Australia Wide Lining Pty Ltd v DECC Credit Pty Ltd

By Summons filed in Court on 8 September 2025, the plaintiff, Australia Wide Lining Pty Ltd, sought ex parte freezing orders against eight defendants: DECC Credit Pty Ltd (DECC Credit), DECC Pty Ltd (DECC), DECC Credit (NSW) Pty Ltd (DECC Credit (NSW)), DECC Credit (QLD) Pty Ltd (DECC Credit (QLD)), VF4 Properties Pty Ltd (VF4), Frank Lombardi, Vincenzo Di Falco, and Marie Lombardi (together, the defendants).

The ex parte application came before the Court in the Duty List on Monday, 8 September 2025 at which time the application was heard by me. Mr M Davis of counsel appeared for the plaintiff, who made oral submissions and otherwise relied on written submissions of Mr J Dooley of counsel dated 8 September 2025 (PWS). The plaintiff read and relied on an affidavit of Peta Joy Gray affirmed 8 September 2025 (Affidavit) and Exhibits PJG-1 to PJG-12 (Exhibits). Ms Gray is the solicitor with conduct of this matter for the plaintiff.

I made the orders as sought (with slight non-substantive amendments) (the freezing orders) at 10:00am on Tuesday, 9 September 2025. A copy of those orders is annexed to these reasons.

At the time of making the freezing orders, I informed the plaintiff I would provide my written reasons for decision at a later time.

I have sought to deliver these reasons as expeditiously as possible given the ex parte nature of the application and having regard to the significance of the orders to the defendants. These are my reasons for making the orders.

The background facts relevant to the making of the freezing orders can be briefly stated, much of which has been taken from the Affidavit and PWS.

The plaintiff was a subcontractor of DECC Credit, which in turn is a contractor to Wollongong City Council. The subcontract is dated 15 March 2024 (the Subcontract).

Mr Lombardi is the sole shareholder and director of DECC Credit, DECC, and DECC Credit (NSW).

Mr Di Falco is the sole director and shareholder of DECC Credit (QLD) and appears to be its “Queensland Manager”.

The directors and shareholders of VF4 are Mr Di Falco and Ms Lombardi. As Ms Lombardi shares a common last name with Mr Lombardi, and they share a common street address, the plaintiff has inferred that Mr Lombardi and Ms Lombardi are related or married.

On 20 May 2025, the plaintiff issued a payment claim on DECC Credit.

On 3 June 2025, DECC Credit issued a payment schedule.

On 17 June 2025, the plaintiff applied for an adjudication under the Building and Construction Industry (Security of Payment) Act 1999 (NSW).

On 25 June 2025, DECC Credit issued an adjudication response.

On 4 July 2025, an adjudicator issued an adjudication determining that $1,733,741.97 was owing from DECC Credit to the plaintiff (the adjudication decision). The plaintiff received the adjudication decision on 9 July 2025. The adjudication decision also included determinations that DECC Credit was to pay the plaintiff interest on the money it was found to owe, and that DECC Credit was to pay 100% of the adjudication fees and expenses.

There are three sets of proceedings between the plaintiff and DECC Credit associated with the adjudication decision or the Subcontract (Affidavit at [11]).

On 18 July 2025, DECC Credit filed a Summons in this Court, seeking to restrain the plaintiff from obtaining an adjudication certificate or a judgment in connection with the adjudication decision. On the same day, Peden J made ex parte orders (18 July Orders) broadly in the form sought by DECC Credit.

The 18 July Orders made by Peden J required DECC Credit to pay money into Court. Consequently, on 21 July 2025, as required by the 18 July Orders, DECC Credit paid into Court the sum of $1,733,741, that sum evidently being the sum which was payable by DECC Credit.

On 22 July 2025, following a contested hearing, Peden J made orders (22 July Orders) that were described by the plaintiff in these proceedings in the following way (PWS [14]):

On 31 July 2025, the plaintiff obtained a “Notice of Orders Made” in the form of a judgment order in this Court (which appears to have been made on 30 July 2025) in the amount of $1,791,637.19 (the Notice) in respect of the adjudication determination (a copy of which was included in the documents before the Court (Exhibits at p 38)).

Despite the release of the funds that had been paid into Court, there has been no payment by DECC Credit to the plaintiff, nor has there been an explanation the lack of payment.

In the meantime, the plaintiff has issued a statutory demand and garnishee order, and sought a certificate under the Contractors Debt Act 1997 (NSW). There has been no payment in response to any of these steps taken by the plaintiff.

The plaintiff has more recently discovered five key “events” that caused concern and underpin the current ex parte application:

In its application before me, the plaintiff referred to the five events as a “flurry of activity” which was said to give rise to a real concern that the defendants were taking steps to render nugatory a judgment in this Court by setting up new companies into which the $1.7 million paid out of Court could be transferred, so as to frustrate the Court’s processes and keep the judgment money out of the hands of the plaintiff. On this issue the plaintiff made the further submission (at PWS [23]):

In making this ex parte application, the plaintiff made the following disclosures (at PWS [28]-[29]):

In making this application the plaintiff has identified three causes of action that flow from the background and key events as set out above (PWS at [24]):

The legal principles relevant to whether a freezing order should be made are settled, and have been recently summarised in MaxRelief USA Inc v 365 Health Australia Pty Limited ACN 151 146 997 [2024] NSWSC 491 (Pike J) at [30]-[38], which I gratefully adopt:

Having regard to all of the circumstances, and on the evidence before the Court, I am satisfied I am able to make the freezing orders, and that it is appropriate to make those orders. In this, I am satisfied, first, that the plaintiff has a good arguable case (per the Uniform Civil Procedure Rules 2005 (NSW), r 25.14(1)(b) (UCPR)) (or that there is a prima facie case or serious question to be tried) and, secondly, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because assets of the judgment debtor or prospective judgment debtor are disposed of, dealt with or diminished in value (per UCPR r 25.14(4)(b)(ii)).

I note the submissions of the plaintiff in relation to the three potential causes of action available to it (see paragraph 26 above). For the purposes of this application, I am satisfied that the first of the causes identified satisfies the necessary good arguable case (or prima facie case, or there being a serious question to be tried), having regard to all of the circumstances, and in particular, the events set out at paragraphs 11 to 24 above) (per UCPR r 25.14(1)(b)). That is, the action pursuant to s 37A of the Conveyancing Act 1919 (NSW), which relevantly provides:

I note the Conveyancing Act at s 7 provides the following definition of “property”:

Whilst the plaintiff may well have a good arguable case in relation to the second and third potential causes of action identified (unconscionable conduct and conspiracy to injure), I am of the view that the evidence before me is not sufficient to meet the requisite satisfaction.

Having regard to all of the circumstances, including the events set out at paragraphs 11 to 24 above, I am satisfied that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because the following might occur: the assets of the judgment debtor, prospective judgment debtor are disposed of, dealt with or diminished in value (per UCPR r 25.14(4)(b)(ii)).

The plaintiff has put before the Court evidence of the Notice, and the relevant background and more recent key events which satisfy me of a debt owing in the context of apparent non-payment, and what the plaintiff has referred to as a “confluence of circumstances”. On this issue, I accept the submissions of the plaintiff, which state (PWS at [24](d)):

The plaintiff also seeks to rely on UCPR r 25.14(5) which provides as follows:

To the extent that DECC Credit may be considered to be the judgment debtor, the plaintiff has joined the second to eighth defendants as parties to these proceedings as they may be considered a “third party” and to come within the terms of UCPR r 25.14(5)(a)(i) and (ii). I accept this submission, based upon the evidence before the Court of the interconnected relationships between the parties (see paragraphs 7 to 10 above), together with the documents contained in the Exhibits which include ASIC Current Organisation Extracts for the relevant defendant companies.

On being satisfied on the above issues, I am satisfied that it is appropriate to exercise my discretion and make the freezing orders, as well as ancillary orders.

In making the orders, I am of the view that that the scope of the orders minimise the impact on the defendants as much as was possible. In that, included in the orders sought were “exceptions to this order”, which included a weekly living allowance and scope for payment of reasonable legal expenses, as well as an order not prohibiting dealings with assets in the ordinary and proper course of business.

Further, in relation to the order for “provision of information”, the defendants will have been allowed five full working days to provide this information before the first return date.

In making these orders, I recognise that a court should not lightly grant a freezing order given the serious impact that it might have on the affairs of a defendant.

For the reasons set out above, in all of the circumstance and on the evidence before the Court, I am satisfied I ought to make the freezing orders, and that it is appropriate to make the ancillary orders as sought, as set out in the attached Annexure.