Federal Court of Australia

Wealth Trail Pty Ltd (in liq) v Del Vecchio [2025] FCA 982

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to rules 5.22 and 5.23(2) of the Federal Court Rules 2011 (Cth), judgment be entered against the Respondent, being judgment for damages and/or equitable compensation, to be assessed within 12 months of the date of these orders.

2. The Applicants may apply to the Court seeking to extend the time period within which their damages and/or equitable compensation are to be assessed pursuant to paragraph 1 of these orders, with supporting affidavit evidence.

3. The Respondent pay the Applicants’ costs of the proceeding.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1 The Applicants have applied for judgment in default following the failure of the Respondent to file a defence. Other than in one respect, the application is typical of applications of this kind. The one distinguishing feature, however, is that the Applicants seek judgment for damages and/or equitable compensation “to be assessed” at an unspecified future time, departing from the usual course of determining damages once and for all, and at the time the proceeding is determined. This unusual course is pursued as the Applicants, for reasons explained below, do not presently know the extent to which they will suffer loss resulting from the Respondent’s wrongdoing.

The proceeding

2 This proceeding was commenced by originating application on 29 December 2023. The Applicants’ claims are set out in their amended statement of claim dated 4 April 2025. Prior to the commencement of proceedings, ex parte freezing orders were obtained against Anthony Del Vecchio, the Respondent. As Mr Del Vecchio’s parents are also referred to, I will refer to him as Anthony in these reasons.

3 Anthony was initially employed by Freedom Finance Australia Pty Ltd (FFAU), and entered into a written contract of employment dated 15 January 2019 with that company. On 7 May 2021, Anthony’s employment was transferred to Freedom Finance Australia Wealth Pty Ltd (FFAW) on the same terms as his initial contract with FFAU. Anthony was an authorised representative of the First Applicant (Wealth Trail), which held an Australian Financial Services Licence (AFSL).

4 Anthony purported to act for the Applicants, and so used his position to obtain, from third parties, funds on the false premise that those funds would be used to acquire investments. Those third parties are referred to by the Applicants as “Associates”. Anthony used substantial funds obtained in this way to feed his gambling habit. He did this without the knowledge or approval of the Applicants.

5 As noted above, the Applicants commenced this proceeding on 29 December 2023, after Anthony’s misconduct came to light. By that time, a number of the Associates had contacted the Applicants, raising claims arising from Anthony’s misconduct. I refer to their claims, complaints and proceedings further below.

6 The amended statement of claim pleads:

(a) the express and implied terms of Anthony’s employment with FFAU;

(b) the terms on which Anthony’s employment was transferred to FFAW;

(c) the acknowledgements given by Anthony in becoming an “entrusted person” with Wealth Trail;

(d) the fiduciary duties Anthony owed the Applicants;

(e) the events by which the Associates transferred funds to Anthony and Anthony’s conduct in procuring the deposits;

(f) complaints and claims made by the Associates, which include:

(i) claims advised to the Applicants by correspondence;

(ii) complaints made by several Associates to the Australian Financial Complaints Authority (AFCA); and

(iii) a proceeding commenced in the County Court of Victoria by one of the Associates;

(g) that Anthony’s conduct was not authorised by the Applicants;

(h) the ways in which the Applicants say Anthony breached his employment contract and fiduciary duties; and

(i) the loss or damage the Applicants have, or will suffer as a result of Anthony’s breaches of his employment contract and/or his fiduciary duties.

7 The loss or damage is pleaded in the following terms:

By reason of Mr Del Vecchio’s breaches of the Employment Contract, and/or breaches of his fiduciary duties, the Applicants have suffered loss and damage, or will suffer loss and damage, in that:

(a)    The Associates have made claims that may result in the Applicants and/or Freedom Finance Australia incurring liabilities to the Associates, and/or having incurred and continuing to incur legal costs in defending the Associates’ claims. Paragraphs 11 to 50 above are repeated; and

(b)    Other persons may make claims in future relating to Mr Del Vecchio’s misconduct in related to the sale of purported investments that may result in the Applicants and/or Freedom Finance Australia incurring liabilities to those persons, and/or incurring legal costs in defending those persons’ claims.

8 Some time after this proceeding was commenced, Anthony was charged with 24 counts of obtaining a financial advantage by deception, to which he pleaded guilty. On 16 April 2025, Anthony was sentenced to a term of imprisonment of 7 years and 6 months, with a non-parole period.

9 On 30 April 2025, Wealth Trail went into liquidation, and on 2 May 2025, FFAW went into liquidation. Both liquidations were pursuant to resolutions of the companies’ creditors (ie a creditors’ voluntary winding up). Mr Philip Newman of PCI Partners Pty Ltd was appointed liquidator of both companies.

The application for judgment in default

10 On 25 June 2025, the Applicants applied for judgment in default of defence pursuant to rules 5.22 and 5.32(2) of the Federal Court Rules 2011 (Cth) (the Rules).

11 On the affidavit evidence, the liquidator, Mr Newman has “consented” to this proceeding being pursued against Anthony, and to the application for judgment in default being pursued. However, it appears that the proceeding is presently being conducted on instructions given by the Applicants’ insurers.

12 By their interlocutory application, the relief the Applicants seek, by way of judgment in default, is as follows:

1.     Pursuant to rules 5.22 and 5.23(2) of the Federal Court Rules 2011 (Cth), judgment be entered against the Respondent in default of his Defence, being judgment for:

(a)     damages and/or equitable compensation to be assessed with respect to the Applicants’ loss and damage that they have sustained, or will sustain, arising from:

(i)     the Applicants’ liabilities to persons who make claims relating to purported investments arranged by the Respondent during the period of the Respondent’s employment with the Second Applicant, or after the Respondent’s employment was terminated, that resulted in payments transferred to the Respondent’s bank accounts or to bank accounts not held by the Applicants or the Freedom Finance Australia group of companies (Freedom Finance Australia); [and]

(ii)     legal costs incurred in defending or assessing such claims;

(b)     A permanent injunction restraining the Respondent from:

(i)     any dealings or communications with any current or former clients of the Applicants;

(ii)     canvassing, soliciting or enticing former or current clients of the Applicants into transferring any sum of money to him or on his instruction to another person or entity;

(iii)     using any letterhead, templates or sending any communications marked or labelled with the Applicants’ or Freedom Finance Australia’s name, logo or branding;

(iv)     representing to any person that he is authorised by the Applicants or Freedom Finance Australia to provide financial advice or to sell investment products; and

(v)     instructing, counselling, procuring or otherwise assisting any person to do any of the acts referred to in sub-paragraphs 1(b)(i)-(iv) above;

(c)     The Respondent to pay the Applicants’ costs:

(i)     of this application; and

(ii)     of and incidental to this proceeding,

to be taxed in default of agreement.

2.     Pursuant to rule 7.35 of the Federal Court Rules 2011 (Cth), the freezing order pursuant to the Order of Justice Beach dated 22 December 2023, as extended by the Order of Justice Wheelahan dated 23 January 2024, be continued after judgment until the Respondent pays such sums that are due and payable to the Applicants as specified in paragraph 1(a) above.

That relief is within the bounds of the relief sought in the originating application, and set out in the prayer for relief in the amended statement of claim.

13 By way of further submissions, provided to my chambers on the evening of 15 August 2025 (and therefore received on 18 August 2025), the Applicants also seek an order in the following terms:

3.    The Applicants may apply to the Court seeking any assessment of damages and/or equitable compensation as specified in paragraph 1(a) within 12 months of the date of this judgment. The Applicants may apply for leave to extend such time period, with supporting affidavit evidence.

14 Due to Anthony being in jail, he did not receive the Applicants’ amended statement of claim when it was sent to the email address he nominated for service, once he became self-represented. This emerged during a directions hearing on 27 June 2025, at which Anthony appeared from jail by video link. Accordingly, I ordered that Anthony be served with the amended statement of claim via the prison authorities and confirm by 7 July 2025 whether he intends to file a defence.

15 On 3 July 2025, Anthony advised my chambers and the Applicants’ solicitors by email (via the prison authorities) that he does not intend to file a defence.

16 That confirmation followed a failure by Anthony to file a defence in accordance with the Court’s orders.

17 On 6 February 2025, I ordered, by consent, that Anthony file and serve his defence to the statement of claim by 24 March 2025. No defence was filed. Those orders also adjourned the next case management hearing to 4 April 2025.

18 Anthony did not appear at the case management hearing on 4 April 2025. On 4 April 2025, I ordered that Anthony file and serve his defence to the Applicants’ amended statement of claim by 2 May 2025. No defence was filed.

19 Although, by the orders made on 27 June 2025, I allowed Anthony a final opportunity to indicate his intention to file a defence — if he wished to defend the proceeding — it remains the position that Anthony is in default of orders made for the filing of his defence.

20 It follows that Anthony is in default for the purposes of r 5.22 of the Rules, enlivening the Applicants’ capacity to apply for orders of the kind set out in r 5.23(2). As the Applicants’ proceeding is not for a debt or liquidated damages, r 5.23(2)(b) is not applicable. Instead, the proceeding having been commenced by an originating application supported by a statement of claim, the orders that the Applicants can seek under r 5.23(2)(c) and (d) are:

(a) an order giving judgment for the relief claimed in the statement of claim; or

(b) an order giving judgment for damages to be assessed “or any other order”.

21 The relief sought in the statement of claim will only be ordered if the Court is satisfied that the applicant is “entitled” to that relief.

22 According to established principles, as I set out STIHL Pty Ltd v Reggie Bowman Pty Ltd [2023] FCA 1347 at [53]–[58]:

(1) The Court’s power to give judgment in default is discretionary and is to be exercised cautiously: at [55].

(2) Where no defence is filed, the default serves to allow the Court to proceed on the basis that the facts set out in the statement of claim are admitted: at [56].

(3) Consistently with the previous point, evidence is not required before the Court can exercise the power to give judgment in default, but evidence can still be admitted: at [58].

23 As I will come to, this is a case in which evidence is relevant to the exercise of the Court’s discretion.

24 The Applicants relied on three affidavits of their solicitor, Nicole Joy Wearne, sworn on 25 June 2025, 16 July 2025 and 15 August 2025. The first affidavit deposed to Anthony’s default, circumstances concerning the criminal proceedings against Anthony and the voluntary liquidation of the Applicants. Ms Wearne’s second affidavit deposed to matters including Mr Newman’s confirmation that he consented to the Applicants proceeding with the application for judgment in default, and the nature and status of proceedings in the Supreme Court of Victoria involving the Applicants, Anthony’s parents (Mr and Mrs Del Vecchio) and Benjamin Szabo. The Supreme Court of Victoria proceedings are important, but must be understood in the context of the matters alleged in, and application made in, this proceeding.

25 Ms Wearne’s third affidavit detailed the status of the County Court proceeding referred to in the amended statement of claim, the outcome of various complaints made by Associates to AFCA by the issue of determinations by AFCA in favour of the Associates, the resolution of the Supreme Court proceedings just referred to, the emergence of a further claim in respect of which an application for leave to proceed pursuant to s 500 of the Corporations Act 2001 (Cth) (Corporations Act) has been foreshadowed, the existence of other potential claims and the status of the liquidations. Ms Wearne’s information is that the liquidator does not expect any dividend to be payable, but there is no clear timeline for the finalisation of the liquidations.

The proceedings in the Supreme Court of Victoria and the insurance position

26 By writ and statement of claim dated 9 December 2024, Mr and Mrs Del Vecchio commenced proceedings against the Applicants and Mr Szabo. As recounted in the statement of claim, on about 24 November 2023, Mr and Mrs Del Vecchio executed a “Deed of Acknowledgement Indemnity and Guarantee” in favour of Mr Szabo, in relation to the loss he alleged he suffered due to Anthony’s conduct. The pleaded terms of the Deed rendered Mr and Mrs Del Vecchio liable to indemnify Mr Szabo against any failure by Anthony to pay moneys owing to Mr Szabo ($1.095 million and interest), and charged their property to Mr Szabo as security. Mr Szabo lodged a caveat on Mr and Mrs Del Vecchio’s property.

27 By this proceeding, Mr and Mrs Del Vecchio contended, inter alia, that:

(a) the Applicants are the ones who are liable to Mr Szabo;

(b) Mr Szabo was involved in dishonest conduct of the Applicants;

(c) Mr Szabo acted unconscionably in relation to the Deed;

(d) they are entitled to have the Deed set aside, or are entitled to damages against the Applicants and Mr Szabo; and

(e) an order should be made for the removal of Mr Szabo’s caveat on the property.

28 Mr Szabo filed a counterclaim against Mr and Mrs Del Vecchio, the Applicants and also against Anthony. Mr Szabo’s counterclaim sought an order for the judicial sale of the property, damages and interest. He claimed, inter alia, that the Applicants are liable to him in respect of Anthony’s conduct.

29 The Applicants filed a defence to Mr and Mrs Del Vecchio’s claims dated 5 March 2025. Mr and Mrs Del Vecchio filed a defence to Mr Szabo’s counterclaim dated 8 April 2025. The Applicants also filed a defence to Mr Szabo’s counterclaim, on 4 April 2025.

30 Mr and Mrs Del Vecchio amended their statement of claim on 8 April 2025.

31 The Supreme Court of Victoria made orders for a mediation to be completed by 23 May 2025.

32 Once it emerged that the Applicants were in liquidation and also that they held insurance, further orders were made on 2 June 2025 providing a timetable for Mr and Mrs Del Vecchio and/or Mr Szabo to make:

(a) any application for leave to proceed against the Applicants pursuant to s 500(2) of the Corporations Act;

(b) any application to join the insurers; and

(c) any application for judgment in default against Anthony.

The orders provided for any such application to be returnable on the first available date after 1 August 2025.

33 Further orders made on 24 June 2025 pushed this timetable out so that the applications are to be filed by 21 July 2025, and heard on the first available date after 29 August 2025. The date for the mediation was also pushed back to occur by 12 September 2025.

34 Despite acting for the Applicants in the proceeding in this Court, Ms Wearne was not aware of the Supreme Court of Victoria proceeding having been commenced until she was informed of the proceeding by Mr Szabo’s solicitor on 6 May 2025.

35 In her second affidavit, Ms Wearne deposed that, on instructions from the insurer, she had been instructed to engage in without prejudice discussions with Mr Szabo, and an in principle settlement had been reached to resolve the “insured components” of Mr Szabo’s claims against the Applicants. Ms Wearne did not detail what the “insured components” were. Ms Wearne deposed that, as at 16 July 2025, final terms with Mr Szabo were still being negotiated.

36 In her second affidavit, Ms Wearne noted that the Applicants’ professional indemnity policy is subject to an excess of $300,000 per claim so that any individual claims made for less than $300,000 would not be indemnified under the policy.

37 In her third affidavit, Ms Wearne deposed to Mr Szabo’s claim against the Applicants in the Supreme Court of Victoria having been settled.

Consideration

38 I am satisfied that the Court’s power pursuant to r 5.23 of the Rules has been enlivened as a result of Anthony’s default. As noted above, the orders sought by the Applicants are for judgment with damages and/or equitable compensation to be assessed at a later — unspecified — date, permanent injunctions and continuation of the freezing order. On their application for judgment in default, the Applicants do not seek a declaration that Anthony is to indemnify the Applicants against relevant liabilities, which was an element of the relief sought by the prayer for relief in the amended statement of claim.

39 In their submissions, the Applicants summarised the governing principles, which are well established, as follows:

8    The following principles regarding default judgment are well established:

a)    The power to enter a default judgment is enlivened when the Applicant applies to the Court for an order.

b)    The power is discretionary. Just as the discretion must be exercised cautiously where it is the Applicant that is in default, the same caution must be exercised where it is the Applicant who is seeking orders against a defaulting Respondent.

c)    The Applicant is not required to prove by way of evidence the claim sought to be advanced; the requirement is that the Court needs to be satisfied on the face of the Statement of Claim that the Applicant is entitled to the relief claimed. The facts as alleged in the Statement of Claim are deemed to have been admitted by the Respondent.

d)    To be satisfied that the Applicant is entitled to the relief claimed in the Statement of Claim, the Court needs to be satisfied that each element of the relevant civil wrong involved is properly and discretely pleaded in the Statement of Claim.

e)    In addition to the facts alleged in the Statement of Claim, the Court may permit recourse to further evidence (but not evidence that would alter the case as pleaded).

Stihl Pty Ltd v Reggie Bowman Pty Ltd [2023] FCA 1347, [53]-[58] per Button J.

9    It may be appropriate for the Court to permit recourse to further evidence in order to establish why relief should be granted, including the necessity for or utility of the pleaded relief: United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413, [43].

40 As no defence has been filed, the facts pleaded by the Applicants in the amended statement of claim are taken to be admitted and do not need to be proved by evidence. I am satisfied that those facts, as pleaded, entitle the Applicants to damages for breach of contract and/or equitable compensation for breach of fiduciary duty.

Whether judgment should be given on the basis that the assessment of damages and/or equitable compensation occur at a later date

41 Neither the facts pleaded, nor the evidence tendered in support of the application, allow for the sum of damages or equitable compensation to be quantified. As explained above, the Applicants seek orders that would defer the assessment of damages and/or equitable compensation to an unspecified future date. In response to an email from my chambers inviting a submission as to the timeframe within which such assessment ought to be conducted — so that the matter is not left entirely at large — the Applicants suggested a period of 12 months, on the basis that any application to extend the period could then be made on proper material, if necessary.

42 The Applicants’ submissions in support of their application advance the following arguments in support of their contention that the assessment of damages and/or equitable compensation ought to be deferred until after their liability to third parties (the Associates) has been determined:

(1) Where a plaintiff seeks relief in respect of potential liabilities to third parties, the appropriate course will often be to defer dealing with that head of damage until the extent of the plaintiff’s liability to third parties has been established. The Applicants refer to the position established as a matter of English law in Deeny v Gooda Walker Ltd (in liq) [1995] 4 All ER 289 (Deeny) at 297 (Phillips J), confirmed in Molton Street Capital LLP v Shooters Hill Capital Partners LLP [2015] EWHC 3419 (Comm) at [164] (Popplewell J) and its acceptance by Australian courts as an exception to the “once and for all” principle for assessing damages. The Applicants cite Carazi Pty Ltd v Blow Dry Bar Franchising Pty Ltd (in liq) (No 2) [2015] NSWSC 108 (Carazi) at [61]–[67] (White J), Walker v ANZ [2001] NSWSC 765; (2001) 19 ACLC 1584 (Walker v ANZ) at [35]–[36] (Austin J) and Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158 (Bartier Perry) at [147] (Payne JA, White and McCallum JJA agreeing) in support of their proposition as to Australian law.

(2) In the case at hand, it is uncertain what damage the Applicants (and their insurers) will incur as a result of the Associates’ claims as this depends on whether the Associates obtain leave to proceed with their claims, the extent to which they can establish losses arising from Anthony’s misconduct, and the Applicants’ liability for such losses.

(3) The prospect of the Associates obtaining leave to proceed against the Applicants in liquidation (pursuant to s 500(2) of the Corporations Act) is enhanced by their having insurance, citing HFPS Pty Ltd (trustee) v Tamaya Resources Ltd (in liq) (No 1) [2016] FCA 442 at [22], [77]–[78] (Foster J) and Bucovaz v OT Markets Pty Ltd [2021] FCA 351 at [15]–[16] (Kenny J).

43 In Deeny, Phillips J rejected a submission that the court had no jurisdiction to award damages restricted to losses that had already crystallised, while deferring the assessment of damages in relation to the anticipated claims to which the plaintiffs (being Lloyd’s names) expected to be exposed. The plaintiffs contended that their damages should be assessed once and for all on the basis of the claims they had already paid, with the damages in respect of anticipated claims to be assessed at the same time. The defendants, who were managing and underwriting agents whose conduct exposed the Lloyd’s names to excessive risk of liability to third party assureds, contended that the assessment of the portion of damages relating to future claims should be deferred, including until related litigation involving one of the plaintiffs had been determined.

44 Phillips J accepted that the rules of court empowering it to order that any question or issue be tried before, at or after the trial of the cause or matter (being RSC Ord 33), enabled the court to defer the assessment of damages, reasoning as follows (at 297):

In my judgment these provisions enable the court to make an award of damages in relation to part of a claim while deferring for adjudication another part. In reaching this conclusion I have been influenced by the following consideration. Order 14, r 3 empowers the court to give summary judgment in respect of part of a claim, leaving the balance of the claim to go for trial. It would be illogical if the court were not able, after determining liability in a split trial, to give immediate judgment for heads of damage no longer in dispute while reserving for assessment heads of damage in respect of which an inquiry was necessary. For these reasons I have concluded that I have jurisdiction to make an award in respect of claims that have been paid while reserving for future determination that part of the names’ claim that relates to anticipated claims. A similar, although not identical, effect could be achieved by ordering an interim payment to reflect the paid claims.

45 Having referred to the accepted position that it is usually desirable to bring litigation to an end by making a single award of damages which includes the best assessment of future loss, Phillips J recognised (at 297) that the interests of justice may, in some cases, demand an alternate course be taken. Deferring the assessment of damages in personal injury cases to allow the plaintiff’s medical condition to stabilise is one recognised example of where such a course may be taken. On the facts of the case before the court, Phillips J concluded (at 297ff) that the case had “special features” — arising from the nature of the loss, the difficulties of assessing the loss, and the consequences of a once and for all assessment of damages — warranting that the assessment of damages in respect of the anticipated claims be deferred.

46 This Court has powers of the same kind underpinning Deeny: r 30.01 of the Rules.

47 In Carazi, the heads of loss claimed included the value of future rent payments to be made under a lease where it was unclear whether the lessor would consent to the assignment of the lease by the plaintiff. The issue was raised as to whether the court could award damages and grant leave to the plaintiff to apply for further damages in the event that the lessor did not consent to the assignment of the lease.

48 In the course of concluding that the court could proceed in that way, White J observed (at [63]–[64]) that, in Polkinghorne v Holland (1934) 51 CLR 143, the High Court made orders that included the entry of judgment for two sums, while also preserving the plaintiff’s right to recover “any further sum as damages” in respect of a payment the plaintiff may yet be required to make as a shareholder in a company where the shares were in fact partly paid when the share certificates presented that they were fully paid. Cases in which the capacity to recover additional sums once the taxation position became clear, in particular in relation to the capital gains tax consequences of awards, were also noted by White J (at [65]–[66]) as instances in which the assessment of heads of damages that are unknown at the time of judgment may be deferred. In the case before the court, White J determined to defer assessment of the relevant head of damage on the basis that it would not be possible to assess that head of damage at the time, and it would be unjust to at least one party, if not all parties, if the court were to attempt to do so: at [66]. In Carazi, White J did not refer in any detail to Deeny, referring to it, along with other authorities, as a case in which assessment of some damages has been deferred.

49 As noted above, the Applicants also referred to Walker v ANZ. In that case, an issue arose regarding whether there should be a split trial where one head of damages related to losses that may be suffered if the first plaintiff was not able to recover debts from third party customers. Austin J referred to Deeny and accepted that the court had the jurisdiction to make an order deferring the determination of the quantum of damages until after the principal hearing, but distinguished Deeny on the facts: at [35]–[36]. The application for a split trial in Walker v ANZ was rejected on the basis that questions of liability and assessment of damages could not be kept separate and because the nature of the evidence that the plaintiffs wished to adduce on loss or damage was such that it was not necessary to defer the assessment of damages: at [38].

50 Bartier Perry was an appeal against an order of a trial judge making an award of damages on the basis that the judge accepted an undertaking by the plaintiff to “repay” certain amounts to the defendant if the plaintiff succeeded in recovering those amounts in other proceedings. The Court of Appeal of New South Wales, Payne JA, with White and McCallum JJA agreeing, concluded that the primary judge had erred in accepting the undertaking rather than making a final award of damages. While accepting that the general principle that common law damages are to be assessed on a lump sum basis once and for all was subject to qualifications, and apparently approving White J’s survey of those exceptions in Carazi, Payne JA concluded that none of the qualifications applied on the facts of the case and proceeded to determine the quantum of that component of the damages, applying percentage based reductions to reflect contingencies.

51 Referring to the importance of finality in litigation, Payne JA observed that the plaintiff was obliged to prove his damages and well established principles should be applied to require the court to assess the “probabilities and possibilities of future hypothetical events”, relevantly in that case, the damages outcome in the as yet undetermined related proceedings: at [154].

52 Having regard to the foregoing authorities, I am satisfied that it is open to this Court to give judgment for the Applicants on the basis that the assessment of damages and/or equitable compensation is to be deferred. The next question is, however, whether I should accede to the Applicants’ contention that it is appropriate to proceed on that basis.

53 I have, not without some hesitation, concluded that it is. It is, of course, strongly preferable and the ordinary course, for damages to be assessed once and for all, and for that to occur promptly following judgment on liability (if indeed damages are not determined as part of the process by which judgment is given). I am also mindful that there are established principles by which contingencies can be accounted for in the assessment of damages, as occurred in Bartier Perry.

54 However, there are simply too many unknowns for it to be practical to approach the assessment of damages on that basis in the present case. In Bartier Perry, the court assessed the value of a law firm’s goodwill and then discounted that figure to account for the plaintiff’s interest in the firm’s goodwill, and for the prospect of a favourable recovery in the other proceedings. In this case, however, it is entirely unclear how many of the Associates will proceed with claims against the Applicants, whether (in the case of court proceedings or applications to enforce an AFCA determination) leave will be sought and granted under s 500(2) of the Corporations Act and the extent to which claims will be met by the Applicants’ insurers. Any attempt now to finalise the quantum of the claim for damages and/or equitable compensation would necessarily go beyond merely ascribing percentage chances to future contingencies. Any assessment of the quantum of damages and/or equitable compensation undertaken now would be arbitrary and likely to be unfair either to the Applicants (or their creditors, given they are in liquidation) or Anthony.

55 Accordingly, while I am satisfied that it is appropriate to order that damages and/or equitable compensation be assessed at a later stage, I am of the view that there should be some tolerably clear end date for this litigation. It ought not proceed piecemeal, potentially over an extended period of time. As noted above, the Applicants have suggested a period of 12 months as being appropriate. I accept that the proposed period is appropriate, and that an order should be made allowing the Applicants to apply to extend the period if necessary.

Whether permanent injunctions should issue

56 The Applicants seek permanent injunctions as follows:

A permanent injunction restraining the Respondent from:

(i)     any dealings or communications with any current or former clients of the Applicants;

(ii)     canvassing, soliciting or enticing former or current clients of the Applicants into transferring any sum of money to him or on his instruction to another person or entity;

(iii)    using any letterhead, templates or sending any communications marked or labelled with the Applicants’ or Freedom Finance Australia’s name, logo or branding;

(iv)    representing to any person that he is authorised by the Applicants or Freedom Finance Australia to provide financial advice or to sell investment products; and

(v)    instructing, counselling, procuring or otherwise assisting any person to do any of the acts referred to in sub-paragraphs 1(b)(i)-(iv) above[.]

57 The Applicants’ submissions do not identify any rationale for the injunctions sought on a permanent basis beyond saying that:

(a) the permanent injunctions would continue the interim injunctions first granted on the initial ex parte application on 22 December 2023, and continued by further orders made on 23 January 2024; and

(b) Anthony’s conduct constitutes serious misconduct and “the Applicants should be entitled to permanent orders restraining the Respondent from repeating such misconduct, and from the Respondent representing any continuing connection with the Applicants or Freedom Finance Australia generally”.

58 As to the first rationale, I note that:

(a) the Court file reveals that the orders made on 23 January 2024 were made by consent; and

(b) the interim orders were made at a time before Anthony was even charged, and while the Applicants were still trading (and not in liquidation).

The making and extending of the interim injunctions in those circumstances provides no sufficient rationale for their continuation as permanent injunctions.

59 As to the second rationale advanced, I do not accept that those matters provide a proper basis for granting the permanent injunctions sought.

60 Anthony is in prison and will be for years to come (at a minimum). The Applicants are in liquidation. There is no evidence to satisfy me that there is any realistic possibility that Anthony would be in a position to do any of the things that the Applicants seek to restrain him from doing. Nor, in circumstances where the Applicants are in liquidation and no longer trading, is it apparent what interests the injunctions are said to be necessary to protect.

61 In addition, the breadth of the injunctions sought, which extend to any and all “current” clients of the Applicants — whatever that means where the Applicants are in liquidation — and any former clients, is unworkable when there is nothing to suggest that Anthony has knowledge of who those people (who may number in the hundreds or thousands) are.

Whether the freezing orders should be continued pending the assessment of damages and/or equitable compensation

62 The Applicants seek an order in the following terms:

Pursuant to rule 7.35 of the Federal Court Rules 2011 (Cth), the freezing order pursuant to the Order of Justice Beach dated 22 December 2023, as extended by the Order of Justice Wheelahan dated 23 January 2024, be continued after judgment until the Respondent pays such sums that are due and payable to the Applicants as specified in paragraph 1(a) above.

63 The freezing orders referred to preclude Anthony from disposing of, dealing with or diminishing the value of his assets up to an unencumbered value of $3.9 million. Those orders also made provision for Anthony to provide information regarding his assets, swear an affidavit regarding that information, and provide bank statements and digital records (subject to any claims he might make invoking the privilege against self-incrimination).

64 The Applicants’ submissions in support contend that:

59    For the sake of completeness and the avoidance of doubt, the Applicants seek continuation of the freezing order after judgment, pending the assessment of damages in future. A freezing order may be granted or continued post-judgment: r 7.35(1), Rules.

60    It is submitted that having regard to the nature of and scope of the Respondent’s misconduct, it is appropriate that an ongoing restraint is placed on the Respondent dealing with his assets.

65 The evidence relied on by the Applicants in support of their application for judgment in default does not reveal what assets Anthony has, or anything about what has transpired after the freezing orders were first made and then continued.

66 The Court has no information about what Anthony’s assets are, or the basis upon which his misconduct, while in the grip of an apparently raging gambling addiction, supports a view that this Court’s processes may be frustrated by Anthony putting assets beyond the reach of enforcement processes that may follow quantification of damages and/or equitable compensation.

67 Accordingly, I decline to make the order sought. That said, I note that the orders made by consent on 23 January 2024 continue the freezing order “until further order”. While I have declined to make the order sought by the Applicants on their application for judgment in default, there is no application before me to vacate the order made on 23 January 2024 continuing the freezing order “until further order”. That order remains in effect.

Costs

68 The Applicants seek an order that the Respondent pay the costs of the application and the proceeding. They are entitled to their costs. However, the costs of the application are part of the costs of the proceeding, and no discrete order in respect of the costs of the application is necessary.

69 The orders of the Court will provide for judgment for the Applicants with the Applicants’ damages and/or equitable compensation to be assessed within 12 months, subject to any application to extend that period. There will also be an order for costs.

Associate:

Dated:    20 August 2025