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[2026] VSC 82
General information, not legal advice.
Supreme Court of Victoria
2026-03-03
Craig J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Abuse of Process - Whether the doctrine of abuse of process can preclude a person, who is neither a party or a privy of a party from earlier proceedings, from raising related claims in subsequent proceedings - Whether a new claim in the successive proceeding by the alter ego of a corporate entity must be permanently stayed - claim materially inconsistent with claim advanced by corporate alter ego in earlier proceeding - Stay granted - Civil Procedure Act 2010 (Vic) ss 7, 8 - UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77 applied - Madden (Receiver) v Mining Standards International Pty Ltd [2025] FCAFC 142 applied.
For the Second to Eighth Defendants and the Tenth to Thirty-sixth Defendants
1 Courts must be astute to protect litigants and the system of justice against abuse of their processes.[1] The use of the court's processes to occasion unjustifiable oppression to a party or bring the administration of justice into disrepute enlivens the power to permanently stay a proceeding as an abuse.[2] Whilst the onus is a 'heavy one'[3] to be exercised in 'exceptional circumstances',[4] that power must be interpreted and applied in light of the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[5]
2 There are 'varied circumstances' in which the use of the court's processes will amount to an abuse.[6] Those varied circumstances defy exhaustive statement.[7] In appropriate circumstances, the doctrine of abuse of process can preclude a person, who is neither a party or a privy of a party from earlier proceedings, from raising related claims in successive proceedings.[8]
3 In the present case, an Amended Consolidated Statement of Claim of 418 paragraphs was filed on 3 November 2025 (the ACSOC). In one part of the pleading, spanning paragraphs 195A to 195V, a new claim has been advanced on behalf of Hany Abdou (Hany), the first plaintiff (the New Claim). Hany is the sole director and shareholder of the second plaintiff, Rhagodia (Rhagodia).
4 Undertaking a 'broad, merits-based judgment',[9] the prosecution of a claim by Hany, the alter ego of Rhagodia, on a materially inconsistent basis to a claim already advanced and resolved by Rhagodia in an earlier proceeding, constitutes an abuse of the processes of the Court. To permit the New Claim to continue would bring the administration of justice into disrepute and offend against considerations of finality,[10] fairness[11] and the maintenance of public confidence in the administration of justice.[12] Accordingly, for the reasons which follow, the New Claim must be permanently stayed.
5 The introduction of the New Claims spawned two related applications.
6 First, by summons dated 21 November 2025, the plaintiffs seek:
(a) an order under rule 5.12(2) of the Supreme Court General Civil Procedure Rules 2025 (Vic) (the Rules) extending the validity of the writ filed 18 September 2024;
(b) an order granting leave to serve the writ and ACSOC on the sixth defendant (BPB).
7 Second, by summons dated 12 December 2025, the 2nd to 8th, and 10th to 36th defendants (together the Reeves and Abdou Parties), seek, inter alia, an order pursuant to rule 23.01 of the Rules permanently staying the New Claims as an abuse of process.
8 The parties relied on the same corpus of affidavit material on both applications.
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
...a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.
12 After referring to the above passage from Lord Bingham's judgment, Stewart J observed as follows in South Townsville Developments Pty Ltd (in liq) v Lauvan Pty Ltd:[24]
It is important to draw from this passage that there is no checklist of requirements, or a mechanical test, that can be applied. It is "a broad, merits-based judgment" that is required, which takes into account "the public and private interests involved". Attention must be focused on whether, "in all the circumstances", there is an abuse of process of the court by a party "seeking to raise before it the issue which could have been raised before".
13 In UBS, Gordon J summarised principles, applicable in the present context, as follows:[25]
The onus of satisfying the court that a proceeding is an abuse of process is "a heavy one". Although the power to grant a permanent stay is one to be exercised "only in the most exceptional circumstances", the exercise of the power can be justified by considerations which may include finality, fairness, and the maintenance of public confidence in the administration of justice.
This appeal is concerned with an alleged attempt to raise or re-litigate issues that were said to have been the subject of earlier proceedings. Where a party attempts to raise issues in successive proceedings, that conduct may be assessed as an abuse of process if it is contrary to the principle of finality: that is, that "controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances". This fundamental principle protects "parties to litigation from attempts to re-agitate what has been decided".
Where there are attempts to raise substantially similar claims in successive proceedings, the doctrine of abuse of process overlaps with the doctrine of estoppel. The raising of issues in successive proceedings can be simultaneously the subject of an estoppel which has arisen as a consequence of the earlier, final judgment, and conduct which constitutes an abuse of process. However, such issues may also be considered an abuse of process in circumstances where they do not give rise to an estoppel because the doctrine of abuse of process is "inherently broader and more flexible than estoppel". By way of example, estoppel would not preclude a person who was neither a party nor the privy of a party to earlier proceedings from raising similar or related claims in successive proceedings, whereas abuse of process might in appropriate circumstances.
Not only is there the overlap with estoppel, but the principles relevant to the exercise of power to stay a proceeding as an abuse of process need to be interpreted and applied in light of the overarching purpose set out in s 37M of the Federal Court of Australia Act 1976 (Cth)...Section 37M provides that the overarching purpose of "the civil practice and procedure provisions" is to "facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible".
14 More recently, and by reference to the High Court decision in UBS, the Full Federal Court summarised the applicable principles in Madden (Receiver) v Mining Standards International Pty Ltd.[26] I gratefully adopt and repeat their Honours' summary as follows:
(a) Either of two conditions enlivens the court's power to permanently stay proceedings as an abuse of process, namely 'where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute'.[27]
(b) Whether conduct rises to the level of an abuse of process is a determination that requires consideration of all the circumstances. It involves a merits-based judgement, taking account of public and private interests, and it is not possible to formulate hard and fast rules to determine whether on particular facts abuse is to be found;[28]
(c) This determination of the circumstances includes taking account of the procedural law of the relevant Court, including the conduct of a proceeding in accordance with the overarching purpose;[29]
(d) The timely, cost-effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute;[30]
(e) Although a party has a right to bring proceedings, in doing so choices are made as to what claims are made and how they are framed;[31]
(f) In some circumstances the bringing of a claim which should have been litigated in an earlier proceeding will be an abuse of process, even if no estoppel would be made out;[32]
(g) Vexation or oppression may be seen by requiring a party to deal again with claims that should have been resolved in other proceedings. Oppression is found not only in delay and increased costs. 'At its core is the vexation of being required to deal again with claims that should have been resolved in the earlier proceedings';[33]
(h) Whether claims 'should' have been brought is not to be determined solely by reference to the interests of the parties to the action - there is a public interest in the timely and efficient administration of civil justice;[34]
(i) The staged conduct of litigation must be viewed carefully. As the plurality in UBS said:[35]
For [a Court] to lend its procedures to the staged conduct of what was factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, was likely to give rise to the perception that the administration of justice was inefficient, careless of costs and profligate in its application of public monies.
(j) An abuse of process may be seen even where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to the earlier proceeding, nor the privy of such a party.[36]
15 Certain of these matters are worthy of elaboration in the particular circumstances of this case.
16 First, abuse of process is more broad and flexible than estoppel. It can arise in circumstances where an estoppel does not. It can preclude a party from litigating in a second claim where that party was neither a party, nor a privy, in the earlier claim. That is made clear in the following passages of the judgment of French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing Pty Ltd:[37]
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
[T]here is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
18 Second, evaluation of whether an abuse of process has arisen also occurs in the modern case management and statutory context. In the present context, ss 7 and 8 of the Civil Procedure Act 2010 (Vic) (Civil Procedure Act) provide:
(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
...
8 Court to give effect to overarching purpose
(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers -
(a) in the case of the Supreme Court, are part of the Court's inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or
(b) in the case of a court other than the Supreme Court are part of the court's implied jurisdiction or statutory jurisdiction; or
(c) arise from or are derived from the common law or any procedural rules or practices of the court.
19 One impact of the modern statutory objectives on the evaluation of whether an abuse has arisen was expanded on by Kiefel CJ, Bell and Keane JJ in UBS:[40]
The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation. To insist, for example, on "inexcusable delay" as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice.
20 Third, as is implicit from the reference to the overarching purpose, the court looks beyond the interests of the litigant now advancing the claim.[41] The impact on the other litigants in the Court and the consumption of judicial resources is a relevant consideration.
21 Fourth, in circumstances involving multiple proceedings, it is relevant to evaluate whether or not the possibility or likelihood of the second or subsequent proceeding was disclosed during the earlier proceeding. In Johnson the fact that Mr Johnson was intending to bring a personal claim was disclosed[42] and as Lord Millett explained, the existence of disclosure was important to the evaluation of whether an abuse of process had arisen:[43]
Given that Mr Johnson was entitled to defer the bringing of his own proceedings until after the company's claims had been resolved, it would have been unconscionable for him to have stood by without disclosing his intentions and knowingly allowed the firm to settle the company's action in the belief that it was dealing finally with all liability arising from its alleged negligence in the exercise of the option. To bring his own claim in such circumstances would, in my opinion, amount to an abuse of the process of the court. But nothing like this took place.
22 The importance of prior disclosure was also recognised by Gageler J in UBS:[44]
I cannot agree with the view of the majority of the Full Court that it was not open on the facts found by the primary judge to characterise the circumstances as involving an abuse of process. Although the possibility of the trustee of the Trust pursuing the claims of the Trust in later proceedings remained legally open once the trustee had withdrawn from the SCNSW proceedings, there was no intimation to UBS that the trustee was likely to do so. In contrast to the circumstances in Johnson, this is not a case in which earlier proceedings were brought to completion against the background of a communicated likelihood of later proceedings being commenced.
23 To paraphrase the New South Wales Court of Appeal,[45] the statutory duty to further the overarching purpose establishes and enshrines a need for clarity, precision and openness in the conduct of litigation and places a responsibility on the parties and their legal representatives to put their 'cards on the table'. As Sir Anthony Clarke MR stated in Stuart v Goldberg Linde (a firm):[46]
For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the Civil Procedure Rules, namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated.
24 Fifth, whether a lack of funds justifies the failure to raise an earlier claim is relevant and is to be taken into account as part of the overall evaluation of whether an abuse has occurred. Thus, in Johnson Lord Bingham stated:[47]
As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.
25 Finally, and importantly for present purposes, the maintenance of a second claim, premised on a factual premise inconsistent with an earlier claim, can amount to an abuse of process.[48] Thus, in Smith v Commissioner of the Rural and Industries Bank of Western Australia,[49] the subsequent proceeding concerned claims against a bank by the plaintiffs, when in earlier proceedings the plaintiffs had alleged they had lost the opportunity to make those claims. Martin CJ described this as a 'fundamental inconsistency' which meant that any further step in the subsequent proceeding constituted an abuse of process.[50] Similarly, in Kekatos Lawyers Pty Ltd v Dana Rahme,[51] Walton J held that a contention disputing that a written costs agreement governed a retainer in a subsequent proceeding was an abuse of process when the validity and enforceability of that retainer had been accepted in earlier proceedings.[52]
26 This proceeding was commended by a generally indorsed writ on 18 September 2024. On 3 November 2025, the plaintiffs filed the ACSOC.
27 As noted in the overview, Hany is the first plaintiff in this proceeding. Hany is, and at all relevant times has been, the sole director and shareholder of the second plaintiff, Rhagodia. Rhagodia is the trustee of the H & S Abdou Family Trust.
28 The presently relevant defendants in the current proceeding are:
(a) BPB which is, and has at all relevant times, been the trustee of the Sharelink Properties Unit Trust (SPUT), which is a unit trust;
(b) Business Service Brokers Pty Ltd (BSB), the trustee of the Sharelink Services Unit Trust (SSUT);
(c) Ehab Abdou (Ehab) who is a director of BPB;
(d) Paul Reeves (Reeves), who together with Hany, is a director of BPB.
29 Rhagodia is, and has at all material times, been a shareholder of BPB and unitholder of the SPUT. As I will come to explain, the number of shares and units held by Rhagodia has been the subject of dispute.
30 A contest over the ownership of the 'Tele Choice Business' lies at the heart of this proceeding. The plaintiffs define the Tele Choice Business as comprising:
The Tele Choice business comprised the retail sale to members of the public, and the wholesale sale to franchisees, of mobile phones and mobile phone contracts with One Tel and other telecommunications suppliers under the slogan "Tele Choice gives you the choice" and operated initially from premises at 388 Spencer Street, Melbourne (the Tele Choice Business).
31 The plaintiffs contend that Hany, alternatively Rhagodia, is the 'true owner' of 75% of the Tele Choice Business and seek declarations to give effect to that conclusion. The Reeves and Abdou Parties deny the allegations and contend that the Tele Choice Business was established by Ehab and Reeves, was owned by the SSUT and operated by BSB as the trustee for the SSUT.
32 The amendments the subject of the ACSOC introduced the New Claim. The New Claim, in summary, contains the following core allegations:
(a) in early 2010, BPB purchased and became registered as proprietor of land at 57 Station Street, Nerang, Queensland (Nerang Land) for the sum of $40,744,970 including fees and the costs of purchase;
(b) following the purchase of the Nerang Land, BPB purchased the adjacent land at 44 Gilston Road, Nerang, Queensland (Adjacent Property) for the sum of $12,298,930 including fees and the costs of purchase;
(c) part of the purchase money for the Nerang Land ($8,694,970 out of $40,744,970) and all of the purchase money for the Adjacent Property ($12,298,930) was advanced by BSB to BPB and constituted funds of, or from, the Tele Choice Business;
(d) by reason of Hany's alleged ownership of 75% of 'the Tele Choice Business' and beneficial ownership of 75% of BSB, Hany was the beneficial owner of 75% of the funds advanced by BSB to BPB;
(e) in these premises, BPB holds the Nerang Land and the Adjacent Property on resulting or constructive trust for Hany as to the proportion of his contribution to the purchase of those properties, being 16% of the Nerang Land and 75% of the Adjacent Property; and
(f) Hany is also entitled to a taking of accounts as between himself and BPB as to 16% of the net profits of the Nerang Land and 75% of the net profits of the Adjacent Property.
33 On 30 March 2021, Rhagodia commenced a proceeding in this Court against BPB (as trustee of the SPUT), the other unitholders of the SPUT, Ehab Aust Pty Ltd (Ehab Aust) and Keppston Manor Pty Ltd (Keppston Manor), and another company associated with Ehab, Ehab Pty Ltd.
34 I shall refer to this proceeding as the Earlier Proceeding.
35 In the Earlier Proceeding, Rhagodia sought (among other things) relief from alleged oppression under ss 232 and 233 of the Corporations Act 2001 (Cth) (Corporations Act), s 48 of the Trustee Act 1958 (Vic) and in the Court's inherent jurisdiction. In particular, Rhagodia sought (amongst other relief):
(a) orders pursuant to ss 175 or 233 of the Corporations Act that the registers of shareholders in BPB and unitholders of the SPUT be rectified by restoring Rhagodia to holdings of 125 shares (out of 1000) and 12.5% of the issued units respectively;
(b) orders pursuant to s 233 of the Corporations Act for the purchase of Rhagodia's shares in BPB and its units in the SPUT at 'fair value';
(c) an order for the taking of accounts of the SPUT and the payment to Rhagodia of such amount as was found to be due to it.
36 The originating process in the Earlier Proceeding was supported by an affidavit sworn by Hany on 29 March 2021. In the affidavit, stated inter alia, as follows:
The first defendant (BPB) is the trustee of the Sharelink Properties Unit Trust (the SPUT). By the originating process Rhagodia is seeking relief from oppression, unfair prejudice and unfair discrimination. Rhagodia is a shareholder in BPB and a unit holder in the SPUT. The originating process also seeks replacement of the first defendant as trustee of the SPUT, among other orders.
BPB was incorporated on 16 December 2009. At that time Rhagodia was issued 125 shares in BPB. The other shareholders were the 2nd defendant (Ebab Aust) as to 583 shares a defendant (Keppston) as to 292 shares, of a total of 1,000 shares.
BPB's directors have at all times been Ehab Abdou (Ehab), who is the sole director and shareholder of Ehab Aust, and Paul Reeves, who is the sole director and shareholder of Keppston. Now produced and shown to me at the time of swearing this my affidavit and marked "HA-1" is a historical company search of BPB.
BPB was incorporated to act as trustee of the SPUT which was established by deed dated 16 December 2009. The SPUT is a unit trust. The initial unitholders were Ehab Aust (583 units), Keppston (292 units), and Rhagodia (I 25 units) (a total of 1,000 units).
In early 2010, BPB as trustee of the SPUT purchased:
(a) the land at 57 Station Street, Nerang, Queensland, comprising approximately 4.233 hectares and known as "My Centre Nerang" shopping centre;
(b) the adjacent undeveloped land at 44 Gilston Road, Nerang, Queensland, comprising approximately 11.63 hectares,
(collectively the Nerang Land) at a total cost of about $53 million. BPB remains the owner of the Nerang Land which I believe is now worth hundreds of millions of dollars.
37 On 14 May 2021, Rhagodia filed points of claim in the Earlier Proceeding. The points of claim made allegations in relation to Rhagodia's shareholding and unitholding and alleged that the conduct of the affairs of BPB had been oppressive to, unfairly prejudicial to, or unfairly discriminatory against, Rhagodia in its capacity as a member of BPB and as a unit holder of the SPUT. Rhagodia sought orders for the purchase of Rhagodia's shares in BPB and units in the SPUT at fair value. Under a heading, 'The Sharelink Properties Unit Trust', the points of claim alleged as follows:
16. In early 2010, BPB as trustee of the SPUT purchased:
(a) the land at 57 Station Street, Nerang, Queensland, comprising approximately 4.223 hectares and known as "My Centre Nerang" shopping centre;
(b) the adjacent undeveloped land at 44 Gilston Road, Nerang, Queensland, comprising approximately 11.63 hectares;
(collectively the Nerang Land) at a total cost of approximately $53
million.
38 Pausing there, as is common place in cases seeking a buy-out order for oppressive conduct, the valuation of the shares in BPB and units in the SPUT assumed critical importance in the Earlier Proceeding.
39 Significantly, the principal assets of the SPUT were the Nerang Land and Adjacent Land. As the joint expert retained by the parties in the earlier proceeding, Ms Hansen, explained in her report dated 17 February 2022 (First Hansen Report):
The SPUTs key assets are My Centre Nerang [i.e. the Nerang Land] and the Adjacent Land. The book value of these properties represents the majority of the SPUTs non-current asset balance.
40 Moving on from book values, Ms Hansen's calculation of the net assets of the SPUT made clear that the Nerang Land and Adjacent Land contributed $67.5 million towards the overall asset value of the SPUT of $70.77 million.[53] As Ms Hansen explained, the valuation of $67.5 million was arrived at by reference to a property valuation conducted by Mr Gilliland of m3property:[54]
6.4.1. I have adopted the market value of My Nerang Centre and the Adjacent Land assessed by Mr Gilliland in my assessment of the Net Assets of the SPUT. The property values assessed by m3property are as follows:
(a) My Centre Nerang - $56,500,000; and
(b) Adjacent Land - $11,000,000.
41 On 4 February 2022, prior to finalising her February 2022 Report, Ms Hansen sent the solicitors for the parties to the Earlier Proceeding a redacted draft of her report (the Redacted Document) for verification. Specifically, Ms Hansen's covering email stated '[p]lease review the Redacted Document for factual accuracy and provide me with the applicable signed representation letter together with any comments as to the factual accuracy of the Redacted Document'.
1.1.3 BPB is trustee of the SPUT. The Proceeding relates to a dispute between the Plaintiff and the Defendants as to the affairs of the SPUT and BPB. In particular, the Plaintiff claims that the conduct of BPB has been oppressive, unfairly prejudicial or unfairly discriminatory against the Plaintiff, and by such conduct has diminished the Plaintiff's holdings in the SPUT and BPB. These allegations are denied by the Defendants.
...
3.2.3 The SPUT is the owner of two properties located at 57 Station Street, Nerang QLD 4211 (My Centre Nerang) and 44 Gilston Road, Nerang QLD 4211 (Adjacent Land) (collectively, the SPUT Properties). The acquisition dates of My Centre Nerang and Adjacent Land were January 2010 and August 2010, respectively.
...
3.4.10
...
(c) The SPUTs key assets are My Centre Nerang and the Adjacent Land. The book value of these properties represents the majority of the SPUTs non-current asset balance (the line item titled 'investment property - Nerang Shopping Centre' shown in the table above).
43 The letter of instruction appended to the Redacted Document and signed by the solicitors for the parties in the Earlier Proceeding recorded as follows:
44 Rhagodia's solicitors and counsel in the Earlier Proceeding were different to the solicitors and counsel retained in this proceeding. On 15 February 2022, Rhagodia's then solicitors, provided a representation letter to Ms Hansen in relation to the Redacted Document. The representation letter stated as follows:
We refer to your draft Redacted Document provided on 4 February 2022 in relation to the valuations of BPB, the SPUT and the instructed ownership interests in each of these entities.
Rhagodia Pty Ltd (the Plaintiff), acknowledges that the Redacted Document is subject to FTI Consulting's internal review and, accordingly FTI Consulting reserves the right to amend the Redacted Document, if necessary. The Plaintiff also acknowledges that the Redacted Document has been provided to them, in order to review the factual content of the Redacted Document for completeness and accuracy.
During the course of this engagement, FTI Consulting has been provided with financial and other information, which has been detailed in the Redacted Document and has formed part of the basis for the conclusions. Accordingly, the Plaintiff confirms that they have reviewed in detail the Redacted Document and that all the information disclosed therein, provided by them, is factually correct and free of material omissions of fact.
With reference to the matters provided by them to FTI Consulting, the Plaintiff confirms that there are no other material matters or information that has come to their attention, or to which they are privy, that would impact on the content and/or conclusions of the report that has not already been disclosed to FTI Consulting, from the Valuation Date (31 July 2021) to the date of the final report (completion is expected by February 2022).
The Plaintiff also confirms that, after having made reasonable enquiries, to the best of their knowledge and belief the information that FTI Consulting has been provided, by them, is true, correct and accurate and there are no other matters, in the opinion of the Plaintiff, that should be brought to FTI Consulting's attention.
45 As has been stated, Hany is the sole director and shareholder of Rhagodia, and Hany and Rhagodia are the plaintiffs in the current proceeding. Rhagodia reviewed a draft of the Hansen Report, which did not refer to any claim by Hany personally to be beneficially entitled to any part of any assets of BPB as trustee of the SPUT, and Rhagodia confirmed that the draft was 'factually correct and free of material omissions of fact'. Ms Hansen was not instructed as to any claim by Hany to be beneficially entitled to any part of any assets of BPB or the SPUT. Accordingly, the First Hansen Report did not refer to any such claim by Hany personally, nor to the effect of any such claim on the value of the SPUT or Rhagodia's interest in the SPUT.
46 On or about 19 February 2024, Ms Hansen provided a supplementary report. The report repeated that the SPUT's key assets were the Nerang Land and the Adjacent Land. By reason of a reduction in Mr Gilliland's assessment of the value of the Nerang Land and Adjacent Land, Ms Hansen assessed the combined fair market value of the Nerang Land and Adjacent Land as being $60.5 million of the overall total asset value of $64.74 million.[55]
47 As with the First Hansen Report, on 2 February 2024, prior to finalising the Supplementary Report, the solicitors for the parties to the Earlier Proceeding were sent a redacted draft of the supplementary report (the Supplementary Redacted Document) for verification. Again, the covering email stated '[p]lease review the Redacted Document for factual accuracy and provide me with the applicable signed representation letter together'.
48 The Supplementary Redacted Document contained the same material content as extracted above in paragraph 42. On 7 February 2024, Rhagodia's solicitors sent Ms Hansen a representation letter in respect of the Supplementary Redacted Document. It stated as follows:
We refer to your draft Redacted Document provided on 02 February 2024 in relation to the valuations of BPB, the SPUT and the instructed ownership interests in each of these entities.
Rhagodia Pty Ltd (the Plaintiff), acknowledges that the Redacted Document is subject to FTI Consulting's internal review and, accordingly FTI Consulting reserves the right to amend the Redacted Document, if necessary. The Plaintiff also acknowledges that the Redacted Document has been provided to them, in order to review the factual content of the Redacted Document for completeness and accuracy.
During the course of this engagement, FTI Consulting has been provided with financial and other information, which has been detailed in the Redacted Document and has formed part of the basis for the conclusions. Accordingly, the Plaintiff confirms that they have reviewed in detail the Redacted Document and that all the information disclosed therein, provided by them, is factually correct and free of material omissions of fact.
The Plaintiff confirms that there are no other material matters or information that has come to their attention, or to which they are privy, that would impact on the content and/or conclusions of the report that has not already been disclosed to FTI Consulting, from the Valuation Date (31 October 2024) to the date of the final report (completion is expected by February 2024).
The Plaintiff also confirms that, after having made reasonable enquiries, to the best of their knowledge and belief the information that FTI Consulting has been provided, by them, is true, correct and accurate and there are no other matters, in the opinion of the Defendants, that should be brought to FTI Consulting's attention.
49 On 1 August 2024, the parties to the Earlier Proceeding filed an agreed list of issues for determination. The value of the net assets of the SPUT and the valuation of Rhagodia's interest in the SPUT were clearly in issue.
50 On 19 August 2024, Rhagodia filed an outline of opening submissions. In paragraph 4 of the outline, Rhagodia submitted:
The crux of this dispute is twofold:
(a) what is the extent of [Rhagodia's] interest in BPB and the SPUT?
(b) what is the value of that interest?
51 In paragraph 8 of the outline, Rhagodia submitted, in relation to the value of its interest:[56]
...
- There are two expert accountants - Fiona Hansen (retained jointly by the parties) and Gideon Rathner (retained by the plaintiff).
- There is a dispute as to the real estate value, with two valuers arriving at starkly different outcomes. The shopping centre was purchased for $38.5m in January 2010, and the adjoining land was purchased for $11.5m in August 2010. The first valuation was procured by Fiona Hansen from M3 Property. M3 assessed the market values, as at 31 October 2023, as $50.5 million for the shopping centre and $10 million for the adjoining land. The second valuation was obtained by the plaintiff from Asset Valuations Group (AVG). AVG assessed the market values, as at 18 April 2024, as being $70 million for the shopping centre and $44 million for the adjoining land.
52 The trial of the Earlier Proceeding commenced on 26 August 2024 before Justice Delany. Counsel for the defendants made certain concessions at the outset of the trial as to the existence of oppressive or unfairly prejudicial conduct.[57] On the second day of trial, Tuesday 27 August 2024, the property valuers, Mr Gilliland and Mr Khoury, gave concurrent evidence. As the evidence reveals, by that stage, Mr Gilliland had prepared four expert reports and Mr Khoury had prepared two expert reports. At the conclusion of their evidence and in anticipation of a mediation to occur on the following day, Justice Delany made the following provisional observations:
So, I see at the moment significant reasons why I would likely tend in favour of Mr Gilliland's expert evidence rather than the evidence of Mr Khoury. Saying that, again I repeat that I accept that both valuers did their best and it's not easy when there's a lack of comparable sales, and the valuation particularly of shopping centres which I've unfortunately had a lot to do with is very difficult. So, I just make those observations.
They're not, of course, final observations because if the case doesn't settle, I'll hear counsel and I'll consider all of the submissions and all of the other evidence. But I thought I should make those observations in the hope that it might assist the parties tomorrow and unless there's anything counsel wanted to mention, I was proposing to adjourn this matter now until Thursday at 10 am. All right, we'll adjourn now...
53 The proceeding was settled at the Court-ordered mediation. By a settlement deed dated 13 September 2024 (Settlement Deed), the defendants in the Earlier Proceeding agreed to pay Rhagodia $3 million in instalments, and Rhagodia agreed to its shares in BPB and units in the SPUT being cancelled, transferred, purchased or redeemed. In accordance with the Settlement Deed, the defendants to the SPUT Proceeding paid $500,000 to Rhagodia on 1 November 2024, $1 million on 1 December 2024 and $1.5 million on 1 July 2025.
54 At this juncture, it is appropriate to observe that:
(a) the originating process, Hany's affidavit and the points of claim in the Earlier Proceeding, did not refer to any claim by Hany personally to be beneficially entitled to any part of any assets of BPB as trustee of the SPUT; and
(b) the list of issues, instructions to experts, verification letters and Rhagodia's outline of opening submissions did not refer to any claim by Hany personally to be beneficially entitled to any part of any assets of BPB as trustee of the SPUT, nor to the effect of any such claim on the value of the SPUT or Rhagodia's interest in the SPUT.
55 When the trial of the Earlier Proceeding commenced before Justice Delany:
(a) counsel for Rhagodia opened his client's case and did not refer to any claim by Hany (its sole director and shareholder) personally to be beneficially entitled to any part of any assets of BPB as trustee of the SPUT, nor to the effect of any such claim on the value of the SPUT or Rhagodia's interest in the SPUT; and
(b) Justice Delany was never told about any claim by Hany personally to be beneficially entitled to any part of any assets of BPB as trustee of the SPUT, nor to the effect of any such claim on the value of the SPUT or Rhagodia's interest in the SPUT.
56 In the present case, the inconsistency between the New Claim being run by Hany and the case advanced by Rhagodia, his alter ego, is substantial and significant. The quantitative effect of the inconsistent allegations now advanced in the New Claim on the valuation of Rhagodia's unit holding in the Earlier Proceeding was demonstrated in an aide-memoire presented by the Reeves and Abdou Parties[58] as follows:
(a) Using the land valuations put forward by Rhagodia in the Earlier Proceeding (i.e. Mr Khoury's values):
(i) the Nerang Land was valued at $70 million and the Adjacent Property at $44 million, or $114 million in total, and the net asset value of the SPUT was $85.8 million. On that basis, this meant that Rhagodia's 12.5% unitholding was worth $10.725 million.
(ii) However, on the facts alleged in the New Claim, Hany's undisclosed beneficial interest in the Nerang Land was valued at $11.2 million (16% of $70 million) and the Adjacent Property at $33 million (75% of $44 million), or $44.2 million in total. This reduced the net asset value of the SPUT to $41.6 million and meant that Rhagodia's 12.5% unitholding was worth only $5.2 million - i.e. less than half what Rhagodia claimed in the SPUT Proceeding.
(b) Using the land valuations put forward by the defendants in the Earlier Proceeding (i.e. Mr Gilliland's of M3's values):
(i) M3 valued the Nerang Land at $50,500,000 and the Adjacent Property at $10 million, or $60,500,000 in total, and the net asset value of the SPUT was $32,300,000. This meant that Rhagodia's 12.5% unitholding was worth $4,037,500.
(ii) However, on the facts alleged in the New Claim, Hany's undisclosed beneficial interest in the Nerang Land was valued at $8,080,000 (16% of $50,500,000) and the Adjacent Property at $7,500,000 (75% of $10 million), or $15,580,000 in total. This reduced the net asset value of the SPUT to $16,720,000 and meant that Rhagodia's 12.5% unitholding was $2,090,000 - about half what Rhagodia would have claimed, based on the M3 valuation.
57 Senior counsel for the plaintiffs properly made the following concession in the course of argument:
HIS HONOUR: Starting with 11(a) an issue in the [earlier] proceeding was the value of the net assets.
SENIOR COUNSEL: Yes, it was, Your Honour.
HIS HONOUR: And do you accept that the value to be attributed to the net assets of the trust would be materially altered if Hany's claim to a construct[ive] trust in the proportions that are now pleaded was to be taken into account.
SENIOR COUNSEL: Yes, Your Honour.
58 The prosecution of two factually or legally inconsistent claims, may, in a particular circumstance, warrant the stay of the second proceeding as an abuse of process. As the authorities reveal, it will be relevant to consider whether the inconsistent factual or legal predicate or intention to commence the second proceeding was disclosed to the relevant counter-party.
59 It was common ground, on these applications, that Hany did not disclose any intention to make the New Claim or make a claim in his own name with respect to the assets of the SPUT during the currency of the Earlier Proceeding. The plaintiffs adduced evidence on these applications through their current solicitor Mr Efron. As s 75 of the Evidence Act 2008 (Vic) permits, Mr Efron gave evidence as to a number of relevant matters known to Hany. The evidence of Mr Efron reveals the following.
(a) Mr Efron was informed by Hany that Hany first became aware of the Nerang Land, the Adjacent Land, the SPUT and Rhagodia's unitholding in the SPUT at the end of 2018 when Hany was told of them by Ehab.
(b) Mr Efron was informed by Hany that documents that were first disclosed to Rhagodia by BPB and BSB on 23 December 2019 show that:
(i) the purchase price of the Nerang Land of $40,744,970.00 was funded as to $8,694,970 by money provided to BPB by BSB and as to $32,050,000 by a loan from ANZ Bank; and
(ii) the purchase of the Adjacent Land of $12.298,930 was funded entirely with money from BSB.
(c) Mr Efron was informed by Hany that BSB had no other source of funds prior to contributing money to BPB for the purchase of the Nerang Land and the Adjacent Land than the Tele Choice Business.
(d) Mr Efron was informed by Hany that Hany was unable to take legal action to secure this or Rhagodia's legal rights in respect of his and Rhagodia's claims in relation to the Tele Choice Business including the claims in this proceeding until 2020. At that time litigation funders agreed to fund a claim by Rhagodia in respect of its unitholding in the SPUT, and only that claim, and Hany remained unable to take legal action to secure his and Rhagodia's legal rights in other respects until he received payments under a settlement.
(e) This proceeding was commenced by a generally indorsed writ which was filed on 18 September 2024. The writ was prepared prior to Hany receiving any of the settlement funds under the Settlement Deed.
(f) BPB was named as a defendant in the writ based on Hany's instructions that funds from BSB and the Tele Choice Business had been diverted to BPB.
(g) The writ was not served at the time it was filed because Hany did not have access to funding for the drawing of a statement of claim at that time.
(h) Upon funding becoming available from the settlement of the SPUT Proceeding in around late November 2024, Mr Efron briefed junior and senior counsel on behalf of Hany.
(i) The process of taking instructions and drawing the statement of claim commenced in around early December 2024 and concluded in April 2025. The statement of claim was filed on 2 May 2025.
(j) Mr Efron was informed by counsel[59] and believes that, at the time of drawing the statement of claim in this proceeding, they did not identify any claim by Hany against BPB.
(k) Due to the complexity of the Defendants' corporate structure, including the number of entities therein, as well as due to the settlement of the SPUT Proceeding, Mr Efron had not previously appreciated that Hany had a claim against BPB.
(l) Mr Efron is instructed by Hany Abdou and believes that he thought the New Claims were already agitated in the statement of claim filed on 2 May 2025.
60 Mr Efron did not depose to the fact that Hany (or his then lawyers) did not know of, and appreciate, the existence of his individual claim with respect to the Nerang Land and Adjacent Land during the Earlier Proceeding. The absence of any evidence from those involved in the Earlier Proceeding was confirmed by senior counsel for the plaintiffs:
HIS HONOUR: ... As I understand you accept that what was known at the time - the proceeding before Justice Delany was that only the narrow case, if I can call it that, was being litigation funded.
SENIOR COUNSEL: Yes.
HIS HONOUR: As I understand it you also accept is that there's been no evidence adduced on behalf of your client that he did not know and those then advising him at the time did not know of the factual circumstances which give rise to that personal claim that's now being advanced.
SENIOR COUNSEL: That's so.
61 The failure to adduce evidence of that type occurred in a context where:
(a) Hany informed Mr Efron that documents demonstrating that the properties had been acquired using money from BSB were disclosed on 23 December 2019;
(b) Hany informed Mr Efron that he believed BSB had no other source of funds other than the Tele Choice Business;
(c) Hany informed Mr Efron that litigation funders were only prepared to fund Rhagodia's claim and that Hany was unable take legal action with respect to his own claims until he received payment under the Settlement Deed - thus revealing that Hany had turned his mind to and considered unspecified claims in his name;
(d) Hany filed a generally indorsed writ in respect of his personal claims two days after the execution of the Settlement Deed which had been worked on prior to the execution of that deed. The generally indorsed writ sought, on behalf of Hany and Rhagodia, a declaration that 75% of 'all profits and other assets derived from the Tele Choice Business' were held on constructive trust;
(e) Despite having the right to do so,[60] Hany failed to adduce any evidence contradicting or contextualising the submissions made by the Reeves and Abdou Parties to the effect that Hany pursued Rhagodia's claims to trial and then resolved those claims on the basis of payment to Rhagodia of $3 million without disclosing to the defendants, the joint expert or the Court his asserted entitlement to a beneficial interest in the Nerang Land and the Adjacent Property, a matter based upon facts known to him since 23 December 2019 and involving claims which could have been brought in the earlier proceeding;
(f) Rhagodia's then solicitors, presumably instructed by Hany as sole director, had twice confirmed that the information on which Ms Hansen was proceeding when valuing the SPUT did not contain any material omissions.
62 Although not ultimately critical, in and of itself, to the disposition of this application given the direct and glaring inconsistency in the factual predicate of the two proceedings, I do find that in the circumstances, including Hany's own silence, the inference is overwhelming that the Earlier Proceeding was knowingly conducted on a basis inconsistent with claims Hany intended to subsequently prosecute by the New Claim. The Earlier Proceeding was conducted on that basis so as to enable Hany (as the sole shareholder of Rhagodia) to receive the benefit of a judgment or settlement in the litigation funded narrower claim and then use those funds in a broader proceeding in respect of which he had been unable to obtain litigation funding.
63 I accept that an adverse inference should be drawn against the plaintiffs by reason of their failure to adduce evidence to explain whether the nature of the claim Hany now prosecutes in this Court was identified and known to Hany and his then legal advisors prior to the settlement of the Earlier Proceeding. I infer, having regard to the failure to adduce such evidence, and taking into account the evidence given on information and belief, as set out in paragraph 59 above, that the plaintiffs are unable to adduce any evidence to assist them in this regard.[61]
64 On one view, answers to the crucial questions concerning Hany's knowledge of the existence of the New Claim during the Earlier Proceeding and his reasons for not disclosing the existence of that New Claim, appear to have been elided or blurred in Hany's hearsay evidence. I consider that the natural inference, even on an interlocutory application of this type, is that the questions have not been clearly answered because Hany's representatives feared to do so as the answers would have exposed facts unfavourable to Hany.[62]
65 The New Claim is an abuse of the processes of the Court. It is an abuse of the processes of the Court for the following reasons.
66 First, the alleged beneficial interest of Hany said to arise in the assets of the SPUT is directly and materially inconsistent with the approach taken by his alter ego Rhagodia to the valuation of those assets in the Earlier Proceeding.
67 Second, the totality of the evidence supports a conclusion that the facts said to underpin the New Claim were known to Hany prior to and during the Earlier Proceeding, and were not advanced in that claim due to a lack of funding support from a litigation funder.
68 Third, Hany did not disclose his intention to bring his own claim with respect to the Nerang Land and Adjacent Land during the Earlier Proceeding. His failure to make that disclosure was not explained.
69 Fourth, I infer that that the reason Hany's intention was not disclosed is that disclosure would have required the New Claim to be tested in the Earlier Proceeding which, in turn, would have necessitated a broad enquiry into whether 75% of the Tele Choice Business was held on constructive trust for Hany. Such an outcome would have placed the funding of Rhagodia's narrow claim with respect to the SPUT at risk. Instead, it appears that Rhagodia (and Hany) determined to allow the narrow claim to proceed, so as to allow a war chest to be established, which enabled the broader proceeding, incorporating the New Claim, to be thereafter prosecuted. Disclosure of the New Claim or its factual predicate would have put that very strategy at risk. Senior Counsel for the plaintiffs, submitted that disclosure of the New Claim would have had the following effect in the Earlier Proceeding:
SENIOR COUNSEL: ...if it had been raised at that time, as our learned friends say should have happened, they acknowledge, as must have been the case, that it brings into play the entire basis of the main proceeding that's now before Your Honour. Which is the origin of the TeleChoice business. Who started it. What happened to it.
...
SENIOR COUNSEL That's what would have been brought into play, and we would have been faced with a situation, I say we, the plaintiffs would have been faced with a situation where with a funder prepared to fund only a narrow claim, not only does the personal claim bring into play the origin of the TeleChoice business, who founded it, who owns it.
...
HIS HONOUR: Yes. And so you say the - as I understand your submission, you say the disclosure of this fact would have necessarily substantially enlarged the scope of the Justice Delany proceeding. Is that a fair characterisation?
SENIOR COUNSEL: Yes.
70 Fifth, the effect of the non-disclosure was that the Court, BPB and the other unit holders, were deprived of notice of a material factual and legal contention which, if established, would have materially affected the value of the SPUT and the value of Rhagodia's units.
71 Sixth, the Earlier Proceeding could not have continued solely in its existing form had Hany's personal claim been disclosed. The valuation evidence would have been necessarily different and the architecture of the proceeding would have had to accommodate the possible need to determine Hany's personal claim before a buy-out of Rhagodia's units could occur. The non-disclosure of Hany's individual claim likely led to, or will now lead to (unless stayed), wasted costs and court time and certainly deprived the Court of the information required, in the Earlier Proceeding, to allow it to fashion the most just, efficient, timely and cost-effective structure for the determination of the dispute over the value of the interests in the Nerang Land and Adjacent Property.
72 Seventh, I have taken into account the fact that Hany lacked the funds to prosecute his individual claim in the Earlier Proceeding, that he makes a bona fide claim in this proceeding that the lack of funds was caused by the defendants' conduct, and that it was only at the trial of the Earlier Proceeding that certain admissions as to oppressive conduct were made by the defendants in that proceeding. I accept all of those matters. Ultimately, however, I do not think they militate sufficiently against the conclusion that the conduct in question constitutes an abuse of process because it brings the administration of justice into disrepute.
73 In an era informed by the Civil Procedure Act, the administration of justice cannot tolerate the prosecution of fundamentally and materially inconsistent claims where the existence of the inconsistent claim was not disclosed to the other parties or the Court. The proper course on the facts of this case was for Hany to disclose his intention to bring broader claims, the nature of those claims as presently known to him, the absence of presently available funding to bring those claims and the alleged cause of that impecuniosity. Disclosure of those matters would have better enabled the Court to fashion an outcome which sought to achieve a just, efficient and fair process for all litigants in the proceeding and court users generally.
74 I have found that the prosecution of the New Claim in this proceeding is an abuse of the processes of the Court. I will order that the New Claim be permanently stayed. In those circumstances, there is no good reason for extending the validity of the writ, as the only purpose to be served by such an extension was to permit the plaintiffs to advance those claims against BPB. Accordingly, I will also order that the plaintiffs' summons dated 21 November 2025 be dismissed.
75 If necessary, I will hear the parties as to any ancillary orders and as to costs at the directions hearing on 20 March 2026.
RHAGODIA PTY LTD (ACN 086 554 485) AS TRUSTEE OF THE H & S ABDOU FAMILY TRUST (ABN 83 221 271 974)
BUSINESS SERVICE BROKERS PTY LTD (FORMERLY SHARELINK SERVICES PTY LTD) ACN 069 049 994 AS TRUSTEE OF THE SHARELINK SERVICES UNIT TRUST AND PERSONALLY
UTILITY CHOICE PTY LTD (FORMERLY TELE CHOICE PTY LTD) (ACN 075 225 660) AS TRUSTEE OF THE TELE CHOICE INVESTMENT TRUST
BUSINESS PROPERTY BROKERS PTY LTD (FORMERLY MY CENTRE PTY LTD) (ACN 141 151 975) AS TRUSTEE OF THE SHARELINK PROPERTIES UNIT TRUST
EHAB AUST PTY LTD (ACN 074 513 072) AS TRUSTEE OF THE ABDOU FAMILY TRUST NO 1
KEPPSTON MANOR PTY LTD (ACN 083 862 408) AS TRUSTEE OF THE PAUL REEVES FAMILY TRUST
SECURINVEST BUSINESS ADVISORY & TAXATION PTY LTD (FORMERLY DAVIS ACCOUNTANTS PTY LTD) (ACN 126 286 833)
A.C.N. 071 606 301 PTY LTD (ACN 071 606 301) AS TRUSTEE OF THE A.C.N. UNIT TRUST
BRIGHT CHOICE AUSTRALIA PTY LTD (FORMERLY UTILITY CHOICE PTY LTD) (ACN 153 379 894)
DATA VOICE AND SECURITY SOLUTIONS PTY LTD (FORMERLY ELMONT AUSTRALIA PTY LTD) (ACN 097 344 119)
EHAB PTY LTD (FORMERLY MONTAGUE ST DELI PTY LTD) (ACN 006 849 430)
INKCHOICE INVESTMENTS PTY LTD (FORMERLY DARRIGA INVESTMENTS PTY LTD (ACN 084 584 949)
PHONES 4 US PTY LTD (FORMERLY G & E PTY LTD) (ACN 076 403 980)
PRECAAR PTY LTD (ACN 130 752 706) AS TRUSTEE FOR THE PRECAAR UNIT TRUST
TC MOBILES PTY LTD (ACN 090 752 873) (FORMERLY BUZ COMMUNICATIONS PTY LTD AND RUBALEX PTY LTD)
TC STOCK PTY LTD (ACN 132 641 653) (FORMERLY VIP CASH BACK PTY LTD AND INCARD PTY LTD)
TELECHOICE CORPORATE PTY LTD (ACN 094 493 535) (FORMERLY BUZ PTY LTD)
TELE CHOICE LOWEST PRICES ON MOBILE PHONES PTY LTD (ACN 074 799 509) (FORMERLY H.P.E. PTY LTD)
[1] UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77, 96 [45] (Kiefel CJ, Bell and Keane JJ) ('UBS').
[2] UBS 83 [1] (Kiefel CJ, Bell and Keane JJ).
[3] UBS 127 [136] (Gordon J) citing Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ) ('Williams') and Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 498; [1977] 2 All ER 566, 582 (Lord Denning MR, Scarman and Bridge LJJ).
[4] UBS 127 [136] (Gordon J) citing Williams 529 (Mason CJ, Dawson, Toohey and McHugh JJ) and Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ).
[5] Civil Procedure Act 2010 (Vic) s 7(1); see UBS 96 [45] (Kiefel CJ, Bell and Keane JJ), 128 [139] (Gordon J).
[6] UBS 83 [1] (Kiefel CJ, Bell and Keane JJ).
[9] Johnson v Gore Wood & Co [2002] 2 AC 1, 31 (Lord Bingham) ('Johnson').
[10] UBS 127 [136] (Gordon J) citing Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, 518 [24] (French CJ, Bell, Gageler and Keane JJ) ('Tomlinson'), Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 194 [34] (French CJ) ('Aon') and Johnson 31 (Lord Bingham of Cornhill).
[11] UBS 127 [136] (Gordon J) citing Walton v Gardiner (1993) 177 CLR 378_,_ 393 (Mason CJ, Deane and Dawson JJ) ('Walton'), Tomlinson 518 [24] (French CJ, Bell, Gageler and Keane JJ) and Rozenblit v Vainer (2018) 262 CLR 478, 498 [66] (Gordon and Edelman JJ).
[12] UBS 127 [136] (Gordon J) citing Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, 267 [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ) and Walton 378, 393-94 and the authorities cited therein.
[19] Walton 392-3 (Mason CJ, Deane and Dawson JJ).
[21] Ibid 85 [7] (Kiefel CJ, Bell and Keane JJ).
[23] Ibid 31 (Lord Bingham of Cornhill).
[24] [2019] FCA 666, [54] (Stewart J).
[25] UBS 127-128 [136]-[139] (Gordon J). Citations omitted.
[26] [2025] FCAFC 142, [167]-[180] (Banks-Smith, Kennett and Wheatley JJ).
[27] UBS 83 [1] (Kiefel CJ, Bell and Keane JJ).
[28] Johnson 31 (Lord Bingham of Cornhill); UBS 85 [7] (Kiefel CJ, Bell and Keane JJ).
[29] UBS 92 [34] (Kiefel CJ, Bell and Keane JJ).
[30] UBS 93 [38] (Kiefel CJ, Bell and Keane JJ).
[31] Ibid citing Aon 217 [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[32] UBS 95-96 [43] (Kiefel CJ, Bell and Keane JJ).
[33] UBS 100 [58] (Kiefel CJ, Bell and Keane JJ).
[35] UBS 100 [59] (Kiefel CJ, Bell and Keane JJ).
[36] UBS 95-6 [43] (Kiefel CJ, Bell and Keane JJ), 101 [63] (Gageler J) citing Tomlinson 519 [26] (French CJ, Bell, Gageler and Keane JJ); Robinson v Deep Investments Pty Ltd [2018] FCAFC 232, [149].
[37] [2015] HCA 28; (2015) 256 CLR 507, 518-9 [25]-[26] (French CJ, Bell, Gageler and Keane JJ). Citations omitted.
[38] The separate legal personality of a corporation, as distinct from that of its members and as distinct from companies to whom it is related, is a basic principle of Anglo-Australian law company law: Taxi Apps Pty Ltd v Uber Technologies Inc & Ors [2025] VSC 514, [65] (Nichols J) citing Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444, [142], citing Walker v Wimborne [1976] HCA 7; (1976) 137 CLR 1, 6; Industrial Equity v Blackburn [1977] HCA 59; (1977) 137 CLR 567.
[41] UBS 107 [80] (Gageler J), 128 [139] (Gordon J).
[45] Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243, [161] (Allsop P, Beazley and Campbell JJA).
[46] [2008] EWHC 2325; [2008] 1 WLR 823, 850 [96] (Sir Anthony Clarke MR). Banks-Smith Kennett and Wheatley JJ in Madden (Receiver) v Mining Standards International Pty ltd [2025] FCAFC 142, [179] identified that in Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2008] VSC 405, [61] Beach J endorsed the 'force of much that is said' by Sir Anthony Clarke MR.
[47] Johnson 31 (Lord Bingham of Cornhill).
[48] See, for example, Rinehart v Rinehart [2020] NSWSC 68, [13], [32] (Ward CJ in Eq); Kekatos Lawyers Pty Ltd v Dana Rahme [2025] NSWSC 1320, [68]-[70] (Walton J). Dimitrovksi v Boland (No 3) [2025] NSWSC 1527, [62] (Kunc J); Smith v Commissioner of the Rural and Industries Bank of Western Australia [2009] WASC 100, [76]-[78] (Martin CJ).
[53] Report of Fiona Hansen dated 17 February 2022, 6.3.1; Application Book 496-497.
[54] Report of Fiona Hansen dated 17 February 2022, 6.4.1; Application Book 499.
[55] Hansen Supplementary Report dated 19 February 2024, 6.3.1 and 6.4.1; Application Book 964-967.
[58] MFI-2. The plaintiffs sought, and were given, an opportunity to consider and make corrections to the aide-memoire. They did not avail themselves of that opportunity.
[59] Counsel now retained are different to counsel retained on behalf of Rhagodia in the Earlier Proceeding.
[60] On 12 December 2025, I made an order requiring that 'by 4:00pm on 5 February 2026, the plaintiffs are to file and serve any affidavit material upon which they wish to rely and their submissions in response to the Reeves and Abdou Parties' Summons'. The submissions made by the Ehab/Reeves defendants were made on 11 December 2025 and therefore, the plaintiffs were on notice of their contents before filing their reply evidence.
[61] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 ('Commercial Union').
[62] Commercial Union 418 (Handley JA). For an example of such an inference being drawn in an interlocutory context, see Bass Strait Freight Pty Ltd & Anor v Colac Otway Shire Council & Anor [2024] VSC 19 [78] (per Keogh J).
Abdou & Anor
Trowsdale & Ors [2026] VSC 82
(2018) 265 CLR 77
(1992) 174 CLR 509
(1989) 168 CLR 23
(2015) 256 CLR 507
(2009) 239 CLR 175
(1993) 177 CLR 378
(2018) 262 CLR 478
(2006) 226 CLR 256
(1976) 137 CLR 1
(1977) 137 CLR 567
(1959) 101 CLR 298
(1991) 22 NSWLR 389