Bajramovic v Calubaquib

1. These reasons are addressed to the interlocutory application filed by Tony Metledge seeking orders to restrain the liquidators of TJM Holdings Group Pty Ltd, Richard Albarran and Brent Kijurina (together, the Liquidators), from taking any further steps in proceeding 2025/00498355 filed 19 December 2025 in the Supreme Court of New South Wales without prior leave of this Court. The New South Wales Supreme Court proceeding is an application by the Liquidators to terminate the winding up of TJM under s 482 of the Corporations Act 2001 (Cth) and for approval of the Liquidators' remuneration. Mr Metledge frames the relief he seeks as being in the form of an urgent injunction and he offers the usual undertaking as to damages.
2. I am informed that the next listing of the New South Wales Supreme Court proceeding is now before Black J on Monday, 23 February 2026, the earlier listing on 16 February 2026 having been vacated this morning.
3. The present application comes before me today in my capacity as Commercial and Corporations Duty Judge. It was listed on the basis that the New South Wales Supreme Court proceeding would potentially be determined on 16 February 2026.
4. When the matter came on today, Mrs Mary Metledge, solicitor, appeared for Mr Metledge. Mr Luke Hyland, solicitor at HFK Lawyers, appeared for TJM and the Liquidators.
5. Mr Metledge relies on the following evidence in support of his interlocutory application:

(1) the affidavit of Mr Metledge sworn 8 January 2026; and

(2) the further affidavit of Mr Metledge sworn 13 February 2026, and the exhibit to that affidavit.

1. TJM and the Liquidators rely on the following evidence in opposition to the interlocutory application:

(1) the affidavit of Mr Albarran sworn 19 December 2025, and the exhibit to that affidavit (previously filed in the New South Wales Supreme Court proceeding); and

(2) the affidavit of Mr Hyland, affirmed 13 February 2026, and the exhibit to that affidavit.

1. TJM and the Liquidators also tendered a copy of the originating process filed in the New South Wales Supreme Court proceeding.
2. By way of brief background, there have been many applications in this Court by Mr Metledge in relation to the winding up of TJM. The various appearances are outlined below but the following two applications are those which are principally relevant.
3. In September 2025, Mr Metledge made an application to commence proceedings to review winding up orders made by a Registrar of this Court pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). That application was heard by Halley J, sitting as the Commercial and Corporations Duty Judge, who dismissed the application on the basis that Mr Metledge was not himself a "party" to the winding up proceedings and thus lacked standing to seek review pursuant to s 35A: Metledge v Woori International Pty Ltd, Re TJM Holdings Group Pty Ltd [2025] FCA 1130. That specific obstacle may have been overcome had Mr Metledge made, or been treated as having made, an application for leave pursuant to s 198G(3) of the Act to cause the company to seek review of the Registrar's orders. Mr Metledge would also have been required to obtain an extension of time within which to seek the review pursuant to s 35A of the FCA Act.
4. Mr Metledge also brought an urgent application before Owens J, sitting as the Commercial and Corporations Duty Judge, for the grant of an extension of time to apply for review of the Registrar's decision, amongst other things. On this aspect, Owens J was not satisfied that the company had a reasonably arguable case for the grant of an extension of time. Owens J declined to grant leave pursuant to s 198G(3) of the Act in circumstances where the strength of the case to be argued on review was "very weak".
5. It is apparent from the reasons given by Owens J that the decision of the Registrar was given on 12 February 2025, and that the application for a review of that decision was made well outside the 21 day period stipulated under r 3.11(2) of the Federal Court Rules 2011 (Cth) for the bringing of an application to review a decision of a Registrar. During the intervening period of more than seven months, the winding up of the company had all but concluded. All that remained was for the Liquidators to make an application pursuant to s 482 of the Act to terminate the winding up and restore the company to Mr Metledge's control. Owens J considered that there was no practical difference between setting aside the winding up orders as opposed to terminating the winding up. Owens J also dismissed an application pursuant to rr 39.05(b) and (c) of the Rules seeking to set aside the Registrar's orders on the grounds that they were obtained by fraud or on the basis that they were interlocutory.
6. In terms of the broader procedural history which provides relevant context for the orders I will make today, I am grateful to be able to draw on Owens J's summary of the procedural history and the demands that have been placed on this Court's resources in the period since the winding up order was made at paragraph [27] of his reasons in Woori International Pty Ltd, in the matter of TJM Holdings Group Pty Ltd (In Liquidation) [2025] FCA 1276:

(a) On 24 February 2025 (and so within the period within which an application to set aside the Registrar's orders could have been made), Mr Metledge filed an application to terminate the winding up under s 482. That application was called on for hearing on 27 February 2025 before Markovic J (as the Corporations List Judge). Her Honour was told that the parties sought an adjournment until 4 April 2025, because it was hoped or anticipated that the parties could reach a consent position for the termination of the winding up. Her Honour expressed some disquiet with the length of the proposed adjournment, but was assured by the parties that they would move as quickly as possible, and relist the matter sooner if they were in a position to do so. Mr Metledge was represented by counsel on this occasion.

(b) The matter came back before Markovic J on 10 April 2025. Mr Metledge was once again represented by counsel, albeit different counsel to that appearing on the previous occasion. Her Honour was informed that an unsuccessful attempt had been made to file an application to review the Registrar's decision, and for an extension of time within which to bring that application. Her Honour expressed some surprise that such a course was in contemplation, in circumstances where she had previously been told that there was all but concluded agreement to bring the winding up to an end. In any event, her Honour was also told that the Registry had advised of the changes required for the application to be accepted, and she was asked to adjourn the matter for a short period to enable the parties to have discussions.

(c) The matter was next before Markovic J on 1 May 2025. Once again, Mr Metledge was represented by counsel. Her Honour was told that Mr Metledge had changed lawyers, and wanted advice on "whether there is a basis for a section 35A application for review of the registrar's decision", but that he also wanted to keep the existing s 482 termination application "on foot". Her Honour was concerned to progress the s 482 application, and made orders for the filing of evidence in relation to it. She then listed the proceedings for further case management on 12 June 2025 (by which point a decision as to whether an application under s 35A was anticipated to have been made).

(d) On 16 May 2025, the matter came before Lee J as Duty Judge. Mr Metledge was represented for part of the hearing by his mother (who is a solicitor). At least two issues were raised. The first was an attempt to restrain the payment by the liquidators of the debt claimed by the plaintiff. That issue was resolved by the liquidators giving an undertaking that they would not distribute any of the company's assets before 12 June 2025 (ie, when the matter was due to return to Markovic J in the corporations list). The second was Mr Metledge's desire to seek a review of the Registrar's decision, and set aside the winding up order. Mr Metledge sought orders granting him leave to file an application for an extension of time and for a review of the Registrar's orders pursuant to s 35A of the Federal Court Act, to which Lee J said:

Well, I don't think I need to give you leave to do anything. I think if you wish to make an application for an extension of time, you can file it in these proceedings and ask that it be listed in front of Markovic J at the same time.

...

If you want to bring an application to seek other relief, which it appears to me that you do, get legal advice, and you can file an application and ask it be returnable before her Honour when the matter is before the court on 12 [June] and it can be dealt with by her Honour at the same time...

(e) On 12 June 2025, the matter came back before Markovic J. Mr Metledge was again represented by his mother. Mrs Metledge informed her Honour that the s 482 application "was filed against our express instructions to our previous solicitor". Although Lee J had indicated that, if an application to set aside the Registrar's orders was sought to be made, it should be filed in advance of 12 June 2025, that had not happened. Mrs Metledge was told by Markovic J that such an application, if it were to be made, should be filed. Justice Markovic then dismissed the s 482 application.

(f) On 27 June 2025, Mrs Metledge appeared before Younan J as Duty Judge on behalf of her son. It appears that the primary focus of the application was to obtain an injunction to prevent the settlement of the sale of one of the company's properties (or to restrain the distribution of the proceeds). That application failed, it would seem, because there was not evidence sufficient to satisfy her Honour that Mr Metledge was the shareholder of the company and thus that he had any interest in obtaining the relief sought. In any event, there was also discussion of the fact that Mrs Metledge had tried, and failed, four times to file an application for review of the Registrar's orders. That issue was not dealt with in Court, and was left on the basis that Mrs Metledge should continue to engage with the registry.

(g) On 9 September 2025, Mr Metledge came before Halley J as Duty Judge. Mr Metledge was represented by a solicitor (other than his mother). I have already referred to that application, and the fact that it was unsuccessful.

1. I wish to emphasise the number of times Mr Metledge has brought applications before judges of this Court sitting as Duty Judges. Applications before the Duty Judge are required to be attended by sufficient urgency to justify the application (or part of the application) being determined by a Duty Judge on an urgent basis. That requirement is important. It is directed to stopping parties in effect jumping ahead of other proceedings pending before this Court where it is not justified to take the application outside the usual docket and/or specialty list arrangements. The procedural history outlined above demonstrates that Mr Metledge has made recurrent applications that broadly seek substantially the same relief. The procedural history suggests that Mr Metledge may be seeking to obtain an advantageous outcome by shopping for different judges to consider his applications as different judges come on duty on the duty roster. That observation is particularly stark in relation to the application that was brought before Owens J and that which is before me today, notwithstanding Mr Metledge's protestations to the effect that he does not seek to revisit the determinations made by Owens J in relation to the review of the Registrar's decision.
2. In his written submissions, Mr Metledge makes clear that by today's application he is not seeking to review, vary, or set aside the Registrar's orders. In his oral submissions, Mr Metledge sought to justify the grant of an injunction in support of what he says is this Court's responsibility to supervise the conduct of liquidators appointed pursuant to an order of this Court. Mr Metledge seeks to restrain the company and the Liquidators from proceeding with the New South Wales Supreme Court proceeding. His purpose is to obtain a period of time to get advice as to the means by which he may challenge the validity of the winding up order made in this Court. He deposes that Mr Walker of senior counsel has been briefed to provide an advice but does not have availability to do so until March 2026.
3. Mr Metledge does not dispute that the Supreme Court has jurisdiction to hear the proceeding which the Liquidators have commenced before it. He submits that the New South Wales Supreme Court is an inappropriate forum. That submission appeared to be premised on an assertion that a liquidator appointed by a "Court" (as defined under the Act) was only subject to supervision by the particular Court that made the winding up and appointment order. I do not accept that is correct. I do not accept that the arguments that Mr Metledge presages that he wishes to make about the conduct of the Liquidators, including in relation to their remuneration, are arguments for which the New South Wales Supreme Court is an inappropriate forum or which cannot be made before the New South Wales Supreme Court in Mr Metledge's opposition to the s 482 application and remuneration approval.
4. I should note that the parties to this application appear to accept that Mr Metledge is an interested person who is entitled to be, and has been, served with the New South Wales Supreme Court proceeding. Although the evidence before me included quarrels about the circumstances attending on service of the New South Wales Supreme Court proceeding, Mr Metledge does not dispute that he has been served as an interested person in that proceeding.
5. It is unclear what exactly Mr Metledge seeks to achieve in the present interlocutory application other than to delay the determination of the application to terminate the winding up of TJM and to mount a further attack on the validity of the Registrar's order.
6. Relitigating the very same question in an interlocutory process is likely an abuse of process unless there has been a change of circumstances or evidence has become available that was not available at the time of the original hearing. In Bajramovic v Calubaquib [2015] NSWCA 139; 71 MVR 15 at [40]- [41], Emmett JA states (Leeming JA and Adamson J agreeing) (citations omitted):

[40] Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process.

[41] It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained.

1. There has not been any material change of circumstances, and no evidence has become available that was not contemplated in the reasons for judgment by Owens J. Mr Metledge relies on "further events" in his affidavit of 13 February 2026, being the filing of the New South Wales Supreme Court proceeding. However, Owens J took into account that the Liquidators were on the cusp of filing an application pursuant to s 482 of the Act to terminate the winding up: Woori at [7]. There has not been a material change of circumstances from the time of Owens J's reasons, by reason of the fact that the contemplated application, which was regarded as being imminent, has in fact been made.
2. Having regard to the whole of the circumstances, and assuming for the purpose of this application that Mr Metledge has standing, I am not satisfied that it is in the interest of justice to grant Mr Metledge the relief that he seeks even though he has proffered the usual undertaking as to damages. Mr Metledge has not established that there is a serious question to be tried or that he will suffer irreparable harm should the status quo not be preserved. The balance of convenience does not weigh in favour of granting this application. I will dismiss the interlocutory application with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.