Procedural History
3 The procedural history in this matter is long and unsatisfactory. The first proceeding commenced when the Purchasing Parties sought ex parte freezing orders over the solicitor's trust account. They did so in reliance upon an affidavit affirmed by a Mr Oliver Roths, who deposed that he was a "corporate advisor" and "representative" of the Purchasing Parties. That affidavit had been filed by solicitors, namely the Sydney Office of Piper Alderman. In general terms, in that affidavit Mr Roths deposed that as part of the potential sale of shares in PLC, monies had been deposited in a trust account of Mr Terziovski. The monies, he said, were only to be distributed to the Selling Parties upon completion of the sales. This, he said, had never taken place. There was a threat, he believed, that the solicitor was going to distribute the monies to the Selling Parties in any event.
4 I make no finding about the accuracy of Mr Roths' affidavit. I observe, however, that:
(a) he did not at that time disclose that his former name was "Oliver Banovec" and that he had in the past been prosecuted by the Australian Securities and Investment Commission and, as a result, had served time in gaol; and
(b) he never at any stage disclosed that he was in fact gaoled for seven years for, inter alia, fraud and two counts of perjury: Banovec v. R [2012] NSWCCA 137.
5 I would not have made freezing orders on an ex parte basis on the word of a man who had a conviction for perjury. This should have been disclosed to me at the hearing of the ex parte application. The failure to do so was a serious breach of the duty of candour owed to the Court: Walter Rau Neusser Oel Und Fett AG v. Cross Pacific Trading Ltd [2005] FCA 955 at [38], [47]-[48] Allsop J. (as his Honour then was). I make no finding, for the moment, that Piper Alderman knew about the conviction. I also make no finding that Counsel who appeared for the Purchasing Parties at the hearing of the application for freezing orders had any such knowledge. I am certain that if he did he would have disclosed the foregoing matters to me.
6 In August 2018, the solicitor paid the $860,000 into Court. As a result, the freezing orders, by their terms, ceased to have any further effect. I also rejected an interlocutory application made by the Purchasing Parties to have the monies paid to them. That was because I was satisfied that a real dispute existed as to whether there had been any sale of the PLC shares.
7 In September 2018, the Selling Parties commenced their application for specific performance of what they alleged were contracts for the sale of their PLC shares to the Purchasing Parties, for declarations that they were entitled to the funds held by the Court, and for payment of those monies, in various amounts, to each Selling Party.
8 On 2 February 2019, both proceedings were listed by me for a three-day trial commencing on Monday 14 October 2019.
9 Immediately before the commencement of that trial Piper Alderman ceased to act for the Purchasing Parties and the Court received an email directly from one of those parties claiming that the proceedings had been settled. That party stated that the Purchasing Parties intended to bring an application "to enforce the settlement" and sought, in the meantime, an adjournment of the trial. The email was read out to the parties at the start of the hearing on 14 October 2019. I was informed that the Purchasing Parties were going to retain a new solicitor and new Counsel. In those circumstances I adjourned the hearing of the trial for one week.
10 At the adjourned hearing of the trial on 21 October 2019, the Purchasing Parties were represented by a different solicitor and barrister, namely HWL Ebsworth Lawyers and by Mr McKillop of Counsel. He sought another adjournment of the trial to give the Purchasing Parties time to file an application to enforce the alleged settlement agreement. It would appear that the extent of the retainer of HWL Ebsworth Lawyers and Mr McKillop was limited to securing this adjournment. After some debate, it appeared to me to be appropriate to give one further short adjournment to facilitate the making of the application. However, I ordered the Purchasing Parties to pay the costs thrown away incurred by the Selling Parties and by Mr Terziovski and his firm. The orders I made included a timetable for the Purchasing Parties to file their application, for the Selling Parties to file any defence, and for the exchange of written submissions. The trial was adjourned to 27 November 2019.
11 In the first proceeding the following order was also made:
The applicants pay the first and second respondents' costs thrown away by reason of the adjournment ordered on 14 October 2019 and today's vacation of the trial fixed at $8,250 to be paid on or before 27 November 2019.
12 In the second proceeding the following order was also made:
The respondents pay the applicants' costs thrown away by reason of the vacation of the trial fixed at $5,100 to be paid on or before 27 November 2019.
13 The Purchasing Parties did none of the things they were ordered to do. They did not make their application. They did not file written submissions. They did not pay the costs thrown away as required.
14 On 21 November 2019, Mr Dickson Ting of Domantay Legal Pty Ltd sent an email to the Court on behalf of Mr Tang, the fourth applicant in the first proceeding and the fourth respondent in the second proceeding. It asserted that Mr Tang had only recently discovered that he was a named party in each proceeding and that he had never given Piper Alderman instructions to act on his behalf. Mr Ting sought a further adjournment of the trial on the basis that Mr Tang was not ready to proceed.
15 On 26 November 2019, Mr Ting on behalf of Mr Tang, filed a "Notice of acting - change of Lawyer" and an interlocutory application seeking an adjournment of the trial as well as the payment of the costs from a non-party, namely Piper Alderman. This was supported by an affidavit of Mr Tang who does not speak, read or write in English. The affidavit contained a certification from an interpreter that confirmed that its contents had been interpreted into Mandarin and the oath then administered. The affidavit confirmed that Mr Tang had never been a client of Piper Alderman.