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[2023] FCAFC 86
Federal Court of Australia (Full Court)
2021-10-22
Lindsay J, Mr P, Kennett JJ
Original judgment source is linked above.
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 76
Date of hearing: 16 May 2023
Counsel for the Applicant: Mr P King
Solicitor for the Applicant: Russell Kennedy Lawyers
Counsel for the First, Second and Third Respondents: The First, Second and Third Respondents appeared in person.
Counsel for the Fourth Respondent: The Fourth Respondent did not appear.
AND: BRIAN TIMOTHY BOLAND First Respondent
MURRAY CHARLES REID (and another named in the Schedule) Third Respondent
order made by: MARKOVIC, DOWNES AND KENNETT JJ DATE OF ORDER: 31 May 2023
THE COURT: 1 Before the Court is an application filed on 2 May 2022 by George Dimitrovski (Leave Application) seeking an extension of time and leave to appeal from orders made on 22 October 2021 by the Supreme Court of New South Wales in proceeding no 2021/00168665 (Supreme Court Proceeding). By those orders, among other things, the Supreme Court Proceeding was dismissed insofar as Mr Dimitrovski as first plaintiff made claims for relief, and the statement of claim filed on 4 June 2021 was otherwise struck out with leave granted to the second plaintiff, Susan Vasil, to re-plead any claim for relief on which she relied. Ms Vasil (who has since died) was Mr Dimitrovski's sister. 2 There are four respondents to the Leave Application: Brian Timothy Boland and Helen Jane Boland, who are husband and wife, as first and second respondents; Murray Charles Reid as third respondent; and Avid Business Pty Ltd, a company of which Mr Boland is a director, as fourth respondent. Mr and Mrs Boland are not legally represented and appeared in person at the hearing of the Leave Application. Mr Reid was legally represented but filed a notice of termination of lawyers' retainer on 5 May 2023. He appeared in person at the hearing. 3 As was explained to Mr and Mrs Boland, r 4.01(2) of the Federal Court Rules 2011 (Cth) requires that Avid Business, being a corporation, be represented in a proceeding before the Court by a lawyer unless the Court dispenses with the requirements of that rule: see r 1.34 of the Rules. No such application was made prior to the hearing and, in the absence of an application made in accordance with the Rules and on notice, we declined the application made at the hearing by Timothy Boland, who indicated that he was authorised as a director to appear on behalf of Avid Business, to appear in the interests of that company. 4 The Leave Application was listed before us to be heard immediately before or concurrently with any appeal. There were also two interlocutory applications before us seeking orders pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 36.57 of the Rules that the Court receive further evidence on the Leave Application and, if leave is granted, on the appeal: the first application was made by Mr Dimitrovski (Dimitrovski Further Evidence Application); and the second application was made by Mr and Mrs Boland (Boland Further Evidence Application) and, as explained by Mr Boland, was responsive to Mr Dimitrovski's application. 5 For the reasons that follow, we would dismiss the Leave Application and decline to make the orders sought in the Dimitrovski Further Evidence Application and the Boland Further Evidence Application.
Background 6 The Leave Application arises in the following circumstances. 7 In 2004, Mr Dimitrovski invested $500,000 in Life Order Products Pty Ltd, a company associated with Mr and Mrs Boland. 8 On 9 December 2013, Mr Dimitrovski was made a bankrupt and, on 21 December 2016, he was discharged from bankruptcy. 9 On 4 June 2021, Mr Dimitrovski and Ms Vasil commenced the Supreme Court Proceeding by filing a statement of claim. Mr and Mrs Boland, Mr Reid and Avid Business were named as the first, second, third and fourth defendants respectively in that proceeding. 10 In their statement of claim, Mr Dimitrovski and Ms Vasil, among other things, sought compensation under Pt 5.2.3 and Pt 5.2.4 of the Australian Consumer Law (ACL) being Sch 2 to the Competition and Consumer Act 2010 (Cth), orders for compensation under ss 1041I, 1324(10) and 1325 of the Corporations Act 2001 (Cth), damages, declarations that each of the defendants contravened ss 18 and 21 of the ACL, ss 1041E, 1041G and 1041H of the Corporations Act and ss 12CB and 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), injunctions and, to the extent necessary, an order pursuant to s 601AH(2) of the Corporations Act for reinstatement of the registration of Life Order. 11 On 30 July 2021, Mr and Mrs Boland and Avid Business filed a notice of motion in the Supreme Court Proceeding seeking orders that the Proceeding be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, in the alternative, that the statement of claim be struck out in whole or in part pursuant to r 14.28 of the UCPR (Summary Dismissal Application). 12 The Summary Dismissal Application came before Lindsay J in the Supreme Court for hearing on 22 October 2021. At that time Mr Reid made an oral application, which his Honour granted, seeking leave to press for the same orders as sought in the Summary Dismissal Application (Mr Reid's Application). 13 The Summary Dismissal Application and Mr Reid's Application were successful and on 22 October 2021 the following orders (Supreme Court Orders) were made: 1) ORDER that the third defendant be granted leave to move the Court for the relief claimed in the notice of motion filed on 30 July 2021 by the first, second and fourth defendants. 2) ORDER that that motion be made returnable before the Court instanter and be heard together with the notice of motion filed on 30 July 2021. 3) ORDER that any requirement for the third defendant to file and serve a notice of motion additional to the notice of motion filed on 30 July 2021 be dispensed with. 4) ORDER that the proceedings be dismissed insofar as the first plaintiff makes claims for relief. 5) ORDER that the statement of claim filed on 4 June 2021 be otherwise struck out, reserving to the second plaintiff leave to re-plead any claim for relief upon which she relies. 6) ORDER that the second plaintiff file and serve, no later than 10 December 2021, any amended statement of claim which she proposes to file. 7) ORDER that the proceedings be listed before the Registrar on 10 February 2022 for directions. 8) ORDER that the plaintiffs pay the defendants' costs of the motions for summary relief determined by the Court on 22 October 2021, assessed on the ordinary basis. 9) ORDER that these orders be entered forthwith. 14 While no reasons were published by Lindsay J, the transcript of the hearing records (at T31-T32) the following reasons given by his Honour for making the orders: Briefly, I'll state my reasons. Before the Court, are proceedings commenced by the filing of a statement of claim on 4 June 2021, in relation to causes of action, which the defendants contend, accrued no later than 11 June 2009. The causes of action pleaded in the statement of claim cover statutory and general law claims. Speaking broadly, the statutory claims relate to allegations of misleading and deceptive conduct, or unconscionable conduct, and the general law claim relates to a claim for damage for tortious conspiracy. Before the Court is a notice of motion filed on 30 July 2021 by the first, second and fourth defendants, seeking orders in the alternative, under Uniform Civil Procedure Rules 13.4 and 14.28. During the course of the hearing, the third defendant, which had previously foreshadowed support for the motion, sought and obtained leave to move the Court in terms similar to those of the notice of motion of the first, second and fourth defendants. The grounds upon which summary relief is sought by the defendants, might be reduced to three in number. First of all, as regards the first plaintiff, the fact is that he was made bankrupt on 9 December 2013, although he was discharged by operation of law from the bankruptcy on 21 December 2016. Secondly, the defendants take the point that the proceedings were commenced well after what is commonly a limitation period of six years, a matter which can be, in the circumstances, dealt with in the broad, given the orders have been made, or are being made. The first plaintiff was made bankrupt after the date, or dates, upon which any cause of action in him accrued, and in those circumstances, any cause of action he had vested in his trustee in bankruptcy. He makes a claim in respect of alleged personal injury, perhaps the idea being to bring himself within s 116(2)(g)(i) of the Bankruptcy Act. However, insofar as a claim for personal injury relief is made by the first defendant, it is inextricably interwoven with the financial matters, and accordingly, if there might be otherwise a claim for damages in respect of personal injury, that claim also vests in the trustee in bankruptcy. The fact that the first plaintiff was discharged from bankruptcy, does not alter that assessment, because the action, if there was an action, vested in the trustee in bankruptcy. In relation to the proceedings brought by the first plaintiff, the bankruptcy point, in my opinion, is sufficient to make a determination under r 13.4 of the Uniform Civil Procedure Rules. There is no reasonable cause of action disclosed. The point is not so clear in relation to limitation period defences that are advanced by the defendants. I am mindful of the warning given by the High Court in Wardley Australia Ltd v Western Australia [1992] 175 [CLR] 514 at 533-534. Some of the causes of action upon which the plaintiffs rely, might be the subject of a limitation barrier, but at least in relation to the second plaintiff, it's premature I think to form that view. Having determined that the proceedings brought by the first plaintiff should be dismissed, one turns one's attention to the statement of claim, insofar as it pleads a claim for relief on the part of the second plaintiff. The statement of claim, as is conceded by counsel for the plaintiffs, is perhaps in need of review, in any event, but there is no clarity, for example, in para 7 of the statement of claim as to what claims for damages are made by whom. It's not necessary to dwell too much on this, because if the second plaintiff seeks to proceed, it'll be necessary for her to re-class the statement of claim generally. For those reasons, I have indicated that I'm making orders dismissing the first plaintiff's proceedings, striking out the statement of claim otherwise, but allowing the second plaintiff an opportunity to file an amended statement of claim. … 15 On 17 November 2021, Mr Dimitrovski filed a notice of intention to appeal from the Supreme Court Orders in the New South Wales Court of Appeal and on 20 January 2022, he filed a summons seeking leave to appeal (Leave to Appeal Summons) from those orders and, in particular, from Order 4 of the Supreme Court Orders. The named respondents to the Leave to Appeal Summons were Mr and Mrs Boland, Mr Reid and Avid Business. 16 On 28 February 2022, the Leave to Appeal Summons was listed before Registrar Riznyczok in the Court of Appeal for directions. On that occasion, Mr Dimitrovski was not legally represented and appeared in person. In the course of the directions hearing the Registrar directed the following comments to Mr Dimitrovski: Alright so, as I said you need to contact the chambers to get a revised copy of the decision. You need to look at whether you should be going to the Federal Court rather than to the Supreme Court. Now if this Court doesn't have jurisdiction that means that your appeal will just be dismissed as being incompetent. Incompetent just simply means no jurisdiction. So what I propose to do is stand the matter over for a number of weeks to allow you to make that approach to chambers and to consider your position and for the respondents to consider whether they should put on a motion. The Leave to Appeal Summons was stood over to 28 March 2022. 17 It appears that, on 28 March 2022, the Leave to Appeal Summons was once again listed for case management before Registrar Riznyczok in the Court of Appeal. The orders recorded on that day include "Summons discontinued". It is not clear, but does not presently matter, whether the Summons was discontinued by Mr Dimitrovski or dismissed by order of the Court of Appeal. 18 On 27 April 2022, Mr Dimitrovski retained his current solicitor, Walter John Mungo MacCallum of Russell Kennedy Lawyers, to act for him. On 3 May 2022, the Leave Application was accepted for filing in this Court. 19 The respondents oppose both the extension of time and the grant of leave to appeal and, if Mr Dimitrovski is successful in his Leave Application, they contend that the appeal should be dismissed.
Should Mr Dimitrovski be granted an extension of time and leave to appeal? 20 As set out above, Mr Dimitrovski requires an extension of time in which to file his application for leave to appeal and, despite an argument to the contrary which we address below, requires leave to appeal from the Supreme Court Orders. 21 Leave to appeal is required because the orders and, in particular, Order 4, are interlocutory. Based on the parties' written submissions and the fact that Mr Dimitrovski filed the Leave Application, the need for leave was a matter about which it seemed there was no dispute between the parties. However, in oral submissions, counsel for Mr Dimitrovski put the nature of Order 4 in issue. He submitted that Order 4 of the Supreme Court Orders, which was made pursuant to r 13.4 of the UCPR, is final and leave to appeal is therefore not required in this Court. That was said to be because s 24(1D)(b) of the Federal Court Act, which mandates that an order made under s 31A of the Federal Court Act granting or refusing summary judgment is interlocutory, does not apply to r 13.4 of the UCPR, there is no equivalent to s 24(1D)(b) of the Federal Court Act in the UCPR, and the reasons of Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372; [2008] FCAFC 60 to the effect that an order for summary judgment disposing of an entire proceeding is a final order should be followed. 22 There have been a number of decisions in this Court considering whether an order granting or refusing summary judgment is interlocutory or final. In Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 at [29], Wheelahan J provided the following summary of the authorities: For the purposes of appeal, a judgment given under s 31A of the Federal Court of Australia Act is taken to be interlocutory, with the consequence that leave to appeal is required: Federal Court of Australia Act, ss 24(1A) and (1D)(b). Independently of those provisions, summary judgment of the Court under s 31A has been held to be interlocutory: Zoia v Commonwealth Ombudsman [2007] FCAFC 143; 240 ALR 624 (Spender J at [19] by way of obiter, French J and Gilmour J agreeing); Simundic v University of Newcastle [2007] FCAFC 144 at [12] (Allsop, Lander and Siopis JJ); Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 at [15] (French, Lindgren and Jacobsen JJ); Wills v Australian Broadcasting Corporation [2009] FCAFC 6; 173 FCR 284 (Rares J at [28] by way of obiter, Emmett J agreeing, North J not deciding); Luck v University of Southern Queensland [2009] FCAFC 73; 176 FCR 268 (Graham J and Rares J, North J not deciding). A contrary view was expressed by Finkelstein J (dissenting as to the result) and Gordon J (by way of obiter) in relation to summary judgment disposing of the entire proceeding in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372. Rares J, who otherwise formed part of the majority with Gordon J in Jefferson Ford, considered that a judgment under s 31A of the Federal Court of Australia Act was interlocutory. In Macatangay v New South Wales (No 2) [2009] NSWCA 272, the New South Wales Court of Appeal (Allsop P, Tobias JA and Handley AJA) held at [11]-[12] that an order summarily dismissing a proceeding because it is frivolous, vexatious, an abuse of the process of the court, or does not disclose a reasonable cause of action, was interlocutory because of its legal effect: there was no triable issue and the order therefore did not finally determine the rights of the parties or create res judicata estoppels. In Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401, at [32]-[44], the Full Court (Spender, Graham and Gilmour JJ) respectfully disagreed with the views of Finkelstein J and Gordon J in Jefferson Ford, and agreed with the views of Rares J in Luck, and held that summary judgment under s 31A(2) of the Federal Court of Australia Act is interlocutory. In Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 at [11], the Full Court (Keane CJ, Besanko and Perram JJ) referred to Jefferson Ford and Kowalski and held that it was unnecessary to consider the question as to whether judgment under s 31A was interlocutory or final, because the purpose of the introduction of s 24(1D)(b) of the Federal Court of Australia Act was to put an end to the debate. 23 At [30] of Fokas, Wheelahan J observed that the reasons for judgment of Finkelstein J in Jefferson Ford were dissenting and that the observations of Gordon J, to the extent they related to orders disposing of the whole proceeding, were obiter but that in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117, the question whether the decision of the primary judge was interlocutory or final was a necessary issue for the Full Court to decide. Accordingly, his Honour determined that he would follow the decision of the Full Court in Kowalski and thus treat the judgment in issue in the case before him, which was a judgment under s 31A of the Federal Court Act, as interlocutory. 24 Further, as Wheelahan J observed in his survey of the authorities in Fokas, in Macatangay v State of New South Wales (No 2) [2009] NSWCA 272, the New South Wales Court of Appeal (Allsop P, Tobias JA and Handley AJA) held that an order summarily dismissing a proceeding under r 13.4 of the UCPR is interlocutory. At [10]-[13], their Honours said: 10 The order of Grove J for the summary dismissal was made under the UCPR, Part 13 r 13.4 which is in the following terms: … 11 The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action." 12 The principle has been established for over 100 years by decisions some of which are binding on this Court. 13 The relevant provision is s 101(2)(e) of the Supreme Court Act which requires leave to appeal from an interlocutory judgment or order of the Court. Section 101(2)(l) is concerned with summary judgment dealt with in r 13.1 at the suit of the plaintiff in which the court gives judgment. Without a provision such as s 102(2)(l), such an order for judgment could be seen to be final. In any event, the order of Grove J was interlocutory, s 101(2)(e) applies, and the plaintiff's appeal as of right was incompetent. See too McGinn v Cranbrook School [2016] NSWCA 226 at [21]-[22] (Beazley P, Gleeson and Simpson JJA). 25 That puts beyond doubt the issue raised by Mr Dimitrovski as to the nature of Order 4 of the Supreme Court Orders. It is an interlocutory order and leave to appeal from it is required. 26 Mr Dimitrovski also requires an extension of time within which to file the Leave Application because in this Court, an application for leave to appeal must be made within 14 days from the date on which judgment was pronounced or the order appealed from was made: see r 35.13 of the Rules. In contrast, in the Supreme Court, a party wishing to appeal can file a notice of intention to appeal within 28 days after the "material date" and thereafter is required to file and serve the relevant originating process within three months after the "material date": see rr 51.8 and 51.9 of the UCPR. 27 Mr Dimitrovski filed the Leave to Appeal Summons within time as required by the UCPR. However, that is not the case for the filing of the Leave Application in this Court. 28 The principles concerning the exercise of the Court's discretion to grant an extension of time are settled. The Court will not grant an extension of time unless it is positively satisfied that it is proper to do so. In determining whether to do so, the Court will consider the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents occasioned by the delay and the merits of the proposed application for leave to appeal: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20] (Perram, Farrell and Perry JJ). 29 It is convenient also to set out the principles governing the exercise of the Court's discretion to grant leave to appeal. Once again, they are settled. In exercising its discretion to grant leave to appeal, the Court will consider whether the judgment in question is attended with sufficient doubt to warrant its reconsideration by a Full Court; and, on the assumption that the judgment is wrong, whether substantial injustice would result if leave was refused: see Decor Corporation Pty Ltd & Anor v Dart Industries Inc. (1991) 33 FCR 397; [1991] FCA 844 at 398 (Sheppard, Burchett and Heerey JJ). 30 Common to resolution of both applications is the question of merit of the proposed grounds of appeal. Before turning to consider that question, it is necessary to say something about the delay and the reasons for it.
Delay 31 As set out above, Mr Dimitrovski was not legally represented when he filed his Leave to Appeal Summons. He filed it in the Court of Appeal, within time according to the UCPR, unaware that that Court may not have jurisdiction to hear the matter given the operation of s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act). 32 As a subsidiary matter, Mr Reid contends that the reasons for Mr Dimitrovski making an application for leave to appeal to this Court out of time are entirely of his own making because he withdrew the Summons for Leave to Appeal at a time when only the question of leave to appeal was being considered, as opposed to an appeal as of right. He submitted that was not a "proceeding by way of an appeal" and thus s 7(5) of the Cross-vesting Act was not engaged. That section relevantly provides that: (5) Subject to subsections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory (not being a proceeding to which subsection (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by: (a) the Full Court of the Federal Court or of the Federal Circuit and Family Court of Australia (Division 1), as the case requires; or (b) with special leave of the High Court, the High Court. 33 Mr Reid does not suggest that if leave was granted this Court would not be the appropriate court to hear the appeal, nor does he appear to contend that this Court cannot hear the Leave Application. We note that Mr and Mrs Boland adopt Mr Reid's submissions in this and all other respects. 34 More generally, Mr and Mrs Boland and Mr Reid submitted that it had taken Mr Dimitrovski some six months to file the Leave Application and no acceptable explanation had been provided for the delay. There is some support for that proposition. While Mr Dimitrovski was unaware of the issue posed by the Cross-vesting Act at the time he filed his Leave to Appeal Summons in the Court of Appeal, he first became aware of the potential for an issue in relation to that Court's jurisdiction on 28 February 2022, he discontinued the summons for Leave to Appeal on 28 March 2022, and he did not retain his current lawyers until one month later on 27 April 2022. Mr Dimitrovski does not explain what steps he took in the intervening periods. That is a deficiency in the evidence which tells against the grant of an extension of time. 35 However, given the conclusion which we have reached in relation to the question of merit of the proposed appeal, neither the subsidiary question raised by Mr Reid, which focusses attention on whether an application for leave to appeal is "a proceeding by way of an appeal" for the purposes of s 7(5) of the Cross-vesting Act, and which is said to be a reason why Mr Dimitrovski has not adequately explained his delay, nor the more general question of whether Mr Dimitrovski has otherwise adequately explained the reason for his delay, need to be resolved on this application.
The merits of the proposed grounds of appeal 36 We turn then to the question of the merits of the proposed grounds of appeal which are set out in a draft notice of appeal and are as follows: 1. The primary judge erred in construing and misapplying Bankruptcy Act 1966 [Cth] section 116. 2. The primary judge misconstrued the statement of claim and/or erred in not having any or any sufficient regard to the causes of action pleaded therein. 3. The primary judge erred in his findings in that there was no evidence to support the findings. 4. The primary judge erred in that an inference drawn was not supportable by the facts. 5. The primary judge erred in failing to give adequate reasons for the findings.
Ground 1 37 Ground 1 of the draft notice of appeal raises the question of the primary judge's application of s 116(2)(g) of the Bankruptcy Act 1966 (Cth) and, in particular, whether the primary judge was correct in his conclusion that the claim for damages for alleged personal injury vested in Mr Dimitrovski's trustee in bankruptcy. There appears to be no challenge to the primary judge's conclusion that the balance of the claims made by Mr Dimitrovski in the statement of claim vested in his trustee. 38 Section 116 of the Bankruptcy Act relevantly provides: (1) Subject to this Act: (a) all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and (b) the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge; and (c) property that is vested in the trustee of the bankrupt's estate by or under an order under section 139D or 139DA; and (d) money that is paid to the trustee of the bankrupt's estate under an order under section 139E or 139EA; and … is property divisible amongst the creditors of the bankrupt. (2) Subsection (1) does not extend to the following property: … (g) any right of the bankrupt to recover damages or compensation: (i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; or … and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person; 39 The term "property" is defined in s 5 of the Bankruptcy Act to mean "real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property". 40 Mr Dimitrovski submitted that, in the statement of claim, he made a claim in tort for damages under Wilkinson v Dowton [1897] 2 QB 57 that, by an intentional act, the respondents caused physical and psychiatric damage to him or that liability arises at common law "if a person deliberately does an act calculated to cause physical injury for which there is no lawful justification" (noting that this quote, cited by the applicant, does not appear to have been taken directly from Wilkinson). 41 Mr Dimitrovski contended that the primary judge erred in his analysis of his personal injuries case because his Honour appeared to have disregarded the critical difference between negligence and intentional conduct, which is particularly relevant to s 116(2)(g)(i) of the Bankruptcy Act. Mr Dimitrovski submitted that the primary judge's analysis that the personal injury was "inextricably interwoven" with the financial matters complained of by him pays no, or insufficient, regard to the deliberate nature of the respondents' conduct. He said that to physically hurt someone is very different from conning them, even if they happen at the same time, and that it is the Court's duty to extricate the two, not treat them as identical so as to give up on a good claim. Mr Dimitrovski contended that, apart from anything else, financial "injury" is assessed in an entirely different way from liability for tortious injury founded upon an intentional tort. 42 Mr Dimitrovski also submitted that the primary judge erred in not identifying Ms Vasil's beneficial interest which he submitted is significant. Mr Dimitrovski contended that such a claim does not fall within the operation of the Bankruptcy Act as is evident from s 116(2)(a). He submitted that the shares in Life Order are "property held by the bankrupt in trust" for Ms Vasil and hence fell outside Ms Vasil's bankruptcy in 2015 and were not caught by his own bankruptcy. Mr Dimitrovski submitted that no challenge to this allegation in fact, as was pleaded in the statement of claim, was made by the respondents. 43 The question before this Court is whether there is any merit to Mr Dimitrovski's challenge to the primary judge's finding that the claims made by Mr Dimitrovski for damages for personal injury were "interwoven" with the balance of his claims, such that they could not be excluded from the operation of s 116(1) of the Bankruptcy Act by reason of s 116(2)(g) of that Act. 44 In considering that question, it is convenient first to have regard to the claims made in the statement of claim filed in the Supreme Court Proceeding. They concern Mr Dimitrovski and Ms Vasil's shareholdings in Life Order. In summary, Mr Dimitrovski and Ms Vasil contended that: (1) Mr Dimitrovski invested $500,000 in Life Order in reliance upon the following representations made by Mr Boland between 2004 and 2009: (a) that Mr Boland was an investor in Life Order (investment representation); (b) that Mr Boland was a successful inventor who had invented an office product which had achieved more than $5 million in sales in the United States of America (US), Europe and Australia and that he would do the same again with a new Life Order product called "Stackabox" (new product representation); (c) that Life Order owned four products "off tool" and six additional products at various stages of development, that it owned patents for those products and that they had "excellent market potential" (product ownership representation). This representation was said to have been made by Mr Boland orally prior to 4 August 2004 and in writing in a heads of agreement dated 4 August 2004, (together the Representations); (2) in reliance on the Representations, Mr Dimitrovski invested $500,000 in Life Order; (3) each of the Representations is alleged to be false because: in the case of the investment representation, Mr Boland had not invested in Life Order but had issued shares to himself for no consideration; in the case of the new product representation, Mr Boland had not invented an office product which had achieved more than $5 million in sales in the US, Europe and Australia and he had no reasonable basis for his assurance that he would do the same again with the "Stackabox"; and, in the case of the product ownership representation, Life Order did not own four products "off tool" and six additional products at various stages of development, did not own patents for those products and those products did not have "excellent market potential"; (4) in making each of the Representations, Mr Boland engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and, by reason of that conduct, Mr Dimitrovski has suffered loss and damage as particularised at [7] of the statement of claim which includes (as particular (e)) "Personal injury to the plaintiffs caused by the distress, personal shock and trauma arising from the events comprising [the] causes of action herein" (alleged personal injury damage); (5) in the alternative, each of the Representations contravened: (a) section 1041H of the Corporations Act and/or s 12DA of the ASIC Act because Mr Boland engaged in conduct in relation to a financial service that is misleading or deceptive or likely to mislead or deceive; or (b) section 1041E of the Corporations Act in that Mr Boland made a statement which was false in a material particular or which was materially misleading and likely to induce persons in the jurisdiction to apply for financial products, being the issue of shares in Life Order, when Mr Boland did not care whether the statement was true or false or he knew or ought to have known that it was false in a material particular or was materially misleading; or (c) section 1041G of the Corporations Act in that Mr Boland, in the course of carrying on a financial services business, engaged in dishonest conduct in relation to a financial product or financial service; (6) as a result of the above contraventions, Mr Dimitrovski has suffered loss or damage as particularised at [7] of the statement of claim including the alleged personal injury damage; (7) in relation to the Representations, Mrs Boland was a person involved in the alleged breaches set out at (5) above because she encouraged Mr Boland to make the representations and entertained Mr Dimitrovski at their home and invited him to church services; (8) further or in the alternative, Mr and Mrs Boland engaged in conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and/or, in the alternative, that was unconscionable in contravention of s 21 of the ACL in that: (a) Mr Dimitrovski invested in Life Order on the basis of a representation by each of them, which was an ongoing representation, that they supported Life Order, would continue to do so and would invest in Life Order themselves when their intent was, after obtaining the benefit of Mr Dimitrovski's investment, to strip Life Order of its assets, including the patents, sell Life Order's assets to themselves, and to wind up Life Order, which occurred in 2016; and (b) Mrs Boland, with the knowledge of Mr Boland, did not advise Mr Dimitrovski of the assignment of Life Order's assets to her for consideration of $1.00, which was to the benefit of Mr and Mrs Boland and to the detriment of Mr Dimitrovski and Life Order, or of her shareholding in Avid Business; (9) by reason of the conduct referred to in the preceding paragraph, Mr Dimitrovski (and Ms Vasil) have suffered loss and damage as particularised at [7] of the statement of claim including the alleged personal injury damage; (10) at a general meeting of Life Order held on 11 June 2009, chaired by Mr Reid, Mr Boland engaged in conduct in trade or commerce that was unconscionable in contravention of s 21 of the ACL by stating at the meeting that Life Order was insolvent and by using his control of Life Order to pass resolutions, the effect of which was to strip Life Order of its assets, transfer its patents to Mrs Boland and Avid Business for $1.00 and to destroy Mr Dimitrovski's investment in Life Order (11 June Conduct); (11) by reason of the 11 June Conduct, Mr Dimitrovski (and Ms Vasil) have suffered loss and damage as particularised at [7] of the statement of claim including the alleged personal injury damage; (12) further or in the alternative, by reason of the 11 June Conduct, Messrs Boland and Reid engaged in conduct that was not in the interests of the members as a whole or was oppressive, unfairly prejudicial to or unfairly discriminatory against a member or members of Life Order contrary to s 232 of the Corporations Act. Mr Dimitrovski (and Ms Vasil) seek an order restraining Mr and Mrs Boland and Avid Business from selling the patents, an order requiring them to transfer the shares in Avid Business or its intellectual property to Mr Dimitrovski, and compensation; (13) Mr Reid: (a) engaged in conduct in trade or commerce that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and/or, in the alternative, that was unconscionable in contravention of s 21 of the ACL in that, while chairing the 11 June 2009 general meeting, he remained silent while Mr Boland engaged in the 11 June Conduct when he was aware that the representations made by Mr Boland were incorrect; (b) at all material times was Mr and Mrs Boland's accountant and, in chairing the 11 June 2009 general meeting, was in a position of conflict of interest; and (c) while chairing the meeting, repeated the representations which constitute the 11 June Conduct; (14) by reason of Mr Reid's conduct, Mr Dimitrovski (and Ms Vasil) have suffered loss and damage; (15) further and in the alternative, Mr and/or Mrs Boland arranged for the transfer of Life Order's assets to Avid Business without the lawful authority of Life Order such that Avid Business holds the property on constructive trust for Life Order; (16) further or in the alternative, two or more of the defendants agreed on or about 11 June 2009 to effect an unlawful purpose, namely to defraud Mr Dimitrovski by depriving him of his interest in Life Order and by stripping it of its assets or shutting it down and, in carrying out that agreement, damage was caused to Mr Dimitrovski, being the loss of his investment and the other loss and damage particularised at [7] of the statement of claim including the alleged personal injury damage; (17) further or in the alternative, by Mr Boland making the representations that constitute the 11 June Conduct in the presence of Mr Reid, Messrs Boland and Reid caused physical and psychiatric damage to Mr Dimitrovski (and Ms Vasil) which has caused them to suffer loss and damage, the particulars of which are (as written): The plaintiffs suffered caused physical and psychiatric damage The plaintiffs also suffered extreme trauma, disappointment and distress. The 1ˢᵗ plaintiff lost control of his life and the Plaintiffs have continued to suffer physical and mental injury since that time. (18) in aid of the orders made or to be made, the registration of Life Order should be reinstated. 45 As can be seen, the claims made by Mr Dimitrovski concern alleged breaches of the ACL, the Corporations Act and the ASIC Act which are said to sound in damages including the alleged personal injury damage and a claim for physical and psychiatric damage arising from the 11 June Conduct. The claims principally arise out of representations alleged to have been made at the time Mr Dimitrovski invested in Life Order and at the 11 June 2009 general meeting of the company. 46 We turn then to the authorities. 47 In Faulkner v Bluett (1981) 52 FLR 115; [1981] FCA 3, Lockhart J considered whether an action commenced by Ms Faulkner before her bankruptcy was, among other things, a right by her "to recover damages or compensation-for personal injury or wrong done" within the meaning of s 116(2)(g) of the Bankruptcy Act. Relevantly, at 118-119 Lockhart J said: Although rights of action generally pass to the trustee of a bankrupt's estate, exceptions have been created by decisions of the courts, including the following: a right of action for slander, Ex parte Vine; Re Wilson [(1878) 8 Ch D 364]; for seduction of a servant, Howard v. Crowther [(1841) 151 ER 1179]; for trespass to land or goods in the plaintiff's actual possession, at least where the only substantial damage is for the annoyance and personal inconvenience to him, Clark v. Calvet [(1819) 129 ER 573] and Rose v. Buckett [[1901] 2 K.B. 449]; for breach after bankruptcy of a contract for personal service made before bankruptcy, Bailey v. Thurston & Co. [[1903] 1 K.B. 137]; for personal injuries arising out of certain breaches of contract such as a contract of marriage, Drake v. Beckham [(1843) 152 ER 823]. The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt: Wetherell v. Julius [(1850) 138 ER 108]; Wage on Bankruptcy (1904 ed.) p. 201. Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt. 48 In Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404, the New South Wales Court of Appeal considered whether a negligence claim brought by a bankrupt against a solicitor came within s 60(4)(a) of the Bankruptcy Act. That section relevantly provides that a bankrupt may continue an action commenced in his or her name before becoming a bankrupt for personal injury or wrong done to the bankrupt. The appellant alleged that the solicitor had failed to commence an action for defamation on his behalf. Allsop P (as his Honour then was and with whom Campbell and Young JJA agreed) characterised the claim as loss of the right to sue in defamation or a loss of a chose in action (at [20]-[21]). At [28], his Honour referred to s 116 of the Bankruptcy Act stating that: Section 116 deals with property divisible among the creditors of the bankrupt being (in s 116(1)(a)) all property that is vested in the bankrupt at the commencement of the bankruptcy, or is acquired or becomes vested, during the course of the bankruptcy (after acquired property). Section 116(1)(b) includes in property divisible amongst creditors "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge". Thus, the wide definition of property in s 5(1) is incorporated in s 116(1)(a): see Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 at 232 [62] per Allsop J (Ryan J and Heerey J agreeing). There can be no doubt, therefore, that choses in action are prima facie included as property in the bankrupt's estate, subject to the exemptions in s 116(2)(g). In Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [37] Greenwood J said: "The notion of property of the bankrupt within s 5(1) of the Bankruptcy Act seems to have the same meaning for the purposes of both s 58(1) and 116(1) of the Bankruptcy Act ", citing Cummings v Claremont Petroleum NL [1996] HCA 19; 185 CLR 124 and Cirillo v Citicorp Australia Ltd [2004] SASC 293 at [75]-[79] per Perry J, Bleby J and Gray J. With respect, I agree. 49 That is, a chose in action is property in the bankrupt's estate that is divisible among the bankrupt's estate, subject to the exceptions in s 116(2) of the Bankruptcy Act. 50 In Moss, after referring to the legislative history of ss 60(4) and 116(2)(g) of the Bankruptcy Act, Allsop P considered the modern case law. At [68], his Honour noted that the authorities recognise the distinction between person and property, that a difficulty arises where property and personal damage arise from the same cause of action, and that the dividing line in the cases "has been drawn by reference to whether the personal action is severable from, or directly related to, or consequential upon, the property claim". While that difficulty did not arise on the facts before the Court of Appeal, Allsop P went on to examine the Australian cases. At [73], his Honour referred to the decision in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545; [1997] FCA 582, observing that: In Bryant, Lockhart J held (at 554) that general damages for loss of business reputation, loss of standing in the community, loss of amenities of family life, stress and suffering and exemplary damages were "consequential upon the loss or damage ... which is referable to the proprietary claims" and thus passed to the trustee. O'Loughlin J and Merkel J likewise (at 564) said that injuries arising as a direct result of infringements of financial or property rights passed to the trustee. Their Honours agreed with Handley JA in Mannigel and applied Lockhart J in Faulkner v Bluett insofar as his Honour had concluded that a personal claim that is directly related to the property claim passed to the trustee: Faulkner v Bluett at 119 and 122. 51 After surveying the authorities, Allsop P relevantly concluded at [77] that: No one submitted that any of these Australian cases, Faulkner v Bluett, Mannigel, Bryant or Daemar should not be followed. What they permit is a conclusion, that to the extent that damages for personal injury or wrong are inseverable from or directly consequential upon interference with property rights, a claim for them does not survive the stay brought about by s 60(2). 52 Putting to one side the claims for personal injury damages, as observed at [37] above, we did not understand there to be any dispute that the claims for breach of the ACL, the ASIC Act and the Corporations Act, which accrued prior to the date on which Mr Dimitrovski became a bankrupt, are property divisible among Mr Dimitrovski's creditors and could only be brought by his trustee in bankruptcy. The only question is whether the primary judge correctly concluded that the claims, insofar as they seek the alleged personal injury damages and for physical and psychiatric damage, were not severable from or directly related to, or consequential upon the property claims. 53 Having regard to the authorities, there is no merit in Mr Dimitrovski's contention that the primary judge erred in his application of s 116(2)(g) of the Bankruptcy Act. It is clear from his Honour's reasons that he directed himself to the correct question and found that the primary causes of action concerned the pecuniary loss to Mr Dimitrovski's property. The claims for damages for personal injury were inextricably linked to and/or consequential upon those claims. So much is readily apparent from the summary of the statement of claim set out above. 54 Further, whether or not the act which caused the alleged injury was intentional is not to the point and does not inform the application of s 116(2)(g) of the Bankruptcy Act. The use of the word "personal" in that section covers both "injury" and "wrong": see Metsikas v Quirk [2010] NSWSC 756 at [10]. 55 Counsel for Mr Dimitrovski relied on the decision in Hurdis v Jones (Trustee), in the matter of Hurdis [2022] FCA 980 and submitted that the case before this Court was on all fours with that decision, in which the Court had allowed amendment of a statement of claim, finding that s 116(2)(g) applied to the causes of action sought to be introduced by the amendments. But the underlying facts and the nature of the claim sought to be advanced in that case were quite different from the claim sought to be advanced by Mr Dimitrovski and can be readily distinguished. In Hurdis, the applicant, Mr Hurdis, who was a discharged bankrupt, sought leave to file an amended statement of claim. The respondent to the proceeding was the trustee of Mr Hurdis' bankrupt estate. Mr Hurdis sought to advance claims for misleading and deceptive conduct and unconscionable conduct under the ACL, unconscionability under the general law, deceit and alleged breaches of trust in connection with the administration by the trustee of his bankrupt estate and sought damages, declarations, an indemnity, aggravated damages and exemplary damages. 56 Justice Halley described Mr Hurdis' principal concern (at [4]) to be a representation made by the trustee to Mr Hurdis, prior to his appointment as trustee, that he would not seek to make any claim against the matrimonial property that was held in Mr Hurdis' wife's name, but that the trustee had subsequently brought proceedings against the applicant's wife, Dr Frances Chua, seeking a declaration that Dr Chua held 50% of her interest in the matrimonial home on trust for Mr Hurdis (referred to as the Trustee Proceedings). 57 Justice Halley found at [7] that, with the exception of four paragraphs, the paragraphs in the amended pleading objected to by the trustee did not disclose a reasonable cause of action or that they were otherwise likely to cause prejudice, embarrassment or delay in the proceeding. The four paragraphs which were permitted by way of amendment were [9], [12], [15A] and [16A]. 58 At [9] and [12] of his proposed amended statement of claim, Mr Hurdis sought to advance claims for misleading and deceptive conduct and unconscionable conduct under the ACL respectively. At [15A] and [16A], Mr Hurdis respectively sought orders that the trustee cease to be a trustee of Mr Hurdis' bankrupt estate and an indemnity for Dr Chua in respect of any claims, losses or costs that might have accrued to her by reason of the Trustee Proceedings, and claimed damages and/or compensation under ss 236 and 237 of the ACL. 59 Among other things, the trustee argued that the claims for general damages were not severable from or were directly consequential upon Mr Hurdis' property rights as a consequence of his bankruptcy and that therefore the claims were divisible property among Mr Hurdis' creditors and fell outside the exclusion in s 116(2)(g) of the Bankruptcy Act. In relation to that submission, at [48]-[50] Halley J relevantly said: 48 I consider that the ACL claims sought to be advanced in the Proposed ASOC might fairly be characterised as novel and claims that sit on the borderline between property that has or has not vested in the Trustee. ... 49 The ACL claims advanced in the Proposed ASOC are directed at the manner in which the Trustee has administered the estate of the applicant, not with property of the applicant that has vested in the Trustee. I am satisfied that the ACL claims are arguably causes of action for personal injury done to the applicant or his feelings falling within s 116(2)(g): Faulkner v Bluett (1981) 52 FLR 115 at 119 (Lockhart J). The loss or damage alleged extends beyond damage to the applicant's reputation flowing from the applicant's bankruptcy unlike Morris at [73] (Wigney J). 50 Further, there does appear to be at least, prima facie, a circularity in the proposition that claims that a bankrupt may have against a Trustee in respect of the conduct of the administration of his estate vest in the Trustee because they are inseverable or consequential upon interference with his property rights, given the vesting of all his property in the Trustee. 60 Mr Dimitrovski does not seek to bring an action for misleading or deceptive conduct or unconscionable conduct against his trustee in bankruptcy but seeks to agitate a claim against his former business partners and their accountant. The case as pleaded by Mr Dimitrovski does not have the circularity identified by Halley J in Hurdis where the trustee sought to use s 116(2)(g) of the Bankruptcy Act to preclude a claim about his conduct of the bankrupt estate. Rather, the claims made, and which were the subject of the primary judge's findings, concerned the circumstances in which Mr Dimitrovski invested in Life Order and subsequent conduct in relation to that investment. 61 Mr Dimitrovski's submission concerning shares held on trust for Ms Vasil, which was further developed at the hearing, does not take ground 1 any further. In oral argument, counsel for Mr Dimitrovski took the Court to various documents which are the subject of the Dimitrovski Further Evidence Application in support of the contention that Mr Dimitrovski held the shares in Life Order on trust for Ms Vasil. There is clearly a dispute about whether that is so. But that is a dispute properly to be ventilated in the Supreme Court Proceeding in which Ms Vasil was given leave to re-plead, has done so and which remains on foot. 62 The primary judge was solely concerned with claims made by and causes of action which accrued to Mr Dimitrovski in his personal capacity and the effect of s 116 of the Bankruptcy Act on those claims. Any claims made by Ms Vasil in her own right or pursuant to a trust arrangement were left for her to pursue. 63 Mr Dimitrovski also made submissions about the limitation defences pleaded by the respondents. However, as is apparent from the primary judge's reasons, his Honour did not grant the relief sought based on that aspect of the argument before him. His Honour reached his conclusion based solely on his analysis that the claims brought by Mr Dimitrovski were property divisible among Mr Dimitrovski's creditors and the claims for personal injury were consequential on or linked to those claims. 64 There is no merit to ground 1 of the draft notice of appeal.
Grounds 2 to 4 65 Grounds 2 to 4 of the draft notice of appeal are set out at [36] above. By them, Mr Dimitrovski contends that the primary judge had insufficient regard to the causes of action pleaded and erred in making findings where there "was no evidence to support the findings". These grounds of appeal are difficult to understand. To the extent these grounds raise the question of the application of s 116(2)(g) of the Bankruptcy Act to the claims made, our views set out above apply equally. 66 At the hearing, Mr Dimitrovski took the Court to the decision of the New South Wales Court of Appeal in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3] where Macfarlan JA set out the principles to be applied on an application for summary judgment by reference to the decision in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28. It is not necessary to set out those principles here. Mr Dimitrovski submitted that the primary judge failed to consider the applicable test when considering the applications before him and that there are a number of triable issues of fact in the case which ought to have been dealt with on the application for summary dismissal but were not. 67 These proposed grounds and Mr Dimitrovski's submissions miss the point. Order 4 of the Supreme Court Orders was predicated on the primary judge's analysis of Mr Dimitrovski's claims and the effect of s 116 of the Bankruptcy Act on those claims. His Honour did not make any findings as to the adequacy of evidence or draw any inferences based on facts in reaching his conclusion. Nor did his Honour make any findings as to the prospects of success of the claims. In circumstances where, in effect, his Honour found that the causes of action vested in Mr Dimitrovski's trustee in bankruptcy, it was not necessary for his Honour to do so. The short point is that the claims, insofar as they were brought by Mr Dimitrovski, were summarily dismissed because Mr Dimitrovski had no standing to bring them. 68 Grounds 2 to 4 have no merit.
Ground 5 69 By proposed ground 5, Mr Dimitrovski contends that the primary judge gave inadequate reasons. Once again, this ground has no merit. 70 The primary judge gave an ex tempore judgment (see [14] above) in which he addressed the basis upon which he had come to the view that s 116(2)(g) of the Bankruptcy Act did not apply to the claims made by Mr Dimitrovski for personal injury. As we have already noted, it was because of the primary judge's application of s 116 of the Bankruptcy Act to those claims that the respondents below were successful. His Honour also addressed the submissions that the claims were subject to limitation periods. In the circumstances, the reasons were clearly adequate. 71 Even if we considered the primary judge's reasons to be inadequate, that would not take Mr Dimitrovski very far. Inadequacy of reasons would not mean that the primary judge's decision was wrong. Such inadequacy would require his Honour's judgment to be set aside only if it was such as to prevent this Court on appeal from determining whether the judgment was correct: for example, if necessary findings of fact were set out. It is difficult to imagine that being the case in an appeal from a summary dismissal application that turned on analysis of the matters pleaded. 72 In any event, even if Mr Dimitrovski could succeed in having the judgment set aside on this ground, the result would be that the matter would be remitted to require the primary judge to provide adequate reasons. Contrary to Mr Dimitrovski's submission, success on this ground would not lead to an order for a rehearing of the applications for summary dismissal.
Conclusion 73 It follows that the Leave Application should be dismissed. The Dimitrovski Further Evidence Application and the Boland Further Evidence Application should also be dismissed. 74 While Mr and Mrs Boland were not legally represented, they may have incurred costs in connection with the proceeding and Mr Reid was legally represented in the proceeding until 27 April 2023, the date of his notice of termination of his lawyer. Accordingly, as he has been unsuccessful, Mr Dimitrovski should pay Mr and Mrs Boland's and Mr Reid's costs of the Leave Application. 75 Otherwise, the parties should each bear their own costs of the Further Evidence Applications that will be dismissed. 76 We will make orders accordingly. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Downes and Kennett.
SCHEDULE OF PARTIES NSD 319 of 2022 Respondents Fourth Respondent: AVID BUSINESS PTY LTD ACN 083 025 003
Dimitrovski
Boland
[1991] FCA 844
[2009] NSWCA 272
[2003] HCA 70
[2004] SASC 293
(1997) 75 FCR 545
(1991) 33 FCR 397
(1981) 52 FLR 115
(2008) 167 FCR 372
(2009) 178 FCR 401
(2011) 83 NSWLR 476
(2010) 241 CLR 118
(1992) 30 NSWLR 1
(1973) 48 ALJR 11
(1998) 155 ALR 94