COMPLETE HIRE & SALES PTY LTD -v- OSB GROUP PTY LTD. [2026] WASC 296

[2026] WASC 296 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : COMPLETE HIRE & SALES PTY LTD -v- OSB GROUP PTY LTD. [2026] WASC 296 CORAM : MUSIKANTH J HEARD : 11 JUNE 2026 DELIVERED : 24 JULY 2026 PUBLISHED : 24 JULY 2026 FILE NO/S : CIV 1306 of 2026 BETWEEN : COMPLETE HIRE & SALES PTY LTD Plaintiff AND OSB GROUP PTY LTD. Defendant Catchwords: Practice and Procedure - Freezing Order - Jurisdictional questions - Whether plaintiff has a good arguable case - Whether there is danger a prospective judgment will be wholly or partially unsatisfied - Turns on own facts Legislation: Building and Construction Industry (Security of Payment) Act 2021 (WA) Rules of the Supreme Court 1971 (WA) -- 1 of 12 -- [2026] WASC 296 Page 2 Result: Application dismissed Category: B Representation: Counsel: Plaintiff : Mr M J Sims SC Defendant : Mr L N Firios Solicitors: Plaintiff : Hotchkin Hanly Defendant : Squire Patton Boggs Case(s) referred to in decision(s): BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [2018] WASCA 174; (2018) 53 WAR 201 Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG [1984] 1 All ER 398 Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188 Ronald Henk Brinkman v Cottlesoe Apartments (WA) Pty Ltd [2025] WASC 403 Trans Global Projects Pty Ltd (in liq) v Duro Felguera Australia Pty Ltd [2018] WASC 136 -- 2 of 12 -- [2026] WASC 296 MUSIKANTH J Page 3 MUSIKANTH J: 1 The plaintiff (Complete) applies by chamber summons for a freezing order and associated ancillary relief against the defendant (OSB), in respect of OSB's assets up to the value of $1,500,000, pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) (Rules). 2 The application, which was not said to be urgent, is brought inter partes. 3 OSB opposes the making of any freezing order. 4 For the reasons which follow, the application is dismissed. Background 5 Complete is engaged in the supply, installation and commissioning of portable accommodation buildings and other associated infrastructure. 6 OSB undertakes contract works on construction projects. Mr Kevin O'Shea is the sole director, secretary and shareholder of OSB. He is also the sole director, secretary and shareholder of LHRE, a labour hire company. Mr Michael O'Shea, Kevin O'Shea's brother, is the General Manager of both companies.1 7 Complete was engaged by Crushing Services International Pty Ltd (head contract) to undertake works for the design, supply, transport, construction, installation and commission of camp accommodation buildings and associated infrastructure at a site near Onslow (site). 8 Over the course of some months, Complete and OSB entered into a subcontract (subcontract) under which OSB agreed to perform a portion of the civil and earthworks (works) under the head contract for $617,812 (plus GST). 9 In 2023, OSB commenced proceedings in this court (CIV 2374 of 2023) seeking payment of a statutory debt from Complete pursuant to s 27 of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOP Act). 1 Intending no disrespect, in these reasons I have adopted the practice of referring to those members of the O'Shea family by their first names due to their common last name. -- 3 of 12 -- [2026] WASC 296 MUSIKANTH J Page 4 10 On 5 March 2026, judgment was entered in favour of OSB in that matter in the amount of $1,018,527.79 (plus interest) (Interim Payment). 11 On 6 March 2026, undertakings were given by: (1) Complete to the effect that it would commence an action in this court, substantially in the form of a draft writ of summons and statement of claim provided to OSB's lawyers, and to apply for freezing orders against OSB by 9 March 2026. (2) OSB to the effect that it would not instruct, direct, or cause its solicitors to disburse payment of the Interim Payment, which was to be made into OSB's solicitors' trust account, until determination of Complete's foreshadowed freezing order application. Complete's substantive claim 12 On 9 March 2026, commenced these proceedings by writ and filed its chamber summons. 13 By its writ, Complete claims that the subcontract was entered into by the parties following negotiations which occurred over email between May and July 2023, and by no later than 5 July 2023.2 14 In broad terms, Complete alleges that OSB breached the subcontract in failing to perform the works in a proper and workmanlike manner, to provide adequate labour and materials, to employ sufficient and suitable materials to perform the works expeditiously and in a proper manner, and otherwise bring the works to practical completion before permanently leaving the site. 15 Complete contends that, by reason of these breaches, OSB is not entitled to recover the Interim Payment and, further, that additional resources were necessary to complete the works and had to be procured from a third party. 16 By way of final relief, Complete seeks payment of the further costs which it says it has incurred, a declaration, restitution of the Interim Payment and costs on an indemnity basis. 2 Statement of Claim filed 9 March 2026 [4]. -- 4 of 12 -- [2026] WASC 296 MUSIKANTH J Page 5 Legal principles 17 The principles relevant to the grant of a freezing order are well established.3 18 The purpose of such relief is not to provide security for a judgment the applicant hopes to obtain and fears might not be satisfied,4 but to prevent frustration or abuse of the court's processes and preserve the efficacy of the execution that would lie against a prospective judgment debtor.5 19 It is a drastic remedy which ought not to be granted lightly. 20 Relevantly, in this case, the Court's jurisdiction is enlivened only6 if: (a) the plaintiff demonstrates a good arguable case on an accrued cause of action that is justiciable in the court;7 and (b) there is a real or substantial danger that any prospective judgment will be wholly or partly unsatisfied because assets of the defendant might be removed from Australia or otherwise disposed of, dealt with or diminished in value.8 21 Regarding the first requirement, a 'good arguable case' has been described as one which is 'more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50% chance of success',9 or which is reasonably arguable on legal and factual matters.10 22 In connection with the second requirement, the plaintiff has the onus of establishing there is a real or substantial risk of danger, as opposed to a remote, speculative or theoretical possibility.11 A causal 3 See Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [25] - [53]; Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [2018] WASCA 174; (2018) 53 WAR 201 [39] - [61]; Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [2011] WASC 188 [129] - [144]. 4 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In liq) [44]. 5 See Rules O 52A r 2(1); Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [134]; Cardile v LED Builders Pty Ltd [25], [40]. 6 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [6]. 7 O 52A r 5(1)(b)(i). 8 O 52A r 5(4)(b). 9 Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG [1984] 1 All ER 398, 404 as cited in Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [143]. 10 Ronald Henk Brinkman v Cottlesoe Apartments (WA) Pty Ltd [2025] WASC 403 [48(4)]. 11 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [43]; Ronald Henk Brinkman v Cottlesoe Apartments (WA) Pty Ltd [48(6)]. -- 5 of 12 -- [2026] WASC 296 MUSIKANTH J Page 6 connection between the event (the disposal or dealing with assets) and the danger is necessary.12 23 The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities, but it is unnecessary to establish that it is more probable than not that judgment will be unsatisfied unless a freezing order is made.13 It is also unnecessary for the plaintiff to establish the defendant has a positive intention to frustrate any prospective judgment.14 24 Once the court is satisfied its jurisdiction is enlivened, the court is to exercise its discretion which requires a balancing of the parties' interests. 25 The strength of the plaintiff's case, the danger of frustration of a prospective judgment, the balance of convenience15 and any other relevant discretionary factors are all considered together in the exercise of the discretion.16 Good arguable case 26 Complete relies upon contemporaneous correspondence which is said to evidence formation of the subcontract, difficulties with OSB's performance, and the engagement of another company, Pilbara Resource Group Pty Ltd, to complete the remainder of the works. 27 OSB advances a competing account. In this regard, Michael deposes to Complete having failed to provide mobilisation paperwork,17 Complete acknowledging it needed to 'get a move on' to allow OSB access to the site,18 earthworks not being completed prior to OSB commencing work,19 and OSB being instructed to complete out of scope works.20 28 In short, OSB alleges that the cause of the delays and other issues was engendered by Complete's 'inexperience and mismanagement'.21 12 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [41]. 13 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [43]; Ronald Henk Brinkman v Cottlesoe Apartments (WA) Pty Ltd [48(6)]. 14 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [55] - [57]. 15 See BGC Contracting Pty Ltd v WA Construction Hire Pty Ltd [2010] WASC 25 [22]. 16 Ronald Henk Brinkman v Cottlesoe Apartments (WA) Pty Ltd [48(8)]. 17 Affidavit of Michael O'Shea dated 1 May 2026 [35], [38], [47] (Michael affidavit). 18 Michael affidavit [43], MAO-31. 19 Michael affidavit [58]. 20 Michael affidavit [61] - [62], [66] - [67]. 21 OSB's submissions [65]. -- 6 of 12 -- [2026] WASC 296 MUSIKANTH J Page 7 29 However, it is unnecessary to resolve contested issues of fact at this interlocutory stage. Rather, I must simply decide whether it is reasonably arguable that the claims raised by Complete will be finally determined in its favour, by reference to the evidence provided.22 30 In any event, while contending Complete's case is weak, OSB ultimately accepts Complete has a 'good arguable case'. 31 In the circumstances, CHS has established a good arguable case. Danger that prospective judgment will be wholly or partially unsatisfied because one or more of the events described in O 52A r 5(4)(b) might occur 32 In support of this jurisdictional requirement, Complete relies on evidence to the following effect: (1) OSB owns no real property, and its paid-up share capital is $100. (2) OSB disclosed its financial position only selectively in CIV 2374 of 2023. (3) OSB has previously lent money to LHRE which is managed by the O'Shea brothers and works 'hand in glove'23 with OSB. (4) LHRE's financial position is precarious, it has not met its statutory tax obligations since August 2025, and its tax debt now exceeds $1.3 million. (5) Those who operate OSB have a history of operating companies which have been wound up in insolvency, leaving behind substantial amounts owing to creditors, including the Australian Taxation Office. (6) OSB and LHRE were each incorporated two months before applications were made to wind up two other companies owned and operated by the O'Shea brothers. (7) The O'Shea brother's earlier companies had kept poor records, did not cooperate with liquidators, traded while insolvent and defaulted on their tax obligations (two by more than $1 million each). 22 Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [154]. 23 Complete’s written submissions filed 9 March 2026 [47]. -- 7 of 12 -- [2026] WASC 296 MUSIKANTH J Page 8 33 Ultimately Complete's position may be reduced to four propositions. First, OSB has few assets and has previously been secretive about its finances. Secondly, the O'Shea brothers have a poor record with respect to the financial affairs of earlier companies. Thirdly, LHRE's position is precarious, having a significant tax debt, and OSB is therefore likely to lend it the Interim Payment to discharge that debt. Fourthly, and relatedly, if OSB dealt with the Interim Payment in that way, it would be unable to satisfy any judgment. 34 OSB, on the other hand, contends that Complete's application must fail because the court cannot be satisfied of this jurisdictional requirement. It explains that it had sued another company, Pindan Contracting Pty Ltd (Pindan), for $2,929,260 for work performed, that Pindan went into voluntary administration before the action was determined, LHRE's action was dismissed, it recovered nothing, and the tax liability was incurred on income which LHRE never received. 35 OSB also relies on evidence to the effect that LHRE has retained taxation lawyers, that an application has been made to amend LHRE's relevant income tax assessment, and its lawyers expect the tax liability to be extinguished in full. 36 As of 10 July 2026, LHRE's application had not yet been decided by the Australian Taxation Office. Such a decision was then expected 'imminently',24 though no affidavit has since been filed indicating that a decision had been made. 37 OSB further contends that its earlier loan to LHRE was in a trifling amount (around $6,500); LHRE stands in credit (i.e. OSB owed money to LHRE); that no steps were being taken to wind up LHRE, which also had active projects; and that OSB itself continues to trade. 38 In the last-mentioned respect, OSB relies on evidence to the effect that its total sales exceeded $3 million in 2025, and that since January 2026 it has tendered for projects worth more than $50 million. 39 Even taking the evidence at its highest, including the broader matters relied upon by Complete, I am not satisfied that Complete has shown there is a real (rather than speculative or theoretical) risk of any prospective judgment against OSB being left wholly or partly unsatisfied 24 Affidavit of Kevin Patrick O'Shea sworn 10 July 2026, 'KPO-1'. -- 8 of 12 -- [2026] WASC 296 MUSIKANTH J Page 9 40 I come to this view for at least the following reasons. 41 First, this application is according to Complete 'based on a risk of dissipation that is linked directly to [LHRE's] tax debt'.25 Complete does not seek for the court to draw 'any inferences based on any wider risk'.26 42 However, as counsel for OSB correctly submitted, there appear to be 'layers of speculation'27 involved in the propositions advanced by Complete. That is, it seems to be assumed that because the tax debt exists, there is therefore a risk of an intragroup disposal from OSB to satisfy the debt and that, if OSB does so, OSB will itself then be unable to meet any judgment. The asserted chain does not establish the requisite causal connection between any contemplated dealing with assets and an inability to satisfy a judgment. Nor does it demonstrate a real or substantial risk. Such a process of reasoning falls short of what is needed to enliven the court's jurisdiction consistent with the principles enunciated by the Court of Appeal in Duro. 43 Secondly, and while I accept the requisite danger may be established by inference and that no positive intention to frustrate a judgment need be shown, I do not accept Complete's submission that I should infer the risk of an intergroup disposal 'in much the same way'28 as Tottle J did in Duro at first instance.29 44 In Duro, the inference drawn by his Honour rested on a combination of features, each of which is materially weaker or wholly absent here. There, the inference rested on mutually reinforcing 'anchors': structural control by a foreign parent company; documented past upstream lending exceeding $53 million; independent evidence of the parent company's distress; and an incoming surplus exceeding operational requirements augmented by a distinct refinancing-security risk. 45 Here each of those anchors is either absent or materially weaker. Critically, the asserted risk involves the possibility of lending by one local 'sibling' company to another with a large tax debt in circumstances where there is no evidence of past intragroup lending, to any material degree, and the tax debt is in any event the subject of challenge. 25 ts 11 June 2026, 26. 26 ts 11 June 2026, 26. 27 ts 11 June 2026, 26. 28 ts 11 June 2026, 8. 29 Trans Global Projects Pty Ltd (in liq) v Duro Felguera Australia Pty Ltd [2018] WASC 136. -- 9 of 12 -- [2026] WASC 296 MUSIKANTH J Page 10 Ultimately, Duro turned on facts from which a prudent, sensible commercial person could readily infer the relevant danger. Those facts are not replicated here. The analogy is, in my view, accordingly inapt, and the danger which Complete asserts is not made out by reference to it. 46 Thirdly, the inference which Complete seeks for me to draw is at odds with the history upon which it relies. That is, its contentions are to the effect that those behind OSB have a pattern of allowing related companies to descend into insolvency; being left, in a number of cases, with significant unpaid tax debts. 47 However, if the 'pattern' Complete relies upon is to permit related companies to collapse owing substantial sums to the Australian Taxation Office rather than rescue them, the practice tells against the inference that they would now cause OSB to part with its funds to discharge LHRE's tax liability. While that history might suggest a willingness to allow related entities to fail, it does not positively support the inference sought in the present circumstances, and is at best equivocal. 48 Indeed, one may well also ask why OSB would choose to put itself at risk of financial destruction (let alone for the benefit of the Australian Taxation Office) in circumstances where it had spent over two and a half years 'chasing payment' of the Interim Payment, and 'finally got it'.30 49 Fourthly, as noted, OSB has in any event adduced evidence to the effect that LHRE has retained taxation lawyers, that an application has been made to amend LHRE's relevant income tax assessment, and its lawyers expect the tax liability to be extinguished in full. Kevin has, moreover, given sworn evidence that it is not contemplated or necessary for OSB to advance a loan to LHRE for the purposes of the tax debt.31 This evidence is unchallenged other than as to weight. 50 Fifthly, even if it were to be accepted there is a risk that OSB may advance a loan to LHRE to satisfy its tax debt, OSB has adduced unchallenged evidence to the effect that it continues to successfully operate its business, continues to engage in substantial projects such as the McPhee Project,32 and is tendering for numerous other projects.33 30 Cf. ts 11 June 2026, 26. 31 Kevin affidavit [35]. 32 Michael affidavit [91] - [98]. 33 Michael affidavit [99]. -- 10 of 12 -- [2026] WASC 296 MUSIKANTH J Page 11 In this connection, there is also evidence that OSB's 'total sales' in the later part of 2025 increased from $1,343,985 to $3,306,194.0034 which tells against an inference of impecuniosity. While not determinative, this evidence is in my view inconsistent with an inference that OSB is likely to deal with its assets in a manner that would frustrate its ability to satisfy any prospective judgment. 51 Sixthly, while the inference of danger or risk is an inference drawn by the court from facts proven before the court may include facts concerning the lack of available information about a respondent,35 I do not consider it appropriate to infer that because OSB in the past may not have volunteered information to Complete about its financial position, there is an increased risk that it may deal with its assets (and a danger any prospective judgment will therefore go unsatisfied). 52 I say this particularly given the matters relied upon by Complete in advancing this proposition arose in the context of the security for costs application made by Complete in matter CIV 2374/2023 in circumstances where there was no obligation on OSB to provide a full account of its financial position.36 53 Nor is it, in my view, appropriate to infer a risk of dissipation from OSB's failure to 'volunteer a constraint' to the effect that it would not advance money to LHRE to discharge its tax debt. As OSB correctly contended, 'one starts from the proposition that [the Interim Payment is] OSB[']s money, pursuant to the judgment of this court, founded upon security of payment legislation'.37 Discretionary considerations 54 Complete submitted that the balance of convenience favoured the grant of the order, and offered the usual undertaking as to damages should OSB ultimately succeed in defending the claims. 55 OSB contended that, even if Complete had established a real risk of dissipation and thus a danger that a prospective judgment would be unsatisfied, the discretionary factors told against the exercise of the discretion. It identified four: (a) that a freezing order would circumvent the SOP Act and its policy, seeking in effect a stay or injunction of the previous proceedings; (b) that Complete's case was weak; (c) that the 34 Michael affidavit, MAO-36, MAO-37. 35 Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [46]. 36 Christou v Stanton Partners Australasia Pty Ltd [2011] WASCA 176 [34]. 37 ts 11 June 2026, 25. -- 11 of 12 -- [2026] WASC 296 MUSIKANTH J Page 12 balance of convenience favoured refusal because OSB would be denied its statutory entitlement; and (d) that the orders were, in effect, an attempt to get security for a judgment which Complete hopes to obtain. 56 In circumstances where I am not satisfied that Complete has established the second jurisdictional element, it is unnecessary for me to address these or any other discretionary considerations. Conclusion 57 For the above reasons, the application for a freezing order is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IL Associate to the Hon Justice Musikanth 24 JULY 2026 -- 12 of 12 --