1st plaintiff v 1st plaintiff

1. On 11 January 2018, the Australian Securities and Investments Commission commenced a strike-off action against the Company. Shortly after the strike-off action was commenced, on 18 January 2018, the Company was purportedly removed as trustee of the Trust by the appointor, Kukuy's mother, and replaced with Kukuy.
2. Kukuy did not take any steps to have the title of the Brighton Property transferred into her name when she was purportedly made trustee of the Trust in October 2018. Instead, the Company remained the registered proprietor of the Brighton Property. As such, the Company continued to incur liabilities in the form of municipal rates and owners' corporation fees which have not been paid. As set out above, the Company was subsequently deregistered. On an application of a body corporate creditor, on 6 September 2019, Gardiner AsJ reinstated the Company and appointed Holden as liquidator.
3. In referring to the decision made by Gardiner AsJ on 6 September 2019, Kukuy submitted that the orders made by his Honour and the material relied upon in support of them were "a work of fiction". Kukuy now suggests that there was actually no debt owing by the Company on 6 September 2019 and that there were serious procedural flaws leading up to Gardiner AsJ's orders being made, including problems with service.
4. Kukuy has not filed any evidence in this proceeding, despite repeated orders for her to do so. Kukuy informed the court that a further adjournment is now sought by her to file affidavits and submissions in support of her case. Kukuy has also submitted other investigations ought to be carried out, including by the Australian Securities and Investments Commission. Kukuy submitted that an explanation for the absence of any evidence in support of her case is that the circumstances of this proceeding are unfair; it was put in terms of when someone is "standing on your neck" and then criticising you for not acting, such a thing is in substance not fair.
5. This proceeding was commenced on 9 November 2020 and thus has been on foot for over 2 years. During that time the deadline for Kukuy to file and serve any affidavits and submissions in support of her case has been extended by orders of the court on 4 separate occasions. At the directions hearing on 9 September 2022, a further opportunity was provided to Kukuy to file and serve any affidavit material or other material upon which she wanted to rely. No deadline for the provision of these materials was set, but the urgency of the situation was highlighted.
6. On 4 November 2022, the court contacted Kukuy by email (copied to the plaintiffs) and again invited her to file any evidence and other materials that she intended to rely upon at trial. These numerous opportunities have not been acted upon.
7. The interlocutory history of this proceeding has been protracted. There have been a total of 13 directions hearings conducted in this proceeding, many of which involved adjournment and extension requests made by Kukuy.[3]
8. The plaintiffs' submissions were filed and served together with a court ordered chronology of key events as far back as July 2021. There have been minor updates to these documents to reflect recent developments in the proceeding but in substance, the submissions and the chronology have remained the same.
9. The proceeding was originally listed for trial on 30 March 2022 but was ultimately vacated following a request made by Kukuy for additional time to prepare and file her evidence. Further, on 18 November 2022, the parties attended a court ordered mediation. This occurred despite an application by Kukuy for an adjournment of the mediation shortly before it was due to occur, notwithstanding it had been arranged by the court at her request, with both the mediator, Paul Santamaria KC, and the Victorian Bar providing their services and facilities free of charge.
10. On 9 September 2022, this proceeding was listed for trial for a second time to be heard on 29 November 2022. The afternoon before the trial was due to commence, Kukuy provided evidence to the court via email that she had contracted covid-19 and the trial was again vacated. Kukuy was informed immediately after the vacated hearing that the court had made arrangements to have the final hearing listed before the end of 2022. The proceeding was listed for further directions last Friday, 9 December 2022 on the basis that the final hearing of the application would commence today.
11. At the directions hearing on 9 December 2022, an application by Kukuy for an adjournment of the final hearing was dismissed on the expressly stated premise that Kukuy was not prevented from making a further application for an adjournment today if she was so minded.
12. It is convenient at this point to note that for approximately 10 months between August 2021 and June 2022, and again for a short period between September and October 2022, Kukuy was legally represented. As counsel for the plaintiffs pointed out last Friday, and again this morning, even when she had assistance from experienced solicitors, Kukuy did not comply with court orders.
13. From 5 April 2022 until 24 November 2022, Kukuy was the subject of guardianship and administration orders issued by the Victorian Civil and Administrative Tribunal.[4] At the directions hearing on 9 September 2022, Kukuy informed the court that she was seeking to have the order varied so that she would again have full legal capacity. The guardianship and administration orders then in place did not prevent Kukuy's guardian and administrator at any point in time from filing evidence in this proceeding on her behalf.
14. Further, Kukuy was afforded an opportunity to address the court directly in the presence of her guardian and administrator at numerous directions hearings, both before and after 9 September 2022.
15. It is also relevant to this application that another urgent matter that I am managing in my list has had its final hearing deferred to next year by reason that this proceeding has been listed to be heard this week.

1. In a recent decision of Soo v Yang & Vale Pty Ltd,[5] the Victorian Court of Appeal outlined the clear public interest in the finality of litigation and emphasised that judicial resources are limited. The Court of Appeal also made clear that it is in the interests of justice, consistent with the overarching purpose of the Civil Procedure Act 2010 (Vic), that adjournments are granted only when they are necessary to prevent practical injustice.[6]

1. In my view, acceding to Kukuy's current application is not necessary to prevent practical injustice. To the contrary, the continual delays in this proceeding have placed a substantial burden on the court's finite resources and have resulted in the liquidator incurring substantial legal fees, which the plaintiffs seek to have paid from the assets of the Trust. Further, Kukuy has not provided any plausible reason as to why she could not have been able to prepare any materials in opposition to the plaintiffs' application if she had been minded to do so.
2. Furthermore, I am not satisfied that Kukuy's position concerning her guardianship status has unfairly prejudiced her ability to prepare for this hearing. Indeed, on 9 September 2022 at the directions hearing Kukuy stated that she had "full decision-making capacity and always have done so". Nothing appears to have changed since that time. Both then and at subsequent hearings Kukuy has demonstrated that she is more than capable of representing herself. Kukuy's current guardianship status reflects this position.
3. Moreover, there is no proper basis to suggest that any application to appeal the decision of Gardiner AsJ could not have been made long before now, given the substantial period of time between 6 September 2019 and today. Again, on the contrary, the matters already raised before the court this morning demonstrate Kukuy has had ample opportunity to do so during extended periods of time where she has had competent lawyers acting for her.

1. Accordingly for these reasons Kukuy's application for a stay of this proceeding is refused.

[1] The Trust, the Jay Property Trust, is incorrectly referred to in the amended originating process as the Jay Invest Property Trust. Counsel for the plaintiffs raised this issue at the hearing on 13 December 2022 and an application to file and serve a further amended originating process was subsequently made.

[2] An issue for determination on the main application is whether Kukuy is in fact the trustee of the Trust.

[3] On 16 April 2021, Kukuy requested an adjournment to retain solicitors and prepare her defence. At the directions hearing on 14 May 2021, Kukuy requested a further adjournment of 2 months to retain solicitors. On 22 October 2021, Kukuy's solicitors requested an adjournment on the basis that they had not been provided with a copy of the plaintiffs' outline of submissions. On 26 November 2021, Kukuy's solicitors requested an adjournment to prepare and file an application to terminate the winding up of the Company. On 11 February 2022, a 1 week adjournment was granted to allow Kukuy to arrange payment of the Company's debts. On 18 February 2022, the 30 March 2022 trial date was vacated to allow Kukuy an opportunity to apply to review Holden's remuneration and for her mother, Bella Kukuy, to pursue an application to terminate the winding up of the Company. On 28 March 2022, the directions hearing was adjourned pending the outcome of Kukuy's application to have her mother, appointed as her administrator by the Victorian Civil and Administrative Tribunal. On 7 April 2022, an adjournment was granted to allow Kukuy to reapply to the Victorian Civil and Administrative Tribunal to have her father, Leon Kukuy, appointed as her guardian and administrator, and to allow Kukuy's guardian and administrator to file any application to review Holden's remuneration. On 14 June 2022, an adjournment was granted to give her father, Kukuy's then guardian and administrator, additional time to file any affidavits and submissions in the proceeding and retain new lawyers. On 9 September 2022, an adjournment was granted to allow Kukuy to seek legal advice. On 14 October 2022, mediation was ordered to take place on 18 November 2022. On 16 November 2022, Kukuy requested that the mediation be adjourned. On 9 December 2022, Kukuy made an application to adjourn the trial set down for hearing on 13 December 2022.

[4] On 24 November 2022, the previous guardian and administration order was revoked and Kukuy's father was appointed Kukuy's supportive guardian and administrator pursuant to section 159 of the Guardianship and Administration Act 2019 (Vic).

[5] [2022] VSCA 227.

[6] Ibid, [14] (Kyrou and Sifris JJA). See also Taylor v Merlino [2022] VSCA 37, [40], [43] (Kyrou and Niall JJA).