Gastevich (by her litigation representative Tombides) v Starwest Investments Pty Ltd [2025] FCA 1530

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. This is an application for the appointment of a litigation representative for the plaintiff in this proceeding.
2. The plaintiff, Sonja Gastevich, purported to start the underlying proceeding by her plenary administrator, Mary Tombides, on 20 November 2025. Mrs Tombides is one of Mrs Gastevich's three daughters.
3. By the underlying proceeding, Mrs Gastevich seeks orders under s 588FM of the Corporations Act 2001 (Cth) fixing a later time (7 May 2018) for the purpose of s 588FL(2)(b)(iv) for the plaintiff to register a security interest under the Personal Property Securities Register, established under the Personal Property Securities Act 2009 (Cth).
4. The orders in the underlying proceeding are sought to protect Mrs Gastevich's interest in a $4.5 million loan she made to the defendant, Starwest Investments Pty Ltd, a company controlled by another of her daughters, Fiona Slobe. The loan is the subject of a Loan Deed dated 12 January 2018 made between Mrs Gastevich and Starwest. I was informed that there is urgency attached to both this application and the underlying proceeding in that a statutory demand based on non-payment of an alleged debt of $4,384,448.15 has been issued to Starwest by the Australian Taxation Office, and there is accordingly a present risk that a winding up order may be made.
5. Mrs Tombides was appointed a limited plenary administrator by the State Administrative Tribunal under s 65 of the Guardianship and Administration Act 1990 (WA) on 24 October 2025. However, that does not of itself give her standing to pursue the underlying proceeding. Rule 9.61 of the Federal Court Rules 2011 (Cth) provides that a person under a legal incapacity may start a proceeding only by the person's litigation representative. The term 'legal incapacity' is relevantly defined in Schedule 1 to the Federal Court Rules to include a mentally disabled person, which is in turn defined to mean 'a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding'.
6. Having regard to the following matters, it is apparent for the purpose of r 9.61 of the Federal Court Rules that Mrs Gastevich has a significant mental disability or illness and is not capable of managing her own affairs in a proceeding.
7. Mrs Gastevich is 87 years old and suffering from dementia. She is widowed, with three daughters. I have mentioned Mary and Fiona. The third daughter is Ms Debbie Elliott, who supports Mary's application.
8. The orders made by the State Administrative Tribunal on 24 October 2025 included the following:

Pending determination of the question of whether the proposed represented person is, in fact, a person in respect of whom a declaration should be made pursuant to s 64(1) of the Guardianship and Administration Act 1990 (WA) it is on 24 October 2025 ordered that:

1. Pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) Mary TOMBIDES is authorised to exercise the functions of a plenary administrator with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA) to protect and secure the following part of the estate of the proposed represented person:

(a) the proposed represented person's rights and interests under a loan agreement between the proposed represented person and Starwest ... in late 2017 as per the Deed of Acknowledgment of Debt between the proposed represented person and Starwest dated 12 January 2018, including to seek legal advice on behalf of the proposed represented person and to bring, defend, actions, suits and other legal proceedings in the name of the proposed represented person in relation to the same and related matters and, if appropriate, settle these matters.

1. A further hearing is scheduled before the State Administrative Tribunal on 18 December 2025 in order to determine whether orders should be made appointing Mrs Tombides as the unlimited plenary administrator of Mrs Gastevich. Mrs Tombides explained in her affidavit evidence that at the time of seeking the first orders from the State Administrative Tribunal she did not seek guardianship orders, because she had received legal advice to the effect that guardianship orders might not necessarily be required and the immediate concern was to act quickly to protect Mrs Gastevich's interests under the Loan Deed.
2. The limited order was made by the State Administrative Tribunal having regard to an affidavit of Mrs Tombides in which she said, amongst other things, that she made the application because she considered her mother had lost capacity to deal with financial matters, both in her personal capacity and in her professional capacity as director and controller of various companies and trusts within the family group of businesses.
3. The evidence relied upon before the State Administrative Tribunal which has also been filed in this application discloses that Mrs Gastevich's medical history indicates she has been in cognitive decline since at least March 2022.
4. On 3 March 2022 Mrs Gastevich was diagnosed with dementia by Dr Teck Yew, a geriatric specialist.
5. On 16 January 2025 Mrs Gastevich was assessed by Dr Nicole Lothe, also a geriatric specialist. I have read a report provided by Dr Lothe, who saw Mrs Gastevich both alone and in the presence of Mrs Tombides and a carer. It is not necessary to detail the contents of the report. It speaks clearly of a once hard-working elderly woman whose cognitive skills in recent years have sadly declined to such an extent that Dr Lothe determined that she did not have the capacity to change her will. Dr Lothe performed a recognised cognitive test on Mrs Gastevich. The score indicated severe cognitive impairment.
6. Further, there was evidence before me that in February 2025 an independent solicitor from Gregson and Associates met with Mrs Gastevich for estate and trust succession planning but declined to accept her as a client, informing solicitors Forbes Kirby that he did not consider Mrs Gastevich had testamentary capacity or the capacity to execute a change of appointment of trustees or make variations to her business structures.
7. In those circumstances, I am satisfied that Mrs Gastevich cannot pursue legal proceedings other than by a litigation representative.
8. Mrs Tombides has managed her mother's financial circumstances for over a decade. She disclosed that she is a co-director with her husband Stephen Tombides of a company, Resolve Nominees Pty Ltd. Mrs Gastevich has at all material times been the sole shareholder of Resolve. Resolve borrowed $4.55 million from NAB. It on-loaned that sum to Mrs Gastevich, who in turn on-loaned that sum to Starwest, as reflected in the Loan Deed. The interests of both Resolve and Mrs Gastevich in Mrs Gastevich taking steps to protect the security and the ability to recover funds from Starwest are for all intents and purposes aligned.
9. Mrs Tombides has not previously been appointed as Mrs Gastevich's litigation representative. Accordingly, under r 9.61 Mrs Gastevich was not permitted to commence the proceeding by Mrs Tombides. I am satisfied, however, having regard to the orders made by the State Administrative Tribunal, that Mrs Tombides is a guardian within the meaning of the Federal Court Rules such that she is an interested person and has standing to bring this application under r 9.62 and r 9.63(1).
10. Mrs Tombides has filed a certificate pursuant to r 9.64 of the Federal Court Rules by which she consents to being appointed as Mrs Gastevich's litigation representative, and certifies that she has no interests adverse to those of Mrs Gastevich in the proceeding.
11. It is well established that an order for the appointment of a litigation representative may be made retrospective with effect from the date of the originating application so as to remedy any irregularity in the commencement of the proceedings: Tu v Chang [2016] FCA 1567 at [12] (Bromwich J); CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [178] (Kenny J); and Rowe (by her litigation representative, Public Trustee of Western Australia) v Barton as Trustee for Barton Family Trust trading as Sealwerx WA (No 2) [2021] FCA 1010 at [10] (Jackson J).
12. In the circumstances, I consider it appropriate to make orders appointing Mrs Tombides as Mrs Gastevich's litigation representative, with effect from the commencement of the proceeding.
13. Having regard to her mental incapacity, I will dispense with the requirement under r 9.63(2) of the Federal Court Rules that a copy of this application be served on Mrs Gastevich.
14. I will order that the application under s 588FM of the Corporations Act be referred to the National Operations Registry for allocation of the underlying proceeding to a duty judge for an urgent hearing or otherwise as appropriate.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.