Federal Court of Australia

CIP Group Pty Ltd v So (No 8) [2025] FCA 482

Federal Court of Australia

CIP Group Pty Ltd v So (No 8) [2025] FCA 482

ADDENDUM

DERRINGTON J:

1    On 15 May 2025, I handed down judgment in CIP Group Pty Ltd v So (No 8) [2025] FCA 482. It was promptly (and very properly) brought to my attention that a logical impossibility existed as between the reasons given and orders granted. Specifically, Order 1 envisaged the doing of some act “by 4:00 pm AEST on 26 May 2025”, whereas [44] concluded that it was “appropriate to stay the orders until the expiration of four weeks from today’s date” (being 12 June 2025). The rationale for the stay was “to allow for any institution of an application for leave to appeal”.

2    At a case management hearing between the parties later that day, a consensus was reached that, to best give effect to the regime I had envisaged, Order 1 ought to be amended to read “by 12 June 2025” (emphasis added). That change is reflected in the Orders published by the Court and affords Mr Clancy, in effect, a period of four weeks in which he may comply with Order 1 or embark upon the process of invoking this Court’s appellate jurisdiction.

3    No other change been made to the reasons or Orders handed down on 15 May 2025.

Associate:    

Dated:    16 May 2025

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed 6 March 2025 be dismissed if, by 12 June 2025, Mr Marc Andrew Clancy lodges a bank guarantee (or equivalent form of security) with the Queensland Registry of the Federal Court of Australia that:

(a)    secures the sum of $4,000,000 to support Mr Clancy’s undertaking as to damages as recorded in the Orders of 24 May 2023 (2023 Orders); and

(b)    is in terms satisfactory to a Registrar of this Court.

2.    If Mr Clancy does not comply with the terms prescribed by Order 1 above:

(a)    Order 1 of the 2023 Orders be vacated;

(b)    the Orders of 9 December 2024 (2024 Orders) be vacated; and

(c)    the first and fourteenth to twentieth respondents be released from the undertakings given to the Court on 9 December 2024 (and as set out in the 2024 Orders).

3.    The applicants and second to thirteenth respondents pay the first and fourteenth to twentieth respondents’ costs of this application.

4.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

1    The application before the Court is slightly unusual. It seeks to dissolve an injunction that was granted in May 2023: CIP Group Pty Ltd v So (No 3) [2023] FCA 518 (CIP No 3): and relaxed some 18 months later: CIP Group Pty Ltd v So (No 5) [2024] FCA 1373 (CIP No 5).

Background

The primary dispute

2    The present application is but another shot fired in the litigious battle between companies controlled by Mr Clancy (the Clancy Interests) on the one hand and, on the other, Mr So and certain companies under his general control (the So Interests). The Clancy Interests and the So Interests were, in general terms, engaged in the land development business. Their most recent development involved property in the Logan City Council local government area (the “Carver’s Reach Estate”). For that project, a number of corporate entities were created — namely, the second to thirteenth respondents (the Carver’s Reach Entities): see CIP Group Pty Ltd & Ors v So & Ors (2022) 164 ACSR 566, 569 – 570 [6] – [8] (CIP v So); CIP No 5 [6].

3    Amongst other things, the So Interests were responsible for obtaining finance for the Carver’s Reach development and did so through a number of companies associated with Mr So (and his wider family). Those entities relevantly included UIP 1 Pty Ltd (UIP) and Ultimate Investment Portfolio Pty Ltd (Ultimate) who, in short compass, (a) provided loan facilities to the Carver’s Reach Entities; and (b) held securities over the development land. The loans were subsequently called in. They were not repaid and receivers were appointed: CIP v So, 570 – 571 [14] – [17]. The land was sold for approximately $18.2 million (the Proceeds). It is now said by the Clancy Interests that the effectuation of the aforementioned loans and securities involved a breach, by Mr So, of legal obligations he owed to both the Carver Entities and the Clancy Interests.

Grant of the Injunction

4    On 24 May 2023, an injunction was granted that restrained certain companies controlled by Mr So from, in effect, dissipating the Proceeds (the Injunction): CIP No 3. It provided as follows:

Upon the usual undertaking as to damages given by Mr Marc Andrew Clancy:

1.     The first and fourteenth to eighteenth respondents:

(a)    notify the applicants in writing no later than 7 business days prior to the proposed settlement of any sale of any real property in Stages 7 to 11 of the development (such properties being identified in Annexure A);

(b)     not assign or otherwise deal with any rights, entitlements or interests to any or all proceeds from the sale of any real property in Stages 7 to 11 (Stage 7 to 11 proceeds) under any instrument;

(c)     hold in a trust account maintained by their solicitors, any or all of the Stage 7 to 11 proceeds purportedly payable to the seventeenth or eighteenth respondents pursuant to any asserted right, entitlement, or interest under any instrument;

(d)     save for making any payment into a solicitors’ trust account in order to comply with Order 1(c) above, not dispose of or otherwise deal with or diminish the value of the Stage 7 to 11 proceeds.

2.     Order 1 above is to apply until further order of the Court, or unless the applicants expressly provide prior written consent in respect of any proposed non-compliance orders, a request for such consent to be received no later than seven business days prior to the proposed non-compliance.

5    For present purposes, it is relevant that the Injunction was supported by a personal undertaking given by Mr Clancy: see CIP No 3 [100] – [102]. The evidence then before the Court suggested that Mr Clancy had access to not insignificant funds, though there was some lack of clarity as to his precise entitlement to them. As I noted at the time, “the evidence of Mr Clancy’s worth [had been] pitched at a relatively high level of generality”: CIP No 3 [101].

Relaxation of the Injunction

6    On 1 November 2024, an application was made by the So Interests to vary the Injunction in the terms extracted in CIP No 5 at [11] – [12] (i.e., to enable some degree of access to the Proceeds). Broadly speaking, that application was successful. Amongst other things, it had become rather apparent that Mr Clancy’s prior undertaking as to damages was of little to no value: CIP No 5 [40] – [51]: and the So Interests were “suffering detriment” by reason of their inability to call upon the Proceeds to repay their indebtedness to third parties. It was claimed that interest on those debts were accruing at a not insignificant rate: see CIP No 5 [52].

7    A curiosity of that application was the discordance between the relief which it expressly sought and the substantive argument developed at the hearing. As was noted in CIP No 5 (at [12]):

12     By paragraph 1 of the interlocutory process, the So interests sought that the injunction made on 24 May 2023 be discharged. That, however, was not the focus of the submissions made by the parties during the application where the variation of the injunction to allow the So interests to fund the proceedings was the focus.

8    Relief was granted in the latter respect because that was the basis on which the parties contested the Injunction. However, given the conclusions reached on that application, relief discharging the whole of the Injunction might technically have been granted.

9    The current application is one that now proceeds on the foundation of the conclusions reached in CIP No 5. In particular, the So Interests seek dissolution of the Injunction in toto, and the parties have suitably grappled with the appropriateness of that course.

Two preliminary considerations

10    For the present application, two important considerations arise.

11    First, it is accepted that, should the Injunction be dissolved, the Proceeds will be moved beyond the jurisdiction of the Court. It was also generally accepted between the parties that, were that circumstance to eventuate, it would be nigh impossible for the Clancy Interests to recover that money or any part of it were they to succeed in the primary dispute. While very little was made of the worth of the So Interests or the availability of any available assets in Australia, it is not inappropriate to proceed upon the basis that dissolution of the Injunction will jeopardise the ability of the Clancy Interests to successfully execute any judgment rendered in their favour.

12    Second is the worth of a written undertaking now proffered by Mr Clancy. In an annexure to an Affidavit of Benjamin Timothy Cohen filed 20 March 2025, Mr Clancy undertakes to “cause up to $4 million (or any such amount ordered by the Court) to be paid into an interest bearing account maintained by [his solicitors] to be held to support the undertaking [that undergirds the Injunction]”. That is a somewhat curious proposal. As briefly alluded to, Mr Clancy is a person who has no apparent assets of his own of any great worth: see, eg, CIP No 5 [46], [48]. He has interests in various business dealings and assets, although it is apparent that he has carefully structured his affairs in a manner that is designed to frustrate any attempt by a judgment creditor to recover from him. For instance, many of his “interests” are rights held as a beneficiary in discretionary trusts in circumstances where it appears that he is, if he so wishes, able to exercise a degree of influence over the exercise of the trustee’s powers: see, eg, CIP No 5 [42] – [43].

(Another) Variation of the Injunction?

13    The Clancy Interests urge upon the Court a resolution to the present application based upon the principles relating to the variation of injunctions. Conversely, the So Interests submit that they were technically entitled to the total dissolution of the Injunction on their previous application and that it was only a consequence of the Court adopting a heightened sense of fairness inter partes that such relief was not granted.

14    The general principles relating to the variation of interlocutory orders were surveyed in some detail in CIP No 5 and it is appropriate to recite them here:

Variations to interlocutory injunctions

13    There is little doubt that the Court has wide jurisdiction to vary or set aside any interlocutory order. There is express power to do so by r 39.05(c) of the Federal Court Rules 2011 (Cth), and a similar power exists under s 1324(5) of the Corporations Act 2001 (Cth).

14    In Pivotel Satellite Pty Limited v Optus Mobile Pty Limited [2010] FCA 121 [26], Jagot J observed that, in the matter before her, the principles relating to whether a court should vary a previous interlocutory order were not in dispute and were as follows:

•    A court has jurisdiction to vary or set aside any interlocutory order but the re-litigation of issues already decided, even on an interlocutory basis, is undesirable having regard to the need for finality (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46).

•    The “overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case” (Brimaud at 46).

•    The interests of justice should be assessed having regard to the nature of the interlocutory order in question. Interlocutory orders that are merely procedural or made by consent without any contest are different from substantive orders made after a contested hearing and intended to operate until the final hearing. In the latter case the general rule is that there must be a material change in circumstances or the discovery of new material which could not reasonably have been put before the court on the earlier application (Brimaud at 46).

•    There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49], namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

… one or more of the following factors has occurred or is satisfied:

(a)    there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made …;

(b)    there has been a material change in the circumstances since those orders were made;

(c)    there are exceptional circumstances which warrant re-consideration of the matter…; and

(d)    as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter …

15    There is, of course, much common sense in those principles and, to some degree, the basis for them was referred to by Yates J in Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894 [30]:

In the case of an interlocutory order of a substantial nature made after a contested hearing—in contemplation that the order will operate until the final disposition of the hearing—the usual rule is that a variation (or discharge) of the order must be founded on a material change in circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application: Brimaud v Honeysett (1988) 217 ALR 44 (Brimaud) at 46; Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 (Adam P Brown) at 177-178; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 (Hutchinson) at 447.

(Emphasis omitted).

16    There, his Honour identified that the rationale for the usual rule was that the interlocutory order was made in contemplation that it would preserve the position until the final disposition of the hearing of the action in which it was made. In that sense, it established the status quo for the parties to the litigation pending the trial. Such orders are usually self-evident and begin with the orders “until the trial of this action …”.

17    So much is clear from the observations of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, 46 – 47 (which were cited with approval by Abraham J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 31) [2022] FCA 271 [14]):

Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest “until further order” (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979) .

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164 –5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447 –8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177–8; 35 ALR 625 at 629–30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894.

18    The foregoing views reflect the modern approach to the variation of interlocutory orders, though it must be noted that some earlier authorities suggested a slightly more stringent test in the first instance, such as the need to show “exceptional circumstances”: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466, 478 [39].

Consideration (1): Change in circumstance?

15    Whilst the parties are generally agreed as to the aforementioned assessment, they parted ways in relation to the question of whether there had been any relevant “change in circumstance” (and, perhaps more fundamentally, the date from which any such change was to be assessed). To a large degree, that issue turns upon whether the present application is designed to vary the terms of the Injunction (a) as granted on 24 May 2023; or (b) as varied on 4 December 2024.

16    On one view, adopted by Mr Pomerenke KC for the Clancy Interests, the So Interests made a “forensic decision in November 2024 not to press for a full discharge of the [I]njunction” such that, absent any exceptional circumstance, they could not “revoke, set aside or vary a judgment or order made upon that decision” (at least, not before the primary judge). The necessary result of that submission is that the present application contemplates a variation of the orders made in late 2024 and, thus, any material change in circumstance need to have transpired since then.

17    It may be readily accepted that, except in the “most exceptional” of cases, it would be contrary to principle “to allow a party, after a case had been decided against him, to raise a new argument which … he failed to put during the hearing when he had and [sic] opportunity to do so”: Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd [2005] SASC 112 [11], quoting University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 486. But that proposition plainly does not dispose of the present case in favour of the Clancy Interests (as is seemingly contended).

18    In CIP No 5, it was expressly observed (at [65]) that:

65    … Though the primary relief sought was for an order that the injunction be discharged in toto, as the submissions were not directed to that, it would be inappropriate to grant that relief, even if it might be technically available. Before such an order might be made, the Clancy interests should be given sufficient time in which to respond to any submissions made in support of that order. That is not to invite any further application which, in any event, would be determined on appropriate evidence.

(Emphasis added).

19    As is now readily apparent, the So Interests seek the relief which was pressed on their previous application. That relief was not formally abandoned. Whilst a fresh application was filed with the Court on 6 March 2025, it is, in substance, but a continuation of the former and, thus, should be treated as such. In any case, events have transpired post-4 December 2024 which warrant revisiting the Injunction.

20    In CIP No 5, it was observed (at [52]) that there was “insufficient evidence to establish that Mr Clancy’s undertaking is worth anything, were it to be enforced”: see also [39], [46] and [51]. Some six months later, it is now pellucidly clear that any undertaking as to damages offered by Mr Clancy will be worthless. He has had multiple opportunities to establish the existence of assets in his name which would be accessible were any undertaking provided by him to be called upon. He has not done so. Importantly, on the current application, Mr Clancy did not produce any evidence which would support his financial position. Significantly, no other entity or person has come forward to provide security for the undertaking given in 2023.

21    There is also evidence that Mr Clancy’s personal financial position has recently diminished. In December 2024, the liquidators of the thirteenth respondent (Axis North Pty Ltd (receiver and manager appointed) (Axis North)) commenced proceedings against Mr Clancy and entities associated with him in the Supreme Court of New South Wales. The liquidators seek, inter alia, declarations that (a) Axis North holds an equitable mortgage or charge over property at 67-77 Lasso Road, Gregory Hills; and (b) Mr Clancy breached certain statutory and fiduciary duties owed to Axis North. Further relief is sought to the effect that Mr Clancy account to Axis North for profits alleged to have been made as a consequence of the aforementioned breaches. That is significant in circumstances where Mr Clancy has previously claimed to have held a financial interest in the Lasso Road property (i.e., to support his undertaking): CIP No 5 [42].

22    Further, on 24 February 2024, orders were made that the total costs payable by the applicants in proceedings QUD 222 of 2022 and QUD 188 of 2023 were to be met by, inter alia, Mr Clancy in an amount of $325,000. That amount was paid shortly prior to the hearing of this application and, on any view, signifies a not insignificant decrease in the funds available to Mr Clancy.

23    In this context, it is relevant that no submission was made by the Clancy Interests to the effect that any assertion that Mr Clancy’s undertaking was “worthless” was incorrect. Instead, it was submitted that this conclusion was one that had already been arrived at in December 2024 such that no material change in circumstance could be said to have transpired since that time. Whilst it is rather difficult to accept that submission in light of the foregoing, it nonetheless helpfully illustrates a central and decisive consideration in this application – namely, the importance of the giving of a valuable undertaking as to damages to support interlocutory injunctive relief.

Consideration (2): Proof of a valuable undertaking as to damages

24    It is not presently necessary to explicate the importance or rationale for the giving of a valuable undertaking as to damages as the price for obtaining an interlocutory injunction (ie, the usual undertaking). Any person affected by such an injunction should receive compensation for any loss they suffer by reason of it in the event that the applicant who obtained it, was not entitled to it. The undertaking is required to ensure that this remediation of damage can be achieved: see Graham v Campbell (1878) 7 Ch D 490, 494 – 495. In this respect, its import cannot be understated in circumstances where a court makes an order at an interlocutory stage and before the rights of the parties are finally determined: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 311. In ordinary circumstances, it would be inappropriate to grant injunctive relief without ensuring that the parties who would be adversely affected by it have real recourse to remediate the prejudice which they may suffer from it being granted. It is often said that the price of an interlocutory injunction is the giving of a valuable undertaking as to damages: see, eg, Director of Public Prosecutions (WA) v Yeo [2012] WASC 440 [7] – [8]; Bensons Funds Management Pty Ltd v Body in Balance Chiropractic Pty Ltd [2015] VSC 280 [27]: and that almost ubiquitous principle should not be diminished.

25    The existence of such an undertaking is also, in the ordinary course, a very relevant factor in any assessment of the balance of convenience. In Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828, Einstein J observed (at [334]):

Where the court is balancing monetary disadvantages as between a plaintiff and defendant, the inability to give a valuable undertaking as to damages is a factor which can be taken into account in assessing the balance of convenience, and may be decisive: Wentworth v Wentworth (Unreported, Supreme Court of New South Wales, 12 June 1997, Hodgson J.)

Is there proof of a valuable undertaking as to damages?

26    For the reasons assayed above, no adequate personal undertaking has been made by Mr Clancy. The evidence does not reveal that he has any assets of his own which he might use to make good any undertaking. To be frank, there is no suggestion that there are any assets whatsoever which will remain in existence as at the end of the proceedings and against which judgment might be executed.

27    To that, it might be added that a fair inference arises that Mr Clancy is a person who is prepared to engage in business (such as that with the So Interests) whilst seeking to diminish the potential for any judgment entered against him personally to be effectively enforced. In other words, he seems to have organised his affairs in such a way as to ensure that he is, effectively, judgment proof. That is not unlawful. If people wish to do business with a person who has so structured their affairs, it is a matter for them regardless of how precarious it may be. Nevertheless, it is not irrelevant that it can be inferred from the evidence available on this application that Mr Clancy is a person who seeks to afford himself the ability to avoid paying his debts if that is the course he chooses. This conclusion, which admittedly has not been put squarely to Mr Clancy, is of some moment when considering the value of his newly proposed security to “support” his prior undertaking.

The proposed security

28    For the purposes of the hearing of this application, and as referred to above, Mr Clancy made an offer of an undertaking to the Court in the following terms:

I, Marc Andrew Clancy, undertake:

(a)    within 30 days of the date of any order of the Court, to cause up to $4 million (or any such amount ordered by the Court) to be paid into an interest bearing account maintained by Bartley Cohen, to be held to support the undertaking given by me and as recorded in the order of Justice Derrington dated 24 May 2023 in QUD93/2022 (the 24 May 2023 order) (unless such sum is otherwise already held by Bartley Cohen for this purpose);

(b)    that in the event the Court determines it to be just for payment of compensation to be made to any person, whether or not that person is a party, affected by the operation of the 24 May 2023 order or any continuation (with or without variation) of that order, to do all things as are reasonably necessary to enable those persons to whom compensation has been ordered to recover such compensation out of the funds referred to in subparagraph (a) above.

(Emphasis omitted from original).

29    Several difficulties inhere within this proposal. Most concerningly, the origin of the money which will be paid into the trust account is unknown. Whilst Mr Clancy may cause the money to be paid into the trust account, it is not at all clear that other persons or companies will not have some claim(s) upon those funds. It may be that if the funds are called upon to meet any damages suffered as a result of the Injunction, some third party will crawl out of the woodwork to assert an interest in the money. For instance, if the money is paid by a company related to Mr Clancy but for purposes other than to advance the interests of that company, it may be that the totality of the funds can be recovered by that company. There may also exist third party creditors of that company who would also claim to have their debts met from the funds if the provider of the funds becomes insolvent.

30    In this way, it is unclear how the security proffered could be “held to support the undertaking” in circumstances where the origin of the funds is wholly unknown. Again, neither Mr Clancy’s undertaking nor an order of this Court could diminish the rights of third parties to those funds. In circumstances where Mr Clancy structures his affairs in the manner that he does, it would be folly to accept that the proposed $4 million security was necessarily devoid of other interests without any modicum of evidence to that effect.

31    In the above circumstances, the proposed offer made by Mr Clancy is insufficient to support the continuation of the Injunction. That being so, it may nevertheless be assumed, in his favour, that he is prepared to do whatever it takes to ensure that unencumbered assets up to $4 million will be available to meet any undertaking as to damages. On that premise, it would not be inappropriate to refuse the relief sought on the basis that the amount of $4 million is adequately secured for the purposes of being an effective security for any undertaking. In the context of this case, he should be given an opportunity to maintain the Injunction if he is able to provide that valuable security.

Other considerations raised

Prejudice to Ultimate or UIP under the Injunction

32    At the hearing of the application, a submission was made to the effect that the Injunction was not causative of substantial harm to Ultimate or UIP. It was said that there exists serious doubt as to whether those companies are entitled to interest on the amounts which the Carver’s Reach Entities are alleged to owe to them and which might have been deducted from the Proceeds. Additionally, it was said that there was serious doubt as to the quantum of the interest payable.

33    The origins of this submission derive from a report of a Mr Daniel Jon Quinn (dated 21 March 2025) that was commissioned in or about December 2024 (Quinn Report). Mr Quinn purports to have undertaken a forensic analysis of the indebtedness as between the parties. Amongst other things, he concludes that the Carver’s Reach Entities were not indebted to Ultimate, and certainly not in the amount of some $7 million (as alleged by the So Interests). Rather, he says Ultimate was in fact indebted to the Carver’s Reach Entities as at 29 November 2019 in the sum of $285,063.22. He further says, in relation to the notices of demand served on the Carver’s Reach Entities on 10 December 2021, that the amount owing under the relevant loans was $116,110 and not $10,801,334 (as alleged by the So Interests). Mr Quinn also asserts that the Carver’s Reach Entities’ (a) accounting records “do not reflect” the true position of the balance of the loan to Ultimate; and (b) financial statements are “unreliable”.

34    In that context, it was submitted by Mr Pomerenke KC that “the appropriate amount for any security ought to be substantially less than the $3.6 million calculated by the So Interests”.

35    However, and as agitated by Mr Couper KC for the So Interests, the conclusions sought to be drawn from the Quinn Report are rather problematic given the current state of the pleadings. The So Interests submit that, presently, there is no relevant challenge to the indebtedness of the Carver’s Reach Entities and, necessarily, an amendment would be required to put that in issue. In a similar vein, it was further submitted that there are no allegations in the statement of claim that the loan amounts asserted are incorrect, and no allegation that Ultimate owed the Clancy Interests any money. More importantly, for the purposes of the current application, it was not possible for the So Interests to adequately digest and respond to the Quinn Report. It was only received by the So Interests on 21 March 2025, being less than two weeks prior to the hearing of this application. Given the report was some three months in the making and the So Interests were not availed of any advance notice of its production, it is not unreasonable for them to now quibble with the sufficiency of the time in which they have had to respond to it.

36    In light of the foregoing circumstances, it is appropriate to rely upon the issues as they exist on the pleadings where the Clancy Interests have not sought to cavil with the indebtedness to UIP or Ultimate in any substantive way. Certainly, they had not raised the issue of the exact level of indebtedness and an amendment is required to make it relevant. It is noted that they have filed an application for leave to make such an amendment (amongst others) on 2 May 2025, though it has not yet been heard.

37    Therefore, on the basis of the issues as they currently exist on the pleadings, there is a real likelihood that the So Interests, including UIP and Ultimate, will continue to suffer prejudice by not being able to have recourse to the funds which are presently the subject of the Injunction: see, eg, CIP No 5 [52]. Hence, the existence of future prejudice must be assumed.

Merits of the action

38    In the course of the hearing of this application, counsel for the Clancy Interests sought to take the Court to the merits of the action as it is presently constituted. There is, of course, no difficulty with that course. Much of those submissions sought to undermine the So Interests’ defences by reference to legal issues rather than factual issues. Whilst there is undoubted force in the submissions made, it is not possible, in the absence of a full hearing of the circumstances in which the issues arose, to reach any conclusion in relation to them. There is, unquestionably, a serious question to be tried as to the entitlements to the proceeds of the Carver’s Reach Development though, prima facie, UIP and Ultimate have rights under their loan agreements and securities to recover them: CIP No 5 [1].

Conclusion

39    It follows that the Court should proceed on the basis that an injunction exists in relation to an asserted claim of right by the So Interests, in particular UIP and Ultimate, in relation to the unpaid loan agreements. There is no doubt those agreements were entered into. Although Mr Clancy now challenges their validity, it cannot be overlooked that, prima facie, loan amounts are owed by the Carver’s Reach Entities to UIP and Ultimate, and the monies which Ultimate and UIP seek to use to discharge those loans (i.e., the Proceeds) is the subject of an injunction. On that basis, those entities will suffer damage as a consequence of the Injunction as a result of their upstream liabilities. Thus, it is likely that they will continue to incur loss and damage if the Injunction remains in place. The absence of any valuable undertaking as to damages will further imperil their position. Whilst Mr Clancy has indeed proffered an undertaking of sorts, the source of funds which he intends to rely upon are not identified and the veracity of them as funds against which the undertaking as to damages might be met is questionable at best.

40    In these circumstances, and although some question exists as to the amount of indebtedness owing to UIP and Ultimate, the circumstances are such that the Injunction should be dissolved in the absence of any valuable undertaking.

41    The one practical difficulty with such a course is the reality that if the Injunction is dissolved, the Proceeds will be transferred out of the jurisdiction and beyond the reach of the Court. As undesirable as that may be (at least for the Clancy Interests), the Injunction was not intended to act as a freezing order in respect of the assets of the So Interests and there is insufficient material presently before the Court to establish all those matters required to make such an order. Despite that, the risk exists that the proceeds of sale may be transferred overseas and be unrecoverable thereafter.

42    Therefore, rather than dissolve the Injunction immediately, it is appropriate to give the Clancy Interests a final opportunity to provide real security for the undertaking as to damages. That being so, if the sum of $4 million is secured by a bank guarantee in terms satisfactory to a Registrar of this Court, or in a similar form satisfactory to the Registrar, within 11 days, the Injunction will remain. If not, it is to be dissolved.

43    The amount of $4 million is adopted as that was the amount offered by the Clancy Interests and, presumably, it is a sum that is within the ability of those parties to accumulate.

Grant of Stay

44    In the course of the hearing I indicated that I would temporarily stay these orders to allow the parties to appeal if they saw fit. That is not any recognition of any deficit in the reasons or the orders made. It is merely because the consequences of lifting the Injunction is likely to be significant. That being so, it is appropriate to stay the orders until the expiration of four weeks from today’s date to allow for any institution of an application for leave to appeal.

Costs

45    Given that the So Interests have had substantive success in the application, it is appropriate that they be entitled to their costs.

Associate:    

Dated:    15 May 2025

SCHEDULE OF PARTIES