WA Supreme Court Grants urgent freezing orders against Disability Dr insiders

The Supreme Court of Western Australia has granted ex parte freezing orders against the director and an associate of insolvent NDIS provider Disability Dr Pty Ltd, finding a sufficient risk that assets could be dissipated before judgment in a liquidator’s claims for insolvent trading and voidable transactions.

The application was brought by Mervyn Kitay, liquidator of Disability Dr, which offered accommodation & in-home support in Perth for people with disabilities before ultimately entering liquidation in April 2025 following an ATO-driven winding up. The liquidator alleges that the company incurred more than $1.8 million in debts while insolvent and that significant sums were transferred to or for the benefit of the defendants, Ewen Gatimu Migwi, the company’s sole shareholder and secretary and its 50% shareholder, and Roline Makena Kinyua, the other 50% shareholder. Migwi is alleged to have caused over $1 million in funds to be transferred to himself or for his benefit, while Kinyua is alleged to have acted as a de facto director or insider and to have received over $2 million in company funds.

Proceeding on an urgent and without-notice basis, the liquidator sought orders restraining dealings with a residential property in Balga jointly owned by Migwi and Kinya and any associated sale proceeds, pending resolution of claims under the Corporations Act, including insolvent trading and uncommercial transaction provisions.

Justice Hill accepted that the liquidator had established a “good arguable case,” including on the basis of statutory presumptions of insolvency arising from inadequate financial records and unpaid tax liabilities. The Court also found it arguable that both defendants were involved in the company’s affairs, including that the second defendant acted as a director despite not being formally appointed.

On the risk of dissipation, the Court placed weight on evidence that the property had been listed for sale and was under offer, coupled with Migwi’s lack of cooperation during the liquidation and evidence suggesting funds had previously been transferred offshore.

Those factors, combined with allegations of dishonesty and failure to comply with statutory obligations, were sufficient to establish a real risk that any future judgment could go unsatisfied if relief were not granted.

The Court granted freezing orders over the property and its sale proceeds up to the value of the liquidator’s claim, while declining to make broader asset disclosure orders on an ex parte basis, leaving that issue to be revisited at a return hearing.

Read the decision here.

Ryan Lennon of Dentons Australia acted for the liquidator, Mervyn Kitay of Worrells.