Federal Court of Australia

Keystone Asset Management Limited (Receivers and Managers appointed) (in liquidation) v Filippini (No 2) [2025] FCA 1138

ORDERS

THE COURT NOTES THAT:

A. By interlocutory process dated 8 August 2025 (Interlocutory Process), the applicant (Keystone) applied to vary the freezing orders made on 13 September 2024 in proceeding VID536/2024 (13 September 2024 orders) and 23 September 2024 in this proceeding (23 September 2024 orders) (as each subsequently extended and varied by further orders) to extend to all of the first to seventh respondents’ property in Australia up to an unencumbered value of $158 million.

B. At the ex parte hearing on 11 August 2025, the Court granted the relief sought by the applicant on an interim basis pending an inter partes hearing of the Interlocutory Process on 1 September 2025.

C. On 1 September 2025, the Court adjourned the further hearing of the Interlocutory Process to 8 September 2025.  Also on 1 September 2025, the Court made orders permitting the payment of business expenses, and property management expenses, where consent has been given by the receivers and managers and liquidators.

D. For ease of reference, and by this order, the Court has combined the 13 September 2024 orders and 23 September 2024 orders, as subsequently extended and varied, including by these orders, and engrossed and restated in full the current form of the order.

E. For the avoidance of doubt, the undertakings as to damages given on behalf of the applicant recorded in paragraph B of the notes to the orders made on 18 September 2024 (in relation to the 13 September 2024 orders) continue to apply with respect to the orders as restated in these orders.

F. The first to seventh respondents expressly reserve their right to challenge the quantum of the frozen assets upon the parties’ production of documents following discovery.

G. These orders do not have the effect of restricting the first to seventh respondents from viewing their accounts.

THE COURT ORDERS THAT:

1. The freezing orders made on 23 September 2024 in this proceeding (as amended by the orders made on 3 October 2024, 15 November 2024, 4 August 2025 and 11 August 2025) be set aside.

2. Pursuant to r 7.32 of the Federal Court Rules 2011 (Rules) and s 23 of the Federal Court of Australia Act 1976 (Cth) (Act), the freezing orders made on 13 September 2024 in proceeding VID536/2024 (as amended by the orders made on 18 September 2024 in that proceeding, and the orders made on 15 November 2024, 4 August 2025, 11 August 2025, 1 September 2025 and 8 September 2025 in this proceeding) be amended by deleting paragraph 4 and restated as follows:

Introduction

1. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.

2. 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.

3. 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

4. Subject to further order of the Court:

(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$158 million (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.

4A. 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 owned 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);

(iii) in particular, the bank accounts identified in schedule 1 (Known Filippini Bank Accounts), the real property identified in schedule 2 (Known Filippini Properties) and the motor vehicles identified in schedule 3 (Known Filippini Vehicles) to these orders; and

(iv) the assets of the business of the second to fourth respondents (Filippini Companies) or, if any or all of the assets have been sold, the net proceeds of the sale; and

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

Exceptions to this order

Business and property expenses

5. This order does not prohibit you from making payments in the ordinary and proper course of your business, including payments of business expenses bona fide and properly incurred, and payments in the ordinary and proper course of property management, in both cases subject to paragraphs 6 to 8 below.

6. You must obtain the consent of Jason Tracy and Glen Kanevsky of Alvarez & Marsal as the joint and several liquidators and joint and several receivers and managers of the first defendant (Receivers) before making any payment pursuant to paragraph 5 above (which consent must reasonably be given).

7. Any payments for business expenses may only be made by the relevant Filippini Company out of a bank account the sole purpose of which is receiving income, and paying expenses, in relation to the business and out of funds derived from income received in relation to that business or a source not subject to this order.

8. Any payments for property management may only be made by the owner of that relevant property out of a bank account the purpose of which is receiving income, and paying expenses, in relation to the relevant property or by the managing agent of the relevant property and, in each case, out of funds derived from income received in relation to the relevant property or a source not subject to this order.

Dealings in property

9. This order does not prohibit the fifth respondent from amending title 12490/368 by registration of proposed plan of subdivision PS739452S for the sole purpose of giving effect to the original sale contract to include additional carparks for no additional consideration, and the registration of any transfer necessary to ensure that the fifth respondent is the sole registered proprietor of the resultant lot 4801AA on that proposed plan of subdivision.

10. The registered proprietor of any real property frozen by this order (Vendor) may enter into and settle the sale of such real property (Real Property) subject to the following conditions:

(a) the contract price (whether sold by private sale or auction) shall be not less than the price first agreed in writing by the Receivers, or determined by the Court;

(b) the consideration payable for the sale price shall be by transfer of funds or bank cheque only, and must not include forgiveness of debt or any other like form of consideration;

(c) a copy of any exchanged contract of sale of the Real Property must be provided to the Receivers within 5 business days of exchange;

(d) at least 3 business days prior to the date of settlement pursuant to the exchanged contract of sale, the Receivers must be provided with the following:

(i) details of the time and place of settlement;

(ii) the proposed statement of adjustments and settlement statement for completion of the sale (or similar);

(iii) an itemised schedule of all anticipated costs, charges and expenses incurred in the sale of the Real Property;

(e) at settlement, the proceeds of the sale of the Real Property must be distributed as follows:

(i) firstly, in payment of all reasonable and necessary expenses incurred in connection with the sale;

(ii) secondly, to discharge any encumbrance registered over the Real Property prior to 11 August 2025;

(iii) thirdly, in payment of any outstanding water and council rates, statutory charges (including land tax) or owner’s corporation fees payable in relation to the Real Property; and

(iv) fourthly, the net proceeds of sale remaining after payment of the items specified at subparagraphs (i), (ii) and (iii) immediately above shall be paid into an account identified in Schedule 1 held in the name of the Vendor, nominated by the Vendor, or otherwise agreed between the Vendor and the Receivers (acting reasonably).

Varying the Exceptions

11. You and the Receiver may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case, the Receivers 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 Receivers and you, and the Court may order that the exceptions be varied accordingly.

Persons other than the applicant and respondent

Set off by banks

12. 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.

Bank withdrawals by the respondent

13. 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.

Funds in legal trust account

14. This order does not prevent the solicitors for the first to seventh respondents from applying funds held in trust towards the payment of legal costs and disbursements incurred in relation to the subject matter of this proceeding from:

(a) funds currently held in trust by Corrs Chambers Westgarth identified in the trust account statement at pages 148 to 149 of JDB-5 in the amount of $800,000; or

(b) future payments from sources not subject to this order and, for the avoidance of doubt, any funds transferred by the respondents to Corrs Chambers Westgarth’s trust account from funds outside of Australia will not be frozen upon being credited to such trust account.

Other

3. There be liberty to apply.

4. The costs of the applicant’s interlocutory applications dated 1 August 2025 and 8 August 2025 be reserved.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1 There are two interlocutory applications, each filed by Keystone Asset Management Limited (Receivers and Managers appointed) (in liquidation) (Keystone), before the Court:

(a) an interlocutory application dated 1 August 2025, which broadly seeks removal of the “business expenses” exception from freezing orders that have been made in relation to the first to seventh respondents (the Filippini Respondents); and

(b) an interlocutory application dated 8 August 2025, which broadly seeks an expansion of the existing freezing orders so as to cover “all assets” of the Filippini Respondents, rather than just particular assets.

2 The first interlocutory application has now been resolved by agreement between the parties and it is unnecessary to say any more about it.

3 The second interlocutory application was the subject of an ex parte hearing on 11 August 2025.  On that occasion, I made orders substantially in the terms sought by Keystone, with those orders continuing until 5.00 pm on 1 September 2025.  The orders also provided for an inter partes hearing to take place at 9.30 am on 1 September 2025.

4 Shortly before the matter returned to Court on 1 September 2025, Keystone indicated that it would seek an adjournment of that hearing.  The adjournment was opposed and I heard submissions on the adjournment application on 1 September 2025.  I decided that it was appropriate to grant the adjournment.  I therefore extended the freezing orders (in the form that had been made following the ex parte hearing) to 5.00 pm on 8 September 2025, and listed the hearing of Keystone’s application at 2.15 pm on 8 September 2025.

5 The hearing of Keystone’s application took place at 2.15 pm on 8 September 2025.  At the end of the hearing, I indicated that I would consider my decision and should be in a position to deliver oral reasons later in the week.  I therefore extended the freezing orders as then in place until 5.00 pm on 12 September 2025.

6 During the course of the hearing, each party indicated that there was one additional matter that they wanted to address in evidence.  I therefore gave leave to each party to file further material on those particular matters, with the other party having the opportunity to file reply material.  Insofar as the material filed by Keystone went beyond the grant of leave, I have not had regard to it.

7 The affidavit evidence relied on by the parties is as follows.

8 Keystone relies on affidavits of Kimberley MacKay, a partner of Norton Rose Fulbright, the solicitors acting for Keystone in this proceeding, dated 1 August 2025 (her seventh affidavit in the proceeding), 8 August 2025 (her eighth affidavit), 29 August 2025 (her ninth affidavit), 4 September 2025 (her tenth affidavit), 8 September 2025 (her eleventh affidavit) and 9 September 2025 (her twelfth affidavit).  In addition, Keystone relied on the affidavit of the first respondent, Robert Filippini (Robert), dated 30 September 2024 and also filed in this proceeding.

9 The Filippini Respondents relied on affidavits of Joseph Barbaro, a partner of Corrs Chambers Westgarth, the solicitors for the Filippini Respondents, dated 26 August 2025 (his fifth affidavit in this proceeding), 7 September 2025 (his sixth affidavit) and 9 September 2025 (his seventh affidavit).

10 The parties filed written submissions in relation to Keystone’s application.  Keystone relied on its written submissions in support of its ex parte application to expand the scope of the freezing orders dated 11 August 2025, along with submissions dated 4 September 2025.  Keystone also relied on further reply submissions dated 10 September 2025.

11 The Filippini Respondents relied on their submissions dated 26 August 2025 (for the interlocutory hearing on 1 September 2025) and reply submissions dated 7 September 2025 (for the interlocutory hearing on 8 September 2025).  They also relied on reply submissions dated 10 September 2025.

12 A number of issues have now been resolved between the parties.  In particular, there is no longer an issue as to funds held in the trust account of the solicitors acting for the Filippini Respondents.  Further, for present purposes, there is no issue whether the amount of the freezing orders as regards Robert (and the other respondents, should Keystone’s position on the first main issue discussed below be accepted) should be $158 million or $150 million.  For present purposes, the Filippini Respondents accept that the appropriate amount is $158 million.

13 The main issues between the parties are as follows:

(a) whether the freezing orders should differentiate between the Filippini Respondents, with different amounts frozen for each of those respondents;

(b) whether certain assets held by the A&M Trust and the R&D Trust should be subject to the freezing orders; and

(c) whether four luxury vehicles held by FPC Vic Pty Ltd (FPC) should be subject to the freezing orders.

14 In addition, there are two subsidiary issues.  The first is whether nine additional vehicles should be subject to the freezing orders.  The second is whether a bank account apparently in the name of a relative of the Filippini Respondents should be subject to the orders.

Overview of the proceeding

15 I provided an overview of the proceeding in an earlier judgment: Keystone Asset Management Limited (Receivers and Managers appointed) (in liquidation) v Filippini [2025] FCA 604 at [14]-[25].  For ease of reference, I set out the substance of that overview in the following paragraphs.

16 Keystone’s claims are set out in its further amended statement of claim (FASOC).  It is alleged in paragraph 1 that Keystone is and was at all material times the responsible entity for the Shield Master Fund (SMF), a managed investment scheme registered with the Australian Securities and Investments Commission (ASIC), and is and was at all material times the trustee of the Australian Diversified Property Fund (ADPF), a wholesale unregistered property fund.

17 It is alleged that Robert was at all material times the sole director of the second respondent (City Built) and the third respondent (Force 1 Security).  It is also alleged that he was at all material times since 15 December 2023 a director of the fourth respondent (Force 1 Constructions).

18 It is alleged that Mr Chiodo was at all material times a director of the ninth respondent (Chiodo Corporation).

19 Section C of the FASOC deals with the SMF.  Section D deals with the ADPF.  Section E deals with Chiodo Corporation and a development management agreement between Keystone (as trustee for the ADPF) and Chiodo Corporation.

20 Section F of the FASOC relates to the payment of funds from the SMF and the ADPF.  It is alleged that, in the period 6 April 2022 to 31 May 2024, Keystone (as responsible entity for the SMF) made payments of about $305 million to Keystone (as trustee of the ADPF) for the purchase of units in the ADPF.  It is also alleged that in the period 11 April 2022 to 3 September 2024, Keystone (as trustee of the ADPF) made payments of at least approximately $305 million to Chiodo Corporation.

21 In Section G of the FASOC, there are allegations about the receipt and use of funds by the Filippini Respondents.  In paragraph 49 it is alleged that, from 11 April 2022, payments totalling at least $158 million were paid by Chiodo Corporation and by Keystone to accounts held by City Built and Robert.  In paragraph 52, it is alleged that there were no written contracts between Chiodo Corporation and City Built or Robert with respect to any of the ADPF developments or other services provided by City Built or Robert to Chiodo Corporation.  In paragraph 53, it is alleged that City Built was not required to and did not in fact submit any tenders or quotations for any of the work it undertook for Chiodo Corporation on the ADPF developments or any other development.

22 It is then alleged, in paragraph 54, that during the period 17 January 2022 to 28 May 2024, City Built issued invoices to Chiodo Corporation which referred to construction costs and expenses purportedly incurred in connection with the ADPF developments and other developments with a total value of approximately $142 million.  It is alleged that, by these invoices, City Built represented that it had undertaken work or incurred expenses in connection with the identified developments as described in the invoices.

23 After a series of detailed allegations (paragraphs 58A to 58AS), it is alleged in paragraph 58 that City Built and Robert received payments for which the purported works or expenses were not in fact performed or incurred by City Built or Robert (defined as the “ADPF Development Overpayments”).  Further, in paragraph 59, it is alleged that the total amount of the payments to City Built and Robert (approximately $158 million) exceeded the total amount of the invoices by approximately $15 million (defined as the “Unreconciled Payments”).  In paragraph 60, it is alleged that the ADPF Development Overpayments and the Unreconciled Payments were received for no consideration and without any legitimate basis.

24 In paragraph 61, it is alleged that the representations made by the invoices were false.  In paragraph 62, it is alleged that Mr Chiodo and Chiodo Corporation knew that the representations were false.

25 In paragraph 63, it is alleged that the payments made to City Built and Robert to the extent of the ADPF Development Overpayments and the Unreconciled Payments were “dishonestly misappropriated by City Built and Robert Filippini in pursuance of a fraudulent design with Paul Chiodo and Chiodo Corporation to authorise the payment of the City Built Invoices in circumstances where those payments were known by each of City Built, Robert Filippini, Paul Chiodo and Chiodo Corporation to comprise amounts for which City Built and Robert Filippini did not perform works or incur expenses entitling them to payment”.

26 Section H of the FASOC deals with alleged breaches of fiduciary duties by Mr Chiodo and Keystone.  Section I deals with claims against Chiodo Corporation on the basis of the first limb of Barnes v Addy and, further or alternatively, on the basis of a Quistclose trust.

27 Section J deals with claims against City Built and Robert on the basis of the first limb of Barnes v Addy and on the basis of a Black v Freedman trust.  Section K deals with claims against certain other Filippini Respondents on the basis that they received some of the allegedly misappropriated funds.

Applicable principles

28 Keystone’s application for the freezing orders is brought pursuant to r 7.32 of the Federal Court Rules 2011 and s 23 of the Federal Court of Australia Act 1976 (Cth).  At the hearing, Keystone relied, in particular, on r 7.35(4) and (5), which provide:

(4)    The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

(a)    the judgment debtor, prospective judgment debtor or another person absconds;

(b)    the assets of the judgment debtor, prospective judgment debtor or another person are:

(i)    removed from Australia or from a place inside or outside Australia; or

(ii)    disposed of, dealt with or diminished in value.

(5)    The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that:

(a)    there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:

(i)    the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

(ii)    the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

(b)    a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

29 I discussed the principles relating to freezing orders in Fine China Capital Investment Limited v Qi (No 2) [2023] FCA 1059 at [20]-[22].  I set out that discussion in the following paragraphs.

30 The principles relating to freezing orders have been considered recently in: Spotlight Pty Ltd v Mehta [2019] FCA 1796 (Spotlight v Mehta) at [9]-[12] per Anderson J; Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd [2021] FCA 585 at [3]-[4] per O’Bryan J; and Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad [2021] FCA 1562 at [22]-[28] per Cheeseman J.  The cases indicate that the issues to be considered on such an application are:

(a) whether the plaintiff or applicant has a good arguable case;

(b) whether there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because the assets of the prospective judgment debtor are disposed of, dealt with or diminished in value (assuming the relevant aspect of r 7.35(4)(b) is sub-paragraph (ii)); and

(c) the exercise of discretion.

31 In Spotlight v Mehta, Anderson J quoted the following passage from the judgment of Wigney J in Basi v Namitha Nakul Pty Ltd [2019] FCA 743 at [7]-[9]:

7    The purpose of a freezing order is to prevent an abuse or a frustration of the Court’s process by depriving an applicant of the fruits of any judgment obtained in the action: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625. It is “no light matter” to freeze a party’s assets and there is, accordingly, a need for the Court to exercise caution: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 324F. A freezing order is a “drastic remedy” which should not be lightly granted: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [51] citing Frigo v Culhari (unreported, NSW Court of Appeal 17 July 1998 at 10-11).

8    An applicant has a good arguable case if they have “a reasonably arguable case on legal as well as factual matters”: Cardile at [68]; Insolvency Guardian Melbourne Pty Ltd v Carlei (2016) 111 ACSR 236; [2016] FCA 72 at [18]. It has also been said that a “good arguable case” is one “which is more than barely capable of serious argument, and yet not necessarily one the judge considers would have better than a fifty per cent chance of success”: Curtis v NID Pty Ltd [2010] FCA 1072 at [6] citing Ninemia Maritime Corp v Trave Schiffahrtsgesselschaft mbH & Co KG (The Niedersachsen) [1983] Com LR 234 at 235 (affirmed on appeal: [1983] 1 WLR 1412); Deputy Commissioner of Taxation v Greenfield Electrical Services Pty Ltd (2016) 103 ATR 327; [2016] FCA 653 at [7].

9    Where a freezing order is sought on the basis of a danger of the dissipation of assets, it is not necessary for the Court to be satisfied that the risk of dissipation is more probable than not. Nor is it necessary for the applicant to adduce evidence of an intention on the part of the respondent to dissipate assets: Deputy Commissioner of Taxation v Hua Wang Bank Berhad (2010) 273 ALR 194; [2010] FCA 1014 at [8]-[10]; Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) (2012) 90 ATR 711; [2012] FCA 1064 at [23]. The making of a freezing order involves a discretionary exercise of power. The Court retains a discretion to refuse relief even if the requirements in r 7.35 of the Rules are satisfied: Patterson at 321-322.

32 In relation to the issue of danger of dissipation of assets, the following principles are relevant:

(a) it is not necessary for the Court to be satisfied that the risk of dissipation is more probable than not;

(b) the risk of dissipation must be demonstrated by evidence: see Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2012] FCA 746 at [34] per Foster J, citing Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 (Patterson) at 321-322 per Gleeson CJ; and

(c) in some cases, the risk of dissipation of assets to avoid a judgment will be evident from the applicant’s or plaintiff’s strong prima facie case of the defendant’s having fraudulently misappropriated assets or of serious dishonesty: see KTC v Singh [2018] NSWSC 1510 at [8] per White J, citing Patterson at 325-326 per Gleeson CJ.

33 At the hearing, the parties made submissions about the principles stated in Deputy Commissioner of Taxation v Vasiliades [2014] FCA 1250; 323 ALR 59 (Vasiliades).  I will discuss that case, and the parties’ submissions about it, later in these reasons.

Consideration

34 The freezing orders as they currently stand were made following an ex parte hearing.  This is the first time there has been an inter partes hearing as to whether freezing orders in the form sought by Keystone should be made.  Accordingly, I approach the issues on the basis that the onus is on Keystone to establish that freezing orders in the terms it seeks should be made.

35 The context for the present application includes evidence in Ms MacKay’s seventh affidavit that Robert, the fifth respondent (Dimitra), the sixth respondent (Antonio) and the seventh respondent (Matilda) left Australia on 29 May 2025.  While they were initially booked to return on 2 July 2025, their return date has been changed to 13 May 2026.  Further, as set out in [16] of Ms MacKay’s seventh affidavit, in the period 20 January 2025 to 1 July 2025, the Filippini Respondents transferred $7,745,574 from Australian bank accounts to overseas bank accounts.

36 As explained in [54]-[57] of Ms MacKay’s eighth affidavit, the total funds held in accounts captured by the freezing orders as at 13 November 2024 was $110,351,660.  The Filippini Respondents have claimed approximately $529,624 under the bona fide business exception.  Under the freezing orders, the Filippini Respondents were able to claim legal expenses under an exception that was in place until 15 November 2024.  Before that exception was removed, the Filippini Respondents transferred approximately $1,456,390 under that exception.  Accordingly, approximately $2 million has been withdrawn from the frozen accounts under the exceptions to the freezing orders.  Ms MacKay deposes that she is concerned that there may be a shortfall of approximately $50 million between the value of Keystone’s claims and the funds currently frozen (i.e. $158 million less $108 million).

Differentiation between respondents

37 Keystone seeks an order directed to each of the Filippini Respondents that he, she or it “must not remove from Australia or in any way dispose of, deal with or diminish the value of any of [their] assets in Australia … up to the unencumbered value of AUD$158 million”.  In other words, the freezing orders would apply to the assets of each of the Filippini Respondents up to a value of $158 million.

38 The Filippini Respondents contend that there should be differentiation between them, with different amounts specified depending on the total value of the claims made against each individual respondent in the proceeding.  The Filippini Respondents’ proposed orders provide for the freezing of assets up to the following amounts (omitting cents):

(a) for Robert, $158 million;

(b) for City Built, $28,917,933;

(c) for Force 1 Security, $1,925,268;

(d) for Force 1 Constructions, $109,633;

(e) for Dimitra:

(i) in her personal capacity, $87,072,770;

(ii) as trustee of the A&M Trust, $0;

(iii) as trustee of the Filippini Investment Trust, $158 million;

(f) for Antonio, $63,081,825; and

(g) for Matilda, $86,600,604.

39 The way in which the above amounts have been derived is explained in Mr Barbaro’s fifth affidavit at [8]-[10].  As he explains, the payments and transfers that form the basis of the claims against each of the Filippini Respondents are set out in Schedule B to the FASOC.  Mr Barbaro states (and I accept) that he has reviewed Schedule B and calculated the total amount that Keystone claims against each of the Filippini Respondents.  Those calculations are set out in [10] of that affidavit.  The amounts are the same as set out above, save that in the case of Robert and Dimitra (in her capacity as trustee of the Filippini Investment Trust) the total amount claimed is greater than $158 million.  In these cases, $158 million, being the amount proposed by Keystone, has been adopted in the proposed orders.

40 In essence, the Filippini Respondents submit that there can be no principled basis for the freezing orders applying to assets of a particular respondent beyond the amount claimed against that respondent.  They rely on Zhen v Mo [2008] VSC 300.  In that case, Forrest J said (at [24]) that “the applicant bears the onus both in satisfying the Court that the order should be continued and in satisfying the Court as to the amount which is to be the subject of the order”.  See also at [25].

41 In response, Keystone contends that the Filippini Respondents’ proposed order would create uncertainty and confusion, in circumstances where the evidence indicates significant intermingling of assets as between the Filippini Respondents.

42 In my opinion, the evidence does indicate significant intermingling of assets as between the Filippini Respondents, such that there is a real possibility that assets in the name of one of the Filippini Respondents may in fact belong to another.

43 By way of example, I refer to Robert’s affidavit dated 30 September 2024, which was made pursuant to the Court’s orders dated 23 September 2024.  In [3] of the affidavit, Robert states that he made each of the transfers out of the accounts referred to in paragraph 7 of the Court’s orders.  These transfers include a series of transfers of large sums of money from an account in the name of Dimitra (as trustee for the Filippini Investment Trust) to “AF”, which I infer is a reference to Antonio Filippini.  Further, the transfers listed in paragraph 7 of the Court’s orders include a series of transfers of large sums of money from an account in the name of Dimitra to Matilda.  Moreover, Robert states in [6] of that affidavit that he “did not consult Antonio, Matilda or Dimitra Filippini before making any of the [transactions referred to in paragraph 7 of the Court’s orders]”.

44 The affidavit evidence of Ms MacKay contains other examples of intermingling of assets as between the Filippini Respondents.  See, for example, Ms MacKay’s tenth affidavit at [17(d)].

45 In light of these matters, disentangling ownership of assets as between the Filippini Respondents is likely to be difficult and take some time.  In circumstances where some of the information (eg by way of bank statements) has only recently been received, I would not expect the claims based on this material to be fully reflected in a pleading at this time.  The evidence suggests that there has been intermingling of assets as between the Filippini Respondents to such an extent that it would not be safe to proceed on the basis that each respondent is entitled only to the assets in his or her name to the exclusion of the other respondents.  The picture that emerges from the affidavit evidence is that the Filippini Respondents’ assets were mixed together without any clear delineation between them.  I therefore consider it appropriate that the freezing orders be expressed in the way sought by Keystone; that is to say, the orders would apply to the assets of each respondent up to a value of $158 million.

Assets held by the R&D Trust and the A&M Trust

46 The next issue is whether the freezing orders should apply to certain assets of the R&D Trust and the A&M Trust.  The Filippini Respondents contend that the orders should not apply to:

(a) the Lygon Street Property (held by the R&D Trust);

(b) the Chapel Street Property (held by the A&M Trust); and

(c) a bank account with the Bendigo Bank (held by the A&M Trust).

47 The R&D Trust and the A&M Trust are discretionary trusts.  Dimitra is the trustee of each trust.  Robert is the appointor of each trust and one of the principal beneficiaries.  As appointer, Robert has the power to remove and appoint the trustee of each trust.

48 Keystone submits that, in circumstances where Robert is a beneficiary with a power of appointment, he has something approaching a general power and ownership of trust property.  Keystone relies heavily on judgment of Gordon J in Vasiliades.  In that case, her Honour said at [60]:

A beneficiary who effectively controls a trustee’s power of selection because he or she is the trustee or one of them and / or has the power to appoint a new trustee may have something approaching a general power and the ownership of the trust property: Australian Securities and Investments Commission v Carey (No 6) 153 FCR 509 at [37].

49 Her Honour was satisfied that there was a good arguable case that Mr Vasiliades, as the sole director and shareholder of the trustee company, and as one of the beneficiaries of the trust, had a contingent interest in the trust assets (at [58]-[61]).  In this context, it was considered appropriate to make an order pursuant to r 7.35 that Mr Vasiliades “must not himself, and must not through any partner, employee, agent or other person acting on his behalf or on his instructions exercise any power of distribution in respect of the Trust including any power as a director of any trustee of the Trust” (at [71]).

50 Keystone also relies on Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814; 153 FCR 509 (Carey) at [19], [37]-[39] per French J; Rafferty v Time 2000 West Pty Ltd (No 2) [2008] FCA 1931 at [25]-[26] per Besanko J; and Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 (Cardile) at [47], [119].

51 Keystone submits that, in the present case, the Court should be satisfied on the basis of the available evidence that there is a good arguable case that Robert is a beneficiary who effectively controls the trustee of each trust; that that control approaches a general power and thus a proprietary interest in the income and corpus of each trust; and further, that it is “as good as certain” that Robert will receive the benefits and distributions of income or capital from the trusts.

52 In response, the Filippini Respondents submit that the following propositions in relation to the Lygon Street Property and the Chapel Street Property cannot be disputed (and do not appear to be in dispute): they were acquired by Dimitra in her capacity as trustee of the respective trusts; they were unencumbered before the commencement of any dealings between Keystone and the Filippini Respondents and remain unencumbered; and Keystone does not assert any proprietary interest in the properties.

53 The Filippini Respondents submit that Keystone has not demonstrated any of the following matters, at least one of which must be present to enliven the Court’s power to make a freezing order under r 7.35:

(a) that there is a good arguable case that the relevant trust is a prospective judgment debtor of Keystone; or

(b) that the relevant trust, as a third party to the claim, satisfies one of the criteria in r 7.35(5), namely, that:

(i) it holds assets “of” Robert, the potential judgment debtor; or

(ii) a process in the Court is or may ultimately be available to Keystone as a result of a prospective judgment against Robert, under which the relevant trust may be obliged to disgorge its assets or contribute toward satisfying that prospective judgment.

54 The Filippini Respondents submit that Vasiliades does not assist Keystone for three reasons:

(a) First, it is distinguishable on the facts.

(b) Secondly, it was decided in reliance on the judgment of French J in Carey, but failed to have sufficient regard to the context of his Honour’s comments.  French J was considering the definition of “property” in s 9 of the Corporations Act 2001 (Cth), as modified by s 1323(2A) and (2B) of that Act.  Attempts to expand the applicability of French J’s comments in that case have been doubted in several cases: Australian Securities and Investments Commission v Burnard [2007] NSWSC 1217; 64 ACSR 360 at [71] per Barrett J; Public Trustee v Smith [2008] NSWSC 397 at [138] per White J; Re Cooper Street Property Trust [2016] VSC 756 at [69]-[71] per McMillan J; Deputy Commissioner of Taxation v Ekelmans [2013] VSC 346 (Ekelmans) at [45]-[46] per Judd J.

(c) Thirdly, given that Robert, as the prospective judgment debtor, is not presently the trustee, an order enjoining his power of appointment would be sufficient to ensure that he does not exercise that power so as to place assets beyond the legitimate interests of creditors.  This was the approach taken in Ekelmans: see [47].

55 The Filippini Respondents also submit that Cardile, and its reference to a “deliberate blurring” of assets, can be distinguished from the present case.  They submit that the “blurring” under consideration in Cardile encompassed circumstances where property was transferred from a prospective debtor to a third party, in order to place it beyond the reach of a prospective creditor; in the present case, the “blurring” described in Ms MacKay’s affidavits consists of transfers from the trusts to members of the Filippini family, that is, the trust’s beneficiaries; the effect of these transfers was to take property out of the trust and to place it within the reach of prospective creditors (by putting it in the hands of a prospective judgment debtor).

56 In my view, the affidavit evidence establishes a good arguable case that the assets of the R&D Trust and the A&M Trust may be applied in accordance with Robert’s directions as if they were his own assets.

57 I have referred, above, to Robert’s affidavit dated 30 September 2024.  In that affidavit, Robert states that he made each of the transfers referred to in paragraph 7 of the Court’s orders dated 23 September 2024.  These transfers include a series of transfers of large sums of money from an account in the name of Dimitra (as trustee for the Filippini Investment Trust) to “AF”, which I infer is a reference to Antonio Filippini.  Robert states in the affidavit that he “did not consult Antonio, Matilda or Dimitra Filippini before making any of the [transactions referred to in paragraph 7 of the Court’s orders]”.  Although those transfers were from the Filippini Investment Trust (rather than the R&D Trust or the A&M Trust), the trustee was Dimitra and the transfers were made by Robert without consulting her.  This supports an inference that the affairs of the R&D Trust and the A&M Trust may be conducted in a similar manner, that is, by Robert and without consulting Dimitra.

58 Ms MacKay’s eleventh affidavit refers at [13]-[14] to two Business Activity Statements lodged by the trustee of the R&D Trust and signed via DocuSign (or FuseSign).  The statements relate to the periods January to March 2025 and April to June 2025.  Each statement contains a declaration by the trustee (Dimitra).  However, in each case, the FuseSign document audit log identifies that the document was executed by Robert: see pages 17 to 22 of Annexure “KCM-11”.  In response to that evidence, Mr Barbaro filed his seventh affidavit.  Mr Barbaro provides evidence on an “information and belief” basis, setting out what he has been told by Mr Traficante of Bellmonts Accountants and Advisors Pty Ltd (Bellmonts).  Mr Traficante provided Mr Barbaro with a detailed explanation as to how Robert’s name came to appear on the documents and says that it is the product of a mistake: see [13] of Mr Barbaro’s seventh affidavit.  Mr Barbaro also states at [15] that he is informed by Dimitra and believes that she affixed her signature to each statement using FuseSign and the reference to Robert in the FuseSign signing details page in each statement is an error.

59 While an explanation has been provided as to how Robert’s name came to appear on the signing page of each Business Activity Statement, the explanation itself raises other concerns.  It appears that Mr Traficante communicates with Dimitra through an email account that is used jointly by Robert and Dimitra, being the email account identified on pages 18 and 21 of Annexure “KCM-11”.  This would seem to make it difficult for Mr Traficante to know from whom he is receiving directions in relation to the affairs of the R&D Trust (and, I would infer, the A&M Trust).  There has not been the opportunity to test the evidence about these matters, including because the evidence has been put forward on an “information and belief” basis (rather than directly from Mr Traficante and Dimitra).  Further, no evidence from Robert has been adduced (directly or on an “information and belief” basis).  Given the state of the evidence, I consider there to be some doubt as to whether Dimitra in fact signed the two Business Activity Statements on behalf of the R&D Trust (notwithstanding that her electronic signature appears on the documents).

60 In light of the evidence discussed above, I consider that the present case is not materially different from Vasiliades.  While it is true that Mr Vasiliades was the sole director and sole shareholder of the trustee company, Falconbridge, as well as a beneficiary of the trust, the evidence referred to above supports an inference that Robert may be able to direct the application of the assets of the two trusts.  Insofar as the Filippini Respondents submitted that Vasiliades has been doubted in other cases, I am not persuaded that I should not follow Vasiliades.

61 Further, it follows from the analysis set out above that the proposal by the Filippini Respondents that there be an order restraining Robert from exercising his power of appointment is insufficient.

62 For these reasons, I consider that the freezing orders should include the assets of the R&D Trust and the A&M Trust, and I do not accept that the Lygon Street Property, the Chapel Street Property and the bank account with the Bendigo Bank should be excluded from the freezing orders.

Vehicles held by FPC

63 I now turn to the third main issue, which is whether four luxury vehicles held by FPC should be subject to the freezing orders.

64 The materials refer to six luxury vehicles that are owned by FPC.  In relation to two of the vehicles, there is no issue between the parties that they should be subject to the freezing orders.  However, the Filippini Respondents contend that the other four vehicles should not be subject to the freezing orders.

65 The Filippini Respondents contend that the six vehicles are held by FPC as trustee for the FPC Vic Trust.  Although Keystone initially contended that the vehicles were held by FPC in its own right, Keystone subsequently embraced the proposition that the vehicles were held on trust, and relied on Vasiliades to contend that they should be included in the freezing orders.

66 The sole shareholder of FPC is Robert.  The sole director of FPC is Mr Traficante. Robert is the appointor of the FPC Vic Trust and one of its primary beneficiaries.

67 The Filippini Respondents accept that Keystone has filed evidence that supports the proposition that two of the six vehicles may have been acquired with funds traceable to Keystone.  Those two vehicles were purchased in 2024.  The Filippini Respondents submit that Keystone has not put on any evidence to the effect that the other four vehicles were acquired with funds traceable to Keystone; each of those vehicles was purchased before April 2022 (being the date from which Keystone alleges that its funds first commenced to be paid by Chiodo Corporation to one of the Filippini Respondents); it follows that Keystone has no proprietary claims in relation to the other four vehicles that it seeks to freeze.

68 In my view, while the facts are not exactly the same, the inferences available in relation to the R&D Trust and the A&M Trust are also available in relation to the FPC Vic Trust.  There is a reasonably close overlap between the facts and circumstances relating to this trust and those relating to the R&D Trust and the A&M Trust.  I therefore consider that the reasoning set out above in relation to the R&D Trust and the A&M Trust applies also to this issue.

69 For these reasons, I consider that the freezing orders should apply to the four vehicles held by the FPC Vic Trust, and I do not accept that those vehicles should be excluded from the freezing orders.

Subsidiary issues

70 There remain two subsidiary issues to deal with.

71 The first is whether nine additional vehicles should be subject to the freezing orders.  Little attention was given to these vehicles in the parties’ submissions.  The Filippini Respondents submit that Keystone has adduced no evidence regarding the ownership of these vehicles and therefore they should not be included in the freezing orders.  However, Ms MacKay’s eleventh affidavit at [12] refers to nine personalised licence plates registered in the name of Robert.  This appears to constitute at least some evidence to support inclusion of the nine vehicles in the freezing orders.  If this is incorrect, the matter can be the subject of an application to remove the nine vehicles (or some of them) from the freezing orders. For these reasons, I consider it appropriate to include the nine vehicles in the freezing orders.

72 The other subsidiary issue concerns a bank account in the name of a person with the surname Filippini.  The name does not correspond with any of the Filippini Respondents.  The person was referred to in the parties’ submissions as a relative of the Filippini Respondents.  It is unclear whether this account in fact belongs to a different person or whether the name of the account is intended to refer to one of the Filippini Respondents (as the name is similar to the name of one of those respondents).  However, as matters stand, there is insufficient material to justify including the relevant account in the freezing orders.  I will therefore omit that account from the list of accounts in Schedule 1 to the freezing orders.

Conclusion

73 The evidence satisfies me that there is a risk of dissipation of assets and that the other prerequisites for the making of freezing orders are satisfied.  I am satisfied that it is appropriate to make freezing orders as sought by Keystone (subject to the minor adjustment referred to above regarding one bank account).

Associate:

Dated:    16 September 2025

SCHEDULE OF PARTIES