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[2026] NSWSC 571
Supreme Court of NSW
2026-05-22
Bennett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ghosh v Newton [2026] NSWSC 571
Hearing dates: 13 February 2026
Date of orders: 22 May 2026
Decision date: 22 May 2026
Jurisdiction: Equity
Before: Bennett J
Decision: (1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), paragraphs 146 to 150 of the plaintiff’s Amended Statement of Claim filed 13 August 2025 are struck out.
(2) The balance of the Notice of Motion filed on 13 November 2025 by the eighth and ninth defendants is dismissed.
(3) The costs of the Notice of Motion filed on 13 November 2025 be costs in the cause.
(4) The proceedings are listed before the Registrar in Equity on 4 June 2026.
Catchwords: CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Whether pleadings disclose a reasonable cause of action — No issue of principle
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Eighth and ninth defendants purchased residential property — Residential property was sold by first defendant, former trustee in bankruptcy of the plaintiff, in capacity as chargee — Plaintiff makes allegations against various defendants in relation to the circumstances of the sale of the property — Plaintiff alleges eighth and ninth defendants purchased the property in circumstances where they had knowledge or notice of the alleged conduct of other defendants — Whether plaintiff’s claim against eighth and ninth defendants should be summarily dismissed — No issue of principle
Original judgment source is linked above.
Legislation Cited: Bankruptcy Act 1966 (Cth) ss 128B, 128C, 139ZQ, 139ZR
Civil Procedure Act 2005 (NSW), ss 56-58
Real Property Act 1900 (NSW), ss 42, 43
Uniform Civil Procedure Act 2005 (NSW), rr 6.12, 13.4, 14.28
Cases Cited: Anderson v Anderson [2017] NSWCA 131
Assets Company Ltd v Mere Roihi [1905] AC 176
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Barnes v Addy (1874) LR 9 Ch App 244
Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70
Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2
Cihan (as trustees of The Cihan Family Trust) v Cihan Family Pty Ltd (2023) 21 BPR 44,537; [2023] NSWSC 1289
El-Kazzi v Kassoum [2009] NSWSC 99
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Frazer v Walker [1967] 1 AC 569
Harris v Asiago (No 2) [2026] NSWSC 549
In the matter of Brianine Pty Ltd [2022] NSWSC 203
Karimi v Rasouli [2026] NSWSC 203
LB v Secretary, NSW Department of Education (No 3) [2025] NSWSC 940
Li v Perpetual Holdings Pty Ltd [2025] NSWSC 175
Mangano v Bullen [2020] NSWCA 283
Martin v Gill [2025] NSWSC 385
Nadinic v Drinkwater [2017] NSWCA 114
PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216
Ryan v Brain [1994] 1 Qd R 681
Turner v O’Bryan-Turner (2022) 107 NSWLR 171; [2022] NSWCA 23
Vaughan v Attorney General of New South Wales [2025] NSWSC 1045
Westwood v Gulliver [2024] NSWSC 1323
Category: Procedural rulings
Parties: Ratna Ghosh (Plaintiff/Respondent)
Peter Leslie Frizell (Eighth Defendant/First Applicant)
Kaylene Louise Frizell (Ninth Defendant/Second Applicant)
Representation: Counsel:
RA Jedrzejczyk / M Kearney (Eighth and Ninth Defendants)
Solicitors:
Litigant in person (Plaintiff/Respondent)
Keypoint Law (Eighth and Ninth Defendants/Applicants)
File Number(s): 2024/00341572
Publication restriction: Nil
By Notice of Motion filed on 13 November 2025 (the Motion), Peter Leslie Frizell and Kaylene Louise Frizell, the applicants on the Motion and the eighth and ninth defendants in the substantive proceedings seek the following orders. First, the applicants seek an order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) striking out various parts of the Amended Statement of Claim filed on 13 August 2025 (ASOC) by the plaintiff, the respondent to the Motion. The strike out application concerns only those parts of the ASOC which relate to the applicants. Second, the applicants seek an order under r 13.4(1) of the UCPR that the substantive proceedings be summarily dismissed as against the applicants on the Motion.
For the balance of this judgment, I will refer to the parties by their role in the main proceedings.
I note that on 5 December 2025, Ball JA made an order removing the person who was originally named as the second plaintiff, who is apparently the plaintiff’s son, as a plaintiff. It is for that reason that despite the ASOC naming two plaintiffs, and referring to “the first plaintiff”, I will only refer to “the plaintiff” in these reasons for judgment.
These proceedings have what is by any account a lengthy history. It is unnecessary to traverse that history in these reasons for judgment. The following background should suffice to understand the real issues to be determined with respect to the Motion. Additionally, while the plaintiff vigorously disputes many aspects of the conduct of the defendants she has joined to these proceedings, what is set out below are factual matters which appear to not be in dispute.
The dispute the plaintiff has with the eighth and ninth defendants concerns a property located at XX XX Avenue, Charlestown in the State of New South Wales (the Charlestown Property). The eighth and ninth defendants are currently the registered proprietors of that property. The details of how that came to be are set out below.
Immediately prior to its sale, the Charlestown Property was previously owned by Ghoband Pty Ltd (Ghoband), the seventh defendant in these proceedings. Ghoband is a company whose sole director is the sixth defendant, Bhaskar Bandyopadhyay. The sixth defendant is also the former husband of the plaintiff: the two have separated. Ghoband’s sole shareholder is the plaintiff. It appears that Mr Bandyopadhyay has been the sole director of Ghoband since its incorporation in 2003; no evidence was put before me to say otherwise. I simply note the plaintiff in her ASOC suggests she should be “reinstated” as the director of the company (ASOC [89], but compare ASOC [112]). The seventh defendant is also the corporate trustee of the plaintiff’s superannuation fund.
I note that the plaintiff says that the property was “owned by the Ghoband Pty Ltd Superannuation Fund, a trust, and NOT by its trustee company” (capitalisation as per original) but on the evidence before me, it is clear that the seventh defendant was the registered proprietor of the property. The seventh defendant may have been holding the property in its capacity as trustee of the plaintiff’s superannuation fund of which she is a beneficiary, but that does not make it incorrect to say the corporate trustee of the fund “owned” the property. I do not need to determine finally whether the Charlestown Property formed part of the plaintiff’s superannuation fund – it is enough to note the plaintiff alleges that it was.
There was no evidence to show the plaintiff herself was ever the registered proprietor of the Charlestown Property. However given what happened in relation to this property once the plaintiff became bankrupt, it does appear the plaintiff may have owned the property herself at some point.
The plaintiff was made bankrupt in 2016. The first defendant was the trustee in bankruptcy of the plaintiff. I note the plaintiff was discharged from bankruptcy on 19 October 2024.
On 4 June 2020, a notice pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) was served by the first defendant on the seventh defendant, alleging that the seventh defendant had received money or property as a result of a transaction that was void as against the first defendant, as trustee of a bankrupt. This notice was not in evidence.
It is the giving of this notice which suggests the Charlestown Property was once in the plaintiff’s name. This is because the giving of a notice under s 139ZQ is predicated on there being a transaction which is void against a trustee in bankruptcy under ss 128B or 128C (s 139ZQ(c)(i)). Sections 128B of the Bankruptcy Act concerns transfers of property as a contribution to a superannuation fund by a person who later becomes bankrupt. If the notice was given in reliance on this provision, the transferor would necessarily have to have been the plaintiff. Section 128C is concerned with a situation where the contribution to the superannuation fund was by a third party. If this is what the notice was relying on, then I cannot as readily conclude the property was once in the plaintiff’s name. For the purposes of the Motion, no further consideration of this topic is necessary.
On 4 September 2020, a certificate was issued under s 139ZR(4) of the Bankruptcy Act certifying that the Charlestown Property was charged with the liability of the seventh defendant to make payment to the first defendant in his capacity as trustee of the bankrupt estate of the plaintiff.
On or about 26 October 2020, a Request was lodged by the first defendant with the NSW Land Registry Services seeking to register a charge on the Charlestown Property. The dealing was identified as XXXXXXXX. The text of the Request referred to both the notice under s 139ZQ and the certificate under s 139ZR. It appears the charge was subsequently registered.
There appear to then have been proceedings in the Federal Circuit and Family Court of Australia (Division 1) between, amongst other parties, the plaintiff, the first defendant, the sixth defendant, and the seventh defendant. I was not furnished with any substantive detail about that matter, but it is not necessary in any event for that detail to be recounted. What is most important is that the Federal Circuit and Family Court made orders on 13 February 2023 (the February 2023 Orders). A sealed copy of those orders was in evidence. In summary, the orders were as follows (the parties are identified by their role in these proceedings):
the plaintiff was ordered to give vacant possession of the Charlestown Property to the first defendant within 28 days of the orders;
the court ordered that a writ of possession in favour of the first defendant may be issued within 28 days of the orders being made;
the seventh defendant was ordered to execute all documents and do all things as are reasonably necessary to enable the first defendant to effect a sale of the property;
the plaintiff and two other persons, and the seventh defendant were ordered to remove caveats on the property within 7 days of the orders being made;
the court ordered that the sale of the Charlestown property:
(a) may be by auction, private treaty or tender; and (b) may be for cash or on such terms as the first defendant may think suitable “but subject to a reserve of 85% of the value of the land as determined by a registered valuer”;
(a) first, the proceeds were to be applied to pay any unpaid land tax or other encumbrances on the property to the extent no allowance is made in any contract for sale; (b) next, they were to be applied to satisfy the costs and expenses of the sale, including:
(i) remuneration for the first defendant in respect of acting on the sale; (ii) any legal, conveyancing, advertising and marketing costs and agent’s commission; (iii) any expenses incurred by the first defendant in facilitating the sale including bringing the property up to a condition which would facilitate the sale; and (iv) all rates, insurances and other outgoings;
(c) next, the proceeds were to be applied to satisfy the judgment debt in the first defendant’s favour; (d) next, the proceeds were to be applied to satisfy the costs order in the first defendant’s favour; (e) finally, any remainder was to be paid to the seventh defendant;
judgment for $853,875.00 plus interest was given in favour of the first defendant, against the seventh defendant, which was said to be the amount the seventh defendant was required to pay pursuant to the s 139ZQ notice referred to earlier in these reasons;
the seventh defendant was ordered to pay the first defendant’s costs of the proceedings; and
the seventh defendant was ordered to be entitled to an indemnity from the plaintiff for the costs it was required to pay the first defendant; and
various other procedural orders to facilitate the conduct of the substantive application in the Federal Circuit and Family Court.
The sealed copy of the February 2023 Orders record that they were made upon the application of all parties to those proceedings, which include the first, sixth and seventh defendant in these proceedings, except for the plaintiff. The Federal Circuit and Family Court did record that there was no appearance by or on behalf of the plaintiff (who was the first respondent in the Federal Circuit and Family Court).
On 3 August 2024, the eighth and ninth defendants purchased the Charlestown Property from the first defendant pursuant to a contract dated 3 August 2024, for $1.17 million. The full contract for sale was in evidence. The first defendant was identified on the covering page and the first page of the annexed special conditions as the chargee of a registered charge, namely, that referred to in [13] above. In special condition 11.2(a), the eighth and ninth defendants acknowledged that the first defendant entered into the contract for sale “as Chargee exercising its powers and authorities including without limitation its power of sale under the Charge”. Attached to the contract for sale were:
a sealed copy of the February 2023 Orders; and
a title search for the Charlestown Property dated 12 June 2024 – the only registered dealings in the second schedule were the charge in favour of the first defendant referred to in [13] above, and a caveat also in favour of the first defendant.
Settlement occurred on 16 September 2024. However, the eighth and ninth defendants did not become the registered proprietors of the Charlestown Property until 7 November 2024. It is not clear on the evidence why there was a gap between settlement and registration.
The plaintiff filed the original Statement of Claim in these proceedings on 16 September 2024. The eighth and ninth defendants were not originally joined as defendants. The seventh defendant was also not originally joined as a defendant.
On 30 July 2025, the plaintiff was ordered to file and serve any amended Statement of Claim.
The ASOC was filed on 13 August 2025, joining the seventh through ninth defendants.
The Motion was filed on 13 November 2025. On 17 November 2025, the Registrar in Equity put the Motion into the Applications List. On 5 December 2025, Ball JA (who was then sitting as the Acting Chief Judge in Equity, and the Applications List Judge) set the Motion down before me for half a day.
Prior to the hearing of the Motion, I received written submissions from both the plaintiff and the eighth and ninth defendants.
From the eighth and ninth defendants, I received written submissions which were filed on 24 November 2025 (8D+9D WS 1).
From the plaintiff, I received numerous sets of written submissions. Initially, two sets of written submissions were initially filed by the plaintiff which were directly related to the Motion, being:
written submissions filed 17 November 2025 (PWS 1); and
written submissions filed 3 December 2025 (PWS 2).
The solicitor for the eighth and ninth defendant emailed my Chambers at 1:37pm on 12 February 2026 to provide two authorities which were to be referred to in their oral submissions at the hearing. After this email, the plaintiff filed a further set of written submissions that afternoon at 3:10pm (PWS 3), which she described in an email to my Chambers as a “short, rushed submission, in response to [the solicitor for the eighth and ninth defendants’] late service of 2 authorities”. I note that one of the authorities referred to in the email sent at 1:37pm was already referred to in 8D+9D WS 1 (Ryan v Brain [1994] 1 Qd R 681). While the other of the two authorities attached to the email sent on behalf of the eighth and ninth defendants, Cihan (as trustees of The Cihan Family Trust) v Cihan Family Pty Ltd (2023) 21 BPR 44,537; [2023] NSWSC 1289, was not referred to in 8D+9D WS 1, the decision was ultimately only relied upon by the eighth and ninth defendants for McGrath J’s summary of the relevant law in relation to ss 42 and 43 of the Real Property Act 1900 (NSW) (Real Property Act).
The plaintiff then sent to my Chambers by email two further amended versions of PWS 3, which amended some of the Court Book references but did not otherwise alter or add to the arguments the plaintiff was making. For clarity, I have had regard to the most recent version of PWS 3 when making this decision, being the version which was emailed to my Chambers on 12 February 2026 at 4:49pm.
The hearing took place on 13 February 2026. The plaintiff appeared for herself, via audiovisual link. Mr R A Jedrzejczyk of counsel appeared with Ms M Kearney of counsel for the eighth and ninth defendants.
The plaintiff is not legally represented. However, as the plaintiff herself mentioned in oral submissions, she has previously conducted litigation in this Court, and has previously contested summary dismissal applications made in relation to claims by her (TR P37 L29-34). Her written submissions make clear she understands the distinction between law and evidence. I considered the plaintiff clearly had an understanding of practice and procedure such that it was unnecessary to give the usual explanation to a self-represented litigant as to Court processes at the commence of the hearing (cf Karimi v Rasouli [2026] NSWSC 203 at [16] and the authorities cited there). My impression did not change as the hearing of the Motion progressed: it was apparent that the plaintiff understood the structure of the hearing and was comfortable conducting litigation.
I also note that Mr C Davis, a solicitor, appeared for the first and third defendants in the substantive proceedings. Mr Davis stated that his appearance on 13 February was on the understanding that the matter was listed for directions alongside the hearing of the Motion. After I informed Mr Davis that no directions would be made in the substantive proceedings and all that would be occurring would be the hearing of the Motion, Mr Davis indicated that the parties for whom he appeared would not be playing an active role in the Motion. Mr Davis did make one comment during the hearing to which brief reference will be made later in these reasons in relation to potential filing of a Further Amended Statement of Claim.
At the hearing of the Motion, in the usual course, the parties to the Motion made oral submissions in support of their respective positions.
It should be noted that on numerous occasions the plaintiff sought to interrupt counsel for the eighth and ninth defendants when he was making his submissions. The plaintiff in her own oral submissions, or during her interruptions to the submissions of the eighth and ninth defendants, would often traverse factual matters that did not appear directly relevant to the Motion and would meander into making serious allegations against officers of the Court. That conduct is distinctly unsatisfactory and should not go unremarked.
During the oral submissions of the eighth and ninth defendants, I raised with the parties the case of Turner v O*’*Bryan-Turner (2022) 107 NSWLR 171; [2022] NSWCA 23 (Turner), which I had come across in my preparation for the hearing of the Motion and aspects of which appeared to bear directly on whether the plaintiff could claim the relief she sought against the eighth and ninth defendants. A physical copy of the case was handed to counsel present for the eighth and ninth defendants and I caused my Tipstaff to email the plaintiff a copy of the case, which she confirmed she received (TR P13 L33-P14 L25). I informed the parties that rather than deal with the potential implications of this case “on the hop” (TR P15 L3-12), I would direct the parties to put on further written submissions in response to this issue. Pursuant to those orders, the following further sets of submissions were provided on Turner:
written submissions by the eighth and ninth defendants filed on 5 March 2026 (8D+9D WS 2);
written submissions by the plaintiff filed on 13 March 2026 (PWS 4); and
written submissions by the eighth and ninth defendants in reply filed on 20 March 2026 (8D+9D WS 3).
The decision of Turner will be addressed in more substance below.
The plaintiff also put before me three other sets of written submissions, being:
written submissions filed 27 May 2025, in support of the filing of what was then the proposed ASOC;
written submissions filed 17 June 2025, “in reply to address anticipated arguments” from the first defendant in opposition to the filing of what was then the proposed ASOC; and
written submissions dated 24 July 2025, which do not seem to have been filed, in opposition to an application by the first defendant to have the claims against him summarily dismissed.
Just by the description of them, which I have derived from the way the plaintiff described them in the index to the Court Book which she prepared (about which more will be said below), the titles of the documents which the plaintiff gave, and the introductory paragraph to the submissions (in the case of the last two described documents), these submissions did not appear to me to be relevant to the Motion. Additionally, each of these sets of written submissions pre-date the ASOC, which was the pleading where the eighth and ninth defendants were named as parties for the first time and which in any event is the pleading to which the Motion relates.
The eighth and ninth defendants relied on the following evidence:
the affidavit of Stephen D’Emilio (the solicitor for the eighth and ninth defendants) sworn 13 November 2025 and Exhibit SD-1 to that affidavit; and
a copy of the contract for sale for the Charlestown Property, which was handed up and marked during the hearing.
The plaintiff relied upon the following five affidavits, including various annexures to each of those affidavits:
an affidavit sworn by the plaintiff on 8 January 2025;
an affidavit sworn by the plaintiff on 17 June 2025 (described as being in support of the setting aside of the transfer of the Charlestown Property);
another affidavit sworn by the plaintiff on 17 June 2025 (described as being “on conversion”);
an affidavit of service sworn by the plaintiff on 11 September 2025; and
an affidavit sworn by the plaintiff on 5 March 2026, which I had given the plaintiff leave to provide after the hearing.
The eighth and ninth defendants ultimately did not formally object to the evidence relied upon by the plaintiff. They did indicate that they had an “overriding submission” that the 8 January 2025 affidavit would be of no assistance to the Court (TR P4 L43-46). The eighth and ninth defendants also objected to parts of the affidavit evidence on the basis that they be treated as submissions not evidence. I suggested to counsel appearing for the eighth and ninth defendants, in the interests mainly of efficiency but also procedural fairness to the plaintiff, that the eighth and ninth defendants could make the submission where relevant that the affidavit evidence relied upon by the plaintiff did contain submissions, and I would take that point into account. The eighth and ninth defendants assented to that proposal (TR P5 L3-P6 L44).
I also note that there were two Court Books which were before me. One Court Book was prepared by the eighth and ninth defendants, spanning 72 pages excluding the index. That Court Book had only the Motion, the affidavit sworn by Mr D’Emilio and the exhibit to it, 8D+9D WS 1, PWS 1 and PWS 2.
The plaintiff provided a further two volume Court Book spanning 595 pages, excluding the index. That Court Book contained a copy of the ASOC, a copy of a proposed Further Amended Statement of Claim (proposed FASOC), two other Notices of Motion which were not before me, the plaintiff’s affidavit evidence (save for her most recent affidavit) including documents annexed to those affidavits, and the sets of written submissions listed at [34] above. The plaintiff’s affidavit of 5 March 2026, including its annexures, is 101 pages long.
The plaintiff’s evidence led on this application was quite voluminous. I have only had regard to those parts of the evidence to which my attention has been drawn.
For the reasons set out below, I have determined:
the eighth and ninth defendants’ Motion to strike out the impugned paragraphs of the ASOC should succeed; and
the eighth and ninth defendants are not entitled to summary judgment against the plaintiff.
There was no dispute as to the applicable principles.
Rules 13.4 and 14.28 of the UCPR provide as follows:
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
…
14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
“[70] The power to dismiss proceedings under this rule will only be exercised where the claim is so obviously untenable that it cannot possibly succeed: General Steels Industries v Commissioner of Railways NSW (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ). In Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ said the proceedings may be dismissed where there is a high degree of certainty about the ultimate outcome of the proceedings if they were allowed to go to trial in the ordinary way.
[71] In O’Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3], Macfarlan JA, with whom Beazley P agreed, identified the following relevant principles:
- the real issue is whether there is an underlying cause of action, not simply whether one is pleaded;
- demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and
- the power summarily to terminate proceedings must be exercised with exceptional caution.
[72] In considering whether the General Steels test is met, the Court is to have regard to the fact that the plaintiff is self-represented and must satisfy itself that there is no viable course of action of which the plaintiff will be deprived if the case is dismissed: Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 at 536 (Kirby P, with whom Hope and Samuels JJA agreed).
[73] The Court may find that a pleading discloses no reasonable cause of action merely by reference to the pleading itself and without regard to any evidence. If so, the Court must assume the truth of all the allegations made in the pleading: Agius v State of New South Wales [2001] NSWCA 371 at [24] (Priestley, Powell and Giles JJA).
[74] The Court may alternatively, determine the application having regard to evidence adduced by the parties: r 13.4(2). However, if the Court receives evidence on an application like this it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those ‘facts’: Bass v Permanent Trustee Co Limited [1999] HCA 9; 198 CLR 334 at [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).”
“[32] This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].
[33] The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:
… A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.”
An application to strike out a pleading on the ground it discloses no reasonable cause of action is essentially a summary dismissal application (In the matter of Brianine Pty Ltd [2022] NSWSC 203 at [39] (Williams J); Westwood at [79]). As the eighth and ninth defendants only sought to rely on r 14.28(1)(a), it is not necessary to set out any further procedural law in relation to the applications.
I also of course take into account the matters set out in ss 56-58 of the Civil Procedure Act 2005 (NSW).
It will also be relevant to refer to the Real Property Act, s 42 and the exceptions to indefeasibility given the nature of the claims made by the plaintiff against the eighth and ninth defendants. However, for reasons of efficiency and readability, I will refer to the relevant principles governing those matters as and when necessary below.
One preliminary issue must be addressed. As mentioned earlier, the plaintiff put before the Court the proposed FASOC. She orally sought leave to file that document (TR P16 L44-P17 L24).
As I said at the hearing, I do not consider it appropriate to deal with the plaintiff’s application to file the proposed FASOC. That is for the following reasons. First, I do not consider that in the context of just dealing with this Motion, it would be generally appropriate to deal with this application on the run. Second, and perhaps most importantly, I accept the eighth and ninth defendants’ submission that notice of the proposed filing ought to be given to all the parties affected by that pleading. Mr Davis, speaking for at least the first and third defendants, indicated that his clients would wish to be heard on the filing of the proposed FASOC and indicated in strong terms that its filing would likely be opposed. Additionally, as the eighth and ninth defendants point out, the proposed FASOC concerns other defendants. I do not know what changes the plaintiff may have made to other parts of the pleading against other defendants. They deserve to be heard. If the plaintiff wants to amend her pleading at this stage, then she should put on a notice of motion and follow the usual course for an interlocutory dispute.
In relation to the Motion, I did ask counsel for the eighth and ninth defendants about what I was to do with the proposed FASOC, which appeared at least to have recast the allegations against the eighth and ninth defendants at paragraphs 208 to 214 (TR P21 L23-28). The eighth and ninth defendants submitted that, formally, all they can fairly do is deal with the pleading that is on file and, secondly, the provision of further particulars would not cure the deficiencies in the ASOC, acknowledging they may cure deficiencies in any future pleading (TR P21 L49-P22 L8). In writing, in 8D+9D WS 2, the eighth and ninth defendants made submissions in relation to what it says are deficiencies in the proposed FASOC.
The strike out application is ultimately only in relation to the ASOC, and so I accept I should only look at the pleading to determine that aspect of the Motion. As for the summary dismissal application, and perhaps the question of whether the plaintiff should be granted leave to replead, I consider that I can look to the terms of the proposed FASOC (restricting myself to those paragraphs where the plaintiff pleads her case against the eighth and ninth defendants) effectively as an adjunct to her submissions to try and understand the case the plaintiff seeks to put.
The eighth and ninth defendants seek to strike out the following parts of the ASOC:
prayers for relief 4, 6, 11, 12, 22 to 24 and 28 to 35 (to the extent that they relate to the eighth and ninth defendants); and
paragraphs 146 to 150.
I will set out those parts of the ASOC to which the strike out application relates, keeping the formatting as per the original. Those paragraphs are voluminous but worth setting out to properly understand the eighth and ninth defendants’ application.
The relevant prayers for relief are as follows:
“RELIEF CLAIMED
…
B. Urgent and Procedural Relief
…
4. An order setting aside the transfer of title and sales contract for:
o XX XX Avenue, Charlestown NSW 2290,
on grounds of unconscionability, undue influence, and equitable fraud.
…
6. An order imposing a constructive trust over the property at XX XX Avenue, Charlestown NSW 2290 in favour of the First Plaintiff’s superannuation fund, to preserve it as part of her retirement assets.
…
11. An order that the First, Third, Fourth, Fifth, Eighth and Ninth Defendants serve the First Plaintiff with sworn affidavits disclosing the relationship of the Eighth and Ninth Defendants to the First, Third, Fourth and Fifth Defendants within 3 days of the order
12. An order that the Eighth and Ninth Defendants grant access to XX XX Ave Charlestown NSW 2290 by a valuer arranged by the First Plaintiff, and do not communicate with the valuer except through the First Plaintiff
…
C. Declaratory Relief under s 75 of the Supreme Court Act 1970 (NSW)
…
22. A declaration that the purchasers of XX XX Avenue Charlestown NSW 2290 are not bona fide purchasers for value without notice, and that any title acquired is subject to a constructive trust in favour of the First Plaintiff’s superannuation fund.
D. Final Relief Sought:
23. Set Aside Sale and Transfer of Title An order to set aside the sales contract and transfer of title for the property at XX XX Ave, Charlestown NSW 2290, on the grounds of unconscionability.
24. An order that any transfer or disposal of SMSF property made without the First Plaintiff’s knowledge or consent be declared void and reversed.
…
28. Equitable Compensation
An order for equitable compensation for the Plaintiffs’ loss caused by the Defendants’ wrongful actions.
29. Property Recovery Order
An order for the return of all property and assets unlawfully transferred, including superannuation fund property.
30. Restitution Orders
An order for restitution, to restore the Plaintiffs’ estate to its previous state before the breaches occurred.
31. Order for Return of Assets and Funds
An order for the return of all assets and funds unlawfully removed from the Plaintiffs’ estate
E. Costs and Damages Sought
32. An account of profits made by the Defendants arising from:
1. Breaches of fiduciary duty, trust, and statutory obligations;
2. Misappropriation of the Plaintiff’s property and funds;
3. Unlawful dealings with the Plaintiff’s superannuation assets.
33. An award of damages, including:
1. Compensatory damages for loss suffered by the Plaintiffs due to the Defendants’ conduct;
2. Aggravated damages to reflect the Defendants’ oppressive, high-handed, or malicious conduct, particularly their failure to remedy breaches or return property;
3. Exemplary (punitive) damages to deter similar conduct in future and mark the Court’s disapproval of serious breaches of trust and fiduciary duty.
34. Interest on damages and/or equitable compensation pursuant to s 100 of the Civil Procedure Act 2005 (NSW), calculated from the date of each actionable breach until the date of judgment.
35. Costs of the proceedings on an indemnity basis against the First to Ninth Defendants (or any subset of them), due to:
1. The serious misconduct and breaches alleged;
2. The Defendants’ failure to accept reasonable settlement offers and/or conduct which unreasonably prolonged proceedings;
3. Breaches of fiduciary duty, trust, and equitable obligations justifying departure from the ordinary rule on costs.”
“The Sixth Matter Complained Of: Purchasers Not Bona Fide Without Notice
146. The Eighth and Ninth Defendants are the first and second purchasers respectively of the property at XX XX Avenue, Charlestown NSW 2290 (“the Property”), which was at all material times an asset of the Ghoband Pty Ltd Superannuation Fund, a regulated superannuation fund exempt from the bankrupt’s estate under s 116(2)(d)(iii) of the Bankruptcy Act 1966 (Cth).
147. At the time of their respective purchases, the Eighth and Ninth Defendants had actual or constructive notice of:
(a) The First Plaintiff’s equitable and beneficial interest in the Property;
(b) The Property’s status as superannuation fund property held on trust for the First Plaintiff;
(c) The ongoing disputes and proceedings concerning the ownership of the Property, including caveats and administrative stops lodged on title.
148. The Eighth and Ninth Defendants were aware, or ought reasonably to have been aware, that the sale and transfer of the Property was undertaken:
(a) Without the lawful authority of the First Plaintiff;
(b) Without her knowledge or consent; and
(c) In breach of trust and fiduciary duties owed by the Sixth Defendant as trustee of the Ghoband Pty Ltd Superannuation Fund.
149. By reason of the above matters, the Eighth and Ninth Defendants are not bona fide purchasers for value without notice and took “the Property” subject to the First Plaintiff’s equitable and beneficial interests, because they were aware they purchased the property significantly below market price, and not for value.
150. The First Plaintiff claims relief including:
(a) A declaration that the Eighth and Ninth Defendants are not bona fide purchasers for value without notice;
(b) A declaration that any title acquired by the Eighth and Ninth Defendants is subject to a constructive trust in favour of the Ghoband Pty Ltd Superannuation Fund; and
(c) An order for the re-transfer of title to the Ghoband Pty Ltd Superannuation Fund or such other equitable relief as the Court deems just.”
The part of the application seeking to strike out the paragraphs of the ASOC set out above can be dealt with relatively quickly. The plaintiff’s written submissions at no point made any submission against the striking out of the relevant paragraphs of the ASOC.
Paragraphs 146-150 comprise the sum-total of the facts pleaded against the eighth and ninth defendants.
The eighth and ninth defendants submitted the pleading discloses no basis on which the plaintiff could assert she has some equitable interest in the Charlestown Property (TR P21 L9-12). Orally, the eighth and ninth defendants took me through each paragraph of the pleading they sought to strike out and submitted that the basis for the conclusions pleaded are not disclosed and not set out (TR P21 L6-12, P22 L12-P23 L9). They submitted that there is no reasonable cause of action disclosed, and that the pleadings do not set out any material facts capable of establishing an allegation that the eighth and ninth defendants acted in a manner that could lead to their title being impeached (TR P30 L32-39, P30 L50-P31 L19). I accept those submissions.
It can be accepted that the eighth and ninth defendants were purchasers of the Charlestown Property, as pleaded in paragraph 146. I do not consider it appropriate to consider the correctness of the next sentence, namely whether the property was an asset of a regulated superannuation fund and the consequence of that being so if its proven.
The critical paragraphs are paragraphs 147 and 148. Setting aside anything else, there are simply no facts pleaded to support what is pleaded in those paragraphs. I accept the submissions of the eighth and ninth defendants to this effect in 8D+9D WS 2 at [7]. It is accurate to say there are a “paucity” of facts pleaded against the eighth and ninth defendants (8D+9D WS 1 [24], 8D+9D WS 2 [7(a)]).
While an application to strike out a pleading on the ground it discloses no reasonable cause of action is essentially a summary dismissal application, where there are no facts pleaded to support a conclusion pleaded, it is clear that if the plaintiff were permitted to proceed to trial simply relying on the ASOC against the eighth and ninth defendants, her claim would fail. That is not to say that the plaintiff has no reasonable cause of action whatsoever: that issue is to be considered in the summary dismissal application. Rather, I am concluding that the ASOC itself is defective as against the eighth and ninth defendants given the total lack of facts pleaded against those parties by the plaintiff.
Paragraphs 146-150 should, for that reason alone, be struck out. I am of the view that I cannot make a separate order in relation to the prayers for relief. Part 14 of the UCPR, in which the Court’s power to strike out “pleadings” is concerned, appears to me to be dealing only with the paragraphs of a Statement of Claim alleging facts. The need to state the relief claimed in a Statement of Claim is a requirement also of a Summons and is found elsewhere in the UCPR, specifically r 6.12(1). Considering there is no ability to strike out a Summons (as opposed to summarily dismissing claims for relief contained in one), it is not evident I can “strike out” the paragraphs of the “relief claimed” portion of a Statement of Claim. I was not otherwise addressed on what power I had to strike out any part of the “relief claimed” portion of the Statement of Claim. For those reasons, I will not make the additional order sought by the eighth and ninth defendants to strike out particular prayers for relief. Even if I am wrong about that view, in any event, I consider the eighth and ninth defendants’ position is sufficiently protected as there is nothing to which the prayers for relief attach as far as the eighth and ninth defendants are concerned, given the parts of the ASOC related to them are being struck out.
Whether the plaintiff should be granted leave to replead will also depend on the outcome of the summary dismissal application. I will now turn to that application.
Part of the issue of dealing with the summary dismissal application is that the character of the plaintiff’s case against the eighth and ninth defendants has changed somewhat.
At PWS 1 [11], the plaintiff initially characterised her claim against the eighth and ninth defendants as one in “knowing receipt”, ie a claim under the first limb of Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy). She maintained that characterisation in PWS 2 at [31(b)] and in PWS 3 at [7]-[8], as well as in the proposed FASOC.
To the extent any proprietary relief is sought against the eighth and ninth defendants in relation to the Charlestown Property on this basis, that claim is not tenable. The High Court determined in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 (Farah Constructions) that a claim under the first limb of Barnes v Addy was not a personal equity that defeated the indefeasibility provisions of s 42(1) of the Real Property Act (Farah Constructions at [193]-[194], [196]; Turner at [101]). However, at present, the plaintiff is not precluded from seeking a personal remedy for a knowing receipt claim.
In PWS 4 at [6], the plaintiff subsequently submitted her claim:
“is not a ‘knowing receipt’ claim under the first limb of Barnes v Addy (1874) LR 9 Ch App 244. It is a claim of statutory fraud and accessory liability under the second limb.” (bolding as per original)
Section 42 of the Real Property Act does not prevent a proprietary remedy being available in a case brought under the second limb of Barnes v Addy for knowing assistance in a dishonest or fraudulent design, even if fraud under s 42 is not alleged (Turner at [119]-[121]). I do acknowledge that in PWS 2 at [43]-[44], the plaintiff says the facts raise “the distinct possibility of statutory fraud” under s 42 of the Real Property Act, but it is in PWS 4 the claim based on that provision is squarely put.
The plaintiff is not entirely explicit in what the “statutory fraud”, within the meaning of s 42 of the Real Property Act, alleged by plaintiff is in relation to the eighth and ninth defendants.
In PWS 4 at [3], the plaintiff says the transfer of the Charlestown Property was “infected by actual fraud and a fraud on the power of sale, which is brought home to Purchasers [the eighth and ninth defendants] via their knowledge of the ‘administrative stops’ and the fraudulent design of the First Defendant” (bolding in original).
Then, in PWS 4 at [8]-[10], the plaintiff submits that there was a dishonest and fraudulent design within the conduct of the first and fifth defendants and citing paragraphs of her most recent affidavit in support of the allegations of a dishonest and fraudulent design. I note the alleged breach of fiduciary duty which is referred to in the plaintiff’s submissions is one alleged to have been committed by the first and sixth defendants in relation to the sale of the Charlestown Property. The plaintiff also made further submissions alleging the first defendant committed a fraud in the manner in which he exercised his power of sale, specifically alleging that the February 2023 Orders were breached (PWS 4 at [14]-[19]).
The plaintiff then brings in the eighth and ninth defendants in this way:
In relation to her allegations of “actual fraud”, the plaintiff says that the alleged fraud was “brought home” to the eighth and ninth defendants because they had notice of the “administrative stops” on the title of the Charlestown Property which signalled the plaintiff’s prior equitable interest and ongoing dispute with the first defendant (PWS 4 [12]-[13]). I note that it is not exactly clear from the submissions who the actual fraud was alleged to be perpetrated by: I gather the plaintiff is alleging actual fraud by the first defendant.
In relation to her allegations of knowing assistance in a dishonest and fraudulent design, the plaintiff says that the eighth and ninth defendants had actual knowledge of the “administrative stops” on title, which ought to have put them on inquiry. The failure of the eighth and ninth defendants to make inquiries and proceed with their purchase, including “with knowledge of the significantly low sale price in breach of the Family Court mandated reserve of 85% of valuation, constitutes a ‘calculated abstention from inquiry’”.
The plaintiff’s case as most recently articulated can be summarised as follows:
upstream, one or several of the first, fifth and/or sixth defendants have committed either a “fraud” as used in s 42 of the Real Property Act, and/or a breach of fiduciary duties purportedly owed to the plaintiff;
downstream, the eighth and ninth defendants had knowledge of the “‘administrative stops’ registered on the title” of the Charlestown Property;
the knowledge of those “administrative stops” would have:
(a) given the eighth and ninth defendants notice of the plaintiff’s “prior equitable interest” or notice of “the ongoing dispute” the plaintiff was having with the first defendant, such that either the failure to make further inquiries itself constituted fraud, or the alleged fraud of others was “brought home” to the eighth and ninth defendants; or (b) indicated the facts to an honest and reasonable person that the sale of the Charlestown Property was occurring in breach of fiduciary duties, when taken with “knowledge of the significantly low sale price” purportedly in breach of the February 2023 Orders, such that the plaintiff should have made inquiries; and
accordingly, the eighth and ninth defendants have either committed fraud within the meaning of s 42 of the Real Property Act or have knowingly assisted in a dishonest and fraudulent design.
The plaintiff might still be pursuing a knowing receipt claim to perhaps seek a personal remedy against the eighth and ninth defendants as opposed to a proprietary remedy (the way the ASOC was drafted left open that possibility). As articulated in PWS 1, PWS 2, PWS 3, the ASOC and the proposed FASOC, the claim in knowing receipt has the same core grounds as the knowing assistance/s 42 fraud claim. That is, the plaintiff’s knowing receipt claim is:
there was an antecedent breach of trust or fiduciary duty by the first, fifth and/or sixth defendants;
the “administrative stops” or caveats said to have been registered on the title of the Charlestown Property gave the eighth and ninth defendant notice of either the plaintiff’s equitable interest in the Charlestown Property, or ongoing disputes in relation to the Charlestown Property; and
accordingly, the eighth and ninth defendants took the Charlestown Property with sufficient knowledge that it was being transferred to them in breach of trust or fiduciary duties.
I note that the plaintiff also submitted that equity “allows a beneficiary to follow trust property into the hands of third parties who are not bona fide purchasers for value without notice: Foskett v McKeown [2001] 1 AC 102” (PWS 4 [24], see also PWS 3 [18]). Throughout her written submissions, the plaintiff also frequently makes the submission that the eighth and ninth defendants were not bona fide purchasers without notice (see, eg, PWS 1 [11]-[12], PWS 2 [29], PWS 3 [18], PWS 4 [20]). It is not immediately apparent whether the plaintiff is asserting that she may be entitled to proprietary relief on the basis that she can follow the property purportedly sold in breach of trust (or fiduciary duty) into the hands of the eighth and ninth defendants. There seems to me to be a real question as to how those principles might be affected by s 42 of the Real Property Act. In any event, as the plaintiff’s own submissions appear to tacitly recognise, any claim for relief premised on following the Charlestown Property into the hands of the eighth and ninth defendants would be defeated if those defendants took title to the Charlestown Property without notice of the plaintiff’s interests.
42 Estate of registered proprietor paramount
(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except—
(a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,
(a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act,
(b) in the case of the omission or misdescription of any profit à prendre created in or existing upon any land,
(c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and
(d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected—
Provided that—
(i) The term for which the tenancy was created does not exceed three years, and
(ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years.
(iii) (Repealed)
…
43 Purchaser from registered proprietor not to be affected by notice
(1) Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice direct or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.
The starting point is that by reason of s 42(1) of the Real Property Act, the eighth and ninth defendants as registered proprietors, have indefeasible title to the Charlestown Property, subject only to other registered interests or those interests referred to in the paragraphs of s 42(1), which are not relevant to these proceedings. There are two exceptions to this starting position.
First is a case of fraud. For there to be fraud within s 42, there must be “actual fraud, personal dishonesty or moral turpitude”: Mangano v Bullen [2020] NSWCA 283 at [73] (Bathurst CJ, Meagher and Payne JJA agreeing) and the authorities there cited; Farah Constructions at [192] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). The fraud must be brought home to the registered proprietor*:* Nadinic v Drinkwater [2017] NSWCA 114 at [38] (Leeming JA, Beazley P and Sackville AJA agreeing) citing Assets Company Ltd v Mere Roihi [1905] AC 176 at 210 and Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2 at [32] and [100].
The comments of Ward J in *El-*Kazzi v Kassoum [2009] NSWSC 99 at [143]-[144] are also convenient to set out:
“[143] It is clear that mere registration of a document while having notice of an unregistered interest is not in itself statutory fraud (s 43, Oertel v Hordern (1902) 2 SR (NSW) Eq 37, and Mills v Stokman (1967) 116 CLR 61 at 78). In Stuart v Kingston (1923) 32 CLR 309 at 359, Starke J said:
Fraud will no longer be imputed to a proprietor registered under the [Act] unless some consciously dishonest act can be brought home to him.
[144] Young CJ in Eq in Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (2007) 64 ACSR 31 considered what was needed, in addition to knowledge of the existence of an unregistered interest, for conduct to amount to statutory fraud (or to give rise to a personal equity). His Honour noted, as a starting point, that there was fraud if the designed object of a transfer was to cheat a person out of a known existing right or if there was a deliberate and dishonest trick causing an interest not to be registered; that such an act was dishonest and the dishonesty could not be assumed solely to arise by reason of knowledge of an unregistered interest, referring to Waimiha Sawmilling Co v Waione Timber Co [1926] AC 101 at 106–7.”
What her Honour just said in the paragraphs just quoted reflects what the eighth and ninth defendants submitted at 8D+9D WS 1 at [16]-[17].
Second is what might be called the “in personam exception”: s 42 of the Real Property Act does not prevent a claim in personam founded in law or in equity against a registered proprietor: Anderson v Anderson [2017] NSWCA 131 at [50] (Leeming JA, Basten JA and Sackville AJA agreeing), citing Frazer v Walker [1967] 1 AC 569 at 585; Breskvar v Wall (1971) 126 CLR 376 at 384-385; [1971] HCA 70; Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 613, 637-638, 653-656; [1988] HCA 16. As White JA concluded in Turner, a claim under the second limb of Barnes v Addy is a claim where proprietary relief is available despite s 42.
Given the plaintiff’s claim, one way or another, is founded on what are commonly known as the two limbs of Barnes v Addy, it is also worth setting out what is required to succeed in such a claim. In Li v Perpetual Holdings Pty Ltd [2025] NSWSC 175 at [102]-[103] and [105]-[107], Peden J conveniently set out the relevant requirements. I am grateful to her Honour and reproduce those paragraphs here:
“Knowing receipt
[102] The relevant test for liability in knowing receipt under the first limb of Barnes v Addy (1874) LR 9 Ch App 244 was set out by Gleeson JA (Beazley P; Barrett JA agreeing) in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 (Simmons) at [88]:
(1) the existence of a trust, or a fiduciary duty, with respect to property (trust property);
(2) the misapplication of trust property by the trustee or fiduciary;
(3) the receipt of trust property by the third party;
(4) knowledge by the third party, at the time he or she received the relevant property, that it was trust property and that it was being misapplied or, in the case of breach by a fiduciary, that the trust property was transferred pursuant to a breach of fiduciary duty.
[103] For Jiawen to succeed in knowing receipt, he had to establish that the corporate defendants had, at the very least, knowledge of ‘circumstances which to an honest and reasonable person would have indicated’ that Jiawen’s money was trust property when received by the corporate defendants and was transferred to them in breach of trust: Blue Mirror Pty Ltd v Tan & Tan Australia Pty Ltd (in liq*)* [2024] NSWCA 253 at [30] (Leeming JA; Ward P and Mitchelmore JA agreeing); Simmons at [88]-[92].
…
Knowing assistance
[105] To succeed, Jiawen must have established that there was a ‘dishonest and fraudulent breach of fiduciary duty’ or trust on the part of Perpetual, the corporate defendants assisted in that breach, and the corporate defendants had ‘sufficient knowledge of the breach’: Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151 at [243] (Gleeson, Leeming and White JJA); Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62 at [152] (Leeming JA, Bell P and Brereton JA agreeing); Simmons at [111]-[115].
[106] ‘Sufficient knowledge’ is, at the very least, “knowledge of circumstances which would indicate the facts to an honest and reasonable man”: Simmons at [113].
[107] A ‘dishonest and fraudulent’ breach of fiduciary duty or trust is one that amounts to ‘a transgression of ordinary standards of honest behaviour’: Hasler v Singtel Optus Ltd (2014) 87 NSWLR 608 at [122]-[124] (Leeming JA; Gleeson JA agreeing).”
The plaintiff’s case against the eighth and ninth defendants is predicated on anterior findings of fraud or breaches of fiduciary duties by other defendants. I do not understand the plaintiff to suggest that beyond their dealings with the first defendant in relation to the Charlestown Property, the eighth and ninth defendants were party to any matter relevant to the plaintiff’s claims against other parties.
Given I am required to take her case at its highest, I will assume the plaintiff is able to prove all the steps anterior to any liability the eighth and ninth defendants may have to her. That is, for the purposes of this application, I assume that the plaintiff will be able to prove that:
one or other of the first, fifth, sixth or seventh defendants owed her fiduciary duties;
there was some sort of fraud on the power of sale committed (which also requires proof by the plaintiff that the sale of the Charlestown Property was not in conformity with the February 2023 Orders); and
the sale of the Charlestown Property constituted a breach of a fiduciary duties or was sold in a manner not in conformity with the February 2023 Orders in a manner which constitutes fraud on the part of the first defendant (and perhaps other defendants who are not the eighth and ninth defendants).
To be very clear, I am not accepting the plaintiff’s assertions that these things have occurred. I am simply suggesting that the summary dismissal application must be assessed with these assumptions in mind.
In respect of the plaintiff’s case of fraud under s 42, the plaintiff’s allegations against the eighth and ninth defendants centres principally around a suggestion their conduct constituted what might compendiously be described as wilful blindness. The plaintiff has not otherwise clearly alleged that the eighth and ninth defendants engaged in other kinds of dishonest conduct. A mere lack of diligence on the part of the eighth and ninth defendants would not be sufficient to show fraud, in the s 42 sense, on the part of those defendants: Grgic v Australian and New Zealand Banking Group Ltd (1994) 33 NSWLR 202 at 221-222 (Powell JA, Meagher and Handley JJA agreeing). However, it would be inappropriate to consider on a summary dismissal application whether the conduct of the eighth and ninth defendants could only be characterised as a mere lack of diligence, or a “calculated abstention from inquiry” so as to constitute fraud.
Irrespective of whether the plaintiff’s case is founded on fraud under s 42, or either limb of Barnes v Addy, it is clear that the central contention of the plaintiff is that the eighth and ninth defendants had some sort of notice of the alleged fraud or dishonest conduct said to have been engaged in.
While the plaintiff may not be obliged to substantiate the allegations made in support of her claim in order to resist summary dismissal of the proceedings against the eighth and ninth defendants, if there is no evidence which presently establishes the plaintiff’s claims against the eighth and ninth defendants and such evidence is unlikely to be obtained by the plaintiff in the future, then the Court may still summarily dismiss the plaintiff’s claims, even in a multi-defendant proceeding: PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216 at [99]-[106], [111] (Hoeben J). Summary dismissal is also available where the material supporting a claim is either untenable or non-existent (see, eg, Vaughan v Attorney General of New South Wales [2025] NSWSC 1045 at [122], [123]-[129] (McGuire J); see also Harris v Asiago (No 2) [2026] NSWSC 549 at [6] (Campbell J)).
For the reasons which follow, the summary dismissal application aspect of the Motion should be dismissed. In my opinion, the plaintiff has shown there are triable issues.
The plaintiff repeatedly asserted that there were caveats registered on title. While the February 2023 Orders make reference to the caveats having been lodged by the plaintiff at some point, those orders required the removal of those caveats. While it is not exactly clear when and how those caveats came off the title, the title search which was annexed to the contract for sale of the Charlestown Property, which was dated just under two months before the contract was executed, did not indicate there was an extant caveat registered on title lodged by the plaintiff. The plaintiff never put before the Court evidence that a caveat was registered by her after the February 2023 Orders. She has had ample opportunity to do so, including an opportunity to do so in her affidavit which she was granted leave to provide to the Court after the hearing of this matter. There is no evidence supporting her assertion that there were caveats registered on the title which might have provided her a basis to claim the eighth and ninth defendants had notice of any of the matters the plaintiff claims they had notice of.
The plaintiff has also maintained that there was an “administrative stop” which was registered. The plaintiff never made clear precisely what she was referring to when she spoke of an “administrative stop”. There was no document evidencing what these administrative stops were. The plaintiff has also not provided a factual basis for her claim any administrative stop was registered on the title of the Charlestown Property. There were no title searches evidencing her claim, nor even a copy of the dealing she might have lodged with the Registrar-General for registration. Directly to the contrary, the title search annexed to the contract for sale did not mention any registered dealings that might be referable to an administrative stop. Additionally, there was also no notation of any unregistered dealing. More specifically, under the “Notations” heading, the title search says “Unregistered Dealings: Nil”.
Given what is provided for on the title search, there does not appear to be any basis to suggest those “stops” were formally registered on the title of the property under the Real Property Act. The plaintiff’s evidence suggests an administrative stop was placed “on” the folio of the Charlestown Property on or around 19 March 2024. In the historical title search of the Charlestown Property which was in evidence, there is no recorded dealing between 12 May 2023 and 7 November 2024. That tells strongly in favour of a conclusion there is no basis for the plaintiff’s assertion that the “administrative stop” was registered.
The plaintiff did point me to her latest affidavit to which she annexed email correspondence that she had with lawyers of NSW Land Registry Services which did indicate that there was an “administrative stop” which had been placed “on” the Charlestown Property. That evidence seems to show that there was an “administrative stop” “placed on the folio” of the Charlestown Property prior to the purchase. Given the “administrative stop” does not appear to have been registered I do not understand what it means for the “stop” to be “on the folio”. However, it was the solicitors for the NSW Land Registry Services with whom the plaintiff was corresponding that said the “administrative stop” was “on the folio” of the Charlestown Property. My language in this paragraph reflects the terms of those emails received by the plaintiff and put into evidence.
The eighth and ninth defendants fairly submit that the correspondence the plaintiff annexed to her latest affidavit does not reveal anything about the basis on which any “administrative stop” was on placed on the title of the property, nor does itself reveal how the administrative stop might have put the eighth and ninth defendant on notice of the alleged dishonest or fraudulent conduct of other parties (8D+9D WS 3 [5]).
However, the test for summary dismissal is a stringent one. While the plaintiff has not on this application put her half of the correspondence she had with the NSW Land Registry Services into evidence, I cannot be satisfied that there is no evidence forthcoming to fill that present gap in her evidence. I also cannot conclude, on a summary dismissal application, that the mere fact that the administrative stops were removed by NSW Land Registry Services means that there was no basis for them in the first place. Certainly, the eighth and ninth defendants did not put on any evidence for me to be able to be satisfied of that. In this, I am not being critical of the eighth and ninth defendants. I mention this simply to say that there appears to be a live issue of fact as to what the eighth and ninth defendants might have known by reason of the administrative stops.
The plaintiff also referred to the fact of there being a “7-week delay” between settlement and the registration of the eighth and ninth defendants on title as evidence of the fact that the eighth and ninth defendants would have had some sort of knowledge of the disputes the plaintiff was having with others in relation to the Charlestown Property. While I am not sure the mere fact there was a 7-week gap between settlement and registration could mean anything, when taken with the evidence showing there was an “administrative stop” which had been placed on the folio of the Charlestown Property, there does appear to be a triable issue in relation to what the eighth and ninth defendants may have become aware of.
The plaintiff made reference in her oral submissions to posting “on the real estate agent’s website against the advertisements” (TR P37 L20). She made a similar reference in PWS 2 at [29]. I gather the plaintiff is suggesting that she put up something on some public forum which could potentially have given notice to the eighth and ninth defendants of the disputes over title. The plaintiff did not refer me to evidence of this. What I have found in the Court Book provided by the plaintiff was a review of the real estate agents who managed the sale of the Charlestown Property, which was seemingly posted by the plaintiff. The review simply threatens the buyer of the Charlestown Property with “months and years of costly litigation in Court” and that the buyer will “never get ownership” of the property. Whether the eighth and ninth defendants were aware of this particular review is clearly a factual issue that ought to be determined at trial. Additionally, while the review clearly does not explicitly give notice of anything to the reader that the property was being sold in breach of fiduciary duties or as the product of some dishonest or fraudulent design, what the eighth and ninth defendants might have made of the review if they were aware of it (to be clear, I am only saying it is possible they may have been aware of it), is another issue properly determined in a full hearing.
Finally, the plaintiff then referred in her oral submissions, at PWS 1 [12] and at PWS 2 [29] to having emailed the first defendant, his solicitor and their real estate agent about there being an active dispute as to the title of the Charlestown Property. She submits that given the first defendant, his solicitor and the real estate agent would have had a duty to disclose the dispute to the eighth and ninth defendants (whether there is such a duty I do not need to determine here), which would make it highly implausible that the eighth and ninth defendants did not have notice of the plaintiff’s claims. I was not taken to a copy of these emails the plaintiff says were sent. However, the plaintiff did put into evidence an email she received from the solicitor for the first defendant, which acknowledges the plaintiff sent to the real estate agent an email concerning the Charlestown Property, and a copy of that email was given to the solicitor for the first defendant.
I do not know what the email the plaintiff sent to the real estate agent who sold the Charlestown Property says. But it does appear to me to raise another triable issue, in respect of what the eighth and ninth defendants might have been told by either the real estate agent or the first defendant (as vendor) in relation to the dispute the plaintiff was having with the first defendant.
The eighth and ninth defendants did say that they did have a copy of the February 2023 Orders, such that what the eighth and ninth defendants would have known is that the sale was being authorised by an order of a court. The eighth and ninth defendants say that, accordingly, that is inconsistent with any fraud or dishonesty on the part of the eighth or ninth defendants. They also submitted that this told against the theory they were on notice of facts which would indicate a breach of fiduciary duty (TR P30 L14-28).
There is perhaps some force in what the eighth and ninth defendants submit. The issue, however, is that I must be satisfied that there is a high degree of certainty about the ultimate outcome of the proceeding if it is allowed to go to trial. Given the plaintiff’s claim includes at least an allegation that the property was being sold at a price under the reserve provided for in the February 2023 Orders, being 85% of the value of the land as determined by a registered valuer, the fact the eighth and ninth defendants knew of the February 2023 Orders which authorise the sale does not seem to be the end of the matter. Whether the property was being sold undervalue appears to be a triable issue. Once that is so, what the eighth and ninth defendants may have known about the value of the property and whether the sale of it was in conformity with the ordered reserve price also appears to be a triable issue.
For those reasons, I am not satisfied it is appropriate to summarily dismiss the plaintiff’s proceedings against the eighth and ninth defendants. While the eighth and ninth defendants have pointed to what might accurately be described as shortcomings in the evidence currently, there appear to me to be factual issues raised in the plaintiff’s case which are properly determined in the course of a trial, and not on an application for summary dismissal. Based on the material before me, I am not satisfied that the plaintiff would be so certain to fail that her claims should be summarily dismissed.
Accordingly, this aspect of the Motion should be dismissed.
If the plaintiff wishes to continue proceeding against the eighth and ninth defendants, she will need to replead her case against those defendants. I do consider she should be allowed that opportunity, given there have not been any earlier defective pleadings against the eighth and ninth defendants.
However, the plaintiff indicated she wished to amend her pleading in other respects against other parties. As I have already said at [51] above, it would not be appropriate for me to deal with any application to file a new pleading given that it would affect other parties, who ought to be heard as to whether any amendments should be allowed in the pleadings against them.
I consider the efficient course, for now, would be to simply put these proceedings before the Registrar in Equity for further directions, with the intent that any application in relation to further amended pleadings can be determined with all necessary parties present, including the eighth and ninth defendants. If the plaintiff chooses to amend her pleadings only to replead against the eighth and ninth defendants, that might be more simply dealt with. If the plaintiff chooses to amend against other defendants too, then that can be dealt with by a single application. What the plaintiff chooses to do from here is a matter for her.
The eighth and ninth defendants have succeeded in striking out the plaintiff’s pleadings, but the plaintiff has successfully resisted their summary dismissal application.
In the circumstances, I consider it appropriate simply to order that the costs of the Motion be costs in the cause, with the intent the costs of the Motion correspond with whatever the final order for costs in the proceedings are.
For the reasons set out above, I make the following orders:
Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), paragraphs 146 to 150 of the plaintiff’s Amended Statement of Claim filed 13 August 2025 are struck out.
The balance of the Notice of Motion filed on 13 November 2025 by the eighth and ninth defendants is dismissed.
The costs of the Notice of Motion filed on 13 November 2025 be costs in the cause.
The proceedings are listed before the Registrar in Equity on 4 June 2026.
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Ghosh
Newton
[2026] NSWSC 549
[1964] HCA 69
[2000] HCA 41
(1988) 164 CLR 604
(1971) 126 CLR 376
(2015) 254 CLR 425
(2007) 230 CLR 89
(2022) 107 NSWLR 171
(1964) 112 CLR 125
(2000) 201 CLR 552
(1986) 6 NSWLR 534
(1992) 30 NSWLR 1
(1967) 116 CLR 61
(1923) 32 CLR 309
(2023) 113 NSWLR 151
(2020) 104 NSWLR 62
(2014) 87 NSWLR 608
(1994) 33 NSWLR 202