Federal Court of Australia

Scottish Pacific Business Finance Pty Ltd v Qaqour, in the matter of Penny World Pty Ltd (receivers and managers appointed) (No 3) [2022] FCA 951

ORDERS

THE COURT ORDERS THAT:

1.    On the undertaking of the applicant’s solicitor to pay the applicable filing fee, the applicant has leave to file and proceed upon the Interlocutory Process instanter.

2.    The rules in respect of service of the interlocutory process emailed to the chambers of Justice Halley at 1.23 pm on 10 August 2022 (the Interlocutory Process) be dispensed with.

Service on Cindy Kilian (AKA Cindy Kilianova and Finnian Ken)

3.    Pursuant to r 10.44(1) of the Federal Court Rules 2011 (Cth) (FCR), the applicant is granted leave to serve on Cindy Kilian copies of the following documents in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965:

a.    the Interlocutory Process and its supporting affidavits; and

b.    these orders.

4.    Pursuant to FCR r 1.34, the requirement for service of the documents referred to in Order 3 above on Cindy Kilian in accordance with one of the methods in FCR r 10.44(1) is dispensed with.

5.    Pursuant to FCR r 10.49, copies of the documents referred to in Order 3 above may be served on Cindy Kilian by way of:

a.    sending a message to the Cindy Kilianova FaceBook account, which reads as follows: “Orders have been made against Cindy Kilian (AKA Cindy Kilianova, Finnian Ken), Opal International P Pty Ltd, D R and MConstruction Pty Ltd, Malixconstructions Pty Ltd, Metro Hubb Pty Ltd and Secret Sen Pty Ltd by the Federal Court of Australia. Please contact Nicholas Dale of Swaab on [REDACTED].”

b.    sending a message to the [REDACTED] Instagram account, which reads as follows: “Orders have been made against Cindy Kilian (AKA Cindy Kilianova, Finnian Ken), Opal International P Pty Ltd, D R and MConstruction Pty Ltd, Malixconstructions Pty Ltd, Metro Hubb Pty Ltd and Secret Sen Pty Ltd by the Federal Court of Australia. Please contact Nicholas Dale of Swaab on [REDACTED].”

c.    emailing copies of the documents to the solicitors for the first defendant, Shadi Qaqour, marked with attention to Cindy Kilian (AKA Cindy Kilianova and Finnian Ken).

d.    by delivering copies of the documents to [REDACTED].

6.    Pursuant to FCR r 1.39, the time for service of the documents referred to in Order 3 above on Cindy Kilian be abridged to 5.00 pm on Monday, 15 August 2022.

Service on incorporated respondents

7.    Pursuant to FCR r 1.39 and r 10.24, the time for service of the Interlocutory Process and the supporting affidavits and these orders be abridged to 5.00 pm on Monday, 15 August 2022, with service to be effected on the respective persons named below by the following means:

a.    as to D R and MConstruction Pty Ltd ACN 639 668 849, by leaving a copy at, or posting a copy to the address of its sole director, Mark Maximos, being [REDACTED].

b.    as to Malixconstructions Pty Ltd ACN 639 668 938, by leaving a copy at, or posting a copy to the address of its sole director, Dua’a Tayseer Mohammad Alquoqa, being [REDACTED].

c.    as to Secret Sen Pty Ltd ACN 644 009 450, by leaving a copy at, or posting a copy to the address of its sole director, Omar Eddine, being [REDACTED].

d.    as to each of the above companies, emailing a copy of the documents to the solicitors for the first defendant, Shadi Qaqour, marked with attention to each company.

8.    Pursuant to FCR r 1.39, the time for service of the Interlocutory Process and the supporting affidavits and these orders onto Opal International P Pty Ltd ACN 638 962 222 and Metro Hubb Pty Ltd ACN 640 233 021 be abridged to 5.00 pm on Monday, 15 August 2022.

Freezing and ancillary orders

9.    On the undertakings set out in Schedule A herein pursuant to s 23 of the Act and FCR rr 7.32, 7.33 and 7.34:

a.    a freezing order be made against each of the first to sixth respondents to the Interlocutory Process in the form set out in Annexure A to these orders until 6.00 pm on Thursday, 18 August 2022 or further order of the Court;

b.    a further information eliciting order be made against the first to sixth respondents to the Interlocutory Process in the form set out in Annexure A to these orders.

Joinder

10.    Pursuant to FCR r 9.05, orders that:

a.    Cindy Kilian (AKA Cindy Kilianova, Finnian Ken) be joined as the ninth defendant in these proceedings;

b.    Opal International P Pty Ltd ACN 638 962 222 be joined as the tenth defendant in these proceedings;

c.    D R and MConstruction Pty Ltd ACN 639 668 849 be joined as the eleventh defendant in these proceedings;

d.    Malixconstructions Pty Ltd ACN 639 668 938 be joined as the twelfth defendant in these proceedings;

e.    Metro Hubb Pty Ltd ACN 640 233 021 be joined as the thirteenth defendant in these proceedings; and

f.    Secret Sen Pty Ltd ACN 644 009 450 be joined as the fourteenth defendant in these proceedings.

11.    The relief granted in Order 9 be listed for further hearing before Justice Halley at 10.15 am on 18 August 2022.

12.    Leave be granted to the applicant to enter these orders forthwith.

13.    Liberty to the parties to apply on 24 hours’ notice to the Commercial and Corporations Duty Judge for New South Wales.

THE COURT NOTES:

1.    That the plaintiffs intend to serve a copy of these orders on relevant financial institutions by 6.00 pm on Wednesday, 10 August 2022.

2.    That the plaintiff also intends to email a copy of the documents referred to in Order 8 to the solicitors for the first defendant, Shadi Qaqour, marked for the attention of each of D R and MConstruction Pty Ltd ACN 639 668 849 and Metro Hubb Pty Ltd ACN 640 233 021.

Date that entry is stamped: 10 August 2022

ANNEXURE A – FREEZING ORDER

PENAL NOTICE

TO:     CINDY KILIAN (AKA CINDY KILIANOVA, FINNIAN KEN), OPAL INTERNATIONAL P PTY LTD ACN 638 962 222, D R AND MCONSTRUCTION PTY LTD ACN 639 668 849, MALIXCONSTRUCTIONS PTY LTD ACN 639 668 938, METRO HUBB PTY LTD ACN 640 233 021, SECRET SEN PTY LTD ACN 644 009 450

IF YOU  (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

TO:    CINDY KILIAN (AKA CINDY KILIANOVA, FINNIAN KEN), OPAL INTERNATIONAL P PTY LTD ACN 638 962 222, D R AND MCONSTRUCTION PTY LTD ACN 639 668 849, MALIXCONSTRUCTIONS PTY LTD ACN 639 668 938, METRO HUBB PTY LTD ACN 640 233 021, SECRET SEN PTY LTD ACN 644 009 450

This is a 'freezing order' made against you on 10 August 2022 by Justice Halley at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order.

The Court orders:

Introduction

(1)        (a)     The application for this order is made returnable immediately.

(b)     The time for service of the application, supporting affidavits and orders is abridged and service is to be effected by 5pm on Monday 15 August 2022.

(c)    The application is returnable at 10.15 am on Thursday, 18 August 2022 (the Return Date).

(2)     Subject to the next paragraph, this order has effect up to and including 6.00 pm on Thursday, 18 August 2022.

(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;

(d)    ‘unencumbered value’ means value free of mortgages, charges, liens or other encumbrances.

(5)          (a)    If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

(b)     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)        (a)    You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$3,120,489.85 (‘the Relevant Amount’).

(b)    If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount.

(c)    If the unencumbered value of your Australian assets is less than the Relevant Amount, and you have assets outside Australia (‘ex-Australian assets’):

(i)    You must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the Relevant Amount; and

(ii)    You may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the Relevant Amount.

(7)    For the purposes of this order,

(1)    your assets include:

(i)    all your assets, whether or not they are in your name and whether they are solely or co-owned; and

(ii)    any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your 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);

(2)    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 world-wide, 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;

(b)    within 5 working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.

(9)          (a)    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:

(i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)    are liable to a civil penalty.

(b)    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:

(i)    have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)    are liable to a civil penalty.

(c)    You must:

(i)    disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)    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

(iii)    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 you from:

(a)    with respect to Cindy Kilian (AKA Cindy Kilianova and Finnian Ken), paying up to $800 a week on your ordinary living expenses;

(b)    paying $5,000 on your reasonable legal expenses;

(c)    dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and

(d)    in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the plaintiff, if possible, at least two working days written notice of the particulars of the obligation.

(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.

(12)        (a)    This order will cease to have effect if you:

(i)    pay the sum of $3,120,489.85 into Court; or

(ii)    pay that sum into a joint bank account in the name of your lawyer and the lawyer for the applicant as agreed in writing between them; or

(iii)     provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court.

(b)     Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency.

(c)     If this order ceases to have effect pursuant 12(a) above, you must as soon as practicable file with the Court and serve on the applicant notice of that fact.

Costs

(13)     The costs of this application are reserved to the Court hearing the application on the Return Date.

Persons other than the applicant and respondents

(14)    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.

(15)    Bank withdrawals by the respondents

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.

(16)    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.

(17)    Assets located outside Australia

Schedule A to the orders

Undertakings Given to the Court by the Applicant

(1) The plaintiff 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) As soon as practicable, the plaintiff will file and serve upon the respondent copies of:

(a)     this order;

(b)     the application for this order for hearing on the return date;

(c)     the following material in so far as it was relied on by the applicant at the hearing when the order was made:

(i)     affidavits (or draft affidavits);

(ii)     exhibits capable of being copied;

(iii)     any written submission; and

(iv)     any other document that was provided to the Court.

(d)     a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court;

(e)     the originating process.

(3) As soon as practicable, the plaintiff will cause anyone notified of this order to be given a copy of it.

(4) The plaintiff will pay the reasonable costs of anyone other than the defendants which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the defendant’s assets.

(5) If this order ceases to have effect the plaintiff 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.

(6) The plaintiff 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.

(7) The plaintiff 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.

Schedule B to the orders

Affidavits Relied On

Name and address of applicant’s lawyers

The applicant's lawyers are:

Swaab

Level 4, 20 Hunter Street

SYDNEY NSW 2000

Telephone: 02 9233 5544

Email: [REDACTED]

EX TEMPORE REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

HALLEY J:

Introduction

1    By an interlocutory process filed 10 August 2022 by leave and pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and rr 7.32 and 7.33 of the Federal Court Rules 2011 (Cth) (Rules), the plaintiff seeks freezing orders against the following persons and companies:

(a)    Cindy Kilian, AKA Cindy Kilianova and Finnian Ken;

(b)    Opal International P Pty Ltd (ACN 638 962 222);

(c)    DR and MConstruction Pty Ltd (ACN 639 668 849);

(d)    MalixConstructions Pty Ltd (ACN 639 668 938);

(e)    Metro Hubb Pty Ltd (ACN 640 233 021); and

(f)    Secret Sen Pty Ltd (ACN 644 009 450)

(together, New Characters).

2    The plaintiff also seeks orders for leave to serve Ms Kilian overseas and substituted service, and to join each of the New Characters to these proceedings. The freezing orders are sought in aid of the ultimate relief intended to be sought by the plaintiff against the New Characters.

3    The plaintiff has previously sought, and obtained, freezing orders against the present defendants: Scottish Pacific Business Finance Pty Ltd v Qaqour, in the matter of Penny World Pty Ltd (receivers and managers appointed) [2022] FCA 725 (Yates J) (Earlier Proceedings).

4    The plaintiff relies on the following evidence in support of the application for freezing orders and other matters set out in the interlocutory process:

(a)    an affidavit of Justin Nicholas Doczy, sworn 14 June 2022, together with Exhibit JND-1 to that affidavit;

(b)    an affidavit of Grahame Ward, sworn 14 June 2022, together with Exhibit GW-1 to that affidavit;

(c)    an affidavit of Nicholas Anthony James Dale, sworn 14 June 2022, together with Exhibit NAJD-1 to that affidavit;

(d)    an affidavit of Grahame Ward, sworn 17 June 2022;

(e)    an affidavit of Nicholas Anthony James Dale, sworn 9 August 2022, together with Exhibit NAJD-3 to that affidavit;

(f)    an affidavit of Mark Maximos, affirmed 8 August 2022;

(g)    an affidavit of Omar Jamal Eddine, affirmed 8 August 2022; and

(h)    an affidavit of Nicholas Anthony James Dale sworn 10 August 2022.

Background

5    The background to these proceedings and the claims made by the plaintiff are set out in the judgment of Yates J in the Earlier Proceedings at [17]-[42]. For present purposes, it is sufficient to note that the plaintiff’s primary business is the provision of debtor finance to borrowers. The finance is provided by taking an assignment of debts owed to its clients, being debts owed by the customers of those clients, and by advancing to those clients amounts which are the subject of facility limits.

6    On 11 December 2019, the plaintiff entered into a debtor finance facility agreement with the fifth defendant (Penny World Pty Ltd). That facility was guaranteed by the first defendant (Shadi Qaqour), the second defendant (Wizly Pty Ltd) and a deregistered company (Penny Panel Machine Pty Ltd).

7    The first defendant is the sole director, secretary and shareholder of the fifth defendant.

8    The plaintiff advanced more than $3,120,489.85 to the fifth defendant based on invoices that now appear to have been fabricated.

9    Significantly, the purported invoices include invoices and associated delivery dockets purportedly issued to entities which bear similar names to the seventh defendant and the New Characters.

10    The plaintiff is concerned that the defendants, in particular the first defendant, have engaged in a fraudulent scheme in which companies have been incorporated with similar names to real companies, which were represented as the purported customers of the fifth defendant.

11    The similarity in the names is striking as demonstrated by the following table:

12    On 23 May 2022, the plaintiff appointed receivers and managers to the fifth defendant. In his affidavit sworn on 8 August 2022, Mr Eddine gives evidence that he first met the first defendant at a café in Bankstown in early 2020. He states that a few months after he met the first defendant, the first defendant convinced him to assist in establishing companies and bank accounts. Mr Eddine gives evidence that he received a payment of $2,000 from the first defendant into his bank account each time he set up a company at the request of the first defendant and he, in turn, paid $1,000 to the first defendant from his own account. He gives evidence that in or about mid-2020, the first defendant gave him two A4 pages setting out the names of “Secret Sen Pty Ltd” and another company.

13    Mr Eddine gives further evidence that, despite being a signatory to the accounts, he did not process transactions on them nor deposit any money to any account. He recalls that, at times during conversations with the first defendant regarding various bank account details, he heard the sound of typing on a computer keyboard.

14    Mr Eddine gives evidence he formed the view that, by reason of that fact and that he did not process any transactions on bank accounts in the names of those companies in which he was a director, the first defendant had internet banking access to the various bank accounts.

15    In his affidavit affirmed on 8 August 2022, Mr Maximos gives evidence that he met Ms Kilian in about 2016 and that he was introduced to her as the first defendant’s girlfriend.

16    He gives evidence that, in approximately April or May 2022, the first defendant asked that he transfer the shares in two companies into the first defendant’s name because Ms Kilian was returning overseas to Canada to live. He also states that the first defendant asked him to become a director of each of the following companies:

(a)    Malixconstructions Pty Ltd ACN 639 668 938; and

(b)    D R & MConstruction Pty Ltd ACN 639 668 849.

17    He gives further evidence that, some months ago, the first defendant said to him words to the effect:

When Malixconstructions and DR & MConstructions opened bank accounts in about March 2020, Cindy Kilian was the signatory of the accounts and I have internet banking access to the accounts.

18    Mr Maximos also gives evidence that, approximately two weeks ago, he had a conversation with the first defendant in words to the following effect:

[Mr Maximos]:    “How are you able to transfer funds? How are you able to survive?

How can you pay Omar’s lawyer $3,000 or your rent when your accounts are frozen? I can’t do that.”

[The first defendant]:     “Cindy. She left accounts behind when she left the country.”

19    On 14 June 2022, the Court made freezing orders against the first to fourth defendants and on 17 June 2022, the Court made freezing orders against the sixth to eighth defendants. The Court subsequently granted leave to the plaintiff to apply for the issue of subpoenas for production of various banks.

20    In his affidavit sworn on 10 August 2022, Mr Dale gives evidence that following the making of those orders, the plaintiff filed and served subpoenas, and over a period of weeks, those subpoenas have been returned before the Court.

21    I note that, from time to time, the Court has made orders for access to documents produced under those subpoenas and Mr Dale gives evidence that he has inspected those documents. Those documents have included bank account statements referring to the balance outstanding to the credit of bank accounts which are the subject of the freezing orders made on 14 and 17 June 2022.

22    Mr Dale gives evidence that on reading these bank account statements, he has observed that none of the accounts which are subject to the freezing orders and for which the plaintiff has had access to bank account statements, contain significant funds.

Consideration

Freezing orders

23    In order to make freezing orders, I need to be satisfied that:

(a)    the plaintiff has a reasonably arguable case, both on the law and the facts;

(b)    there is a danger that a prospective judgment would be wholly or partially unsatisfied because the assets of the prospective judgment debtor or another person are removed from Australia or from a place inside or outside Australia or that the assets may be disposed of, dealt with, or diminished in value; and

(c)    the balance of convenience favours the granting of the freezing orders.

24    I am satisfied, based on the submissions of counsel for the plaintiff, Mr Oakes, who appears before me today on this urgent interlocutory ex parte application, that the evidence establishes a strong prima facie case that each of the New Characters, including Ms Kilian, have been involved in the alleged fraudulent scheme propounded by the first defendant.

25    The evidence establishes that Ms Kilian has been a director of each of the other companies comprising the New Characters and in that respect, in particular, I note that she was a director of MalixConstructions Pty Ltd (ACN 639 668 938) and Metro Hubb Pty Ltd (ACN 640 233 021) until March of this year. In those circumstances, I am satisfied that, together with the other evidence, there is a strong prima facie case that Ms Kilian has been involved in the alleged fraudulent scheme as outlined in the judgment of the Earlier Proceedings.

26    I am also satisfied that there is a serious prospect that Ms Kilian and each of the companies comprising the New Characters may have funds that have been generated from this alleged fraudulent scheme in their bank accounts.

27    I make those findings particularly given the absence of any funds found in the bank accounts that have been inspected to date and the similarity of the names of the New Characters with the purported customers as set out in the table above.

28    In addition to there being a strong prima facie case, I am satisfied that the balance of convenience favours the making of the freezing orders. The prima facie case is a strong case, there is a departure from the jurisdiction of a significant potential player in the scheme and there is evidence that the existing freezing orders have been circumvented by having access to accounts which are not currently subject of the freezing orders and in those circumstances there is a real risk there will not be funds ultimately available to satisfy any judgment that might ultimately be delivered against the defendants in these proceedings.

29    For that reason, I am prepared to make, and believe it is appropriate to make, the freezing orders as sought out in the Interlocutory Process.

Substituted service

30    The plaintiff seeks substituted orders for service with respect to each of the following entities:

(a)    D R and MConstruction Pty Ltd ACN 639 668 849, by leaving a copy at, or posting a copy to the address of its sole director, Mark Maximos, being [REDACTED] [REDACTED] [REDACTED];

(b)    Malixconstructions Pty Ltd ACN 639 668 938, by leaving a copy at, or posting a copy to the address of its sole director, Dua’a Tayseer Mohammad Alquoqa, being [REDACTED] [REDACTED] [REDACTED]; and

(c)    Secret Sen Pty Ltd ACN 644 009 450, by leaving a copy at, or posting a copy to the address of its sole director, Omar Eddine, being [REDACTED][REDACTED] [REDACTED].

31    I am satisfied that those orders for substituted service are appropriate and would be likely to bring to the attention of each of those defendants the orders sought in the interlocutory process.

32    The position with respect to Ms Kilian is more complicated. The evidence establishes that Ms Kilian is likely in Canada and, therefore, cannot be served in Australia. In order to effect service outside the jurisdiction in Canada, the plaintiff has sought an order under r 10.44 of the Rules for leave to serve the interlocutory process, the orders of the Court and affidavits relied upon in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 (Hague Convention).

33    Mr Dale gives evidence that Ms Kilian is likely to be located in Canada, the proposed method of service is by process server, the Hague Convention applies in relation to service in Canada and that the proposed method of service is permitted under the Hague Convention.

34    That evidence is based on a review of the website address “dgrlegal.com” and the official website of the Hague Conference on Private International Law (HCCH) located at “www.hcch.net”.

35    Mr Dale also annexes to his affidavit sworn on 10 August 2022 extracts from the Hague Conference on Private International Law website that confirm the contracting parties to the Hague Convention and information in relation to service of documents in Canada under the Hague Convention.

36    Further, Mr Dale gives evidence that, based on the enquiries that he has undertaken and which members of his staff have made, he has not been able to ascertain the current address of Ms Kilian in Canada.

37    I am satisfied that, in all the circumstances, it would not be practicable to attempt service on Ms Kilian notwithstanding the requirement under the Hague Convention to attempt service in a foreign jurisdiction before it is appropriate to consider substituted service. Dispensation pursuant to r 1.34 to comply with r 10.49 of the Rules is exercised rarely, typically only where there is real urgency for service and where the evidence suggests an impossibility or serious impracticability in service by means contemplated by the Hague Convention: Park (as trustee of the bankrupt estate of Tschannen) v Tschannen and Another (2016) 341 ALR 452; [2016] FCA 137 at [15] (Edelman J); Australian Information Commission v Facebook Inc [2020] FCA 531 at [63] (Thawley J);Connelly (liquidator), in the matter of CIMC Rolling Stock Australia Pty Ltd (in liq) v One Rail Australia (FLA) Pty Ltd (No 3) [2021] FCA 1183 at [73] (Downes J).

38    I am satisfied that in this case there is a real urgency for service as there is a real risk that the funds will be dissipated given the inability to date to access any funds in the accounts in respect of which searches, or information, have already been obtained, and that there is a serious impracticability in service by means contemplated in the Hague Convention. I am satisfied that the proposed orders for substituted service sought in the interlocutory process are, with the addition of the last known address as recorded in the Australian Securities and Investments Commission register for Ms Kilian in Australia, sufficient to give rise to a reasonable probability that Ms Kilian will have the matters brought to her attention, that is, these orders, the interlocutory process and the evidence relied upon.

39    I note, in that respect, that the substituted service orders in part provide for sending messages to the Cindy Kilianova Facebook account and to the Instagram account of “Ms Kilianova”. I am satisfied on the evidence that there is a reasonable probability that Ms Cindy Kilianova is a pseudonym that has been used by Ms Kilian given a number of factors that have been identified by the plaintiff including the connection with Canada and her apparent age. If there is any issue with that, no doubt, Ms Kilianova, if she exists independently of Ms Kilian, will draw that to the Court’s attention and to the plaintiff’s attention very quickly.

Other orders sought

40    I note that the plaintiff by its counsel, Mr Oakes, provides the usual undertaking as to damages. Further, I note that the plaintiff seeks orders for delayed service on the New Characters given the concern that the funds may well be dissipated immediately on service of the orders, interlocutory process and affidavits. In that respect, I accept it as appropriate, in the first instance, that the orders be served on the relevant financial institutions by 6.00 pm today and that service on the New Characters be delayed until on or before 5.00 pm on Monday, 15 August 2022.

41    The plaintiff also seeks orders that each of the New Characters be joined as parties to the proceedings. I am satisfied that it is appropriate to make an order pursuant to r 9.05 of the Rules to the effect that each of the New Characters be joined as a party to the proceedings.

Disposition

42    The orders sought in the interlocutory process, subject to the amendments that I have outlined above, will be made.

Associate:

Dated:    10 August 2022

SCHEDULE OF PARTIES