009 (Cth).
On 21 January 2020, the respondent issued notices of default and demand on Austpro Management as borrower, and on Statemark and Mr Pappas as guarantors, demanding the payment of all moneys then due and owing under the Loan Agreement and Guarantee in the sum of $18,106,673.98. On 7 February 2020, the respondent sent a further notice of default and demand in the sum of $18,290,878.99.
As to the ownership of the 70 PB shares, on 11 December 2019, Statemark transferred all the 100 issued shares in PB Developments to the applicant for $1 per share (’11 December 2019 share transfer’).
On 25 February 2020, two forms (each being an ASIC Form 484 entitled ‘Change to company details’) were lodged with ASIC on behalf of PB Developments. The first Form 484 was lodged at 6.18 pm and recorded that:
(a)it was lodged by Graeme Gillard, an ASIC registered agent on behalf of PB Developments;
(b)there was a change in the shareholding of the 70 PB shares on 25 February 2020 from the applicant to Mr Pappas for $1 per share; and
(c)Mr Pappas as director of PB Developments certified that the information in this form was ‘true and complete’.
The second Form 484 was lodged at 6.33 pm and recorded that:
(a)it was lodged by Graeme Gillard, an ASIC registered agent on behalf of PB Developments;
(b)there was a change in the shareholding of the 70 PB shares on 25 February 2020 from Mr Pappas to the applicant for $1 per share; and
(c)Mr Pappas certified that the information in this form was ‘true and complete’.
While the PB Developments’ register of members (the ‘PB members’ register’) records the 11 December 2019 share transfer, it does not record or refer to any transfer of shares after that time.
Relevantly, the constitution of PB Developments provides that:
(a)a transfer of shares ‘may be by means of a written instrument of transfer in any usual form’ which ‘should be signed by the transferor and the transferee’; and
(b)upon delivery of such written instrument of transfer together with the certificate of shares to which it relates, to the registered office of the company, the company shall, subject to the powers of the directors, ‘register the transferee as a Member’.
In July 2024, the respondent applied for a freezing order pursuant to ord 37A of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) against the applicant based on a number of different claims. On 16 July 2024, the Court ordered that the applicant be joined as the third defendant to the proceeding. The freezing order application was heard on 21 August 2024. In support of the application, the respondent relied upon an affidavit of its director, Mr Czarny, and an affidavit of its solicitor, Mr Chait. The applicant relied upon:
(a)her affidavit, sworn 30 July 2024;
(b)an affidavit of Mr Gillard, the accountant for Mr Pappas and his various entities, sworn 30 July 2024;
(c)an affidavit of Mr Pappas, sworn 1 August 2024; and
(d)an affidavit of Mr Pharmacis, the applicant’s solicitor, sworn 13 August 2024.
There was limited evidence in those affidavits as to the circumstances relating to the creation and lodgement of the Form 484s. The applicant did not address the Form 484s at all in her affidavit. Mr Gillard deposed that:
(a)he has no recollection of any specific involvement with the lodgement of the Form 484s or which member of his staff performed this ‘administrative task’;
(b)he has no recollection as to why it appears the 70 PB shares were transferred from the applicant to Mr Pappas and back from Mr Pappas to the applicant on 25 February 2020;
(c)‘based on his review of the transfers on 20 [sic] February 2020’ they are consistent with the transfers being effected in error; and
(d)he can think of no reason why he would have advised that a transfer be made and reversed on the same day.
Notwithstanding the matters deposed to by Mr Gillard in relation to the Form 484s, Mr Pappas did not address in his affidavit the circumstances relating to the creation and lodgement of the Form 484s. However, the applicant relied upon Mr Pappas’ evidence that:
(a)he had been involved in property development in various projects over 50 years;
(b)it was his practice to seek legal and accounting advice including ‘to ensure my family’s assets are protected as best as legally possible, given the inherent risks in property development’ and to rely on that advice; and
(c)for about 20 years, Mr Pappas used the services of Mr Gillard for most of the accounting needs of his business.
Mr Pharmacis gave evidence that he had been informed by Mr Pappas that a number of business records of PB Developments had been stolen from Mr Pappas’ home and from storage at another location and there was a proceeding on foot in relation to these matters. Mr Pharmacis also gave evidence that he had been informed by Mr Pappas that ‘there have been no share transfers in PB Developments since 11 December 2019’.

The judge’s reasons

In detailed reasons, the judge set out the relevant facts,[2] the submissions of the parties[3] and the relevant legal principles.[4] The judge referred to the ‘drastic’ nature of a freezing order with the resultant need for the Court to exercise a ‘high degree of caution’ before interfering with the ability of a party to deal with that party’s assets.[5] The judge adopted the orthodox requirement, incorporated in r 37A.05(1)(b) of the Rules, that the party seeking a freezing order must establish a ‘good arguable case’ against the prospective judgment debtor or third party.
[2]Reasons, [8]–[47].
[3]Ibid [48]–[96].
[4]Ibid [97]–[110].
[5]Ibid [99], [102], citing Zhen v Mo & Ors [2008] VSC 300, [22]–[30] (Forrest J) and Rozenblit v Vainer [2019] VSCA 164, [19] (McLeish and Niall JJA).
As to the merits, the judge rejected a number of the claims asserted by the respondent to give rise to a good arguable case. However, the judge concluded that there was a good arguable case that the 70 PB shares were transferred by the applicant to Mr Pappas and then transferred back to her as evidenced by the Form 484s.[6] This is the conclusion which the applicant challenged in this application.
[6]Reasons, [133]–[143].
In reaching that conclusion, the judge referred to the Form 484s in detail, noting:
(a)the substance of what was recorded in them, ie a change in ownership or ‘transfer’ of the 70 PB shares from the applicant to Mr Pappas recorded in the first Form 484 and the retransfer of those shares recorded in the second Form 484;[7]
(b)the fact that the Form 484s were lodged within 15 minutes of each other on the same day;[8] and
(c)each of the Form 484s recorded that Mr Pappas, in his capacity as director of PB Developments, certified the information in each form to be ‘true and complete’.[9]
[7]Ibid [134].
[8]Ibid.
[9]Ibid [135].
Relevantly, the judge stated:[10]
139… [Section] 1274B(2) of the Act gives prima facie evidence status to the matters referred to in the Form 484s, which includes the fact of the 25 February 2020 transfer from Mr Pappas Senior to Ms Woodruff.[11]
140… I am not satisfied on the evidence before me that the prima facie evidentiary status (or other evidentiary value) of the Form 484s has been displaced by Ms Woodruff (or anyone else) proving to the contrary.
[10]Ibid [139]–[140] (footnote in original).
[11]And the documents stand as evidence on the application in any event, even if s 1274B(2) of the Act did not have that operation or is put to one side.
We pause to note that s 1274B(2) of the Corporations Act 2001 (Cth) provides:
Use, in court proceedings, of information from ASIC's national database
…
(2)In a proceeding in a court, a writing that purports to have been prepared by ASIC is admissible as prima facie evidence of the matters stated in so much of the writing as sets out what purports to be information obtained by ASIC, by using a data processor, from the national database. In other words, the writing is proof of such a matter in the absence of evidence to the contrary.
Before the judge and this Court, the applicant submitted that there was evidence to the contrary of the matters in the first and second Form 484s. In summary, the applicant submitted that the first Form 484 was completed and lodged with ASIC on 25 February 2020 ‘in error’, and the second Form 484 was executed and filed to correct that ‘error’. The applicant relied not only on the timing of the lodgement of the Form 484s but also upon:
(a)the PB members’ register which showed that on 11 December 2019, all 100 shares in PB Developments were transferred by Statemark to the applicant, and thereafter, no share transfers in PB Developments occurred;
(b)the 11 December 2019 share transfer form which was in evidence; and
(c)the affidavits of Mr Pappas, Mr Gillard and Mr Pharmacis described in [16]–[18] above.
The judge considered the substance of this evidence in his reasons.
The judge noted that neither the applicant nor Mr Pappas, who were the parties to the transfers evidenced by the Form 484s addressed the circumstances concerning the creation or lodgement of those forms in their affidavits.[12]
[12]Reasons, [140].
The judge stated that, while reliance was placed on the PB members’ register and Mr Pharmacis’ evidence that he was informed by Mr Pappas that there were no transfers since the 11 December 2019 share transfer, this was inconsistent with the Form 484s themselves.[13] The judge observed that there were four documents lodged with ASIC on different dates that recorded transfers of various numbers of PB Developments shares to and from the applicant, all of which were variously inconsistent with the share transfer form of 11 December 2019.[14] This finding was not challenged in this application. In this context, the judge referred to Mr Pappas’ evidence that he acts and relies upon the advice given by lawyers and accountants regarding asset protection.[15]
[13]Ibid [141].
[14]Ibid. This included a Form 484 lodged by Mr Gillard following the 11 December 2019 share transfer which recorded that Statemark only transferred 70 PB shares and retained 30 PB shares.
[15]Ibid.

The judge also noted that the copy of the PB members’ register exhibited by Mr Pharmacis was in part in a different handwritten form to the earlier transfers in that register, and did not record the relevant share certificate number.[16]
[16]Ibid [142].
Finally, the judge referred to the evidence of Mr Gillard. He stated:
I also do not accept that the evidence of Mr Gillard regarding the [Form 484s] or the timing of the lodgement of them, operates, alone or in combination with any other evidence, to displace the evidentiary value of the [Form 484s]. Mr Gillard positively stated that he did not have any recollection as to why it appears that the 70 PB shares were transferred, and that he does not know who was involved in his office in lodging these forms. He then speculates regarding the prospect of the forms having been lodged in error ‘based on his review of the transfers’ ...[17]
[17]Ibid [143].
There is no challenge to these conclusions concerning Mr Gillard’s evidence.
The judge concluded:
However, on the evidence before me, the documents record, and are evidence for present purposes, of the existence of the transfers to which they refer and record. Whilst the ultimate determination of the facts will necessarily be a matter for trial, for present purposes the documents are evidence appropriately to be taken into account and weighed in the context of the other evidence, as I have done.[18]
[18]Ibid.
The judge went on to find, as a consequence, that there was a good arguable case that the 70 PB shares were subject to the Guarantee charge and that Mr Pappas transferred those shares to the applicant in breach of that charge, with the result that the applicant may be required to disgorge or relinquish the 70 PB shares.[19]
[19]Ibid [144]–[146]. The judge also concluded that the applicant may be required to disgorge or relinquish the 70 PB shares by virtue of the Personal Property Securities Act 2009 (Cth): at [147]–[148]. It is only if the judge erred in finding that there was a good arguable case that the transfers occurred on 25 February 2020 that the applicant seeks to challenge the consequent conclusions.
Finally, the judge concluded that there was a risk that the applicant might dissipate the assets unless restrained, and the balance of convenience favoured the granting of a freezing order.[20] There is no challenge to these conclusions.
[20]Ibid [160].
As a result of these findings, on 21 August 2024, the judge made orders, inter alia, that subject to further order the applicant ‘be and hereby is restrained from disposing of, dealing with, transferring, encumbering or in any way diminishing the value of’ the 70 PB shares.

Proposed grounds of appeal

The application for leave to appeal contained three proposed grounds of appeal. As noted in [5] above, counsel for the applicant accepted that proposed grounds 2 and 3 could only succeed if the applicant were successful on proposed ground 1. It follows that if the applicant is not successful on proposed ground 1, it is unnecessary to address the other proposed grounds. We will proceed on that basis.
Proposed ground 1 (as amended) was in the following terms:
(1)The learned judge erred in holding (specifically at [J137] and [J148]) that the plaintiff demonstrated a good arguable case that the 70 shares the subject of the 25 February 2020 transfer from Mr Pappas Senior (the first defendant) to the [sic] Mrs Woodruff (the applicant) were subject to the Guarantee Charge at the time of the membership change recorded in the Form 484 (Good Arguable Case Holding) by reason of the following:
(a)the learned judge misapplied s 1274B(2) of the Corporations Act 2001:
(i)by attributing prima facie evidence status to the evidence of matters referred to in the Form 484s (at [J139]) when it ‘is of lesser effect than a prima facie evidence provision’ (Barboutis v The Kart Centre Pty Ltd [No 2] [2020] WASCA 41 at [44] (Buss P, Mitchell and Vaughan JJA));
(ii)by determining (at [J140]) that the prima facie evidentiary status (or other evidentiary value) of the Form 484s had not been displaced by proof to the contrary in circumstance where ‘the relevant question is whether there is evidence – not proof – to the contrary’ (Barboutis at [46]);
(iii)by determining (at [J143]) that the evidentiary value of the Forms 484 had not been displaced;
(b)the Good Arguable Case Holding was against the weight of the evidence, upon the proper application of s 1274B(2) of the Corporations Act 2001.

This Court may only grant leave to appeal if the proposed appeal has real (as opposed to fanciful) prospects of success.[21] Further, because the subject matter of this application relates to a matter of practice and procedure, the applicant must show that substantial injustice will be caused if the decision below is allowed to stand.[22] In this case, we are satisfied that the substantial injustice threshold has been met, given the drastic nature of freezing orders in general, and the nature of this freezing order against the applicant.
[21]Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA).
[22]Molonglo Group (Australia) Pty v Cahill [2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA).

The applicant’s submissions

The applicant contended that the judge ‘erroneously elevated’ the prima facie evidentiary status of the Form 484s by misapplying s 1274B(2) of the Act.
To support this contention, the applicant relied upon the decision of the Western Australian Court of Appeal in Barboutis v The Kart Centre Pty Ltd [No 2] (‘Barboutis’).[23] We pause to note that the judge was not referred to the decision in Barboutis.
[23][2020] WASCA 41 (Buss P, Mitchell and Vaughan JJA) (‘Barboutis’).
In Barboutis, the Court was considering the operation of s 1274B(2) of the Act in the context of records produced by ASIC which recorded that Nicholas Barboutis ceased to be a director of the relevant company on 12 December 2016 and that his father, Mr Barboutis, then became a director. In that case, counsel for the appellants contended that s 1274B(2) ‘effectively provided a “switching” of the onus putting the responding party to proof’.[24] The Court disagreed, stating:[25]
The type of provision in s 1274B(2) — providing for proof in the absence of evidence to the contrary — is of lesser effect than a prima facie evidence provision[26] or a provision that a fact is taken to be established unless the contrary is proved.[27]
So understood s 1274B(2) does not have the significance attributed to it in the appellants' written and oral submissions. The ASIC searches are not prima facie evidence unless proven to the contrary. Rather, the effect of s 1274B(2) is that the ASIC searches are prima facie evidence of Nicholas Barboutis ceasing to be a director on 12 December 2016; and Mr Barboutis being appointed as a director on that date. The court is entitled to act on the prima facie evidence as proof in the absence of evidence to the contrary.
Accordingly, the relevant question is whether there is evidence — not proof — to the contrary.
If there is evidence to the contrary the prima facie proof made available by s 1274B(2) yields by operation of the provision. In other words, on evidence being adduced that is to the contrary of the matter stated in the ASIC search extract, the mechanism of statutory proof as facilitated by s 1274B(2) ceases to have effect. The fact in issue — here the resignation and appointment — must then be proven in the usual way. The party bearing the onus of proof must prove the disputed fact; and the court must determine, on the balance of probabilities in the ordinary way, whether the matter so stated is the fact.
[24]Ibid [42] (Buss P, Mitchell and Vaughan JJA).
[25]Ibid [44]–[47] (Buss P, Mitchell and Vaughan JJA) (original emphasis), followed in Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd [2023] FCAFC 30, [58] (Markovic, Colvin and Thawley JJ).
[26]See, eg, the Act s 1305(1).
[27]See, eg, the Act s 251A(6).
The applicant contended that the effect of the decision in Barboutis is that, if there is any evidence to the contrary before the court, the special or elevated evidential status of the relevant ASIC document created by s 1274B(2) is ‘neutralised’.
The applicant contended that the judge’s analysis was contrary to Barboutis because the judge gave the Form 484s special or elevated evidentiary status. The applicant submitted that this was evident from [139] and the following passages of the judge’s reasons:
140… I am not satisfied on the evidence before me that the prima facie evidentiary status (or other evidentiary value) of the Form 484s has been displaced by Ms Woodruff (or anyone else) proving to the contrary. …
…
143 I also do not accept that the evidence of Mr Gillard regarding the [Form 484s], or the timing and lodgement of them, operates, alone or in combination with any other evidence, to displace the evidentiary value of the [Form 484s].[28]
[28]Reasons, [140] and [143] (emphasis added).
The applicant submitted that the use of the verb ‘displace’ and the expression ‘proving to the contrary’ indicated the special elevated status accorded to the Form 484s by the judge. Further and relatedly, the judge’s approach had the effect of requiring the applicant to ‘disprove’ the transfers recorded in the Form 484s, thereby shifting the burden of proof to the applicant, which was an error of principle.
The applicant contended there was evidence to the contrary which ‘neutralised’ s 1274B(2) of the Act. The applicant relied upon the evidence set out in [24] above. The applicant also relied upon the inherent improbability that Mr Pappas, the sole director of PB Developments, would have given instructions to effect the two alleged transfers of shares in that company on 25 February 2020, given:
(a)the timing of the lodgement of the Form 484s, being 15 minutes apart;
(b)Mr Pappas’ evidence that in his 50-year career in property development he sought legal and accounting advice to ensure his family’s assets were ‘protected as best as is legally possible, given the inherent risks in property development’; and
(c)at the time the Form 484s were lodged, Mr Pappas had been served with notices of default and demand under the Guarantee, seeking payment of an amount of approximately $18.29 million.
As to the significance of the Form 484s, the applicant referred to the decision of Meek J in Green v Green[29] to emphasise that:
(a)the purpose of Form 484 is to notify a corporate change, not to create or effect a change; and
(b)while such documents might provide some evidence of the underlying transfer, they are not the means by which that event is established.
[29][2024] NSWSC 1442 [28] (Meek J).
Before this Court, the applicant accepted that the Form 484s constituted admissible evidence that the judge was entitled to take into account as some evidence that a transfer took place in weighing all the other evidence in deciding whether there was a good arguable case that the 70 PB shares were transferred, and so belonged to Mr Pappas for a period of time.
In summary, the applicant contended that the judge erred by misapplying s 1274B(2) by giving the Form 484s elevated status notwithstanding evidence to the contrary, and by shifting the burden of proof to the applicant.
Finally, the applicant contended that, by reason of these errors relating to s 1274B(2) of the Act, the judge erred by failing to properly consider and weigh all the other evidence referred to in [24] and [44] above. If the judge had done so, he ought to have concluded that the respondent had failed to discharge the onus of establishing a ‘good arguable case’, ie a real prospect of success.[30]
[30]Relying upon Rozenblit v Vainer [2019] VSCA 164, [19] (McLeish and Niall JJA).
Indeed, the applicant submitted that, having regard to all the relevant evidence (in particular that Mr Pappas, as an experienced businessman, was on notice of a claim under the Guarantee in excess of $18 million), a conclusion that Mr Pappas decided to transfer or receive a transfer from the applicant of the 70 PB shares and gave instructions to file the first Form 484 ‘just beggars belief’. The only conclusion available in light of the evidence was that the first Form 484 was filed by mistake (consistent with the evidence of Mr Gillard), without instructions from Mr Pappas, and that the second Form 484 was filed to correct that mistake.
In the course of argument, the applicant submitted that the judge placed too much emphasis on the certification by Mr Pappas, recorded in the Form 484s. The applicant noted in her written case that since November 2015, ASIC lodgements occur electronically rather than by paper form and that there is no longer provision for the application of a signature.[31] Certainly the forms in evidence in this proceeding do not contain a signature; rather, they contain the typed name of Mr Pappas.
[31]Relying on an ASIC webpage which was not in evidence: >
The applicant also relied upon the fact that Mr Pappas was never entered into the PB members’ register in respect of any alleged transfer of PB shares to him on 25 February 2020, and thus was unable to dispose of those shares. In doing so, the applicant relied on cll 58 and 59 of the constitution of PB Developments. The applicant also relied upon s 231 of Act which provides:
231 Membership of a company
A person is a member of a company if they:
(a)are a member of the company on its registration; or
(b)agree to become a member of the company after its registration and their name is entered on the register of members; or
(c)become a member of the company under section 167 (membership arising from conversion of a company from one limited by guarantee to one limited by shares).
In oral argument, the applicant accepted that if there had been a transfer of the 70 PB shares to Mr Pappas, he would at least be the equitable owner even if not registered on the PB members’ register. In any event, counsel accepted that the PB members’ register was not determinative — it was a factor to be taken into account.
Further, the applicant submitted that, consistent with the first Form 484 being filed in error, ASIC Form 484 was the appropriate form of ASIC document to correct the details of PB Developments on the ASIC register erroneously entered by lodging the first Form 484. This is because, while there is the option to lodge an ASIC Form 492 headed ‘Request for Correction’, this is only applicable if the previously lodged document has been fully processed by ASIC.[32] That could not be assumed given the timing of lodgement of the first Form 484 after business hours.
[32]This submission was also based on a page on the ASIC website which was not in evidence: >
In all these circumstances, the applicant contended that the judge erred in finding a good arguable case, because the respondent did not discharge the onus that fell upon it.

Respondent’s submissions

The respondent disputed that the judge reached the conclusion that there was a good arguable case on the basis of according special or elevated evidentiary status to the Form 484s pursuant to s 1274B(2) of the Act. It submitted that the judge reached this conclusion by considering and weighing the Form 484s together with the other relevant evidence. The respondent relied upon:
(a)the footnote to [139] where the judge stated that, regardless of the evidentiary status of the Form 484s, ‘the documents stand as evidence on the application in any event, even if s 1274B(2) of the Act did not have that operation or is put to one side’;
(b)the judge’s statement that he was not satisfied ‘on the evidence before me that the prima facie evidentiary status (or other evidentiary value) of the Form 484s has been displaced by Ms Woodruff (or anyone else) proving to the contrary …’;[33]
(c)the judge’s consideration of the other evidence;[34] and
(d)the judge’s conclusion that the Form 484s were ‘evidence appropriately to be taken into account and weighed in the context of the other evidence, as I have done’.[35]
[33]Reasons, [140] (emphasis added).
[34]Ibid [140]–[143].
[35]Ibid [143].
The respondent acknowledged that the language of the judge relied upon by the applicant as disclosing error (set out in [42] above) could have been better expressed. However, the respondent contended that on a fair reading of the relevant parts of the reasons, the judge did not err in applying s 1274B(2) or shifting the evidential burden as submitted by the applicant. Rather, the judge properly weighed and reviewed the Form 484s and all the other evidence relied upon by the applicant in concluding there was a good arguable case.
In any event, the respondent submitted that the presumption created by s 1274B(2) is not displaced by the mere assertion that the ASIC forms were lodged by mistake. To the contrary, the respondent submitted that on any reasonable view, the lodgement of forms with ASIC is a serious matter of which a court can take notice and upon which it can act.
In this respect, the respondent referred to the approach taken by Dalton J in Salemade Pty Ltd v Commissioner of State Revenue (‘Salemade’):[36]
The Commissioner chose to rely upon the ASIC record rather than the versions of events received from the appellants. Having regard to all the evidence before me my conclusion is the same as the Commissioner’s, namely, the evidence which the appellants have produced as to the directorship of Oakdale Qld is too inconsistent to be reliable. It is preferable to rely upon the ASIC records. Section 1274B(2) of the Corporations Act gives ASIC records some evidentiary status. It has been regarded as conferring a status of prima facie evidence on them.[37] However, I note the judgment of the Court of Appeal in Western Australia in Barboutis v the Kart Centre Pty Ltd (No 2)[38] to the effect that the evidentiary status is somewhat less than this. Even accepting that the ASIC records are not prima facie evidence, and that in this case the appellants have put on evidence other than that contained in the database to contradict it, I still prefer to act on the ASIC records. They are contemporary records. The documents were made for a serious purpose and were signed by Mr Douglas Crane and Mr Harding.[39]
[36][2021] QSC 19.
[37]Drummond v Drummond [1999] NSWSC 923, [32] (Austin J), cited in Gosford Christian School Ltd v Totonjian [2006] NSWSC 725 (Barrett J); Forrest v Cosmetic Company Pty Ltd [2008] SASC 152, [22] (White J).
[38][2020] WASCA 41.
[39]Salemade [2021] QSC 19, [73] (Dalton J) (emphasis in original).
As to whether the judge erred in finding a good arguable case on the evidence before him, the respondent submitted that:
(a)the threshold test for ‘a good arguable case’ is a ‘very low one’ and such a case is ‘not necessarily one the judge believes would have a better than 50 per cent chance of success’;[40] and
(b)on the material before the judge, there was no House v The King[41] or other error in the judge’s conclusion that there was a good arguable case which entitled the respondent to relief against the applicant.
[40]Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1983] 1 WLR 1412; [1984] 1 All ER 398, 404 (Mustill J); applied in Ma & Ors v Luo [2010] VSC 329, [22] (Croft J); Samimi v Seyedabadi [2013] NSWCA 279, [69] (McColl JA); Curtis v NID Pty Ltd [2010] FCA 1072, [6] (Edmonds J).
[41](1936) 55 CLR 499; [1936] HCA 40.
As to the relevant evidence supporting a good arguable case, the respondent relied upon the Form 484s recording the transfer to and retransfer from Mr Pappas on 25 February 2020, noting the serious purpose for which such forms are prepared. The respondent also relied upon the absence of any evidence from the applicant or Mr Pappas as to the circumstances of the creation and lodgement of the Form 484s, and the quality of the evidence given by Mr Gillard about these matters. In this regard, the respondent relied upon the findings of the judge to the effect that Mr Gillard gave no relevant evidence as to the circumstances of the creation and lodgement of the Form 484s.[42]
[42]Reasons, [140]–[143], however noting that the respondent does not rely on the first sentence in [140] in which the judge uses the words ‘displaced’ evidence and ‘proving to the contrary’.
Further, the respondent referred to the second Form 484 which recorded a change in details of the company consequent upon a relevant transaction. It contended that, if the first Form 484 was lodged in error, the more appropriate way to address that error was by lodging ASIC Form 106, headed ‘Request to withdraw a document’.
As to whether Mr Pappas was entitled to transfer the 70 PB shares if he was not recorded in the PB members’ register, the respondent pointed out that the s 231 argument was not raised below. In any event, the respondent disputed that s 231 of the Act, or PB Developments’ constitution, prevented a transfer of shares by the applicant to Mr Pappas, and also challenged the contention that the provision prevented Mr Pappas from effecting a transfer.
In doing so, the respondent relied upon the decision of the New South Wales Court of Appeal in De Lorenzo v De Lorenzo[43] to the effect that, while legal ownership may require registration on the PB members’ register, ownership may be transferred or assigned in equity without such registration. Thus, a transferee of shares could take steps to enforce a transfer both as against the transferor and as against the company.[44] By this reasoning, and because the respondent had a charge over the property of Mr Pappas, the respondent itself could have forced PB Developments to place a transferee’s name on its register. That is to say, the absence of Mr Pappas’ name in the PB members’ register was not dispositive of the issue and carried limited weight.
[43](2020) 104 NSWLR 155, 160 [17] (Leeming JA); [2020] NSWCA 351.
[44]See, eg, Act s 1071F.
The respondent disputed that the only conclusion a court would draw was that the first Form 484 was created and lodged in error. The respondent emphasised the nature and quality of the applicant’s evidence, highlighting the gaps in that evidence and the failure of all those involved to provide any explanation for the creation and lodgement of the Form 484s. The respondent submitted that its evidence on the application, when weighed against the applicant’s evidence, did not compel the conclusion that the respondent had not established a good arguable case.
For all these reasons, the respondent submitted that the application for leave to appeal must be refused or any appeal dismissed.

Consideration

It is appropriate to mention at the outset the issue of the standard of appellate review. The applicant initially contended that it was appropriate to apply the correctness standard.[45] In contrast, the respondent contended that the standard of review was that set out in House v The King.[46] In the course of oral argument, the applicant accepted that the review in relation to the ultimate decision whether to exercise the discretion to make a freezing order proceeds according to House v The King. However, the applicant said that she relied upon an ‘error of principle’ concerning the interpretation and application of s 1274B(2), as to which it was said that there is but one correct answer.
[45]Relying on Kajula Pty Ltd v Downer EDI Limited [2024] VSCA 236 (Macaulay, Lyons and Orr JJA).
[46](1936) 55 CLR 499; [1936] HCA 40. Review in accordance with House v The King includes review for error of principle, mistake of fact and, more generally, error by way of unreasonableness or manifest injustice: at 505 (Dixon, Evatt and McTiernan JJ).
To the extent that a statutory provision is said to have been wrongly construed, we accept that there is one correct answer. Thus proposed ground 1(a), which alleges a misunderstanding of s 1274B(2), falls to be dealt with on that basis. The appropriate standard of appellate review is less clear in relation to the application of a statutory provision to the facts of a case, or review of whether a good arguable case has been established as part of determining to exercise the discretion to make a freezing order (which issues are raised by proposed ground 1(b)). These matters were not developed in oral argument. We do not consider that it is necessary to determine the applicable standard of review in relation to those issues for the purpose of this application. Instead, to the extent that we have considered it necessary to address proposed ground 1(b), we have approached the application on the basis most favourable to the applicant, namely that the correctness standard is applicable to those issues.

Proposed ground 1(a)

Section 1274B(2) is an unusual provision. While the first sentence refers to the relevant matter in the relevant ASIC document being ‘admissible as prima facie evidence’ of that matter, the second sentence refers to the writing being ‘proof’ of such matter in the absence of evidence to the contrary. Further, the inclusion of ‘In other words’ at the beginning of the second sentence of the section is an unusual form of drafting, suggesting that the second sentence is the logical consequence of the first sentence or another way of expressing it.
We do not read the decision in Barboutis as preventing the court from taking into account the relevant matter in the relevant ASIC document at least on an interlocutory application such as this. In our view, the concession of the applicant that the Form 484s were admissible and relevant irrespective of the operation of s 1274B(2) was appropriate.
We have reservations, however, as to whether the Court in Barboutis was correct to conclude that s 1274B(2) is of ‘lesser effect’ than either a prima facie evidence provision (such as s 1305 of the Act) or a provision that a fact is taken to be established unless the contrary is proved (such as s 251A(6) of the Act).[47] At the same time, we note that Barboutis was followed by the Full Court of the Federal Court in Embedded Claims Pty Ltd v Litigation Finance (Australia) Pty Ltd[48] where the Court concluded that there was sufficient evidence to the contrary of the prima facie evidence of the matter in the relevant Form 484.
[47]Barboutis [2020] WASCA 41, [42] (Buss P, Mitchell and Vaughan JJA).
[48][2023] FCAFC 30, [58] (Markovic, Colvin and Thawley JJ).
This point was not the subject of full argument before this Court and, in the end, we do not need to resolve it. It is convenient instead to address the nature of the judge’s reasons, in particular whether the judge reached the conclusion that there was a good arguable case that the shares were transferred to Mr Pappas on 25 February 2020 based only on a special or elevated status of the Form 484s pursuant to s 1274B(2) of the Act and a shifting of the burden of proof to the applicant. This is the error alleged in proposed ground 1(a). But if the judge did not rely only on s 1274B(2), and had an independent basis for reaching the same conclusion, then any error he made in relation to s 1274B(2) would be immaterial.
In this respect, as noted earlier, the applicant did not submit that the effect of s 1274B(2) of the Act is that, because she relied upon contrary evidence, the Form 484s were to be ignored or given no evidentiary value at all. Rather, she accepted that the Form 484s would have their ordinary evidentiary value, on ‘the same footing as all other evidence’.
We acknowledge that, as the applicant contended, paragraph [139] of the judge’s reasons referred to s 1274B(2) as giving ‘prima facie evidence status’ to the matters referred to in the Form 484s. However, the judge immediately noted in a footnote that those documents ‘stand as evidence on the application in any event, even if s 1274B(2) of the Act does not have that operation or is put to one side’.[49] Further, in the first sentence of [140] the judge stated that he was not satisfied on the evidence before him that ‘the prima facie evidentiary status (or any other evidentiary value) of the Form 484s has been displaced …’.[50]
[49]Reasons, [139] n 85.
[50]Emphasis added.
Thus the judge considered, in the alternative, the Form 484s without any special evidentiary status. This is confirmed by [143] of the reasons, where the judge stated that the Form 484s were evidence of the existence of the transfers to which they referred and were to be weighed along with the other evidence before the Court. As a result, on a fair and proper reading, the judge was considering the evidence on the basis that the Form 484s had prima facie evidentiary status or, alternatively, on the basis that the Form 484s had no special status (because s 1274B(2) did not apply). In substance, the judge did so with an economy of language by dealing with the two distinct evidentiary pathways in a ‘rolled up’ manner.
We also acknowledge that, as the applicant contended, the judge used some of the language of s 1274B(2) in his reasons, which could suggest that he might have required the applicant to disprove a good arguable case that there was a transfer to Mr Pappas of the 70 PB shares on 25 February 2020. In [140], the judge used the words ‘displaced’ and ‘proving to the contrary’. The judge used the word ‘displace’ again when considering Mr Gillard’s evidence alone and in combination with other evidence.[51]
[51]Reasons, [143].
In our view, the use of the verb ‘displace’ in this context does not give rise to an inference that the judge shifted the burden of proof. That language is equally consistent with taking into account and weighing all the evidence. It reflects the fact that the judge started with the Form 484s, which (as the applicant accepted) constituted evidence (in the ordinary sense) of a transfer, and then considered the other evidence upon which the applicant relied.
By contrast, the reference to Ms Woodruff ‘proving to the contrary’ in the first sentence of [140] appears on its face to give rise to an inference that the judge had shifted the burden of proof, as the applicant contended. In particular, this language reflects aspects of the last sentence of s 1274B(2) which states that ‘In other words, the writing [in the ASIC Form] is proof of such a matter in the absence of evidence to the contrary’.
However, immediately after the first sentence in [140], and in the following paragraphs up to and including [143], the judge went on to consider the other evidence relating to the transfer to, and retransfer from, Mr Pappas of the 70 PB shares put forward by the applicant to weigh against the evidence in the Form 484s. As noted above in [26]–[27], the judge referred to the fact that neither the applicant nor Mr Pappas, who were the parties to the transfers evidenced by the Form 484s, addressed the circumstances concerning the creation or lodgement of those forms in their affidavits.[52] The applicant gave no evidence. And Mr Pappas addressed only the general proposition that his practice has always been to protect his family’s assets. That was so even though the forms were lodged in his name by his accountants.
[52]Ibid [140].
The judge also observed that, while reliance was placed on the PB members’ register and Mr Pharmacis’ evidence that he was informed by Mr Pappas that there were no transfers since the 11 December 2019 share transfer, this was ‘in tension’ with the Form 484s themselves.[53] The words ‘in tension’ reflect the fact that the evidence pointed in different directions, rather than a conclusion that the Form 484s prevailed.
[53]Ibid [141].
The judge also observed that many of PB Developments’ company records were missing.
The judge then referred to the evidence of Mr Gillard.[54] He recorded that Mr Gillard ‘positively stated that he did not have any recollection as to why it appears that the 70 PB shares were transferred’ and that Mr Gillard did not know who in his office was involved in lodging those forms. The judge concluded that Mr Gillard then speculated about ‘the prospect of the forms having been lodged in error “based on his review of the transfers”’.[55] As noted above, these conclusions are not challenged.
[54]Ibid [143] (as set out in [16] above).
[55]Ibid [143].
Importantly, it was those conclusions that led the judge to say that Mr Gillard’s evidence did not ‘displace the evidentiary value’ of the Form 484s. Given that Mr Gillard simply did not remember any relevant facts, and merely speculated as to error, it is plain that his evidence could have little or no weight in determining whether any share transfers had occurred on 25 February 2020. His evidence thus could not have outweighed the ordinary evidentiary value of the Form 484s.
After considering all this evidence, the judge concluded:
However, on the evidence before me, the documents record, and are evidence for present purposes, of the existence of the transfers to which they refer and record. Whilst the ultimate determination of the facts will necessarily be a matter for trial, for present purposes the documents are evidence appropriately to be taken into account and weighed in the context of the other evidence, as I have done.[56]
[56]Ibid (emphasis added).
We accept that, rather than using terms like ‘displace’ and ‘proving to the contrary’, the judge could have better expressed the task he was undertaking: namely the weighing of all the relevant evidence. However, it is important to emphasise that these terms were used in the context of a relatively urgent freezing order application, in which witnesses had failed to give any direct evidence about the events that caused the two Form 484s to be lodged. Understood in context, the language reflects the judge’s conclusion that those witnesses’ evidence was of little or no assistance.
Having regard to all these matters, on a fair and proper reading of paragraphs [133]–[143] of the judge’s reasons, in our view the judge did not shift the burden of proof by determining this application on the basis that the applicant had to prove to the contrary of the evidence in the Form 484s as to the transfer and retransfer of the 70 PB shares. Rather, the judge considered and weighed all the evidence before him in determining whether there was a good arguable case.
As a consequence, proposed ground 1(a) must be rejected.

Proposed ground 1(b)

Proposed ground 1(b) is that the judge erred because the finding of a good arguable case ‘was against the weight of the evidence, upon the proper application of s 1274B(2) of [the Act]’. As is apparent, proposed ground 1(b) also turned on the judge’s alleged error in relation to s 1274B(2). In light of our conclusions in relation to proposed ground 1(a), it is not strictly necessary to address proposed ground 1(b).
In any event, we would reject this proposed ground of appeal. Before doing so, there are two matters to address.
The first is that it was not in dispute that the respondent was required to demonstrate only a ‘good arguable case’ that there was a transfer to, and retransfer from, Mr Pappas of the 70 PB shares on 25 February 2020. That test highlights that, on such an interlocutory application, the court cannot and should not attempt to resolve disputed factual issues. Relevantly the court’s role is to determine whether on the evidence there is a good arguable case as a necessary first step to determining whether it is just and appropriate to order the relief sought.[57]
[57]See Rules, r 37A.05(1)(b).
While it is desirable not to explicate the criterion of a ‘good arguable case’ in fixed terms for every case, it has been said that it must be ‘sufficiently plain that there is a serious question to be tried and that the plaintiff has a realistic prospect of success’[58] ie ‘more than barely capable of serious argument’ but ‘not necessarily one which the judge believes is likely to have better than a 50 per cent chance of success’.[59] Relatedly, in the context of an application for a freezing order pending application for leave to appeal, this Court stated that the requirement to establish a good arguable case that the appeal will succeed meant that ‘it can be seen from the available material that the appeal has a real prospect of success’.[60]
[58]Victoria University of Technology v Wilson [2003] VSC 299, [23] (Redlich J); applied in Ma v Luo [2010] VSC 329, [22] (Croft J).
[59]Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG ('The Niedersachsen’) [1983] 1 WLR 1412; [1984] 1 All ER 398, 404 (Mustill J); applied in Ma v Luo [2010] VSC 329, [22] (Croft J); Samimi v Seyedabadi [2013] NSWCA 279, [69] (McColl JA).
[60]Rozenblit v Vainer [2019] VSCA 164, [19(3)] (McLeish and Niall JJA); see also [11].
The second matter concerns the standard of appellate review. As we said earlier, we have assumed, for the purpose of this application, that the correctness standard applies to the question whether there was a good arguable case that the 70 PB shares were the subject of the Guarantee charge, by reason of having been transferred to Mr Pappas on 25 February 2020. We are satisfied that the judge was correct in reaching the conclusion that there was a good arguable case. This is for the following reasons.
First, we are conscious that each of the Form 484s is not itself a transfer of the 70 PB shares. Rather, such a form is required to be lodged to ensure that the ASIC register of PB Developments in respect of shareholders is accurate.[61] Nevertheless, it is clear that the Form 484s provide evidence of both the transfer to, and the retransfer from, Mr Pappas of the 70 PB shares on 25 February 2020. That was not disputed. Further, each Form 484 on its face contains the certification of Mr Pappas as a director of PB Developments that the information contained in the form is true and complete. While the Form 484s were not actually signed by Mr Pappas, those statements in them nonetheless have some evidentiary value, as the judge correctly observed. They would permit at least the inference that Mr Pappas instructed his accountant to file the Form 484s, as the applicant accepted in oral argument.
[61]Green v Green [2024] NSWSC 1442, [28] (Meek J).
Further, as noted by Dalton J in Salemade,[62] even without the special evidentiary status accorded by s 1274B(2), such documents are usually prepared for a serious purpose. In our view, it would be highly unusual if both the Form 484s, which evidence an intention to change shareholding details in the ASIC register, were prepared, let alone lodged, without instructions from Mr Pappas as the sole director of PB Developments.
[62][2021] QSC 19, [73] (Dalton J).
Second, we have had regard to the evidence relied upon by the applicant set out in [16] to [18] above to contest the proposition that the Form 484s gave rise to a good arguable case based on the underlying transactions recorded in them. However, that evidence was limited and contained unexplained gaps and omissions.
Most relevantly, the applicants failed to provide or disclose any objective evidence to explain the creation and lodgement of the Form 484s (including the underlying transfer recorded in and evidenced by each of them) which would support the contention that the only available conclusion (or even the most likely conclusion) was that the first Form 484 was prepared and lodged in error, and the second Form 484 was lodged to remedy that error. For example, no documents were produced by Mr Gillard as to:
(a)the circumstances in which either of the Form 484s was created or lodged;
(b)how any error or mistake was discovered by or made known to Mr Gillard; or
(c)when and how any such error was conveyed to Mr Pappas and/or the applicant.
Mr Gillard did not give any evidence in relation to these matters. As the judge noted, he stated that he did not have any recollection as to why the 70 PB shares might have been transferred or how the two Form 484s came to be lodged. Nor did he know who in his office lodged the forms. In other words, he could give no evidence of, or explanation for, the lodging of the Form 484s. In this context, the judge was plainly correct to conclude that Mr Gillard simply speculated as to whether one or both of the Form 484s were lodged in error.
So too, Mr Pappas did not give any evidence in relation to these matters — his evidence said nothing about the events of 25 February 2020. Rather, Mr Pharmacis deposed that Mr Pappas informed him in bald terms that ‘there have been no share transfers in PB Developments since 11 December 2019’.
Third, as noted above, the applicant emphasised the absence of any record of a transfer in the PB members’ register, and the effect of s 231 of the Act. But in our view these matters are far from determinative, as the applicant acknowledged. Prior to registration, the transferee is the equitable owner of the relevant shares. Furthermore, the judge made an unchallenged finding that many company records of PB Developments were missing, which suggested that the company’s record-keeping was incomplete.
The applicant also relied upon the timing of the lodgement of the Form 484s as indicative of a transfer and retransfer taking place in a 15-minute window, such that one could more easily infer an error in the first lodgement. But, as the applicant accepted in the course of argument, the Form 484s themselves evidence a transfer on 25 February 2020 at an unspecified time before 6.18 pm, and then a retransfer taking place at 6.33 pm. The transfer and retransfer did not necessarily occur within a 15-minute period — the transfer could have occurred much earlier in the day, with the first Form 484 being lodged hours later.
In all these circumstances, we are unable to accept the submission that it was only a remote possibility that an experienced businessman such as Mr Pappas, when on notice of a claim under the Guarantee in excess of $18 million, would decide to transfer the 70 PB shares and give instructions to file the first Form 484. There is at least an alternative hypothesis (as the applicant accepted) that, after the transfer had occurred, Mr Pappas or his advisers realised the consequences of the transfer and then sought to undo it. The applicant contended that alternative hypothesis was ‘unlikely, in the extreme’, based on the 15-minute window; but, as discussed above, the 15-minute window was illusory.
Ultimately, based on the nature and content of the Form 484s set out in [92] and [93] above, and the nature, content and limitations of the evidence of the applicant set out in [95]–[97] above, we are satisfied the respondent established a good arguable case that there was a transfer to, and a retransfer from, Mr Pappas of the 70 PB shares on 25 February 2020. In our view, based on this evidence, it was sufficiently established that there was a serious question to be tried on this issue and that the respondent had a realistic prospect of success. The judge’s decision was correct.
For these reasons, we would not grant leave in respect of proposed ground 1(b).[63]
[63]Although it is unnecessary to deal with proposed grounds 2 and 3 in light of the applicant’s concession, referred to in [5] above, we note that the reasons why we have concluded there was a serious question to be tried would also suffice to determine proposed ground 3.
Conclusion
As a result, we would grant leave to appeal in respect of proposed ground 1(a) but dismiss the appeal.
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[2025] VSCA 164

8 July 2025