Woods v Zamel
[2023] FCA 416
•28 April 2023
FEDERAL COURT OF AUSTRALIA
Woods v Zamel [2023] FCA 416
File number(s): VID 283 of 2023 Judgment of: MURPHY J Date of judgment: 28 April 2023 Catchwords: BANKRUPTCY AND INSOLVENCY – ex parte freezing order application. Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 7 Date of hearing: 28 April 2023 Counsel for the Applicant: Mr B Petrie Solicitor for the Applicant: Rigby Cooke Lawyers ORDERS
VID 283 of 2023 BETWEEN: ROBERT SCOTT WOODS
Applicant
AND: MARIO ZAMEL
First Respondent
LINA ZAMEL
Second Respondent
DANIELLA ZAMEL (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
28 APRIL 2023
THE COURT ORDERS THAT:
1.The application for this order is made returnable immediately.
2.Subject to the next paragraph, this order has effect up to and including Friday, 5 May 2023 (the Return Date). On the Return Date at 10:15 am AEST there will be a further hearing in respect of this order before Justice Rofe, or any other judge allocated to hear the matter.
3.Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.
4.In this order:
(a)‘applicant’, if there is more than one applicant, includes all the applicants;
(b)‘you’, where there is more than one of you, includes all of you and includes you if you are a corporation;
(c)'third party' means a person other than you and the applicant; and
(d)'unencumbered value' means value free of mortgages, charges, liens or other encumbrances.
5.If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acing on your behalf or on your instructions. If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.
Freezing of assets
6.You must not remove from Australia or in any way dispose of, deal with, encumber or diminish the value of any of your assets in Australia.
7.For the purposes of this order:
(a) ‘your assets’ means:
(i)all assets of Mario and Lina, whether or not they are held in the name of Mario or Lina or both and whether they are solely owned or co-owned;
(ii)any asset which Mario or Lina has the power, directly or indirectly, to dispose of or deal with as if it were their own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and
(iii)the following assets:
A.the property of which Daniella is the registered proprietor known as 128 The Avenue, Peregian Springs, Queensland, and described in Certificate of Title reference 50589018 or, if it has been sold, the net proceeds of the sale;
B.any money in the following accounts:
(1)Account number 010797207 held in the name of Daniella Zamel at Macquarie Bank Limited.
(2)Account number 007750599 held in the name of Daniella Zamel at Macquarie Bank Limited.
(3)Account number 007750391 held in the name of Daniella Zamel at Macquarie Bank Limited.
(4)Account number 007750383 held in the name of Daniella Zamel at Macquarie Bank Limited.
(5)Account number 120628476 held in the name of Daniella Zamel with Suncorp-Metway Ltd.
(6)Account number 561192663 held in the name of Daniella Zamel with Suncorp-Metway Ltd.
(7)Account number 610024309 held in the name of Mario Zamel with Suncorp-Metway Ltd.
(8)Account number 610104299 held in the name of Mario Zamel with Suncorp-Metway Ltd.
C.Any and all of 1,200 ordinary shares in Zamel Investments Pty Ltd (ACN 619 159 607) comprising the whole of the share capital of that company.
D.A 2016 Ford Ranger Dual Cab motor vehicle with registration number 049 ZOF and VIN MNAUMFF50GW595972.
E.A Mercedez Benz S63 C2117 AMG motor vehicle, with VIN WDD2173772A005043.
(b)the value of your assets is the value of the interest you have individually in your assets.
Provision of information
8.Subject to paragraph 9 you must: \
(a)at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets; and
(b)within 10 (ten) working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.
9.This paragraph 9 applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you:
(a)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)are liable to a civil penalty.
This paragraph 9 also applies if you are a corporation and all of the persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively:
(c)have committed an offence against or arising under an Australian law or a law of a foreign country; or
(d)are liable to a civil penalty.
You must:
(a)disclose so much of the information required to be disclosed to which no objection is taken; and
(b)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and
(c)file and serve on each other party a separate affidavit setting out the basis of the objection.
Exceptions to this order
10.This order does not prohibit Mario, Lina and Daniella from:
paying your ordinary living expenses up to a limit of $1,000 per week each (subject to further order); and
paying your reasonable legal expenses limited to $25,000 combined, up to the Return Date (subject to further order).
11.You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly.
Costs
12.The costs of this application are reserved to the Court hearing the application on the Return Date.
Persons other than the applicant and the respondent
13.Set off by banks: This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order.
14.Bank withdrawals by the respondent: No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.
15.Persons outside Australia:
(a)Except as provided in subparagraph (b) below, the terms of this order do not affect or concern anyone outside Australia.
(b)The terms of this order will affect the following persons outside Australia:
(i)you and your directors, officers, employees and agents (except banks and financial institutions);
(ii)any person (including a bank or financial institution) who:
A.is subject to the jurisdiction of this Court; and
B.has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and
C.is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and
(iii)any other person (including a bank of financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.
16.Assets located outside Australia: Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the applicant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Schedule A
1.The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
2.By 12:00 pm on 1 May 2023, the applicant serve upon the respondents copies of:
(a)this order;
(b)the originating application filed 28 April 2023.
(c)the interlocutory process filed 28 April 2023;
(d)the following material:
(i)the Affidavit Robert Scott Wood sworn 27 April 2023 together with its exhibits;
(ii)(ii) the outline of the applicant’s submissions in support of the application for freezing and ancillary orders dated 28 April 2023; and
(e)a transcript of the hearing on 28 April 2023, or, if the transcript is not available in time, a note of any exclusively oral submission that was made to the Court.
3.Service is to be achieved by the following methods:
(a)attempting personal service of the documents referred to in paragraph 2 above (collectively, the Documents), on each of the First, Second, Third and Fourth Respondents;
(b)serving the Documents on the Respondents by:
(i)leaving a sealed copy of the Documents in an envelope addressed to each of the Respondents with any persons who appears to be of 16-years of age or older at the address of 128 The Avenue, Peregian Springs, Queensland (Peregian Springs Property);
(ii)sending the Documents by prepaid post to each of the Respondents at the Peregian Springs Property;
(iii)sending the Documents by an email attaching pdf file format copies of the Documents to the following addresses:
[email protected]; and
(iv)sending a SMS text message to the mobile phone numbers 0433 221 112, 0404 255 522 and 0458 836 542 which states:
"Urgent message for Mario Zamel, Lina Zamel, Daniella Zamel, Lubna Hassam Khadr and Zamel Investments Pty Ltd re: Federal Court of Australia proceedings. Freezing and ancillary orders have been made against Mario Zamel, Lina Zamel, Daniella Zamel, and Lubna Hassam Khadr. The Applicant, Robert Scott Woods, will attempt to serve relevant documents on you by personal service, prepaid post, and by an email sent to [email protected], [email protected] and [email protected].”
4.As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it.
5.The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets.
6.If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect.
7.The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding.
8.The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets.
REASONS FOR JUDGMENT
Ex tempore
(Revised from Transcript)MURPHY J:
By way of short reasons, before the Court this afternoon is an urgent ex parte application for a freezing order pursuant to rr 7.32 and 7.33 of the Federal Court Rules 2011 (Cth), and ancillary orders.
I have read the originating application, the interlocutory process, the affidavit of Robert Scott Woods, sworn 27 April 2023 and the salient exhibits thereto. The applicant has given an undertaking in the form of Schedule A of the draft orders at Annexure A of the interlocutory process. I have also read and considered the applicant’s written submissions in support of the application comprising 17 pages, and heard from counsel for the applicant. I asked counsel for the applicant whether, having regard to the nature of the application, there was anything that counsel should disclose to the Court. Counsel responded there was one matter, which I was then taken to. I was also taken to the reasons for any variations from the template orders in the Freezing Orders Practice Note (GPN-FRZG) dated 25 October 2016.
Having regard to the combination of the evidence before the Court referred to in the applicant’s written submissions, I am persuaded that the applicant has demonstrated a good arguable case in respect of the relief sought in the originating application as to:
(a)the transfer of shares in Zamel Investments Pty Ltd by the first respondent, Mario Zamel, to the fourth respondent, Lubna Hassam Khadr;
(b)the monies provided to the third respondent, Daniella Zamel, by Mr Zamel; and
(c)the purchase and ownership of the Peregian Springs property by Daniella Zamel.
I am satisfied the applicant has a good arguable case to obtain final relief, which will result in the shares in Zamel Investments, the monies held by Daniella and the Peregian Springs property being transferred to the applicant as property that vests in the applicant under section 58(1) of the Bankruptcy Act.
I am satisfied there is a risk of dissipation – that is, there is a danger of a prospective judgment being wholly or partly unsatisfied because a respondent or respondents might, for instance, dispose of or diminish the assets that would otherwise be available to the applicant, upon success in the proceeding. The applicant makes allegations of dishonesty in the sense of non-disclosure of matters which could, I would think, not be inadvertent non-disclosures. On the evidence, there has been a failure by Mr Zamel and the second respondent, Lina Zamel, to disclose substantial transactions to the applicant, the trustee of their bankrupt estates.
I am also satisfied that the balance of convenience favours the making of freezing and ancillary orders, albeit without having the benefit of hearing from the respondents. There is no apparent prejudice to Daniella Zamel in her being restrained from dealing with the Peregian Springs property. The orders do not seek that she be evicted from the property, nor that Mr or Mrs Zamel, who also appear to live there, be evicted. There is no apparent prejudice to Zamel Investments or Ms Khadr in restraining Ms Khadr from dealing with the shares in Zamel Investments, and the orders do not to seek to hinder or restrain the usual conduct of the business operated by Zamel Investments. To the extent that the applicant seeks to restrain Mr and Mrs Zamel and Daniella Zamel from accessing the monies held by Daniella in her bank accounts, there is a carve-out which permits each of those persons to meet their ordinary living expenses up to a limit of $1,000 per week each, and to pay their reasonable legal expenses up to the return date in a combined limit of $25,000.
I have, however, indicated to the applicant that should representations be made that $25,000 is not enough to enable the respondents to properly put their case on the return date, then I expect the applicant to be sensible in that regard. In any event, in relation to the appropriate quantum of ordinary living expenses and reasonable legal expenses, the matter will return to court for a further hearing in one week, at which time the respondents will have an opportunity to make submissions as to any appropriate variation to those carve-outs. As will the applicant, if he becomes persuaded that the carve-outs are too generous in the circumstances.
For these reasons I have made the orders sought.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 3 May 2023
SCHEDULE OF PARTIES
VID 283 of 2023 Respondents
Fourth Respondent:
LUBNA HASSAM KHADR
Fifth Respondent:
ZAMEL INVESTMANTS PTY LTD
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