FEDERAL COURT OF AUSTRALIA

Sydney Markets Limited v Latham (Urgent Freezing Order) [2025] FCA 501

ORDERS

THE COURT ORDERS THAT:

1.    Upon the undertaking of the solicitors of the Applicant to pay any filing fees, leave is granted to file in court:

(a)    the Originating Application;

(b)    the Interlocutory Application; and

(c)    the Affidavit of Dianne Margaret Banks dated 13 May 2025;

(d)    the Affidavit of Dale Robert Doonan dated 13 May 2025,

(collectively, the Court Documents).

2.    Leave is granted for the Originating Application and the Interlocutory Application to be returnable instanter as to the interlocutory orders claimed herein.

3.    Leave is granted pursuant to rule 1.39 of the Federal Court Rules 2017, that the time for the service of the Court Documents and the orders made by the Court be abridged to 9:00 am on 15 May 2025.

4.    Pursuant to rule 10.24 of the Federal Court Rules 2011, service be effected on the Respondent, Bradley Roland Latham, by one or more of the following means:

(a)    handing a copy of the documents to the Respondent in person; and/or

(b)    sending a copy of the documents to email address brad.latham@outlook.com, and

(c)    leaving a copy of the documents at 17 Davis Place Glenhaven NSW 2156, being the residential address of the Respondent.

5.    Upon provision by the Applicant of the usual undertaking as to damages, and the additional undertakings specified in Schedule A to Annexure 1 of these orders, an order pursuant to rule 7.32 of the Federal Court Rules 2011 in the form of the order specified in Annexure 1 to these orders.

6.    Until further order, Bradley Roland Latham is to preserve, and not to destroy or delete, any document or information relating to Sydney Markets Limited.

7.    The matter be stood over until 2:15pm on 19 May 2025 before the Duty Judge for any application made by the Respondent to vacate or revoke any of the orders made by the Court as specified in Annexure 1 to these orders.

8.    These orders be entered forthwith.

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

Annexure 1 – Freezing Order (Made without Notice)

Penal Notice

To: Bradley Roland Latham

IF YOU (BRING THE PERSON BOUND BY THE 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: BRADLEY ROLAND LATHAM

This is a ‘freezing order’ made against you on 14 May 2025 by Justice Needham 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 that:

Introduction

1.    

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

(b)    The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 9 am on 15 May 2025.

2.    Subject to the next paragraph, this order has effect up to and including 19 May 2025 (the Return Date). On the Return Date at 2:15pm there will be a further hearing in respect of this order before the Duty Judge.

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.

(e)    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.

5.    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$1,377,762 (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.

7.    For the purposes of this order:

(a)    your assets include:

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

(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); and

(iii)    the following assets in particular:

A.    the property known as Lot 1 in Deposit Plan 1119363, being 17 Davis Place Glenhaven, NSW, 2156 or, if it has been sold, the net proceeds of the sale;

B.    the property known as Lot 2 in Strata Plan 44506, being 2/16 Dunning Avenue, Bateau Bay NSW 2261 or, if it has been sold, the net proceeds of the sale;

C.    any money in account 0040310, in the name of Mr B R and Mrs T A Latham held by the Commonwealth Bank of Australia at its Sydney Markeys branch;

D.    any money in account 605669, in the name of Bradley Roland Latham held by the Commonwealth Bank of Australia at its Sydney Markeys branch; and

E.    any money in account 802084, in the name of Bradley Roland Latham held by HPC Cuscal Limited at its Australian Mutual Bank branch.

(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;

(b)    within 5 working days after being served with this order, swear, file 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)    paying up to $2,000 a week on your ordinary living expenses;

(b)    paying $20,000 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 applicant, 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 $1,377,762 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 respondent

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 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.

SCHEDULE A

Undertakings Given to the Court by the Applicant

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.    As soon as practicable, the applicant 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, or, if none was filed, any draft originating process produced to the Court.

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

4.    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.

5.    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.

6.    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.

7.    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.

EX-TEMPORE REASONS FOR JUDGMENT

(Revised from Transcript)

NEEDHAM J:

1    I have today heard an urgent ex parte application by Sydney Markets Limited for freezing orders against Bradley Roland Latham, its former chief executive officer, whose employment was terminated on 16 December 2024. The applicant relied upon affidavits from Ms Banks, a partner of Gilbert + Tobin, solicitors for the applicant, and Mr Doolan, a former director and former acting chief financial officer of the applicant. Ms Bulut appeared on this application and provided useful oral and written submissions. Having considered those materials, I am satisfied that it is appropriate to grant relief substantially in the terms sought. These are my reasons.

2    The relevant principles to be applied in considering an application for a freezing order were recently summarised by Feutrill J in UFC Enterprise Morley Proprietary Limited v UFC Enterprise Northbridge Proprietary Limited [2024] FCA 1396 at [13]. That summary is as follows:

(1)    The language of r 7.32 of the Rules reflects what has been considered to be a general power of the Court to grant a Mareva injunction under s 23 of the Federal Court of Australia Act 1976 (Cth): Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 622-623 (Deane J).

(2)    As a general proposition, a freezing order may be granted if the applicant demonstrates a prima facie or good arguable case for final relief and the circumstances are such that there is a danger of the respondent absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that there is a danger that the applicant, if it gets judgment, will not be able to get it satisfied: Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; 273 ALR 194 at [8] (Kenny J) and the authorities there cited.

(3)    The reference in r 7.32 to a ‘danger’ that a judgment or prospective judgment will go wholly or partly unsatisfied is a reference to a risk of that outcome. The risk must be real or substantial as opposed to a remote or speculative or theoretical possibility. The applicant must prove facts from which the Court can infer the existence of a real or substantial risk on the balance of probabilities: Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; 53 WAR 201 at [42]-[43] (Buss P, Murphy and Mitchell JJA) and the authorities there cited.

(4)    It is not necessary to establish that judgment will be unsatisfied unless a freezing order is made. Nor is it necessary to demonstrate that a respondent has a positive intention to frustrate a judgment. However, there must be facts from which ‘a prudent, sensible commercial’ person can ‘properly infer a danger of default if assets are removed from the jurisdiction’. That may include facts concerning a lack of available information about a respondent: Hua Wang Bank Berhad at [9]-[12] (Kenny J) and the authorities there cited. See, also, Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; 84 NSWLR 141 at [59]-[60] (Bathurst CJ, Beazley P and Barrett JA agreeing); Trans Global Projects at [45].

(5)    The mere fact of removal or danger of removal of assets from the jurisdiction will not necessarily give rise to a danger or risk that a judgment will go unsatisfied. In this regard, it is necessary to take into account any reciprocal regimes for the registration and enforcement of judgments and other means by which a judgment may be enforced: Trans Global Projects at [47]-[48]; Severstal Export at [63]-[65].

(6)    Ultimately, it is a question for evaluation by the Court as to whether the degree of the danger or risk is sufficient to justify an order in the terms made. In making that evaluative assessment, the Court will bear in mind that a freezing order is a drastic remedy which imposes a severe restriction on a respondent’s right to deal with its assets, and that the purpose of the order is not to provide security for a judgment which the applicant hopes to obtain and fears might not be satisfied: Trans Global Projects at [44] and the authorities there cited.

3    I have considered in this case whether there is a good, arguable case for final relief and whether there is a degree of danger or risk that any judgment obtained will not be met due to dissipation of assets. A further element of my consideration is whether the balance of convenience favours the making of the orders sought and the effect on other persons. As to the risk or danger of an unsatisfied judgment, as Perram J explained in Deputy Commissioner of Taxation v Chemical Trustee Limited (No 4) [2012] FCA 1064 at 23:

… this does not mean that the court need be satisfied that the risk of dissipation is more probable than not, and there does not necessarily need to be evidence of any intention to dissipate.

Is there a good, arguable case?

4    The evidence before me includes evidence from Mr Doolan who first uncovered what is alleged to be the existence of an Audi Q5 which had been purchased by the applicant but not apparently allocated to any particular staff member of the applicant. Mr Doolan, in his role as acting CFO, made inquiries of the respondent and was told that he had no knowledge of the existence of the car. The respondent made this statement at least twice, including at a meeting of the applicant's Finance, Audit, Risk & Remuneration Committee.

5    Mr Doolan's evidence is that two days after this meeting, a contractor informed him that the car was in the car park at Flemington Markets and that the respondent had asked him to collect the car about a month earlier from the daughter of the former chair of the applicant, who had resigned in March 2023 and later died in 2024. The contractor was also asked by the respondent to delete the hard drive of a computer belonging to the applicant, which request he did not carry out.

6    Following on from this discovery and taking into account the denials by the respondent, the respondent's employment was terminated. Following this, the applicant instructed Gilbert + Tobin and KordaMentha to investigate its financial accounts.

7    The KordaMentha report is in evidence before me and includes the primary documentation behind its investigation, and concluded that the applicant had been involved in misconduct, which the applicants submits included a payout of sick leave to which he was not entitled, personal use of company credit cards and other personal expenditure, sales of motor vehicles purchased by the applicant to family members at an undervalue, and private use of company property such as travel credits issued to the company after the COVID cancellation of a trip to Italy and Thailand, ostensibly to attend a conference. Those travel credits included the travel credits of the former chair, his wife, and daughter.

8    The claimed loss is a total of $1,377,762.

9    On the basis of Mr Doolan's evidence and the KordaMentha report, I am satisfied that there is a good, arguable case on the basis of the low threshold discussed in Ninemia Maritime Corporation v Trave Schiffahrts-Gesellschaft mbH und Co KG (the Niedersachsen) [1983] CLR 234 at 235 per Mustill J.

Danger or risk that a prospective judgment will be unsatisfied.

10    On the affidavit evidence and submissions, I was satisfied that the applicant had demonstrated that there was sufficient danger or risk of dissipation by Mr Latham of personal assets to support the making of the interim orders sought.

11    I was taken to the decision in Patterson and BTR Engineering (Australia) Limited (1989) 18 NSWLR 319 at 325 per Gleeson CJ, where the Chief Justice said that a Mareva injunction was justified in that case because there was a danger that the appellant would dispose of his assets in order to defeat any judgment that might be obtained against him and that such danger was sufficiently substantial to warrant the injunction.

12    The current case in one which the plaintiff claims that the defendant, making use of a corporation controlled by him, fraudulently misappropriated a large sum of money.

13    The long history of the matters in the KordaMentha report and the apparent amendment of documentation to disguise payments for personal items, such as a putting green at the respondent's house instead of artificial grass at a market's playground, and a screen capture of an entitlement to "banked" sick leave which was not a picture of the actual agreement between the parties, persuades me that there is such a risk which is sufficient to make an order on an interim and urgent basis.

Evidence of assets

14    There was evidence of assets in Australia, being a home owned by the respondent and his wife, another property owned by him alone, and three bank accounts, one of which was a joint account with his wife.

15    There was no evidence as to the value of the properties. One is a home in Glenhaven and the other a townhouse in Bateau Bay. Each of them is subject to a mortgage.

What is the balance of convenience?

16    The order sought was for a short period with a return date for a further hearing on notice to the respondent. For reasons that I have given, it has been demonstrated that there is a danger or risk of assets being dissipated. The real property assets are passive and, as yet, I have no evidence that there would be any material prejudice to the respondent.

17    While his wife is a joint owner of their home and one of the bank accounts, the order is for a period of some five days and the protections provided for by orders in the form usually issued have been proposed. I am of the view that the balance of convenience, given the amount in issue and the fact that two of the assets are real estate, favours the grant of an interim order. I note that the form of orders generally complies with the form annexed to the Court's practice note GPN-FRZG.

Abridged service

18    The orders require service by 9 am tomorrow, by email and by leaving the documents at the respondent's home and, if possible, by serving him in person. That regime seems to be appropriate, given the short period of time between today and the return date, which will be 2.15 pm on Monday, 19 May 2025 before the duty judge.

Associate:

Dated:    19 May 2025