QUALIFICATIONS

• Bachelor of Laws (UQ) (1998)
• Bachelor of Commerce (UQ) (1993)
• Graduate Diploma in Legal Practice (QUT)– Distinction (1998)
• Solicitor of the Supreme Court of Queensland (1998 – present)
• Solicitor of the High Court of Australia (1998 – present)

MEMBERSHIPS

• Member of the Queensland Law Society (1998 – present)

DEBT RECOVERY

Dain has undertaken a high volume of debt recovery work for clients ranging from publicly listed companies to small businesses. He is particularly skilled in improving his clients’ debt recoveries by the use of security interests in land and other assets.

Acting as a solicitor advocate in all Courts and Tribunals has given him the experience and knowledge to conduct his clients’ matters in a practical, commercial and cost-effective manner.

Examples of Dain’s work include:

• Phillips v Hogg [2001] QSC 390 [as solicitor advocate] (which has been cited in 10 decisions since)
• Simonidis & Ors v Bremer [2012] QSC 69 [as solicitor advocate] (cited 1 occasion since)
• Hambleton and Imray v Bates-Wagstaff [2014] QDC 162
• Knight & Anor v Young [2011] QDC 133 [as solicitor advocate]
• Elliot v Queensland Building Services Authority [2010] QCAT 428 [as solicitor advocate]
• Advantage Retail Management P/L v Security Dynamics Australia P/L and Anor [2014] QMC 14 [as solicitor advocate] (cited 1 occasion since)
• Green v Tri-Barfen Pty Ltd [2006] QDC 160 [as solicitor advocate] (which has been cited in 5 decisions since)

COMMERCIAL LITIGATION

Dain has acted for numerous businesses in the transport, construction and supply industries and on behalf of other law firms seeking the recovery of their fees in many types of commercial litigation in the Courts. For example:

• He appeared in the District Court of Queensland resisting an appeal conducted by Counsel, and achieved a successful result for a client.
• He has appeared in all Courts in many types of applications for orders from the Court for various types of matters, whether or not opposed by the other party.
• He successfully obtained leave to proceed against a bankrupt who owed fees to a family law firm and then obtained judgment in the Magistrates Court. He then successfully applied to the Supreme Court and obtained an order that the funds held in the trust accounts of both that family law firm and another law firm be paid to his client family law firm in satisfaction of that judgment.
• He has successfully applied for orders as advocate in the Supreme Court seeking orders for the sale of real property where the owner or co-owner has owed a debt to a business which had a charging client clause in their credit agreement. His skill as both a solicitor advocate and in the drafting of legal submissions was once commented on in favourable terms by the then Chief Justice de Jersey.
• He conducted a trial as advocate in the Magistrates Court where he successfully defended a third party claim seeking contribution from a co-guarantor.

INSOLVENCY

Dain has acted for Administrators, Liquidators and Trustees in Bankruptcy in many types of insolvency proceedings in the Courts. For example:

• He appeared in the Federal Court as an advocate for a Trustee in Bankruptcy against an appeal of a decision to declare a former bankrupt a vexatious litigant and achieved a successful result.
• He appeared in the Federal Court as an advocate for a Trustee in Bankruptcy against an application under section 178 of the Bankruptcy Act 1966 seeking an order assigning a right of action and achieved a successful result.
• He appeared in the Federal Court as an advocate for a Trustee in Bankruptcy against an appeal of the Federal Court decision and achieved a successful result.
• He has successfully recovered preference payments on behalf of liquidators and bankruptcy trustees from the Deputy Commissioner of Taxation (ATO).

Examples of Dain’s work include:

• Freeman v National Australia Bank Ltd [2002] FCA 427 (9 April 2002) [as solicitor advocate] (which has been cited in 29 decisions since)

BANKRUPTCY – motion for a stay of a sequestration order until the appeal against the sequestration order is heard – competence of the Court to stay all proceedings under a sequestration order pursuant to O 52 r 17 Federal Court Rules – whether there is an arguable point on the proposed appeal – whether the balance of convenience favours the granting of a stay – whether a claim by the bankrupt in respect of default in the sale of property by the Receiver is against the Receiver or the petitioning creditor who appointed the Receiver

• Freeman v National Australia Bank Limited [2003] FCA 1233 (31 October 2003) (which has been cited in 13 decisions since)

BANKRUPTCY – whether decision by the trustee to abandon litigation was unjust or inequitable – duties of a trustee in bankruptcy – whether trustee has a duty to prosecute litigation on material which came into existence subsequent to judgment which founds a bankruptcy

• Freeman v National Australia Bank [2004] FCA 103 (6 February 2004) [as solicitor advocate] 

BANKRUPTCY –  application pursuant to s 153B of the Bankruptcy Act 1966 (Cth) to annul a sequestration order against the estate of the applicant.  The application was refused with costs.

• Freeman v National Australia Bank Limited [2004] FCAFC 318 (1 December 2004) [as solicitor advocate]

• [Appeal from Freeman v National Australia Bank Limited [2003] FCA 1233]

BANKRUPTCY – vesting of rights of action in trustee – proceeding to compel trustee to prosecute or assign vested actions – no injustice or inequity shown so as to enliven Court’s supervisory jurisdiction under the Bankruptcy Act 1966 (Cth) – leave to appeal refused – appeal dismissed as incompetent 

• Freeman v Joiner [2005] FCA 547 (6 May 2005) [as solicitor advocate]

BANKRUPTCY – assignment of causes of action – refusal by Trustees to consider request for assignment unless provided with sufficient funds to obtain legal advice on the legality of assignment – no funds forthcoming – whether Trustees’ refusal to consider request was incorrect – whether justice and equity required a different decision

• Freeman v Joiner [2005] FCAFC 149 (8 August 2005) [as solicitor advocate] (which has been cited in 21 decisions since) 

BANKRUPTCY – assignment of causes of action – refusal by trustees to consider bankrupt’s request for assignment unless provided with sufficient funds to obtain legal advice on the legality of assignment – no funds forthcoming – whether trustees’ refusal to consider request was incorrect – consideration of the duties of a trustee upon requests for assignment of causes of action 

• National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (22 December 2005) (which has been cited in 7 decisions since) 

PRACTICE AND PROCEDURE – vexatious litigant – application under O 21 r 2 of the Federal Court Rules – whether the respondent habitually and persistently instituted vexatious proceedings against the applicants without any reasonable cause 

• Freeman v National Australia Bank Ltd & Anor [2006] FCAFC 67 (19 May 2006) [as solicitor advocate] (which has been cited in 12 decisions since)

 [Appeal from National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895] 

Appeal dismissed with costs.

• Freeman v National Australia Bank [2012] FCA 659 (23 March 2012) [as solicitor advocate]

 PRACTICE AND PROCEDURE – vexatious litigant pursuant to O 21 r 2 of the Federal Court Rules 1979 (Cth) – application for grant of leave to commence proceedings against parties in respect of whom applicant declared vexatious – no arguable case that any prior judgment obtained by fraud – application dismissed – costs awarded against applicant on indemnity basis

• Freeman v National Australia Bank Limited [2012] FCA 866 (16 August 2012) [as solicitor advocate]

PRACTICE AND PROCEDURE – vexatious litigant – application for extension of time for leave to appeal – application for leave to appeal against decision dismissing application to rescind vexatious litigant orders – order declaring vexatious litigant interlocutory not final – relevant principles in considering application for extension of time and for leave to appeal – reopening previous decision because of alleged fresh evidence – merits of case – whether primary judge had proper regard to issues raised by applicant – indemnity costs

ADMINISTRATIVE REVIEWS IN QCAT

Dain has acted for solicitors and migration agents in review proceedings regarding their continued licence to practice in their fields.

He acted for company directors with respect to actions brought by ASIC.  In one matter, a director was facing disqualification from acting as a director for up to five (5) years under section 206F of the Corporations Act 2001.  He had, in respect of seven (7) companies of which he was a director:

• Changed the company names of six (6) of those companies.
• Shortly thereafter resigned as director of those companies.
• Then placed those companies into liquidation.

Dain made the submission to ASIC that the director had relied upon the advice of his then solicitors and accountants and that, now he was correctly advised, he would not take such actions in the future.  ASIC decided not to impose any period of disqualification upon him despite his breaches.

He has acted in numerous Fair Work proceedings regarding unfair dismissal applications, appearing for both employers and employees.

Dain has conducted a number of administrative review matters in the Queensland Civil and Administrative Tribunal on behalf of the Queensland Building and Construction Commission.

In doing so he has appeared at hearings against Counsel, solicitors and where the other party is self-represented.

• Effects of Bankruptcy on a Bankrupt
• Fruits of Litigation Liens
• Risk Management