2 The liquidation and eventual deregistration of Maryvell has given rise to a large amount of litigation. I recently described it this way in Velissaris v Fitzgerald & Anor:[[2]](#fn2)

Court of Appeal (Vic)|2014-07-18|Before: Before Ferguson J, Ferguson J, Ashley JA

Re Velissaris [2012] VSC 293

PRACTICE AND PROCEDURE - Appeal - Whether appeal should be dismissed for want of prosecution - Whether appeal deemed abandoned should be reinstated - Long delay in context of appellate proceeding - No explanation for delay - Real risk, at least, of prejudice to prospective defendants - Appeal dismissed

1 On 4 July 2012, a judge in the Trial Division dismissed an application by George Velissaris ('the appellant') for the reinstatement of Maryvell Investments Pty Ltd.[1] That company had been placed into liquidation on 19 June 2006. The liquidator had presented final accounts in 2010. Those accounts showed that the company had indebtedness which it could not meet of a little more than $4 million. Following presentation of those accounts, the company had been deregistered.

2 The liquidation and eventual deregistration of Maryvell has given rise to a large amount of litigation. I recently described it this way in Velissaris v Fitzgerald & Anor:[2]

Focusing only upon litigation instigated since Maryvell was put into liquidation, there have been no less than 22 decisions of superior courts (and in one instance of the Victorian Civil and Administrative Tribunal) relating to - (1) the affairs of Maryvell generally; (2) the asserted right of [Mr Velissaris] to continue in occupation of the Sydney Road land ('the land'); (3) the ownership of plant and equipment ('the plant') in premises situate on the land; (4) the alleged misconduct of the liquidator; (5) the alleged responsibility of the purchaser of the land arising out of the purchase of the plant by another entity; (6) reinstatement of Maryvell. Certain themes have been repetitively agitated, or sought to be agitated, in this litigation, which has been conducted in the Trial Division, this Court, the Federal Court of Australia, the Full Court of the Federal Court of Australia, the High Court, and - most recently, in the present proceeding - in the County Court. [Mr Velissaris] has been the moving party or the defendant in every instance.

3 The order made on 4 July 2012 dismissing the application to reinstate Maryvell was made in one of the many claims pursued by the appellant. In the recent decision to which I have just referred, I described that proceeding this way:

Then [Mr Velissaris'] pursuit of the respondent and others shifted back to the Trial Division. Before Ferguson J, in Re Velissaris,[3] [Mr Velissaris] sought leave to file an application to reinstate Maryvell, which by this time had been deregistered. He sought reinstatement so as to prosecute claims which, he told the judge, ought be pursued for the benefit of his family. Among the assertions which he made were that the liquidator had sold the land at an undervalue; and that he had wrongly sold, for $1, the plant which, according to [Mr Velissaris], he owned. In an affidavit supporting his application, he said that he was contemplating litigation against the liquidator in relation to the sale of the property and the plant and equipment.
Ferguson J concluded that it would not be just to reinstate the registration of Maryvell in circumstances where - (1) multiple unsuccessful applications to terminate the winding up had been made prior to its deregistration; (2) the grounds relied upon in those applications were substantially the same as were relied upon in this proceeding; (3) the proposed claims that [Mr Velissaris] would have the company pursue in relation to the conduct of the respondent and the sale of the property had already been considered in this Court and the Federal Court, and had been characterised as having no reasonable prospects of success, being hopeless or doomed to fail; and (4) Maryvell had been wound up on grounds of insolvency, yet there was no evidence as to its financial position should its registration be reinstated.

4 On 17 July 2012, the appellant filed a summons seeking leave to appeal from the judge's decision dismissing his application to have Maryvell reinstated. He filed an affidavit in support on 30 July.

5 On 1 November 2012, his application for leave to appeal was dismissed. This Court held that an appeal lay as of right. The Court extended time for the filing of a notice of appeal.

6 On 14 November 2012, the appellant filed a notice of appeal, the grounds of which were stated as follows:

I Respectfully Submit To The Honourable Court That Her Honour Justice Ferguson, Made An ERROR Of Law In Her Judgement To Dismiss My Application To Reinstate My EX-TRUSTEE Company Maryvell Investments Pty Ltd, And Thus DENY ME And My Family Trust's Beneficiaries Natural Justice.
On The EVIDENCE Produced To The Hearing And My Several EXHIBITS Too, In A Summary, Proves Beyond Reasonable Doubt That The Liquidator Laurence A. Fitzgerald Acted Very Illegally And In Breach Of His Fiduciary Duties Under The Law, And As He 'SOLD' I MEAN GAVE AWAY HIMSELF The BIG And VERY VALUABLE PROPERTY, At 333-335 Sydney Rd Brunswick To A SOLICITOR, And Friend Of HIS, And IS In FULL Breach Of Section 420 A Of The Corporations Act,
Further He RESIGNED As Liquidator In November 2010, And After HE DISPERSED ALL The ASSETS OF The 'Maryvell Family Trust' Of Which I AM The Official Trustee, And My Children ARE The Beneficiaries, AND HE LEFT NOTHING AT ALL For US, And IT IS CLEAR That Justice Ferguson REFUSED To REINSTATE Maryvell Inv. Pty Ltd, Because She DOES NOT WANT ME TO SUE THE LIQUIDATOR, For LOSS And DAMAGES.
On The EVIDENCE Given and The EXHIBITS Produced I Submit That Any Reasons and Fair Minded JUDGE MUST HAVE SEEN That The Company HAD VALID LEGAL CLAIMS Against The Liquidator, For 'UNDER VALUE SALE' Of The PROPERTY, And The TIME That I HAD 'SWORN VALUATIONS' Of $3.8 Million, And By A Legal Sworn VALUERS, And In January 2008, And In April 2008 Too, For $4.0 Million, By MEGAW & HOGG' Big National SWORN VALUERS On The 26/ April 2008, And He HAD NO VALUATION At ALL.
The Other Grounds Are That Maryvell Investments Pty Ltd HAD LEGAL Proceedings On FOOT Against 'SIGMA Constructions Vic. Pty Ltd' In 2004 To 2006 And For A BIG CLAIM Of LOSS AND DAMAGES For Over $750.000.00, And While On The 19/June/2006 WENT To LIQUIDATION, The LIQUIDATOR DID DO NOTHING, And Abandoned The Very VALID And LEGAL CLAIMS IT HAD AGAINST 'SIGMA' (The Next Door Builders' AND That IS WHY I WANT TO REINSTATE THE REGISTRATION OF Maryvell Inv. Pty Ltd, AND SO To BE ABLE TO Reinstate The Very Winnable LEGAL CLAIMS Against The Ones That CAUSED SO MANY Property Damages And Big Losses, And In FULL BREACH Of The 'LICENCE AGREEMENT' Given To Them By The 'Registered Proprietor Maryvell Inv. P/L.
My Other Main Ground Of Appeal IS, That Under Section 601AH(2) Of The Corporations Act Myself And My Children The Beneficiaries Of My Family Trust, ARE VERY MUCH Aggrieved By The Company's DE Registration, And As The EX Trustee Co. Maryvell Investments Pty Ltd HAD Very Valid And Winnable LEGAL CLAIMS, Against The Ones Who Caused A LOT Of Damages And The LOSSES And Legal COSTS Of Tolhursts Druce & Emmerson (Solicitors) Who WERE The REASON That The Company Went To The Very Unfair & Unjust Liquidation.

AND That IS Why Our Company MUST BE RE Instated And To SUE The ONES Who DONE Their Best To Destroy US And My Family To Become Homeless, And Only DUE TO THE FULL NEGLIGENCE Of "Tollhurst Druce & Emmerson" Lawyers, And We DESERVE TO HAVE THE Right To SUE Them For ALL Our Great LOSS And DAMAGES, And The Others.

I Further SUBMIT To This Honourable Court That The Whole Other Members Of The Public, HAVE NOTHING To Fear And Nothing To Lose By My Ex Trustee Company's Registration, And RE Instatement, And As We Must BE Given The Natural Justice WE Are Seeking Under The Corporations Act, And Under The 'Charter Of Human Rights Too' That A Person Must Not Lose Its Property, Except According To Law, (And Under Sections 20 And 22) Of The CHARTER OF HUMAN RIGHTS.
Further The Honourable Justice Ferguson Erred At Law To Consider That Maryvell Inv. P/L Claims Against 'SIGMA' And Others Are Hopeless, And The RE Instatement Of Maryvell Investments Pty Ltd Would Be Futile, And She Erred At Law To Relay On The Previous (21) Cases And Hearings, BUT They WERE NOT For The RE Instatement Of The Company, And This IS The Only Time I Have Applied To RE Instate The Ex Trustee Co. Maryvell Inv. P/L Further The Several EXHIBITS That I HAVE FILED In The Supreme Court, Fully Support The Very Valid AND Winnable Claims Of The Company, AGAINST 'SIGMA' And They PROVE Too, That The Liquidator Acted Illegally And As HE Sent And Received Emails, To And From The Solicitors 'Stonnigton And Zervas' And Theodore Zervas From 26/Feb./2008 To The 26/March/2008 AND SOLD The Big Property For a Gross Under Value Of $1.6 Million Only, AND He Gave Away My Restaurant Plant And Equipment For $1.00 Fat Dollar. I Will Produce Further GROUNDS OF APPEAL At The HEARING, And As I Am Running OUT OF TIME TO FILE THE Documents Today At COURT, And AS I AM SICK.
I Put As 'EHIBITS 1, 2 & 4, The Documents In This Notice Of APPEAL Too.

7 On 22 November, the appellant was advised orally, at the Court of Appeal Registry, that his notice of appeal was defective. There is no doubt, I should immediately say, that this advice was correct.[4]

8 On 23 November, the Registry advised the appellant, by email, that -

(1) the notice of appeal did not meet the requirements of r 64.15;

(2) he was given the opportunity of reformulating his notice of appeal;

(3) a note of proposed contents of appeal book had not been filed within time, for which reason his appeal was now deemed to be abandoned (see r 64.08(1) and 64.16(1)(a));

(4) in order to reinstate his appeal, he would need to file a summons, supporting affidavit and an amended notice of appeal by 3 December. If he did not do so, the Judicial Registrar would assume that he did not want to take up the opportunity, and would consider whether to refer the matter to the Court of Appeal for dismissal based on the defects in the current notice of appeal.

9 On 28 November, the appellant sent a fax to the Registry in which he asserted that -

(1) he had been told that day that his notice of appeal had not been accepted;

(2) that his notice of appeal was 'very good' and that he did not 'need your approval at all'.

10 The appellant attached to his fax a copy of the notice of appeal dated 14 November 2012.

11 On 30 November, the Registry emailed the appellant, restating that his appeal was deemed abandoned and that he needed to apply for reinstatement by 3 December, failing which the Judicial Registrar would assume that the appellant did not want to take up the opportunity, and would consider whether to refer the appeal to the Court of Appeal for dismissal based on the defects in the then current notice of appeal.

12 On 6 December 2012, the appellant wrote to the Registry, seeking an additional two weeks to prepare a note of proposed contents of the appeal book. He restated his position that, in substance, his extant notice of appeal was in proper in form and content.

13 In May this year, the Court determined to consider, of its own motion, whether the appeal should be dismissed for want of prosecution under r 24.05. That raises for consideration the question whether there has been inordinate and inexcusable delay by the appellant in the prosecution of the matter, with resulting prejudice to potential defendants.

14 Very recently, counsel acting pro bono for the appellant has provided written submissions which, in substance, recite the chronology only up to 23 November 2012, and then continue -

The appellant's instructions are that he was not informed by Registry staff of the deadline for filing the note of proposed contents, and that he was also unable to prepare the notice of prepared contents because he was sick at the time.

The claims vested in Maryvell Investments Pty Ltd which the appellant seeks to prosecute have not been determined finally or on their merits in the Supreme Court or any other court: see [2012] VSC 293 at [9].
The appellant submits that the interests of justice require that the appeal be reinstated pursuant to r 64.16(2) in order that he may pursue the reinstatement of Maryvell Investments Pty Ltd, so that the company's claims arising out of the above events, which have resulted in very substantial losses being caused to the appellant and his family, may be pursued by the company, heard on their merits and determined according to law.
If the appeal is reinstated, the appellant's instructions are that he will file a revised notice of appeal within a short period of time, a note of proposed contents of appeal book 7 days thereafter, and that he will do his utmost to comply with the remaining procedural requirements thereafter.

16 Counsel for the appellant submitted today that the Registry letter of 23 November 2012 had been somewhat confusing. On the one hand, the appellant had been given the opportunity of reformulating his notice of appeal. On the other hand, he had been told that his appeal was now deemed abandoned, and that it would be necessary for him to apply for its reinstatement. Counsel pointed out that his client was not a lawyer, but rather an unrepresented litigant.

17 It turned out, however, that counsel was unaware of the existence of the fax sent by the appellant to the Registry on 28 November, and of the letter sent by the appellant to the Registry dated 6 December. Shown those communications, he had no further submissions to advance.

18 In my opinion, the Court should decline to reinstate the appeal, but should rather dismiss it for want of prosecution. Dismissal removes the prospect, illustrated by the appellant's application for reinstatement today, that deemed abandonment of an appeal may not prove to be the end of an appeal.

19 As I have already explained, the last occasion upon which the appellant addressed the matter was on 6 December 2012. On that date, he sought an additional two weeks to file a note of proposed contents - at the same time asserting, in substance, that there was nothing wrong with his existing notice of appeal. He did not follow up his request.

20 In the period of more than one and a half years which has elapsed since early December 2012, the appellant has taken no step either to file a note of proposed content or, for that matter, to regularise his notice of appeal, which was plainly defective. Significantly, the delay remains entirely unexplained. Had not the Court itself determined to bring the matter on, there is nothing to suggest that the appellant would have pursued the appeal.

21 I consider that - as is necessary to consider in the context of an appellate proceeding - the appellant's inactivity over a protracted period has been inexcusable, and that the delay itself has been inordinate. Further, although there was no defendant to the application below, had this appeal been successfully prosecuted it is plain that several entities, and the liquidator also, would have become defendants to litigation founded upon events which took place many years ago. The significance of the appellant's delay in prosecuting the appeal must be understood in that context. There would be, at least, a real risk of prejudice to those prospective defendants by reason of the delay - that is, the delay in prosecuting the appeal as distinct from the overall elapse of time - had the appeal succeeded and Maryvell been reinstated; prejudice by reason of being kept at risk, and prejudice in the conduct of their defences to litigation.

22 The liquidator has already been the defendant - or the intended target - in a considerable number of proceedings brought by the appellant. The notice of appeal dated 14 November 2012 reveals that the appellant sought reinstatement of Maryvell in part so that it could be used to bring a proceeding against the liquidator for the alleged sale of a property at Sydney Road, Brunswick at an undervalue, likewise the sale of plant and equipment at an undervalue. In Velissaris v Fitzgerald,[5] this Court decided that, whilst it was still open to the appellant[6] to bring a proceeding against the liquidator in respect of the alleged sale of the property at an undervalue, he could only do so by leave. The leave filter was of importance because of the appellant's multiple past attempts to sue the liquidator based upon factual assertions which have been said by courts to be contradictory and not credible. That decision did not consider the question which is pertinent here - that is, whether there is at least a real risk that the liquidator would be prejudiced generally or in his defence of such a claim - by the appellant's inordinate, inexcusable and unexplained delay in prosecuting this appeal. I do not doubt that such a risk of prejudice should be inferred.

23 In Velissaris v Fitzgerald, this Court also summarily dismissed a claim that the liquidator had sold the plant and equipment at an undervalue. The appellant should not be given the opportunity, after lengthy and unexplained delay, of reviving that claim, even if it be doomed to failure. To do so would unnecessarily embroil the liquidator in still further litigation.

24 As to other entities which the appellant apparently wished to sue by way of the Maryvell vehicle, it is true of one potential claim mentioned in the notice of appeal that it has not been the subject of final determination. But it appears that the liquidator considered whether to bring such a claim on behalf of Maryvell, and determined not to do so. If the appellant, subsequent to lengthy delay for which he alone bears responsibility, was now permitted to proceed against that entity, it would be exposed to a risk of litigation from which it could reasonably have expected it was now relieved. The passage of time in the period of delay, it should be inferred, has caused at least a real risk of prejudice to that entity in its defence of the foreshadowed claim.

25 I would dismiss the appeal for want of prosecution.

26 I add one matter. As I have already mentioned, appellant's counsel stated that he was unaware of the existence of two documents sent by the appellant to the Registry until he was shown them by the Court. In light of those communications, his submissions became very difficult to maintain. Counsel was appearing, in accordance with the best traditions of the Bar, pro bono. Of course, the Court did not enquire into the circumstances in which counsel's understanding of the circumstances came to be incomplete, but this should be said: an unrepresented party who has the great advantage of such representation must be very careful to provide frank and complete instructions to counsel.

28 The order of the Court is that the appeal is dismissed.

[4] Victoria v Bacon [1998] 4 VR 269.

[6] As the alleged trustee of the Maryvell Trust, which in turn was alleged to be the beneficial owner of the Sydney Road property.

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