FEDERAL COURT OF AUSTRALIA

Barden (Trustee), in the matter of Ross (Bankrupt) v Macedo (No 4) [2026] FCA 818

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm on 29 June 2026, the parties are to provide the Associate to Markovic J with draft short minutes of orders giving effect to these reasons.

2.    If the parties are unable to reach agreement on the form of orders as contemplated by Order 1 above, by 4.00 pm on 29 June 2026 the applicant and respondents are each to provide their proposed competing orders to the Associate to Markovic J and the proceeding will be listed for case management hearing on 2 July 2026 at 9.30 am for the purpose of making orders giving effect to these reasons.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1 On 26 November 2024 Andrew Barnden in his capacity as Trustee of the bankrupt estate of Raymond Ross (Bankrupt) commenced this proceeding naming Deirdre Ann Macedo and Christopher Ross as first and second respondents respectively.  Ms Macedo is the bankrupt’s sister and Mr Ross is the bankrupt’s brother.

2 On 24 September 2025 Kennett J made ex parte orders pursuant to s 30(1)(b) of the Bankruptcy Act 1966 (Cth) and r 7.32 of the Federal Court Rules 2011 (Cth) which, in effect, restrained Ms Macedo from dealing with the property at 46 Northcote Street, Naremburn, New South Wales (title reference 20/29/4241) (Naremburn Property) and her other assets in Australia up to the value of $2,875,000 (Macedo Freezing Order).

3 The Macedo Freezing Order was extended on several occasions and on 4 November 2025 Perry J made an order extending the Macedo Freezing Order until further order and amending that order including in a manner that means that Ms Macedo is no longer subject to any restraint with respect to the Naremburn Property or her other assets.

4 On 16 January 2026 the Trustee moved on an interim application dated 14 January 2026 (Trustee’s interim application).  Upon hearing that application Younan J made ex parte orders, among others, pursuant to s 30(1)(b) of the Bankruptcy Act and r 7.32 of the Rules restraining CIGA Property Finance Pty Limited ACN 634 449 899 from advancing or agreeing to advance or lend any monies, encumbering, selling, assigning or otherwise dealing with registered mortgage AV117889 which was registered on the title of the Naremburn Property or exercising any rights in respect of the Naremburn Property (CIGA Freezing Order).

5 On 23 January 2026 when the CIGA Freezing Order was returnable before the Court, Stellios J made orders, among others, joining CIGA as third respondent to the proceeding, extending the CIGA Freezing Order until further order and extending the operation of caveat AV441901 lodged by the Trustee on the title of the Naremburn Property (Trustee’s Caveat) until further order (Caveat Order): see Barden (Trustee), in the matter of Ross (Bankrupt) v Macedo (No 3) [2026] FCA 21 at [19]-[20] (Stellios J). Before his Honour, the parties accepted that CIGA, who had not engaged a lawyer at that time, should be afforded the opportunity to seek legal advice.  The effect of his Honour’s orders was to maintain the status quo and list prayers 3 and 4 of the Trustee’s interim application to be heard inter partes before a docket judge: Macedo (No 3) at [6]-[7].

6 On 31 March 2026 the Trustee filed a further amended application and statement of claim.

7 On 20 May 2026 prayers 3 and 4 of the Trustee’s interim application were listed for hearing before me.  By those prayers for relief the Trustee seeks the following orders:

3.    Pursuant to s 23 of the Federal Court of Australia Act 1976 and rule 7.01 of the [Federal Court Rules], upon the applicant giving the usual undertaking as to damages, until the hearing of this interim application on notice, and thereafter until the determination of these proceedings or earlier order, [CIGA] be restrained from advancing or agreeing to advance or lend any monies, encumbering, selling, assigning or otherwise dealing with registered mortgage AV117889 or exercising any rights in respect of [the Naremburn Property].

4.    Pursuant to s 22 of the Federal Court of Australia Act 1976 and s 74K of the Real Property Act 1900 (NSW), the operation of caveat AV441901 be extended until the determination of these proceedings or earlier order.

8 This was the first occasion and opportunity for a further hearing, with both the Trustee and CIGA present, of those prayers for relief and thus the question of whether the CIGA Freezing Order and the Caveat Order should remain in place until final determination of this proceeding.  CIGA opposes the continuation of those orders.

BACKGROUND FACTS

9 The Trustee was appointed as trustee of the Bankrupt’s estate on 23 January 2019.

10 The Trustee has undertaken public examinations pursuant to the Bankruptcy Act in relation to the Bankrupt’s bankrupt estate.  On 20 August 2024 Ms Macedo was examined in connection with the Bankrupt’s estate (Macedo Examination).

The Naremburn Property

11 At the heart of this proceeding is the Naremburn Property.

12 The contract for sale of the Naremburn Property dated 7 February 1997 records the purchaser as “Deirdre Ann Macedo ATF Amanda Ross” with the words “Raymond Ross on trust for Amanda N Ross” struck through.

13 A stamped transfer dated 7 May 1997 (registered no. 5365014X) in relation to the Naremburn Property shows the transferee as Ms Macedo with the words “in trust for Amanda N Ross” struck through.  Ms Macedo was recorded as and remains as the registered proprietor of the Naremburn Property.

14 The Trustee relies on an affidavit sworn by Ms Macedo on 27 October 2025 in which Ms Macedo says that she holds her interest in the Naremburn Property as trustee.  Ms Macedo refers to two trust documents.

15 The first is a deed dated 7 February 1997 between Ms Macedo (defined as Trustee) and the Bankrupt (defined as Purchaser) (February Deed).  To avoid confusion, reference to “Trustee” in this paragraph and [15] of my reasons, is a reference to Ms Macedo.  The February Deed concerns the Naremburn Property and includes:

(1)    in the “Introduction”:

A.    The Purchaser purchased the [Naremburn Property].

B.    The purchase was made in the name of the Trustee who will be the registered proprietor of the property under the provisions of the Real Property Act 1900.

C.    The purchase has been made by the purchaser with the intention that beneficiaries will be entitled to any profit arising from improvement and sale of the property and the Purchaser will be responsible for any costs associated with ownership of the property.

D.    All purchase funds have been provided by the Purchaser and Marie Ross.

E.    The Purchaser is the legal representative and guardian of three of his adult disabled siblings and father of his two daughters.

(2)    in the operative part of the deed:

1.    The Trustee acknowledges and declares that the [Naremburn Property] was purchased solely by and for the beneficiaries nominated below.

2.    The Trustee will at the request of the Purchaser execute a Transfer and any other documents or do any acts or things required or necessary to have the Purchaser or any nominee of the Purchaser registered as proprietor of the [Naremburn Property].

3.    The Purchaser agrees to indemnify the Trustee (to the extent to which an owner would be liable) for all losses, expenses, costs, or damages which the Trustee has incurred or may incur by purchasing the [Naremburn Property] in its name. In particular, the Purchaser agrees to pay:

(a)    The purchase price for the [Naremburn Property];

(b)    All costs and expenses associated with the purchase;

(c)    All rates, taxes and outgoings from time to time payable for the Property.

4.    The Trustee agrees to pay the beneficiaries for the proceeds of sale.

5.    Beneficiaries

Christopher Ross; Malcolm Ross; Judith. Ross;

Raymond Ross as trustee for Natalie Amanda Ross & Karen Amanda Ross

Raymond Ross as to 1/20 share in the [Naremburn Property].

16 The second is a deed dated 22 May 1997 between the same parties, that is Ms Macedo (defined as Trustee) and the Bankrupt (defined as Purchaser) (May Deed).  The May Deed also concerns the Naremburn Property and includes:

(1)    in the “Introduction”:

A    The Purchaser purchased the property known as [Naremburn Property].

B.    The purchase was made in the name of the Trustee who will be the registered proprietor of the [Naremburn Property] under the provisions of the Real Property Act, 1900.

C.    The purchase has been made by the [P]urchaser with the intention that he will be entitled to any profit arising from improvement and sale of the property and be responsible for any costs associated with the ownership of the property.

D.    All purchase funds has been provided by the [P]urchaser.

(2)    in the operative part of the deed:

1.    The Trustee acknowledges that the [Naremburn Property] was purchased solely by and for the [P]urchaser.

2.    The Trustee will at the request of the Purchaser execute a Transfer and any other documents or do any acts or things required or necessary to have the purchase or any assignee of the Purchaser registered as proprietor of the [Naremburn Property].

…

4.    The Trustee agrees to pay the purchase the proceeds of sale.

17 Ms Macedo did not recall executing the May Deed or why it was necessary given the existence of the February Deed.  She said that she was aware at the time that the February Deed had been misplaced.

18 Ms Macedo gives the following evidence about the mortgages and other encumbrances over the Naremburn Property:

(1)    she is aware that a mortgage had been given against the Naremburn Property in favour of the Commonwealth Bank of Australia (CBA Mortgage);

(2)    she believes that there are no monies owing pursuant to the CBA Mortgage which was paid out by Mr Ross who holds a secured interest in the Naremburn Property;

(3)    she is aware that the Chief Commissioner of State Revenue lodged a caveat on the title of the Naremburn Property for unpaid land tax (Commissioner’s Caveat) and that the Commissioner claimed that $370,012.55 was payable on 9 January 2025 for land tax pursuant to a Land Tax Assessment Notice issued on that date.  Ms Macedo was not aware of the amount due to the Commissioner as at the date she swore her affidavit; and

(4)    she is aware that Mr Ross has lodged a caveat (registered no. AM286347H) on the title of the Naremburn Property (CR Caveat) and that a mortgage was granted to Mr Ross over the Naremburn Property.

19 Ms Macedo’s evidence at the Macedo Examination was that she held the Naremburn Property on trust “for the family”, although she later gave evidence that she “may have held it on trust for” the Bankrupt and that she did not know.

20 Based on a residential property desktop valuation carried out on 23 September 2025, the Trustee says that the Naremburn Property has an estimated value of between $2,481,000 and $3,289,000.

The CR Caveat and the mortgage granted to Mr Ross

21 On 25 November 1999 Ms Macedo granted a power of attorney in favour of the Bankrupt, which was registered in Bk 4256 No 256 on the same day.  On 19 May 2016 Ms Macedo revoked the power of attorney granted in favour of the Bankrupt (Macedo Revocation).  The Macedo Revocation was registered on 24 May 2016 in Bk 4707 No 479.

22 It appears that Ms Macedo granted a mortgage in favour of Mr Ross.  The form of mortgage is dated 30 December 2015 and signed on behalf of Ms Macedo as mortgagor by the Bankrupt as Ms Macedo’s attorney (CR Mortgage).  In doing so the Bankrupt referred to the registered number of the Macedo Revocation suggesting that, despite the form of mortgage being dated 30 December 2015, it was signed after that date and indeed after the date of the Macedo Revocation, being 19 May 2016.  It is also apparent that at the time he executed the CR Mortgage on behalf of Ms Macedo the Bankrupt was on notice of the Macedo Revocation given the inclusion of the registered number of that instrument, rather than the registered number of the applicable power of attorney.

23 Annexure A to the CR Mortgage provides, among other things, that the principal sum to be advanced to Ms Macedo is $2,650,000, the expiry date is 30 December 2016 and interest is to be paid on the principal sum in equal monthly instalments at the rate of 24% per annum provided certain conditions are met.

24 On 4 April 2017 the Bankrupt as attorney for Mr Ross signed a statutory declaration in the CR Caveat. In doing so the Bankrupt again referred to “(Bk 4707 No 479)” (i.e. the registered number of the Macedo Revocation).  There was no evidence to explain why the Bankrupt referred to the Macedo Revocation in purportedly signing the CR Caveat as Mr Ross’ attorney nor was the power of attorney purportedly granted by Mr Ross to the Bankrupt in evidence before me.

25 Insofar as the CR Caveat is concerned, Mr Ross is named as the caveator and his interest in the Naremburn Property is recorded to be as mortgagee pursuant to a mortgage dated 30 December 2015 by which $2,340,000 was advanced to Ms Macedo as “debtor” for a “refinance”.  Duncan Scott, solicitor, lodged the caveat and witnessed the Bankrupt’s signature in the statutory declaration.

26 At the Macedo Examination Ms Macedo’s evidence was to the effect that she did not know whether she had borrowed $2,340,000 from Mr Ross.  She gave the following evidence in response to the questions posed by the Trustee’s solicitor, Mr Lalji:

Mr Lalji:    I see. Could you go back to page 73 of the bundle? Do you remember we talked about this document earlier? This was a caveat registered on behalf of Christopher Ross against the title to the property in your name, 46 Northcote Street, Naremburn. Do you recall we discussed this earlier?

Ms Macedo:    Yes.

Mr Lalji:    And do you recall I asked you whether you entered into a loan agreement borrowing money from Christopher Ross? And do you recall what your answer to that question was?

Ms Macedo:    I don’t remember. I’m not sure. I think I’m not sure, I don’t remember.

Mr Lalji:    Is that your evidence now?

Ms Macedo:    I don’t

Mr Lalji:     that you don’t recall?

Ms Macedo:    I don’t recall.

Mr Lalji:    … entering into any loan agreement with Christopher Ross? Do you think it would be something that you would remember, borrowing $2.34 million from Christopher Ross? …

Ms Macedo:    I don’t know, I don’t recall, I don’t remember.

…..

Mr Lalji:    So, if I asked you what were the circumstances in which you entered into an agreement, apparently based on this caveat, under which you apparently borrowed $2.34 million, your answer to that is that, is it, that, I don’t even know about this agreement? Is that your answer?

Ms Macedo:    Yes. I don’t know.

The Trustee’s Caveat

27 On 22 September 2025 the Trustee instructed his solicitors to register the Trustee’s Caveat.  A title search carried out on that day of the Naremburn Property revealed:

(1)    the following dealings registered on the title of that property:

(a)    the CBA Mortgage;

(b)    a caveat lodged by the Commissioner; and

(c)    the CR Caveat; and

(2)    two unregistered dealings bearing land registry document numbers DM AV117888 (discharge of mortgage) and M AV117889 (mortgage) lodged on 3 June 2025.

CIGA Finance

28 An organisational search of CIGA extracted from the Australian Securities and Investments Commission (ASIC) database on 10 February 2026, recorded that:

(1)    CIGA’s registered office and principal place of business is 1A Carrington Street, Lismore, NSW commencing on 30 January 2026 and 22 January 2025 respectively;

(2)    Paul MacMahon (who seems also to be known as Paul McMahon) and Lyndsey Jean Rawling are both directors.  They were appointed on 1 March 2025 and 28 December 2025 respectively.  Mr McMahon’s address is shown as 232 Flood Reserve Road, Ruthven, NSW and Ms Rawling’s address is shown as 36 Woodlark Street, Lismore, NSW;

(3)    Ms Rawlings is also named as a secretary with Mr McMahon, having been appointed on 28 December 2025; and

(4)    the current shareholders of CIGA are Ms Rawling who holds 750 ordinary shares and Isaac Immanuel Maximus McMahon who holds 800 ordinary shares.

29 The decision of the Court of Criminal Appeal in McMahon v R [2011] NSWCCA 147 was in evidence before me.  It records that:

(1)    on 29 October 2008 Mr McMahon pleaded guilty in the District Court of New South Wales to the following offences (referred to as the identity fraud offences):

(a)    five counts of making a false statement in an application for an Australian passport contrary to s 10(l)(a) of the Passport Act 1938 (Cth);

(b)    seven counts of departing Australia whilst an undischarged bankrupt without the consent of his trustee contrary to s 272(1) of the Bankruptcy Act;

(c)    two counts of making a statement capable of misleading an identifying cash dealer contrary to s 94(4)(aa) of the Financial Transactions Reports Act 1988 (Cth) (FTRA);

(d)    27 counts of operating an account with a cash dealer in false names, contrary to s 24(1) of the FTRA; and

(e)    one count of attempting to open an account with a cash dealer in a false name contrary to s 24(1) of the FTRA and s 11.1 of the Criminal Code 1995 (Cth);

(2)    on 12 November 2008 Mr McMahon pleaded guilty in the District Court to the following offences (referred to as the tax fraud offences):

(a)    15 counts of dishonestly obtaining a financial advantage from a Commonwealth entity by deception, contrary to s 134.2 of the Criminal Code; and

(b)    24 counts of attempting to dishonestly obtain a financial advantage from a Commonwealth entity by deception, contrary to s 11.1 and s 134.2 of the Criminal Code;

(3)    in addition, there were 35 summary offences relating to the making of false statements to the Australian Electoral Commission in applications for registration on the Electoral Roll referred to the sentencing court pursuant to s 166 of the Criminal Procedure Act 1986 (Cth) to be dealt with as charges related to the identity fraud offences;

(4)    on 25 September 2009 Mr McMahon was sentenced in the District Court to an “effective aggregate head sentence” of six years commencing on 25 September 2009 and expiring 24 September 2015.  The sentencing court also fixed a single non-parole period of four years commencing on 25 September 2009 and expiring 24 September 2013; and

(5)    Mr MacMahon’s appeal from the severity of the sentences passed by the sentencing court was dismissed.

Assignment of the CR Mortgage to CIGA Finance

30 Mr McMahon also gave evidence.  He is a self-described entrepreneur and businessman with a considerable interest in real property and real estate finance.  Since 2019, through CIGA, he has provided short terms loans to distressed borrowers.

31 One such referral came from Suellen Rushbrook and Greg Dobe, real estate agents, who in April 2025 mentioned the Naremburn Property to Mr McMahon during a coffee catch-up.  They mentioned that the mortgagee was looking to “exit” the property and indicated that if Mr McMahon was prepared to acquire the debt they could introduce several interested purchasers.  Mr McMahon expressed his interest and Mr Dobe gave him the Bankrupt’s details.

32 Mr McMahon contacted the Bankrupt who explained that he was assisting Mr Ross, who was overseas, to organise a refinance of his mortgage over the Naremburn Property, which was in default.  The Bankrupt also explained that Mr Ross did not wish to take enforcement steps as the mortgagor was a family member but that there was sufficient equity in the Naremburn Property to recoup the principal and interest owing.  More specifically the Bankrupt informed Mr McMahon that:

(1)    the loan represented several payments of different amounts over about a two year period, including payments to discharge a loan from the Commonwealth Bank of Australia, which totalled $2,650,000;

(2)    the loan advances were made over a 10 year period;

(3)    a loan agreement and mortgage form had been signed following the advance of the loans to formalise the payments made by Mr Ross over the years; and

(4)    Mr Ross was happy to assign the mortgage to recoup his principal amount loaned and assign the interest component.

33 Mr McMahon saw an opportunity to buy out Mr Ross’ loan and recoup the funds by way of a mortgagee sale.  He had the means to raise the capital to pay for the assignment and take over the loan to obtain the benefit of the accrued interest.

34 On or about 27 May 2025 Mr McMahon spoke with Ms Rushbrook and Mr Dobe who provided informal verbal appraisals that the Naremburn Property was valued at around $5,500,000 and informed Mr McMahon that they had a potential buyer at that sale price after the assignment had taken place.

35 After Mr McMahon undertook his due diligence, he had a call with the Bankrupt and Mr Ross during which he set out the terms of his offer to acquire Mr Ross’ mortgage for $2,650,000.  Mr McMahon indicated that to reduce costs, they could organise the documents themselves and appoint lawyers to “carry out the actual transfer of mortgage and other legal requirements” that they could not do themselves.  Mr McMahon said that Mr Ross agreed to his terms.

36 On or about 1 June 2025 Mr McMahon provided the Bankrupt with a deed of assignment of debt and securities for Mr Ross to sign.  The deed of assignment provided that CIGA pay “Consideration” of $2,635,000 to Mr Ross and that Mr Ross as assignor “assigns and transfers absolutely all of its right title and interest in the Debt and Securities” (defined therein) with effect from 1 June 2025, being the effective date under the deed of assignment.

37 The Bankrupt returned an executed copy of the deed of assignment.

38 During early September 2025, when the payment date for the Consideration under the deed of assignment was approaching Mr McMahon conducted a title search on the Naremburn Property and found the CBA Mortgage, the Commissioner’s Caveat and the CR Caveat lodged on the title as well as several unregistered dealings which were unspecified on the title search.  Upon inquiring with the Bankrupt about these dealings and why Mr Ross’ mortgage was not registered, the Bankrupt informed Mr McMahon that:

(1)    Mr Ross paid out CBA as part of his loan and was provided with a discharge of mortgage form by CBA at the time in 2015 which was intended to be registered on title alongside his mortgage back in 2015.  However, because of the Commissioner’s Caveat, which Mr Ross did not have the funds to clear at the time, he registered the CR Caveat to note his interest until such time as he had sufficient funds to pay out the Commissioner;

(2)    shortly after exchange of the deed of assignment in June 2025, Duncan Scott Solicitors were instructed to organise the registration of Mr Ross’ mortgage to effect the transfer of mortgage to CIGA; and

(3)    registration of Mr Ross’ mortgage and the discharge of the CBA Mortgage were requisitioned by New South Wales Land Registry Services (NSWLRS) because of the Commissioner’s Caveat and the CR Caveat.

39 It seems that Mr McMahon was not concerned by any of these issues, which were new to him.  He informed the Bankrupt and Mr Ross that in order to clear the title, they would need to pay out the Commissioner so that the Commissioner’s Caveat could be removed.  Mr McMahon informed the Bankrupt that part of the assignment sum could be paid to the Commissioner to clear the land tax debt on behalf of Mr Ross, given it was his responsibility as assignor to provide CIGA as assignee with clear title. The Bankrupt subsequently informed Mr McMahon that Mr Ross agreed to proceed in this way.

40 According to Mr McMahon the Bankrupt and Mr Ross mentioned that Duncan Scott Solicitors were having difficulty dealing with the requisitions on title and effecting the registration of the discharge of the CBA Mortgage and Mr Ross’ mortgage, and that they were seeking new legal representation to assist to resolve these issues.  Mr McMahon requested that they provide him with an update on their progress and they agreed, in principle, that to allow the Bankrupt and Mr Ross to deal with these issues, payment of the Consideration would be extended to 31 December 2025.

41 In light of these events Mr McMahon paid the Consideration to Mr Ross in the following way:

(1)    on 29 September 2025, $200,000.62 to the Commissioner in part payment of the land tax owing;

(2)    on 29 September 2025, $1,498,000 into the trust account of Mars Legal, who were acting for Mr Ross in relation to the assignment.  I pause to note that Mars Legal act for CIGA in this proceeding.  Mr McMahon says that those moneys were initially paid by CIGA to 360 Legal, who act for him and CIGA in other matters, and then transferred to Mars Legal;

(3)    on 1 October 2025, $194,000 to the Commissioner in final payment of the land tax to remove the Commissioner’s Caveat.  Those funds were paid on behalf of CIGA by a capital investor; and

(4)    on 29 December 2025, $747,000 to Mr Ross via two separate transactions of $1,000 and $746,000.

42 On 17 October 2025 the withdrawals of the Commissioner’s Caveat and the CR Caveat, which had been lodged via PEXA on 15 October 2025, were registered.

43 Mr McMahon understands that, once the caveats had been withdrawn, on 17 October 2025 the discharge of the CBA Mortgage and Mr Ross’ mortgage, which had been sitting as unregistered dealings on title since June 2025, were subsequently automatically registered by NSWLRS as was the Trustee’s Caveat (see above).  Mr McMahon was not aware of the Trustee’s Caveat or this proceeding until after the deed of assignment and payment of the Consideration under it.  The search that he carried out in September 2025 only identified unregistered dealings, but not who had lodged them or what they concerned.  Mr McMahon relied on the information provided by the Bankrupt in September 2025 as to what those unregistered dealings concerned and, given his explanation, was not concerned about them.

44 On 24 October 2025 the transfer of mortgage to CIGA was registered.

45 Mr McMahon became aware of the Trustee’s claim in relation the Naremburn Property upon becoming aware of this proceeding on 23 January 2026.

46 In the meantime, on 1 November 2025 CIGA commenced enforcement action by serving a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) on Ms Macedo.  On or around 20 March 2026, a s 57(2)(b) notice was also served on the Trustee.

Proposed sale of the Naremburn Property

47 On or about 1 December 2025 CIGA took possession of the Naremburn Property.

48 On or around 21 December 2025 Mr McMahon obtained a valuation of the Naremburn Property which estimated its value at $5,400,000.  Mr McMahon did not offer the Naremburn Property for sale by public auction.  Rather he relied on potential purchasers introduced by Mr Dobe or otherwise known to him.  He spoke to about three prospective purchasers and eventually proceeded with the highest offeror, Ninth Night Productions Pty Ltd ACN 633 990 208 as trustee for The B.l.G Company Trust, at $5,535,000, which was higher than the estimated value in the valuation report.

49 Claudia Jan Castle is the sole director, secretary and shareholder of Ninth Night.

50 CIGA entered into a contract for sale of the Naremburn Property with Ninth Night as purchaser with the sale price to be paid in instalments prior to the date of final settlement on 16 July 2026.  The contract is not dated.  Clause 39.2 of the contract for sale sets out the instalment amounts and their respective due dates as follows:

* First instalment of $275,000 on or before 16 January, 2026;

* Second instalment of $225,000 on or before 16 March, 2026;

* Third instalment of $1,000,000 on or before 16 May, 2026; and

* Fourth and final instalment of $4,035,000 on or before 16 July, 2026.

Mr McMahon said that these dates were estimates only and that, because he has an enforceable contract, he is not concerned by any changes in the timeframes, which he understands may change.

51 According to Mr McMahon, on 30 January 2026 and 5 March 2026 Ninth Night paid instalments of $78,500 and $855,000 respectively to CIGA and the funds were released to CIGA in accordance with the terms of the contract for sale.  CIGA has since used those funds in the ordinary course of its business.  At the hearing it was agreed between the parties that the sum of $78,500 came from an account in the name of Immocor Pty Ltd ACN 691 428 243 and the sum of $855,000 came from an account in the name of Fine Cotton Pty Ltd ACN 693 910 842.

52 Ms Castle is the sole director, secretary and shareholder of Fine Cotton.  Mr McMahon is the sole director, secretary and shareholder of Immocor.  The registered office address for Fine Cotton is 36 Woodlark Street, Lismore, NSW and since 18 February 2026 the registered office address for Immocor is care of WCA Chartered Accountants at 62 Woodlark Street, Lismore, NSW.  Prior to that date Immocor’s registered office was also at 36 Woodlark Street, Lismore, NSW.

53 Mr McMahon gives the following evidence about the effect of a continuation of the CIGA Freezing Order and the Caveat Order on CIGA:

(1)    it will be unable to complete the sale to Ninth Night;

(2)    if so, Ninth Night will likely serve a notice to complete and eventually terminate the contract for sale.  CIGA will be exposed to a claim for damages including for Ninth Night’s wasted costs and any consequential loss;

(3)    CIGA may need to incur legal costs in defending any claim by Ninth Night;

(4)    CIGA will have to repay payments made to date pursuant to the contract for sale to Ninth Night; and

(5)    CIGA will lose the benefit of the sale of the Naremburn Property (i.e. the amount it will realise above the Consideration paid pursuant to the deed of assignment (approximately $1,600,000) and the opportunity to reinvest that amount in its business, pending resolution of this proceeding).

THE TRUSTEE’S PLEADED CASE

54 By his further amended originating application filed 31 March 2026 the Trustee seeks, among other things:

(1)    a declaration that all of Ms Macedo’s right, title and interest in the Naremburn Property was held by her on trust for the Bankrupt at all relevant times such that the Bankrupt’s right, title and interest in the Naremburn Property vested in the Trustee or, in the alternative, a declaration pursuant to s 121 of the Bankruptcy Act that the transfer and registration of the Naremburn property into Ms Macedo’s name is void against the Trustee; and

(2)    a declaration pursuant to s 121 of the Bankruptcy Act 1966, or alternatively s 37A of the Conveyancing Act 1919 (NSW), that registered mortgage AV117889 over the Naremburn Property is void as against him and a declaration that CIGA was not and is not entitled to exercise any power of sale pursuant to that mortgage.

55 The Trustee relies on a statement of claim in which, in summary, he alleges that:

(1)    Ms Macedo holds the Naremburn Property as trustee for the Bankrupt either pursuant to an express trust or alternatively on a resulting or constructive trust;

(2)    in the alternative, the transfer and registration of the Naremburn Property to Ms Macedo is void against the Trustee pursuant to s 121 of the Bankruptcy Act;

(3)    the mortgage in favour of Mr Ross was executed by the Bankrupt as attorney for Ms Macedo at a time when he had actual notice that his authority as attorney had been revoked.  After its execution, the Bankrupt altered the date of the mortgage, and no moneys were advanced by Mr Ross pursuant to his mortgage and thus that mortgage was “empty”;

(4)    further the main purpose of the mortgage in favour of Mr Ross and the steps taken by the Bankrupt to put it in place, including by registration of the CR Caveat, was to defraud prevent, hinder and delay the Bankrupt’s creditors.  Accordingly, that mortgage is void against the Trustee pursuant to s 121 of the Bankruptcy Act;

(5)    by reason of the matters in (3)-(4) above, there has been no default of the covenants in the mortgage in favour of Mr Ross, which was transferred to CIGA by transfer registered on 24 October 2025, and by reason of the fact that CIGA did not serve a notice pursuant to s 57(2)(b) of the Real Property Act on the Trustee, CIGA was not and is not entitled to exercise its power of sale under the mortgage; and

(6)    accordingly, any purported sale of the Property by CIGA as mortgagee is invalid and does not bind the equity of redemption of the mortgagor or the Trustee.

56 CIGA has filed a defence.

CONSIDERATION

57 The first basis on which CIGA says that the CIGA Freezing Orders should be set aside is because of alleged material non-disclosures on the part of the Trustee at the time the Court heard the application for, and made, the CIGA Freezing Orders.  The material non-disclosures are alleged to have arisen in the Trustee’s written submissions relied on for the purpose of the ex parte application (January Submissions).

58 Where a party seeks an injunction ex parte, it has a duty of candour and must bring to the Court’s notice all material facts to the determination of the right to an injunction including those that the absent party might have relied on in its defence: see Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681-682 (Isaacs J).

59 In Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134, on an application to discharge freezing orders made under s 1323(3) of the Corporations Act for material non-disclosure, Stewart J said at [10]-[11]:

10    Dealing first with the alleged non-disclosures, it is uncontroversial that on an ex parte application the plaintiff has a duty of candour to bring to the attention of the court “all the material facts which [the absent] party would presumably have brought forward in his defence to that application”: Thomas A Edison Ltd v Bullock [1912] HCA 72; 15 CLR 679 at 682; International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [131]. Just what is material in this context has been put in different ways in the authorities, but I do not consider that there is anything of substance in the differences.

11    I adopt what was said in Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; 12 VR 639 at [35] by Gillard AJA (with whom Ormiston and Buchanan JJA agreed), namely that what is a material factor is a matter which is relevant to the court’s determination – it would have to be a matter of substance in the decision-making process. I take that to mean that the matter must be material in the sense of being capable of having affected the court’s decision, and not that it would have affected the decision.

60 I address each of the alleged non-disclosures in the January Submissions below.

61 The first is said to arise in [8] of the January Submissions where the Trustee submitted that “[o]n 7 February 1997, the Bankrupt entered into a contract to purchase [the Naremburn Property]”.  CIGA submits that the footnote to that submission refers to the front page of the sale contract but that the January Submissions did not mention that the purchaser details section of the contract includes the words “Raymond Ross in trust for Amanda N Ross”, which have been struck out, and the words “Deirdre Ann Macedo ATF Amanda Ross”, which have not been struck out.   I accept that the January Submissions did not squarely explain the detail of the evidence, namely that on the face of the contract the identity of the purchaser changed.  However, that would have been apparent upon a review of the evidence.  To the extent there was an omission it was not in my view material given the reliance on Ms Macedo’s affidavit and the fact that the Court’s attention was drawn to the relevant annexure to that affidavit.

62 CIGA submits that the second material non-disclosure concerns [9] of the January Submissions where the Trustee submitted that “[o]n 22 May 1997, the Bankrupt and Ms Macedo executed a deed declaring that the [Naremburn Property] is held on trust for the Bankrupt”.  CIGA submits that this submission did not draw to the Court’s attention: the annotations on the contract for sale; the existence of the February Deed; or the findings made by the Administrative Decisions Tribunal (since 2014 the NSW Civil and Administrative Tribunal) (ADT) in Ross v Chief Commissioner of State Revenue (No 2) [2010] NSWADT 51 (Ross ADT) at [7] and [33] that “under the terms of the contract at settlement, the Property was purchased by ‘Raymond Ross as trustee for Amanda N. Ross’”.

63 Once again, I accept that these matters were not brought to the Court’s attention.  Rather, the submission drew the Court’s attention to the May Deed.  The other pieces of evidence identified by CIGA were in the Trustee’s evidence but not identified in his written submissions.  It seems that the Trustee only pointed to the evidence on which he would seek to rely to make out his case that the Naremburn Property is held on trust for the Bankrupt, and not other evidence which might lead to a different conclusion.  In my view, in doing so the Trustee failed to disclose in a clear way (as opposed to having the material included in the documentary evidence otherwise relied on) evidence that was relevant to the Court’s determination and that was capable of affecting the Court’s decision.

64 The third alleged material non-disclosure is in [11] of the January Submissions where the Trustee submits “that the Bankrupt paid the deposit and made all of the mortgage repayments”.  CIGA submits that the footnote reference to that submission was p.113 of Exhibit AJB-1 to the Trustee’s affidavit which was a page from the transcript of the Bankrupt’s cross-examination in Ross ADT.  The Trustee says this only relevantly refers to the Bankrupt discharging loans in Ms Macedo’s name and does not refer to the source of moneys for the deposit.  CIGA submits the January Submissions omitted evidence before the ADT about the source of the deposit and the balance of the funds to acquire the Naremburn Property, and that there is no evidence of any bank finance used to acquire the Naremburn Property.

65 The relevant transcript was in evidence on the ex parte application and the matters about which CIGA complains would be easily identified upon an examination of the page to which the Court’s attention was drawn.  Putting that to one side it does seem to me that the details identified would have been matters of substance in the determination of the application such that they amount to a material non-disclosure.  In any event that the deposit was provided by the Bankrupt and his wife in fact assists the Trustee’s case.

66 The final alleged material non-disclosure is in [28] of the January Submissions where the Trustee submitted that “there is no evidence that [Mr Ross] advanced any monies under the [CR Mortgage]” and “Ms Macedo denied borrowing money from him”.  CIGA submits that in her affidavit Ms Macedo notes that Mr Ross paid out her CBA Mortgage, which is supported by the contemporaneous bank records annexed to Ms Macedo’s affidavit.  CIGA also submits that it was inaccurate to give an impression that Ms Macedo had squarely denied any borrowings.  The footnote reference for this submission is to certain pages of the transcript for the Macedo Examination, and a review of the referenced portions makes clear that Ms Macedo was simply unsure of what had occurred.

67 True it is that Ms Macedo says in her affidavit that Mr Ross paid out the mortgage in favour of the CBA and it appears from bank statements annexed to Ms Macedo’s affidavit that the sum of $124,238.78 was paid by Mr Ross to Bankwest on 27 July 2015 and that the same amount was applied to a home loan account in Ms Macedo’s name on 29 July 2015 reducing that account to zero.  However, while that is evidence of funds being advanced to Ms Macedo, it is not evidence that those funds were advanced under the CR Mortgage.

68 As to the characterisation of Ms Macedo’s evidence, I accept that the Trustee put it at its highest when a more accurate description may have been that Ms Macedo was unsure or perhaps confused about what had occurred.

69 In the circumstances of an ex parte application, it was more appropriate for the Trustee to have presented a more balanced view of the evidence.  While this may not amount to a material non-disclosure, it was in my view imprudent.

70 I have found that there was a failure on the part of the Trustee to disclose material facts that would be capable of affecting the Court’s decision.  Whether I would set aside the CIGA Freezing Orders as a result of that failure is a matter of discretion: see Savcor Pty Ltd v Cathodic Protection International Aps [2005] VSCA 213; (2005) 12 VR 639 at 640 (Gillard AJA, Ormiston and Buchanan JJA agreeing).  In the exercise of my discretion on this occasion, I would not do so.  There is no evidence that the non-disclosure was intentional.  Indeed, given the volume of material provided to the Court in support of the ex parte application that could not be said to be the case.  Further, the matters which the Trustee failed to disclose were not so important that they would have made a difference to the Court’s determination of that application.  In fact, a review of the transcript of the hearing of the ex parte application suggests that, at the time, the Court was focussed on other aspects of the evidence before it: see Barnden (Trustee), in the matter of Ross (Bankrupt) v Macedo (No 2) [2026] FCA 8 at [7]-[9] (Younan J).

71 I turn to consider whether the CIGA Freezing Order should continue or, as CIGA submits, otherwise be discharged.

72 It was not in dispute that the Trustee bears the onus of satisfying the Court that the ex parte interim injunction should be extended.  In doing so the Trustee must establish that he has a prima facie case for the relief he seeks and that the inconvenience he would likely suffer if the injunction is refused will be outweighed by the injury to the respondent, in this case CIGA, in the event an injunction is granted: see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ) citing Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622-623 (Kitto, Taylor, Menzie and Owen JJ).  Relevantly, their Honours observed that for the purposes of establishing a prima facie case “it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”.

73 The Trustee’s allegation that the Naremburn Property is held by Ms Macedo on trust for the Bankrupt turns in part on the allegation that the Bankrupt paid the whole of the purchase price for that property at the time of its acquisition.  That allegation is not particularised.

74 However, the Trustee relies on evidence given by the Bankrupt on 29 January 2010 in a proceeding in the revenue division of the ADT between the Bankrupt and the Commissioner before Judicial Member Verick.  The question before the ADT in that proceeding was whether an undated transfer of the Naremburn Property from Ms Macedo to the Bankrupt was dutiable to a nominal amount of $10 pursuant to s 55(1)(b) of the Duties Act 1997 (NSW) or liable to ad valorem duty.  Section 55(1)(b) of the Duties Act provided that duty of $10 was chargeable for “a transfer of dutiable property from an apparent purchaser to the real purchaser, in a case where dutiable property is vested in an apparent purchaser upon trust for the real purchaser who provided money for the purchase” of the property.

75 In particular the Trustee relies on the following evidence given by the Bankrupt:

Also part of the annexure I is a Bank West statement which shows that I have been making the periodical payments to the home loan on Naremburn property the current one. So I took out a current home loan which I have been repaying since it was taken out.

In response to a question by Member Verick about when the Bankrupt took out the loan, the Bankrupt responded:

Back in 2000 I think ’99 or 2000 and I have paid that loan myself ‘till today and I continue to pay that out of my account, out of the Bank West equity access statement account.

The exchange continued between the Commissioner’s legal representative and the Bankrupt as follows:

Q.    Sorry, Mr Ross, what was that?

A.    The first page shows a payment to a family member a repayment of $106,000 on 18 June ’98.

Q.    What about the next page.

A.    The next one is a record of payments to Bank West paying a loan in the name of Deidre Mecedo (sic) which is a family member.

Q.    Deidre Mecedo (sic) never lent you any money to buy the property.

A.    No, but I took a loan in her name because she was the registered person on title and I have paid that loan since the very beginning and continue to pay that loan and that is the evidence which shows that I’m paying the loan.

Q.    That’s right, so you were paying Bank West, so these statements here show you’re paying Bank West.

A.    For a loan in Deidre Mecedo’s (sic) name.

76 The Bankrupt’s evidence before the ADT was that he took a loan in Ms Macedo’s name as she was the registered proprietor of the Naremburn Property, but he made the loan payments. The ADT did not determine the proceeding in the Bankrupt’s favour.  The ADT determined the matter on the basis of its finding that Ms Macedo was not the “apparent purchaser” but the transferee.  That was because the Bankrupt’s evidence was that he altered the name of the purchaser to Ms Macedo after settlement from “Raymond Ross as trustee for Amanda N Ross”.  Thus, the purchaser was the latter not the former.

77 For completeness the ADT also considered the Commissioner’s submissions that the Bankrupt did not in fact provide his own funds to purchase the Naremburn Property and found that the Bankrupt failed to produce the evidence necessary to establish that the purchase monies were loans to him which he since repaid.

78 While the matters referred to above are not conclusive, they raise a question as to who paid for the Naremburn Property and by whom it was in fact purchased.  There is other evidence before me about that question, namely the February Deed and the May Deed based on which it appears that Ms Macedo held the Naremburn Property on trust either for the Bankrupt or for a number of beneficiaries.  Ms Macedo’s evidence given at her public examination seemed to suggest the latter was the case.

79 CIGA submits that, as pleaded by the Trustee, there is no evidence that the Bankrupt provided all of the acquisition costs for the Naremburn Property when first acquired.  That may be so but, contrary to CIGA’s submission, that is not fatal to the Trustee’s application for interim relief or his case.  There is some evidence that the Bankrupt repaid some of the loans taken out to finance the purchase and there is a real question, based on the evidence before me, about the beneficial ownership of the Naremburn Property.  There is a sufficiently arguable case that the Naremburn Property was purchased and held on trust for the benefit of the Bankrupt in whole, or alternatively, in part.

80 CIGA submits that the alternate case pleaded by the Trustee pursuant to s 121 of the Bankruptcy Act has not been properly pleaded and it is difficult to understand how it could be given the facts of the case. However, the only evidence before me is the contract for sale and the transfer for the Naremburn Property which respectively record Ms Macedo “ATF Amanda Ross” as purchaser and Ms Macedo “in trust for Amanda W Ross” with the latter words struck through as transferee.  That, coupled with the conflicting evidence about on whose behalf the Naremburn Property was in fact purchased, is sufficient to support an arguable case under s 121 of the Bankruptcy Act.

81 To the extent that CIGA’s complaints addressed above concern alleged deficiency in the statement of claim, they are matters that may be considered on a different application but do not detract from an assessment of the evidence that is currently before me.

82 The final issue raised by CIGA is the mortgage purportedly granted in favour of Mr Ross.  There is in my view a prima facie case, in the sense that there is a sufficient likelihood of success, that the transaction is void.  The CR Mortgage was signed by the Bankrupt at a time when it is arguable or indeed, likely, that the Bankrupt had notice of the Macedo Revocation.  If the CR Mortgage is found to be void there is a real question about the effect of the alleged assignment of that mortgage to CIGA.

83 That Ms Macedo has given evidence that she believes that “a [mortgage] has been given against the Naremburn Property in favour of [Mr Ross]” does not amount to an acknowledgement of the existence of the mortgage or, more critically, that it was validly given or a ratification of the Bankrupt’s authority to grant it in circumstances where at the time it was granted, it is apparent that the Bankrupt had no authority to act on Ms Macedo’s behalf.  CIGA points to no authority for that proposition.

84 It follows from the above that I am satisfied that the Trustee has made out a prima facie case for the relief he seeks.

85 CIGA accepts having found that there is prima face case, I am likely to consider it is appropriate to take steps to preserve the property in question.  That is so.  I am satisfied that the detriment to the Trustee if the freezing order is not continued in some form outweighs any harm to CIGA.  Further, the Trustee has given and will, upon a continuation of the CIGA Freezing Orders (or a variation of them), continue to give an undertaking as to damages in the usual form.

86 However, CIGA submits that the balance of convenience does not warrant orders which will prevent it from completing the sale of the Naremburn Property.  It submits that the appropriate course will be for the sale of the Naremburn Property to complete and a specified amount of the sale proceeds be preserved, by deposit into an interest-bearing controlled money account.

87 I accept that the sale of the Naremburn Property should proceed.  Although there is arguably a connection between the purchaser, Ninth Night, and CIGA, a contract for sale for the Naremburn Property has been entered into at a price about which the Trustee makes no complaint and which is higher than the valuation last obtained by the Trustee.  The Trustee does not oppose the sale proceeding to completion.

88 CIGA submits that the Trustee’s pleaded case is that the Bankrupt “provided all of the funds for the purchase of the” Naremburn Property but on his own submissions only identifies payment of the deposit and mortgage repayments, the latter of which are not acquisition costs. CIGA contends that therefore, if there is a prima facie case (which is denied) arising from a trust referable to the Bankrupt’s contribution to the acquisition costs, it could at most only rise to an interest in the Naremburn Property commensurate with the 10% deposit on the purchase of the Naremburn Property in 1997.

89 CIGA submits that in those circumstances, if freezing orders are to continue, the only property which needs to be preserved is that potential 10% interest.  As the Naremburn Property is to sell for $5,535,000, only $553,500 should be quarantined.

90 I reject that submission.

91 The Trustee has established a prima facie case that the whole of the Naremburn Property is held on trust for the Bankrupt and, in the alternative, a part only.  To the extent that the Trustee only establishes the latter, there is a degree of uncertainty as to the proportion of the property held on trust for the Bankrupt.  In the alternative the Trustee seeks to establish his case under s 121 of the Bankruptcy Act.

92 The evidence before me is that a portion of the purchase price for the Naremburn Property has been paid and those funds (which in part seem to have come from a bank account held by a company in Mr McMahon’s control) have been used by CIGA in the ordinary course of its business.  Therefore, I propose that the order to be made concern only the balance of the purchase price to be paid pursuant to the contract for sale of the Naremburn Property.  Those funds should be paid to the Trustee’s solicitors to be held in an interest-bearing controlled money account in the joint names of the Trustee and CIGA until the conclusion of this proceeding, rather than the monies being paid into Court as suggested by the Trustee.

93 The CIGA Freezing Orders should be varied so that they permit the sale of the Naremburn Property to Ninth Night to proceed to settlement and upon the finalisation of the sale, they are to be discharged and replaced with an order to the effect of that set out in the preceding paragraph.  The Caveat Order will remain in place.

94 That leaves the question of costs.  As the Trustee has been successful, he should have his costs of and incidental to the hearing before me on 20 May 2026.

95 The parties are to provide my Associate with draft orders giving effect to these reasons and, in particular to [92]-[94] above, by 4.00 pm on 29 June 2026.  If they are unable to agree on the form of orders, they should provide their competing proposed orders by the same time and I will resolve any differences between them at a case management hearing which will take place shortly thereafter.

96 I will make orders accordingly.

Associate:

Dated:    25 June 2026