Federal Court of Australia

Ziebarth v Nayaned [2026] FCA 1459

ORDERS

UPON THE EX PARTE APPLICATION of the plaintiff and UPON THE UNDERTAKING AS TO DAMAGES of the plaintiff to (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not that person is a party) affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and (b) pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking;

THE COURT ORDERS THAT:

1.    Until 5.00 pm AWST until 9 October 2026 or until further order, the second defendant, WA PETMEAT PTY LTD (ACN 632 809 584), be restrained whether by itself, its directors, officers, employees, servants or agents from:

(a)    granting any interest or otherwise dealing with the land situated at Unit 5, 22 Paramount Dr, Wangara WA 6065 being the whole of the land in Certificate of Title Volume 2127 Folio 516; and

(b)    making any payment or transferring any money of the second defendant or granting any interest in any asset of the second defendant in connection with any sale of the business or undertaking of the company or pursuant to any agreement of the sale of the business or undertaking of the company.

2.    There be liberty for the second defendant or any interested party to apply on two business days' notice for order 1 to be discharged.

3.    The plaintiff's oral application for an interlocutory injunction in the terms set out in paragraph 52 of the affidavit of Andrew Ziebarth dated 23 September 2026 is otherwise adjourned to a date to be fixed.

4.    Costs of and incidental to the interlocutory application be reserved.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Andrew Ziebarth claims to be a director and shareholder of WA Petmeat Pty Ltd, which carries on a pet meat business. WA Petmeat is the registered proprietor of business premises in Wangara, a suburb of Perth in Western Australia (Property). Mr Ziebarth claims to have been invalidly removed as a director of WA Petmeat and that the share register has been altered to substantially reduce his shareholding in the company. He says that the records of the company indicate that his shares have been transferred to a Mr Stanley Eatt, another shareholder. Mr Ziebarth alleges that these steps were taken without convening meetings of the company. An ASIC search indicates, as to these matters, that there were changes to the public records of the company in August 2026 and mid-September 2026. Mr Ziebarth says that Ms Mali Nayaned has assumed control of the company and steps have been taken to sell the business conducted by WA Petmeat and the Property.

2    On 23 September 2026, Mr Ziebath brought urgent company proceedings in this Court seeking relief restoring his position as director and shareholder. He also sought urgent interlocutory injunctive relief. The matter came on before me as duty judge. There was an appearance for Mr Eatt who consented to the grant of relief. The proceedings were also commenced against Ms Nayaned and other interested parties. The hearing proceeded ex parte as to those other parties and, therefore, on the basis that full disclosure was required of matters that might bear against the grant of relief. After considering the affidavit of Mr Ziebarth in support of the application, I determined that an injunction should be granted on an interim basis. These are my reasons for making those orders.

Relevant principles as to interlocutory injunctive relief

3    On an application for an interlocutory injunction, the party seeking relief must demonstrate that:

(1)    The party has sufficient colour of right to the final relief, in aid of which interlocutory relief is sought, usually described as the establishment of a serious question to be tried or a prima facie case; and

(2)    The balance of convenience favours the grant of an interlocutory injunction.

See Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [23] (Gageler CJ, Gordon, Gleeson and Jagot JJ) and Samsung Electronics Company. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74] (Dowsett, Foster and Yates JJ).

4    As to the balance of convenience, in Samsung it was said at [65]-[66] that the resolution of that question requires the Court to exercise a discretion and:

In exercising that discretion, the Court is required to assess and compare the prejudice and hardship likely to be suffered by the defendant, third persons and the public generally if an injunction is granted, with that which is likely to be suffered by the plaintiff if no injunction is granted. In determining this question, the Court must make an assessment of the likelihood that the final relief (if granted) will adequately compensate the plaintiff for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted.

5    Part of that inquiry involves considering whether damages will be an adequate remedy, that is to say will the applicant for injunctive relief be in as good a position if no injunction was granted and they were entitled to damages if successful at trial (sometimes expressed as a separate requirement: see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J). It is also necessary, in an appropriate case, to weigh the strength of the applicant's case as part of the balancing process: Samsung at [67].

6    Any relief is usually granted on the basis of an undertaking as to damages provided by the party seeking injunctive relief.

The evidence on the application

7    The affidavit of Mr Ziebarth in support of the application deposed to a brief history of the affairs of WA Petmeat. For present purposes, it is sufficient to refer to the following aspects of his evidence (noting that none of these matters have been tested or been the subject of any response from the defendants):

(1)    Mr Ziebarth was involved in the establishment of WA Petmeat with a friend Mr Matthew Van Den Bos, now deceased;

(2)    Mr Ziebarth contributed the assets of a previous business to WA Petmeat when it was established;

(3)    Upon incorporation, Mr Ziebarth was appointed company secretary and a 30% shareholder and Mr Van Den Bos was appointed as the sole director;

(4)    In 2021, WA Petmeat purchased the Property;

(5)    There was a falling out between Mr Van Den Bos and Mr Ziebarth and there was a period in which Mr Van Den Bos assumed control of the company;

(6)    Following the death of Mr Van Den Bos, Ms Nayaned was appointed as director and secretary of WA Petmeat and changes were recorded in the shareholdings in the company;

(7)    Searches of public records show that there has been no application for a grant of probate as to the estate of Mr Van Den Bos in the Supreme Court of Western Australia;

(8)    In June 2026, demands were made by solicitors acting for Mr Ziebarth concerning the affairs of WA Petmeat;

(9)    On 20 August 2026, there was a meeting of the shareholders of WA Petmeat;

(10)    Resolutions were passed as to shareholdings in WA Petmeat and appointing Mr Ziebarth as a director of the company with a form lodged with the Australian Securities and Investments Commission to reflect those resolutions. The form shows Mr Ziebarth's shareholding being reinstated (his total shareholding being increased to just over 35%);

(11)    Subsequently, forms have been lodged recording that Mr Ziebarth has ceased to be a director;

(12)    Mr Ziebarth has not resigned as a director and has not received notice of any meeting at which he may be removed (or of the lodgement of the form recording that he has ceased to be a director);

(13)    Since then, Mr Ziebarth has been excluded from the management of WA Petmeat;

(14)    On 19 September 2026, solicitors acting for Mr Ziebarth gave notice of intention to commence proceedings against WA Petmeat to the registered agent for the company, Balance Tax Pty Ltd. The notice stated that Mr Anthony Campbell of Balance Tax may be personally liable ''insofar as you have aided, abetted, counselled or procured' contraventions by WA Petmeat.

(15)    On the same day, an email response was received from Mr Campbell headed 'without prejudice'. As the response was not part of an exchange for the purposes of resolving a dispute between the parties and made no offer, no such privilege could apply. The email said:

Hi., I haven't breached any laws and only followed Directors minutes.

Any attempt to include me will be dealt with my SC from Melbourne.

Any likely appearance will be a billable expense to you and if you proceed to bring into this will bring legal action from me.

I have acted professionally and as per my Agency and following legal Minutes.

(16)    The above email was copied to an email address with the name of Ms Nayaned; and

(17)    There is evidence to indicate that Ms Nayaned is relocating or has relocated to Thailand.

8    A further affidavit was deposed by a solicitor acting for Mr Ziebarth. It concerned his attendance at the business premises of WA Petmeat at the Property on 21 September 2026. At that time, he sought to inspect the register of the company. He spoke to a person who identified himself as Kyle. He deposed that during that conversation Kyle said words to the effect of 'well it's not the registered office anymore because the business has been sold'. The solicitor then deposed that Kyle indicated in response to certain questions that they concerned matters above his paygrade. The solicitor deposed as follows concerning his conversation with Kyle:

However, my understanding from those discussions [with] Kyle was that a sale of the business was upcoming, that preparations for the sale were in progress[,] which I understood to mean that a deal or a contract had been made or agreed to sell the business to a purchaser but that it had not settled yet.

9    The solicitor also deposed to attending, on the same day, the office for Balance Tax, being an address in Gwelup. It was a house. The solicitor spoke to Mr Campbell who said that WA Petmeat was no longer a client of his. The solicitor asked to inspect the register for WA Petmeat and was then asked to leave the premises.

10    At the hearing of the application for injunctive relief, counsel for Mr Eatt informed the Court that his client had signed a document in relation to the sale of the business but that his client did not have a copy of the document.

11    Mr Ziebarth indicated in his affidavit that he would give an undertaking as to damages and it was confirmed by counsel in oral submissions that the injunction was sought on the basis that the usual undertaking was proffered.

The nature of the claims made by Mr Ziebarth

12    Mr Ziebarth claims to be entitled to be a director and shareholder and that any dealing in relation to the assets of WA Petmeat (including any dealing with the Property) have not been properly authorised. He further claims that there has been 'an unwarranted oppression' of his interests as a shareholder.

The grant of interim relief

13    In the result, the injunctive relief sought was against WA Petmeat to prevent it from granting any interest in or otherwise dealing with the Property and to prevent it from making any payment or transferring any money or granting any interest in any asset in connection with the sale of the business of the company or pursuant to any agreement for the sale of that business.

14    On the basis of the affidavit material I was satisfied that there was an arguable case, in the relevant sense, that Mr Ziebarth had been irregularly removed as director and shareholder and that an agreement had been made by WA Petmeat with an unknown party to sell the business of the company and the Property. Further, in consequence, if any such agreement had been made, there was an arguable case that it had been made without authority. Finally, it was arguable that any sale would result in a distribution to shareholders in proportions that did not reflect the true shareholding in the company.

15    As to the balance of convenience, I was satisfied that, on the evidence, there was the prospect that an agreement was about to be formally concluded or that settlement was to occur under an agreement that had been concluded. If so, the business and the Property would be transferred. There was also the prospect that funds from the sale would be transferred to Ms Nayaned who was in control of the company and that she would be out of the jurisdiction. If that occurred, then any right to damages or compensation may be rendered nugatory. Accordingly, there was an imminent risk of events occurring that would radically alter the status quo and would do so before parties could be brought before the Court and disclosure could be required of the nature of any agreement or dealing with the business or the Property.

16    There was the possibility that any injunction would prevent WA Petmeat from performing a contract with a third party. There was the prospect of adverse consequences to that third party who may have been dealing at arms' length and without notice of any issues as to authority. However, the relief sought was interim relief of short duration. It was relief of a kind that would not interfere with the day to day operation of the business of WA Petmeat. It was relief that could be brought to the attention of interested parties by service at the premises of the business. In addition, any prejudice could be ameliorated by providing for liberty for any interested party to apply on short notice. Further, the grant of injunctive relief was consented to by Mr Eatt to whom much of Mr Ziebarth's shareholding has been purportedly transferred. An undertaking as to damages had been proffered.

17    In those circumstances, I was persuaded that injunctive relief should be granted on an interim basis and I made orders accordingly.

Associate:

Dated:    5 October 2026

SCHEDULE OF PARTIES