Federal Court of Australia

Latham v Greenwich [2026] FCA 1142

ORDERS

THE COURT ORDERS THAT:

1.    Prayer 6 of the respondent’s interlocutory application for a freezing order in the terms set out in amended annexure A provided to the Court on 10 August 2026 be dismissed.

2.    The respondent pay the appellant’s costs in an amount to be agreed or assessed.

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

REASONS FOR JUDGMENT

STELLIOS J:

iNTRODUCTION

1    These reasons address prayer 6 of an interlocutory application for a freezing order that came before me as Duty Judge. The interlocutory application was filed in a Full Court proceeding by the respondent, Mr Greenwich, against the appellant, Mr Latham. The Full Court has heard and, subject to the question of costs to be determined on the papers, has determined the appeal: Latham v Greenwich [2026] FCAFC 82.

2    A single judge of this Court may make an interlocutory order pending, or after, the determination of an appeal to the Court if the Full Court considers it appropriate: ss 25(2B)(ab) and 25(2BB)(b) of the Federal Court of Australia Act 1976 (Cth). The Full Court has agreed that the application should be determined by a Duty Judge.

3    By way of an amended annexure to the interlocutory application provided to the Court on the morning of the hearing on 10 August 2026, Mr Greenwich seeks a freezing order over Mr Latham’s assets up to an unencumbered amount of $1,000,000, comprised of:

(1)    the damages awarded to Mr Greenwich by the primary judge in Greenwich v Latham [2024] FCA 1050 and the costs and disbursements (assessed at 70% of the costs incurred) of the proceeding before the primary judge and for the Full Court appeal;

(2)    the damages awarded to Mr Greenwich in relation to the New South Wales Civil and Administrative Tribunal (NCAT) proceedings reported as Greenwich v Latham [2026] NSWCATAD 121; and

(3)    Mr Greenwich’s present work in progress costs and anticipated costs in relation to the High Court special leave application from the Full Court’s decision, the appeal from NCAT’s decision and pending NCAT contempt proceedings against Mr Latham.

4    At the heart of Mr Greenwich’s application is that Mr Latham has taken steps to sell his residential property (Mount Hunter Property). The Mount Hunter Property is presently publicly listed for sale. A copy of the executed agency agreement, dated 22 May 2026, has been put into evidence by Mr Latham’s solicitors.

5    Mr Greenwich’s central concern is that the Mount Hunter Property will not be sold at fair market value and, even if sold for fair value, the proceeds will be dissipated. To address those concerns, Mr Greenwich’s proposed orders in his amended interlocutory application permit Mr Latham to sell, or cause to be sold, the Mount Hunter Property at fair market value, with the proceeds of sale (less any payments to any registered mortgagor, adjusted on settlement, and reasonable payments associated with achieving the sale) to be held in a solicitor’s trust account or controlled monies account until the Court orders otherwise.

6    Mr Greenwich invites the Court to infer that there is a real danger that Mr Latham’s assets (particularly the Mount Hunter Property or the proceeds from its sale) will be dissipated below market value or otherwise dealt with illegitimately or inappropriately because of Mr Latham’s past conduct and present refusal to give undertakings requested by Mr Greenwich.

7    For the following reasons, I am not satisfied that Mr Greenwich has discharged his burden to establish a basis for the making of the proposed freezing order. Accordingly, prayer 6 of the amended interlocutory application is dismissed with costs.

the hearing

8    The interlocutory application was listed before me on 10 August 2026. Counsel for Mr Greenwich moved on the amended interlocutory application. No objection was taken to Mr Greenwich’s reliance on the amended version of the application.

9    Ahead of the hearing, the parties filed written submissions and supporting affidavits. Mr Greenwich relied on two affidavits of Joanne Sanders, Mr Greenwich’s solicitor, affirmed respectively on 27 July 2026 and 30 July 2026. The affidavits were read, and associated exhibits were tendered, without objection. Mr Greenwich also tendered, without objection, a number of other documents, including transfer documents and a historical title search in relation to the Mount Hunter Property.

10    In opposition to the amended interlocutory application, Mr Latham’s counsel read, without objection, the affidavit of Zali Burrows, Mr Latham’s solicitor, affirmed on 7 August 2026.

principles

11    Section 23 of the Federal Court Act provides that the Court has power, in relation to matters within its jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That provision authorises the making of freezing orders: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [26] (Gaudron, McHugh, Gummow and Callinan JJ), as does the implied power that the Court has as a superior court: see Deputy Commission of Taxation v Huang [2021] HCA 43; 273 CLR 429 at [16] (Gageler, Keane, Gordon and Gleeson JJ). Those powers are supplemented by Div 7.4 of the Federal Court Rules 2011 (Cth) which are directed to the making of freezing orders: see Huang at [16].

12    Rule 7.32 of the Rules provides the following (emphasis added):

(1) The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.

(2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

13    Rule 7.35 relevantly provides (emphasis added):

(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

…

(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) …

(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, or prospective judgment debtor or another person absconds;

(b) the assets of the judgment debtor, or 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.

14    “Another court” is defined in r 7.31 as “a court outside Australia or a court in Australia other than the Court”.

15    Nothing in r 7.35 affects the power of the Court to make a freezing order (or ancillary order) if the Court considers it is in the interests of justice to do so: r 7.35(6). A similar provision is contained in r 7.36, which reads “[n]othing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order”: see Huang at [21] and [24]; Shenzhen Xinhe Hongshi Investment and Consultancy Co Ltd v Shandong Ruyi Technology Group Co Ltd (No 2) [2025] FCA 1471 at [12] (Stewart J).

16    The purpose of a freezing order is to prevent an abuse or frustration of the Court’s process: Basi v Namitha Nakul Pty Ltd [2019] FCA 743 at [7] (Wigney J); r 7.32(1) Rules. Its purpose is not to “provide security for a judgment which the applicant hopes to obtain and fears might not be satisfied”: UFC Enterprise Morley Pty Ltd v UFC Enterprise Northbridge Pty Ltd [2024] FCA 1396 at [13(6)] (Feutrill J); see Cardile at [51] (Gaudron, McHugh, Gummow and Callinan JJ), citing Frigo v Culhaci [1998] NSWCA 88 at 10 (Mason P, Sheller JA, Sheppard AJA).

17    The onus rests on the applicant to establish sufficient facts to justify the making of an order. The requisite degree of satisfaction, and the level to which the Court must be persuaded, are heightened by the intrusive nature of the order on the subject’s capacity to deal with their property. Consequently, a freezing order has been described as a “drastic remedy” which should not be “lightly granted”: Frigo at 10 cited with approval in Cardile at [51].

18    The operation of rr 7.32 and 7.35 is conditioned by the limitation that the Court must be satisfied that there is a “danger that [the relevant] judgment … will be wholly or partly unsatisfied”. That limitation “also corresponds with the scope of the Federal Court’s general powers to make a freezing order”: Huang at [18].

19    The existence of a danger (or risk, see UFC Enterprise at [13(3)]) of the relevant kind is, consequently, a threshold condition for the exercise of power. Accordingly, as Stewart J said in Shenzhen (at [9]):

It is therefore incumbent on an applicant for a freezing order to establish that there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied unless the freezing order is made.

20    In Wei v Robba (Trustee), in the matter of Zhu (Bankrupt) [2026] FCA 802, Meagher J explained that the evaluative judgement is to be undertaken in the following way (at [19]) (emphasis in original):

the evidence must establish “facts from which a ‘prudent, sensible commercial’ person would properly infer a danger of default if assets were removed from the jurisdiction or dissipated within the jurisdiction”: Simmons v Giezekamp [2024] FCA 649 at [21], referring to Third Chandris Shipping Corp v Unimarine SA [1979] 1 QB 645 at 671 – 672; Hua Wang Bank Berhad v Deputy Commissioner of Taxation [2010] FCAFC 140; 81 ATR 66 at [21]; UFC Enterprise Morley [] at [13].

21    As for the requisite degree of danger or risk to enliven the power to make a freezing order, “it is not necessary for the Court to be satisfied that the risk of dissipation is more probable than not”, nor is it necessary to establish an intention on the part of the respondent to dissipate their assets (Basi at [9]; Hurst, in the matter of Lloyds Curry Shop Pty Ltd (in liq) v Prasad [2021] FCA 1562 at [56] (Cheeseman J)). However, the danger must be “real or substantial as opposed to a remote or speculative or theoretical possibility” (UFC Enterprise at [13(3)], cited in Wei at [19]). As Gageler, Keane, Gordon and Gleeson JJ said in Huang, “[t]he danger must be sufficiently substantial to warrant the freezing order”: at [18].

22    It is for the applicant to prove “facts from which the Court can infer the existence of a real or substantial risk on the balance of probabilities”: Wei at [19] quoting from UFC Enterprise at [13(3)]. As Feutrill J said in UFC Enterprise, “[t]hat may include facts concerning a lack of available information about a respondent”: at [13(4)].

23    As to the character of the conduct that might give rise to the relevant danger, it has been said that allegations of fraud or serious dishonesty will commonly provide a basis for a sufficient concern to warrant the making of a freezing order: Hurst at [57]; Spotlight Pty Ltd v Mehta [2019] FCA 1796 at [23] (Anderson J).

CONSIDERATION

24    It was accepted by Mr Greenwich that he needed to establish the existence of a danger of the relevant kind. For the following reasons, I am not satisfied that he has proved facts from which it can be inferred that this threshold condition has been established.

What is the relevant “danger”?

25    The relevant “danger” in rr 7.32 and 7.35 has two elements:

(1)    First, the harm to be protected against (that is, that the judgment or prospective judgment will be wholly or partly unsatisfied because, relevantly, the assets are removed from Australia or disposed of, dealt with or diminished in value. For convenience, I will refer to this harm as the dissipation of assets).

(2)    Secondly, the risk or likelihood of the harm materialising. As explained above, it is not enough for the risk to be remote, speculative or theoretical. The risk or likelihood must be real and sufficiently substantial.

26    Mr Greenwich must prove facts to support an inference of the existence of both these features.

27    It is important at the outset to identify the harm to be protected against by the making of the freezing order. The interlocutory application, in its original form, sought to prevent Mr Latham from removing from Australia or in any way disposing of, dealing with or diminishing the value of any of his assets in Australia (specifically including the Mount Hunter Property). The amended form continues to seek the freezing order over Mr Latham’s assets, but carves out an exception permitting the sale of the Mount Hunter Property at a fair value, but then qualifies the exception by requiring that the proceeds of the sale (less expenses) must be held in trust until otherwise ordered by the Court.

28    Thus, the harm (ie, the dissipation of assets) that is sought to be guarded against is, first, that the sale of the Mount Hunter Property will be at below fair market value; secondly, that the proceeds of a fair market sale will be dissipated; and thirdly, that property other than the Mount Hunter Property will be disposed of, dealt with or diminished in value. The facts to be proved by Mr Greenwich must establish that there is a real and sufficiently substantial risk or likelihood that the claimed harm will materialise.

The foundational facts for the drawing of inferences adverse to Mr Latham

29    Mr Greenwich relies on the following evidence to establish the foundational facts from which adverse inferences against Mr Latham can be drawn.

30    First, in April 2017, the Mount Hunter Property was transferred from Mr Latham to his then wife for consideration in the amount of $1.00. The transfer document is witnessed and identifies the details of the transferee’s agent. It also bears the stamp of the Office of State Revenue (NSW) identifying the duty payable as $17,315.

31    Secondly, there is before the Court a transfer document whereby Mr Latham’s former wife transferred to Mr Latham the Mount Hunter Property in November 2023 for consideration in the amount of $815,000.

32    Thirdly, there is a present listing for sale of the Mount Hunter Property. A title search on 15 July 2026 showed that, at that date, Mr Latham was the owner, and that the property was subject to a mortgage for an unknown amount. It is presently publicly listed for sale, at least on the Domain website. As already indicated, an exclusive agency agreement to sell the home was signed on 22 May 2026, although it appears to be accepted by Mr Greenwich, by reference to a newspaper article published on 15 June 2026, that the property had been listed for sale by another agent at an earlier time. The agency agreement supports that position.

33    Fourthly, Mr Greenwich relied on a historical search of the New South Wales Land Register undertaken on 6 August 2026 showing that, on 5 June 2026, there was a discharge of mortgage on the property, followed on the same day by the registration of a new mortgage.

34    Mr Greenwich contended that an inference could be drawn that the April 2017 transaction was suspicious and, that when viewed with the other facts, further inferences could be drawn that there is a risk that Mr Latham is liquidating the Mount Hunter Property into a more readily untraceable form of asset for dissipation. It was contended that the inferences were more readily drawn when Mr Latham had:

(1)    made the forensic decision to not give evidence explaining: the circumstances surrounding the 2017 transaction, the reason for the transfer in 2023 at an amount below market value, and the discharge of a mortgage and the registration of a new mortgage on 5 June 2026; and

(2)    failed, despite repeated requests by Mr Greenwich’s solicitors, to give undertakings.

35    In my view, it cannot be said that the facts established by this evidence give rise to an inference that the Mount Hunter Property will be sold at below market value. The property has been listed for public sale with a listed price. There is an agency agreement in place. There are no facts to support an inference that Mr Latham does not intend to press ahead with that public sale according to market conditions. Indeed, the available evidence provided by Ms Burrows is that Mr Latham intends to sell on the open market at fair market value.

36    Thus, the only questions are whether the facts support an inference that (a) Mr Latham is liquidating the Mount Hunter Property in order to more easily dissipate its value and/or (b) his other (unknown) assets are at risk of dissipation.

37    I will return to the 2017 transfer, however, I will first make the following observations about the other evidence relied on by Mr Greenwich.

The events in 2023 and 2026

38    The fact that there was a mortgage discharge and a replacement mortgage registration on 5 June 2026 does not, without more, give rise to an implication that Mr Latham’s assets are at risk. They are not transactions, when viewed together, that inherently suggest that Mr Latham’s assets are at risk of dissipation and, in the absence of further evidence, an adverse inference is not warranted on that basis alone. In oral submissions, counsel for Mr Greenwich contended that there is a risk that history may repeat itself. However, that would depend on whether the other historical events and transactions, particularly the 2017 transaction, can be seen as colouring the character of the changes to the mortgage on 5 June 2026.

39    Nor, in my view, does the public listing for sale of the Mount Hunter Property, without more, support such an adverse inference. It is listed for a price in the range of $2,400,000 – $2,600,000. The agency agreement values the property at “circa $2.4m”. There is no basis for me to draw the inference that it is currently listed at a price below market value and, thereby, constitutes an attempt to dissipate that asset.

40    Furthermore, contrary to Mr Greenwich’s submission, the public listing for sale does not reasonably give rise to an inference that Mr Latham’s property is being liquidated because cash is more difficult to trace and there is a possibility of transfers for an undervalue to family members and others. Without more, or even when viewed together with the changes in the mortgage on 5 June 2026, it is to engage in speculation without a sufficient foundation to conclude that the present listing for sale creates a risk that the proceeds will be dissipated in the way that Mr Greenwich has suggested.

41    Furthermore, the purchase by Mr Latham of the Mount Hunter Property in November 2023 must be viewed against the surrounding context at the time. Ms Burrows deposes that Mr Latham has informed her that the reacquisition of the property in 2023 formed part of the settlement of property between him and his former wife following the breakdown of their marriage, which involved an exchange of interests in two properties. While Mr Latham did not give this evidence directly and, thus, it could not be tested, it did not seem to be disputed by Mr Greenwich that the purchase formed part of a property settlement.

42    Counsel for Mr Greenwich submitted that, given the current listing price and valuation, and given the short space of time between the November 2023 re-purchase and the current listing, an inference can be drawn that Mr Latham purchased the property in November 2023 at a price below market value. There was also reliance on Mr Latham’s social media posts to the effect that the property was worth “closer to 4 times” what he paid. It was submitted that, particularly when viewed alongside the 2017 transaction, the reacquisition in 2023 at below market value should cause the Court some concern.

43    Even if it were the case that the amount paid by Mr Latham was below market value, the wider contextual circumstances diminish the contention that Mr Latham had acted illegitimately or inappropriately by reacquiring the property at below market value and, as counsel for Mr Latham submitted, any acquisition at below market value would augment, rather than dissipate, his asset position.

44    When the 2023 transaction is viewed alone and without more, I do not consider that an inference can be drawn that Mr Latham’s property is presently at risk of dissipation. Further, given the contextual matter of the property settlement in 2023, I am not persuaded that, without more, the 2017 and the 2023 transactions, being over six years apart, can be connected in a way that gives rise to sufficient concern.

45    Nor do I consider that such an inference can be reasonably drawn when the 2023 transaction is viewed together with the 2026 events. The 2023 repurchase and the present sale are independent events three years apart. The changes in the mortgage in June 2026 are too remote from the 2023 purchase to attribute that combination of circumstances any significance, and any adverse inference arising from a combination of the mortgage changes with the public listing for sale is not self-evident.

46    Thus, in my view, the success of Mr Greenwich’s application turns on the inferences that might be drawn from the 2017 transaction, when viewed in isolation, or together with the other matters that have been discussed.

The 2017 transaction

47    In written submissions, Mr Greenwich sought to contextualise this evidence by reference to a newspaper article dated 22 August 2025. Statements in the article included that Mr Latham had sold the family home to his then wife “just days after former NSW premier Kristina Keneally threatened to sue him for defamation” for remarks Mr Latham made about Ms Keneally on air, and that “Ms Keneally commenced defamation action against” Mr Latham after he refused to apologise. It further stated that Ms Keneally chose “to discontinue her defamation action” after she accepted Mr Latham’s subsequent on-air apology. The article further stated:

But Mr Latham was in the dark at home in Mount Hunter. He could not be sure what Ms Keneally would do. It seems he panicked, knowing defamation actions are costly for losers.

On April 6, 2017, just eight days after Sky News fired him, Mr Latham quietly sold the family home at Mount Hunter to his wife Janine for $1. It was a hurried manoeuvre: the sale and settlement occurred on the same day.

At that point, Mr Latham owned nothing. He could file for bankruptcy and pay no damages if Ms Keneally successfully pursued him for defamation because his only significant asset was now owned by his wife.

48    The inference the Court was asked to draw was that Mr Latham disposed of his interest in the Mount Hunter Property at the grossly undervalued amount of $1.00 in the face of impending defamation litigation.

49    However, in oral submissions, counsel for Mr Greenwich submitted that the necessary inference could be drawn from the face of the transfer document alone, and little reliance was placed on the article. In my view, the minimisation of the article as evidence to establish the necessary facts was appropriate. The source of the information that Ms Keneally had commenced legal action against Mr Latham is not identified. If it were stated on the basis of a previous representation, then the exception to the hearsay rule that applies to interlocutory proceedings under s 75 of the Evidence Act 1995 (Cth) would be inapplicable, thus making the evidence inadmissible for the purpose of proving the facts asserted therein.

50    Even if there were another undisclosed basis for that statement, Ms Burrows deposed that Mr Latham has informed her that no legal action was ever taken against him by Ms Keneally and that the 2017 transfer was in no way connected with anything concerning Ms Keneally. While Mr Latham did not give this evidence by way of affidavit, which would have allowed the evidence to be further tested by Mr Greenwich, s 75 of the Evidence Act permits me to admit that evidence for the purposes of the interlocutory proceeding (noting that, unlike the newspaper article, the source of the relevant representation is known). In the absence of other evidence to support the claim that Ms Keneally instituted defamation proceedings against Mr Latham, and in the face of Mr Latham’s denials (albeit established by the permissible hearsay evidence of Ms Burrows), I consider that Mr Greenwich has not established that fact.

51    That leaves the bare fact that Mr Latham transferred his interest in the Mount Hunter Property to his then wife in April 2017 for $1. I agree with Mr Greenwich’s contention that such a transaction is odd. However, in my view, more is needed to warrant the drawing of an inference that the 2017 transaction was illegitimate, inappropriate, unnatural or (at least) suspicious, and that such a finding thereby colours the facts of the 2023 transaction, the present listing for sale and the recent changes to the mortgage.

52    Those inferences might readily be drawn if it could be established that the 2017 transaction were fraudulent or dishonest. The latter might be the case if a link could be made to a defamation proceeding threatened by Ms Keneally. However, as I have explained, it has not been established that Ms Keneally instituted defamation proceedings.

53    Further, the sale was assessed for stamp duty in the amount of $17,315 and, thus, a value for the property must have been disclosed for that purpose. There is no evidence of the market value of the Mount Hunter Property in 2017 and, accordingly, it could not be inferred that Mr Latham (or his former wife) had illegitimately or inappropriately provided a below market value for stamp duty assessment.

54    Accordingly, while the 2017 transaction is odd or unusual, in my view, there is not enough in the evidence to support an adverse inference that the transaction was suspicious: see Holyoake v Candy [2017] EWCA Civ 92 at [57] (Gloster LJ, with whom Jackson LJ agreed) (Holyoake (CA)). And, given the temporal gap between events, the only way that the 2017 transaction could colour the 2023 transaction, the present public listing for sale and the changes in the mortgage is if an adverse inference could be drawn that Mr Latham (and his former wife) engaged in suspicious conduct in 2017. That is a serious finding for the Court to make and, on the basis of the evidence before the Court, I am not prepared to reach that conclusion.

Summary

55    It follows that Mr Greenwich has not established the facts necessary to support the drawing of an inference that the proceeds of the sale of the Mount Hunter Property will be dissipated by Mr Latham if not held in trust. Nor, in my view, can an inference be drawn that Mr Latham’s other property is in danger of dissipation without the freezing order being made. In reaching these conclusions, I am mindful of the heavy onus placed on Mr Greenwich and that, consequently, a freezing order is a “drastic remedy” and not to be “lightly granted”.

Mr Latham’s failure to give direct evidence

56    Mr Greenwich submitted that inferences adverse to Mr Latham might be drawn (or more readily drawn) because of his failure: to give evidence explaining the circumstances surrounding the 2017 transaction; to give a more fulsome explanation of the reason for the transaction in 2023 at an amount claimed to be below market value; to provide the reason for the present listing for sale; to provide an explanation for the changes to the mortgage on 5 June 2026; to provide information about the amount by which the Mount Hunter Property is encumbered by its registered mortgage; and to state clearly that he does not intend to take steps to conceal his assets and the proceeds of sale or to put them beyond reach.

57    While the legal and evidential burdens rest with Mr Greenwich to establish the facts that warrant the making of a freezing order, I accept that the evidential burden might shift in circumstances where a sufficient suspicion is raised that the relevant danger exists: see Holyoake (CA) at [51]. The failure in those circumstances for a respondent to adduce evidence explaining the relevant circumstances runs the risk that adverse inferences may be drawn. That is particularly the case where the circumstances are only or best known to the respondent. However, for the reasons set out above, I am not satisfied that there is a reasonable basis to draw an inference that sufficient suspicion exists.

Mr Latham’s failure to give undertakings

58    Mr Greenwich also submitted that adverse inferences might be drawn (or more readily be drawn) because Mr Latham has failed to respond to requests to give undertakings. The undertakings sought have varied over time. The most recent undertaking sought was that Mr Latham “will not encumber, dissipate or otherwise deal with [the Mount Hunter Property] save for selling the property at fair market value”.

59    I accept Mr Latham’s submissions that this argument should not be accepted. First, given the circumstances of protracted and ongoing litigation between the parties, I am not persuaded that Mr Latham’s refusal to provide the undertaking is a matter that assists the drawing of inferences in Mr Greenwich’s favour: see Holyoake v Candy [2016] EWHC 970 (Ch); [2016] 3 WLR 357 at [44] (Nugee J). (While an appeal from Nugee J’s judgment was successful on the basis that the primary judge applied the wrong test, the relevant observations were not doubted: see Holyoake (CA)).

60    Secondly, while Mr Latham has not given evidence directly by way of affidavit, Ms Burrows’ affidavit records that Mr Latham intends to sell the Mount Hunter Property on the open market at fair market value. While Mr Latham’s statement of intention was unable to be tested at the interlocutory application, it is admissible evidence to be weighed in the drawing of inferences against the failure to provide an undertaking in the same terms.

61    I should note that, given that the amended interlocutory application now permits the sale of the principal asset of concern, the Mount Hunter Property, at fair value, I have discounted the submission that Mr Latham has failed to respond to requests to give notice of the sale. Further, given that Mr Latham is resisting orders that he not dispose of other assets and that the proceeds of the Mount Hunter Property sale be held on trust until the payment of the judgment debts, I do not consider the failure to give undertakings to either effect as something to be viewed with suspicion. Mr Latham has put those matters in issue in this interlocutory proceeding.

Mr Latham’s membership of the Legislative Council of New South Wales

62    While it is not critical to my conclusion, I note that a logical consequence of Mr Greenwich’s submissions is that the dissipation of assets by Mr Latham will leave him in the position of being unable to satisfy the judgment debts in Mr Greenwich’s favour. As counsel for Mr Latham submitted, that would imperil Mr Latham’s solvency and have implications for the continuation of his position in the Legislative Council: Constitution Act 1902 (NSW) s 13A(1)(c). In my view, that is further support for the conclusion that a reasonable inference cannot be drawn that the relevant danger exists.

Disposition

63    In summary, I am not satisfied on the evidence before the Court that a prudent, sensible commercial person would reach the conclusion that there is a danger of the relevant kind in the sense that there is a real or sufficiently substantial risk that the harm to be guarded against will materialise. On the basis of the facts established by the evidence, any risk that arises is speculative in character.

64    In view of that conclusion, it is unnecessary to consider the submissions (a) addressing delay in bringing the application, (b) going to the balance of convenience, (c) as to whether the NCAT judgments and orders can be taken into account when applying rr 7.32 and 7.35, or (d) on the quantification of the amount to be protected by a freezing order.

65    Prayer 6 of the amended interlocutory application is dismissed with costs to be agreed or assessed.

Associate:

Dated:    14 August 2026