Federal Court of Australia

First Class Securities Limited v Global Future Holdings Pty Ltd (ex parte Third Party Freezing Order) [2026] FCA 201

ORDERS

[The Order entered is available on the Commonwealth Courts Portal, which includes Annexure A (Freezing Orders).]

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

SHARIFF J:

1.    INTRODUCTION

1    These reasons address an urgent ex parte application for a freezing order against a third party, Ms Najmia Safi. The application has been made under rule 7.35 of the Federal Court Rules 2011 (Cth) (FC Rules). It has come before me in my capacity as Commercial & Corporations Duty Judge.

2    I have decided to make the orders that are sought for the reasons that follow.

2.    BACKGROUND FACTS

3    The general background facts and the nature of the claims that the applicant advances in the substantive proceedings are set out in my judgment in First Class Securities Limited v Global Future Holdings Pty Ltd [2026] FCA 1 (the First Judgment) and in Cheeseman J’s judgment in First Class Securities Limited v Global Future Holdings Pty Ltd (Freezing Orders) [2026] FCA 48 (the Second Judgment). The latter judgment also sets out the initial or preliminary position that the respondents have taken or are likely to take in defence of the proceedings. For present purposes, it is unnecessary to repeat all those matters (other than where necessary) and these reasons assume familiarity with those earlier judgments.

4    In brief, the applicant’s claim (articulated in various ways) is that, in furtherance of the terms of an Investment Agreement, it invested a sum of approximately USD5 million with the first respondent (GFH) on the basis that the terms of that Agreement obliged GFH to repay the principal sum invested of USD5 million together with a guaranteed return of USD2.75 million. It is claimed that the total amount of USD7.75 million has been owing since 5 November 2025. The applicants advanced claims in breach of contract and for misleading and deceptive conduct (including as against the second respondent and third respondent (Mr Safi) in relation to the latter claims). The short point is that the sums have not been paid and there has been considerable history as to their non-payment that, on the evidence before me at the time, satisfied me as the (then) Duty Judge to make freezing orders against the respondents on an ex parte basis for the reasons set out in the First Judgment and, on the basis of further and other evidence, satisfied Cheeseman J as a further Duty Judge to continue those orders (with variations) for the reasons set out in the Second Judgment.

5    What has brought about the present application is the following sequence of events (which are not intended to be exhaustive).

6    Following the issue of subpoenas, bank statements for the period from approximately 22 September 2025 to at least 31 December 2025 were produced by the National Australia Bank in respect of an account held by GFH (GFH NAB Account). The bank statements disclose that:

(a)    the GFH NAB Account had an opening balance on 22 September 2025 of $657.93;

(b)    the following deposits were made into the GFH NAB Account from Mr Kazal or “JTSIB Group LLC” on 29 September 2025, which were said to be made for and on behalf of the applicant in furtherance of the Investment Agreement (all $AUD):

(i)    $200,000;

(ii)    $50,000;

(iii)    $49,700;

(iv)    $30,000;

(v)    $758,069.88;

(vi)    $50,000;

being a total of approximately $1,137,769.88;

(c)    the closing balance of the GFH NAB Account on 29 September 2025 fluctuated during the course of the day between $198,274.51 and $1,138,398.82;

(d)    on 1 October 2025, a further deposit was made of $200,000 by Mr Kazal;

(e)    on 3 October 2025, a further deposit was made of $2,645,422.62 by “JTSIB Group LLC”;

(f)    in the period between 22 September 2025 and 2 October 2025, there were no other deposits made into the GFH NAB Account;

(g)    in the period from 3 to 23 October 2025, several other deposits were made in the GFH NAB Account by Mr Kazal or “JTSIB Group LLC” and there were no other substantial deposits made into that Account from any other source in that period.

7    The bank statements also disclose that in the period between 29 September and 30 December 2025 there were a series of amounts that were transferred out of the GFH NAB Account bearing the notations set out below:

(a)    $200,000 on 29 September 2025 with the description “Najmia Azim Safi 299655569 AMS TRANSFER DEBIT 000000000000”;

(b)    $50,000 on 29 September 2025 with the description “Najmia Azim Safi 299596712 AMS TRANSFER DEBIT 000000000000”;

(c)    $50,000 on 6 October 2025 with the description “Najmia Azim Safi 300217019 AMS TRANSFER DEBIT 000000000000”;

(d)    $250,000 on 8 October 2025 with the description “Najmia Azim Safi 300470833 AMS TRANSFER DEBIT 000000000000”;

(e)    $250,000 on 21 October 2025 with the description “Najmia Azim Safi 301481702 Alande Safi TRANSFER DEBIT 000000000000”;

(f)    $300,000 on 23 October 2025 with the description “Najmia Azim Safi 301721071 Alande Safi TRANSFER DEBIT 000000000000”;

(g)    $105,000 on 8 December 2025 with the description “Najmia Azim Safi 305629999 Alande safi TRANSFER DEBIT 000000000000”; and

(h)    $80,000 on 30 December 2025 with the description “Najmia Azim Safi 307359646 Alande safi TRANSFER DEBIT 000000000000”,

(the Najmia Transfers).

8    The total of the Najmia Transfers is approximately $1,285,000.

9    As I will shortly explain, I am presently satisfied that the Najmia Transfers are amounts that were transferred from the GFH Bank Account into an account held in the name of Ms Safi, who is Mr Safi’s wife.

10    When the present application first came before me, I was not then satisfied about certain matters but made orders for the issue of subpoenas on various financial institutions in respect of accounts held by Ms Safi that were returnable before me at 9.30am today. The ANZ Bank has produced documents for an account held by Ms Safi for the period from 19 June 2025 through to 10 February 2026 (Ms Safi’s ANZ Bank Account).

11    The statements of Ms Safi’s ANZ Bank Account disclose the following:

(a)    as at 26 September 2025, the opening balance was approximately $17,603.21;

(b)    in the period from 29 September 2025 to 30 December 2025, amounts were deposited into that account that corresponded with the same amounts that were transferred out of the GFH Bank Account, consistent with the Najmia Transfers set out above;

(c)    there are a series of transactions recorded for personal and living expenses apparently incurred by Ms Safi, including in respect of significant amounts paid to hotels in Dubai and Singapore, amongst other things.

3.    CONSIDERATION

12    The present application requires consideration of r 7.35 of the FC Rules which provides as follows:

7.35     Order against judgment debtor or prospective judgment debtor or third party

(1)     This rule applies if:

(a)     judgment has been given in favour of an applicant by:

(i)     the Court; or

(ii)     for a judgment to which subrule (2) applies—another court; or

(b)     an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in:

(i)     the Court; or

(ii)     for a cause of action to which subrule (3) applies—another court.

(2)     This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

(3)     This subrule applies to a cause of action if:

(a)     there is a sufficient prospect that the other court will give judgment in favour of the applicant; and

(b)     there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

(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.

(Original emphasis.)

13    The relevant parts of the rule upon which the applicants rely relate to specific and special considerations that apply when an application is made for a freezing order in respect of a third party. That recognises that such orders are drastic in that they apply against a third party who is ostensibly a stranger to the litigation. As Gaudron, McHugh, Gummow and Callinan JJ stated in Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 at [56], orders made of this nature must be seen as appropriate to the case in hand. The plurality in Cardile stated the general principles applicable to the exercise of such a power as follows at [56]-[57]:

… the general power of superior courts which is comprehended by the express grant in s 23 of the Federal Court Act is a broad one. But, as the statements of Deane J in Jackson v Sterling Industries Ltd make clear, orders made pursuant to that section (and under the general power) must be capable of properly being seen as appropriate to the case in hand.

What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word “may”, be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which:

(i)     the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including “claims and expectancies”: (the phrase used by Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625; 71 ALR 457 at 465–6; [1987] HCA 23, of the judgment debtor or potential judgment debtor; or

(ii)     some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.

[Citation omitted.]

14    The principles set out above operate hand in glove with r 7.35 of the FC Rules. For present purposes, I need to be satisfied that there is a good arguable case against the respondents, and, to the extent relevant that there is a danger of the relevant type as addressed in r 7.35. In considering these matters, it is important to bear in mind that the application here is being made ex parte. In determining the application, I have taken into account the considerations set out by Derrington J in EVP Opportunities Master Pty Ltd as trustee for The EVP Opportunities Master Fund v Strong Room Technology Pty Ltd (Receiver and Manager Appointed) (Administrators Appointed) [2025] FCA 548 at [5]-[6].

15    In relation to whether the applicant has a good arguable case against the respondents, I am presently satisfied that it does. Without descending into the granular detail, on the face of it, the applicant entered into the Investment Agreement pursuant to which made an investment that has matured, and the amount owing to it has fallen due and payable but has not been paid. The evidence before me on this application satisfies me that the applicant has a good arguable case against the respondents, and, to the extent relevant, there is a sufficient prospect that a judgment will be registered in or enforced by the Court: rr 7.35(1)(b) and (2).

16    Next, as to the issue of whether there is a danger that a prospective judgment will be wholly or partly unsatisfied, the evidence before me in this application is concerning. It demonstrates that, notwithstanding that the purpose of the Investment Agreement was for the money paid to GFH was to be invested (with a guaranteed return), a substantial portion of that money was not invested at all and was instead transferred to a third party, Ms Safi, for use on personal expenses. At this stage, on an ex parte basis, I am satisfied the evidence is indicative of fraudulent conduct that gives rise to a risk of a dissipation of assets such that a prospective judgment will be wholly unsatisfied.

17    The question that arises in these circumstances is whether, those conditions having been satisfied, a freezing order should be made against Ms Safi as a third party. It is presently unnecessary to consider the criteria set out in r 7.35(a). That is because I am satisfied that r 7.35(b) applies. As noted above, and consistent with the plurality’s decision in Cardile, r 7.35(b) empowers the Court to make a freezing order against a third party if it is satisfied that a process in the Court is or may ultimately be available to the applicant as a result of a judgment or a prospective judgment under which process the third party may be obliged to disgorge assets or contribute towards satisfying the judgment or prospective judgment.

18    In the present case, I am satisfied that there is such a process that is or may ultimately be available that meets this description. It is unnecessary to consider every such process that may be available, but is sufficient to refer to one of them. That process is the one provided for under s 37A of the Conveyancing Act 1919 (NSW) (Conveyancing Act), which provides as follows.

37A    Voluntary alienation to defraud creditors voidable

(1)    Save as provided in this section, every alienation of property, made whether before or after the commencement of the Conveyancing (Amendment) Act 1930, with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced.$

(2)    This section does not affect the law of bankruptcy for the time being in force.

(3)    This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having, at the time of the alienation, notice of the intent to defraud creditors.

19    For the purpose of s 37A, “alienation of property” includes the transfer of value from one person to another and is usually understood as applying only to a transfer of property effected by the action of the transferor, as distinct from a transfer by involuntary operation of law: Cardile at [67]. In such a case, that alienation is voidable at the instance of any person who is prejudiced, where the alienation was made with “the intent to defraud creditors”. For this purpose, it is sufficient that it is established that there is an existence of an intention to hinder, delay or defeat creditors, and in that sense, to show that the debtor has acted dishonestly. As Nixon J stated in Neville’s Bus Service Pty Ltd v Total Group Constructions Pty Ltd (No 3) [2024] NSWSC 658 at [62]:

In order to establish an “intent to defraud creditors”, it is “unnecessary to show that the debtor wanted creditors to suffer a loss or that the debtor had a purpose of causing loss”; rather, it is “necessary to show the existence of an intention to hinder, delay or defeat creditors and in that sense to show that accordingly the debtor had acted dishonestly” (emphasis in original): Marcolongo v Chen (2011) 242 CLR 546; [2011] HCA 3 at [32] per French CJ, Gummow, Crennan and Bell JJ. It is sufficient that the debtor had an intention to hinder or delay creditors, even if this was not the sole or predominant purpose: ibid at [56]–[57].

20    It is unnecessary to show any intention on the part of the recipient of the transfer of property unless the circumstances in s 37A(3) of the Conveyancing Act apply.

21    In the present case, I am satisfied that there was a relevant “alienation of property” by reason of the voluntary transfer of approximately $1.2 million from the GFH NAB Account to Ms Safi’s ANZ Bank Account. I am also presently satisfied that an intention to defraud creditors can be inferred from the conduct of GFH. That is because having received sums advanced in furtherance of the Investment Agreement, GFH did not use those funds for an investment purpose but transferred them to an account held by Ms Safi to ultimately be used for personal expenses. This occurred notwithstanding that repeated demands were made for the repayment of the sum owing and representations having been made by Mr Safi that those repayments would imminently be made. The evidence before me casts serious doubt on whether GFH was ever in a position, at least from the funds available in the GFH NAB Account, to repay the funds that Mr Safi at one time claimed were being transferred from NAB that were being held up due to a compliance issue. Leaving that to one side, on the evidence before me, and bearing in mind it is an ex parte application, I am satisfied of the matter specified in r 7.35(5)(b) of the FC Rules exists.

22    As for discretionary considerations, I am satisfied that the application has been brought promptly following the applicant’s solicitor’s review of the bank statements that have been produced under subpoena. I have also considered whether there is any utility to the making of the freezing order as against Ms Safi in circumstances where at least the bank statements before me indicate that it is unlikely that she retains the sum of approximately $1.2 million in the ANZ Bank Account. However, the purpose of the freezing order is both to preserve the position in respect of a prospective disgorgement of assets and also to preserve the position such that the third party might be in a position to contribute towards satisfying the judgment or prospective judgment. What is presently unknown is the state of Ms Safi’s other assets or liabilities. In those circumstances, I do consider there is utility in making the order that is sought.

23    I am conscious that in applications for freezing orders against third parties, courts ordinarily expect an applicant to provide an undertaking to commence proceedings against the third party, especially where s 37A of the Conveyancing Act is relied upon. I have received an indication from Counsel for the applicant that such an undertaking will be given, and I will leave that matter to be raised with the Duty Judge upon the return of this matter.

24    For all these reasons, I am satisfied that the orders sought by the applicant should be made, limited to the sum specified, and those orders will be made until further order. I will now discuss with the applicant’s Counsel the form and terms of the orders which I make and publish my reasons at a later time.

Associate:

Dated:    27 February 2026