Federal Court of Australia

Hillier v Martin (No 22) [2025] FCA 507

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 18 February 2025 is dismissed.

2.    I will hear the parties as to costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    This proceeding has a regrettably long history, bedevilled by much procedural activity. The originating application was filed on 11 August 2020. Primarily it is an orthodox claim for an account of income, profits and assets for the conduct of trading trusts concerning a fast-food business in Adelaide known as Nordburger. The applicant is Mr James Hillier. Initially, he framed the proceeding only against Mrs Victoria Martin, who is his sister. Her husband is Mr Thomas Martin, who was a partner in a law firm. Mr Martin is not a party to this proceeding. Over time the number of respondents has grown. There are now five in addition to Mrs Martin: Nordburger Operations Pty Ltd, Erik Vari Pty Ltd, Stephen Bradley Williams, Norman Waterhouse Lawyers (a firm) and Norman Waterhouse Lawyers Pty Ltd. Presently, Mrs Martin is a litigant in person. The other parties have the benefit of legal representation.

2    The proceeding has spawned 21 published interlocutory judgments, from several docket judges. Justice Charlesworth was the docket judge from August 2020 to September 2022, until responsibility was allocated to O’Sullivan J who continued until May 2024, when I assumed responsibility. To date there are 233 filed documents, mostly comprising interlocutory applications, affidavits and submissions in support. It has not progressed to the allocation of a hearing date due to unresolved applications by Mrs Martin for leave to appeal interlocutory orders made by O’Sullivan J.

3    There are and have been multiple satellite proceedings. In filing order they commence with SAD 137/2021 - Victoria Martin v James Hillier, an application for leave to appeal Hillier v Martin (No 4) [2021] FCA 710 which was dismissed on 12 August 2021: Martin v Hillier (No 2) [2021] FCA 710. Next SAD 32/2022 - Victoria Martin v James Hillier, an application for leave to appeal Hillier v Martin (No 10) [2022] FCA 166, which was dismissed on 6 April 2022: Martin v Hillier [2022] FCA 351. This was followed by SAD 40/2024 – Victoria Martin v James Hillier, an application for leave to appeal Hillier v Martin (No 19) [2024] FCA 210, which matter is presently reserved for judgment. Finally, there is SAD 223/2024 - Victoria Martin v Registrar Cridland, an application for judicial review of a registrar’s decision to refuse to accept for filing certain amended documents in proceeding SAD 40/2024. Mrs Martin was successful in that application before McDonald J: Martin v Registrar Cridland [2025] FCA 45.

4    The plaintiff’s pleadings have reached the point of the Third Amended Originating Application accepted for filing on 3 November 2022 and the Fifth Amended Statement of Claim filed on 10 August 2023. This is an occasion for reductionism. I am very grateful for the succinct summary of the primary claims (putting aside those against the legal respondents) that Charlesworth J set out in Hillier v Martin (No 12) [2022] FCA 952. Although her Honour was then concerned with the Third Amended Statement of Claim, her summary remains accurate for present purposes to understand the scope of the dispute between Mr Hillier, Mrs Martin and her related corporations. The summary at [13] is (omitting cross-referencing to paragraphs in the pleading then considered):

The facts and circumstances pleaded by Mr Hillier in the third amended statement of claim include:

1)    From 2012 there existed a joint venture agreement between Mr Hillier, Mrs Martin and Mr Andrew Craig on behalf of the third respondent Erik Vari Pty Ltd (hereafter Craig) pursuant to which a hamburger businesses trading under the name Nordburger was established and operated.

2)    The parties’ interests in the joint venture are 50% to Mr Hillier, 30% to Craig and 20% to Mrs Martin.

3)    Under the terms of the joint venture, the parties were entitled to enjoy the profits of the joint venture according to their shares in the joint venture and Mr Hillier was entitled to participate in the control of the joint venture to the extent of his share.

4)    In November 2014 the parties agreed to a variation of their interests in the joint venture including by way of Mr Hillier offering to Mrs Martin a further 10% share as a gift.

5)    In March 2015 Heads of Agreement were executed by Mr Hillier, Mrs Martin and Craig confirming matters they had previously discussed as to their ownership interests, reflecting 40% to Mr Hillier, 35% to Mrs Martin and 25% to Craig. The gift offered or made to Mrs Martin has no effect in law or equity because of other pleaded matters, such that Mr Hillier retains a 50% interest.

6)    In March 2013 Nordburger Pty Ltd was incorporated.

7)    Mrs Martin acquired the legal interest in all of the 100 issued shares on the terms of the joint venture agreement.

8)    Mrs Martin became the sole director of Nordburger Pty Ltd on 14 March 2013.

9)    Mr Hillier made further contributions of money and effort to the Nordburger business in the sum of approximately $342,000, primarily devoted to the establishment of a Nordburger restaurant in Norwood.

10)    Mrs Martin made no monetary contribution to the establishment of the Nordburger restaurant in Norwood and has contributed no capital of her own to the joint venture.

11)    By virtue of the joint venture agreement, Mrs Martin has been the trustee “of the businesses and other assets and income” of the joint venture for the benefit of herself, Mr Hillier and Craig in accordance with the terms of the joint venture agreement.

12)    By virtue of her position as trustee, Mrs Martin has held the shares in Nordburger Pty Ltd and any other corporate entities established by her to conduct the businesses of the joint venture on trust for herself, Mr Hillier and Craig in accordance with the terms of the joint venture agreement.

13)    Mrs Martin owes fiduciary duties to Mr Hillier both by virtue of her position as trustee and by virtue of her position as a joint venturer, namely a duty to act in the best interests of Mr Hillier, a duty not to profit from her position as trustee or fiduciary without the informed consent of the other joint venturers, and a duty to avoid a conflict between her own interests and her duties as trustee or fiduciary without the informed consent of the other joint venturers.

14)    In addition to the Norwood restaurant, additional restaurants were established at Hindmarsh, Frewville and Chinatown.

15)    There have been attempts to establish and document a formal structure for the joint venture in accordance with its terms. In the course of those attempts, Mrs Martin represented to Mr Hillier that he had at least a 40% interests in the joint venture and its assets and businesses, and that she held no more than a 35% interest, and that any interest she had in Nordburger Pty Ltd was held on terms that reflected the ownership interests in the joint venture and its assets and businesses (equity representations).

16)    The equity representations embodied a representation that Mr Hillier was entitled to receive payment of a share of the joint venture profits as and when they were derived proportionate to his share in the joint venture, and to participate in the control of the joint venture as and when the occasion arose, with an effective say proportionate to his share in it.

17)    In 2016 Mr Hillier executed a document titled “Deed Poll”. Mr Hillier was induced to execute the Deed Poll in circumstances amounting to economic duress, undue influence, unconscionable conduct in equity and within the meaning of the Australian Consumer Law (ACL) and misleading and deceptive conduct such that it is void at law or liable to be set aside.

18)    Mr Hillier received payments out of the income of the joint venture, including payments of $4,000 per week between November 2016 and November 2019. The payments were by way of weekly distributions and not pursuant to a consultancy agreement prepared by Nordburger Pty Ltd (upon which the respondents rely).

19)    Since 29 April 2016 Mrs Martin has taken or assumed the sole and effective control of the joint venture and its assets and its businesses to the exclusion of Mr Hillier.

20)    Mrs Martin’s assumption of control constitutes a breach of the joint venture agreement, a breach of trust, a breach of her fiduciary obligations and contraventions of the ACL.

21)    Since April 2016, the joint venture has earned profits which have been received and dealt with by Mrs Martin.

22)    Mrs Martin has failed to pay Mr Hillier his agreed share of the profits derived from the joint venture since the period she assumed control to his exclusion:.

23)    The failure to pay Mr Hillier’s agreed share of profits also constitutes a breach of trust, a breach of fiduciary duties, a departure from the equity representations and contraventions of the ACL:.

24)    Mrs Martin has paid or kept to herself the profits of the joint venture in excess of her entitlement.

25)    Mrs Martin has paid to herself a salary of $200,000 per annum without providing services to the joint venture commensurate with and justifying such payments.

26)    The payments were made in breach of the obligations referred to above and in breach of the ACL.

27)    In January 2020 Mrs Martin informed Mr Hillier for the first time that she had restructured the Nordburger business by utilising a trust structure that provided for him as a beneficiary.

28)    In response to a request for information Mr Hillier made under the Trustee Act 1936 (SA), he was provided with documentation relating to a new discretionary trust established on 29 October 2019, the Nordburger Holdings Trust (NH Trust).

29)    The documentation provided to Mr Hillier records:

a)    the establishment of a new entity, Nordburger Operations Pty Ltd (a company then wholly owned and controlled by Mrs Martin);

b)    the appointment of Operations as trustee of the NH Trust on 2 December 2019;

c)    Mrs Martin transferred intellectual property owned by the joint venture to Operations; and

d)    Mrs Martin claims to be the ultimate economic owner of the assets purportedly the subject of the NH Trust, which assets are properly the assets of the joint venture.

30)    The actions recorded in the documents were undertaken by Mrs Martin and were undertaken in breach of the joint venture agreement, breach of trust, and breach of her obligations as a fiduciary.

31)    The actions recorded in the documents were of no valid effect on the terms and operations of the joint venture agreement and the joint venture.

32)    Mrs Martin’s actions were undertaken at a time when she was the sole director and shareholder of Nordburger Pty Ltd and Operations and their controlling mind.

5    The relief sought in the latest version of the statement of claim is extensive. In broad summary: declaratory relief that Mr Hillier and Mrs Martin are bound by the Nordburger Joint Venture Agreement and to their proportionate interests therein; that Mrs Martin has held the shares in Nordburger Pty Ltd on trust on the terms of the Joint Venture Agreement; that Mrs Martin holds all shares in Operations on the terms of the Joint Venture Agreement and that Operations holds the shares in Nordburger Pty Ltd and all intellectual property rights on trust on the terms of the Joint Venture Agreement. Consequential relief is sought, including declaratory relief that the Deed Poll is void and that it be set aside in equity and/or pursuant to s 237 of the Australian Consumer Law, an account of all income, profits and assets of or derived through the conduct of the Nordburger business (including related entities), a refund of all money and other property unlawfully taken by Mrs Martin from the Joint Venture, damages and equitable compensation.

6    Separately, a conspiracy is alleged between Mrs Martin, Stephen Williams and the lawyers. It is unnecessary to presently attempt to summarise the detail of that claim, save to note that it is said that a component of the conspiracy is that Stephen Williams and the lawyers have pursued “vexatious and frivolous processes” in the defence of this proceeding for the purpose of causing “unnecessary delay legal costs and expense with the object of suppressing or defeating” the claims of Mr Hillier. The particulars of that allegation reference 10 published judgments of this Court.

7    Mrs Martin filed a defence to the Third Amended Statement of Claim on 9 September 2021. She has not filed a defence to the Fifth Amended Statement of Claim. Operations does not have the advantage of a defence. On 19 October 2021, Charlesworth J determined that it had failed to comply with earlier orders for an extension of time within which to file a defence and refused an application to extend time: Hillier v Martin (No 8) [2021] FCA 1272. The consequence is that, pursuant to orders made on 28 September 2021, it is not entitled to rely on any defence to the claims and its participation is limited to an entitlement to be heard at the trial but: “only in respect of the terms of the final relief (if any) to which the applicant may be entitled should the facts alleged in the third amended statement of claim or any subsequent amended statement of claim be established”.

8    I next address the purpose of this judgment. Mr Martin by interlocutory application accepted for filing on 11 March 2025, seeks the following orders:

1.    The orders made by the Honourable Justice Charlesworth in the within proceedings pursuant to Division 7.4 of the Federal Court Rules 2011 being:

a.    Order 4 made on 29 March 2022

b.    Order 1 made on 6 April 2022

c.    Order 1 made on 29 April 2022; and

d.    All Orders made on 17 August 2022,

be set aside.

2.    The first respondent and the second respondent be released from the undertaking given in compliance with Order 1 made on 29 April 2022 (Undertaking).

3.    In the alternative to 1 and 2 above, the restraint imposed pursuant to the Undertaking be varied to allow the assets held by entities within the Nordburger business to be given as security for costs in relation to concurrent proceedings in the District Court of South Australia, Nordburger Pty Ltd v Koronis and Vari.

9    In support of the interlocutory application, he relies on his eighth affidavit dated 17 February 2025 and affirmed on 18 February 2025. I made procedural orders on 19 March 2025, whereby I set the interlocutory application down for hearing on 12 May 2025 and ordered that any further affidavit evidence to be relied on by Mr Martin be filed and served by 11 April 2025; any affidavit evidence to be relied on by Mr Hillier be filed and served by 28 April 2025; and any affidavit in reply from Mr Martin be filed and served by 2 May 2025. I made those orders primarily because Mr Martin informed me on 19 March 2025 that he intended to rely on further affidavit material, consistently with the foreshadowed intent to do so at [25] of his affidavit.

10    Mr Martin did not file and serve any further affidavit. Mr Hillier did in the form of his affidavit sworn and filed on 28 April 2025.

11    The orders referenced in the interlocutory application commence with the orders of Charlesworth J made on 29 March 2022. The fourth order made by her Honour was:

Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), the first respondent and second respondent be restrained and an injunction is granted restraining them, whether by themselves, their servants or agents or otherwise, including Mr Martin, from making any payments out of the revenue, funds or assets, or otherwise dealing with the funds or assets, or the entities, trusts or businesses, which trade under the Nordburger name (Nordburger businesses) or brand except in payment of the expenses of the Nordburger businesses in the ordinary course of business.

12    That order was specified to remain in force until 5 pm on 4 April 2022 or, in the event that Mr Hillier pursued other interlocutory relief, until the determination of any such application.

13    On 6 April 2022, her Honour extended that order until 28 April 2022 and made other procedural orders affording the respondents an opportunity to vary or revoke that order.

14    On 29 April 2022, her Honour made a series of orders commencing with the following notation:

THE COURT NOTES THAT:

1.    The first and second respondents have proffered to the Court and to the applicant an undertaking in equivalent terms to the restraint contained in the order in paragraph 4 of the orders of 19 March 2022, namely:

The first and second respondent undertake to the Court and the applicant that they shall not, whether by themselves, their servants or agents or otherwise, including Mr Martin, make any payments out of the revenues funds or assets, or otherwise deal with the funds or assets, or the entities, trusts or businesses, that trade under the Nordburger name (Nordburger businesses) or brand except in payment of the expenses of the Nordburger businesses in the ordinary course of business.

2.    The undertaking as to damages previously given by the applicant, Mr Hillier, is to remain in force and now attaches to the first and second respondents’ undertaking referred to in Note 1.

15    Order 1 then required Mrs Martin and Operations to file and serve a document recording the undertaking given to the Court and to Mr Hillier by 5 pm that day. The order was complied with. The undertaking dated 29 April 2022, reads:

On the undertaking as to damages previously given by the applicant, Mr Hillier, in support of order 4 of the orders made and entered on 29 March 2022, remaining in force and attaching to this undertaking,

The First Respondent and the Second Respondent HEREBY UNDERTAKE that they will not whether by themselves, their servants or agents or otherwise, including Mr Thomas Martin, make any payments out of the revenue, funds or assets, or otherwise deal with the funds or assets, or the entities, trusts or businesses which trade under the Nordburger name (Nordburger businesses) or brand except in payment of the expenses of the Nordburger businesses in the ordinary course of business.

16    The undertaking is signed by Stephen Williams, then the solicitor for Mrs Martin and Operations. It follows that the orders originally made on 29 March 2022 ceased to have effect on 28 April 2022, and to that extent the interlocutory application proceeds on a misunderstanding.

17    On 17 August 2022, her Honour made a series of orders, including:

1.    In these orders, if the first and second respondents are ordered not to do something, they must not do it themselves or through directors, officers, partners, employees, agents or others acting on their behalf or on their instructions or with their encouragement or in any other way.

2.    Subject to paragraphs 3 and 4, the first and second respondents be restrained and an injunction be granted restraining them, whether by themselves, their servants or agents or otherwise, including Mr Martin, making any payments out of the funds, assets, entities, trusts or businesses that trade or conduct business under the Nordburger name or brand (Nordburger businesses) to the first respondent, her husband, Mr Martin, or for her or his benefit or at her or his direction, whether in relation to management fees hitherto paid or otherwise, except with the leave of the Court.

3.    The restraint in paragraph 2 does not prevent payments in consideration for work performed by up to two directors acting in that capacity across all companies engaged in any way in the management or conduct of the business trading under the Nordburger name or brand, such payments not to exceed $500.00 per week for each of the two directors, irrespective of the number of companies to which the two directors are appointed.

4.    Any application for leave to engage in a transaction (being an application contemplated by paragraph 2) must be:

a.    served upon all other parties to the proceeding; and

b.    supported by an affidavit made personally by Mr Martin or the first respondent as the case may be, setting out all facts and circumstances relevant to the question of whether or not leave should be granted (whether supportive of the application for leave or not).

18    Mrs Martin advised my chambers that she did not wish to be heard on the interlocutory application, and I excused her from attending. I granted a belated request by Mr Martin that he be able to appear remotely from his home. Mr Whitington KC with Mr Sykes Bidstrup appeared for Mr Hillier and Mr Kentish appeared for the fourth, fifth and sixth respondents. In all material respects, Mr Kentish adopted the submissions of Mr Whitington.

19    Having granted that indulgence to Mr Martin, he then emailed my chambers at 10.22 am (to accommodate the time difference, the hearing was scheduled to commence at 10:45 am) and attached a document described as “a list of references” of material that he intended to refer to upon the hearing of his application. There are 57 documents on that list comprising affidavits, pleadings, interlocutory applications and submissions filed in this proceeding and in SAD 40/2024. No prior notice of the intention to refer to any of that material was given by Mr Martin to the legal representatives for the respondents.

20    Mr Martin read his affidavit affirmed on 18 February 2024 without objection. Mr Whitington read the affidavit made by Mr Hillier on 28 April 2025 without objection. Neither deponent was cross-examined. I invited Mr Martin to make submissions whereupon he informed me that he wished to do so by reference to the 57 documents as identified in the attachment to his email. When I questioned him as to whether that was a fair procedure, consistent with the overarching purpose, he was unable to give me a satisfactory answer other than he was at liberty to refer to documents on the Court file. I ruled against him. I said:

Well, Mr Martin, I’m not going to permit you to rely on any of these documents for the simple reason that it is grossly unfair. It’s a breach of the overarching purpose of sections 37M and N of the Federal Court of Australia Act 1976. You cannot expect the Court to be across, you cannot expect your opponent to be across, 57 documents that you tell the Court about and your opponent about approximately 20 minutes before the commencement of the hearing; more so when I made an order on 19 March 2025 that any further affidavit evidence that you intended to rely upon be filed and served by 4 pm on 11 April 2025. At the very least, if you did not intend to rely on further affidavit material, you should have advised the Court and your opponents of the material that you say is on the Court file that you intended to rely on.

21    Mr Martin did not accept that ruling and sought to argue with me. I did not permit him to do so. He then sought an adjournment of the hearing of his application in order to “put forward” the documents that he sought to rely on. Mr Whitington opposed the adjournment application. I ruled against it; stating briefly:

There is no proper basis for an adjournment application to be made this morning. You have known about the hearing date since 19 March 2025. You are a lawyer, Mr Martin. You are proposing to proceed in a way that is distinctly unfair. If you are now prejudiced, it is, with respect, of your own making.

22    Mr Martin then advised me that he would proceed with his submissions which, despite my ruling, would incorporate material that is already on the Court file and: “all of the matters which I will raise are matters which have already been articulated in earlier affidavit material…”. I reminded Mr Martin that he should clearly understand that I would not look at any evidence save for the content of his affidavit affirmed on 18 February 2025. Mr Martin sought clarification as to whether he could refer to earlier judgments of the Court in this matter and was told that he could but I made it clear that I would not allow any attempt to navigate around the ruling that I had just made. Once again, Mr Martin became argumentative and sought leave from me to appeal the ruling. He was told that I would not consider an application for leave to appeal one of my own rulings. Mr Martin continued to argue with me. He then requested a brief adjournment to consider the course that he would take. I granted his request.

23    On resumption, Mr Martin made an application that I recuse myself from the hearing of the interlocutory application. His submissions in support were unfounded, intemperate and scandalous in part. Inter alia, he submitted that my ruling was “unjustly obstructive” and “inordinately restrictive”, that I had at a previous case management hearing expressed my “displeasure” with certain matters that he sought to raise, that counsel for Mr Hillier had made misleading and false submissions before O’Sullivan J on previous applications, that Mrs Martin’s submissions before other judges had been either ignored or swept aside, that Mr Hillier and his legal representatives had engaged in obstructive conduct and that:

[R]egrettably, it is reasonable to apprehend that the judiciary who had been involved in this proceeding are willing to countenance that and are allowing it to happen.

24    At that low point, I intervened. I stated in very firm terms that his submissions were scandalous, outrageous and were not serving to advance the recusal application. Mr Martin maintained his position. I confirmed with Mr Martin that, as a lawyer, he understood the law of contempt and informed him that his conduct was straying close to contempt in the face of the Court. Undeterred, his submissions continued. He raised unparticularised, unsubstantiated and incoherent generalised allegations of serious misconduct by Mr Hillier and his lawyers in this proceeding without a skerrick of evidence or coherent material in support.

25    Mr Martin then made further unfounded and scandalous allegations to the effect that he had been “mistreated” by the Court connected to the lodging of an unspecified complaint against a judge of this Court in which he alleged dishonest conduct in the personal financial dealings of the judge. Once again, I intervened and firmly told Mr Martin that his submission was outrageous, and I would not hear further from him in support of his recusal application. Undeterred by what I had said, Mr Martin again engaged in argumentative behaviour. Ultimately, I brought this to an end by informing him that he had abused his right of audience before me and that I would proceed to rule on the recusal application. I recited the relevant history of the interlocutory application and then dismissed the recusal application with brief reasons, including:

There is no basis whatsoever in fact or in law for the recusal application that Mr Martin has just made. The legal principles are very well understood. They are set out in Ebner v The Official Trustee in Bankruptcy. That is, whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. As Mr Whitington has correctly submitted, there must be a logical connection between the matters said to give rise to the reasonable apprehension of bias and the disqualifying factor.

No such connection has been made in the submissions put to me today.…

His application was wide-ranging and objectively scandalous and outrageous. He made unsubstantiated allegations of serious misconduct against the legal practitioners for the other parties in this proceeding. He accused them of gross dishonesty without any proper basis. He then accused other judges of this Court as being participants in allowing the other parties and their legal practitioners to engage in serious misconduct.

That is an outrageous allegation. It should never have been made. Mr Martin is a qualified lawyer. He knows that allegations of that type must not be made. His conduct borders on contemptuous. I will not pay any regard whatsoever to those submissions. It is patently obvious that there is no basis that I recuse myself.

26    Mr Martin should understand that if he appears and makes submissions before me in this proceeding in the future, that contempt in the face of the Court extends to disrespectful conduct if it interferes with or tends to interfere with the administration of justice in the Court. Examples of contempt of that character are insults or abuse directed at the legal representative for a party: Director of Public Prosecutions v Johnson [2002] VSC 597 at [21], Osborn, J; accusations of injustice directed at the presiding judicial officer: Reece v Mckenna; Ex parte Reece [1953] St R Qd 258; and accusing a judicial officer of corruption or dishonesty: Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 447 at [46], Jenkins v Todd [2016] NTSC 21; (2016) 36 NTLR 203 at 216.

27    Mr Martin was dissatisfied with my ruling. He requested that I grant leave to appeal it. I refused to entertain that application on the basis that properly it is one that should be made to another judge. Eventually, after further argumentative behaviour, Mr Martin addressed his interlocutory application.

Evidence and submissions on the interlocutory application

28    Mr Martin’s affidavit sets out evidence and many submissions to found separate contentions in support of his claimed relief. He characterised the orders of Charlesworth J of 29 March 2022, 29 April 2022 and 17 August 2022 as freezing orders. He contends that the orders identify him personally by name and apply to him in his personal capacity. On that basis, he contends that he has standing to bring the interlocutory application.

29    Pausing there, Mr Martin is a director of Operations. Operations does not have an appointed lawyer to act for it in the proceeding. A corporation must not proceed in this Court other than by a lawyer: r 4.01(2) of the Federal Court Rules 2011 (Cth), though in some circumstances that rule may be dispensed with. In this case, Mr Martin has been prohibited from representing Operations: Hillier v Martin (No 8) [2021] FCA 1272.

30    There are six matters that are able to be discerned from Mr Martin’s affidavit on which he relies in support of the orders he seeks. First, there is a proceeding between Operations and the landlord of one of the premises from which it operates part of the business in the District Court of South Australia that was commenced on 6 December 2024. The dispute concerns whether Operations effectively exercised its right to renew a lease. The landlord disputes the lawfulness of the exercise of the option, contending amongst other things that Operations was then in breach of the lease terms. Operations claims declaratory and injunctive relief. The landlord made an application for security for costs. The security application was listed for hearing on 18 February 2025.

31    In anticipation that security might be ordered, Mr Martin contended that it would be unjust if Operations was prevented from providing security for costs by reason of the orders made by Charlesworth J. In his affidavit, he contended that the payment of legal costs falls outside of the terms of permitted expenditure in the ordinary course of the business of Operations.

32    Secondly, Operations has an outstanding taxation liability to the Commissioner of Taxation. Mr Martin has been issued with a Director Penalty Notice. He has paid an amount of $285,000 to the Commissioner “towards payment” of the taxation liability. His affidavit does not disclose the extent of the liability.

33    Thirdly, in combination with the payments that he has made to the Commissioner and “other substantial funds” that he has transferred to Operations or “otherwise paid to unrelated parties on its behalf” he claims to be a creditor of Operations in an amount of approximately $25,000. His evidence does not descend to particularisation as to how that amount has been calculated.

34    Fourthly, he disputes certain submissions made by counsel for Mr Hillier before Charlesworth J to the effect that he and Mrs Martin had unlawfully taken approximately $600,000, described as loans, from Operations without intending that the amounts be repaid. He asserted that this submission was based on an expert report which was not admitted before her Honour. That allegation is part of the pleaded case to the effect that Mr Martin and Mrs Martin caused Operations to make loans in the total sum of $605,347 to them in breach of the fiduciary duty owed by Mrs Martin. According to Mr Martin that allegation has always lacked substance. In any event, his evidence is that the contended loans have been “fully repaid” with interest to Operations. Pausing there, Mr Hillier did not dispute that evidence on the hearing of the interlocutory application.

35    Fifthly, the fourth, fifth and sixth respondents to this proceeding made an application for security for costs against Mr Hillier. The application was listed for mention before O’Sullivan J on 18 October 2023 but did not proceed. Mr Martin refers to a supporting affidavit of Ms Fiona Errington, which was not read into evidence and which in his view supports the conclusion that Mr Hillier lacks any means to meet a costs order in this proceeding. That is said to be relevant to the usual undertaking as to damages that Mr Hillier gave to secure the orders in issue.

36    Sixthly, the “freezing orders” have been in place since 2022, there is presently no trial date listed and the “total quantum of loss that has been suffered by parties affected as a result of the freezing orders is likely to be significant”. No particulars are provided as to the extent of loss or its basis, save for the contention that since 17 August 2022 Mrs Martin has not been paid her usual wage of $4000 per week plus superannuation which was reduced to a joint amount (that is for Mr and Mrs Martin) of $500 per week pursuant to the orders of 17 August 2022. Mr Martin provides a calculation of that approximate loss over a period of 130 weeks of $455,000. The contention is that the lack of apparent means of Mr Hillier to satisfy his undertakings “is a matter of great concern to me and to the other parties affected by the freezing orders”.

37    There are some relevant facts that Mr Martin failed to disclose in his affidavit. They are set out in the affidavit of Mr Hillier, to which I now turn. On 15 October 2024, the Commissioner served a Creditor’s Statutory Demand for Payment of Debt on Operations. The demand contends that an amount of $630,156.16 is owing, being the Running Balance Account deficit debt as at 15 October 2024 in respect of amounts due under the BAS provisions of subsection 995 – 1(1) of the Income Tax Assessment Act 1997 (Cth) extending to PAYG withholdings, fringe benefits tax and the general interest charge. An application was brought by Operations on 11 November 2024, to set aside the statutory demand in proceeding SAD 235/2024 in this Court. The application was dismissed on 15 April 2025, by reason of the failure of Operations to comply with a self-executing order to file affidavit material in support.

38    The other relevant evidence that Mr Hillier gives may be shortly summarised. On 21 March 2025, judgment was given in the District Court on the security for costs application and Operations was ordered to provide an amount of $42,500 as security. On 25 March 2025, the solicitors acting for Mr Hillier sent open correspondence to Mrs Martin and to Operations to the effect that he would consent to a variation of the orders made on 29 April 2022 to specifically carve out therefrom the amount required to satisfy the security order. No response was received to that proposal, although Mr Martin forwarded a copy of this correspondence to the Registry of this Court on 4 April 2025. He was advised that a consent order would need to be submitted. He did not take that step.

39    In any event, on 11 April 2025, security order had been satisfied by payment to the registry of the District Court.

40    At the very least, Mr Martin ought to have made a further affidavit disclosing the facts at paragraphs [37] – [39].

41    In submissions, Mr Martin emphasised the legal principles to the making of freezing orders, which are not in dispute. He contended that by reason of the repayment to Operations of the loan amount of approximately $605,000, that the basis for the making of the freezing orders has evaporated. He also submitted that there was no evidence to support any inference that he, and by further inference Mrs Martin, was seeking to or had dissipated the assets of Operations in order to defeat any judgment that Mr Hillier may obtain in this proceeding. In his submission, while it “may technically be the case” that that Operations is now deemed by statute to be insolvent, this is an irrelevant consideration upon his application. He submitted it is probable that a suitable payment arrangement will be reached with the Commissioner, but that submission lacks any evidentiary foundation and is distinctly at odds with the service of the statutory demand.

42    Mr Martin further submitted that the freezing orders caused Operations to fail to meet its taxation obligations in a timely way and have prevented Operations from pursuing a statutory claim for compensation, upon the compulsory acquisition of the leasehold of one of the business premises from which it operated a restaurant. He provided no evidence in support of either of those contentions and the second cannot be reconciled with the evidence that he gave and which Charlesworth J referenced in No 12 at [63], that Operations had received $540,000 in the 2022 financial year as compensation for the acquisition of a premises in Frewville South Australia.

43    Mr Whitington in summary submits as follows. First, Mr Martin does not have standing to bring the interlocutory application. His submissions proceed on a misapprehension of the legal characterisation of the orders of Charlesworth J. Properly understood, there are two sets of orders: the order made on 29 March 2022, being an injunction which restrains Mrs Martin and Operations from dealing in the assets of the business of Operations save for paying expenses in the ordinary course of its business; and the order made on 29 April 2022, which in fact is not an order at all but rather a record of an undertaking. The undertaking being from Mrs Martin and Operations to the Court and Mr Hillier that they will not by themselves, their servants or agents, including Mr Martin, make payments out of the assets of Operations except in the ordinary course of its business. For the reasons I have set out above, that submission erroneously assumes that the injunction order of 29 March 2022 is of continuing effect. However, the point that is sought to be made applies equally to the later injunction order of 17 August 2022.

44    Mr Whitington accepts as a general proposition that third-parties affected by an asset freezing order made in this Court have standing to apply to discharge or vary the order. However, his submission is that Mr Martin is not such a person because he is not a party to the undertaking and is not subject to the injunction.

45    In any event, Mr Whitington submits in the alternative that there is no merit in the arguments relied on by Mr Martin. If he suffers proven loss caused by either order, in the event that Mr Hillier fails in this proceeding, and he has the benefit of the usual undertaking as to damages that Mr Hillier gave as a precondition to the making of the orders.

46    Further, that Mr Hillier does not contradict the evidence of Mr Martin to the effect that the loan funds have been fully repaid to Operations, does not address the grounds on which Charlesworth J made the orders in Hiller v Martin (No 11) [2022] FCA 407 and No 12 and there is no basis to discharge or vary the orders.

47    That submission requires explanation. In No 11, published on 6 April 2022, her Honour at [19] identified the basis for continuing the injunction orders of 29 March 2022 (until 28 April 2022):

In determining whether the original restraint should continue, I have taken the view that it is in the interests of justice that the assets of either asserted trust (be it the JV Trust or the NH Trust, whichever is valid) be preserved and maintained for the period of the restraint. In my view, the restraint is in large part a reflection of a trustee’s duties in relation to the conduct of an asset in the nature of a business, irrespective of which trust applies. As discussed below, I have not considered it necessary to form a concluded view as to whether any prior transactions constitute a breach of the NH Trust, nor to form any view concerning the solvency of the entities operating the Nordburger business or holding its assets. The focus of the Court is on whether future transactions other than those permitted by the order itself should be restrained. In that context, it is relevant to consider whether there is a risk that the value of the trust assets (together constituting the Nordburger business as a going concern) will be diminished if the order is not made. In short, the order sought by Mr Hiller seeks to restrain the activities of the respondents whilst they remain in effective control of the trust assets pending the resolution of whether they may validly exercise any such control on the terms they assert.

48    From [28] her Honour set out her analysis why the injunction should be continued and at [30], identified “three salient matters…that are of particular concern”:

The first is the existence and nature of aged payables and the identity of the persons to whom they are owed. The second is declining profits. The third is the apparent provision of credit in the form of loans to Mr and Mrs Martin or to trust structures associated with them. These features together give rise to a real risk that the respondents may, if not restrained, apply the assets and income of the Nordburger business to purposes unrelated to the payment of its debts as and when they fall due, and that their doing so would affect the viability of the business as a going concern.

49    Her Honour addressed the aged payables at [31]-[33], declining profitability at [34], and related party loans at [35]-[38] and [39]-[40] where her Honour found:

The circumstance that a business held and operated on trust should be indebted to the Australian Taxation Office in an amount exceeding $400,000 (a debt aged beyond three months), whilst at the same extending credit to Mr and Mrs Martin in amounts exceeding $600,000 is sufficient to give rise to a real concern that the asset forming the subject of the proceeding is at risk of diminution by transactions that would not be lawful on Mr Hillier’s case. Transactions in the nature of loans threaten the financial viability of the business because they convert money that would (indeed should) otherwise be available to meet the expenses of the business into a non-current asset. I infer that the loans presently affect the entities’ cash flows and hence their ability to pay debts as and when they fall due. Putting trust obligations aside, the overall financial position of the entities renders it difficult to justify the future application of the income and capital of the business for any purpose other than the payment of the expenses of the Nordburger business.

The restraint is otherwise justified irrespective of which trust governs the relations between the parties. The provision of the loans is plainly not in accordance with the JV Trust alleged by Mr Hillier. I am satisfied that an interlocutory injunction is appropriate to protect his asserted interests in the outcome of the proceeding, including to ensure that the proceeding is not rendered financially futile.

50    In No 12, published on 17 August 2022, her Honour was satisfied that a restraint broader than the terms of the initial injunction of 29 March 2022 was justified. The difference is that the August orders specifically restrain the making of payments to Mrs Martin, Mr Martin or for her or his benefit or at her or his direction “whether in relation to management fees hitherto paid or otherwise”. At [20] her Honour reasoned that she was prepared to grant that restraint irrespective of whether the earlier undertaking had been given, or in fact breached. At [60] – [72], her Honour made findings about the deteriorating financial position of Operations. At [66], her Honour rejected evidence of Mr Martin about the accuracy of business records that he produced. Her Honour found his evidence to be unsatisfactory for various reasons: [67] – [70], concluding in part:

[T]he Court cannot have confidence that Mr Martin is a person who presently monitors the financial position of the Nordburger group, in any serious way. Whether any such monitoring forms a part of his responsibilities within the Nordburger business is somewhat unclear.

51    At [71], her Honour was satisfied that Mr Hillier’s concerns about the deteriorating financial affairs of Operations were well founded, concluding that she was “satisfied that the Nordburger group is in a precarious financial position, principally evidenced by declining profits, net losses and the amount and age of the debt owed to the ATO.”

52    At [73] – [76], her Honour returned to the issue of the related party loans. Her Honour found no reason to depart from her findings in No 11 that the monies were advanced to Mrs Martin and Mr Martin for personal purposes unrelated to the conduct of the business and the making of the loans was not in the best interests of the corporate entities. That the loans may have satisfied the requirements of Div 7A of the ITAA was “hardly to the point” because:

It remains that Mr and Mrs Martin have had credit extended to them by one or more entities in the Nordburger business and, as a consequence, the money advanced to them is not able to be utilised in the course of trade (including to meet expenses). Whilst Mr Martin has acknowledged to some extent the cash flow problems faced by the Nordburger business, he has not dealt with the obvious inference that the advancement of the Div 7A loans caused or contributed to the cash flow issues.

53    At [77] – [99], her Honour addressed management fees paid to Mrs Martin and Mr Martin. Her Honour was not satisfied that Mrs Martin should continue to receive a weekly payment of $4000, reducing it to an amount of $500 per week in total for each of them. The reason is that there was no adequate evidence to explain what beneficial work was undertaken in consideration of the weekly payments.

54    Commencing at [126], her Honour addressed the relevant danger for the purposes of r 7.32(1). Primarily, her Honour was concerned with the central allegation of breach of trust. Overall, her Honour was satisfied that there is a danger that any judgment of the Court in favour of Mr Hillier may be wholly or partially unsatisfied: [130]. At [132], her Honour was further satisfied that the deteriorating “poor” financial position of the business “is a consequence of deliberate or reckless acts of the respondents or their associates”. In making that finding primary reliance was placed relied on evidence volunteered by Mr Martin in re-examination where he, in substance, claimed that he and Mrs Martin were entitled to utilise the business trust structures to cause income derived from the operation of the businesses “to be applied to reduce their personal loan balances” which then caused her Honour to make the further finding at [134] that:

I find that the purpose behind Mrs Martin’s decision to assert an entitlement to have her annual leave cashed out (and Mr Martin’s role in the transaction) included the purpose of avoiding the adverse income tax consequences that would flow to them personally from a breach of the terms of the Div 7A loans.

Consideration

55    The first issue is whether Mr Martin has standing to seek relief. The injunction ordered on 17 August 2022 is directed to Mrs Martin and Operations and in the orthodox form extends to their servants or agents, Mr Martin is specifically named by inclusion in the extended category. The submission of Mr Whitington is simply that because the injunction restrains only Mrs Martin and Operations, Mr Martin lacks standing to have the order discharged or varied. That submission was not developed by reference to any authority or by reference to the basis in principle why interlocutory relief which restrains specified conduct is often expressed as applicable to the servants or agents of the restrained party.

56    As is well understood interlocutory injunctive relief can, and often does, affect the rights of third parties. Whether, and to what extent, goes to the question of the balance of convenience, rather than jurisdiction: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [65]. In the particular case of asset freezing orders (Mareva injunctions as they were known), a third party affected by the order is entitled to apply to have the order set aside or modified. A recent example is Simmons v Giezekamp [2024] FCA 649, Thawley J.

57    Moreover, in cases in federal jurisdiction questions of standing are ordinarily subsumed by identification of a matter arising under laws made by the Parliament and involving a justiciable controversy: Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [31], Kiefel CJ, Keane and Gordon JJ. As that case demonstrates, an applicant may have standing to seek relief as a non-party to a contract if the applicant has a sufficient interest in the outcome.

58    Thus, I am not prepared to accept the broad submission of Mr Whitington that Mr Martin does not have standing to seek a variation or discharge of the injunction because that issue has not been fully argued before me. I will assume that Mr Martin does have standing.

59    That brings me to the related submission of Mr Whitington, that Mr Martin does not have standing to apply for a discharge or a variation of the undertaking given to Mr Hillier and to the Court on 29 April 2022. The submission is that as a personal undertaking given by Mrs Martin and Operations it is in a different category.

60    As I understood the submission, albeit not fully developed, it begins with the uncontroversial proposition that by its terms each of Mrs Martin and Operations undertook that they would not, whether by themselves, their servants or agents or otherwise (including Mr Martin) make payments out of the assets of any of the businesses which trade under the Nordburger name except in the ordinary course of business. Each personally accepted the obligations of the undertaking and Mr Hillier took the benefit of it. Mr Martin is not a party to the undertaking and is not in terms bound by it. That Mr Martin, if he were to knowingly facilitate a breach of it he may be found liable in a civil contempt proceeding, which point Charlesworth J made in No 11 at [49] albeit in the context of the injunction of 29 March 2022, is insufficient to clothe him with a sufficient interest to apply to vary or discharge the in personam rights and obligations of the parties to the undertaking. The parties have not sought to vary or discharge it. The application of Mr Martin seeks to directly interfere with the rights and liabilities arising under and attached to the undertaking. Therefore, he lacks standing to vary or discharge it.

61    There is an initial difficulty with the submission which stems from an anterior difficulty with the interlocutory application. The interlocutory application seeks a setting aside of “Order 1” as made on 29 April 2022. As noted above, this order required the filing and service of a document recording the undertaking by 5 pm on 29 April 2022, which was complied with. There is no utility in the setting aside of that spent order. Thus, all of the arguments about this aspect of the interlocutory application proceed on a misapprehension.

62    Further, an undertaking given to a court has the same force and effect as an order: in this case as an injunction: Morgan v State of Victoria [2008] VSCA 267; (2008) 22 VR 237 at [91], Nettle, Ashley JJA and Pagone AJA. A court has power to release the undertaker (on application by that person) from an undertaking even absent the consent of the person who enjoys its benefit: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177-178, where Gibbs CJ, Aickin, Wilson and Brennan JJ explained:

Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust.

63    I received no assistance with reconciling the broad no standing argument with these principles. It may be that in some cases a person affected by an undertaking given to a court and a litigant may bring an application that the undertaker be released if there were new facts which would render enforcement of it unjust. Of course, the impediment that must be addressed is that release from an undertaking given to a court does displace the underlying contractual effect of the undertaking: Chanel Ltd v F.W. Woolworth & Co Ltd [1981] 1 W.L.R. 485; [1981] 1 All ER 745.

64    In any event, I have concluded that this is not such a case. The interlocutory application is inutile in focusing on order 1 as made on 29 April 2022. An undertaking is not set aside by a subsequent order. Rather, a person is released by subsequent order from the obligation: Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103. For reasons to be explained, Mr Martin has not identified new facts that would make enforcement on the undertaking unjust. Accordingly, the interlocutory application fails to the extent that it seeks a setting aside of order 1 made on 29 April 2022.

65    The next issue is whether Mr Martin has made out a proper basis for discharge or variation of the injunction order of 17 August 2022. The first basis identified in the evidence fails. The need for a variation to permit satisfaction of the security for costs order made in the District Court in South Australia no longer exists.

66    The second, third and fourth justifications relied on by Mr Martin are related and may be considered together. That he and or Mrs Martin have paid an amount of $285,000 to the ATO, are creditors of the second respondent and have repaid the loan funds of approximately $605,000 does not provide a basis to discharge or vary the order. As is clear from the summary that I have provided, together with the extracts from her Honour’s reasons in No 11 and No 12, the primary basis for the making of the orders was to preserve the assets of either the trust that Mr Hillier asserts or as asserted by Mrs Martin: No 11 at [19], [20] and [40]. The supporting evidence raised three issues of concern in that regard. The aged payables, including substantial amounts owed to the Commissioner: [31]-[33] and [39]. The declining profitability of the businesses: [34]. The making of the related party loans to Mr and Mrs Martin: [36]-[38].

67    Each of these matters was reinforced in No 12 at [28]-[30], and her Honour went considerably further. Her Honour rejected the evidence of Mr Martin purporting to demonstrate that the trading position of the business had improved ([65]-[70]) to conclude that her “concerns about the deteriorating financial state of the Nordburger business are well-founded”: [71]. In that paragraph, her Honour continued:

On the evidence before me I am satisfied that the Nordburger group is in a precarious financial position, principally evidenced by declining profits, net losses and the amount and age of the debt owed to the ATO. Put simply, the present revenue is insufficient to meet the expenses. As Mr Martin deposed in his Fourth Affidavit, the compensation payment alleviated what appears to be a serious cash flow problem. However, Mr Martin pointed to no other readily accessible resource from which the expenses of the Nordburger business might be paid in circumstances where trade revenue is insufficient to meet them. These findings should not be understood as equating to a conclusion that any one or more of the entities in the Nordburger group is presently insolvent. It is simply to observe that the present ability of the Nordburger group to meet expenses is uncertain on the limited evidence before me.

68    At [73]-[76], her Honour found that the loan funds advanced to Mr and Mrs Martin were for personal purposes and that they had not “attempted to explain how the provision of the loans was in the best interests of the relevant company or companies, including as to how they were in the best interests of Operations in its capacity as shareholder and trustee of the asserted NH trust”. The fact that the loans may be repaid was not to the point because of the prospective danger of dissipation of assets absent imposition of a broader and more explicit restraint: [76]. Why this is so is explained from [126]. The starting point is that Mr Hillier’s claims are that Mrs Martin acted in breach of her trust obligations flowing from the initial joint venture: [127]. Mr Hillier is presently “powerless to prevent transactions that appear to be made to the personal benefit of Mr and Mrs Martin and that imperil the financial position of the commercial enterprise forming the subject of the joint-venture”: [128]. The remedy that he seeks is to cause Mrs Martin to comply with her obligations as a trustee and to restore trust funds: [129]. Read with her Honour’s earlier findings, the identified danger was expressed in these terms at [130]:

Accordingly, in the circumstances described in these reasons, I am satisfied that there is a danger that the judgment of the Court (being the final relief sought by Mr Hillier) will be wholly or partly unsatisfied within the meaning of the rule. The judgment of the Court should enable Mr Hillier to enjoy the benefits of the ongoing joint venture, and not be confined to an award of damages for losses occasioned by its demise. Collapse of the enterprise would have the effect of inhibiting or frustrating the purpose of the litigation and hence the Court’s processes in conducting it.

69    That danger was then emphasised by Mr Martin in his evidence in re-examination which her Honour set out at [133], which was to the effect that but for the undertaking, he would have caused the profits of the business to be paid to or for the benefit of himself and Mrs Martin. From this evidence her Honour found at [134] that Mr and Mrs Martin at the end of each financial year lacked the financial resource resources to make repayments pursuant to their loans and in that circumstance “believe themselves to be entitled (but for the Undertaking) to utilise the corporate and trust structures in the manner described by Mr Martin to cause income derived in the Nordburger business to be applied to reduce their personal loan balances”.

70    These were not the only matters that informed the exercise of her Honour’s discretion to impose a broader restraint. There was evidence of conflicts of interest in duty: [140] – [141]. Her Honour was not satisfied that there had been “meaningful disinterested scrutiny of the transactions that appear to confer benefits upon Mr and Mrs Martin and that are said to be payments in the ordinary course of business”: [141]. Further, her Honour was satisfied at [143] that there was a real risk that Operations would not “in its capacity as trustee” scrutinise the weekly payment of management fees to Mrs Martin. These considerations lead to the conclusion at [145]:

I consider it likely that if the Broader Restraint is not ordered, further transactions will occur by which entitlements are asserted by Mr and Mrs Martin against the relevant entities in circumstances where neither Mr nor Mrs Martin will be willing to scrutinise the claims on behalf of the affected entities. It takes little imagination to conceive what those further asserted entitlements might entail.

71    Accordingly, it is clear that whether Mr and Mrs Martin have made some payments to the Commissioner, have repaid the related party loans and/or have caused payments to be made to creditors of the business does not address the matters that were of importance in the exercise of her Honour’s discretion to impose the broader restraint that is expressed in the orders of 17 August 2022. The risks identified by her Honour are simply not addressed in the present evidence of Mr Martin.

72    The fifth matter articulated by Mr Martin is the assertion that Mr Hillier is a person without means and therefore is and will be unable to satisfy his personal undertaking as to damages in the event that he fails in the proceeding. There is no basis to make that finding. The affidavit referred to by Mr Martin has never been read in this proceeding. The evidence contained in it has not been tested.

73    The sixth matter relied on is the correct submission that the injunction has been in place for a very considerable period and relatedly, Mrs Martin has correspondingly been kept out of her claimed entitlement to receive a weekly wage of $4000. This is not a matter that justifies variation or discharge of the injunction. As the history of this proceeding that I have attempted to summarise amply demonstrates, very considerable responsibility for the prolongation of the interlocutory steps in this proceeding is attributable to the conduct of Mrs Martin and the necessity to determine multiple interlocutory applications resulting in very many published judgments.

74    Mr Martin has not adduced evidence to the effect that the injunction has prevented the payment of expenses of expenses in the ordinary course of business. His assertion in submissions that the injunction is a reason why the taxation obligations of the companies have not been met is plainly incorrect: the discharge of taxation obligations in the conduct of a business is an ordinary expense, the payment of which is not restrained by the injunction.

75    As to the weekly entitlement claim of Mrs Martin, what has not been addressed is the reason why Charlesworth J capped the entitlement at $500 per week in No 12. Her Honour did so because she was not satisfied that a satisfactory explanation had been given as to what work was done in consideration of the payment: [124]-[125]. This explains why her Honour reduced the entitlement to $500 per week, expressly on the basis that each had leave to apply for an increase in that amount: [147] – [148]. The present application of Mr Martin provides no evidentiary basis to vary the cap. If Mrs Martin is entitled to a wage of $4,000 per week then a prudent conduct of the business of Operations would make provision for that entitlement should Mr Hillier fail in his claims. Mrs Martin will not then be ultimately out of pocket.

76    Finally, something needs to be said of a more generalised submission that Mr Martin put to me. Without specificity, he contended that Charlesworth J made findings in No 11 or No 12 (which was not made clear) based on an accountant’s report that was not admitted in evidence. That is quite incorrect. The report was prepared by Mr Camens and extracts of it are set out in No 11at [31] and [35].

Result

77    The interlocutory application will be dismissed. I will hear the parties as to costs.

Associate:

Dated:    19 May 2025

SCHEDULE OF PARTIES