FEDERAL COURT OF AUSTRALIA

Amirbeaggi as trustee of the bankrupt estate of Hanna v Hanna (No 6) [2025] FCA 894

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 23 of the Federal Court Act 1976 (Cth) and rr 7.32 and 7.35 of the Federal Court Rules 2011 (Cth), there be asset preservation orders in the form of Annexure A to these orders.

2.    The cross-respondent pay the cross-claimant’s costs of the cross-claimant’s interlocutory application filed on 10 July 2025.

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

ANNEXURE A

No.    NSD1285/2020

Federal Court of Australia                            

District Registry: New South Wales

Division: General

SHABNAM AMIRBEAGGI AS TRUSTEE OF THE BANKRUPT ESTATE OF JOHN

MAMDOUH HANNA

Applicant

ANDREW JOSEPH HANNA and others named in the schedule

Respondent

HEDRA FAYEZ NASHED ABDALLA

Cross-claimant

ANDREW JOSEPH HANNA

Cross-respondent

PENAL NOTICE

TO: Andrew Hanna

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

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

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

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

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

TO:    Andrew Hanna

This is a ‘freezing order’ made against you on 6 August 2025 by Justice Goodman following hearings on 21 and 28 July 2025 and after the Court was given the undertakings set out in Schedule A to this order.

THE COURT ORDERS:

Introduction

(1)     In this order:

(a)    the ‘applicant’ means the cross-claimant, Hedra Fayez Nashed Abdalla;

(b)    ‘third party’ means a person other than you and the applicant;

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

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

(b)    If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

Freezing of assets

(3)     (a)     You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$ 250,000 (‘the Relevant Amount’).

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

(4)     For the purposes of this order,

(a)     your assets include:

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

(ii)    any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and

(b)     the value of your assets is the value of the interest you have individually in your assets.

Provision of information

(5)     Subject to paragraph 6, you must within five (5) working days after being served with this order, swear and serve on the applicant an affidavit setting out all your assets, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets.

(6)     (a)     This paragraph (6) applies if you are not a corporation and you wish to object to complying with paragraph 5 on the grounds that some or all of the information required to be disclosed may tend to prove that you:

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

(ii)     are liable to a civil penalty.

(b)    You must:

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

(ii)    prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and

(iii)    file and serve on each other party a separate affidavit setting out the basis of the objection.

Exceptions to this order

(7)     This order does not prohibit you from:

(a)     paying you ordinary living expenses;

(b)     paying reasonable legal expenses;

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

(d)     in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two (2) working days written notice of the particulars of the obligation.

(8)     You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may order that the exceptions are varied accordingly.

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

(i)     pay the sum of $250,000 into Court; or

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

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

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

(c)     If this order ceases to have effect pursuant to 9(a) above, you must as soon as practicable file with the Court and serve on the applicant notice of that fact.

Persons other than the applicant and respondent

(10)     Set off by banks

This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order.

(11)     Bank withdrawals by the respondent

No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.

SCHEDULE A

Undertakings given to the Court by the applicant

(1)     The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

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

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

(4)     If this order ceases to have effect the applicant will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect.

(5)     The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding.

(6)     The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent’s assets.

REASONS FOR JUDGMENT

GOODMAN J:

1    In Amirbeaggi as trustee of the bankrupt estate of Hanna v Hanna (No 3) [2024] FCA 1171 (Amirbeaggi (No 3)) the first cross-claimant (Mr Abdalla) succeeded in an action that he brought against the first cross-respondent (Mr Hanna) concerning the failure of Mr Hanna to pay the consideration due under a written contract for the sale and purchase of the property identified by folio identifier 22/SP93648 (unit 21). I found that Mr Hanna was liable to pay to Mr Abdalla one half of $299,000, or $149,500.

2    On 25 November 2024, I made orders requiring Mr Hanna to pay Mr Abdalla the sum of $212,638.04 inclusive of interest, together with costs. My reasons for doing so are set out in Amirbeaggi (No 3) and Amirbeaggi as trustee of the bankrupt estate of Hanna v Hanna (No 4) [2024] FCA 1347.

3    Mr Abdalla now seeks an asset preservation, or freezing, order against Mr Hanna, together with ancillary orders. The principles to be considered on an application for the making of a freezing order are well-established and were not in issue on this application.

4    In circumstances, such as the present, where judgment has been given in favour of Mr Abdalla, the Court must consider, relevantly, whether: (1) there is a risk that the judgment will be unsatisfied in whole or part because Mr Hanna’s assets will be disposed of, dealt with or diminished in value (see rr 7.32 and 7.35(4)(b) of the Federal Court Rules 2011 (Cth)); and (2) as a matter of discretion, including consideration of the balance of convenience, a freezing order should be made. I consider these in turn below.

5    Mr Abdalla bears the onus of establishing that unless a freezing order is made, there is a reasonable apprehension that Mr Hanna’s assets will be disposed of, dealt with or diminished in value so as to frustrate the Court’s processes: see Cardile v LED Builders Pty Limited [1999] HCA 18; (1999) 198 CLR 380 at 393 to 394 [26], 399 to 401 ([41] to [42]) (Gaudron, McHugh, Gummow and Callinan JJ). It is not essential for Mr Abdalla to demonstrate a positive intention on the part of Mr Hanna to frustrate the judgment (see National Australia Bank Limited v Bond Brewing Holdings Limited [1990] HCA 10; (1990) 169 CLR 271 at 277 (Mason CJ, Brennan and Deane JJ); Cardile at 394 [26]) or that the risk of dissipation is more probable than not (see Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; (2010) 273 ALR 194 at 196 to 197 ([8] to [10]) (Kenny J); Deputy Commissioner of Taxation v Chemical Trustee Limited (No 4) [2012] FCA 1064; (2012) 90 ATR 711 at 717 [23] (Perram J); Basi v Namitha Nakul Pty Ltd [2019] FCA 743 at [9] (Wigney J); Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad [2021] FCA 1562 at [56] (Cheeseman J). Rather, it is sufficient for Mr Abdalla to establish that, in the absence of a freezing order, there is a danger or real risk that Mr Hanna’s assets will be dealt with in a way which would frustrate the processes of the Court, a freezing order is warranted.

6    That risk of dissipation must, however, be demonstrated by evidence: see e.g., Fine China Capital Investment Limited v Qi (No 2) [2023] FCA 1059 at [22(b)] (Moshinsky J). Direct evidence is not necessary and the risk of dissipation of assets to avoid the consequences of the judgment may be inferred.

7    The evidence adduced on this application comprised affidavits from Mr Abdalla, Mr Hanna and Ms Sherine Metry, the solicitor for Mr Abdalla. Mr Hanna and Ms Metry were cross-examined. That evidence establishes the following facts.

8    On 13 September 2019, Ms Metry, on behalf of Mr Abdalla, lodged a caveat against the title of unit 21 held by Mr Hanna. The caveat included, as the address for service of notices, the following:

Street Address

SKM LAWYERS PTY LTD

SE 63

3 – 7 Fetherstone ST

Bankstown NSW 2200

(as written; emphasis in original)

9    That address, which I will refer to as Suite 63, is located on the first floor of a building to which access may be gained only by using an intercom. Outside that building, on ground level, are letterboxes for each of the occupiers of space in that building, including a letterbox for SKM Lawyers.

10    On 9 March 2023, judgment was reserved in this proceeding.

11    Mr Abdalla took no action to obtain an order extending the operation of the caveat and the caveat lapsed.

12    On 31 August 2023, unit 21 was sold for $815,000. Mr Abdalla was not advised that Mr Hanna intended to sell unit 21 and did not receive any communication from Mr Hanna regarding such a sale. Nor did he receive service of any lapsing notice.

13    A title search for unit 21 undertaken on 9 June 2025 records that Mr Hanna is no longer the registered proprietor of unit 21.

14    In about June 2025, Mr Abdalla became aware of the sale and transfer of unit 21.

15    On 10 July 2025, the present application was filed, supported by an affidavit sworn by Mr Abdalla. I infer that the application was then promptly served, as on 11 July 2025, Mr Wang, the solicitor for Mr Hanna, sent an email to Ms Metry:

Please attached (sic) copy of the lapsing notice that was sent to your office.

Given that your client is deemed to have been aware of the removal of the caveat at all times, your application is entirely without merit and should be withdrawn.

16    The principal matter in contention is whether the above-mentioned sale of unit 21 occurred in circumstances where Mr Hanna failed to serve a lapsing notice with respect to the caveat.

17    Mr Hanna contends that on 20 April 2023 he served a lapsing notice with respect to the caveat, which stated that the caveat would lapse upon the expiration of 21 days after the date of service of that notice, unless an order extending the operation of the caveat were obtained from the Supreme Court of New South Wales and lodged with NSW Land Registry Services within that 21-day period.

18    Mr Hanna’s evidence on the issue of service of the lapsing notice is set out in:

(1)    a statutory declaration that he made on 8 May 2023 and which he says he provided to the Land and Property Registry. That declaration records:

1.    On 20th April 2023 a notice of proposed lapsing of caveat Application AS980177 for Caveat No. AP532719 was served on SKM Lawyers Pty Ltd by envelope left at the address specified in the caveat under s.74F(5)(b) at Suite 63, 3-7 Fetherstone Street, Bankstown NSW 2200

2.    Annexed and enclosed is a copy of Notice to Caveator of Proposed Lapsing of Caveat Application AS980177 ; and

(2)    an affidavit that he made on 24 July 2025 in this proceeding in which he deposes that:

3.    On or around 20 Aprill (sic) 2023, the proposed notice of lapsing of caveat was served by way of leaving the envelope containing the document in the letterbox of the Applicant’s lawyers, SKM Lawyers Pty Ltd. Annexed hereto and marked “A” is a copy of a photograph of the letterbox in question taken 23 July 2025.

4.    After service in paragraph 3 above, I affirmed a statutory declaration to the service in that paragraph. Annexed hereto and marked “B” is a copy of the statutory declaration dated 8 May 2023.

19    Ms Metry’s evidence on the issue of service of the lapsing notice is as follows:

(1)    Suite 63 is located on the first floor of a building into which access is available only via an intercom;

(2)    she is the sole director and principal of SKM Lawyers, retains possession of the sole mailbox key and collects all mail personally from the letterbox save for when (from time to time) she instructs the firm’s receptionist to take the key and check the mail (in which case, the receptionist immediately returns the key with any mail collected);

(3)    she checks the letterbox at the beginning and end of each workday and at lunchtime each workday;

(4)    having reviewed her diary to refresh her memory, she was in the office on 20 April 2023;

(5)    she did not receive the lapsing notice personally, from her receptionist, or by email. Nor was the lapsing notice in the letterbox; and

(6)    had she received the lapsing notice she would have immediately acted upon it and briefed counsel to act upon it.

20    I am satisfied that Mr Hanna did not leave the lapsing notice at SKM Lawyers (whether at Suite 63, or in the letterbox), as:

(1)    I accept the evidence of Ms Metry that the lapsing notice was not received at Suite 63 or in the letterbox. Ms Metry’s evidence was credible, and no suggestion was made that I ought not accept that evidence;

(2)    there was some movement in the description of the manner of service suggested by Mr Hanna. Initially, the statutory declaration suggested that the lapsing notice had been left at Suite 63 ([18(1)] above). Then, Mr Wang’s 11 July 2025 email suggested that the lapsing notice “was sent to [Ms Metry’s] office” ([15] above). Next – and subsequent to the filing of an affidavit by Ms Metry that explained that Suite 63 was accessible only after use of an intercom – Mr Hanna suggested that the lapsing notice had been left in the letterbox ([18(2)] above);

(3)    there were several aspects of Mr Hanna’s evidence that were not credible and in particular:

(a)    his suggestion that he was not surprised that Mr Abdalla’s solicitor did not seek to extend the caveat in April 2023 because (in Mr Hanna’s view) the nature of the interest claimed in the caveat was insufficient to support a caveat; and

(b)    his failure to provide any plausible explanation as to why, having travelled to the building housing Suite 63, he did not attempt to gain entry to Suite 63 to serve the lapsing notice – as is apparent from the following passage of his evidence under cross-examination:

MR ALLEN: Why didn’t you go to suite 63 once you were at the building?---Number of reasons. Number 1, I had no intention of ever meeting your – your solicitor. And number 2, because of the events of the day, all I wanted to do was just serve it at the mailbox and go.

The events of the day? What were the events of the day that precluded you from taking the extra steps to actually go to suite 63?---Again, didn’t want to meet your client.

Did you expect Mr Abdalla to be at suite 63 that day, did you?---Your – your client’s solicitor.

And what makes my solicitor – instructing solicitor so intimidating to you?---Not intimidating. I just don’t like her.

And because you don’t like her, you could not be bothered to go past the letterbox and actually go into suite 63?---No.

21    It follows that the sale of unit 21 occurred without service of the lapsing notice, with the consequence that Mr Abdalla was deprived of the opportunity to seek an order extending the operation of the caveat. I note that it is unnecessary for the purposes of these reasons for judgment to decide whether placement of the lapsing notice into the letterbox, had this occurred, would have constituted valid service of that notice.

22    For the above reasons, I am satisfied that in the absence of a freezing order, there is a danger or real risk that Mr Hanna’s assets will be dealt with in a way which would frustrate the processes of the Court.

23    I turn now to the exercise of the discretion. Neither party addressed this consideration beyond the effect of the answer to the question whether there was the requisite risk of dissipation of Mr Hanna’s assets. The orders sought by Mr Abdalla on this application were provided to the Court and Mr Hanna’s solicitor at the commencement of the hearing on 21 July 2025 and prior to the adjournment I granted on that day at the request of Mr Hanna. At the resumption of the hearing on 28 July 2025, no submission was made on behalf of Mr Hanna concerning the form of the orders sought, or their potential effect upon Mr Hanna.

24    In the circumstances set out above, and in particular my finding that in the absence of a freezing order there is a real risk that Mr Hanna’s assets will be dealt with in a way which would frustrate the processes of the Court, I am satisfied that the orders sought by Mr Abdalla should be made. Costs should follow the event. I will make orders accordingly.

Associate:

Dated:    6 August 2025