Federal Court of Australia

Albarran in his capacity as liquidator of State Road Constructions (in liquidation) v Ferrazzano [2025] FCA 730

ORDERS

DEFINITIONS:

A.    In these orders the following terms are defined as follows:

(a)    16 May Freezing Order means the Penal Order made on 16 May 2025 against the First Defendant and the Fourth Defendant following an ex parte hearing as extended on a without admissions basis by the orders made on 16 June 2025.

(b)    23 May Freezing Order means the Penal Order made on 23 May 2025 against the Third Defendant and the Fifth Defendant following an ex parte hearing as extended on a without admissions basis by the orders made on 16 June 2025.

(c)    Penal Order A is the Penal Order which forms Annexure A to these orders addressed to the First Defendant.

(d)    Penal Order B is the Penal Order which forms Annexure B to these orders addressed to the Fourth Defendant.

(e)    Penal Orders means Penal Order A and Penal Order B.

(f)    The Usual Undertaking is the undertaking given by the Plaintiffs to the Court in Schedule A to each of the Penal Orders.

THE COURT ORDERS THAT:

Joinder of the Fifth Defendant

2.    To the extent necessary, leave be granted to join Mohamad Matar as the Fifth Defendant to this proceeding.

As against the First Defendant

3.    Until further order of the Court, pursuant to section 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and or rules 7.32 and 7.35 of the Federal Court Rules 2011 (Cth), and upon the Plaintiffs giving the Usual Undertakings to the Court, the Court makes orders in accordance with Penal Order A.

4.    The Plaintiffs must not serve a copy of this order or Penal Order A on any bank or financial institution with which the First Defendant holds an account without first obtaining leave of the Court.

5.    Any application for such leave is to be on 2 business days’ notice.

As against the Fourth Defendant

6.    Until further order of the Court, pursuant to section 23 of the FCA Act and or rules 7.32 and 7.35 of the Rules, and upon the Plaintiffs giving the Usual Undertakings to the Court, the Court makes orders in accordance with Penal Order B.

7.    The Plaintiffs must not serve a copy of this order or Penal Order B on any bank or financial institution with which the Fourth Defendant holds an account without first obtaining leave of the Court.

8.    Any application for such leave is to be on 2 business days’ notice.

In relation to all parties

9.    Liberty to apply on notice, such notice to specify the relief sought.

10.    Subject to order 10:

(a)    There be no order as to costs between the Plaintiffs and the First Defendant;

(b)    The Fourth Defendant pay the Plaintiffs’ costs of the application against the Fourth Defendant; and

(c)    The Plaintiffs pay the costs of the Second, Third and Fifth Defendants.

11.    Any party wishing to seek orders as to costs in lieu of those made by order 9 above is to take steps to relist the proceeding within 7 days of the making of these orders specifying the orders as to costs that will be sought.

12.    The proceeding otherwise be listed for case management on 14 August 2025.

13.    These orders be entered forthwith.

BY CONSENT AS BETWEEN THE PLAINTIFFS AND THE FOURTH DEFENDANT, THE COURT ORDERS THAT:

14.    On the Usual Undertaking given by the Plaintiffs, the Fourth Defendant deliver to the First Plaintiffs, by no later than 4pm on 1 July 2025, the vehicle described as 2021 RAM 3500 LARAMIE with registration XO11EN and VIN 3C63RRJLXMG592810 (the RAM Vehicle).

THE COURT NOTES THAT:

15.    The Plaintiffs undertake to securely preserve and maintain the RAM Vehicle in their possession until further order, and will not, unless permitted by further order of the Court, seek to sell or transfer the RAM Vehicle.

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

Annexure A

Penal Order A

[The Order entered is available on the Commonwealth Courts Portal, which attaches Penal Order A.]

Annexure B

Penal Order B

[The Order entered is available on the Commonwealth Courts Portal, which attaches Penal Order B.]

ORDERS

(AS AMENDED BY CONSENT ON 1 JULY 2025)

DEFINITIONS

A.    In these orders the following terms are defined as follows:

(a)    16 May Freezing Order means the Penal Order made on 16 May 2025 against the First Defendant and the Fourth Defendant following an ex parte hearing as extended on a without admissions basis by the orders made on 16 June 2025.

(b)    23 May Freezing Order means the Penal Order made on 23 May 2025 against the Third Defendant and the then Prospective Fifth Defendant (now the Fifth Defendant) following an ex parte hearing as extended on a without admissions basis by the orders made on 16 June 2025.

THE COURT ORDERS THAT:

1.Upon entry of the first orders made on 30 June 2025 in this proceeding but not before, the following orders be discharged forthwith:

(a) order (6) of the 16 May Freezing Order which provided in effect that each of the First Defendant and the Fourth Defendant must not remove from Australia or in any way dispose of, deal with or diminish the value of any of their respective assets in Australia up to the unencumbered value of AUD$6,575,000; and

(b) order (6) of the 23 May Freezing Order which provided that each of the Third Defendant and the Fifth Defendant must not remove from Australia or in any way dispose of, deal with or diminish the value of any of their respective assets in Australia up to the unencumbered value of AUD$6,575,000 and noting that the order was framed in such a way as to apply on its face to the assets of the Second Defendant notwithstanding it was not addressed to the Second Defendant.

2. By no later than 12pm on 1 July 2025, the Plaintiffs:

(a) serve a copy of these orders on each bank or financial institution on which they caused to be served copies of the 16 May Freezing Order, the 23 May Freezing Order and/or the orders made on 16 June 2025; and

(b) email a copy of these orders marked to the urgent attention of the LEA team at the email address opccompliance@cba.com.au with the LEAR reference number LEAR-2166009 and customer identification number in the subject line of the email, copied to the legal representatives of the First Defendant.

3. By 5pm on 1 July 2025, the Plaintiffs file and serve an affidavit of service demonstrating compliance with order 2.

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

ORDERS

THE COURT NOTES THAT:

A.    On 27 June 2025, the First Defendant gave a written undertaking to the Court by his senior counsel that he will not transfer or participate in the transfer of the ownership or registration of the following vehicles:

(a)    2024 Volkswagen Golf with registration FJH90Z and VIN WVWZZZCD9RW213541;

(b)    2021 Mercedes C200 FL with registration ENP23X and VIN W1K2050802R629292; and

(c)    2020 Jeep Gladiator with registration EKE92L and VIN 1C6HJTGG9LL185275;

until any dispute between the Plaintiffs and the First Defendant’s children in relation to ownership of the vehicles is resolved.

THE COURT ORDERS THAT:

1.    Within 7 days of the making of these orders, the First Plaintiffs are to email to the Associate to Cheeseman J an affidavit that addresses the status of the public examinations which are the subject of proceeding number NSD 503 of 2025.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    On 30 June 2025, I made orders following an inter partes contested hearing on the return of the ex parte relief that had previously been granted by two judges sitting as Commercial and Corporations duty judges. The relief in issue was principally concerned with freezing orders and orders for the delivery up of specified property. These are my reasons for making the orders I did. In these reasons, I also address two additional matters related to the orders made on 30 June 2025.

2    The ex parte orders were made on 16 May 2025 and 23 May 2025 on the basis of allegations that the Defendants were involved in the theft of company property valued at approximately $6.5 million. The stolen property is alleged to include trucks, trailers, an excavator and company cars (collectively, the Stolen Trucks). The theft is alleged to have occurred at some time between 25 March 2025 and 1 April 2025. The alleged theft occurred at a time when the relevant companies were under administration, with the administrators being appointed as liquidators, as detailed within, shortly thereafter. Some of the Stolen Trucks have been recovered. The estimated value of the Stolen Trucks that are still missing is $5.2 million.

3    The Plaintiffs have commenced two separate proceedings in this Court in respect of the affairs of various of the relevant entities. In addition to this proceeding, the Plaintiffs have commenced an application for the issue of summons for public examinations and production of documents in order to obtain further information in relation to the examinable affairs of the relevant entities.

OVERVIEW OF THE PARTIES

4    The parties fall into four categories.

5    First, the Plaintiffs.

6    The First Plaintiffs are Richard Albarran, Cameron Shaw and Kathleen Vouris of Hall Chadwick, in their capacity as joint and several Liquidators of the Second Plaintiff, State Road Constructions Pty Ltd (in liquidation). Save for limited exceptions, the Stolen Trucks are registered in the name of State Road Constructions. The Liquidators are partners of the firm Hall Chadwick.

7    The Liquidators are also the joint and several liquidators of the following of the corporate plaintiffs:

(1)    The Third Plaintiff, State Road Queensland Pty Ltd (in liquidation); and

(2)    The Fourth Plaintiff, State Road Quarry Products Pty Ltd (in liquidation).

8    The Liquidators are also joint and several administrators of the Fifth Plaintiff, Thorley Sand & Gravel Pty Ltd (administrators appointed) in its corporate capacity and as trustee for Thorley Sand & Gravel Trust.

9    The Liquidators were appointed as joint and several liquidators of State Road Constructions, State Road Queensland and State Road Quarry on 8 April 2025 following resolutions made at the second creditor meetings that the companies be wound up under s 439C(c) of the Corporations Act 2001 (Cth).

10    Before their appointment as liquidators, the Liquidators were appointed as joint and several administrators of State Road Constructions, State Road Queensland and State Road Quarry on 4 February 2025 by Blackbird Private Equity Pty Ltd, a secured creditor of State Road Constructions, in accordance with s 436C of the Corporations Act.

11    Three of the company cars that are alleged to have been stolen are registered to State Road Queensland, State Road Quarry and Thorley respectively.

12    Prior to entering into external administration, the corporate plaintiffs were involved in a civil contractor business and a quarry in Grafton, New South Wales. The business provided earthmoving equipment, heavy vehicles and machinery for large scale projects throughout New South Wales and Queensland. State Road entities owned trucks, plant and equipment that were used in the work done under various construction contracts or were otherwise hired out to clients of the business. The quarry produced graded rock, sand, and other materials, for sale. Thorley is one of two companies that hold Environmental Protection Licences for the quarry.

13    The business operated its head office from a property located at 16 Barralong Road, Erina (Erina Office) and used a leased depot located at 12-14 and 16 Roberts Street, Smithfield, New South Wales (Smithfield Depot) to store and repair vehicles, plant and equipment.

14    Secondly, the First Defendant, Vincenzo Ferrazzano, who is the sole director of each of the plaintiff companies. Mr Ferrazzano is the sole director and secretary of several other entities which are not parties to this proceeding and are not under external administration, including Elgo Pty Limited. Mr Ferrazzano contends that Elgo is the trustee of the Ferrazzano family trust.

15    I interpolate to note that Mr Ferrazzano did not adduce any evidence other than his own assertion to demonstrate that Elgo acted as trustee for a family trust. He did not adduce in evidence the relevant trust deed or any bank records demonstrating that any bank accounts were operated by Elgo as trustee for a family trust.

16    Mr Ferrazzano deposed that the State Road business leased the Erina Office from Elgo. Mr Ferrazzano deposed that he worked from the Erina Office and would visit the Smithfield Depot on average once every fortnight.

17    Mr Ferrazzano is alleged to be involved in the events that gave rise to the urgent ex parte freezing orders.

18    Thirdly, the Fourth Defendant, Sam Abbas, who is not an officer or shareholder of any of the Plaintiffs, but was described as having done work (as a former employee and a contractor) for entities in the State Road Group. Mr Abbas is the sole director and shareholder of Smiley Civil Pty Ltd and Ezy Haulage Pty Ltd, which are not parties to this proceeding. He was also described as being a friend of Mr Ferrazzano. The Liquidators suggested that Mr Abbas was a silent partner in the State Road Constructions business. Mr Ferrazzano denied this.

19    Mr Ferrazzano described Mr Abbas as having relationships with lots of subcontractors in the building and construction industry. He said he would often act as a “go-between” between contractors and subcontractors in the industry. He further said that Mr Abbas often spoke on behalf of subcontractors with contractors to resolve differences or negotiate matters. Mr Ferrazzano explained that this was due to language barriers with some subcontractors and also because Mr Abbas was well known to many people in the industry. Mr Ferrazzano deposed that Mr Abbas was not paid by State Road Constructions for his “go-between” services.

20    Mr Abbas is alleged to be involved in the events that gave rise to the urgent ex parte freezing orders.

21    Mr Abbas did not attend the 16 June 2025 return hearing, despite being on notice of that hearing. Mr Abbas appeared via telephone and without legal representation at the hearing on 24 June 2025. The submissions he made on that occasion were a combination of submission and unsworn evidence, as is not uncommon with litigants appearing in person.

22    Fourthly, and finally, the Second, Third and Fifth Defendants.

23    The Second Defendant is Hajar Tippers Pty Ltd, a subcontractor of State Road Constructions. Hajar Tippers is a creditor of State Road Constructions and has lodged a proof of debt in the liquidation of State Road Constructions on 12 February 2025 for an amount of $759,831.84.

24    The Third Defendant is Raida Matar, wife of the Fifth Defendant, Mohamad Matar. Mrs Matar is the sole director and shareholder of Hajar Tippers. Mr Matar refers to Hajar Tippers as being his company or the family company, notwithstanding he is not a director or officer of the company.

25    I will refer to these three defendants collectively as the Matar Defendants.

26    The Matar Defendants were involved in the events that gave rise to the urgent ex parte freezing orders and the related ancillary relief. It is common ground that the Matar Defendants were for a period of time in possession of ten of the Stolen Trucks which have since been returned to the Plaintiffs (the Returned Trucks). The Liquidators contend that Mr Matar told them that he took these trucks and registered them in the name of Hajar Tippers after Mr Ferrazzano and Mr Abbas gave him signed registration papers. Further, that the reason for the transfer of these trucks was because Hajar Tippers was owed around $800,000 by the relevant company for which Hajar Tippers had performed work and that the invoices were past due and not paid.

ORDERS OBTAINED EX PARTE

27    On 16 May 2025, following an urgent ex parte hearing, Lee J, sitting as Commercial and Corporations Duty Judge, made orders amongst other things, freezing the assets of Mr Ferrazzano and Mr Abbas and issuing search and seizure warrants pursuant to s 530C of the Corporations Act in respect of properties associated with Hajar Tippers and Mrs Matar.

28    On 23 May 2025, at a further urgent ex parte hearing, Derrington J, sitting as Commercial and Corporations Duty Judge, made further orders, amongst other things, freezing the assets of Mrs Matar and Mr Matar and issuing search and seizure warrants pursuant to s 530C of the Corporations Act in respect of properties associated with Mr Ferrazzano and Mr Abbas. The freezing order was framed in such a way as to apply on its face to the assets of Hajar Tippers notwithstanding it was not addressed to the company.

29    Each of the search and seizure warrants had been executed by the date of the inter partes return hearing.

30    In addition to the above orders, the following orders were also made at the two ex parte hearings.

31    On 16 May 2025, Lee J made orders requiring each of Mr Ferrazzano and Mr Abbas to file an affidavit specifying:

(1)    the current whereabouts of the vehicles, and any keys for those vehicles, listed in Annexure D to those orders that have not been seized by the Plaintiffs (Outstanding Vehicles), including any specific address or addresses where the Outstanding Vehicles are located;

(2)    if the current whereabouts of the Outstanding Vehicles, and any keys for the Outstanding Vehicles, are unknown, the address or addresses of the last known location or locations of the Outstanding Vehicles and keys for the Outstanding Vehicles; and

(3)    to the extent that they are aware of any person or persons who may have possession, control or custody of the Outstanding Vehicles, the name and contact details of that person or those persons; and

(4)    to the extent that they are aware of the circumstances in which the Outstanding Vehicles have been used since 4 February 2025 (being the date of the appointment of the First Plaintiffs as voluntary administrators), the details of the person(s) (whether a company, partnership or otherwise) that has or have been using the Outstanding Vehicles and the facts, matters and circumstances concerning the use of the Outstanding Vehicles.

32    On 23 May 2025, Derrington J made orders in the same form in respect of Mrs Matar and Mr Matar.

EVIDENCE

33    The Liquidators provided a two volume Court Book containing the materials before Lee J and Derrington J on the ex parte applications and additional material for the return hearing. In total, there were 36 affidavits and lengthy exhibits. During the course of the hearing, the Liquidators tendered correspondence between their solicitors and Mr Abbas in relation to the freezing order made against him. Further evidence and submissions were provided by the Liquidators and Mr Ferrazzano in relation to the Liquidators’ proposed delivery up orders following the conclusion of the hearing pursuant to leave being granted.

34    The Liquidators relied on the following evidence:

(1) affidavits of each of the Liquidators:

(a)    two affidavits of Richard Albarran, sworn on 4 April 2025 and 28 April 2025;

(b)    an affidavit of Cameron Shaw sworn on 28 April 2025; and

(c)    two affidavits of Kathleen Vouris, sworn on 8 April 2025 and 14 May 2025;

(2) affidavits of employees of Hall Chadwick who assisted with the execution of the search and seizure warrants:

(a)    five affidavits of Daniel Caristo, sworn on 8 April 2025, 28 April 2025, 12 June 2025 (two affidavits sworn on the same day) and 19 June 2025;

(b)    three affidavits of Deucalion Wolfgramm, sworn on 23 May 2025, 12 June 2025 and 19 June 2025; and

(c)    an affidavit of David Kennedy, sworn 4 June 2025;

(3 )affidavits of the Liquidators’ solicitors:

(a)    two affidavits of James Roland, affirmed 12 June 2025 and 13 June 2025; and

(b)    three affidavits of Polina Safonova, affirmed 4 June 2025, 23 June 2025 and 24 June 2025;

(4) affidavits of employees of Lloyds Auctioneers and Valuers, a company engaged by the Liquidators to value and assist in selling the assets of the Corporate Plaintiffs:

(a)    an affidavit of Fred Sarkis, sworn on 11 April 2025,

(b)    an affidavit of Lucas McKay, sworn on 28 April 2025; and

(c)    an affidavit of Steve Sarkis, sworn on 28 April 2025.

35    Mr Ferrazzano relied on the following evidence:

(1)    his six affidavits, sworn on 28 May 2025, 11 June 2025 (deposing to the whereabouts of the vehicles), 15 June 2025 (two affidavits sworn on the same day – a principal affidavit and an asset disclosure affidavit), 22 June 2025 and a further affidavit sworn on 26 June 2025 after the hearing;

(2)    Exhibit VF-1 to his principal affidavit sworn on 15 June 2025; and

(3)    an affidavit of Christopher Elias Farah, his solicitor, sworn on 13 June 2025.

36    Mrs Matar relied on her two affidavits, affirmed 15 June 2025 (deposing to the whereabouts of the vehicles) and 23 June 2025. Mr Matar relied on his two affidavits, affirmed 15 June 2025 (deposing to the whereabouts of the vehicles) and 18 June 2025.

37    Mr Abbas relied on his three affidavits, sworn on 11 June 2025 (deposing to the whereabouts of the vehicles), 18 June 2025 and 23 June 2025. Following the hearing, Mr Abbas filed a further affidavit sworn on 1 July 2025 deposing to his assets in accordance with orders made on 24 June 2025. As mentioned above, in appearing on this application, Mr Abbas’ address was made up of a combination of submission and unsworn evidence.

ALLEGATIONS CONCERNING CONDUCT AND PROPERTY RELEVANT TO PRESENT APPLICATION

38    By way of context, as mentioned, on 4 February 2025, the Liquidators were appointed as joint and several administrators of the corporate plaintiffs by Blackbird, a secured creditor of State Road Constructions. On 13 February 2025, Lloyds was appointed by Hall Chadwick to secure the Smithfield Depot, including the trucks, plant and equipment which were stored there.

39    On 12 February 2025, Hajar Tippers lodged a proof of debt in the liquidation of State Road Constructions for approximately $760,000. Mr Matar deposed that on 20 January 2025, Hajar Tippers served a creditor’s statutory demand for payment on State Road Constructions for amounts due and owing from tax invoices claimed from June to December 2024 in relation to the supply of earth moving equipment and heavy vehicle plant and plant-operating services to State Road Constructions.

40    Hajar Tippers undertook further work during the administration of State Road Constructions at the request of the then administrators in March 2025. Invoices were raised for this work in the total amount of $68,668.83.

41    The Liquidators allege that the Stolen Trucks were taken from the Smithfield Depot. Further that the theft occurred at some time between 25 March 2025 (when Mr Ferrazzano contends the Smithfield Depot was locked and all State Road Constructions employees were terminated by the Liquidators as administrators) and 1 April 2025 (when it was discovered that the Stolen Trucks were missing). Mr Albarran deposed to Mr Caristo being informed by a subtenant of the Smithfield Depot that the Stolen Trucks were removed gradually “every night and over the weekend”. The theft occurred at a time when the First Plaintiffs were in control of the Corporate Plaintiffs having been appointed as administrators to the Corporate Plaintiffs. A week after the theft, the First Plaintiffs were appointed as Liquidators.

42    The Liquidators’ evidence is that Strike Force Raptor, a specialist unit of the New South Wales Police in relation to gang-related organised crime, is conducting an investigation into the Stolen Trucks. That investigation is ongoing.

43    On 29 March 2025, two days before the discovery of the theft of the Stolen Trucks, six vehicles registered to State Road Constructions were transferred to be registered in the name of Hajar Tippers.

44    The Liquidators submitted that the theft of the Stolen Trucks was an organised and coordinated scheme by several persons, including Mr Ferrazzano, Mr Abbas and Mr Matar, to defraud the State Road entities. The Liquidators further allege that the Stolen Trucks were taken for the purpose of extorting State Road Constructions (and perhaps other State Road entities) to pay debts allegedly owed to subcontractors.

45    On the day the fact that the Stolen Trucks were missing was discovered, Mr Ferrazzano is alleged to have received a phone call from Mr Abbas, which occurred in Mr Caristo’s presence. Mr Abbas is alleged to have told Mr Ferrazzano that the Stolen Trucks had been moved to a third-party work site located at Kemps Creek and to various other locations which Mr Abbas did not disclose. Mr Abbas is further alleged to have said that the “subbies” came and took the trucks because Mr Ferrazzano owed them money. Mr Abbas is alleged to have responded to a question as to the identity of the “subbies” by saying “I just know that subbies came and took equipment.” Mr Albarran deposed that Mr Ferrazzano and Mr Caristo attended the Kemps Creek site on 1 April 2025 and did not find any of the Stolen Trucks.

46    The Liquidators allege, based on what they have been told by Mr Ferrazzano, that Mr Abbas was in some way involved in the removal of the Stolen Trucks by persons described as subcontractors and that Mr Abbas has been involved in negotiations to return the Stolen Trucks to the Liquidators in return for payment, which payment will be applied towards the alleged debts owed to subcontractors. The Liquidators relied on information given to them by Mr Ferrazzano and Jared Rollason, sole director and secretary of Wholecap Group Holdings Pty Limited, a potential purchaser or funder of some part of the State Road Constructions business, to the effect that:

(1)    Mr Abbas is likely the person who is able to recover the Stolen Trucks although Mr Abbas does not have possession of them because he has relationships with the subcontractors who do have them; and

(2)    Mr Abbas is able to speak with the subcontractors for the return of the Stolen Trucks and present an offer of $1 million to be put towards paying the outstanding debts of the subcontractors for the return of the Stolen Trucks.

47    The Liquidators also relied on a conversation between Mr Shaw, Mr Ferrazzano, Mr Rollason and Mr Abbas on 15 April 2025. Mr Shaw’s file note of this conversation is in evidence. Mr Shaw maintains that during this conversation:

(1)    Mr Abbas described himself as being “just here to make things happen” and “not here to make a financial gain and is just here to be a mediator”;

(2)    Mr Abbas said he had no control over the Stolen Trucks, but that the subcontractors who are owed money are happy to return them if they are paid in the vicinity of about 50% of what is owing to them;

(3)    Mr Abbas said that this was a civil matter and capable of being agreed and that Hall Chadwick had not done enough to protect the Stolen Trucks;

(4)    Mr Shaw told Mr Abbas that this is also a potential criminal matter and the police are involved so it would be best to get the trucks returned, noting the trucks have mortgages held against them;

(5)    Mr Abbas outlined more details in relation to the proposed agreement for the return of the Stolen Trucks including that before the exchange of money for the Stolen Trucks, the Stolen Trucks could be moved to a neutral location (for example, the Lloyds yard) for inspection after the sum agreed had been placed in a solicitor’s trust account pending handover; and

(6)    Mr Abbas said that a list of the trucks could be prepared and that the trucks are not all held by one person, but are spread out amongst numerous subcontractors. For that reason, Mr Abbas could not guarantee that all trucks would be returned, but he understood most subcontractors were willing to cooperate.

48    As mentioned, the Returned Trucks (being 10 of the Stolen Trucks which were in the possession of the Matar Defendants) have been returned to the Liquidators. The return of those trucks occurred in two tranches.

49    First, on 10 and 11 April 2025, Mr Matar arranged for six vehicles (three trucks and three tipper trailers) to be returned to the Liquidators. These six vehicles were the subject of the transfer of registration from State Road Constructions to Hajar Tippers.

50    Secondly, the remaining four trucks were returned on or about 31 May 2025 to the Liquidators. Mr Matar maintains that these four trucks were not returned until this time because Mr Matar believed he had a valid legal interest in the trucks. Following the execution of the search warrant at his home, Mr Matar obtained legal advice and returned the remaining four trucks. In doing so, Mr Matar says that he reserved Hajar Tippers’ rights in relation to those trucks. Mr Matar maintains that Hajar Tippers has a valid legal claim in relation to the trucks that were in his possession and that he is contemplating commencing proceedings.

51    Both Mr and Mrs Matar have deposed that they do not have, and do not know the location of, any of the Stolen Trucks, save for the Returned Trucks. Mr Matar deposed that the only other people who he understands may have the missing Stolen Trucks are Mr Abbas and Omar Fahme, who Mr Matar understood previously had one of the trucks which has been returned to the Liquidators.

52    The Matar Defendants have expressed their mistrust of the Liquidators because the invoices issued by Hajar Tippers in respect of post-administration work performed by Hajar Tippers in March 2025 at the request of the then administrators have not been paid. Further, because the Liquidators have represented that Hajar Tippers has been paid in a statutory declaration dated 25 March 2025 given by the Liquidators in respect of payment of all amounts due and payable to secondary subcontractors for work done in connection with the Sydney Metro West Eastern Tunnelling project.

53    Separately to the Returned Trucks, the Liquidators have recovered some additional trucks. The Liquidators’ evidence reveals that they have received information in relation to the whereabouts of some of the remaining Stolen Trucks on an ad hoc basis. On several occasions, a NSW Police Highway Patrol officer has contacted the Liquidators to notify them that they have seized a vehicle by reference to the registration number identified as one of the Stolen Trucks. On another occasion, a person (who it is not necessary to identify) notified the Liquidators that they had spotted a vehicle belonging to State Road Constructions. On a separate occasion, the Liquidators received an anonymous tip about the location of several vehicles belonging to State Road Constructions. Upon being notified of the location of the vehicles on each occasion, the Liquidators then contacted Lloyds to collect the vehicles.

54    The Liquidators have not connected the circumstances surrounding the recovery of these trucks to the Defendants in this proceeding. The Liquidators’ evidence also includes an account of a conversation with a person who is not a party to this proceeding in which an offer was made in relation to assisting with the return of the trucks in exchange for the payment of a fee. The Liquidators have not connected that person or the making of that offer with the present Defendants.

55    As at the return date of the ex parte relief, 51 of the Stolen Trucks remained missing. The Liquidators’ evidence was that these trucks have a market value of approximately $5.2 million.

Ex parte orders for the filing of affidavits deposing to information about the Stolen Trucks

56    In response to the ex parte orders which required the filing of affidavits deposing to information in relation to the Stolen Trucks, the following affidavits were filed.

Mr Ferrazzano’s 11 June 2025 affidavit

57    Mr Ferrazzano deposed that he has “very limited to no information about the current whereabouts of any specific vehicles and items, and their keys”. Mr Ferrazzano explained that his access to the State Road Group emails and systems was removed on around 3 April 2025.

58    Mr Ferrazzano deposed that the only other people who he understands may have the vehicles, other than Lloyds or the Liquidators, are Mr Abbas, Mr Matar, “Brad” (the quarry manager) and Jarell Waaka (the plant operator).

59    Mr Ferrazzano exhibited a table which sets out his knowledge as to the current and last known whereabouts of the vehicles and other items. The table also sets out vehicle information (including the registration, make, model and vehicle identification number (VIN)), any PPSR securities, the registration entity and the estimated market value of the vehicle.

60    Mr Ferrazzano also referred to a phone call on 12 May 2025 with a person (who I will not identify). That person notified Mr Ferrazzano that he had recognised some of State Road Constructions’ trucks while he was driving based on the yellow and black band stripes of the truck. Mr Ferrazzano says he immediately relayed this information to the NSW Police and was informed that the location in which the trucks were seen was a Lloyds holding yard.

Mr Abbas’ 11 June 2025 affidavit

61    Mr Abbas deposed that the only vehicle that he knew the whereabouts of was the 2021 RAM 3500 Laramie with registration XO11EN (the RAM Utility), which has been in his possession since 4 February 2025. Mr Abbas deposed that the RAM Utility is registered in the name of his company, House Demolition Pty Ltd, and is usually garaged at his home address in Spencer, NSW.

62    I interpolate to note that the Transport for NSW certificate of registration in evidence records that the RAM Utility is registered to State Road Constructions, not House Demolition. Similarly, the tax invoice for the purchase of the RAM Utility is addressed to State Road Constructions.

63    In relation to other vehicles, Mr Abbas deposed that “they are with either subcontractors of State Road Constructions Pty Ltd or with State Road Constructions Pty Ltd”. Mr Abbas did not provide any information as to the identity of the relevant subcontractors to which he refers. The affidavit is only four paragraphs long and is scant on substantive detail.

64    In his oral evidence and submissions at the hearing on 24 June 2025, Mr Abbas deposed that the RAM Utility was a gift from State Road Constructions. Mr Abbas deposed to personally choosing the vehicle because it is a “special type of car” that he intends to pass on to his children. Mr Abbas says he made upgrades to the RAM Utility on the assumption that he was keeping it. Mr Abbas stated that he intends to return the RAM Utility to the Liquidators with a view to buying it back at a later date. I address the RAM Utility further below in the context of the Plaintiffs’ application for delivery up orders in respect of this vehicle.

Mrs Matar’s 15 June 2025 affidavit

65    Mrs Matar deposed that she does not have, and does not know the location of, any of the items or vehicles alleged to be missing, save for the ten trucks which were returned by Mr and Mrs Matar to the Liquidators.

Mr Matar’s 15 June 2025 affidavit

66    Mr Matar, like Mrs Matar, deposed that he does not have, and does not know the location of, any of the vehicles alleged to be missing, save for the Returned Trucks. Mr Matar provided an explanation of the circumstances in which he caused the ten trucks to be returned in two separate tranches, which I will address below. As noted above, Mr Matar is alleged to have said during the execution of the search warrant that he was given signed registration papers for these trucks by Mr Ferrazzano and Mr Abbas.

67    Mr Matar deposed that the only other people who he understands may have the vehicles are Mr Abbas and Omar Fahme, who Mr Matar understood had one truck which was subsequently returned to the Liquidators.

RELIEF SOUGHT ON INTER PARTES RETURN HEARING

68    On the inter partes return hearing on 16 June 2025, the Liquidators sought the extension of each of the freezing orders, the making of further asset disclosure orders, and the delivery up of certain passenger vehicles which they contend are property of any of State Road Constructions, State Road Queensland, State Road Quarry and Thorley.

69    The delivery up orders were sought against Mr Ferrazzano and Mr Abbas. The vehicles the subject of the delivery up application are separate from the Stolen Trucks.

70    The vehicles the subject of the delivery up application against Mr Ferrazzano are as follows:

(1)    2024 Volkswagen Golf;

(2)    2021 Mercedes C200 FL; and

(3)    2020 Jeep Gladiator,

(together, the Ferrazzano Cars).

71    The vehicle the subject of the delivery up application against Mr Abbas is the RAM Utility.

72    I will first address the evidence in relation to the Ferrazzano Cars.

73    During the execution of the s 530C warrant at Mr Ferrazzano’s residence, the search party collected the following documents in relation to the Ferrazzano Cars:

(1)    Transport for NSW certificates of registration for several vehicles including the Ferrazzano Cars;

(2)    executed sale invoices for the Ferrazzano Cars in the name of State Road Constructions signed by Mr Ferrazzano; and

(3)    Transport for NSW transfer of registration forms directed to transfer the Ferrazzano Cars from State Road Constructions to Elgo. These transfer forms had not been lodged and were undated. Only the transfer form for the Volkswagen was signed by Mr Ferrazzano.

74    As mentioned, Mr Ferrazzano is the sole director and shareholder of Elgo. Mr Ferrazzano contends that Elgo is the trustee of the Ferrazzano family trust.

75    Mr Ferrazzano’s evidence in relation to each of the Ferrazzano Cars was made up of his personal assertion on affidavit and the assertions made as to ownership are not reflected in the contemporaneous documentation that was in evidence on this application. The evidence on this issue was as follows:

(1)    The Volkswagen was purchased on 6 August 2024. Mr Ferrazzano deposed that it was purchased for one of his daughters. The Volkswagen is registered in the name of State Road Constructions. Mr Ferrazzano deposed that he paid the deposit of $3,500 and the remainder of the purchase price was paid by Elgo via a loan to State Road Constructions. Mr Ferrazzano’s evidence is that the Volkswagen is currently in his daughter’s possession and that the Liquidators have been on notice of this since 29 May 2025 (when the s 530C was executed at Mr Ferrazzano’s residence and the registration papers for the Ferrazzano Cars were collected).

(2)    Mr Ferrazzano says that the Mercedes was purchased in 2021 by him for his mother. He says he purchased the Mercedes using his personal funds and or funds from Elgo and not company funds. Mr Ferrazzano says the Mercedes was originally registered in the name of his mother but was subsequently gifted to one of his other daughters and registered in the name of State Road Constructions for “administrative purposes only”. The Mercedes is currently in the possession of Mr Ferrazzano’s other daughter. The Liquidators have been on notice of this since 29 May 2025.

(3)    Mr Ferrazzano says that the Jeep was purchased in 2020 by him for his son. It is registered in the name of State Road Constructions. Mr Ferrazzano submitted that he paid the deposit of $5,000 and the remainder was paid by a loan repayment owed to Mr Ferrazzano personally by State Road Constructions. Mr Ferrazzano submitted that the Jeep was registered in the name of State Road Group for the administrative reasons. The Jeep is currently in the possession of Mr Ferrazzano’s son. The Liquidators have been on notice of this since 29 May 2025.

76    Mr Ferrazzano resisted the making of delivery up orders in respect of these cars on a variety of bases which I will come to in my consideration of this aspect of the relief sought by the Liquidators.

77    Since around 4 February 2025, Mr Abbas has had possession of the RAM Utility. Mr Abbas asserts that the RAM Utility belongs to House Demolition, a company of which he is the sole director.

78    An invoice addressed to State Road Constructions dated 23 December 2021 records the purchase of the RAM Utility by State Road Constructions for $195,776. At the time of purchase, the RAM Utility was registered in the name of State Road Constructions. The RAM Utility is presently registered and insured in the name of State Road Constructions. At the hearing of the application, Mr Abbas acknowledged that this vehicle was purchased by State Road Constructions but contended that he had been gifted the car for the work he had done over a period of years. Further, that because he understood it to be his car, he had spent over $15,000 on upgrades to the car. He said he had offered to buy the car off the Liquidators.

79    It was ultimately not necessary to determine whether a delivery up order should be made against Mr Abbas in relation to the return of the RAM Utility because a consent order was made in terms agreed between the Plaintiffs and Mr Abbas for the return of the vehicle which was accompanied by an undertaking given by the Plaintiffs in relation to securely preserving and maintaining the RAM Utility in their possession until further order, and will not, unless permitted by further order of the Court, seek to sell or transfer the RAM Utility.

80    The relief sought by the Liquidators contracted during the course of the hearing. In these reasons I will only address the issues that remained in contention at the conclusion of the hearing.

OPERATION OF THE EX PARTE FREEZING ORDERS

81    The ex parte freezing orders made by the Court were engrossed with a penal notice which relevantly provided that:

(1)    if the person bound by the freezing order refuses, neglects to do an act within the time specified or disobeys the freezing order, they will be liable to imprisonment, sequestration of property or other punishment; and

(2)    any other person who knows of the freezing order and does anything which helps or permits the person bound to breach the terms of the freezing order may be similarly punished.

82    The ex parte freezing orders were served by the Plaintiffs on the banks of the persons against whom the orders were made to the extent that the Plaintiffs were aware of the identity of the relevant banks.

83    In practice, the operation of the freezing orders has proved to be problematic. That is so even though each of the freezing orders broadly conforms with this Court’s standard form of freezing order as set out in the Freezing Orders Practice Note (GPN-FRZG). Each of the freezing orders included express exceptions for ordinary living expenses, reasonable legal fees and ordinary business expenses and an express statement that no bank need inquire as to the application or proposed application of any money withdrawn if it “appears to be permitted by the freezing order”.

84    The problems with the way in which the freezing orders are operating are best illustrated by the evidence led by Mr Ferrazzano. In short, his bank, Commonwealth Bank of Australia (CBA), has a standard practice when served with a freezing order which included the following features. In response to being placed on notice of the freezing orders, CBA suspended access to all bank accounts on which Mr Ferrazzano holds an authority to operate, whether those accounts are held in his name or not. In the present context, the freeze was relevantly applied to CBA bank accounts in his joint name with his wife and also an account held in the name of Elgo.

85    The evidence in this proceeding suggests that when the CBA suspends access to an account, the affected account should still be able to receive deposits (even though the account holder may not be able to monitor the balance of the account) however all debits, including direct debits and withdrawals, will not be processed. All electronic access to the affected account is restricted including the access necessary to view the account balance. For the affected account holders to make any permitted transfers or withdrawals in accordance with the exceptions to the freezing order, the CBA requires the account holder to personally attend a branch in person. CBA reserves its right to make appropriate inquiries to determine whether any proposed withdrawal is permitted in accordance with the terms of the freezing orders. It does so, amongst other reasons, for fear of exposure to the sanctions referred to in the penal notice in the event that it is found to have done anything to help or permit a breach of a term of the freezing order by the person bound by the freezing order. CBA’s approach to determining if a withdrawal is permitted under the freezing order requires 48 hours prior notice and documentary evidence to demonstrate that a withdrawal is permitted by the terms of the order, save for ordinary living expenses. As the evidence unfolded, it became clear that additional notification to and approval by the CBA compliance team (which is not branch-based) was also required in advance of personal attendance at a branch.

86    The problems being experienced by Mr Ferrazzano in connection with the freezing order have been particularly acute in relation to two commercial head leases under which Elgo is the lessee. The relevant property is a commercial property located in Erina, New South Wales (the Erina Commercial Property). Elgo has entered into profitable subleases as the sublessor with various third parties. These leases are addressed in greater detail below. For present purposes it suffices to note that Elgo has been unable to pay the rent due from it under the head leases because its CBA bank account is frozen as a result of Mr Ferrazzano being authorised to operate that account. Default notices have been issued to it and the head leases are at risk of being terminated.

87    A stopgap workaround to address this problem and facilitate the payment of the rent on the head lease was tested for a confined period of eight days in the lead up to the contested hearing, however it did not resolve the problems outlined above. The Court made detailed orders on 16 June 2025 in relation to specific payments that were permitted to be made by Mr Ferrazzano from the specified impacted CBA accounts and specified that the payments were to be made on 17 or 18 June 2025 (the 16 June Orders). A copy of the 16 June Orders was emailed to CBA’s compliance department. Mr Ferrazzano then attended a CBA bank branch on 18 June 2025 and was informed that the compliance team had received the 16 June Orders but required “5 to 7 days to review” the orders. After some time, the CBA compliance team temporarily unfroze Mr Ferrazzano’s account to enable the payment to the head lessor to be made in accordance with 16 June Orders. However, even though Mr Ferrazzano’s account was temporarily unfrozen, the transfer was suspended and the funds were not received by the head lessor because the account was again frozen immediately after the transaction was entered and this appears to have caused the transfer to bounce. Mr Ferrazzano deposed that he returned to the CBA bank branch on 19 June 2025 and CBA issued to Mr Ferrazzano a bank cheque in the relevant sum made out to the head lessor, which he then deposited to the head lessor’s account later that day. Mr Ferrazzano’s evidence is that in total, he spent over five hours at CBA branches across three days in his attempt to perform the permitted transfers under the workaround provided for in the 16 June Orders. That situation is clearly not satisfactory and is not necessary to achieve the purpose to which the freezing order is directed.

88    The evidence from the Matar Defendants and Mr Abbas as to the problems they experienced with their banks as a result of the freezing orders was considerably less detailed, but was sufficient to demonstrate that the freezing orders were not operating in the way in which they were intended. The issue of whether to continue the freezing orders fell to be determined on the basis of different considerations than those that applied at the ex parte hearing.

89    The difficulties which have manifested in the present case in relation to the way in which the freezing orders are operating in the context of accessing bank accounts for purposes that are excepted from the restraint imposed by the freezing order does not seem to be an isolated occurrence. It has been the subject of remarks made by at least three other judges of this Court in recent years: see Rambaldi (Trustee) v Meletsis, in the matter of the bankrupt estate of Karas (No 3) [2022] FCA 807 (O’Callaghan J); Nova Supply Chain Finance Pty Limited v Active Capital Reinsurance Limited (a company incorporated in Barbados) [2024] FCA 1398 (Jackman J); and Morcom Holdings Pty Ltd v Mountain Asset Partners Pty Ltd (in liquidation) [2025] FCA 692 (Goodman J).

90    Against the background of the difficulty being experienced by each of the Defendants in accessing their assets for the purposes permitted by the exceptions to the freezing orders, the overarching dispute between the Plaintiffs and Mr Ferrazzano was whether the freezing order should be discharged and replaced by an undertaking given to the Court, as well as whether the operative restraint should be further modified in relation to some of the existing exceptions. As between the Plaintiffs and Mr Abbas, the overarching dispute was whether the existing freezing order should be modified to address the difficulties experienced in dealing with his bank. As between the Plaintiffs and the Matar Defendants, Mr and Mrs Matar did not accept that the freezing order should be continued, even if modified, and did not proffer an undertaking as an alternative.

APPLICABLE LEGAL PRINCIPLES

Freezing Orders

91    On the present application, there was no substantive dispute between the parties as to the applicable legal principles. The applicable principles are well-established.

92    Here, the Plaintiffs relied on the power conferred by rr 7.32 and 7.35 of Federal Court Rules 2011 (Cth) for freezing orders, r 7.33 of the Rules for ancillary orders and further, or in the alternative, the power to appoint a receiver conferred by s 1323(1)(h) of the Corporations Act in circumstances where they contend it would be appropriate to grant a lesser form of relief in the guise of a freezing order.

Rule 7.32

93    In Deputy Commissioner of Taxation v Huang [2021] HCA 43; 273 CLR 429, the plurality (Gageler, Keane, Gordon and Gleeson JJ) said in respect of the power conferred by r 7.32(1) of the Rules (at [17], footnotes incorporated):

The power conferred by r 7.32(1) is expressly subject to two limitations: first, the purpose of the order must be “the purpose of preventing the frustration or inhibition of the Court's process”; and secondly, the order must address that purpose “by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied”. The first limitation corresponds with the established scope of the Federal Court's general powers to grant a freezing order, being the power to make such orders as the Court may determine to be appropriate to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction [Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33 [35]; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399-401 [41]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 243 [94]; PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at 18 [43]]. Rule 7.32 states explicitly the requirement, stated by this Court in relation to the Federal Court's general powers to grant a freezing order, that the power must be exercised for the purpose for which it is conferred [Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32-33 [35]; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 399-401 [41]]. Where the order is made in proceedings in which substantive relief is sought against the defendant, that purpose is “to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the court by depriving the plaintiff of the fruits of any judgment obtained in the action” [Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625]. More broadly, a freezing order is directed to dispositions “which are intended to frustrate, or have the necessary effect of frustrating, the plaintiff in his attempt to seek through the court a remedy for the obligation to which he claims the defendant is subject” [Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 276].

Rule 7.35

94    Rule 7.35(1)(b)(i) of the Rules requires that an applicant have “a good arguable case” on an accrued prospective cause of action that is justiciable in the Court. A good arguable case involves “something more than a serious question to be tried, but not necessarily rising so high as a prima facie case”: Ninemia Maritime Corp v Trave GmbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 at 404 (Mustill J). A good arguable case has also been described as one “which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 per cent chance of success”: Ninemia Maritime at 404 (Mustill J). The question raised by r 7.35(1)(b) is not whether a party opposing the making of a freezing order has an arguable defence to the case of the party seeking the order.

95    Pursuant to r 7.35(4), for an applicant to demonstrate there is “danger” that a prospective judgment will be wholly or partially unsatisfied because the subject of the order sought may abscond and/or the assets may be removed, disposed of, dealt with or diminished in value, they must prove, on the balance of probabilities, that there is such a “real risk”. While as a practical matter, in most cases the danger required by r 7.32 will be provided because one or more of the circumstances in r 7.35(4) are present, r 7.35(4) does not “cover the field” of events that might give rise to a danger of the kind necessary to enliven the power in r 7.32: Huang at [21]-[22] (Gageler, Keane, Gordon and Gleeson JJ).

Section 1323(1) of the Corporations Act

96    A freezing order may be made under s 1323(1) of the Corporations Act relevantly if:

(1)    an investigation is being carried out under the Australian Securities and Investments Commission Act 2001 (Cth) or the Corporations Act in relation to an act or omission by a person, which constitutes or may constitute a contravention of the Corporations Act (s 1323(1)(a)) or a civil proceeding has been commenced under the Corporations Act (s 1323(1)(c)); and

(2)    the Court considers it necessary or desirable for the purpose of protecting the interests of a person (the aggrieved person) to whom the subject of the order is liable or may become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for property.

97    Should those prerequisites be met, then the Court may, in its discretion, make a range of orders, including, relevantly, an order preserving the person’s assets: Australian Securities and Investments Commission v Carey (No 3) [2006] FCA 433; 57 ACSR 307 (ASIC v Carey (No 3)) at [21] (French J, as his Honour then was). The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words “necessary or desirable” and “for the purpose of protecting the interests of a person”: ASIC v Carey (No 3) at [26] (French J). The power to make asset preservation orders under s 1323 is implied from the express power in s 1323(1)(h) to appoint a receiver to the person’s property, such that it is open to the Court to make an alternative or less intrusive order than the appointment of a receiver, including an asset preservation orders: see Australian Securities and Investments Commission v Burnard [2007] NSWSC 1217; 25 ACLC 1505 at [100] (Barrett J); Australian Securities and Investments Commission v Krecichwost [2007] NSWSC 948; 213 FLR 314 at [34]-[37] (McDougall J); and Australian Securities and Investments Commission v Carey (No 14) [2007] FCA 310; 158 FCR 92 at [30]-[33] (French J, as his Honour then was).

Discretionary exercise of power

98    The making of a freezing order involves a discretionary exercise of power. The Court retains the discretion to refuse relief: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321-322 (Gleeson CJ).

99    The relevant principles which inform the exercise of the discretionary power in this context were discussed in KTC v Singh & Ors [2018] NSWSC 1510 at [4]-[8] (White J):

[4]    In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 the plurality (at [51]) approved what was said by the Court of Appeal in Frigo v Culhaci [1988] NSWCA 88 in relation to the Court’s inherent jurisdiction to grant a Mareva order; that the order is a drastic remedy not to be granted lightly, and its purpose is to preserve the status quo, not to change it in favour of the plaintiff. The plurality lamented (at [52]) that a reason rarely adverted to for care in exercising the power to grant a Mareva order was that there may be difficulties associated with the quantification of recovery of damages pursuant to the undertaking of damages that is required for the grant of such an order should it turn out that the order should not have been granted. The plurality also referred to the importance of discretionary considerations, including whether the applicant seeking the order has proceeded diligently and expeditiously (at [53]).

[5]    The purpose of the grant of a Mareva order and its statutory counterpart under UCPR r 25.11 is to prevent the frustration of the processes of the Court by a defendant whom it is apprehended will seek to put his or her assets out of the reach of the plaintiff so as to prevent enforcement of a judgment. In Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Gleeson CJ said at 321-322:

“The remedy is discretionary, but it has been held that, in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant's absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied.”

[6]    In TZ Limited v ZMS Investments Pty Ltd [2010] NSWSC 196 Barrett J said (at [26]):

“A general law freezing order is warranted only if, in the words of Bryson J in Acquasun Pty Ltd v Coverdale Ram Pty Ltd [2000] NSWSC 1146, there has been ‘conduct on the part of the defendants which can reasonably be interpreted as potentially having the effect of frustrating the ordinary processes of the court and the enforcement of its judgments or of being intended to do so or of being in any way evasive indicating dishonesty or otherwise indicating actually or potentially that the assets of the company have been or will be dealt with in an irregular way’.”

[7]    The respondents emphasise what was said by Mustill J in Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398 (at 406) that was approved in Frigo v Culhaci at 8 that:

“It is not enough for the plaintiff to assert a risk that the assets will be dissipated. He must demonstrate this by solid evidence. This evidence may take a number of different forms. ... But the evidence must always be there.”

[8]    In many cases the risk of dissipation of assets to avoid a judgment will be evident from the plaintiff’s strong prima facie case of the defendant’s having fraudulently misappropriated assets or of serious dishonesty. As the Court held in Patterson v BTR Engineering (Aust) Ltd such evidence may establish that it can reasonably be inferred that the defendant is the sort of person who would, unless restrained, not preserve his or her assets intact so that they might be available to a judgment creditor (at 325-326).

100    A freezing order is a drastic remedy which should not be granted lightly. The jurisdiction to grant a freezing order must be exercised with a high degree of caution. In determining whether it is appropriate to make a freezing order, the Court should also consider whether it would be appropriate to make a less intrusive or extensive order.

101    The Court’s power to grant a freezing order must be exercised for the purpose for which the power is conferred. Freezing orders must be framed so as to come within the limits set by the purpose which the orders are intended to serve.

102    The fundamental purpose of freezing orders is to prevent the abuse or frustration of a court’s process in relation to matters coming within its jurisdiction: Jackson v Sterling Industries Ltd [1987] HCA 23; 162 CLR 612 at 623 (Deane J); Cardile v LED Builders Pty Ltd [1999] HCA 18;198 CLR 380 at 394 [26] (Gaudron, McHugh, Gummow and Callinan JJ) and Deputy Commissioner of Taxation v Shi [2021] HCA 22; 273 CLR 235 at [22] (Gordon J).

103    A freezing order operates in personam and not as an attachment. The purpose of a freezing order is not to provide security for a prospective judgment against a defendant. Accordingly, a freezing order should not prevent a defendant from having access to their own assets to meet legitimate expenses such as their usual living expenses, legal expenses and ordinary and proper business expenses. The object of a freezing order is not to stop the person that is the subject of the order from spending their money, it is to stop them spending it in ways that are not legitimate to ensure there is no untoward removal of assets from the ownership of a prospective judgment debtor.

Orders for the return or delivery up of property

104    As the argument developed, the Plaintiffs expanded the basis of their claim for the grant of relief in the form of orders requiring the delivery of the Ferrazzano Cars and the RAM Utility as an application based on s 483 of the Corporations Act and or alternatively an application based on r 7.33 of the Rules (to make an order ancillary to a freezing order). The Plaintiffs did not ultimately seek to rely on r 14.11 of the Rules in respect of this part of the relief.

Section 483 of the Corporations Act

105    In aid of a liquidators’ obligations to get in all company property pursuant to s 474 of the Corporations Act, s 483(1) relevantly provides that the Court may require a person who is an officer of the company to deliver, convey, surrender or transfer to the liquidator, as soon as practicable or within a specified period, any property of the company in the person’s hands to which the company is prima facie entitled.

106    In an application under s 483, the Court’s role is not to enquire into and finally determine any dispute as to title to the property, but to determine the question of prima facie entitlement and order its delivery up to the liquidator even if there is a dispute as to ownership: Home v Walsh [1978] VR 688; 3 ACLR 564 at 704 (Anderson J). Section 483(1) is not available where an adverse claim is made against the company by the person in whose hands the assets are found: Re Mischel & Co Pty Ltd (in liq) [2014] VSC 140; 284 FLR 320 at [75] (Robson J). In those circumstances, the question of entitlement to the assets must be prosecuted by the liquidator in the same way as any other person.

Ancillary order under r 7.33

107    Rule 7.33 empowers the Court to make an order ancillary to a freezing order or prospective freezing order as the Court considers appropriate for purposes that are ancillary to the making of a freezing order. An ancillary order under r 7.33 may be made against a person who is not a party to the proceeding: r 7.34.

108    This power extends to the making of an order for delivery up of specified assets: Jackson at 622-623 (Deane J), citing CBS United Kingdom Ltd v Lambert [1983] CH 37; [1982] 3 All ER 237. An order requiring delivery up of assets should make clear that the assets will be held on behalf of the defendant until after judgment or further order for the purpose of precluding the disposal of the assets so as to defeat a judgment and will then be redelivered to the defendant unless they are made subject to a claim on behalf of the plaintiff or some other creditor: Jackson at 625-626 (Deane J). A delivery up order does not purport to create security over the assets in favour of the plaintiff.

109    In making any ancillary orders under r 7.33, the Court must afford the person affected a proper opportunity to invoke a claim for privilege against self-incrimination under s 128A of the Evidence Act 1995 (Cth) or under the common law: see Ross v Internet Wines Pty Ltd [2004] NSWCA 195; 60 NSWLR 436 at [94]–[104] (Giles JA, Spigelman CJ and McColl JA agreeing at [1] and [111]); Freezing Orders Practice Note (GPN-FRZG) at [2.14].

ISSUES TO BE DETERMINED ON INTER PARTES RETURN OF RELIEF granted EX PARTE

110    As mentioned, the issues to be determined at the inter partes return hearing evolved somewhat in the lead up to and at the hearing. Relevantly, the issues for determination may be summarised as follows:

As between the Plaintiffs and Mr Ferrazzano

111    As between the Plaintiffs and Mr Ferrazzano, the issues are broadly as follows:

(1)    Issue 1: Whether the ex parte freezing orders against Mr Ferrazzano ought be extended until further order of the Court or alternatively, discharged and replaced by an undertaking given by Mr Ferrazzano to the Court;

(2)    Issue 2: Relatedly, whether the terms of the constraint on Mr Ferrazzano’s access to his assets (whether continued by way of freezing order or as an undertaking) should be modified to:

(a)    provide for the effective operation of the various exemptions to the terms of the existing order; and

(b)    otherwise, to adequately reflect his personal circumstances;

(3)    Issue 3: Whether Mr Ferrazzano should be ordered to deliver to the Liquidators, the Ferrazzano Cars, which the Liquidators contend are the property of State Road Constructions.

As between the Plaintiffs and Mr Abbas

112    As between the Plaintiffs and Mr Abbas, the issues are broadly as follows:

(1)    Issue 4: Whether the ex parte freezing orders against Mr Abbas should be extended until further order of the Court; and

(2)    Issue 5: If so, whether the terms of the freezing order should be modified to effectively accommodate Mr Abbas’ ordinary living expenses.

113    The issue concerning whether Mr Abbas ought relevantly be ordered to deliver to the Liquidators, the RAM Utility, which the Liquidators contend is the property of State Road Constructions has resolved. After the hearing completed but during the time afforded to the parties to engage in further discussion, this issue was resolved by consent. The consent position is reflected in the orders I made.

114    At the time of the inter partes hearing, Mr Abbas was in default of the ex parte orders by which he was required to provide an asset disclosure affidavit. Mr Abbas did not seek to set aside the ex parte asset disclosure order that had been made against him, seeking instead that the time for him to comply be extended. Accordingly, I made an order extending the time for Mr Abbas to comply with the ancillary order requiring him to depose to his assets until 1 July 2025. In doing so, I impressed upon Mr Abbas the importance of complying with the orders made against him and potentially serious consequences of not doing so. On 1 July 2025, he filed his asset disclosure affidavit.

As between the Plaintiffs and the Matar Defendants

115    As between the Plaintiffs and the Matar Defendants, the issues were broadly as follows:

(1)    Issue 6: Whether the ex parte freezing orders against Mr and Mrs Matar should be extended until further order of the Court;

(2)    Issue 7: Whether, if the freezing orders against Mr and Mrs Matar are extended, the terms of the freezing order should be modified in any way and whether conditions should apply;

(3)    Issue 8: Whether, if the freezing orders against Mr and Mrs Matar are extended, that relief should be conditional on the Liquidators paying the invoices issued by Hajar Tippers for work done in the post-administration period which are past due and in respect of which the Liquidators appear to have represented in a statutory declaration made by Mr Shaw that the invoices have been paid when they have not been paid; and

(4)    Issue 9: Whether, if the freezing orders against Mr and Mrs Matar are modified and continued in a modified form, that relief should be conditional on the Matar Defendants agreeing to submit to a process whereby the Liquidators are given a broad right of access to undertake what the Liquidators describe as a stocktake for the purpose of confirming that none of the vehicles used by the Matar Defendants are in fact the vehicles that were taken from the Liquidators’ custody and control.

CONSIDERATION

Relief sought against Mr Ferrazzano

Issues 1 and 2: Freezing orders against Mr Ferrazzano

116    The first issue is whether the ex parte freezing orders against Mr Ferrazzano should be extended until further order of the Court or alternatively, discharged and replaced by an undertaking given by Mr Ferrazzano to the Court. Relatedly, the second issue is whether the terms of the constraint on Mr Ferrazzano’s access to his assets (whether continued by way of freezing order or as an undertaking) should be modified to:

(1)    provide for the effective operation of the various exemptions to the terms of the existing restraint; and

(2)    otherwise, to adequately reflect his personal circumstances.

117    Mr Ferrazzano opposed the continuation of the freezing orders against him. In doing so he did not contest that the evidence established:

(1)    a good arguable case for a prospective judgment against him; and

(2)    there is a danger that the prospective judgement will be wholly or partly unsatisfied because Mr Ferrazzano’s assets will be disposed of, dealt with or diminished in value.

118    Mr Ferrazzano thus contested the relief against him on the limited basis that, in his submission, the relevant discretionary factors to be considered on this application weigh in favour of discharging the freezing order and in lieu thereof, accepting an undertaking given by Mr Ferrazzano to the Court.

119    The good arguable case which Mr Ferrazzano concedes for the purpose of this application is in respect of breach of s 37A of the Conveyancing Act 1919 (NSW), s 483 of the Corporations Act, breaches of directors’ duties pursuant to ss 181 and 182 of the Corporations Act, and in conversion and detinue.

120    Mr Ferrazzano’s principal argument is in substance that the freezing order is not operating as intended in that the express exceptions to the freezing order have not been effective to enable him to access money in his and his wife’s bank account for the permitted purposes of meeting legitimate expenses such as his usual living expenses, his proper legal expenses and ordinary and proper business expenses. This situation has caused hardship to Mr Ferrazzano and his family. In particular, Mr Ferrazzano has had to borrow money from friends and his wife has had to sell her personal jewellery to meet their living expenses.

121    Mr Ferrazzano also pointed to the fact that he has been unable to transact on Elgo’s bank account, which he says is the trustee of his family trust, as a means of meeting his ordinary living expenses and to enable Elgo to pay rent due on its two leases of the Erina Commercial Property. This is of significant concern to Mr Ferrazzano. As mentioned above, Mr Ferrazzano deposed that Elgo has been served with a notice of breach by the head lessor and that Elgo is at considerable risk of adverse action from the head lessor. Mr Ferrazzano’s evidence is that if Elgo is evicted from the Erina Commercial Property, he will lose his only current source of income, which derives from Elgo’s rental income from a series of advantageously priced subleases of this property.

122    Mr Ferrazzano gave evidence that his account, his and his wife’s account and Elgo’s account have each been frozen since 31 May 2025, and his efforts to come to a workable arrangement with the bank have failed. The evidence included correspondence between Mr Ferrazzano, his legal representatives, his bank, the Plaintiffs and the Plaintiffs’ legal representatives. I will not recite the detail of it. The evidence (which I have addressed above) demonstrated that the way in which the ex parte freezing orders have operated has seriously undermined, if not wholly negated, the efficacy of the existing exceptions. The evidence further demonstrated that since obtaining and serving the ex parte freezing orders, the Plaintiffs have largely seen it as Mr Ferrazzano’s problem and have not been striving to work with Mr Ferrazzano’s representatives to arrive at a workable solution.

123    Mr Ferrazzano submitted that the existing ex parte freezing order is operating in effect as a security for any prospective judgment that the Plaintiffs may obtain against him. Further, that it is causing significant hardship and that if the freezing order is extended in its current form and the position created by serving it on his bank is not addressed, Mr Ferrazzano will suffer irremediable prejudice in the form of losing his only current source of income.

124    I interpolate to note that the Plaintiffs’ undertaking as to damages provides limited comfort given the technical and practical difficulties that are often attendant on enforcing undertakings of this nature. I have weighed the existence of the undertaking accordingly.

125    I further note that the evidence did not address the availability or prospect of success of any action that may be available to Mr Ferrazzano against his bank. In this regard, the evidence was silent on this topic and I am not suggesting that such evidence should have been led. The point I wish to make is that the steps taken by CBA upon being served with the ex parte freezing orders may be authorised under the bank’s terms and conditions, or they may not be. In considering the balance of convenience as to whether to continue the freezing order in its present form with the bank continuing to act so as to manage its own risk as a person served with the relevant penal notice, I have not weighed in the balance any potential claim that Mr Ferrazzano may have against his bank: cf Rambaldi, see also Morcom at [24(1)] (Goodman J).

126    Next, Mr Ferrazzano submitted that there is an obvious weakness inf the Plaintiffs’ case against him. He contended that the Plaintiffs’ evidence in relation to there being a good arguable case for a prospective judgment against him is weak. While he accepted it is enough for the purpose of this application, he says that it is relevant to the Court’s discretion, especially as to the duration of relief, to have regard to how weak the Plaintiffs’ case against him is and the low bar that a good arguable case represents on an application such as this.

127    Finally, Mr Ferrazzano submitted that his proffered undertaking represents a lesser form of relief that would be wholly adequate in the present circumstances and that the Court should discharge the freezing order and accept the undertaking in its place.

128    The Plaintiffs sought to continue the freezing order until further order, but concede that some modifications should be made.

129    At the level of principle, the Plaintiffs accepted that Mr Ferrazzano should be permitted to pay the rent and outgoings on the Erina Commercial Property to or as directed by the head lessor. The Liquidators similarly accepted that Mr Ferrazzano should be permitted to pay ordinary living expenses up to a monetary cap of $2,500 per week based on Mr Ferrazzano’s evidence of his regular living expenses totalling an amount below this threshold. To the extent that Mr Ferrazzano pressed for this exception to be uncapped, I am satisfied that it is appropriate to maintain a cap, but the cap should be increased from $1,000 to $2,500. The Liquidators accepted other general exceptions for proper legal expenses and medical expenses and dealing or disposing with assets in the ordinary and proper course of business.

130    In this regard, however, the Plaintiffs raised two concerns. First, notwithstanding that the Plaintiffs did not take issue in principle with the sale of two vintage sports cars, a 1975 Fiat 124 Sport and 1974 Capri GT described as “project” cars, for the purpose of paying the proceeds of sale into Mr Ferrazzano’s solicitors’ trust account, the Liquidators requested further information in the form of the VIN of the vehicles in order to be satisfied that the vehicles are unencumbered and owned by Mr Ferrazzano. Secondly, the Liquidators opposed an exemption for Mr Ferrazzano to sell properties which are encumbered and subject to possession and debt proceedings in the Supreme Court of New South Wales (proceedings no. 2025/00190893 (in respect of possession) and 2025/00190894 (in respect of the alleged debt)). The orders I made will permit the relevant penal order to be varied by consent in Chambers. These are matters that can and should be dealt with by recourse to that mechanism, particularly having regard to the Plaintiffs’ potential exposure under the undertaking as to damages if they do not engage in a way that is reasonable. The parties should strive to reach an agreement. They should not seek to have the Court closely involved in this level of detail until they can demonstrate that they have had substantive engagement between themselves and it is not possible to reach a reasonable agreement. It is at that point that they should they exercise liberty to apply. In doing so, they should provide to the Court a clearly articulated explanation of the difference between their respective positions and the rationale for their competing positions. Having regard to the purposes which are served by the freezing orders (and those which are not), it is incumbent on the parties to exhaust their inter partes negotiations on issues such as these before seeking to involve the Court in the close oversight of such matters.

131    The principal issue between the parties was, as I have mentioned, the form of the continuing constraint — either in the form of a penal order or an undertaking to the Court — and the scale and scope of the permitted exceptions to the constraint.

132    The Liquidators maintain that the permitted exceptions should be by way of an express exception to the freezing order, and not as part of an undertaking given to the Court as proposed by Mr Ferrazzano. The Liquidators maintained that the freezing order, if extended, should be served on the relevant banks and that the inclusion of the following notation to the penal order would be sufficient to ameliorate the ongoing difficulties the ex parte freezing order has created: “the freezing orders do not restrict the defendants’ ability and access to funds as provided for in the exceptions to the freezing orders”.

133    I was not satisfied that the Liquidators’ proposed wording will be effective in achieving the intended purpose in light of the evidence that Mr Ferrazzano has led as to the CBA’s practices and how those practices have been implemented in relation to the existing freezing orders, as extended and modified on 16 June 2025.

134    On the other hand, I was not satisfied that the Plaintiffs’ evidence as to a good arguable case is so weak that the proper balance between the parties competing interests is appropriately struck by accepting an undertaking from Mr Ferrazzano. The allegations made against Mr Ferrazzano are serious and are rooted in alleged conduct that is dishonest in nature.

135    I accept that a fair proportion of the evidence is based on hearsay, including hearsay that was some steps removed. However, critical parts of the allegations that are based on hearsay are met with evidence that quibbles as to the precise words spoken but not as to the substance and effect of the evidence sought to be impugned.

136    The support for the allegations made by the Liquidators is not limited to secondary hearsay. The evidence on this interlocutory application falls to be weighed in the context of the Liquidators’ capacity to call evidence on these issues in their capacity as the external administrators of the State Road entities and at a relatively early time in their investigations into the affairs of the companies. For the purpose of this application, I was satisfied that the evidence is sufficient to support the Liquidators’ allegations.

137    The theft of the Stolen Trucks after the appointment of the Liquidators was brazen. If the explanation that subcontractors who were owed money by the relevant State Road entities took matters into their own hands, then it would be expected that Mr Ferrazzano would be in a position to identify the relevant subcontractors who, to his knowledge, have taken the trucks, or at least who he understands may have taken the trucks and his basis for so believing. He has not done this in the affidavit he was required to make. The risk of dissipation must be assessed in this context: Patterson at 325-327 (Gleeson CJ); see also RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd [2017] FCA 1352 at [12] (White J); Spotlight Pty Ltd v Mehta [2019] FCA 1796 at [23] (Anderson J). In the circumstances of this application, and weighing the evidence led by each party by reference to their capacity to adduce evidence on the critical topics, I concluded that the evidence established that the risk of dissipation was significant.

138    I have considered Mr Ferrazzano’s evidence and his submissions, in which he disavows involvement in the theft of the Stolen Trucks. His evidence is largely at the level of assertion. It is not supported by contemporaneous records which one would expect. The Liquidators’ evidence is that Mr Matar told them during the execution of the s 530C warrant that Mr Ferrazzano and Mr Abbas provided him with signed transfers for the ten trucks that he took into his possession. That Mr Matar was able to cause the registration of some of those trucks to be transferred to Hajar Tippers suggests that Mr Ferrazzano was likely involved in that process, given he was the sole director of the relevant transferor.

139    The evidence in relation to the actions that Mr Ferrazzano took in readying transfer documents for the Ferrazzano Cars, after the appointment of the Liquidators, is of concern. The regret that Mr Ferrazzano expresses in respect of this aspect of his conduct does not alter the fact that it occurred.

140    The Liquidators’ investigations are at an early stage but even so, there is a good arguable case, as indeed Mr Ferrazzano presently concedes, that he was involved in and is liable for the claims which arise from the alienation of the relevant company property in the various ways in which those claims are formulated.

141    The Plaintiffs bare the onus of showing that the balance of convenience favours the making of the freezing order. In Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; 273 ALR 194 at 198 [13], Kenny J summarised the Court’s task in the following way:

In summary, the Court must consider, on the whole of the evidence before it, whether to continue, discharge or vary the freezing order previously made. In deciding this matter, the Court must determine, first, whether the Commissioner has shown a good arguable case on an accrued or prospective cause of action that is justiciable in the Court. Secondly, the Court must consider whether, on the evidence before it, there is a danger that a judgment or prospective judgment will be unsatisfied because assets are removed from Australia, or disposed of, dealt with, or diminished in value. Finally, the Court must consider the overarching question, whether, in all the circumstances, the case is one in which it is in the interests of justice to maintain or continue the freezing order. Amongst other things, in this regard, the Court must consider the likely consequences to the applicant if the assets are removed and the hardship that such an order inflicts on the respondents. The rights of third parties who may be affected by the grant of the order must also be borne in mind.

142    I was satisfied that the balance of convenience favours the making of a freezing order which will operate until further order of the Court, but that the freezing order should not be served on the relevant bank without the Plaintiffs obtaining leave of the Court. My reasons for making the orders that I did are as follows.

143    First, in making a freezing order against Mr Ferrazzano, I was conscious that such an order is an extraordinary remedy and will inevitably cause prejudice to him. That prejudice is reduced by the fact that the Liquidators offered an appropriate undertaking as to damages, but I took into account that enforcing such an undertaking may be attended by difficulties.

144    Secondly, the freezing order I made allowed Mr Ferrazzano to pay his ordinary living expenses and proper legal expenses.

145    Thirdly, the freezing order I made included a monetary cap of $5,200,000, reduced to reflect the present state of the evidence in relation to the estimated market value of those of the Stolen Trucks that have as yet not been recovered.

146    Fourthly, I discharged the ex parte freezing orders and required the discharge orders to be served on Mr Ferrazzano’s bank. That order only took effect after the new freezing order was entered. If the Plaintiffs wish to obtain leave to serve the new freezing order on a bank, they will have to support their application with evidence as to the arrangements that are in place for the effective operation of the exceptions included in the freezing order.

147    Weighing the foregoing considerations, I was satisfied that the balance of convenience favours the making of the freezing order until further order. Given the nature and the seriousness of the allegations against Mr Ferrazzano and the steps that he acknowledges he has taken in relation to the Ferrazzano Cars, I do not consider that a personal undertaking from him to the Court is an appropriate lesser form of relief in this case.

148    For these reasons, I made the orders that I did on 30 June 2025.

Issue 3: Delivery up orders in relation to the Ferrazzano Vehicles

149    The third issue is whether the Court should exercise its discretion to make orders for the delivery up of the Ferrazzano Cars to the Liquidators.

150    On the evidence on this interlocutory application, I was satisfied that the Liquidators have established that the Ferrazzano Cars are prima facie property that was purchased by State Road Constructions and registered in its name. The contemporaneous documentary evidence demonstrates each of the Ferrazzano Cars were purchased with company funds and consistently with this, the vehicles were, and continue to be, registered in the name of State Road Constructions.

151    I have considered Mr Ferrazzano’s evidence to the contrary, which is comprised principally of assertions made in his affidavit evidence. Mr Ferrazzano’s evidence was not supported by evidence from his immediate family members, whom he says were gifted each of the relevant vehicles or by any documentary evidence, including in relation to his assertion that Elgo relevantly had loans in place with State Road Constructions for the purchase of each of the Ferrazzano Cars. He has not explained why company funds were used to purchase and register the vehicles which were gifted to his family members. He faintly asserted that the registration of the cars was in the company’s name for administrative convenience.

152    Mr Ferrazzano’s evidence is given in the context of his acceptance that the Plaintiffs have established a sufficiently good arguable case against him on this application that is founded, amongst other things, on the wrongful alienation of company property, conversion and detinue and breaches of his duties as a director. In considering the Plaintiffs’ application for an order for the delivery up of the vehicles, I was satisfied that on the evidence as it currently stands, the vehicles are prima facie company property which should be under the Liquidators’ control. Without more, it would follow that the property should be preserved by the Liquidators with a view to any claims in respect of the ownership of the vehicles being considered in the first instance by the Liquidators as part of their administration of the companies’ affairs.

153    However, the Liquidators’ approach has been unsatisfactory in a number of important respects.

154    First, it appears to be common ground between the Plaintiffs and Mr Ferrazzano on this application that Mr Ferrazzano’s Family Members are in possession of the Ferrazzano Cars. The Liquidators have not led evidence that they have taken any steps to seek to recover the Ferrazzano Cars from Mr Ferrazzano’s Family Members or even to notify them of this application. Mr Ferrazzano deposed that he has not informed his adult children of the Plaintiffs’ claims in respect of the Ferrazzano Cars and also as to his reasons in not doing so. It is not necessary to descend into Mr Ferrazzano’s reasons for taking this course. His children are adults. The Liquidators seem to accept that the Ferrazzano adult children are in possession of these cars. It is for the Liquidators to deal directly with the Mr Ferrazzano’s Family Members and in the event that they do not yield to the Liquidators’ demands, if so advised, to bring an application on notice. The fact that they have not done so is significant.

155    The Liquidators press for the delivery up orders to be made without giving those most immediately affected by the orders an opportunity to be heard. I do not accept the unspoken premise that informs the Plaintiffs’ stance — that Mr Ferrazzano is assumed to be a cipher for his adult children or that because of the allegations made against Mr Ferrazzano, his adult children are relevantly implicated in a way that precludes affording them the opportunity to be heard. Unlike the Stolen Trucks, the Liquidators have not led evidence on this application or otherwise submitted that there has been any attempt to conceal the fact that Mr Ferrazzano’s Family Members are in possession of the Ferrazzano Cars or to conceal the location of where these vehicles are routinely garaged. There is a dearth of evidence from which the Liquidators could submit that Mr Ferrazzano’s Family Members have concealed the fact that they each possess one of the Ferrazzano Cars.

156    In weighing whether it would be appropriate to accede to the Plaintiffs’ attempt to obtain delivery orders without affording the Mr Ferrazzano’s Family Members an opportunity to be heard, I took into account that it would likely be in the interests of Mr Ferrazzano’s Family Members to engage with the Liquidators. That is so because the registration of the Ferrazzano Cars cannot be renewed without the co-operation of the Liquidators because the vehicles are registered in the name of State Road Constructions. Those registrations are due to expire fairly shortly (for the Volkswagen on 9 August 2025, for the Jeep on 29 September 2025 and for the Mercedes on 29 October 2025). That the registration of each vehicle is in the company’s name and taking into account Mr Ferrazzano’s evidence as to his children’s daily reliance on these vehicles, there is a basis to infer, as I have, that it is unlikely that Mr Ferrazzano’s Family Members will attempt to sell the Ferrazzano Cars. Even if they did, a sale would be difficult in so far as any potential purchaser would be concerned to ensure the relevant car could be registered in the purchaser’s name and as I will come to, Mr Ferrazzano has, through his senior counsel, given an undertaking not to cause these cars to be transferred. These matters weigh against it being appropriate for the Court to act without affording Mr Ferrazzano’s Family Members an opportunity to be heard.

157    Finally, as I have alluded to, in making the orders that I did, I attached weight to the fact that senior counsel for Mr Ferrazzano informed the Court in his written submissions that Mr Ferrazzano has instructed him to give to the Court an undertaking that Mr Ferrazzano will not transfer or participate in the transfer of the ownership or registration of the Ferrazzano Cars until any dispute between the Plaintiffs and his children is resolved. In making the orders that I did on 30 June 2025, I did not formally note that undertaking. I do so in publishing these reasons.

158    Taking all of the above into account, I was satisfied that it was not appropriate to make an order for the delivery up of the Ferrazzano Cars at this time.

159    In reaching this conclusion, I assumed that there was power to grant such relief and that in order to do so I must be satisfied that it was an appropriate exercise of the discretion. Having concluded that, even if all the issues raised in relation to the availability of a relevant power were resolved in favour of the Plaintiffs, it would not be appropriate to exercise the discretion to grant the relief sought by the Plaintiffs without them notifying Mr Ferrazzano’s Family Members, it is not necessary to resolve the debate between the parties as to the source of, and existence of, a power to make a delivery up order in relation to these cars. Had it been necessary to do so, I would incline to the view that the order sought could have been made as an ancillary order to a freezing order, allowing for the possibility of making of a targeted freezing order directed to dealing with the Ferrazzano Cars in the hands of those who currently have possession of those vehicles.

160    As the substantive outcome of this application between the Plaintiffs and Mr Ferrazzano was mixed, with each enjoying some success on different aspects of the present application, I ordered that there be no order as to costs between the Plaintiffs and Mr Ferrazzano. I reserved a brief period during which the parties may apply for an alternative costs order.

Relief sought against Mr Abbas

Issue 4: Freezing orders against Mr Abbas

161    The fourth issue is whether the freezing orders against Mr Abbas should be extended until further order of the Court.

162    The good arguable case pressed against Mr Abbas is for breach of s 37A of the Conveyancing Act and in conversion. For the purpose of this application, the Plaintiffs’ evidence as to Mr Abbas’ role in connection with what may loosely be described as negotiating the return of the Stolen Trucks in return for a payment from the Plaintiffs and in acting as a conduit between the Liquidators and the unnamed subcontractors allegedly in possession of the remaining Stolen Trucks establishes that the Plaintiffs have a good arguable case against Mr Abbas. Further, the transactional nature of what Mr Abbas is alleged to have proposed confirms that there is a real risk of dissipation that threatens the administration of the Court’s processes.

163    In his address to the Court at the hearing of this application, Mr Abbas did not mount any substantive opposition in this regard. He did suggest that his only role had been to negotiate between Mr Matar and Mr Ferrazzano. He said:

MR ABBAS: Okay. The only vehicles I knew about was Hajar Tippers, and the only reason why – and this is the funny thing – I would never – I wouldn’t be a part of this whole issue if it wasn’t for me trying to help Hajar Tippers. He’s owed $750,000. Mr Ferrazzano, that’s sitting there, has promised him that, if he doesn’t get paid, he can take these trucks. Okay. And that’s what it has come down to, and I just don’t understand. That’s why I’m really frustrated, your Honour.

HER HONOUR: So what - - -

MR ABBAS: That - - -

HER HONOUR: What do you say - - -

MR ABBAS: And now – and now, both of them – both of them have accused me, which is – I’ve got nothing to do with this. I’ve got freezing orders on my account, which I don’t care, because I’ve got no assets. It’s just a day-to-day – and it’s affecting my family. And if it affects my kids, it affects me. Other than that, your Honour, I couldn’t care about the freezing order on my business account. It does affect, like, the child support, the revenues I filed, the ATO, and my family. Other than that, your Honour, I don’t have a problem with it. We can play it out, and we will get to see who’s right and who’s wrong. That’s your job to do.

HER HONOUR: It’s - - -

MR ABBAS: But at the end of it – at the end, all I’m saying is, with the Kemp – like, he said something about, your Honour, about the Kemps Creek site. I messaged Enzo – Mr [Ferrazzano] – the address of the Kemps Creek site. I mean, he has got it via text message, and I just saw it on my phone. I’ve sent it to him. So these are accusations which upset me, because it’s not true. But, again, Mr Carey can paint a picture of me that doesn’t exist and I don’t – it doesn’t affect me. It just affects my family. That’s all it is. That’s all I’m upset about. Like, I’m not upset, but that’s the point that I need to bring across. And that’s all I’ve got to say

164    I am not able to reconcile Mr Abbas’ assertions that his only involvement in relation to the Stolen Trucks was in connection with the trucks that ended up in the possession of the Matar Defendants in circumstances where the contemporaneous file notes of the Liquidators that suggest Mr Abbas’ role was more expansive. I was satisfied that the first two criteria for the making of a freezing order against Mr Abbas were established.

165    For completeness, I note that Mr Abbas has not sought to persuade the Court that the freezing order should be replaced by an undertaking or point to discretionary considerations that weighed against continuing the freezing order, other than hardship. In relation to hardship, Mr Abbas’ position was that the freezing order should be modified to enable him to more adequately provide for his family and to address the practical operation of the exclusions in the setting of dealing with his bank.

Issue 5: Modification of the freezing orders against Mr Abbas

166    The fifth issue is whether the freezing orders against Mr Abbas should be modified to more effectively accommodate Mr Abbas’ ordinary living expenses in the event that the freezing orders against him are extended until further order of the Court.

167    On the hearing of the application, I was satisfied that the ex parte freezing orders against Mr Abbas had not proved to be effective in enabling the exclusions to function as intended. I regarded that as a significant consideration because the exceptions embodied in the Court’s standard form of freezing order are a critical part of the way in which the competing interests of, here, the Plaintiffs on the one hand and Mr Abbas on the other hand, are balanced.

168    As mentioned, Mr Abbas was not legally represented. He did not file affidavit evidence directed to the issue of whether the freezing order against him should be continued, but he did give evidence from the bar table principally as to hardship. His blend of evidence and submission was as follows:

… the only personal assets that I have is not more – is not worth more than [$]1000 to $2000, and it’s not even related to the civil industry, or the industry that State Roads is part of. My business account is used for day-to-day use, and it’s used for work. If I need to call the bank every time I need to pay for business expenses, it won’t work for me, your Honour, and waiting 48 hours – like, I deal with tips and I deal with recycling ..... and, you know, I don’t have any machinery, so I contract my work, and I will give you a quick example. A house demo might be $40,000. I will contract it out for $35,[000] then I make $5,000. I don’t need to go to site to do the work, so I act as a middleman.

Because sometimes, I might do the work and hire a machine and do the work, and I need to pay for these expenses daily, or on the spot. I also owe Revenue New South Wales $180,000. I owe child support, $35,000 for my son from a previous relationship. I also owe the Australian Taxation Office a fair bit – and these are all fixed payments that I’m paying for by instalments. In regards to family expenses – like, I’ve just worked it out roughly, that I would need roughly around $5,000 a week. And that’s give or take. But at the same time, your Honour, I’m just letting you know why these freezing orders just won’t work for me.

And if it did help you – and that’s why in one of my – I was happy to keep the freezing orders because, like, I – it won’t affect me unless it affects the bank account. Put everything aside other than the bank account, your Honour. And that’s only used for work, so it’s not used for selling any assets. I don’t even think there is any car assets. There might be a ute and the Dodge Ram. But we will get to the Dodge Ram in a sec. Like, I don’t think this freezing order works for me, your Honour.

169    Taking this evidence into account, I made orders to similar effect as those that I made in relation to Mr Ferrazzano whereby new freezing orders were entered, and upon entry of those orders the existing freezing orders were discharged. The banks on whom the ex parte freezing orders were served will be notified that those orders have been discharged. The Plaintiffs must not serve the new freezing orders on any bank without leave of the Court. Any application for such leave must demonstrate that the exceptions to the freezing order will be adequately observed by the relevant bank. The orders I made also modified the exception to the freezing order to increase the cap on ordinary living expenses to reflect that Mr Abbas had five dependent children in his current relationship and is in default of his child support obligations for his son from a previous relationship.

170    As the Plaintiffs were in substance successful on the present application against Mr Abbas, I ordered that Mr Abbas pay the Plaintiffs’ costs of the application against him subject to a short period in which to apply for alternative orders as to costs.

Should the new freezing orders made against Mr Ferrazzano and Mr Abbas be time limited?

171    Mr Ferrazzano submitted that if freezing orders were made against him, that the orders should not be expressed as remaining in effect until further order but rather be expressly subject to expiration on a designated date with the Plaintiffs continuing to carry the onus in relation to any extension of the freezing orders beyond that designated date. Mr Abbas, being a litigant in person, did not raise this issue directly, but it is relevant to the freezing orders made against him as well.

172    In making this submission, Mr Ferrazzano relied on the approach I took in Trafford-Jones v Liu, in the matter of the bankrupt estate of Liu [2024] FCA 998 at [209]. The present application is made at a very early stage of the Liquidators’ investigations. The context in which it is made is readily distinguishable from that which informed the temporal limitation imposed in the freezing orders made in Trafford-Jones. In Trafford-Jones, public examinations of the critical people had been concluded for some time. Yet, no proceeding had been commenced. Whereas here, examinations have not yet been conducted. Whether to institute future proceedings against the Defendants and if so, what shape those proceedings may take, will likely be informed by examinations of the principal people alleged to be involved. I was not persuaded that it was appropriate to impose a temporal limitation on the freezing orders against Mr Ferrazzano and Mr Abbas at this time. Accordingly, the orders that I made were expressed to take effect until further order. The result is that if Mr Ferrazzano or Mr Abbas seek to discharge the freezing orders made against them, they will carry the onus of satisfying the Court that the orders should be discharged.

173    The Liquidators do not appear to be seeking to progress the examination proceedings with an alacrity that befits the fact that there are still $5.2 million of trucks at large. That caused me some concern. If my impression in this respect is correct, that has the potential, amongst other things, to unnecessarily extend the period during which the freezing orders continue in place. However, I am satisfied that the appropriate way to address this concern at this stage is to require the Liquidators to provide to the Court an affidavit addressing the status of the examination proceedings and the Liquidators’ belief as to the likely timing of the examinations being conducted. I will make an order to that effect at the time of publishing these reasons.

174    In making this order, I do not limit the ability of Mr Ferrazzano and or Mr Abbas to seek to discharge the freezing orders if they are so advised and if any such application is appropriately supported by evidence of a relevant change in circumstances.

Relief against the Matar Defendants

Issue 6: Freezing orders against Mr and Mrs Matar

175    The sixth issue is whether the freezing orders should be extended against Mr and Mrs Matar. The critical issue in relation to the Matar Defendants is whether the balance of convenience favoured making a further freezing order which would take effect until further order.

176    Notwithstanding that the Matar Defendants contested the issue of a good arguable case against them, I was satisfied that in relation to the Returned Trucks, there persists a good arguable case in relation to s 37A of the Conveyancing Act and in conversion and detinue. However, the Plaintiffs’ contention to the effect that one cannot exclude that the Matar Defendants have possession of trucks, additional to the Returned Trucks, is highly speculative. That is so even though the Plaintiffs obtained and executed a search warrant against the Matar Defendants and have the benefit of affidavits by which Mr and Mrs Matar were required to disclose their assets and relevant information in relation to the Stolen Trucks. In his evidence, Mr Matar states that he has not replied to allegations as to things he is alleged to have said and done during the execution of the search warrant on 21 May 2025 because of the ongoing criminal investigation that the Plaintiffs have initiated. Mr Matar points to the fact that he has caused the return of the Returned Trucks, that Hajar Tippers continues to be owed significant sums, and that in this civil proceeding, he is concerned to preserve his privilege against self-incrimination. For this reason, he has not sought for the purpose of this application to fully explain what he maintains were his honest and reasonable actions in relation to the Stolen Trucks. To the extent that the Plaintiffs have recovered additional trucks to the Returned Trucks, the Plaintiffs have not connected the Matar Defendants with those vehicles. In these circumstances, I am not satisfied that the Plaintiffs have established a good arguable case against the Matar Defendants in relation to the Stolen Trucks, other than the Returned Trucks.

177    The Plaintiffs correctly acknowledge that apart from the conduct involving the Returned Trucks, they do not have any evidence to support a contention that the Matar Defendants (or any of them) will dissipate their own property so as to frustrate any judgment that may be obtained against them in relation to their conduct in taking and keeping for a limited period of time the Returned Trucks. The height of the Plaintiffs’ argument on this aspect is that because of the nature of their conduct in relation to the Returned Trucks, I should infer that a risk that they will dissipate their own assets persists into the future.

178    The Matar Defendants contest the issue of the risk of the Court’s processes being frustrated by them dissipating their assets. I accept that at the ex parte application, that issue was made out by their conduct in relation to the Returned Trucks on the then state of the evidence. The Matar Defendants have explained that they believed that they were entitled to the Returned Trucks because of the large debt owing to them by the Corporate Plaintiffs. Mr Matar continues to believe that Hajar Tippers has a legal right in this respect. During the execution of the search warrant, Mr Matar revealed that he still had four trucks in his possession and indicated that he would not return the four trucks or disclose their whereabouts until the debt owed to Hajar Tippers had been paid. Mr Matar did not conceal that the trucks were in his possession and indeed offered up that information. Upon obtaining lawyers to represent them in this proceeding, the Matar Defendants obtained and accepted advice to return the remaining four trucks in their possession. The Matar Defendants have also explained their distrust of the Liquidators based on the non-payment of Hajar Tippers’ invoices relating to work done at the Liquidators’ (then administrators) request post-administration. That is not to excuse their conduct in effectively engaging in a species of self-help, but it does provide some context and suggests that they would not engage in such conduct again. Taking all of this into account, I accept that the risk of dissipation was established in that earlier period, but I was not satisfied that that risk persisted on the basis of the evidence led at the hearing.

179    I was satisfied that it is not appropriate to continue the existing freezing order against Mr and Mrs Matar. Even if I was satisfied that the Plaintiffs had established the risk of dissipation persisting into the future, I would not exercise the discretion to continue the freezing order against the Matar Defendants. My reasons are as follows.

180    The grant of a freezing order is an extraordinary remedy which is to be approached cautiously. In the present circumstances, to continue the existing freezing order against Mr and Mrs Matar (and indirectly against Hajar Tippers) would be disproportionate and would not be an appropriate exercise of the Court’s discretion. To the extent that there is a good arguable case, it is in relation to Returned Trucks for a limited period of time during which the relevant companies were under external administration and not operating. The damages awarded on any prospective judgment will likely be limited, even if one takes into account a claim based on a potential arrangement for the sale of those trucks being delayed, or at worst, thwarted. There is no evidence that the Matar Defendants have dissipated their own property in a way that would frustrate any prospective judgment that the Plaintiffs may obtain against them.

181    Weighing heavily against the continuation of the freezing order is the evidence led by the Matar Defendants which demonstrated the prejudice occasioned to the Matar Defendants during the currency of the ex parte freezing order and that the Matar Defendants appear to have complied with the ancillary and related orders made against them to date. The Matar Defendants have not had access to their bank accounts or credit cards and have relied on loans from friends and family. Mrs Matar deposed that Mr and Mrs Matar have faced difficulties servicing the mortgage on their family home and have been unable to pay their children’s school fees, their family health fund dues (including those of their elderly parents) and ordinary living expenses including household bills and groceries. Mrs Matar also deposed that they have been unable to pay for the registration of Mr Matar’s vehicle which he requires to perform his work and that they are behind with the repayments on Mrs Matar’s vehicle which is subject to finance with Toyota Finance (noting that Mrs Matar has been provided a grace period until 30 June 2025). Hajar Tippers has not had access to its bank accounts and has been unable to pay its two employees their entitlements, meet its instalment payments for a debt owed to the ATO and pay for fuel, registration and insurance for their vehicles which will effectively bring their business to a halt. The freezing order made against them has also frozen the bank account of Mr and Mrs Matar’s related family business, Hajar Haulage Pty Ltd.

182    Weighing these considerations in assessing the balance of convenience, I was satisfied that the freezing orders should be discharged.

Issues 7, 8 and 9: Modification of the freezing orders against Mr and Mrs Matar and if so, whether conditions should apply

183    The seventh and eighth issues do not arise given the conclusion I have reached that the balance of convenience does not favour the extension of the freezing orders against Mr and Mrs Matar.

184    For completeness, I note that towards the end of the hearing, the Plaintiffs raised the issue which I have referred to as Issue 9 above. The Plaintiffs sought orders that would have the effect of making the discharge of the freezing orders conditional on Hajar Tippers first taking steps to reasonably assist the Liquidators, and their valuer, Lloyds, in conducting an inspection and stocktake of all assets operated by Hajar Tippers, including at any third party sites, to confirm whether any of the VINs of those assets corresponded to those of the Stolen Trucks that have not been seized by or returned to the Liquidators. The Matar Defendants opposed the making of this order, but if such an order was made, they proposed an alternative form of order.

185    I was not satisfied that the Plaintiffs have established that such an order should be made in the present circumstances. Accordingly, I made orders discharging the ex parte freezing order against Mr and Mrs Matar. I did not make that order conditional on the Matar Defendants permitting the Liquidators to undertake in effect a stocktake of all of Hajar Tippers assets to search for the Stolen Trucks. If an application is to be made for an intrusive order of that nature, it should be made on notice, supported by cogent evidence and clearly identifying the source of the Court’s power to grant the relief.

186    As the Matar Defendants were in substance successful on the present application, I ordered that Plaintiffs pay the costs of the Matar Defendants. Again, I made allowance for an application for an alternative costs order to be made.

CONCLUSION

187    For these reasons, I was satisfied that the balance of convenience favoured making the orders in the form in which I did on 30 June 2025.

Associate:

Dated:    3 July 2025

SCHEDULE OF PARTIES