Federal Court of Australia

Waterproofing Technologies Pty Limited v Perri (No 3) [2025] FCA 934

ORDERS

THE COURT ORDERS THAT:

1.    Each order 9(b) of the Freezing Orders dated 21 July 2021, directed at each of the first respondent, second respondent, third respondent and sixth respondent (the Freezing Order Respondents), be amended to provide as follows:

9(b) paying up to a total of $824,000 (combined) on reasonable legal expenses for the first respondent, second respondent, third respondent and sixth respondent.

2.    If the Freezing Order Respondents seek a higher limit for reasonable legal fees, they are to file and serve further evidence demonstrating the assets and liabilities of each of the Freezing Order Respondents and the net value of the assets that are frozen.

3.    The first, second, third, sixth, eighth and eleventh respondents have leave to file and serve the proposed Further Amended Defence in the form exhibited to the affidavit of Mr Paul Mitchell sworn on 26 March 2025.

4.    The first, second, third, sixth, eighth and eleventh respondents pay the costs thrown away by the amendment referred to in order 3.

5.    The applicants have leave to file and serve a reply to the Further Amended Defence within 21 days of the date of these orders.

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

REASONS FOR JUDGMENT

MOORE J:

Introduction

1    This is yet another set of interlocutory applications in these proceedings. The applications were heard in an omnibus hearing. I will deal with the issues considered in that hearing in separate judgments. These reasons deal with an application to discharge or vary certain restraining orders and freezing orders, and an application to file an amended defence.

2    The relevant interlocutory application (first interlocutory application) was filed on 26 March 2025 by the first (Mr Perri), second (Millenium Homes), third (CCBM Bare), sixth (Mr Di Berardino), eighth (Ms Perri) and eleventh (CCBM Super) respondents. For convenience, I will refer to these respondents as the Perri Parties, without suggesting any particular association between them by the use of that term (other than their common legal representation). The first interlocutory application seeks:

(a)    to discharge or vary certain freezing orders (the Freezing Orders) against Mr Perri, Millenium Homes, CCBM Bare and Mr Di Berardino (the Freezing Order Respondents);

(b)    to discharge restraining orders (the Restraining Orders) against the Freezing Order Respondents, being orders that restrain certain employment and restrain the disclosure of confidential information of the applicants;

(c)    that the applicants to the proceedings, being Waterproofing Technologies Pty Limited and Polyseal Waterproofing Victoria Pty Limited (the Waterproofing Entities), provide security in the amount of $912,680 for the Perri Parties’ costs; and

(d)    that the Perri Parties have leave to file an amended defence.

These reasons deal with issues (a), (b) and (d). I will deal with issue (c) in a separate judgment.

3    A second interlocutory application (second interlocutory application) was filed on 28 March 2025 by the ninth respondent (Mr Ilic), and seeks:

(a)    orders joining the following three cross-respondents to the cross-claim:

(i)    Ms Betty Augerinos as the tenth cross-respondent;

(ii)    Mr Graham Athanaseris as the eleventh cross-respondent; and

(iii)    Mr Arthur Balayannis as the twelfth cross-respondent; and

(b)    leave to file an amended notice of cross-claim and amended statement of cross-claim with amendments relating to the joinder.

I will deal with the second interlocutory application in a separate judgment. Mr Ilic also advances further interlocutory applications. They are not the subject of these reasons.

4    These proceedings are listed for a final hearing before me commencing on 13 October 2025. They have had a long and complicated procedural history. Some of that complexity can be gleaned from the fact that 217 different documents have been filed in the proceedings. The proceedings were commenced on 7 July 2021. On that day, an ex parte interlocutory application came before Bromwich J and his Honour ordered several injunctions and search orders against various respondents. On 21 July 2021, Thawley J made orders including the Freezing Orders and the Restraining Orders against various respondents, including the Freezing Order Respondents. The Freezing Orders were later amended by Anderson J on 21 September 2021, and my reference to the Freezing Orders includes those orders as amended by Anderson J on 21 September 2021.

5    It is relevant to note that Thawley J made the Freezing Orders and the Restraining Orders by consent. It also appears from the transcript of the hearing before Thawley J that at that stage it was contemplated that the proceedings would proceed to a relatively expedited hearing. It certainly was not contemplated that the Freezing Orders and the Restraining Orders would remain in place some four years later, with the proceedings yet to be heard.

6    In respect of the Freezing Order Respondents, the Freezing Orders as made by Thawley J on 21 July 2021 permitted:

(a)    Mr Perri to pay up to $150,000 for his reasonable legal expenses;

(b)    Millenium Homes to pay up to $50,000 for its reasonable legal expenses;

(c)    CCBM Bare to pay up to $50,000 for its reasonable legal expenses; and

(d)    Mr Di Berardino to pay up to $50,000 for his reasonable legal expenses.

7    The amendment to the Freezing Orders made by Anderson J on 21 September 2021 was also made by consent, and the circumstances that led to the amendment are discussed in a little more detail later in these reasons. There was no substantive discussion about this order at the hearing before Anderson J on that day. That amendment was as follows:

Each order 9(b) of the Freezing Order dated 21 July 2021 directed at each of the First Respondent, Luigi Perri (Louie), Second Respondent, Millenium Homes Pty Ltd (Millenium Homes) and Third Respondent, CCBM Bare Pty Ltd (CCBM Bare) is amended to provide as follows:

“9(b) paying up to a total of $250,000 on reasonable legal expenses for Louie, Millenium Homes and CCBM Bare or any of them and paying the same into the law practice trust account of PCL Layers as security for reasonable legal expenses provided that the trust funds are used for no other purpose but paying reasonable legal expenses.”

8    The effect of this amendment was that, while the total amount of permissible legal expenses for the first to third respondents combined remained unchanged at $250,000, the order gave greater flexibility as to how that could be divided. For example, Mr Perri could incur $250,000 for his own expenses, rather than the $150,000 limit in place previously, if no expenses were incurred by the other two respondents.

9    Numerous interlocutory applications have been brought in the proceedings. That has caused the proceedings to be prolonged, and very considerable legal costs to be incurred. It is not practicable on an interlocutory application of this type to undertake some form of historical analysis of the merits of the various interlocutory applications and seek to identify whether one side could be said to be more responsible than the other for delays and costs. All that can sensibly be said is that significant legal costs have been incurred that were not contemplated at the time of the making of the Freezing Orders.

10    Notwithstanding that the Freezing Orders were initially made by consent, there were two applications before Anderson J by the first to third respondents to discharge or vary the Freezing Orders. They are the subject of previous judgments of Anderson J, being Waterproofing Technologies Pty Ltd v Perri [2022] FCA 714 (the First Judgment) and Waterproofing Technologies Pty Ltd v Perri (No 2) [2022] FCA 1293 (the Second Judgment). In both instances, his Honour declined to vary the Freezing Orders (and declined to discharge the Freezing Orders in the case of the First Judgment) and dismissed the applications with costs.

11    In the First Judgment, his Honour concluded (at [62]) that there was a good arguable case against each of the relevant respondents, and that no circumstances had been demonstrated which would warrant the exercise of his discretion to discharge or vary the Freezing Orders.

12    In the Second Judgment, his Honour was dealing with an application by the first to third respondents to vary the Freezing Orders against those respondents so as to increase the amount available for legal costs. Orders were sought in the alternative for (a) an unlimited exception for costs that are reasonably incurred in the proceedings, and (b) a combined limit of $505,000 for costs reasonably incurred in the proceedings (i.e. slightly more than doubling the limit).

13    The evidence on this second application for a variation revealed that there had previously been a breach by the first to third respondents of the limit of $250,000 for costs, and that this breach had occurred prior to the hearing that gave rise to the First Judgment, but had not been disclosed to the Court at that time. There was no evidence to explain why this had not been disclosed. Legal expenses continued to be paid in excess of the $250,000 limit, and by 13 October 2022 the total paid was $374,736.52. In the Second Judgment, Anderson J concluded (at [22]) that the explanation put forward to explain the breach of the Freezing Orders was inadequate, as was the explanation of why the breach of the orders was not brought to the attention of the applicants or the Court until 13 October 2022.

14    His Honour rejected the application to vary the Freezing Orders on a number of grounds. First, his Honour held that there was no sufficient evidence to support either of the alternative orders amending the amount available for legal costs. Secondly, his Honour held that there was no satisfactory evidence, from either Mr Perri or his lawyers, to explain the prior breach of the Freezing Orders. Thirdly, his Honour held that the first to third respondents had not led any probative evidence to show that they did not have other assets beyond the assets covered by the Freezing Orders. Fourthly, his Honour was not satisfied that if he refused to vary the orders, the first to third respondents would not have funds to meet relevant legal costs, particularly having regard to assets owned by Ms Perri. Fifthly, his Honour was not satisfied there had been any relevant material change of circumstances since the previous application for variation. His Honour dismissed the application with costs.

15    The present application is therefore the third interlocutory application brought by the first to third respondents to vary the Freezing Orders. It is the first such application brought by Mr Di Berardino. He was, however, a party to the proceedings at the time that the earlier applications were brought. On the present application, he was not the subject of any separate submission, and it was not suggested that he should be the subject of any different considerations.

16    This is the first interlocutory application brought by any person to discharge the Restraining Orders.

17    Given the multiplicity of applications, and in circumstances where the Court has previously declined to vary or discharge the Freezing Orders, the Perri Parties have to demonstrate why the Court should grant relief of a type previously declined. Likewise, in the case of the Restraining Orders, the relevant orders were put in place by consent on the basis that they were to operate to the final hearing. Some basis will need to be demonstrated to depart from the previous position.

18    There is an obvious undesirability in facilitating successive interlocutory applications for the same relief. There is a policy in favour of the finality of litigation, which may bear upon the variation or discharge of certain types of interlocutory orders: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (Brimaud) at 46 per McLelland J; Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 (Pivotel Satellite) at [26] per Jagot J.

19    Rule 39.05(c) of the Federal Court Rules 2011 (Cth) provides that the Court may vary or set aside an interlocutory order. The variety of circumstances in which such an application may be brought, and the variety of interlocutory orders, is necessarily wide.

20    Nevertheless, in the case of an interlocutory order made after a contested hearing and intended to apply until final hearing (or a consent order to the same effect which is subsequently contested, but with the challenge rejected), or a consent order fixing the substantive position of the parties until trial, it is ordinarily necessary to demonstrate:

(a)    some change in circumstances;

(b)    new evidence that was not able to be given previously; or

(c)    other circumstances that are exceptional or otherwise of such a nature that justice requires that the interlocutory relief be revisited:

Pivotel Satellite at [26] per Jagot J; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177-178; Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894 at [30] per Yates J; P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49] per Goldberg J; Greenbot Pty ltd v Clean Energy Regulator [2025] FCA 369 at [60] per Horan J.

21    Further, it would generally be inimical to the interests of justice to permit an applicant to re-litigate a matter to repair a deficiency in the evidence before the Court on a previous occasion that was the result of forensic choices: Liu v The Age Company Limited (2016) 92 NSWLR 679; [2016] NSWCA 115 at [14] per Beazley P; Tucker v McKee [2024] FCA 199 at [55]-[57] per Wheelahan J.

22    As was observed by McLelland J in Brimaud at 46, it would be conducive of great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.

23    This is not, however, to fetter in some rigid way the ability of a Court to vary or discharge an interlocutory order. The overriding principle is that the court should do whatever the interests of justice require in the particular circumstances of the case: Brimaud at 46. What, however, is unlikely to be sufficient is merely that a different order might result if the matter was considered afresh on the basis of evidence that could have been (but was not) before the Court previously, or on the basis of submissions that could have been (but were not) made previously, or by a different judge.

24    The present application by the Perri Parties to discharge or vary the Restraining Orders and the Freezing Orders is put on very wide-ranging grounds, including grounds that purport to address the respective merits of the substantive positions of the parties in the proceedings, and which involve substantially contested factual issues. A vast amount of material was put before the Court. This approach is somewhat impractical for an interlocutory application of this type. The orders sought to be varied or discharged have been on foot for four years, but the hearing of these proceedings is now proximate. The hearing has been set down for three weeks. That hearing time is a reflection of the factual complexity of the allegations and counter-allegations in the proceedings. It is not practicable to seek to rehearse the merits of the substantive claims of proceedings in an interlocutory dispute in the period leading up to a three week hearing.

25    The approach adopted by the Perri Parties of raising a plethora of grounds has also had the practical effect of slowing down the delivery of this judgment and thus the making of the orders in their favour which follow from this judgment.

26    I have reached the conclusion that there should be a variation to the Freezing Orders to permit the Perri Parties to fund their reasonable defence costs, but subject to a revised cap in the first instance, and that the application to vary or discharge the Restraining Orders and the Freezing Orders should otherwise be rejected.

Grounds for varying or discharging the Freezing Orders

Alleged weakness of the applicants’ case

27    The first ground relied upon by the Perri Parties is a contention that the applicants’ claim is weak. This is put primarily on the basis that the businesses conducted by the Perri Parties were not in competition with the business conducted by the applicants.

28    Nothing in this proposition involves evidence not available previously or any change of circumstances. The argument was available to be made at the commencement of the proceedings, and at the time that Anderson J was considering the previous applications by the first to third respondents.

29    In the First Decision determining, inter alia, the application by the first to third respondents to set aside the Freezing Orders, Anderson J concluded (at [14], [18], [42], [43], [45]) that there was a reasonable basis to infer that the relevant respondents had engaged in wrongdoing of the sort alleged by the applicants, and specifically in considering the Freezing Orders, concluded (at [62]) that there was a “good arguable case” against each of the respondents that would support the maintaining of the Freezing Orders. There was no appeal (or application for leave to appeal) by any party to this decision. It is not appropriate for parties to a proceeding to simply re-litigate matters already determined on an interlocutory basis.

30    Although Mr Di Berardino was not an applicant on the previous applications to discharge or vary the Freezing Orders, he was a party to the proceedings. It is contrary to the principles that support the finality of litigation for a court to entertain successive repetitive applications by different respondents in the same interest on the same issue.

31    I would therefore not vary or discharge the orders on this basis.

32    In any event, even if the application to revisit a matter already determined by another judge of this Court had been entertained by me, I would not have acceded to this aspect of the Perri Parties’ application. This is for two reasons.

33    First, the scope of the respondents’ fiduciary duties, and their liability to account for profits, is not necessarily limited to those commercial opportunities which the applicants themselves could or would have pursued: e.g. Regal (Hastings) Ltd v Gulliver [1942] 1 All ER 378; [1967] 2 AC 134; Chan v Zacharia (1984) 154 CLR 178 at 198-199. The question of whether the respondents were in competition with the applicants is thus not determinative. Rather, the inquiry is a broader one, which will require consideration of the scope of the respondents’ duty and whether they have profited from the use of any information or opportunity available to them in their roles for the applicants. That in turn will require consideration of the scope of agreements alleged by the respondents to permit them to engage in certain types of work, or possibly whether there is some type of informed consent. None of these matters can be determined by me, even at a provisional level, on this application.

34    Secondly, it is not the case that the Perri Parties have adduced some form of crisp, indisputable evidence that there is no competition between the applicants’ projects and those projects undertaken by the respondents. The issue is contested, and is a matter that will require some process of informed characterisation. Even the Perri Parties’ own written submissions highlight the complexities. For example, the submissions accept that the Bendigo Hospital project is a commercial rather than residential project, but then say that the applicants are “unlikely to have undertaken [the project] given its low value and location”. I cannot possibly determine on an application of this type whether that is so, and on any view it is likely to be a contestable proposition.

35    In light of this, there is no occasion for me to consider the detailed submissions that were advanced by the Perri Parties as to why the alternative claims advanced by the applicants are of limited prospects, including an alleged agreement between certain of the respondents, an alleged conspiracy, an alleged theft of stock, alleged fraudulent invoices, and an alleged misuse of confidential information. Even if all these alternative claims were of limited prospects, the Court would need to deal with the central allegation of the respondents’ diversion of business and opportunities.

36    I would not set aside the previous orders on the grounds that the applicants’ case prospects are inadequate to support the relief previously granted.

37    For completeness, I note that the Perri Respondents were highly critical of a late affidavit of Mr Athanaseris, the Group Managing Director of the applicants, dated 28 April 2025 which purported to provide details of projects conducted by the applicants which were small in nature, to counter the contention of the Perri Parties that the respondents did not compete with the business of large commercial projects undertaken by the applicants. The Perri Parties contended, in effect, that this affidavit was constructed so as to present a false picture, by presenting as separate projects work that was merely part of some larger project. For the reasons set out above, it is unnecessary for me to determine that issue, and I decline to do so in circumstances where the credit of Mr Athanaseris may be centrally at issue in the forthcoming trial. It is sufficient to note that the Perri Parties’ criticism of the affidavit may well loom large in the forthcoming trial, on the question of credit.

Compiling disruption of the freezing orders

38    The Perri Parties rely upon what they describe as the “compiling disruption” of the Freezing Orders as a basis for discharging them.

39    There was some evidence before me of some of the difficulties that the Freezing Orders were creating on a day-to-day basis.

40    I accept that the Freezing Orders create disruption and considerable inconvenience. However, it is of the nature of freezing orders that they prevent access to the frozen funds and that this causes inconvenience and disruption. I do not consider this to be a relevant change of circumstances. Further, evidence of disruption and inconvenience could have been adduced at an earlier stage. Properly understood, this aspect of the application is an attempt to reagitate the justification for the Freeing Orders on a more comprehensive basis than has occurred previously. For the reasons set out earlier, I would not permit a mere re-litigation of an issue already determined, and I would not discharge the Freezing Orders on that basis.

41    Further, to discharge the Freezing Orders on the grounds that they were creating disruption would be unfair to the applicants, who would be stripped of that form of protection of assets to satisfy the claim.

Failure to act expeditiously

42    The Perri Parties assert that the applicants have failed to act expeditiously. As discussed earlier, it is impossible to undertake any assessment of this assertion. Further, any such assessment is unlikely to produce any clear picture in any event, given that the respondents collectively have filed ten interlocutory applications. I would not discharge the Freezing Orders (or the Restraining Orders) on this ground.

Freezing Orders the product of a mistake

43    Although this was not put as a free-standing ground, the Perri Parties contended that the revision to the Freezing Order in September 2021 was in part the product of an error, in that the cap of $250,000 was intended to be a cap of $350,000, and this meant that some of the forensic context for the Second Judgment was misconceived by Anderson J. It was said that the error in part explained the breach of the order, although it should be noted that the expenditure on costs of over $374,000 would have been a breach even if the cap was $350,000 rather than $250,000. A somewhat strident submission was made by the Perri Parties that McCabes, the solicitors for the applicants, must have known that the solicitors for the Perri Parties had made an error in translating their intention into the order that was made.

44    I do not accept this submission. A proper consideration of the contemporaneous correspondence reveals that there was no error, and certainly no reason for the applicants or their solicitors to think that the Perri Parties were labouring under some misapprehension.

45    The relevant chronology is as follows:

(a)    On 27 August 2021, PCL Lawyers (acting at that time as the solicitor for the first to third respondents) sent a letter to McCabes (the solicitor for the Waterproofing Entities) proposing some amendments to the Freezing Orders against the first to third respondents. The proposed amendment was as follows:

Each Order 9(b) of the Penal Notices dated 21 July 2021 directed at each of the First Respondent, Luigi Perri (Louie), Second Respondent Millenium Homes Pty Ltd (Millenium Homes) and Third Respondent, CCBM Bare Pty Ltd (CCBM Bare) are amended to provide as follows:

“9(b) paying up to a total of $250,000 on reasonable legal expenses for Louie, Millenium Homes and CCBM Bare or any of them and paying the same into a solicitor’s trust account as security for reasonable legal expenses provided that the funds the trust funds are used for no other purpose but paying reasonable legal expenses.

In other words, what was proposed was the order that was actually made by Anderson J.

(b)    In proposing that amendment, the letter said:

That variation proposed is relatively minor and does not alter the practical intent or effect of the Orders. We therefore trust that the amendments are satisfactory and acceptable to your clients, without the need to seek further directions from the Court.

That statement would be unlikely to have been made if PCL Lawyers had in fact intended to increase the total amount from $250,000 to $350,000

(c)    On 31 August 2021, McCabes sent a letter to PCL Lawyers indicating, inter alia, that it required the respondents’ defence and information about the costs incurred to date to be able to understand the position and respond to the request to vary the order in the manner proposed.

(d)    On 6 September 2021, PCL Lawyers sent an email to McCabes. That email identified that the existing order divided the amount of allowable costs into three separate limits, rather than one global limit. It then included, inter alia, the following statements:

As you are aware, our clients have a number of accounts held by NAB. They have had significant difficulty obtaining payments from NAB for various items, including legal expenses. This has significantly hampered their ability to prepare a defence and deal with this proceeding.

By way of example, NAB will only pay invoices from an account where the holder of that account corresponds to the issued invoice. Our office cannot apportion the invoiced sums between our three clients, that is a matter for taxation.

In the circumstances, the request to amend the penal notices to allow for a total of $250,000 to be paid into trust or for legal expenses on a joint and several basis as set out in our letter of 27 August 2021 is reasonable and should be uncontroversial.

Further, in our view, the total sum of $250,000 is not sufficient to allow our clients to defend and prosecute all claims against the applicants. Our clients intend to seek that the total sum allowed for legal costs be increased to $350,000.

It is clear from this email that there was a logical basis for requesting a global figure of $250,000, rather than individual amounts that summed to $250,000. The applicants were requested to consent to a variation in those terms. The email went on to deal with a separate topic, being a proposed increased of the amount to $350,000. However, the applicants were not asked to consent to that variation. Rather, it was stated that “we intend to seek” that change: i.e. presumably, intend to seek that change from the Court.

(e)    On 20 September 2021, McCabes responded to PCL Lawyers confirming that, as had been requested, the applicants did not object to a variation of the freezing orders in the terms set out in the letter of 27 August 2021 (i.e. with the order with a total of $250,000, in the form proposed). McCabes attached a form of order with that change. On the same day, PCL Lawyers confirmed their clients’ agreement to that form of orders.

46    It is apparent that the change that was in fact proposed and agreed to was to change the cap to a global total of $250,000. There was no mistake. There was no misunderstanding. There was certainly no taking advantage of a mistake.

That the proceedings have been brought and maintained for an improper purpose

47    The Perri Parties rely on certain evidence of the ninth respondent, Mr Ilic. It is alleged that Mr Balayannis, the General Manager of the applicants, said to Mr Ilic, prior to the applicants commencing proceedings against him, that he would make Mr Perri, Mr Berardino and Mr Bruzzese “suffer”, and would “delay the court proceeding and just continue to go after them until they have no money left and their families are destroyed because it amuses me”, and that he would add Mr Ilic to the proceedings, which would cost him a lot of money and cause his wife to divorce him and his father-in-law to be disappointed with him. This is said to indicate that the proceedings have been brought and maintained for an improper purpose.

48    I do not propose, on the basis of untested hearsay evidence of this type, to make a determination that the proceedings are brought for an improper purpose and use that determination as a basis to set aside a detailed regime put in place by consent to preserve the position pending the trial.

49    No application has been brought seeking an order that the proceedings be dismissed as an abuse of process, or any other relevant relief. If such an application were brought, no doubt the applicants would have to give consideration as to whether to answer Mr Ilic’s evidence, or to otherwise test that evidence. I will not otherwise deal with allegations of abuse of process on the run and in an unrelated context.

Change of circumstances resulting from the incurring of legal costs

50    As set out earlier, the original freezing order made by consent in July 2021 contained an exception for reasonable costs up to a cap, which was varied slightly in September 2021. At the time the cap was set, it was contemplated that the proceedings would be expedited and would be heard reasonably promptly. That no doubt influenced the level of the agreed cap.

51    However, the proceedings have instead been mired in a series of interlocutory skirmishes that have delayed the final hearing for a number of years. The costs incurred have exceeded the cap, and it is common grounds that the Perri Parties’ costs of the proceedings will be well in excess of the agreed cap.

52    The Perri Parties assert that the applicants have failed to act expeditiously. As discussed earlier, it is impossible to undertake any assessment of this assertion. But regardless of whether the applicants have acted expeditiously or not, the respondents’ costs far exceed the amount contemplated at the time that the consent orders were made.

53    The practical effect of a cap on defence costs which has already been exceeded is to prevent the relevant respondents from accessing their funds for the defence of the proceedings going forward, and thus potentially impeding their ability to conduct a proper defence of the claim, including by securing proper legal representation. That has the real risk of rendering the applicants’ claim a fait accompli. That factor has to be balanced against the competing consideration that allowing a respondent to spend the frozen funds on defence costs has the potential to deprive the applicant of property to which it is entitled, and which was frozen for the purpose, inter alia, of preservation. There are different considerations depending on whether the claim is a claim for damages or a proprietary claim: National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 at [111] per Henry J; Westpac Banking Corporation v Forum Finance Pty Ltd (Freezing Order variation No 2) [2022] FCA 1206 per Thawley J; CIP Group Pty Ltd v So (No 5) [2024] FCA 1373 at [24]-[25] per Derrington J. In the case of a claim for damages, a defendant generally has an entitlement to use the assets for legitimate purposes, including the defendant’s reasonable legal expenses. By contrast, in the case of a proprietary claim, the courts will be more protective of the property in question and a “careful and anxious judgment” is required.

54    In the present case, the claim is contractual, equitable, statutory and tortious. Curiously, the applicants do not seek any relief that the respondents hold any funds or other property for the applicants, but appear merely to seek equitable damages. That circumstance means that I will more readily vary the Freezing Orders to permit expenditure on reasonable defence costs.

55    The applicants assert that no variation to the freezing orders should be contemplated because:

(a)    the first to third respondents are in contempt of the existing freezing orders, and have not purged that contempt;

(b)    the Perri Parties have not demonstrated that there is no other source of funds for reasonable defence costs;

(c)    the Perri Parties have not established that their legal expenses are reasonable, or that their estimated future costs are reasonable; and

(d)    the costs of the Perri Parties are likely to be partially duplicated because of the change in legal representation during the course of the proceedings.

56    I consider that there should be a variation to the cap for legal costs in the freezing orders. It was always contemplated that the freezing orders would be subject to an exception for reasonable legal expenses, and the cap was designed to permit a reasonable amount for legal costs. As matters have transpired, the cap is manifestly inadequate for reasonable legal expenses for the defence of this proceeding up until the conclusion of the three week trial. There is a potential for this to cause a real injustice to the Perri Parties. In proceedings of this sort, it is important that the respondents are able to defend themselves with proper legal representation.

57    I also do not consider that the matters raised by the applicant are sufficient to outweigh these considerations. The breach of the freezing orders was a key ground for the Second Judgment. It would remain a relevant consideration against discharging the freezing order. However, Mr Perri, in evidence before me, has taken responsibility and unreservedly apologised to the Court for breaching the Freezing Orders. The first to third respondents cannot undo the breach in a practical sense: they cannot unwind an expenditure that was made. In those circumstances, the breach does not outweigh the considerations in favour of a variation to the Freezing Orders.

58    In relation to evidence as to the unavailability of funds, the position is not entirely satisfactory. There is some evidence as to the financial position of the Perri Parties, but there is no comprehensive evidence of assets and liabilities, or income and expenditure. It is also apparent that there are at least some assets available that are not frozen. Mr Perri has a Lamborghini Huracan, for example. However, none of the evidence before the Court suggests that there are significant liquid assets available outside of the frozen funds to pay for what would be significant legal costs to be incurred. That is somewhat corroborated by the fact that the Perri Parties have been legally unrepresented for periods of time, and the evidence that the representation by counsel and solicitors for this application was made possible by an agreement to defer the payment of fees.

59    As to the applicants’ third point – that the Perri Parties have not established that their legal expenses are reasonable, or that their estimated future costs are reasonable – it is sufficient to deal with this at a high level. The previous identified expenditure of approximately $374,000 is not excessive having regard to the number and extent of the interlocutory applications and other interlocutory steps to date. The estimates in Mr Mitchell’s affidavit of costs of this detailed application and the costs of preparing for and conducting a three week trial, including the costs of senior and junior counsel, are $903,000 - $912,680. That estimate is broken down into the various steps, and the time allowed for those steps, by senior counsel, junior counsel and solicitors. At a high level, the estimates appear to be reasonable. The applicants’ third point is therefore not a reason to refrain from varying the Freezing Orders. In any event, it is common ground that the existing cap is insufficient to cover the reasonable costs of the proceedings.

60    As to the fourth point, there is no apparent duplication in the estimate of costs going forwards.

61    I therefore conclude that I should vary the Freezing Orders to permit the Perri Parties to spend funds that are frozen on reasonable legal expenses in defending the proceedings. However, there is one difficulty that affects the precise order to be made. The Court has not been provided with any evidence as to the value or quantum of any assets or funds that are the subject of the Freezing Orders. I therefore do not know whether the costs estimate that has been provided would consume the entirety of the frozen assets, or would leave something left for the applicants in the event that they were successful in the proceedings. I would need to give further consideration before making an order that, in effect, deprived the applicants of any value from the Freezing Orders, and therefore was equivalent in its practical effect to a discharge of those orders. This concern is aggravated by the somewhat unsatisfactory evidence of the assets of the Perri Parties in general. In these circumstances, I propose to make an order that:

(a)    in the first instance, raises the cap to $824,000 (being the $374,000 spent as identified previously, the existing $50,000 cap for Mr Berardino and $400,000 for additional costs); and

(b)    provides that in the event that the Perri Parties seek a higher limit, they must file and serve further evidence that contains a proper statement of assets and liabilities and otherwise provides clear evidence of the net value of the assets that are frozen.

62    The Perri Parties will readily obtain a higher cap if they can demonstrate that there will be significant additional funds available to the applicants in the event that they are successful in the proceedings. If they cannot, then I would need to give further consideration to the appropriate order in all of the circumstances.

Grounds for discharging the Restraining Orders

63    The application to discharge the Restraining Orders received much less attention at the hearing. There were a series of complaints about the utility of the restraints and their width. For example, complaint was made about the restraint preventing Mr Perri from working for Remedial Waterproofing Victoria Pty Ltd on the grounds that that company was now in liquidation. Complaint was made that the restrictions amounted to a form of restraint of trade which should not be permitted after 4 years. Complaint was made about the restriction on disclosing confidential information of the applicants on the grounds that the confidential information is not defined and the order is meaningless. The last complaint is a striking complaint to make about an order that was made by consent when the respondents were legally represented. Complaint was made about the restriction on Mr Berardino because he is no longer working in the industry and the restraint is therefore “pointless”.

64    None of these complaints focus on any real, practical problem that is causing some difficulty – particularly an unanticipated difficulty – that needs to be remedied by variation. The policy of finality of litigation militates against entertaining generalised complaints about orders that were put in place by consent as part of a substantive regime preserving the position until the hearing.

65    One exception is that the solicitor for the Perri Parties complains in his affidavit that he is concerned that the restriction on respondents being involved with other respondents might inhibit his ability to act for all of the Perri Parties. I cannot identify any submission addressed to this topic. If that was a realistic problem, I would amend the order to deal with it. However, I do not understand the concern because each of the relevant Restraining Orders contains an exception that operates for the purpose of the defence of this proceeding. No issue therefore arises.

66    No proper basis has been identified for a discharge at this stage of the Restraining Orders, and I reject the first interlocutory application insofar as it seeks relief directed to such an end.

Application by the Perri Parties for leave to file and serve a Further Amended Defence

67    The Perri Parties apply for leave to file and serve their proposed Further Amended Defence.

68    That order is not opposed by the applicants, save that they seek payment of the costs thrown away and leave to file and serve a reply within 21 days. I will make orders accordingly.

Other issues

69    I will deal in a separate judgment or judgments with:

(a)    the Perri Parties’ application for security for costs to be provided by the applicants; and

(b)    the second interlocutory application, which seeks the joinder of three cross-respondents and leave to file an amended notice of cross-claim and amended statement of cross-claim with amendments relating to the joinder.

Associate:

Dated:    12 August 2025

SCHEDULE OF PARTIES