FEDERAL COURT OF AUSTRALIA

O’Halloran v ABL Financial Pty Ltd [2026] FCA 1653

ORDERS

THE COURT NOTES THAT:

A.    For the purposes of r 27.01 of the Federal Court Rules 2011 (Cth):

(a)    the parties have been notified of the proposed transfer of the proceeding to the Federal Circuit and Family Court of Australia (Div 2) and have been given an opportunity to be heard in relation to the proposed transfer;

(b)    the parties do not oppose the transfer; and

(c)    the Court has consulted with the Acting Chief Justice in relation to the proposed transfer and the Acting Chief Justice has consulted with the Chief Judge of the Federal Circuit and Family Court of Australia (Div 2) in relation to the proposed transfer.

THE COURT ORDERS THAT:

1.    Until the final determination of the proceeding or further order, the Respondents must:

(a)    procure that the 1972 Chevrolet Corvette motor vehicle, chassis number 1Z37K2S512204, New South Wales registration IMVU (Vehicle) continues to be stored by Lloyds Asset & Valuation Services at the Lloyds Auctions storage facility at 69 Manchester Rd, Carrara QLD 4211 in a secure indoor location;

(b)    not drive the Vehicle on a public road;

(c)    not start, drive, or move the Vehicle other than by hoist; and

(d)    keep the Vehicle insured.

2.    Within 14 days of the date of these orders, the Respondents are to obtain and provide to the Applicants a copy of:

(a)    quotations from three independent automotive mechanics with experience in the repair and maintenance of vintage motor vehicles to prepare a full condition report in respect of the Vehicle which:

(i)    addresses the repair and maintenance issues raised by Ryan Innes in his affidavit affirmed on 28 October 2026; and

(ii)    makes recommendations for the ongoing maintenance and storage of the Vehicle to preserve its value; and

(b)    a statement of the experience of each of the independent automotive mechanics.

3.    Within 7 days of receiving the quotations and statements referred to in order 2, the Applicants are to:

(a)    notify the Respondents whether the Applicants accept one of the quotations; and

(b)    if the Applicants accept one of the quotations, pay to the Respondents the amount of the quotation.

4.    If the Applicants accept one of the quotations and comply with order 3(b), the Respondents are to, within 28 days of receiving payment under order 3(b):

(a)    procure that the selected independent automotive mechanic inspects the Vehicle and prepares the condition report in accordance with order 2(a); and

(b)    provide a copy of the report to the Applicants.

5.    Paragraphs 3 to 8 of the Applicants’ Interlocutory Application dated 24 October 2026 be otherwise dismissed.

6.    Costs be reserved.

7.    Pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth) and r 27.01 of the Federal Court Rules 2011 (Cth), the proceeding be transferred from this Court to the Federal Circuit and Family Court of Australia (Div 2).

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

O’BRYAN J:

1    These reasons principally concern an interlocutory application filed by the applicants on 24 October 2026 seeking, amongst other orders, an asset preservation order under r 14.11 of the Federal Court Rules 2011 (Cth) (the Rules).

2    I heard the application on an urgent basis on 30 October 2026. At the conclusion of the hearing I delivered an ex tempore judgment and, later that day, made orders in accordance with that judgment. The following is a record of that judgment.

3    The orders made on 30 October 2026 also included an order transferring this proceeding to the Federal Circuit and Family Court of Australia (Div 2). In accordance with r 27.01 of the Rules, the parties were given an opportunity to be heard in relation to the proposed transfer at a case management hearing on 28 October 2026. In the course of that hearing, the respondents informed the Court that they sought that order and the applicants ultimately informed the Court that they did not oppose the order. Subsequently, the Court consulted with the Acting Chief Justice in relation to the proposed transfer and the Acting Chief Justice has consulted with the Chief Judge of the Federal Circuit and Family Court of Australia (Div 2) in relation to the proposed transfer.

4    The proceeding was commenced on 4 September 2026.

5    The second applicant is the owner of a vintage motor vehicle, being a 1972 Chevrolet Corvette motor vehicle, chassis number 1Z37K2S512204, New South Wales registration IMVU (the Vehicle). The first applicant has a security interest over the Vehicle.

6    In broad terms, the proceeding concerns a business loan of $40,000 made by the first or second respondent to the second applicant, guaranteed by the first applicant, and secured over the Vehicle with the security purportedly registered under the Personal Property Securities Act 2009 (Cth) (PPSA). The loan and security were granted on or about 18 May 2026. The loan was stated to be for business purposes, had an interest rate of 6% per calendar month and a term of up to 6 months. In these reasons, I will refer to the first and second respondents as the respondents without distinguishing between them.

7    Although much is in dispute in the proceeding, it appears to be common ground that the second applicant failed to pay an interest instalment by the due date and failed to rectify the default, whereupon the respondents, in purported exercise of their security rights under the PPSA, seized the Vehicle on 1 September 2026. When the Vehicle was seized, it was located at an automotive repair workshop trading as Innes Mechanical.

8    The first applicant is self-represented and has been given leave to represent the second applicant. In the proceeding, the applicants allege, amongst other things:

(a)    that there was no default under the loan agreement;

(b)    alternatively, that the borrower is entitled to rectify the default and reinstate the security;

(c)    that the seizure of the Vehicle was unlawful;

(d)    that the registration of the security was ineffective;

(e)    that the loan agreement contained unfair terms under the Australian Securities and Investments Commission Act 2010 (Cth) (ASIC Act); and

(f)    that the lender engaged in unconscionable conduct under the ASIC Act.

9    The applicants also issued an interlocutory application seeking orders:

(a)    restraining the respondents from selling, offering or advertising for sale, consigning for sale, valuing for sale, transferring, encumbering, delivering to any third party, or otherwise disposing of or dealing with the Vehicle;

(b)    requiring the respondents to cause the Vehicle to be delivered, from the premises of Lloyds Auctions & Valuations at 69 Manchester Road, Carrara, Queensland or from wherever it is then held, by tilt-tray or flat-bed transport and without the Vehicle being started, driven or operated other than as strictly necessary to load and unload it, into the custody of Ryan Innes trading as Innes Mechanical, 4/83 Centennial Circuit, Byron Bay NSW 2481 (or such other person as the Court directs), to be held as custodian pending further order, insured and under cover, and not to be released to any person without the further order of the Court or the written consent of all parties; and

(c)    any other ancillary orders.

10    Justice Anderson heard the interlocutory application as Commercial Duty judge on 10 September 2026. His Honour granted an interlocutory injunction restraining the respondents from selling or otherwise dealing with the Vehicle, but his Honour declined to make the other orders sought by the applicants.

11    The proceeding was allocated to my docket on 21 October 2026 and I listed the matter for case management on 28 October 2026.

12    On 24 October 2026, the applicants filed a further interlocutory application seeking various procedural orders. The applicants also renewed their application for an interlocutory order, which I will refer to as an asset preservation order, requiring the respondents and their agents (including Lloyds Auctions & Valuations) to make the Vehicle available for collection at the place where it is held by a carrier engaged by the applicants, at the applicants’ cost, for delivery into the custody of Ryan Innes trading as Innes Mechanical (the Custodian). The applicants sought further orders, to be binding on the Custodian, to the effect that:

(a)    the applicants ensure that the Vehicle is kept under cover at the Custodian’s premises and is not driven on a public road;

(b)    within 5 business days after the Custodian receives the Vehicle, the applicants provide to the respondents’ solicitors a written condition report, with photographs, prepared by the Custodian or by a mechanic nominated by the applicants;

(c)    the maintenance reasonably necessary to preserve the Vehicle, and the completion of the cooling system work in progress on 1 September 2026, may be carried out at the applicants’ cost, after 2 business days’ written notice to the respondents’ solicitors of the work proposed;

(d)    the applicants permit, and procure that the Custodian permits, a representative of the respondents to inspect the Vehicle on 2 business days’ written notice; and

(e)    the Vehicle is to be held to the order of the Court and is not to be released to any person except by order of the Court or with the written consent of all parties.

13    The applicants also sought a range of other orders in the nature of interrogatories.

14    The interlocutory application was supported by an affidavit of the first applicant, Mr O’Halloran, made on 24 October 2026. Mr O’Halloran deposed that the applicants renewed their application for an order that the Vehicle be delivered into the custody of Mr Innes on the basis of events that have transpired since the hearing before Justice Anderson on 10 September 2026. In broad terms, the subsequent events relied on by Mr O’Halloran involve correspondence sent by the applicants to the respondents seeking information about the storage of the Vehicle and its present condition and the failure of the respondents to respond to that correspondence. I do not consider that those events justify the renewal of the interlocutory application. However, further time has transpired since the initial interlocutory application was made. The evidence of Mr Innes that I will refer to shortly indicates that the effluxion of further time has the potential to cause further damage to the Vehicle, and I consider that that is sufficient to justify the renewal of the interlocutory application.

15    Mr O’Halloran’s affidavit also described his concern about the present condition of the Vehicle, deposing that:

(a)    The Vehicle is a 1972 Chevrolet Corvette Stingray T-top coupe. It is 54 years old. Its chassis number identifies it as built at the St Louis, Missouri plant with the standard 350 cubic inch V8 engine.

(b)    The Vehicle was at Innes Mechanical for a cooling system upgrade when it was seized on behalf of the respondents on 1 September 2026. The work had not been completed when the Vehicle was taken.

(c)    Mr Innes had informed Mr O’Halloran that there would be risks to the Vehicle’s engine if it is run before the works are completed.

16    At the case management hearing on 28 October 2026, I made the procedural orders sought by the applicants’ interlocutory application, and I made orders listing the application for the asset preservation orders to 30 October 2026.

17    In support of the asset preservation orders, the applicants also relied upon an affidavit of Mr Innes affirmed on 28 October 2026. Mr Innes deposed to the characteristics of the Vehicle’s engine and its risk of damage if not serviced in particular ways. Mr Innes corroborated Mr O’Halloran’s evidence that the Vehicle was at Innes Mechanical from 17 August 2026 for a cooling system upgrade and other repairs. When the Vehicle was seized on behalf of the respondents on 1 September 2026, the work was not finished. The cooling system had not been fully filled and bled, and the engine had not been run through heat cycles to check the new parts. Mr Innes explained that, as part of the repair works, a new thermostat housing gasket had been fitted and that a gasket of that kind seats and seals properly only after the engine has been run through several heat cycles and the housing has been checked and, if needed, re-tightened. That could not be done before the Vehicle was taken. Mr Innes expressed concern that the joint may not have sealed, and coolant may be leaking or seeping from it. Mr Innes said that coolant left on the intake manifold and other engine surfaces stains and corrodes them. Mr Innes also detailed a range of other risks to the Vehicle’s engine if it is started before those works can be done, and also the importance of detailing the car and covering it before it is stored for a length of time.

18    Through his affidavit, Mr Innes gave an undertaking to the Court that, if the Court made orders giving him custody of the Vehicle, he would comply with those orders.

19    In opposing the asset preservation orders, the respondents relied upon two affidavits.

20    The first is an affidavit of Rydon Stathos, the Head of Recoveries of Lloyds Asset & Valuation Services, made on 29 October 2026. Mr Stathos gave evidence about the current location of the Vehicle at the Lloyds Auctions storage facility at 69 Manchester Rd, Carrara, Queensland, and provided photographs of the current storage of the Vehicle.

21    The second is an affidavit of Justin Burghardt, the Managing Partner of Broadside Lawyers, the solicitors for the respondents. Mr Burghardt gave second hand hearsay evidence about statements purportedly made by Mr Innes when the Vehicle was seized on behalf the respondents. That evidence conflicts with the evidence given by Mr Innes. In those circumstances, I give the second hand hearsay evidence little weight. Mr Burghardt also gave evidence about the conduct of Mr O’Halloran which, if ultimately found to be correct, would undermine Mr O’Halloran’s credibility in this proceeding. That evidence includes:

(a)    Mr O’Halloran making threats against the director of the respondents and the director’s family;

(b)    Mr O’Halloran falsely representing that he had paid the sum of $10,000 to the respondents;

(c)    Mr O’Halloran making reports to the NSW Police that the Vehicle was stolen; and

(d)    Mr O’Halloran removing a tracker that was affixed to the Vehicle in accordance with the loan and security agreements without informing the respondents.

22    From the bar table, Mr O’Halloran has denied those allegations. I make no findings about those matters as they have not been tested in evidence.

23    Mr Burghardt in his affidavit, and Mr Kanoun appearing on behalf of the respondents at the hearing, stated that the respondents were willing to give an undertaking to the Court that:

(a)    until the final determination of the proceeding or further order, they will:

(i)    procure that the Vehicle continues to be stored by Lloyds Asset & Valuation Services at Lloyds Auctions storage facility at 69 Manchester Rd, Carrara, Queensland in a secure indoor location;

(ii)    not drive the Vehicle on a public road;

(iii)    not start, drive, or move the Vehicle other than by hoist;

(iv)    keep the Vehicle insured; and

(b)    by a date to be determined, at the respondents’ own expense, obtain and provide to the applicants and the Court a full condition report in respect of the Vehicle from an independent mechanic or qualified person agreed upon by the parties or nominated by the Court that addresses the repair and maintenance issues raised by Mr Innes in his affidavit and which makes recommendations for the ongoing maintenance and storage of the Vehicle to preserve its value.

24    It is proposed that the respondents would nominate three independent mechanics or qualified persons to give the report and the applicants would select one of those mechanics or qualified persons.

25    The Court has power under r 14.11(1) of the Rules to make orders for the detention, custody, preservation or inspection of property, or orders authorising a person to do any act or thing for the purpose of giving effect to such an order.

26    The overriding consideration of the exercise of the Court’s powers under r 14.11 is the interests of justice.

27    In the present case, both parties have an interest in preserving the value of the Vehicle. If the applicants’ proceeding is successful, at least a potential outcome of the proceeding is that the Vehicle is returned to the possession of the applicants. If the applicants’ proceeding is unsuccessful, the respondents are likely to be entitled to exercise their security interest over the Vehicle and sell the Vehicle.

28    Having heard the evidence, I consider that the respondents have a legitimate interest in maintaining possession of the Vehicle as security for the loan. The respondents also have a legitimate concern in the Vehicle being given into the possession of Mr Innes to undertake repairs in circumstances where the respondents have no relationship with Mr Innes and, effectively, have no control over the repairs that might be performed. Furthermore, as Mr Kanoun submitted to the Court, Mr Innes has deposed that he will not claim a lien over the Vehicle for storage or work while it is held under the Court’s orders on the basis that his invoices for that storage and work are paid within seven days after he issues them. The overall circumstances of this proceeding give me no confidence about the applicant’s ability to pay for that work and, therefore, avoid a lien arising. I consider that the respondents’ concern over the possibility of a lien arising, and the consequences of a lien arising, have substance. Weighing all of the facts and circumstances of this matter, I consider that the interests of justice are best served by making orders substantially in the form of the undertaking that has been proffered by the respondents and that I have referred to earlier.

29    I propose to formalise those orders in chambers because the mechanism for the appointment of the independent mechanic or qualified person requires some refinement, which I will attend to in chambers. To be clear though, the effect of the orders will be that the report will be procured at the expense of the applicants. Ultimately, if the applicants are either unable or unwilling to pay for the report, the respondents will not be obliged to obtain the report. I otherwise propose to reserve costs on this application.

Associate:

Dated: 4 November 2026

SCHEDULE OF PARTIES