MOUSSI JOSEPH MABARRACK v JACQUELINE ISABEL BEECROFT [2025] SADC 120

First Applicant: MOUSSI JOSEPH MABARRACK Counsel: MR R CATTERWELL - Solicitor: WEBSTERS LAWYERS Second Applicant: MOUSSI NOMINEES PTY LTD T/A THE MOUSSI NOMINEES FAMILY TRUST Counsel: MR R CATTERWELL - Solicitor: WEBSTERS LAWYERS First Respondent: JACQUELINE ISABEL BEECROFT Counsel: MR N MARSHALL - Solicitor: STANLEY & CO LAWYERS Second Respondent: CRAIG BEECROFT Counsel: MR T CAMPBELL Hearing Date/s: 04/09/2025 File No/s: CIV-24-005901 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MABARRACK & Anor v BEECROFT [2025] SADC 120 Judgment of his Honour Judge Burnett 15 October 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DETENTION, INSPECTION AND PRESERVATION - FREEZING ORDERS The applicants seek a freezing order in the sum of $449,580.85 against both respondents and ancillary orders against the second respondent that he disclose further information about expenses that he incurred when travelling to the United States on holiday. A previous freezing order that was obtained at an ex parte hearing against the respondents was discharged when the respondents paid into Court the amount of that freezing order, namely $342,224.00. The first respondent opposed the granting of the freezing order against her on the basis that the applicants had not established with precision the amount of the freezing order. The first respondent also contended that the balance of convenience did not favour the granting of the order. The second respondent opposed the freezing order on the basis that the applicants had not established a good arguable case against him and that the ancillary orders should not be made as the second respondent had provided the requested information. Held: (1) An applicant for a freezing order must establish with precision the amount of a freezing order, although sometimes that might require a reasonable estimate of the liability: Cardile v Led Builders Pty Ltd (1999) 198 CLR 380, Zhen v Mo [2008] VSC 300 applied. (2) The first respondent referred to various instances of alleged misappropriations which she contended could not be sustained. That contention raises the question of whether the applicants have established a good arguable case in relation to the disputed items. The amount claimed in the freezing order should be adjusted by the amount paid into Court and by some of the disputed items such that a freezing order should be granted against the first respondent in the sum of $78,896.10. -- 1 of 20 -- (3) The first respondent’s contention that the applicants had failed to make full and frank disclosure on the previous ex parte application for the freezing order, and that provided a reason for refusing to make this order, is rejected. That principle does not apply to an inter parties application. Further, the usual order for a failure to make full and frank disclosure is the discharge of the order that was granted ex parte. The applicant for the injunction can then apply for a fresh order: Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350, Behbehani v Saleem [1989] 1 WLR 723 applied. In any event, there was no material failure to make full and frank disclosure by the applicants in the previous application. (4) There was a good arguable cause against the second respondent for a claim of $50,000 for the knowing receipt of monies that were obtained through the breach of a fiduciary duty of the first respondent or knowing assistance in the breach of fiduciary duty of the first respondent: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 applied. A freezing order s granted against the second respondent in the sum of $50,000. (5) No order should be made that the second respondent provide a further affidavit as to the payment of the expenses that he incurred on his US holiday. An ancillary order may be made where an affidavit that has been provided requires better explanation to ensure that all relevant assets have been identified: Hathway (liquidator), in the matter of Tightrope Retail Pty Ltd (in liq) v Tripolitis [2015] FCA 1003 applied. The second respondent has provided details of the expenditure and the provision of the ancillary information could only be for the purpose of incriminating him. Such a purpose goes beyond the jurisdictional basis of an ancillary order: AJ Bekhor & Co Ltd v Bilton [1981] QB 923 applied. (6) Exceptions to the freezing order are made having regard to the principle that a freezing order is not designed to operate as a form of de facto security for a judgment that the applicant may ultimately recover and that its sole purpose is to ensure that the processes of the court are not frustrated by the removal or dissipation of assets that will, in the ordinary course, be available to answer the judgment: Westpac Banking Corporation v McArthur [2007] NSWSC 1347, Refuse to Lost Pty Ltd v Kostakis [2025] VSC 438 applied. Uniform Civil Rules 2020 rr. 112.14, 112.15, 182.3, 112.17, and sch 3, pt 3, r 5., referred to. AJ Bekhor & Co Ltd v Bilton [1981] QB 923; Behbehani v Salem [1989] 1 WLR 723; Biscen Pty Ltd v Temsign Pty Ltd [1995] FCA 1587; Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350; Cardile v Led Builders Pty Ltd (1999) 198 CLR 380; Cobra Golf Inc v Rata [1997] 2 All ER 150; Farah Constructions Pty Limited v Say-Dee Pty Ltd (2009) 230 CLR 89; Firmtech Aluminium Pty Ltd v Xie (No 2) [2022] NSWSC 1142; Graincorp Operations Limited v Duncan Ross Munro [2015] NSWSC 227; Hathway (liquidator), in the matter of Tightrope Retail Pty Ltd (in liq) v Tripolitis [2015] FCA 1003; House of Spring Gardens Limited v Waite [1985] FSR 173; Jackson v Sterling Industries [1987] HCA 23; McEntee v SJ Berry Pty Ltd [2024] SADC 8; Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754; Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319; Planet International Limited v Garcia (No.2) [1991] 1 Qd R 426; RAC Limited v Allsop [1998] Ch 109; Refuse to Lose Pty Ltd v Kostakis [2025] VSC 438; Seeley International Pty Ltd v Millennium Electronics Pty Ltd [2020] SASC 205 ; Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141; Summer Hicks v Daniel Mark Harris [2023] SADC 94; Thomas A Edison v Bullock (1912) 15 CLR 679; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 228 ALR 174; Westpac Banking Corporation v McArthur [2007] NSWSC 1347; Yadlamalka Land Pty Ltd v Ragless & Anor [2018] SASC 131; Zhen v Mo [2008] VSC 300, applied. -- 2 of 20 -- MABARRACK v BEECROFT [2025] SADC 120 Introduction 1 By interlocutory applications dated 29 January 2025 and 19 June 2025, the applicants seek a freezing order in the sum of $449,580.85 against both respondents and ancillary orders against the second respondent that he disclose further information about expenses that he incurred when travelling to the United States on a holiday. 2 The first respondent opposes the orders sought against her. The first respondent accepts that there is a good arguable case against her but contends that the order should be refused because: (1) the applicant has not established with precision the amount that should be the subject of the order; and (2) the balance of convenience favours the application being rejected. 3 The second respondent opposes the orders sought against him. The second respondent contends: (1) there is not a good arguable case against him or if there is, it is limited to a claim for $50,000; and (2) the ancillary orders should not be made as all necessary information has been provided. Factual background 4 The findings made in this judgment are made for the purposes of the interlocutory applications and do not represent concluded views on any issue and were made on the affidavit evidence tendered in the hearing of those applications, the deponents of which were not the subject of cross-examination. 5 The first and second respondents are married. The first respondent was the daughter of Moussi Mabarrack (now deceased)(Mr Mabarrack). His executors are the first applicants. Prior to his death, Mr Mabarrack states that he was reliant on the first respondent to assist him with his banking. The first respondent was also, with her brother, Michael Mabarrack, a director of the second respondent, Moussi Nominees Pty Ltd (Nominees). Nominees was a nominee company which had been established by Mr Mabarrack and acted as the trustee of the Moussi Nominees Trust (the Trust). Mr Mabarrack was advised of various discrepancies by Michael Mabarrack concerning the accounts of Nominees. An investigation was carried out into those accounts and also the personal accounts of Mr Mabarrack. That investigation showed that the first respondent had allegedly misappropriated money (without the knowledge or consent of Mr Mabarrack or Michael Mabarrack): (1) from Nominees; (2) by using a credit card in the name of Mr Mabarrack for her own purposes; and (3) by withdrawing or transferring money from a savings account in the name of Mr Mabarrack. When proceedings were instituted and a previous freezing order was made, the sum of $342,224 had been identified by the applicants as the amount that had been allegedly misappropriated. Since that time, further sums have been identified. The applicants now claim that the following sums have been misappropriated by the first respondent: -- 3 of 20 -- [2025] SADC 120 2 • The sum of $339,118.59 (which includes interest of $63,985.84) from the account of Nominees; • The sum of $59,667.83 (which includes interest of $13,264.14) from the credit card of Mr Mabarrack; and • The sum of $50,794.13 (which includes interest of $11,920.05) from the bank account of Mr Mabarrack. 6 In respect of each of the items that make up the amounts claimed, the applicants, through banking records, have identified the account from which the funds came and the person or entity to whom payment was made. There are hundreds of individual items that make up the amounts claimed. 7 There are two items in the journal of Nominees which record payments to “CJI Beecroft”. These items record a transfer of $25,000 from Nominees to Mr Beecroft on 16 August 2021 and a further payment of $25,000 from Mabarrack Nominees to Mr Beecroft on 6 September 2021. The bank statements of Nominees for each of these transactions record “ANZ Internet Banking Payment” to “CJI Beecroft”. 8 The applicants rely on two communications from the first respondent which they claim constitute admissions by the first respondent. The first of these is a text message from the first respondent to Michael Mabarrack made on 27 November 2023. In that text message, the first respondent states “the issue is between me and Dad and Craig [her husband, the second respondent] has nothing to do with it, if he wants to recover the money it will be me and me alone he can take to court.” Further on, in the text message, the first respondent states “I’m truly sorry for what I have caused, you and Joe are now the sole people and beneficiaries in Moussi Nominees, You and Joe will have everything from now on.” 9 The applicants also claim that the first respondent made admissions in a letter that she sent to her brothers, Michael and Joe, and copied to the applicants’ lawyers, Websters Lawyers. On 25 June 2024, Websters Lawyers sent a letter to the first respondent in which they demanded the return of $342,224 from the first respondent which they claimed had been misappropriated from the applicants. The first respondent sent an email to Websters Lawyers on 18 August 2024 in which she attached her response to Michael and Joe. In that response, she stated “I am truly sorry for all the pain I have caused our family.” “What I did and the pain I caused everyone will live with me for the rest of my life” “just so you know I am fully aware of the consequences of this letter and that it could be used by you both, hence it is also being sent to Websters Lawyers”. Previous court orders and affidavits 10 In an originating application made on 1 July 2024, the applicants sought, pursuant to Uniform Civil Rules 2020 (UCR) 112.14, a freezing order over the assets of the respondents up to the unencumbered value of $342,224.00. -- 4 of 20 -- [2025] SADC 120 3 11 On 10 July 2024, the Court granted an ex parte freezing order. The freezing order included an order that the respondents inform the applicants in writing of their assets, giving their value, location and details (including any mortgages, charges or other encumbrances to which they were subject) and further ordered that the respondents provide an affidavit setting out that information. 12 There was no application by the respondents, once they were served, to discharge the freezing order. The respondents paid the full amount of the freezing order, that is the sum of $342,224.00, into Court on 3 March 2025. Clause 12(a) of the freezing order provides that the order ceases to have effect upon that payment. 13 On 17 July 2024, the first respondent provided an affidavit setting out her assets. On 30 July 2024, the second respondent provided an affidavit setting out his assets. In that affidavit, the second respondent also stated he was not involved in any misappropriation and that the $50,000 was received into a joint bank account that he held with the first respondent, that he did not deal with the money and was unaware of the exact date upon which it was transferred into that bank account. The second respondent filed a further affidavit on 4 August 2025 in which he stated that he travelled to the United States of America in about January 2025 and that his son, Samel Beecroft, paid for that trip. Mr Beecroft further said that he paid for incidentals on his credit card. Legal principles relating to freezing orders 14 UCR 112.14 provides: (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. 15 UCR 112.15 provides: The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers appropriate. Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes— (a) eliciting information relating to assets relevant to the freezing order or prospective freezing order; (b) determining whether the freezing order should be made. 16 The doctrinal basis of the freezing order, as set out in UCR 112.14 and also established in a long line of authority, is to prevent the frustration of the Court’s -- 5 of 20 -- [2025] SADC 120 4 process (namely the recovery of a judgment) and is designed to protect a prospective enforcement process.1 The order is not designed to provide security for the applicant’s claim.2 The applicant for a freezing order must establish that there is a real danger that the assets of the prospective judgment will be wholly or partly unsatisfied because the assets of the prospective judgment debtor are disposed of or dealt with or otherwise diminished in value.3 In Yadlamalka Land Pty Ltd v Ragless & Anor,4 Hinton J observed that the freezing order is a drastic remedy, is not lightly granted and that its purpose is to preserve the status quo. The order is discretionary.5 17 Certain general principles relating to freezing orders are relevant to the applications before the Court and are not the subject of controversy. This Court has on many occasions applied these principles.6 These principles are: (1) The threshold requirement for obtaining a freezing order in the case of an accrued or prospective cause of action is a good arguable case.7 (2) The Courts have consistently recognised that a freezing order is an exceptional remedy and should not be granted lightly.8 (3) The application must be supported by evidence and not speculation. (4) The applicant for the order bears the onus of satisfying the Court as to the amount which is to be the subject of the order. The applicant for the freezing order must establish with some precision the value of the prospective judgment. The order should not unnecessarily tie up a party’s assets and property.9 (5) The balance of convenience must favour the granting of the freezing order.10 1 Yadlamalka Land Pty Ltd v Ragless & Anor [2018] SASC 131 at [38] and the cases referred to therein. 2 Jackson v Sterling Industries [1987] HCA 23; (1987) 162 CLR 612 at 621, 625. 3 Seeley International v Millennium Electronics [2020] SASC 205 at [6]; Yadlamalka Land Pty Ltd v Ragless & Anor [2018] SASC 131 at [35] ff. 4 Ibid at [40]. 5 Refuse to Lose Pty Ltd v Kostakis [2025] VSC 438, [151]. 6 McEntee v SJ Berry Pty Ltd [2024] SADC 8, [35]. 7 UCR 112.17(1) and (2). See Livesey J (as he then was) in Seeley International Pty Ltd v Millennium Electronics Pty Ltd [2020] SASC 205 at [8] as to what constitutes a good arguable case. 8 Yadlamalka Land Pty Ltd v Ragless [2018] SASC 131 at [35]-[41]. Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141 at [57]; [2013] NSWCA 102 at [57]. 9 Zhen v Mo [2008] VSC 300 at [29] citing Cardile v Led Builders Pty Ltd (1999) 198 CLR 380 at [124]: Refuse to Lose Pty Ltd v Kostakis [2025] VSC 438, [161]. 10 Zhen v Mo [2008] VSC 300 at [27] citing Consolidated Constructions Pty Ltd v Bellenville Pty Ltd [2002] FCA 1513. -- 6 of 20 -- [2025] SADC 120 5 (6) Evidence of dishonesty which may be relevant in establishing whether an applicant for a freezing order has a good arguable case may also be relevant to the issue of the risk of dealing with assets.11 (7) It is not necessary for the applicants to show an actual intention on the part of the respondents to deal with their assets and defeat the recovery of the judgment sum. Have the applicants established with precision the value of the prospective judgment? 18 The recognition that a freezing order is a drastic remedy that curtails the right of a person to use their assets as they see fit underlies the requirement that the applicants must establish with precision the amount of their potential judgment. Any freezing of assets beyond that sum provides an unjustifiable interference with the rights of a respondent. Kirby J in Cardile v Led Builders Pty Ltd12 recognised that it might not always be possible to precisely identify the amount of a potential judgment. Kirby J held: The ultimate measure of the property and other assets of the appellants which could properly be made the subject of an asset preservation order is that part of such property and assets which, on a reasonable estimate, would be needed to meet a judgment of the Federal Court in favour of LED in the copyright proceedings. No more. There was no warrant for freezing the assets of the appellants beyond LED's potential judgment. True, it would have been difficult for the primary judge to estimate, with precision, the ultimate recovery of LED, given that the claim for any account of profits had been heard by another judge and reserved. However, it was necessary, in terms of principle, to limit the disturbance of the property and other assets of the Cardiles and Ultra Modern to the potential recovery of LED and nothing more. 19 The applicants have established with precision the amount that they contend is the value of their prospective judgment. They have analysed the transactions recorded in the accounts of Nominees and Mr Mabarrack (which they say were controlled by the first respondent) and ascertained those transactions which they say were not authorised and were for the benefit of the respondents. However, that sum only provides the starting point for the analysis of the value of the prospective judgment. The first respondent has raised a number of matters which she contends demonstrate that the value of the prospective judgment is not the amount contended for by the applicants. In my view, this contention raises not so much an issue as to whether the applicants have established with precision the amount of the prospective judgment but whether the applicants have established a good arguable case in relation to the disputed items. In other words, if the applicants have not established a good arguable case in respect of the disputed items, it would follow that they have not established a good arguable case in respect of the claimed judgment sum but only in respect of some lesser sum. 11 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325. 12 (1999) 198 CLR 380, [129]; [1999] HCA 18. -- 7 of 20 -- [2025] SADC 120 6 Adjustments 20 The first adjustment that is required to be made is to take into account the amount of the monies that have been paid into Court, namely the sum of $342,224.00. Clearly, after taking into account this payment, the freezing order cannot not exceed the sum of $107,356, such sum being sufficient to meet a prospective judgment. 21 However, the first respondent in her written and oral submissions has claimed that the amounts comprised in the transactions referred to below should be deducted from the amount claimed by the applicants: (1) Transactions identified as being for the benefit of Michael Mabarrack and Alex Mabarrack in the sum of $18,307.20; (2) Transactions described as being for the deceased’s benefit in the sum of $20,500.00; (3) Transactions for the deceased’s benefit in the sum of $2003.03; (4) Transactions for the deceased’s household and usual expenses constituting payments to: (a) AGL in the sum of $0 (amounts payable to AGL were excluded from the applicants’ final calculations of their claim); (b) SA Water in the sum $1009.72; (c) City of Mitcham transactions-$0 (amounts payable to the City of Mitcham were excluded from the applicants’ final calculations of their claim); (d) Revenue SA-$0 (amounts payable to Revenue SA were excluded from the applicants’ final calculations of their claim); (e) Foodland in the sum of $53,704.10; (f) BUPA in the sum of $0 (amounts payable to BUPA were excluded from the applicants’ final calculations of their claim); (g) Cash withdrawals in the sum of $65,528; (5) Double counting of transactions from the account of Nominees to the deceased’s credit account in the sum of $18,000; (6) Double counting of transactions and errors in the sum of $17,450.18. 22 The first transactions to be considered are those which are recorded as being for the benefit of Michael or Alex Mabarrack. The first respondent submits that -- 8 of 20 -- [2025] SADC 120 7 the journal records of Nominees record those transactions as being under the name of Michael or Alex. The applicants submit that there should be no adjustment in respect of these items as the first respondent was in control of the accounts and any misdescription in the journal was made by her. It is the evidence of Michael Mabarrack that he did not authorise the payment of those sums. Further, as the applicants contend, there is evidence that it was the first respondent and not Alex Mabarrack who received goods from Trelise Cooper, one of the payees referred to in the journal. Alex Mabarrack is the name in the journal as the person who received the benefit of these items. That is evidence that the recording of names by the first respondent in the beneficiary accounts may not always be accurate. Given the evidence of dishonesty on the part of the first respondent, it is arguable that these transactions were not properly allocated to Michael and Alex Mabarrack. Therefore, for the purposes of this argument, I consider that there is a good arguable case that the applicants are entitled to these amounts. I therefore do not propose any reduction or adjustments for these transactions. 23 The second group of transactions in respect of which the first respondent claims there should be an adjustment are three internet banking payments to Mr Mabarrack. Those payments were: • $5,000 on 30 June 2021; • $17,500 on 23 February 2021; and • $3,000 on 9 September 2021. 24 In their revised calculation of their claim, the applicants conceded that the payment of the $5,000 was not part of their claim. This amount does not form part of the amount claimed in the freezing order. The applicants undertook further investigations in relation to the two other payments and there was evidence tendered from the ANZ Bank which was to the effect that the account details to which these payments were made did not match the details of the payee that was recorded in the journal. In other words, it was not Mr Mabarrack’s accounts into which the monies were deposited. In those circumstances, given the evidence relating to the dishonesty of the first respondent and the evidence about the unauthorised transactions, I am satisfied that there is a good arguable case in relation to these payments. I therefore do not propose any reduction for these transactions. 25 The third group of transactions involve the sum of $2,003.03 which the first respondent claims was for the benefit of Mr Mabarrack. The sum of $2,003.03 comprised some 10 items. The applicants have made an adjustment in respect of three of these items in their revised claim and submit no further adjustment is required in relation to the remaining items. The first respondent relies on statements that she made in her affidavit where she records details of those payments. This is counter to the evidence of the applicants which is to the effect that these items were part of the unauthorised items. It is not possible to resolve -- 9 of 20 -- [2025] SADC 120 8 such a matter on an interlocutory hearing given that there are no financial records that are definitive. It follows that the evidence put forward by the applicants is sufficient to establish a good arguable case. I therefore do not propose any reduction for these transactions. 26 The fourth group of transactions involve the sum of $1,009.72 which the applicants claim were payments to SA Water which were to the benefit of the first respondent. The two amounts in question were in the sum of $446.65 and $563.07 which were paid by credit card while the other payments (which were to the benefit of Mr Mabarrack) were generally made by BPAY. I do not consider this to be a sufficient basis to say that the applicants have established a good arguable case that these payments were not to the benefit of Mr Mabarrack when there is no evidence of Mr Mabarrack’s account with SA Water and whether these two amounts were credited to those accounts. I therefore will allow an adjustment to the amount claimed in the sum of $1,009.72. 27 The fifth group of transactions involve the sum of $53,704.10 which was paid to Foodland. In the revised schedule, the items that are claimed in respect of Foodland comprise $147.78 in relation to Marion Foodland and $23,079.77 in respect of Pasadena Foodland. The amounts claimed in respect of the Pasadena Foodland came in large part from the account of Nominees ($11,907.20) and the savings account of Mr Mabarrack ($10,801.15). The first respondent has given evidence that these payments were for the benefit of the deceased for his groceries. From about January 2021, Mr Mabarrack was unable to go grocery shopping and the first respondent would take his wife with her and they would do the grocery shopping on his behalf and therefore the payments were on his behalf. The revised schedule makes an adjustment for the amounts claimed in respect of Foodland. There is evidence from the applicants that Michael Mabarrack and Mr Mabarrack did not authorise payments from Nominees. There is also the evidence about the dishonesty of the first respondent. On the other hand there is evidence from the first respondent that the payments were for the groceries of the deceased. It is not possible to resolve such a matter on an interlocutory hearing given that there are no financial records that are definitive. It follows that the evidence put forward by the applicants, including evidence concerning the dishonesty of the first respondent, is sufficient to establish a good arguable case in relation to this aspect of the claim. I therefore do not propose any reduction for these transactions. 28 The sixth group of transactions concern cash withdrawals in the sum of $65,528. The first respondent gave evidence that she observed that Mr Mabarrack’s wife would sometimes use his debit card and make withdrawals from his debit card when they went grocery shopping together. This does not explain debits to the account of Nominees or the amount of those debits, $48,000. Again, it is not possible to resolve such a matter on an interlocutory hearing given that there are no financial records that are definitive. It follows that the evidence put forward by the applicants, including about the dishonesty of the first respondent, is sufficient to establish a good arguable case in relation to this aspect of the claim. I therefore do not propose any reduction for these transactions. -- 10 of 20 -- [2025] SADC 120 9 29 The seventh group of transactions concern what the first respondent submits is double counting in the sum of $18,000 which represents payments that were transferred from the account of Nominees to the credit card of Mr Mabarrack and were therefore paid twice. The applicants provided further evidence of the adjustments that they made to the amount of their claim by reducing the amount claimed by Nominees in respect of this double counting. That adjustment is reflected in the following entries. The applicants initially claimed: (1) ANZ BPAY in the sum of $21,775.78; (2) ANZ Internet Banking in the sum of $17,500; and (3) Moususi Mabarrack in the sum of $25,500. Following the information provided by the first respondent in her affidavit in relation to the three internet payment totalling $25,500 (referred to above), the applicants: (1) reduced Moussi Mabarrack to zero; (2) reduced ANZ BPAY to zero and (3) increased ANZ Internet Banking from $17,500 to $38,000 to take into account the sum of $20,500 which represented the two internet payments of $17,500 and $3,000. I consider these adjustments address the alleged double counting such that no further adjustment is required at this stage. I therefore do not propose any reduction for these transactions. 30 The eighth group of transactions involve a further double counting of transactions and errors. The applicants’ concede there is double counting of transactions and errors and the amount claimed should be reduced in the sum of $17,450.18. I propose to make a reduction in the claim for that sum. 31 In setting out the quantum of their claim, the applicants have claimed interest in the sum of $89,170. Interest was calculated pursuant to UCR 182.3 at the rate of 7%. The first respondent makes two complaints about the interest calculation. The first complaint is that the sum upon which interest is calculated has been reduced and therefore the amount of interest should be reduced. The second complaint is that the interest calculation has been made on a yearly basis but has been made as if all payments that were incurred at the start of particular year, rather than through the course of the year. This has the consequence that the interest calculation is overstated. 32 I consider that there is substance in each of these complaints. The sum upon which the interest calculation should be made has been reduced by $18,459. Further, the calculation, by treating the whole amount that has been allegedly misappropriated for the year as having been misappropriated at the start of the year, overstates the true quantum of the interest. Taking a broad brush approach, I consider that the interest calculation should be reduced by $10,000. Balance of convenience 33 The first respondent submitted that the balance of convenience did not favour granting the application. In making this contention, the first respondent did not rely on any particular prejudice that would be caused to the first respondent by reason of the freezing order but relied upon what she contends was a failure on the part of the applicants to make full and frank disclosure to the Court of all material facts. -- 11 of 20 -- [2025] SADC 120 10 The first respondent referred to UCR, Schedule 3, Part 3, rule 5 and the well-known passage in Thomas A Edison v Bullock13 in support of that allegation. Those authorities both deal with ex parte applications. 34 The first respondent contends that the applicants: (1) failed to provide the Deed of Trust for the Trust; (2) failed to dispose to the Court the beneficiary transaction account until FDN 34; and (3) sought to include in the amount of the prospective freezing order transactions which are readily apparent as being for the benefit of the applicants and their families. 35 The matters raised by the first respondent go more to discretionary considerations which militate against the granting of a freezing order. However, the present application is an inter partes application. I am not persuaded that any failure to disclose this information is a relevant discretionary matter. As to the Deed of Trust, the first respondent was a director of Nominees and in that capacity would know that the company acted as trustee of the Trust. Further, the existence of the Trust is not relevant as the applicants have framed their claim by alleging that the money was misappropriated by the first respondent by her actions in making payments that were unauthorised and made without the knowledge or consent of her co-director, Michael Mabarrack. That is, she did not have the authority to make the payments. The existence of the Trust and the terms of the Trust do not affect the applicants’ characterisation of the conduct of the first respondent. 36 The failure to disclose the beneficiaries’ account falls into the same category. Further, as the first respondent accepts, these documents have in fact been disclosed prior to the substantive hearing of the application. In both of these circumstances, the failure to disclose the beneficiaries’ transaction account is not of any weight. 37 The third matter complained of by the first respondent is that the applicants have included amounts in the prospective freezing order that are for the benefit of the applicants and their families. That is a matter of contest. There is no suggestion that the applicants have included amounts that they do not properly consider form part of their claim There may be a dispute about these matters and whether they properly are included but that does not amount to material non-disclosure by the applicants. In any event, it is within the first respondent’s ability to respond to those matters. 38 The first respondent also contends that there was a failure to make full and frank disclosure on the ex parte application and that is a discretionary matter that 13 (1912) 15 CLR 679, 681-2. -- 12 of 20 -- [2025] SADC 120 11 the Court can take into account when considering this application for a freezing order. I reject this contention for a number of reasons. First, the usual order for a failure to make full and frank disclosure is the discharge of the order that was granted ex parte. The applicant for the injunction can then apply for a fresh injunction.14 Ralph Gibson LJ in Brink’s Mat Ltd v Elcombe15 set out a number of principles upon which the assessment of non-disclosure and its consequences is made. His Honour noted that notwithstanding non-disclosure, the Court retained a discretion as to whether or not to continue the order, to make a new order or require the immediate discharge of the order. The purpose of the discharge of an ex parte injunction obtained without full disclosure is to deprive the wrongdoer of the advantage improperly obtained.16 However, the rule cannot become an instrument of injustice and there the court retains a discretion to continue the injunction or grant a fresh injunction in its place even if there has been material non-disclosure.17 Secondly, for the reasons that have already been expressed, I do not consider that there was a material failure to make full and frank disclosure. Thirdly, there was no application to discharge the initial freezing order. Instead, the respondents paid into Court the amount of the freezing order and it was then discharged automatically. In these circumstances, it is not appropriate for the Court to conduct a hypothetical inquiry as to the circumstances of making the previous freezing order. 39 The first respondent also submitted that a relevant discretionary matter was the failure of the applicants to comply with some of the timetabling orders. There was no evidence of any prejudice suffered by the respondents as a result of any failures and I do not consider that they provide a basis to refuse to grant a freezing order as part of the Court’s discretion. There was no relevant delay in making the fresh application for a freezing order, given the complexity of identifying the quantum of the alleged misappropriation. Conclusion concerning the application for a freezing order against the first respondent 40 I am satisfied that a freezing order should be ordered against the first respondent in the sum of $78,896.10. Good arguable case against the second respondent 41 The second respondent contends that the applicants have not established that they have a good arguable case against him. The extent of the freezing order against the second respondent cannot be any greater than $50,000 as there is no evidence that the second respondent received any other monies or was involved in any other transactions beyond the two transactions referred to below. This amount concerns monies transferred in two tranches of $25,000 each. The two sums were 14 Ibid, [44]. 15 [1988] 1 WLR 1350 at 1356-7. Approved by the Court of Appeal in Behbehani v Salem [1989] 1 WLR 723. 16 Ibid, 1358. 17 Ibid. -- 13 of 20 -- [2025] SADC 120 12 transferred on 16 August 2021 and 6 September 2021. The ANZ Bank statement records for each of those dates record a transfer to “CJI Beecroft”.18 I note that the second respondent in his affidavit of assets sworn on 29 July 2024 states that the money was received into a joint bank account with his wife and that he never dealt with the money. Other than this assertion, there is no evidence that the money was paid into a joint account. Strictly, this affidavit was not tendered in the application, although I am prepared to accept it as the second respondent’s evidence as to these transfers as it was referred to, without objection, during the course of the argument. 42 I am satisfied that the applicants have established a good arguable case against the second respondent. The applicants’ case against the second respondent is based on knowing receipt of monies that were obtained through the breach of a fiduciary duty of the first respondent or knowing assistance in the breach of fiduciary duty of the first respondent. The principles and requirements of those two causes of action are explained in Farah Constructions Pty Limited v Say-Dee Pty Ltd (Farah Constructions).19 43 The entry completed by the bank statement by the first respondent which nominates the second respondent as the beneficiary of the funds is evidence that the transfer was to the benefit of the second respondent. If that is the case, it is reasonable to infer that the second respondent had sufficient knowledge of the transfer to come within the categories of knowledge set out in Farah Constructions and was sufficient to establish a good arguable case of knowing receipt or knowing assistance. The two sums of $25,000 are large amounts which are received into that account of which the second respondent is a joint holder. 44 The freezing order against the second respondent should therefore be limited to $50,000 plus interest on that sum. As a broadbrush estimate, I would allow interest in the sum of $3,000. I therefore will limit the quantum of the freezing order against the second respondent to $53,000. 45 The second respondent did not advance any reasons beyond those advanced by the first respondent as to why the balance of convenience did not favour the granting of the freezing order or why the Court, might, in the exercise of its discretion, decline to make such an order. It follows that, for the reasons previously expressed, I do not consider that either of these matters provide a justification for refusing to make the order. Ancillary orders 46 Although the power to make an ancillary order is expressed in wide terms and UCR 112.15 does not limit the circumstances in which an order might be made, “any order made must be framed to as to come within the limits set by the 18 pp 242 and 245 of the affidavit of Andrew Geoffrey Carpenter made on 29 July 2005 (FND 29). 19 (2009) 230 CLR 89, [111]-[122]. -- 14 of 20 -- [2025] SADC 120 13 purpose which the order can properly be intended to serve, that is, to ensure the effective exercise of the jurisdiction invoked.”20 47 The discretion that the Court has to make an ancillary order must be exercised by reference to the purposes of the freezing order. Therefore, the ancillary order must assist the freezing order to ensure assets of the prospective judgment debtor are not disposed of or dealt with or otherwise diminished in value so as to frustrate any prospective judgment. This Court had occasion to consider these principles in Summer Hicks v Daniel Mark Harris.21 I will repeat those principles, insofar as they are relevant to the present application. 48 In AJ Bekhor & Co Ltd v Bilton (Bekhor),22 the Court of Appeal held that the court had the power to make all such ancillary orders as appeared to be just and convenient to ensure that the exercise of the jurisdiction to make a mareva injunction (or freezing order) was effective to achieve its purpose. Accordingly, the Court in that case ordered the respondent to provide information about his assets. 49 However, the Court emphasised that the ancillary order must not go too far. The Court held that an order which was sought for the purpose of ascertaining whether a previous disclosure order had been breached (and therefore for the purpose of incriminating and ultimately punishing the defendant for contempt) goes beyond the jurisdictional basis of such an order and will not be made.23 Ackner LJ held that the purpose of the mareva injunction (or freezing order) was not to improve the position of the applicant in an insolvency but to prevent the disposal of assets which would otherwise be available to satisfy a judgment. He went on to hold:24 The Courts must be vigilant to ensure that the Mareva defendant is not treated like a judgment debtor. It was no doubt with this general principle in mind that Robert Goff J in A v C (Note). Post 956 [A v C [1981] 1 QB 956] was at pains to point out that it would not be right to make general use of the power to enable the plaintiff to discover whether the defendant has any assets here. However, having established the existence of assets, it may in a particular case, be necessary for the proper exercise of the jurisdiction that the defendant should provide information about a particular asset. 50 Stephenson LJ held that insofar as the ancillary order sought information that related to the respondent’s past assets, as distinct from the present whereabouts of its assets, its purpose was not to assist the court or the applicant to locate and freeze particular assets but to open the way to punishing the respondent for contempt. That purpose goes beyond the legitimate purpose of an ancillary order and is not necessary for the proper and effective exercise of the freezing order. 20 Yadlamalka Land Pty Ltd v Ragless & Anor [2018] SASC 131 at [39]. 21 [2023] SADC 94, [16]-[36] 22 [1981] EWCA 8; [1981] 2 QB 923 at 940; [1981] 2 All ER 565; [1981] QB 923 at 940. 23 Ibid at 945. 24 Ibid at 942. -- 15 of 20 -- [2025] SADC 120 14 51 There have been a number of cases that have considered the principles set out in Bekhor and that provide some guidance as to the width of the ancillary orders. In Biscen Pty Ltd v Temsign Pty Ltd (Biscen)25 Carr J refused to make an order concerning assets and liabilities and any past dispositions of assets for the reasons set out in Bekhor. More recent decisions have taken a broader approach than that taken in Bekhor and Biscen. 52 In Firmtech Aluminium Pty Ltd v Xie (No 2),26 Robb J analysed the jurisdictional basis for making ancillary orders to a freezing order and concluded that an ancillary order requiring disclosure by the respondent did not need to be limited to information relating to the assets and liabilities of the respondent but could include information in respect of payments and other transactional arrangements, citing Bergin CJ in Eq in Graincorp Operations Limited v Duncan Ross Munro.27 In Graincorp, a payment of $750,000 was made to the respondent in exchange for the delivery of barley. In the context of an application for a freezing order, the applicant sought the disclosure of the assets and liabilities of the respondent together with the identification of the bank account or other destination of those payments. The Court granted that order and found that the applicant had a concern where the money went and given the silence of the respondent in relation to that issue, it was appropriate that the ancillary order require the provision of that information. 53 Markovic J in Hathway (liquidator), in the matter of Tightrope Retail Pty Ltd (in liq) v Tripolitis,28 granted an order, ancillary to a prospective freezing order, requiring the respondent to be cross examined on his affidavit as to assets and liabilities. Markovic J quoted from the decision of Thomas J in Planet International Limited v Garcia (No.2 )29 who in turn quoted from the judgment of Cumming-Bruce LCJ in House of Spring Gardens Limited v Waite30 that: The court has the power (and, I would add, the duty) to take such steps as are practicable upon an application of the plaintiff to procure that where an order has been made that the defendants identify their assets and disclose their whereabouts, such steps are taken as will enable the order to have effect as completely and successfully as the powers of the court can procure. and – The purpose of the cross-examination would be to elicit with greater particularity the extent and the whereabouts of the defendants’ assets. The background of applications for Mareva injunctions is often a situation in which it is urgently necessary for the court to intervene in order to assist the plaintiff to prevent the defendant from frustrating the object of the proceedings. In such a situation an order to cross-examine upon an unsatisfactory affidavit already filed is one of the courses that the court has jurisdiction to take. When 25 [1995] FCA 1587. 26 [2022] NSWSC 1142 at [34]. 27 [2015] NSWSC 227 at [9]-[17]. 28 [2015] FCA 1003. 29 [1991] 1 Qd R 426 at 427. 30 [1985] FSR 173 at 183. -- 16 of 20 -- [2025] SADC 120 15 such cross-examination takes place it is entirely a matter for the judge presiding on cross- examination properly to control it. 54 Thomas J went on to hold: Mr Lyons Q.C. on behalf of the respondent Mr Garcia submitted that courts are slow to make such orders. I am not sure that that is correct, although I acknowledge that the defendants need protection from being treated as “debtors in advance” as Lord Ackner acknowledged in A.J. Bekhor and Company Limited v. Bilton [1981] EWCA Civ 8; [1981] QB 923, 942; [1981] 1 Lloyds’ Rep 491, 500. Also fishing expeditions must be prevented if that seems to be the object of the exercise. However it seems to me that the matter is at large and that it will depend upon the facts and circumstances of each particular case whether the exercise is unduly oppressive, unnecessary, insufficiently relevant, or whether the affidavit plainly requires better exposition that the deponent is prepared to give without the stimulus of cross-examination. 55 Markovic J also referred to the decision in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd,31 where Moore J held that where there might be doubt as to whether the disclosure of assets and liabilities had been complete, cross-examination on the affidavit would be appropriate to test whether the disclosure affidavits fully revealed the assets over which the freezing order operated and which might be available to satisfy a judgment. 56 In deciding that it was appropriate to make an ancillary order requiring the respondent to be cross-examined on his affidavit, Markovic J relied, amongst other matters, upon the fact that funds had moved from the applicant companies to a bank account of the respondents and the funds could not now be located. Her Honour concluded that the order for cross examination was within the bounds of what is permitted and was a just and convenient way of ensuring that all relevant assets were identified before any opportunity arises for the dissipation of assets. 57 Cases involving the making of ancillary orders in the context of Anton Piller orders, or as they are now called, search orders, also provide some assistance in determining the scope of such orders. In RAC Limited v Allsop,32 the Court examined the rationale for the making of ancillary orders in the context of Anton Piller orders and made the following statement which was cited with approval in Cobra Golf Inc v Rata.33 With necessary modifications, the same principles apply to an ancillary order in aid of a freezing order. In RAC v Allsop, Peter Gibson J said:34 On the assumption that the court has the power to order cross-examination, the question remains whether it is appropriate in the particular circumstances of each defendant to make an order for cross-examination. It is clear that on the assumption the court has a discretion, it is of proper concern of court that its order should be fully complied with. It cannot be right that a person who is ordered to swear an affidavit giving certain information should be able to disclose to whatever he pleases without any fear that the evidence can be 31 (2005) 228 ALR 174 at 184. 32 Unreported 3 October 1984 but reproduced in [1998] Ch 109 at 122. 33 [1997] 2 All ER 150; [1998] Ch 109 at 133. 34 Unreported 3 October 1984 but reproduced in [1998] Ch 109 at 122. -- 17 of 20 -- [2025] SADC 120 16 challenged effectively. Further, a principal object of the order for disclosure where Anton Piller relief is granted is to give to the plaintiff knowledge of the sources and whereabouts of illicit goods so that the plaintiff can take further proceedings against such sources and seize such supplies. As I see it the court should be ready to further that purpose. But in this area the court should proceed with caution. The object of the application must, I apprehend, truly be to obtain the further information which it believed is in the possession of the person the subject of the order but which the person has failed to disclose notwithstanding the earlier order. The object of the application must not be to enable contempt proceedings to be brought so as to punish the person served with the order. Further, it must not be to obtain information which is to be used for the purpose of the action when the action comes to trial. Inevitably if cross-examination is ordered and information is elicited there is likely to be some information which will go to questions of contempt and to the subject matter of the litigation. The court, must, I think, be alive to the dangers that an order for cross- examination brings. Mr Platts-Mills [Counsel] accepted that the court should not make an order for cross-examination unless satisfied that there was a reasonable likelihood that the person sought to be cross-examined had information which should have been disclosed pursuant to the order for disclosure and which would lead to the fulfilment of the purpose of the order, that is to say disclosure of sources and ascertaining the whereabouts of illicit goods. In my judgment Mr Platts-Mills [counsel] was plainly right to accept that there was a proper limitation in the court’s power to order cross-examination. It cannot be right to allow a plaintiff the opportunity of a roving cross-examination merely because the plaintiffs harbour suspicion that the person sought to be made the subject of the order has not been entirely open in his disclosure. 58 The ancillary order must not be used as a mere investigatory tool. In Microsoft Corp v Goodview Electronics Pty Ltd,35 Branson J held: The Court, must in my view, be careful to avoid the extraordinary jurisdiction of the Court to make an Anton Piller order from being subverted to a mere investigatory tool for the applicants, or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. 59 Therefore, the facts and circumstances of this case must be considered to determine the following matters: first, whether the information sought is for a legitimate purpose; secondly, whether the affidavit that has been provided by the respondent requires further explanation; and thirdly, whether the information being sought goes beyond the legitimate purpose and is, in substance, for one of the extraneous purposes referred to above. A legitimate purpose in making an ancillary order is to ensure that all relevant assets have been identified. 60 In the present case, the second respondent has provided an affidavit in which he confirms that he travelled to the United States, but that his son, Sameul Beecroft, paid for that trip and that incidentals such as accommodation were paid by the second respondent on his credit card which he subsequently paid off. If that information is false, contempt proceedings could be taken against the second respondent. However, it is not the case that an ancillary order should be made requiring the provision of further information as the information sought has already been provided. It is not the case that the ancillary order will identify further assets or provide greater particularity about the respondents’ assets. The purpose 35 [1999] FCA 754 at [24]-[26]. -- 18 of 20 -- [2025] SADC 120 17 of seeking the provision of any further information would be for the purpose of incriminating the second respondent. That is, to show that his affidavit as to assets was false. The applicant is using the ancillary order as an investigatory tool. 61 I therefore decline to make the ancillary order that is sought against the second respondent. Exceptions to the freezing order 62 The respondents have sought the usual exceptions to the freezing order relating to the payment of normal living expenses, reasonable legal costs and reasonable medical expenses. The applicants do not oppose these exceptions but did oppose their quantum. In framing an order for exceptions to the freezing order, it is important to observe that the freezing order is not designed to operate as a form of de facto security for a judgment that the applicant may ultimately recover and that the sole purpose is to ensure that the processes of the court are not frustrated by the removal or dissipation of assets that will in the ordinary course be available to answer the judgment.36 63 When the prior freezing order was made on 1 July 2024, the exclusions were that the orders did not prohibit the respondents from paying $500 per week in ordinary living expenses and $5,000 in reasonable legal expenses. There was subsequently an agreement to increase these amounts to permit the following expenses to be paid: (1) $2,000 per week for ordinary living expenses; (2) reasonable legal expenses of $12,000 for each of the respondents; and (3) reasonable medical expenses. 64 The first respondent now seeks to increase her weekly expenses to $3,000 per week and her separate legal costs to $50,000. The justification for that increased amount is that the first respondent is on a payment plan with her solicitors for fees incurred to date. 65 I do not consider that there is proper justification to increase the weekly expenses to $3,000 per week. I have come to the conclusion for two reasons. First, the affidavit material is vague as to the amount to be paid off and why and for what period the additional amount is required and why it cannot be repaid from the increased amount that I propose to allow in relation to legal fees. Secondly, expenses of $3,000 per week are significant in view of the income of the respondents. I therefore propose to allow the respondents to incur expenses of $2,000 per week for ordinary living expenses. 66 I will allow the increase in legal costs for each of the respondents to $50,000 as the nature of these proceedings means it is likely that such costs will be incurred. I also permit reasonable medical expenses to be paid. 36 Westpac Banking Corporation v McArthur [2007] NSWSC 1347, [51]-[54]; Refuse to Lose Pty Ltd v Kostakis [2025] VSC 438, [166]. -- 19 of 20 -- [2025] SADC 120 18 Conclusion 67 For the reasons that I have expressed, I will make the following orders: (1) a freezing order is granted against the first respondent in the sum of $78,896; (2) a freezing order is granted against the second respondent in the sum of $53,000; (3) the ancillary order that is sought against the second respondent to disclose details of the source of funding for his US trip is refused on the basis that this information has already been provided; and (4) there are exception to the freezing order to permit the respondents to pay living expenses of $2,000 per week, for each respondent to pay legal costs of $50,000 and to pay reasonable medical expenses. The applicants are to bring in minutes of order that reflect these reasons. -- 20 of 20 --