Andrew O’Brien KC (leading J Obrien) represented the sixth defendant, instructed by Gadens.
The sixth defendant brought an interlocutory application seeking, inter alia, the release of his wife from an undertaking recorded in asset preservation orders obtained by ASIC in 2024 pursuant to s 1323 of the Corporations Act 2001 (Cth). The undertaking was given as a condition of the release of $135,000 from frozen digital currency assets to fund her purchase of a vacant lot at Benobble, Queensland, and prohibited the sale of the lot.
The principal issue was whether changed circumstances rendered continued enforcement of the undertaking unjust. While it was held that, properly construed, the undertaking was not confined to securing $135,000, the inability to service the mortgage was found to justify relief. The undertaking was discharged and replaced, permitting sale of the property subject to $135,000 of the net proceeds being held in a solicitor’s trust account. A proposed carve-out for the sixth defendant’s legal expenses was refused as premature. Costs were reserved.
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