Gemma Constantinidis v Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis

5; [2002] HCA 56 Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 Guss v Johnstone [2000] HCA 26; (2000) 74 ALJR 884 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Prentice v Constantinidis (No 3) [2015] FCCA 1438 Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 Reichel v McGrath (1889) 14 App Cas 665 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Texts Cited: Nil Category: Procedural rulings Parties: Gemma Constantinidis (Plaintiff) Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis (First Defendant) Maxwell William Prentice, David Henry Sampson, Mitchel Warren Ball and Sampson Prentice Ball trading as BPS Recovery (Second Defendant) David Henry Sampson (Third Defendant) Nicole Greentree (Fourth Defendant) Jayne Edwards (Fifth Defendant) Jayne Edwards Reality Pty Ltd (Sixth Defendant) Michael Curtis (Seventh Defendant) Ray White Realty Hurstville Pty Ltd (Eighth Defendant) Security guard employed by Security One Pty Ltd in attendance at auction of matrimonial home on 7 November 2015 (Ninth Defendant) Security One Pty Ltd (Tenth Defendant) Auctioneer in attendance at auction of matrimonial home on 7 November 2015 (Eleventh Defendant) AAA Recycling (Twelfth Defendant) Dajana Malsernic (Thirteenth Defendant) Dominque Robinson (Fourteenth Defendant) Polczynski Robinson Lawyers (Fifteenth Defendant) Antonios Kontellis (Sixteenth Defendant) Representation: Counsel: In person (Plaintiff) S Golledge SC & M Cowden (First to Fourth Defendants; Thirteenth - Fifteenth Defendants) C Perry (Fifth and Seventh Defendants)

Solicitors: Self-represented (Plaintiff) Polczynski Robinson Lawyers (First to Fourth Defendants; Thirteenth - Fifteenth Defendants) Pure Legal (Fifth and Seventh Defendants) File Number(s): 2022/93493 Publication restriction: Nil

Background

1. In June 2003 the plaintiff and George Constantinidis were married. Without any disrespect, I shall refer to George Constantinidis as "George". In 2011 the plaintiff and George separated.
2. In the meantime, relevant properties owned by them were as follows:
3. 17 Woodford Road, Rockdale - in the name of George Constantinidis ("the matrimonial home")
4. 46-48 The Coronado, Old Erowal Bay - owned as tenants in common by the plaintiff and George ("the OEB property");
5. Shop 59/13-19 Brian Street, Rockdale - owned by an incorporated association known as Australian South Pacific Educational & Commercial Training Incorporated (ASPECT) ("the ASPECT property"). Both the plaintiff and George were the alter egos of that association
6. On 4 March 2014 a sequestration order was made against George's estate. Maxwell William Prentice, was appointed trustee. Mr Prentice worked at a firm called BPS Recovery, a trading name for himself, David Henry Sampson, Mitchel Warren Ball and Sampson Prentice Ball.
7. On 19 May 2015 Judge Manousaridis, in the Federal Circuit Court of Australia, made orders giving possession of the matrimonial home to the trustee: Prentice v Constantinidis (No 3) [2015] FCCA 1438 (the Possession Judgment). That property was sold on 7 November 2015 for $1.3 million. After payment to the secured creditor, Westpac Banking Corporation, the trustee received $250,543.05 for the payment of his costs and expenses.
8. On 25 August 2015 the plaintiff commenced family law proceedings in the Federal Circuit Court of Australia ("the Family Law Proceedings"). She named both George and the trustee as respondents. She amended her application a number of times On 2 December 2016 the Court ordered that ASPECT was to be joined as a respondent.
9. The plaintiff thereafter filed a number of Applications in a Case in the Family Law proceedings. One of these was filed on 6 November 2015, and sought an order that the trustee be restrained from selling the matrimonial home. However, the matrimonial home had been sold. Accordingly, the plaintiff amended her application to seek an order that the trustee be restrained from dealing with the proceeds of sale of the matrimonial home.
10. On 19 May 2016 Judge Altobelli made orders granting leave to the trustee to apply the net proceeds of the matrimonial home (with the exception of $25,000) to his legal and professional costs, and giving leave to the plaintiff to seek an order for access to the remaining $25,000 for her legal costs for continuing the Family Law proceedings.

The present proceedings

1. On 1 April 2022 the plaintiff commenced these proceedings by filing a statement of claim. She initially named only Mr Prentice and the four persons trading as BPS Recovery.
2. On 29 April 2022 she filed an amended statement of claim where the defendants were as follows: First defendant: Maxwell William Prentice Second defendant: Maxwell William Prentice, David Henry Sampson, Mitchel Warren Ball and Sampson Prentice Ball trading as BPS Recovery. Third defendant: David Henry Sampson Fourth defendant: Nicole Greentree [an employee of BPS Recovery from 28 August 2013 to 6 March 2020]. Fifth defendant: Jayne Edwards [an estate agent retained by the trustee to sell the matrimonial home]. Sixth defendant: Jayne Edwards Reality Pty Ltd [a non-existent company]. Seventh defendant: Michael Curtis [the other estate agent retained by the trustee to sell the matrimonial home]. Eighth defendant: Ray White Realty Hurstville Pty Ltd [a non-existent company]. Ninth defendant: Security guard employed by Security One Pty Ltd in attendance at auction of matrimonial home on 7th November 2015. Tenth defendant: Security One Pty Ltd. Eleventh defendant: Auctioneer in attendance at auction of matrimonial home on 7th November 2015. Twelfth defendant: AAA Recycling. Thirteenth defendant: Dajana Malsernic [a partner of Polczynski Robinson Lawyers, the solicitor on the record for the first to fourth and 13 to 15th defendants]. Fourteenth defendant: Dominque Robinson [a solicitor at Polczynski Robinson Lawyers]. Fifteenth defendant: Polczynski Robinson Lawyers. Sixteenth defendant: Antonios Kontellis [one of the purchasers of the matrimonial home]
3. I shall refer to the first to fourth defendants as the "Prentice defendants", and to the 13th to 15th defendants as the "Solicitor defendants".
4. The plaintiff by a notice of motion filed 10 June 2022 seeks default judgment against each of the defendants with damages to be assessed. In the case of the Prentice defendants and the Solicitor defendants, the basis for default judgment is that no defence by those defendants has been filed. In the case of the fifth and seventh defendants the basis appears to be that no defences were filed until 30 June 2022, in circumstances where the plaintiff claims to have served the amended statement of claim on them on 3 May 2022.
5. By notice of motion filed 29 June 2022 the Prentice defendants and the Solicitor defendants seek that the claims against them be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in the alternative that pars 1-90 and 109-117 of the amended statement of claim be struck out pursuant to r 14.28 of the UCPR, and that a notice to produce dated 20 June 2022 issued by the plaintiff be set aside.

The Notices to Produce

1. On 20 June 2022 the plaintiff issued a notice to produce addressed to the Prentice defendants which said this: You are required to produce the following documents or things to the court / registrar: 1. The details of the company, in 2015, that cleared out the premises known as 17 Woodford Rd Rockdale 2216, that identified themselves as AAA Recyclers in 2015 2. Information supplied for the above shall include but not be limited to, current registered name, ABN or ACN number, telephone number, address and /or Post Office box, email address, fax number and contact name. 3. The details of the SECURITY COMPANY who attended the public auction on the 7th November 2015 at 17 Woodford Rd Rockdale 2216. 4. Information supplied for the above shall include but not be limited to, current registered name, ABN or ACN number, telephone number, address and /or Post Office box, email address, fax number and contact name. 5. The details of the SECURITY GUARD who attended the public auction on the 7th November 2015 at 17 Woodford Rd Rockdale 2216. 6. Information supplied for the above shall include but not be limited to, name, ABN or ACN number if the individual operates as a contractor, telephone number, address and /or Post Office box, email address, fax number and contact name.
2. On 1 September 2022 the plaintiff served an unsigned notice to produce addressed to the fifth, sixth, seventh and eighth defendants which said this: You are required to produce the following documents or things to the [#court #examiner]: 1. The details of the AUCTIONEER who attended the public auction on the 7th November 2015 at 17 Woodford Rd Rockdale 2216. 2. Information supplied for the above shall include but not be limited to, current registered name, ABN or ACN number, telephone number, address and /or Post Office box, email address, fax number and contact name. 3. All ledgers, trust accounts, accounts, copies of original invoices and documents, including but not limited to instructions, emails, letters, correspondence, interoffice memos, file notes and other communications directions and the like from Maxwell W. Prentice, David H. Sampson BPS Recovery or any employee of BPS Recovery in relation to the trust account or accounts ledger and invoices provided for George Constantinidis regarding his bankrupt estate and the sale of the property known as 17 Woodford Rd Rockdale 2216. (as per the formal disclosure of duly signed Affidavits by Ms. Edwards dated 28th July 2022 - paragraphs 15 and 20.) 4. All ledgers, trust accounts, accounts, copies of original invoices and documents, including but not limited to instructions, emails, letters, correspondence, interoffice memos, file notes and other communications directions and the like in relation to the conjunction agency regarding the sale of the property known as 17 Woodford Rd Rockdale 2216. (as per the formal disclosure of duly signed Affidavits by Ms. Edwards dated 28th July 2022 - paragraph 21.)

The course of the hearing

1. In accordance with directions made by the Registrar, all parties to the motions including the plaintiff had filed written submissions.
2. When the hearing commenced on 30 November 2022 the plaintiff appeared unrepresented. I asked the plaintiff if she understood that the Court was to hear her notice of motion for default judgment and the two notices of motion filed by some of the defendants for summary dismissal of the claim. The plaintiff said that she objected to the motions being heard on grounds which were contained within a notice of motion she had filed on 24 November 2022. When that motion was filed the Court provided a return date of 8 February 2023. It was not before me for hearing.
3. The plaintiff then said: Now, this has prejudiced my whole position in this case. It is - I am appealing upon your Honour on legal grounds - my notice of motion pertains to the actions, the non-actions, the non-conduct of the Registrar with regard to setting up your Honour's hearing today to a satisfactory level to conform with both Court rules, Court regulations, Court process of non-abuse of process. HIS HONOUR: Yes. We are not here to hear the motion that you filed more recently. That will be dealt with at some other time. PLAINTIFF: In that case my position has been compromised by this Court because the relevance of the proceedings of Polczynski Robinson Lawyers, namely has no defence; secondly, has based a notice of motion on a previous hearing that has caused the recusal of the presiding judge; secondly, extempore reasons specifically quoting upon any authority that the entire proceedings were, as were mentioned, upon use of a metaphor by Altobelli J on 3 April 2019, the specific terminology used was: The well is poisoned beyond redemption within this Court. HIS HONOUR: I think you are quoting that entirely out of context but we are not concerned about that now. We are concerned about the motions that I have to hear. Do you want to go ahead? First of all, Mr Golledge and Ms Perry, I have a-- PLAINTIFF: I must be excused your Honour.
4. At that point the plaintiff commenced to walk out of the courtroom. I enquired if she was coming back and she replied: When your Honour has finished hearing the notice of motion is that have no right to be heard in this Court (sic). I sent my tipstaff out to ask the plaintiff to return. I was subsequently informed by my tipstaff that the plaintiff said she was having a panic attack and would need a short adjournment.

Plaintiff's notice of motion

1. In an affidavit sworn 6 June 2022 the plaintiff said that she served the first and second defendants with the initial statement of claim by emailing copies of it to Mr Prentice, Mr Sampson, and two of the solicitors from Polczynski Robinson. She said that she subsequently served them with the amended statement of claim by emailing them also. All of the other defendants were said to have been served by email.
2. Rule 10.20 UCPR relevantly provides: 10.20 Personal service required only in certain circumstances (1) Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders. (2) Except as otherwise provided by these rules - (a) any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served, …
3. Rule 3.7 of the UCPR provides: 3.7 Electronic service of a document A party to any proceedings before the court may use electronic mail to serve a document on any other party to proceedings, whether by means of Online Registry or otherwise, but only with the consent of the other party.
4. Rule 16.2 of the Uniform Civil Procedure Rules 2005 (NSW) defines "in default" for the purposes of the Rules. That rule provides: 16.2 Definition of "in default" (cf SCR Part 17, rule 2; DCR Part 13, rule 1; LCR Part 11, rule 1) (1) A defendant is "in default" for the purposes of this Part… (a) if the defendant fails to file a defence within the time limited by rule 14.3(1) or within such further time as the court allows, or (b) if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or (c) if, the defendant having duly filed a defence, the court orders the defence to be struck out. (2) Despite subrule (1), a defendant is not in default if the defendant… (a) has made a payment towards a liquidated claim under rule 6.17, or (b) has filed an acknowledgment of claim under rule 20.34, or (c) has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant.

Legal principles

1. The defendants collectively rely on a number of legal bases to justify obtaining summary dismissal of the plaintiff's claims. However, a significant basis arises from the litigation in which the plaintiff has been involved concerning the bankruptcy of George, the plaintiff's Family Law proceedings and the Plaintiff's Bankruptcy Proceedings. Some legal principles should be identified.
2. In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 the joint judgment of Gleeson CJ, McHugh, Gummow & Hayne JJ said at [36]: Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in this policy.
3. As far as issue estoppel is concerned, in Ramsay v Pigram (1968) 118 CLR 271 at 276 Barwick CJ said: Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. See also Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [40].
4. In Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 the High Court set out principles concerning res judicata, issue estoppel, making particular reference to Ramsay, Anshun estoppel and abuse of process as follows: [20] An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment. That merger has long been treated in Australia as equating to "res judicata" in the strict sense. [21] Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law. [22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. [23] The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction - and none has been suggested - one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding. [24] To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding. [25] 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. [26] 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.

Notice of motion by fifth and seventh defendants

1. The case pleaded against the fifth and seventh defendants is as follows: 2. PLEADINGS AND PARTICULARS AGAINST THE FIFTH AND SIXTH DEFENDANTS CLAIM AGAINST THE FIFTH DEFENDANT JAYNE EDWARDS OF JAYNE EDWARDS REALTY AND CLAIMS AGAINST THE SIXTH DEFENDANT JAYNE EDWARDS REALTY. 91. A. The sixth and seventh defendant acted as a real estate intermediary and unlawfully received commission from the sale of the matrimonial home. 92. B. The sixth and seventh defendant unlawfully acted as a real estate intermediary on behalf of the first second third and fourth defendants contrary to the Bankruptcy Act 1966 93. C. The sixth and seventh defendant acted as a real estate intermediary and unlawfully contracted a third party for the sale of the matrimonial home. 3. PLEADINGS AND PARTICULARS AGAINST THE SEVENTH AND EIGHTH DEFENDANTS CLAIM AGAINST THE SEVENTH DEFENDANT MICHAEL CURTIS OF RAY WHITE REALTY HURSTVILLE AND CLAIMS AGAINST THE EIGHTH DEFENDANT RAY WHITE REALTY HURSTVILLE 94. A. The seventh and eighth defendants unlawfully received commission contrary to the Bankruptcy Act 1966 95. B. The seventh and eighth defendants unlawfully accepted a contract in conjunction to sell real property, indirectly from the first second third and fourth defendants and unlawfully received commission contrary to the Bankruptcy Act 1966 96 C. The seventh and eighth defendants unlawfully accepted a contract in conjunction to sell real property from the fifth and sixth defendants and unlawfully received commission contrary to the Bankruptcy Act 1966
2. The fifth and seventh defendants are licensed real estate agents. The fifth defendant was a listing agent for the matrimonial property by reason an agency agreement with the trustee in bankruptcy. The seventh defendant was a conjunction agent in relation to this sale.
3. As a result of the Possession judgment of Judge Manousaridis of 19 May 2015 and the further orders made by his Honour on 19 May 2016, which provided for the possession and sale of the property by the trustee and the disbursement of the net proceeds after payment to Westpac, and as a result of the Family Law judgment of Judge Altobelli of 22 February 2018, it is clear that the plaintiff had no interest in the matrimonial home.
4. In any event, when the plaintiff sought to set aside the bankruptcy notice served on her, one of the counter-claims she sought to bring against the trustee who served the bankruptcy notice was a claim for damage to the matrimonial property.

Notice of motion by the Prentice defendants and the Solicitor defendants

1. What purports to be the pleading against the Prentice defendants extends to some 90 paragraphs. Rather than set out those paragraphs and unnecessarily lengthen this judgment, I will set out the claims made:

The claims CLAIM ITEM AMOUNT A. NO BUILDING INSURANCE ON THE MATRIMONIAL $250,000.00 PLUS INTEREST CALCULATED FROM 4TH JULY 2014 HOME BY BOTH DEFENDANTS - PLUS INTEREST B. FIRST DEFENDANT PUTS ENTIRE MATRIMONIAL HOME IN OWN NAME - PLUS INTEREST $775,000.00 PLUS INTEREST CALCULATED FROM 4TH JULY 2014 C. LOSS OF RENTAL INCOME TO DATE FROM THE MATRIMONIAL HOME - PLUS INTEREST $490,000.00 PLUS INTEREST CALCULATED FROM 4TH JULY 2014 D. COLLUSION OF BOTH DEFENDANTS WITH WESTPAC - PLUS INTEREST $1,550,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 PLUS PUNITIVE DAMAGES E. APPLICANT NOT GIVEN REASONABLE TIME TO EMPTY THE CONTENTS OF THE MATRIMONIAL HOME - PLUS INTEREST $95,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 PLUS PUNITIVE DAMAGES F. PERSONAL EFFECTS FROM HOUSE MISSING - PLUS INTEREST $35,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 G. CONTENTS OF THE HOUSE MISSING - PLUS INTEREST $50,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 H. CONTENTS OF THE SAFE MISSING - PLUS INTEREST $60,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 I. FURNITURE AND WHITE GOODS MISSING - PLUS INTEREST $15,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 J. COIN OPERATED WASHING MACHINE AND DRYER MISSING - PLUS INTEREST $4,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 K. CONTENTS OF SEVEN BOARDING HOUSE ROOMS MISSING - PLUS INTEREST $35,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 L. SALE OF MATRIMONIAL HOME NOT LISTED WITH A LOCAL REAL ESTATE AGENT - PLUS INTEREST $250,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 M. SALE OF MATRIMONIAL HOME NOT LISTED FOR ADVERTISING FOR A MINIMUM OF SIX WEEKS $250,000. N. SALE OF MATRIMONIAL HOME NOT DESCRIBED PROPERLY ON ADVERTISING $250,000. $250,000. O. LOCK OUT OF THE PROPERTY AUCTION OF THE APPLICANT BY BOTH DEFENDANTS - PLUS INTEREST $1,550,000.00 P. COSTS RELATING TO THE SABOTAGE OF MEDIATION BY BOTH DEFENDANTS - PLUS INTEREST $60,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 PLUS PUNITIVE DAMAGES Q. ONGOING COSTS OF BOTH PARTIES AFTER MEDIATION - PLUS INTEREST $700,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 PLUS PUNITIVE DAMAGES R. LOSS OF FUTURE INCOME LOST FROM THE MATRIMONIAL HOME TO BE ADVISED + PUNITIVE DAMAGES S. LOSS OF FUTURE USE OF RESIDENCE OF TWO BEDROOM HOME TO BE ADVISED + PUNITIVE DAMAGES T. LOSS OF CREDIT ABILITY - BANK FORCLOSURE CAUSATION BY BOTH DEFENDANTS. TO BE ADVISED + PUNITIVE DAMAGES U. LOSS OF ACCESS TO SURPLUS CASH BY THE PLAINTIFF, FROM THE SALE OF THE MATRIMONIAL HOME FOR LEGAL REPRESENTATION - PLUS INTEREST $366,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 PLUS PUNITIVE DAMAGES V. COSTS ASSOCIATED WITH THE SALE OF THE MATRIMONIAL HOME - PLUS INTEREST $56,000.00 PLUS INTEREST CALCULATED FROM 28TH AUGUST 2015 PLUS PUNITIVE DAMAGES W. MALICIOUS INTENT OF BOTH DEFENDANTS TO THE PLAINTIFF. TO BE ADVISED + PUNITIVE DAMAGES X. FALSE SUBMISSION TO COURT TO STEAL SURPLUS FUNDS TO BE ADVISED + PUNITIVE DAMAGES Y. ACTIONS OF BOTH DEFENDANTS CAUSING LOSS OF OPPORTUNITY OF ADEQUATE REPRESENTATION FOR THE PLAINTIFF TO BE ADVISED + PUNITIVE DAMAGES Z. ACTIONS OF BOTH DEFENDANTS CAUSING LOSS OF OPPORTUNITY OF ADEQUATE REPRESENTATION FOR THE PLAINTIFF BEING AFFORDED ADEQUATE TIME TO RESPOND TO BE ADVISED + PUNITIVE DAMAGES AA. BOTH DEFENDANTS UNLAWFULLY ATTEMPTING TO SELL OLD EROWAL BAY PROPERTY WITHOUT THE SIGNATURE OF THE APPLICANT. $635,000.00 PLUS PUNITIVE DAMAGES AB. BOTH DEFENDANTS MALICIOUSLY AND WITH INTENT FINANCIALLY HARMED THE APPLICANT. TO BE ADVISED + PUNITIVE DAMAGES AC. DEFENDANTS ORDERS FILED EIGHT DAYS LATE TO BE ADVISED + PUNITIVE DAMAGES AD. BOTH DEFENDANTS ORDERS OF 23RD MAY 2018 NOT FILED WITH THE REGISTRY / NOT ON THE PORTAL LIST OF DOCUMENTS FILED TO BE ADVISED + PUNITIVE DAMAGES

1. The Prentice defendants and the Solicitor defendants seek summary dismissal of the plaintiff's claim on the basis that the matters now raised for determination in the plaintiff's amended statement of claim have either already been determined in other proceedings, or are so closely related to matters dealt with in other proceedings that it was unreasonable for the plaintiff not to have raised them in those earlier proceedings; that is, by reliance on either issue estoppel or Anshun estoppel. The matter is put alternatively that the present proceedings are an abuse of process, and/or that no reasonable cause of action is disclosed.
2. I will first deal with the claims against the Prentice defendants.

Claim A - no building insurance

1. In the Family Law Proceedings the plaintiff claimed in her application of 8 February 2017: An urgent order be granted to compel the trustee to replenish the matrimonial pool by $250,000.00 from his personal indemnity insurance, to the trust account of this Court, as the trustee failed to provide adequate building insurance on the matrimonial home and as a result the matrimonial home was sold storm damaged and under true market value.
2. This claim was dismissed in the Family Law judgment at [185] where Judge Altobelli said that the plaintiff's claim for add-backs was not accepted.
3. In the 2019 Family Law Applications the plaintiff sought that the trustee be held liable as a result of failing to secure adequate building insurance on the matrimonial home. Judge Smith in the ASPECT Judgment dismissed this claim: see at [156] and [158].
4. In addition, in the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged against the trustee: (a) A failure to take out appropriate insurance in relation to the Property as a consequence of which damage that had occurred to the Property was not repaired, and the Trustee sold the Property in its unrepaired state for a price that was some $250,000 less than the price the Property would had (sic) been sold had the Trustee repaired it.
5. Judge Manousaridis said of this claim at [141] of the Plaintiff's Bankruptcy Judgment: [141] The applicant has not demonstrated there is a sufficient basis for this claim: the applicant was not the registered proprietor of the Property, and therefore has no standing to make any claim in relation to the Property; there is no evidence the applicant has any equitable interest in the Property, or any such interest which can give her any standing to make a claim in relation to the Property; and the applicant failed in the FL [Family Law] proceedings to show she was entitled to the transfer to her of any interest in the Property under s 79 of the FL Act. Even if the applicant could show a sufficient basis for claiming she has standing to make the claim for damages to the Property, there is not a sufficient basis for identifying the damage the Property sustained by the storms; whether such damage was capable of being covered by an appropriate policy of insurance, or whether the applicant suffered loss or damage in an amount equal to or exceeding the Judgment Amount. Finally, the claim for damages is not one the applicant could not have set up in the FL proceedings, being the action or proceeding in which the Costs Order was obtained. The applicant in fact made such claim in the application in a case the applicant filed in February 2017.

Claims B and C - loss of matrimonial home

1. It was determined by Judge Manousaridis on 19 May 2015 in the Possession Judgment that the trustee was entitled to possession of the matrimonial home. On 19 May 2016 his Honour made orders entitling the trustee to all of the remaining proceeds except for the $25,000.00 payable to the plaintiff.
2. In the Family Law Proceedings, the plaintiff challenged the trustee's entitlement to the sale proceeds of the matrimonial property on a number of occasions. The claims were dismissed. In Callas v Callas [2016] FCCA 1247 Judge Altobelli said at [23]: However, there is no basis for denying the Trustee the remaining funds so that he can administer the estate as he is bound to do under the Bankruptcy Act. Based on the evidence before the Court, it seems that there are other assets that need to be dealt with for purposes of the administration as well. Indeed, it is those other assets that might provide potentially the source of any payment for the Wife under the Family Law Act, as well as the source of payment of any other claims, including the costs of administration and creditors.
3. In the 2019 Family Law Applications, the plaintiff sought an order that the trustee be held liable for the disposal of the matrimonial home. The application was rejected by Judge Smith in the ASPECT Judgment at [205], [207], [214] and [216].
4. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged: (b) The Trustee arranged to record himself as the sole registered proprietor of the Property… (c) The Trustee's obtaining possession of the Property with the consequence of denying the applicant of living rent free, and being denied the benefit of rent that was being paid by other occupants.
5. In the Plaintiff's Bankruptcy Judgment, Judge Manourasidis said at [142]: The applicant has not demonstrated there is a sufficient basis for these claims: the applicant was not the registered proprietor of the Property, and therefore has no standing to make any claim in relation to the Property; …

Claim D - collusion of trustee and Westpac

1. In the 2019 Family Law Applications, the plaintiff alleged collusive behaviour between the trustee and Westpac Banking Corporation which was said to have led to the "diminishment" of the matrimonial pool of assets. The claim was rejected by Judge Smith in the ASPECT Judgment at [199] and [201].
2. In the Plaintiff's Bankruptcy proceedings, the plaintiff alleged: (d) The Trustee colluded with the mortgage bank (sic) to prevent the applicant and her Husband from buying the Property
3. In the Plaintiff's Bankruptcy Judgment, Judge Manousaridis said at [143]: This claim has no substance. It is unsupported by any particulars that could conceivably support a conspiracy between the trustee and Westpac. Further, the claim is not one the applicant could not have set up in the FL proceeding.

Claim E - inadequate time to collect belongings

1. The plaintiff appeared in the proceedings where orders were made in relation to the matrimonial home and the time by which vacant possession had to be given: see Prentice v Constantinidis (No 3) at [7] and [17].
2. Further, that claim was heard and dismissed adversely to the plaintiff in the Family Law Judgment by Judge Altobelli in Callas v Callas [2018] FCCA 4: [202] The Court accepts that the totality of the evidence establishes that whatever personal property of the Applicant Wife was located in the Property B property was made available for her collection, but she did not. Judge Manousaridis empowered the Trustee to remove the goods in question. These goods were stored in a storage unit. The storage unit was transferred to the Applicant Wife. At one stage in her evidence, the Applicant Wife in fact referred to the contents of the same, namely items in garbage bags. [203] When asked whether she had inspected the same to find out whether some of the items that she alleges were missing were in fact there, she explained that she had not. The Court agrees with the Trustee's submission. It is more likely than not that the alleged missing items are still in the possession and control of the Applicant Wife. She had no reason to complain about the Trustee's conduct in this regard.
3. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged: (e) The plaintiff was not given reasonable to empty the contents of the Property.
4. In the Plaintiff's Bankruptcy Judgment, Judge Manousaridis said at [144]: The claim has no substance…. [T]he Trustee commenced an application for possession of the Property on 9 October 2014 and I made an order for possession on 19 May 2015. Further, Claim 5 [this claim] is not a claim the applicant could not have set up in the FL proceeding, …

CLAIMS F, G, H, I, J and K - loss of goods and chattels

1. I have already made reference to what Judge Altobelli said in the Family Law Judgment at [202]-[203] (see [89] above).
2. In the 2019 Family Law Applications, the plaintiff sought four orders in relation to the loss and damage of her personal property from the matrimonial home. All of these claims were rejected by Judge Smith in the ASPECT Judgment at [144] to [155].
3. Pursuant to Judge Manousaridis's orders of 19 May 2015, the trustee was entitled to take possession of the matrimonial home and remove and dispose of all chattels and goods within the property which had not vested in the trustee. Under the orders, George was to remove from the matrimonial home by 2 June 2015 all vehicles, rubbish and chattels which had not vested in the trustee. In the event that he failed to do so, the trustee was empowered to remove and dispose of those objects as he saw fit.
4. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged: (f) Various contents belonging to the applicant went missing in the course of the Trustee gaining possession of the Property.
5. In the Plaintiff's Bankruptcy Judgment, Judge Manousaridis said at [145]: These claims have no substance. They do not go beyond assertion. The particular goods and items, and their values, are not identified with any precision;…Claims 6-11 [these claims] are not claims the applicant could not have set up in the FL proceedings, being the action or proceeding in which the Costs Order was obtained.

CLAIMS L, M and N - manner and sale of the matrimonial home

1. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged: (g) The Trustee failed to adequately list or describe the Property for sale before the Trustee sold it.
2. In the Plaintiff's Bankruptcy Judgment, Judge Manousaridis said at [146]: The applicant has not demonstrated there is a sufficient basis for this claim: the applicant was not the registered proprietor of the Property, and therefore has no standing to make any claim in relation to the manner in which the trustee sold the Property.

Claim O - plaintiff locked out of auction

1. In the 2019 Family Law Applications, the plaintiff sought an order for the trustee to be financially responsible for having caused her to be denied access to the public auction of the matrimonial home. This claim was rejected by Judge Smith in the ASPECT Judgment at [62] and [164].
2. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged: (h) The trustee denied the applicant access to the auction of the property held on 7 November 2015.
3. In the Plaintiff's Bankruptcy Judgment, Judge Manousaridis said at [147]: This claim has no substance, even if it be assumed the applicant has an arguable case the trustee did prevent the applicant from attending the auction, and even if the trustee had no legal justification to prevent her from attending the auction. The reason is the applicant has not alleged in any event no evidence that had the applicant attended, the property could have been sold at a higher price by, for example, the applicant herself bidding for the purchase of the property.

Claim P - sabotage of mediation

1. In the 2019 Family Law Applications, the plaintiff sought costs orders against the trustee for having sabotaged the mediation. The claims were rejected by Judge Smith in the ASPECT Judgment at [174] to [179].
2. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged that the trustee sabotaged a mediation in October 2016: see the judgment of Judge Manousaridis at [40]. His Honour held at [148] that the claim had no substance and that it was unsupported by any particulars that could conceivably support an allegation of sabotage.
3. The allegation was also raised in an Application in a Case filed by the plaintiff on 8 February 2017 in the Family Law Proceedings. The claim was dismissed. It was not a surprise that the claim was rejected and dismissed because the unreasonable conduct of a party at a mediation cannot give rise to a cause of action against the party.

Claim Q - costs after mediation

1. In the Plaintiff's Bankruptcy Proceedings, the plaintiff claimed ongoing costs following the mediation of $700,000.00, said to have been incurred by the trustee in continuing with the litigation in the Family Law Proceedings: see the Plaintiff's Bankruptcy Judgment at [73]. Judge Manousaridis held at [149]: This claim has no substance. The applicant does not provide any particulars or evidence that is reasonably capable of supporting a finding that the trustee acted unreasonably in the FL proceeding.
2. Further, a party does not have a cause of action against another party because subsequent costs were incurred following the failure of a mediation. A party might be entitled to indemnity costs for some of those costs if appropriate steps are taken such as making a formal Offer of Compromise under the UCPR or by serving a Calderbank offer.

Claims R, S, T, U and V - financial loss from sale of matrimonial home

1. These claims are all connected with the sale of the matrimonial home. Any loss which the plaintiff has suffered (and which is not identified) flows from the orders of the Federal Circuit Court that gave possession of the matrimonial home to the trustee and directed how the proceeds of sale were to be dealt with. The trustee acted in accordance with the orders of the Court. The plaintiff does not have any cause of action in respect of these claims.
2. If the plaintiff had any rights in respect of the orders, it would have been a right of appeal. However, as indicated earlier at [17], the plaintiff lost her right of appeal and was unsuccessful in having it reinstated.
3. In any event, in the 2019 Family Law Applications, the plaintiff sought a number of orders imposing liability on the trustee for the loss of her right to the matrimonial home and to derive income from it. All of these claims were rejected by Judge Smith in the ASPECT Judgment at [202] to [213].

Claim W - malicious intent of trustee

1. In the 2019 Family Law Applications, the plaintiff sought an order that the trustee was financially responsible for having caused the auction of the home "with malicious intent" to the plaintiff. This claim was rejected by Judge Smith in the ASPECT Judgment at [165] to ]167].
2. In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged that the trustee had malicious intent towards her: see at [79] of the Plaintiff's Bankruptcy Judgment. Judge Manousaridis held that the claim had no substance and that no particulars or evidence were provided that was capable of supporting such an allegation: see at [150].
3. In any event, no cause of action is disclosed.

Claim X - false submission to court

1. The plaintiff alleges that the false submission was made in May 2016 to the Federal Circuit Court. This was the hearing where the plaintiff was seeking access to the $25,000 retained from the sale of the matrimonial home.
2. In the 2019 Family Law Applications, the plaintiff claimed: An order for the cancellation of orders by Judge Altobelli in May/June 2016 following a false submission in May 2016 by the second respondent [the trustee], allowing the second respondent access to all surplus funds from the sale of the matrimonial home. This claim was rejected by Judge Smith in the ASPECT Judgment at [168] to [170].
3. This claim was also made in the Plaintiff's Bankruptcy Proceedings: see at [80]. Judge Manousaridis held at [151] that the claim had no substance, and that the applicant did not identify the submissions the trustee made which were said to be false.
4. In any event, if a party wishes to take some issue with submissions that are made and which produce an adverse result, the party would need either to seek that the judgment be set aside based on fraud, or to appeal against the judgment. No such application or appeal was brought by the applicant.

Claims Y and Z - funds for the plaintiff's legal representation

1. In the 2019 Family Law Applications, the plaintiff sought orders for funds for legal representation by her. These claims were rejected by Judge Smith in the ASPECT Judgment at [180] to [186].
2. Both of these claims were made in the Plaintiff's Bankruptcy Proceedings: see at [81] and [82] of the Plaintiff's Bankruptcy Judgment.
3. Judge Manousaridis said at [152]: These claims have no substance. The applicant does not identify acts or omissions of the trustee that caused the applicant the loss of adequate representation. More particularly, the claim ignores the order Judge Altobelli made on 21 July 2016 with the trustee's consent, granting the applicant liberty to access $25,000.00 from the proceeds of sale of the property for the sole purpose of the applicant obtaining legal assistance.
4. Further, it is difficult to conceive what possible cause of action the plaintiff has against the trustee in relation to these complaints.

Claim AA - sale of OEB property

1. The plaintiff first raised this matter in the Family Law Proceedings. Judge Altobelli said at [76]: There was no basis to order the trustee to remove a caveat on the property at Erowal Bay, a caveat that he was well entitled to place on the title as trustee in bankruptcy. Again, it seemed to the Court that the applicant's concern was that she had not been given information to her satisfaction about the administration of the bankrupt estate, including how the sale proceeds were disposed of. This was, in effect, seek to revisit an earlier ruling of the Court. The Court made the decision in question on 19 May 2016. No appeal was lodged in relation to that decision, or any other decision made to date in this matter.
2. In the 2019 Family Law Applications, the plaintiff sought an order that the trustee be held responsible for malicious intent to harm her by way of selling the OEB property and putting a caveat on it. This was, in effect, a re-agitation of what had been twice determined against the plaintiff. This claim was rejected by Judge Smith in the ASPECT Judgment at [220] to [222].
3. In any event, on 10 March 2020 Judge Smith made the following order: 2. The second respondent [the trustee] is authorised and entitled to proceed with the sale of the Old Erowal Bay property by way of private treaty with the sale price to be not less than $330,000.00.
4. This claim was also made in the Plaintiff's Bankruptcy Proceedings: see at [83] of the Plaintiff's Bankruptcy Judgment. Judge Manousaridis held at [153] that the claim had no substance.

Claim AB - defendants acted with malicious intent

1. In the first place, this claim appears from the pleading in the amended statement of claim at par 81 to repeat claims B, C, D, E, W, Y and Z.
2. The same claim was made in the Plaintiff's Bankruptcy Proceedings although it was expressed as the trustee having "maliciously and with intent financially raped the applicant" rather that "harmed" the applicant. Both terms are similarly imprecise and, in substance, the same claim was being made: see the Plaintiff's Bankruptcy Judgment at [84].
3. Judge Manousaridis held at [154] that this claim was based on the other claims on which the applicant relied. His Honour said that given that he had found the other claims did not have substance, neither did this claim. The same observations can be made here.

Claims AC and AD - filing of application by trustee for costs

1. Claim AC alleges that on 22 February 2018 Judge Altobelli ordered that the parties file within 21 days an application for costs, but that the trustee filed his application eight days after that time.
2. Claim AD alleges that the trustee's application had never been filed with the registry and was therefore fraudulent.
3. These matters were raised in the Plaintiff's Bankruptcy Proceedings. Judge Manousaridis said in the Plaintiff's Bankruptcy Judgment: [108] I will assume as true the applicant's assertion that the trustee purported to exercise the liberty granted by Judge Altobelli on 22 February 2018 by filing or otherwise making an application for costs on 23 March 2018. That is outside the 21 day period provided by Judge Altobelli. It is not reasonably arguable that the trustee's failure to apply for an order for costs within the 21 day period provided for by Judge Altobelli's orders barred the trustee from applying for costs. It is beyond argument that it would have been open to Judge Altobelli to consider the application for costs even though it may have been made more than 21 days after his Honour made the orders on 22 February 2018. Assuming the trustee did apply for costs outside the 21 day period, the fact that Judge Altobelli made the costs order raises the irresistible inference that his Honour would have been aware the trustee applied for costs more than 21 days after the orders of 22 February 2018 but nevertheless considered it appropriate to determine the application for costs. [109] The applicant, therefore, does not have any reasonable prospect of showing there are substantial questions for questioning whether the trustee was entitled to the costs order on the ground that the trustee applied or may have applied for an order for costs after the 21 day period provided for by Judge Altobelli's orders had expired.
4. In any event, this is an issue which could only be raised by an application to Judge Altobelli or by an appeal against his costs order. They are procedural irregularities. It provides no basis for any claim or cause of action against the trustee.

Conclusion

1. To the extent that the claims and issues were determined by Judge Altobelli in the Family Law Judgment or by Judge Smith in the ASPECT Judgment, issue estoppel prevents the claims from now being brought either against the trustee. To the extent that the other Prentice defendants do not get the benefit of an issue estoppel, the position is entirely governed by the extended estoppel referred to in Reichel, ABC v Haines and Habib v Radio 2UE. The issues were decided adversely to the plaintiff. Whether the matter is characterised as extended estoppel or as abuse of process the outcome is the same; the plaintiff may not raise these matters in the present proceedings.
2. It is also clear that all of the claims raised against the Prentice Defendants have been raised, dealt with and dismissed by Judge Manousaridis in the Plaintiff's Bankruptcy Proceedings. The plaintiff had raised these claims as a counter-claim, in order to set aside the bankruptcy notice served on her.
3. In Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 the High Court said (at 350): The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross-demand…. In Re Duncan; ex parte Modlin (1917) 17 SR (NSW) 152 Street J said that the debtor need not satisfy the Court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor…. Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case,… .
4. In Goss v Johnstone [2000] HCA 26; (2000) 74 ALJR 884 the High Court said at [39]: In Vogwell v Vogwell, [(1939) 11 ABC 83 at 85] Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, - whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate."
5. The determinations by Judge Manousaridis were not final determinations of the issue raised by the claims. What his Honour effectively determined was that the plaintiff did not show a prima facie case on any of the matters put forward. It cannot be said, therefore, that there is an issue estoppel arising from the Plaintiff's Bankruptcy Judgment. However, where the plaintiff could not even establish a prima facie case in respect of the claims, nor show that her claims were proper and reasonable to litigate, it constitutes an abuse of process for the plaintiff now to attempt to relitigate them in the present proceedings. All of the claims made in the present proceedings were before Judge Manousaridis in the Plaintiff's Bankruptcy Proceedings.

Claim against the 13th-15th defendants

1. The claim against these defendants is as follows: CLAIM AGAINST THE THIRTEENTH DEFENDANT 109. A. The thirteenth defendant is a solicitor in the employ of the first second third and fourth defendants who failed in her duty of care to advise the NSW Sutherland Sheriffs office to stop the eviction on the matrimonial home causing emotional distress upon the plaintiff. 110. B. The thirteenth defendant is a solicitor in the employ of the first second third and fourth defendants who failed in her duty of care to advise the NSW Sutherland Sheriffs office to stop the eviction on the matrimonial home causing trespass upon chattels. 111. C. The thirteenth defendant is a solicitor in the employ of the first second third and fourth defendants who failed in her duty of care to advise the NSW Sutherland Sheriffs office to stop the eviction on the matrimonial home causing trespass upon the property of the plaintiff. 112. D. The thirteenth defendant is a solicitor in the employ of the first second third and fourth defendants who failed in her duty of care to advise the NSW Sutherland Sheriffs office to stop the eviction on the matrimonial home causing financial damages to the plaintiff. The claim against the solicitor defendants all concern the sale of the matrimonial home. The possession judgment gave possession of the matrimonial home to the trustee. The plaintiff's rights in relation to her possession of that property were determined by that judgment. … CLAIM AGAINST THE FOURTEENTH DEFENDANT 113. A. The fourteenth defendant is a solicitor in the employ of the first second third and fourth defendants who as an officer of the court, failed in her duty of care to advise her client that the plaintiff, being an estranged spouse had certain guaranteed rights to property, failed to stop her clients from selling the property and was an integral part of the settlement on the property known as the matrimonial home. 114. A. As an officer of the court she should have objected to the sale of the property and not taken part as an accomplice in the unlawful sale and the settlement of the matrimonial home. … CLAIM AGAINST THE FIFTEENTH DEFENDANT 115. A. The fifteenth defendant is a firm of solicitors that charged $12,500.00 in 2015 to prepare a contract of sale and perform settlement duties to the matrimonial home known as 17 Woodford Rd Rockdale 2216. 116. A. At the time, other solicitors were charging an average of $600 to $1200 to prepare a contract of sale for a residential property and $600 to $1200 to perform settlement duties for similar residential properties. 117. A. The fifteenth defendant gouged five to ten times of costs to perform these duties, depriving the matrimonial pool of assets much needed funds to pay the creditors and the plaintiff.

Other matters

1. Since the claims against the Prentice Defendants and the Solicitor Defendants will be dismissed, the notice to produce served on those parties will be set aside.
2. I have already made reference to the fact that the 6th and 8th defendants are not legal persons in that there are no companies incorporated by those names. The proceedings against them must be dismissed.
3. Nobody is identified as being the 9th or 11th defendants. The proceedings must be dismissed against them.
4. The 12th defendant is said to be "AAA Recycling". If that entity is a business name, r 7.19 requires the person who owns the business name to be sued in their own name and not under any business name. If "AAA Recycling" is in fact a corporation, it will need to be correctly named.
5. It does not appear that the plaintiff has taken any steps to serve the tenth defendant with the amended statement of claim. The proceedings have been on foot against that defendant for almost 10 months. Rule 12.7 UCPR enables the Court to dismiss proceedings if they are not prosecuted with due despatch.
6. After making the other orders I have indicated will be made, the plaintiff will be given a short adjournment to enable her to decide what she intends to do about the 10th and 12th defendants.

Conclusion

1. For the above reasons, I make the following orders: 1. Dismiss the plaintiff's notice of motion filed 10 June 2022. 2. The plaintiff is to pay the costs of the first to fifth defendants, the seventh defendant, and the thirteenth to sixteenth defendants of that motion. 3. Dismiss the plaintiff's claim against the fifth to eighth defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The plaintiff is to pay the costs of the fifth and seventh defendants of their notice of motion filed 7 September 2022. 5. Dismiss the plaintiff's claim against the first to fourth defendants and the thirteenth to sixteenth defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 6. The plaintiff is to pay the costs of the first to fourth defendants and the thirteenth to sixteenth defendants of their notice of motion filed 29 June 2022. 7. Dismiss the plaintiff's claim against the ninth and eleventh defendants. 8. In respect of the tenth and twelfth defendants, if the plaintiff intends to proceed against these parties: 1. The plaintiff is to file an amended statement of claim correctly naming the twelfth defendant; and 2. Within 14 days, the plaintiff is to serve the amended statement of claim on each of the tenth and twelfth defendants, and is to inform them in writing that the proceedings will be listed on 17 March 2023. 1. Stand over the proceedings for mention to 17 March 2023 before me. 2. Any applications for special costs orders are to be filed and served by 13 March 2023 and made returnable before me for mention and directions on 17 March 2023.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2023