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

Supreme Court of NSW|2022-11-30|Before: Davies J

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

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.
In the meantime, relevant properties owned by them were as follows:
17 Woodford Road, Rockdale - in the name of George Constantinidis ("the matrimonial home")
46-48 The Coronado, Old Erowal Bay - owned as tenants in common by the plaintiff and George ("the OEB property");
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
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.
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.
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.
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.
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.
On 21 July 2016 Judge Altobelli ordered that the plaintiff could access the $25,000 to pay for her legal costs.
On 8 February 2017, in a further interim application, the plaintiff sought some 19 orders as follows: 1. An urgent order be granted to compel the second respondent (hereinafter referred to as "the trustee") to return all the surplus funds from the sale of the matrimonial home less discharged mortgages, to the trust account of this court. 2. An urgent order be granted to compel the trustee to return all costs, to the trust account of this court, paid from the sale of the matrimonial home as per the orders of Justice Henderson as the applicant was ready willing and able to purchase the matrimonial home yet the trustee chose to sell the matrimonial home. 3. An urgent order be granted to compel the trustee to replenish the matrimonial pool by $25,000.00 from his personal indemnity insurance, to the trust account of this court, as the trustee failed to inform the court that there was no money available in the matrimonial pool and failed to satisfy repeated requests from the applicants (sic) legal team to inform them of the state of the matrimonial pool before mediation. Mediation was frivolous and costly to both sides. 4. An urgent order be granted to compel the trustee to disclose the total costs of running mediation with the full knowledge that there were no funds left in the matrimonial pool. 5. 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. 6. An order be granted to the applicant to draw down a further $25,000.00 to cover legal fees for the three day hearing to be held in March 2017. 7. An order be granted to the applicant to have the three day hearing to be held in March 2017 vacated to a date that will allow the applicants (sic) legal team, fair time to prepare the case for the applicant. 8. An urgent order be granted to compel the trustee to pay the applicant $25,000.00 from his personal indemnity insurance for the applicants (sic) loss of furniture, white goods, electrical goods, appliances and kitchen equipment, when the applicant was not granted access to remove items. 9. An urgent order be granted to compel the trustee to raise the caveat on the property known as 46-48 The Coronado Old Erowal Bay. 10. An urgent order be granted to compel the trustee Mr. Max W. Prentice to provide all relevant disclosure with regard to trust account held by Jayne Edwards Realty regarding funds obtained as deposit totalling $130,000 dealing with the sale at auction of the matrimonial home. 11. In the alternative an order be granted directly to the office of Jayne Edwards Realty to provide all relevant disclosure with regard to trust account held by Jayne Edwards Realty regarding funds obtained as deposit totalling $ 130,000 dealing with the sale at auction of the matrimonial home. 12. An order to be granted for the trustee Mr. Max. W. Prentice to provide all relevant disclosure dealing with the trust account held by Robinson Lawyers on his behalf, dealing with funds obtained at the settlement of the matrimonial home on 14th January, 2016, separately to the trust account held by Jayne Edwards Realty dealing with the $130,000 deposit only. 13. An order to be granted for the trustee Mr. Max. W. Prentice to provide all relevant disclosure dealing with the trust account held by BPS Recovery on his behalf, dealing with funds obtained at the settlement of the matrimonial home on 14th January, 2016, separately to the trust account held by Jayne Edwards Realty dealing with the $130,000 deposit only. 14. An order be granted to compel that such trust account held by BPS RECOVERY be presented in its entirety commencing 14th January, 2016 to date. 15. An order be granted to compel the trustee to provide full disclosure of such trust account, inclusive of all trust account withdrawals and for such to be attached to any invoices or fee request, such fees or costs directly relate to, as per each withdrawal effected. 16. An order be granted to compel the trustee to provide full disclosure of the trustee's fees and costs and fees and costs dealing with his company BPS Recovery, to be presented independently of each other. 17. An order be granted to compel the trustee to provide full disclosure of the trustee's legal costs accrued by him, commencing in 4th March 2014 to date. 18. An order be granted preventing the trustee from further diminishing the matrimonial pool by way of fees and legal costs until such time that the court has viewed the male fide actions and the costs associated by such to date which has impacted the matrimonial pool by way of unnecessary costs and male fide actions directly undertaken by the trustee and other third parties instructed by his company, to cause such malicious conduct with the sole purpose to inflict, further costs to me personally, and therefore ultimately causing the diminishment of the matrimonial pool of assets, since September 2015 to date. 19. Any other orders as the court sees fit.
On 10 February 2017 the plaintiff filed another interim application seeking 25 orders, including that the trustee return any payment received in relation to the Family Law proceedings and return it to a trust fund to form part of the matrimonial pool, an order for the removal of the trustee's lawyers, and that those lawyers return any payment received "to the trust account of the Court".
On 22 February 2018 Judge Altobelli gave judgment in the Family Law Proceedings: Callas v Callas [2018] FCCA 4 ("the Family Law Judgment") ("Callas" was the name allocated to the judgment to anonymise the parties to the marriage). Judge Altobelli noted that the plaintiff conceded that George purchased the matrimonial home before their marriage, but that she made a financial contribution towards its conservation and/or improvement. His Honour assessed George's contribution to the property to be 60% and the plaintiff's to be 40%.
His Honour found that the ASPECT property (at Bryant St Rockdale) should form part of the matrimonial pool, and he made a declaration that that property was an asset of the plaintiff. His Honour found that the plaintiff and George contributed equally to the OEB property, and it was ordered to be transferred to the trustee. The parties were otherwise to retain their existing interests in the property of the marriage. His Honour held that there was no reason that the trustee or any other third party should have to return anything to the matrimonial pool relating to the matrimonial property.
The result was that the plaintiff was awarded 50% of the matrimonial pool. That consisted of the following: 1. OEB property: $325,000.00 2. ASPECT property: $350,000.00 3. Funds paid to plaintiff from matrimonial property: $25,000.00 TOTAL: $700,000.00
In reaching his decision, Judge Altobelli determined all the matters raised by the plaintiff's interim applications referred to at [6], [9] and [10] above.
On 15 May 2018 Judge Altobelli made a costs order against the plaintiff in favour of the trustee in a fixed sum of $62,772.50 for the trustee's disbursements for counsel's fees, and an order that the plaintiff pay the trustee's costs of the Family Law proceedings on an indemnity basis.
On 1 November 2018, ASPECT by its liquidator filed an application in the Family Law proceedings seeking an order that the declaration made by Judge Altobelli on 22 February 2018 that the ASPECT Property be treated as an asset of the plaintiff be vacated.
On 15 March 2019 the plaintiff filed six applications in the Family Law proceedings seeking a large number of orders that, in effect, sought to challenge all of the findings made by Judge Altobelli ("the 2019 Family Law Applications"). This was in circumstances where the plaintiff had appealed against Judge Altobelli's orders but, by her failure to take required procedural steps, had had her appeal dismissed. An application by the plaintiff to reinstate the appeal was refused: Constantinidis v Constantinidis [2018] Fam CAFC 124.
Judge Altobelli recused himself from dealing further with the proceedings because of the adverse credit findings he had made against the plaintiff. The proceedings were thereafter dealt with by Judge Smith.
On 12 September 2019 Judge Smith made orders that the trustee was entitled to sell the OEB property, the liquidator of ASPECT was permitted to sell the ASPECT Property, and the net proceeds of each sale were to be placed into the trust accounts of the lawyers for each, pending the determination of the plaintiff's 2019 Family Law Applications.
On 30 July 2020 the Trustee sold the OEB property, and $275,046.64 was paid into the trust account of the Trustee's lawyers.
All of the plaintiff's 2019 Family Law Applications were dismissed by Judge Smith in a judgment given on 28 February 2022: Constantinidis v Constantinidis [2022] FedCFamC2F 203 ("the ASPECT Judgment"). His Honour also authorised the amount held in the trustee's solicitors' trust account to be paid to the trustee for distribution in accordance with the Bankruptcy Act 1966 (Cth), and for the Liquidator of ASPECT to receive the money paid into his solicitor's trust account out of the proceeds of the sale of the ASPECT property.
No party has appealed against those orders.
In the meantime, on 23 July 2019 the Official Receiver issued a bankruptcy notice in favour of the trustee against the plaintiff. The bankruptcy notice was in respect of costs ordered by Judge Altobelli against the plaintiff in the Family Law proceedings. In the course of an application to set aside the bankruptcy notice ("the Plaintiff's Bankruptcy proceedings") the plaintiff said that she had a counter claim based on a number of matters which, as will be seen, coincide with the claims made in the present statement of claim.
On 24 June 2022, Judge Manousaridis delivered judgment in the Plaintiff's Bankruptcy proceedings. His Honour dismissed the plaintiff's applicationt: Constantinidis v Prentice as Trustee of the Bankrupt Estate of Constantinidis [2022] FedCFamC2G 503 ("the Plaintiff's Bankruptcy Judgment").

The present proceedings

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.
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]
I shall refer to the first to fourth defendants as the "Prentice defendants", and to the 13th to 15th defendants as the "Solicitor defendants".
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.
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.
By an amended notice of motion filed 7 September 2022 the fifth and seventh defendants seek an order that the proceedings against them be summarily dismissed, in the alternative that pars 42, 90 - 96, 99, 100, 102 and 103 of the amended statement of claim be struck out, and that two notices to produce, one undated and one dated 1 September 2022, served by the plaintiff be set aside.
The quantified damages in the amended statement of claim referable to the Prentice defendants total $7,226,000.00. However, there are a series of other heads of damages where the amount is "to be advised". In addition, punitive damages are claimed for a number of heads of damage. The quantified damages claimed against the fifth and seventh defendants total $15,000.00, but punitive damages are also claimed. The only claim made against the 13th and 14th defendants is punitive damages, and the claim against the 15th defendant is for $12,500.00.
I shall return later in this judgment to set out the claims against the Prentice defendants because of the length of them.
The claim against the fifth defendant (although it is pleaded as against the sixth and seventh defendants, seemingly in error) is that the fifth defendant acted as a real estate intermediary and unlawfully received commission from the sale of the matrimonial home, that she acted on behalf of the Prentice defendants contrary to the Bankruptcy Act 1966 (Cth), and that she unlawfully contracted a third party for the sale of the matrimonial home.
The pleading against the seventh defendant is that he unlawfully received commission contrary to the Bankruptcy Act, and unlawfully accepted a contract from the fifth and sixth defendants to sell the property and thereby unlawfully received a commission.
The claim against the 13th defendant is that, as a solicitor engaged by the first to fourth defendants, she failed in her duty of care to advise the Sheriff to stop the eviction from the matrimonial home and causing a trespass to the plaintiff's property.
The claim against the 14th defendant is that, as a solicitor engaged by the first to fourth defendants, she failed in her duty of care to advise her clients that the plaintiff as an estranged spouse had certain guaranteed rights to property, and failed to stop her clients from selling the property.
The claim against the 15th defendant is that, as a firm of solicitors, it charged $12,500.00 to prepare a contract of sale and perform the settlement of the sale of the home when other solicitors were charging much less to do so.

The Notices to Produce

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.
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 plaintiff also served another undated notice to produce in similar terms.

The course of the hearing

In accordance with directions made by the Registrar, all parties to the motions including the plaintiff had filed written submissions.
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.
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.
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.
I briefly discussed some procedural matters with Mr Golledge SC for the Prentice defendants and the Solicitor defendants, and Ms Perry for the fifth and seventh defendants. I then took a short adjournment.
I subsequently received from Reporting Services Branch a brief transcript of what occurred in my absence as follows: "UNIDENTIFIED PERSON: My instructions are I pack up the paperwork and she will not be attending. She will be taking alternative action. It is her choice. ASSOCIATE: So will you be addressing his Honour or… UNIDENTIFIED PERSON: No, I won't. I have been told not to say anything. ASSOCIATE: All right. UNIDENTIFIED PERSON: I can't go against her wishes. UNIDENTIFIED PERSON LEFT COURTROOM ASSOCIATE: If I could just let everybody know I have spoken with Ms Gemma Constantinidis and the gentleman accompanying her, letting them both know that the hearing will be proceeding without them and they did hear that and acknowledged it and said "knock yourselves out". So that's the direct quote. PERRY: I have also put them on notice that I am asking for that to occur."
When I returned to Court (by that stage not having the transcript from Reporting Services Branch), I had noted in the transcript that the plaintiff had not returned to Court, and that I had asked my staff to convey to her that if she did not return to Court the matter would proceed in her absence. I indicated that although I could dismiss her notice of motion for non-appearance, I thought what I would do in this judgment was to consider in substance her notice of motion. The hearing then proceeded without the plaintiff being present.

Plaintiff's notice of motion

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.
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, …
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.
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.
Neither the statement of claim nor the amended statement of claim was personally served. In respect of the third to 16th defendants, the amended statement of claim was an originating process. There is no evidence that any of the defendants agreed to accept service by email. A party is not required to file a defence unless they have been properly served with the originating process. No party had been properly served.
No doubt, because the amended statement of claim had come to the attention of the Prentice defendants and the Solicitor defendants, they appeared when the matter was listed before the Registrar on 25 May 2022. The Registrar directed that the defendants were to file and serve any notice of motion seeking to strike out the proceedings or for summary dismissal by 22 June 2022. In the circumstances, there was no obligation on those defendants to file a defence. The proceedings were being case-managed, and no defence was required to be filed.
Rule 14.3 UCPR requires a defence to be filed withing 28 days after service. The fifth and seventh defendants filed notices of appearance on 29 June 2022. They did not need to do so. They filed defences the following day. Where a party voluntarily appears, although not properly served with process, time begins to run from when they submit to the Court. Where defences were filed within one day of their appearance, the fifth and seventh defendants were never in default. In any event, since they have filed defences, if they had been in default, they would no longer be in default: r 16.2(2)(c).
As far as the remaining defendants are concerned, in respect of all those that are legal persons, none has been properly served in accordance with the UCPR and, in that way, none is in default.
The plaintiff's notice of motion for default judgment is without merit and should be dismissed.

Legal principles

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.
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.
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].
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.
As far as Anshun estoppel is concerned, in Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44, the joint judgment of French CJ, Kiefel, Keane and Nettle JJ said: [55] The appellant's submission, that an Anshun estoppel is made out by reference to similarities between the matters raised in the two proceedings, regardless of whether the matters sought to be raised in the present proceedings could practicably have been raised in the group proceeding, is contrary to authority on two levels. [56] An Anshun estoppel is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun that there could be no estoppel "unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it" (emphasis added). It was further explained: "Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
Even if there is no issue estoppel, and the matter cannot be brought within the principles with which Anshun estoppel is concerned, an abuse of process might be demonstrated from the principle identified in Reichel v McGrath (1889) 14 App Cas 665, and approved in Walton v Gardiner (1993) 177 CLR 378, where the joint judgment of Mason CJ, Deane and Dawson JJ said (at 393): Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate a new a case which has already been disposed of by earlier proceedings.
The circumstances of when an abuse occurs appears in the judgment of McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231: [89] There can be an abuse of process where, even though a plea of res judicata, cause of action or issue estoppel is not available "if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again …": Reichel v Magrath (1889) 14 App Cas 665 (at 668) per Lord Halsbury LC; Walton v Gardiner (at 392 - 393) per Mason CJ, Deane and Dawson JJ; Rogers v R (at 286 - 287) per McHugh J (in a dissenting judgment) referred to with apparent approval in Batistatos (at [15]) per Gleeson CJ, Gummow, Hayne and Crennan JJ; PNJ (at [3]) per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (at 410) per Hunt CJ at CL. This form of abuse of process can be invoked both by parties to the original proceedings, as well as non-parties: State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep ¶81-423 per Giles CJ Comm D (as his Honour then was); Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 per Handley JA (Mason P and Heydon JA agreeing). It may be a form of Anshun estoppel, the underlying premise being that success on the reformulated case would contradict the outcome, or determination of an issue, in earlier proceedings. [90] It is unnecessary to rehearse the facts of Reichel, which are well known. Suffice it to say that the erstwhile vicar of Sparsholt's defence, setting up the same claim he had unsuccessfully made against the Bishop of Oxford, was struck out on the basis, according to the Lord Halsbury LC (at 668), that it would be: "… a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. … it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action." [91] In State Bank of NSW Ltd v Stenhouse Ltd, Giles CJ Comm D considered the circumstances in which there may be an abuse of process warranting a stay where a party sought to re-litigate an issue decided between himself and a third party. He traced the principle to Reichel, and, after considering the authorities and observing that whether there was "an abuse of process because a party seeks to re-litigate an issue already decided depend[ed] very much on the particular circumstances", said (at 64,089): "The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; … (f) the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process." (Emphasis added) His Honour's identification of the relevant considerations was cited with approval by Handley JA (Mason P and Heydon JA agreeing) in Rippon (at [32]). Handley JA added (at [33]) that "[t]hese considerations, as Heydon JA pointed out in R v O'Halloran (2000) 159 FLR 260 at 293, 'turn on precise identification of the issues'." In R v O'Halloran , in the passage to which Handley JA referred, Heydon JA was commenting on the first four of Giles CJ Comm D's factors. [92] The considerations identified in Stenhouse are non-exhaustive, but indicate the nature of the Court's task in such cases: Spalla (at [70]). (emphasis in original)

Notice of motion by fifth and seventh defendants

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
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.
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.
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.
In the course of his judgment of 24 June 2022 dealing with those counter-claims (Constantinidis v Prentice as Trustee of the Bankrupt Estate of Constantinidis [2022] FedCFamC2G 503 ("the Plaintiff's Bankruptcy Judgment"), Judge Manousaridis said at [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 proceeding (the Family Law proceedings before Judge Altibelli] to show that she was entitled to the transfer to her of any interest in the Property under s 79 of the FL Act.
There is no basis for the assertions in the statement of claim that the fifth and seventh defendants acted unlawfully as real estate agents, nor that they unlawfully received commission as a result of the sale of the matrimonial home. The fifth and seventh defendants owed no duty at law or in equity to the plaintiff.
The cases pleaded against the fifth and seventh defendants are hopeless and cannot possibly succeed. In the circumstances, the fifth and seventh defendants are entitled to an order that the proceedings against them be summarily dismissed. It follows, that notices to produce issued by the plaintiff in those proceedings must be set aside.
The evidence discloses that there are no companies by the names of the sixth and eighth defendants. In any event, the case pleaded against the sixth and eighth defendants is identical to that pleaded against the fifth and seventh defendants. In the circumstances, the claims against the sixth and eighth defendants should be summarily dismissed.

Notice of motion by the Prentice defendants and the Solicitor defendants

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

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.
I will first deal with the claims against the Prentice defendants.

Claim A - no building insurance

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.
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.
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].
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.
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

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.
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.
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].
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.
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

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].
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
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

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].
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.
In the Plaintiff's Bankruptcy Proceedings, the plaintiff alleged: (e) The plaintiff was not given reasonable to empty the contents of the Property.
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

I have already made reference to what Judge Altobelli said in the Family Law Judgment at [202]-[203] (see [89] above).
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].
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.
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.
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

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.
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

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].
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.
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

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].
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.
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

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.
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

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.
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.
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

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].
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].
In any event, no cause of action is disclosed.

Claim X - false submission to court

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.
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].
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.
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

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].
Both of these claims were made in the Plaintiff's Bankruptcy Proceedings: see at [81] and [82] of the Plaintiff's Bankruptcy Judgment.
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.
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

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.
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].
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.
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

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.
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].
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

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.
Claim AD alleges that the trustee's application had never been filed with the registry and was therefore fraudulent.
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.
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

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.
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.
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,… .
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."
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.
No cause of action is, in any event, available in respect of claims O, P, Q, W, X, Y, Z, AB, AC and AD.
Claims A, B, C, D, E, F, G, H, I, J, K, l, M, N, R, S, T, U, V and AA all derive from the orders of the Federal Circuit Court adjusting property right under the Family Law Act 1975 (Cth) or authorising actions on behalf of the trustee in George's bankruptcy. This is chiefly because, as a result of the judgments, the plaintiff had no right to the matrimonial home.
The claims pleaded against the Prentice Defendants are either hopeless and cannot possibly succeed, or the plaintiff is prevented from making those claims by reason of issue estoppel. Alternatively, the claims constitute an abuse of process.

Claim against the 13th-15th defendants

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.
The Solicitor Defendants acted for the trustee. They did not act for the plaintiff and they owed her no duty of care. Ordinarily, solicitors do not owe a duty of care to persons who are not their clients: Hill v Van Erp (1997) 188 CLR 159 at 167 and 187. The exceptions are limited, and where there is contentious litigation, a solicitor for one party does not owe a duty to the other party, not the least reason for which is that it would conflict with the solicitor's duty to his or her own client: see also Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [53].
No basis is shown in the evidence or pleading to justify any attempt to prevent the Sheriff from executing the writ of possession. An order had been made for possession in favour of the trustee. The sheriff was entitled to aid the trustee in effecting that order.
The 13th and 14th defendants did not owe the duties of care alleged in pars 109 to 113 of the amended statement of claim.
As to the claim against the 15th defendant, the fact that other solicitors were charging lower fees (if proved) does not give rise to a cause of action against this defendant. In any event, this was a claim made by the plaintiff in the Family Law Proceedings. Judge Altobelli said at [181]: Even what appeared to the Court as being excessive conveyancing fees on the sale of the Rockdale property [the matrimonial home] were adequately explained by the unusual but necessary lengths taken by the Trustee and the lawyer on the sale to ensure that the auction proceeded without undue complications.
The case as pleaded as against the Solicitor Defendants is hopeless, and should be dismissed.

Other matters

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.
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.
Nobody is identified as being the 9th or 11th defendants. The proceedings must be dismissed against them.
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.
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.
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

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

Uniform Civil Procedure Rules 2005(NSW)rr 3.7, 7.19, 10.20, 12.7, 13.4, 14.3, 14.28, 16.2

[2022] FedCFamC2F 203

At a glance

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Judgment (33 paragraphs)

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Cases Cited (25)

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