Ghosh v Scott Newton trading as Shaw Gidley

Supreme Court of NSW|2023-12-07|Before: Kunc J, Schmidt AJ, Campton J

Summary

These proceedings are before me today as part of my current responsibility to manage first instance matters involving the plaintiff, Dr Ratna Ghosh. The question which I have been required to determine today is a narrow one: Would a document entitled "Proposed Amended Statement of Claim" (which I have marked exhibit 1) propounded by Dr Ghosh, if allowed to be filed, provide any sufficient basis to restrain the first defendant (her trustee in bankruptcy, Mr Newton) from seeking to enforce an order (the Possession Order) in his favour made by the Federal Circuit and Family Court of Australia Division 1 (FCFCA) for the possession of a property in Charlestown (the Property). For the reasons which follow, the Court answers that question in the negative.
Today Dr Ghosh appeared for herself. Mr D Neggo of Counsel appeared for Mr Newton. There was also an appearance in person by the second defendant, Mr Miller, who ultimately did not wish to be heard.

Procedural history

Behind the narrow question to which I have just referred lies a long, convoluted procedural history both in the FCFCA and in this Court. I am grateful to be able to say that the history is more than fully set out in two recent judgments, which must be read with these reasons: 1. The judgment of Schmidt AJ in Ghosh v Scott Newton trading as Shaw Gidley (No 6) [2023] NSWSC 1393 delivered on 17 November 2023 (the Common Law judgment); and 2. The judgment of Campton J in the FCFCA in Bandyopadhyay & Ghosh (No 8) [2023] FedCFamC1F 1000 delivered on 22 November 2023 (the FCFCA judgment).

Today's application

Dr Ghosh's amended notice of motion seeks these orders: "1. Grant leave to file the proposed amended statement of claim by 1 February 2024. 2. Pursuant to the Jurisdiction of Courts (Cross -Vesting) Act 1987 s 8(1), transfer Family Court Brisbane Proceedings BRC 8518/2020 to and merge with Supreme Court NSW Proceedings 2022/00284281 3. An order, in the nature of an injunction, restraining the first defendant Mr Scott Newton, and proposed fourth defendant Bhaskar Bandyopadhyay from any attempt to sell, transfer or encumber any property held in trust for "Ghoband Pty Ltd Superannuation Fund", including XX XXXXX Charlestown NSW 2290, XX XXXXX Avenue Charlestown NSW 2290, XX XXXXX Rd Greenbank Queensland, and XX XXXXX Avenue Orlando Florida USA 4. An order, in the nature of an injunction, restraining the first defendant, Mr Scott Newton, his servants or agents from enforcing eviction of the plaintiff from XX XXXXX Avenue Charlestown NSW 5. Orders 3 and 4 are not to be varied or set aside until the conclusion of these proceedings. 6. Unreserved referral of the plaintiff to a pro-bono barrister and solicitor pursuant to UCPR r7.36 (1) and (6) 7. A copy of all communications, by phone, fax, email or other means, from second defendant Rodney Miller to this Court or its Judges or Registrars be provided to all parties 8. Order that first defendant Mr Scott Newton removes his charge and caveat against any property held in trust for "Ghoband Pty Ltd Superannuation Fund", including XX XXXXX Avenue Charlestown NSW 2290, XX XXXXX Charlestown NSW 2290, XX XXXXX Rd Greenbank Queensland, and XX XXXXX Avenue Orlando Florida USA 9. Order that the caveats of Ghoband Pty Ltd and of plaintiff Ratna Ghosh against the properties at XX XXXXX Avenue Charlestown NSW 2290 and XX XXXXX Avenue Charlestown NSW 2290 be re-lodged by Land Titles Office 10. An ex-parte freezing order pursuant to UCPR r 25.11 against proposed fourth defendant Bhaskar Bandyopadhyay 11. Order that Bhaskar Bandyopadhyay is replaced as director of Ghoband Pty Ltd by the plaintiff's uncle Arun Mukhopadhyay 12. A Gross Sum Costs order pursuant to s98 (4)(c) Civil Procedure Act 2005 against the first and proposed fourth defendants"
Consistently with what I said on the last occasion (see [7] above], given the accelerated timetable and the short time everyone has had to consider the new proposed pleading, I indicated to the parties today that I would only deal with prayer 4 of the amended notice of motion. Dr Ghosh acceded to that course.

Dr Ghosh's submissions

Turning to the parties' submissions, Dr Ghosh contended that Mr Newton's actions were variously "illegal", "wrong", "breach of trust" and "fraud". I invited her to take me to those parts of the proposed pleading where those matters, in her submission, could be said to have been properly pleaded and particularised. She did not immediately do so, and for the purposes of focussing the discussion I drew her attention, for example, to paragraphs 7, 8 and 9 of the proposed pleading: "7 The first and third defendants extended the plaintiff's bankruptcy period by another 5 years to a total of 8 years on 1 November 2017, without service or any communication to the plaintiff, and without notifying her for 5 years, by filing an objection to discharge with AFSA on false grounds, and refused to remove the objection after the plaintiff proved the grounds were false and had long been met. 8 This unnecessary extension of the bankruptcy period to 8 years by fraud is a breach of the first defendant's statutory duties pursuant to s 19 (1)(c), (j) and (k) Bankruptcy Act 1966: (c) reporting to creditors within 3 months of the date of the bankruptcy on the likelihood of creditors receiving a dividend before the end of the bankruptcy; (j) administering the estate as efficiently as possible by avoiding unnecessary expense; (k) exercising powers and performing functions in a commercially sound way; 9 This unnecessary extension of the bankruptcy period to 8 years by fraud is a breach of the first defendant's statutory duties pursuant to Schedule 2 of the Bankruptcy Act 1966 1-1 (2): (2) The object of this Schedule is also: (a) to regulate the administration of regulated debtors' estates consistently, unless there is a clear reason to treat a matter that arises in relation to a particular kind of estate differently; and (b) to regulate the administration of regulated debtors' estates to give greater control to creditors."
When I put to Dr Ghosh that the "false grounds" and "fraud" referred to in those paragraphs did not appear to be sufficiently pleaded or particularised, she responded that further information on those matters was to be found in existing affidavit evidence or evidence which she proposed to file. Beyond otherwise complaining generally about Mr Newton's conduct, Dr Ghosh did not take me to other specific parts of the proposed pleading to demonstrate its adequacy.

Mr Newton's submissions

For his part, Mr Neggo, over and above making the submission that the pleading remained inadequate, made three particular submissions.
First, he submitted that Dr Ghosh had been refused injunctive relief to the same effect as paragraph 4 of the amended notice of motion presently under consideration on more than one occasion. It is convenient at this point to set out the brief history of interlocutory motions which appears at [19] in the Common Law judgment (emphases added): "To resolve what is in issue it is relevant to note the various judgments which have already been given in these proceedings, which have not been challenged: Referring Dr Ghosh to the Pro Bono Panel for legal assistance pursuant to subr 7.3 of the Rules: Ghosh v Newton Unreported Adams J 30 November 2022. Refusing Dr Ghosh leave sought by motion to move on a proposed amended statement of claim, her original statement being accepted as being defective. Leave to proceed on that proposed pleading, which spoke of 26 causes of action, was refused, it being considered that it was unorthodox, inappropriate and a move backwards: Ghosh v Newton Unreported Button J 9 February 2023. Refusing Dr Ghosh injunctive relief also pursued by motion, given that her claims concerned voluminous litigation in bankruptcy proceedings on foot in federal courts for years and also refusing her application for removal of the trustee's caveat over a property: Ghosh v Newton Unreported Button J 9 February 2023. Refusing Dr Ghosh an adjournment of the hearing of a motion when she failed to appear, having sought an adjournment that morning by email sent to the duty judge's associate and refusing to make a further order for referral for pro bono assistance sought by that motion: Ghosh v Newton Unreported Adams J 16 March 2023. Refusing Dr Ghosh's further pursuit of injunctive relief at a time when she had appealed the February 2023 orders of the Federal and Family Circuit Court in respect of the Charlestown property, of which Mr Newton was pursuing orders for possession. The view taken being that the Court had no power to grant the relief sought and even if it did, it would be improper to exercise it, so as to interfere with orders made by the Federal and Family Circuit Court: Ghosh v Newton Unreported Sweeney J 17 April 2023. Refusing Dr Ghosh's further application for an injunction, it being concluded that most if not all of Dr Ghosh's claims involved collateral attacks on the appropriateness of orders of the former Federal Circuit Court, the Federal Court and the Federal Circuit and Family Court, it being concluded that this Court was not the appropriate court to deal with the matters Dr Ghosh sought to pursue and that what was pursued involved an abuse of process and facilitating a contempt of those courts: Ghosh v Newton Unreported Rothman J 27 April 2023."
Mr Neggo in particular drew attention by way of example to the judgments of Button J and Sweeney J, which are referred to in that summary, in which applications by Dr Ghosh to restrain Mr Newton from taking steps in relation to the Property were refused. Mr Neggo submitted that there had been no relevant change in circumstances since the refusal of those applications, which, in accordance with the usual principles, would have to be demonstrated to allow the Court to revisit what were otherwise interlocutory decisions.
Second, Mr Neggo submitted, by reference to the relief sought in the proposed pleading, that the primary form of relief sought against the first defendant was damages. I set out the relief sought in [25] below. Having regard to the primary characterisation of the relief being sought as being for damages, Mr Neggo submitted that there was no serious question to be tried on any issue raised by the proposed pleading that would give Dr Ghosh, as it were, an equity to restrain the Property being dealt with in accordance with the Possession Order.
Third, Mr Neggo drew attention to the only claim made against Mr Newton, which related to the period before Dr Ghosh's insolvency. As to the latter period, Mr Neggo - correctly, in my view - characterised the claims sought to be brought against Mr Newton as complaints about his conduct of Dr Ghosh's bankruptcy.
The claim made in the proposed pleading against Mr Newton as the first defendant in relation to the period before the bankruptcy is this: "The first matter complained of is Fraud and Breach of Trust. (A) Forced Solvent Plaintiff into Insolvency by Fraud 1 The clearly solvent plaintiff was forced into insolvency by the second defendant on 30 September 2016 pursuant to a hearing of the second defendant's creditor's petition on 20 July 2016, at which the defendant refused the plaintiff's tender of full payment to all creditors and misrepresented the plaintiff's solvency to force her into insolvency by fraud. 2 The second defendant insisted on forced bankruptcy of the plaintiff, refusing her tender of full payment to all creditors. The net debt payable to the second defendant on his amended creditor's petition was only $12 000, vastly less than the plaintiff's estate. 3 The first, second and third defendants were aware the plaintiff was solvent from their repeated title searches of her multiple unencumbered properties, rental income and professional income as a doctor working full time as a general practitioner, and from the first defendant's access to view all of the plaintiff's financials in a first forced bankruptcy by the second defendant of 11 May 2016 for only $5000 of debt that was set aside 5 days later. Yet they misled the court into forcing a solvent person into insolvency for the wrongful collateral purpose of theft of rent and multiple unencumbered properties."
Quite apart from drawing attention to the fact that how Mr Newton was said to be aware of Dr Ghosh's solvency and how he may have misled the court was not properly pleaded or particularised in paragraph 3, Mr Neggo submitted that by way of example of the thoroughness with which the various aspects of Dr Ghosh's bankruptcy have been dealt with by the FCFCA, this Court could have regard to decisions of the FCFCA on the question of Dr Ghosh's solvency. To that end, he referred to the judgment of Manousaridis J, then sitting in the Federal Circuit Court of Australia in Miller v Ghosh (No 3) [2016] FCCA 2491, in which his Honour made Dr Ghosh bankrupt. In that case I record that Dr Ghosh appeared for herself.
Manousaridis J concluded: "52. These matters do not afford a reason for not making a sequestration order. If anything, they demonstrate Dr Ghosh is not in a position to pay her debts as and when they fall due. Conclusion and disposition 53. I am satisfied Dr Ghosh owes Mr Miller debts that total more than $5,000, and that Dr Ghosh was liable to pay these debts on I8 November 2014 when Dr Ghosh committed an act of bankruptcy by failing to comply by that date with the requirements of a bankruptcy notice issued on the application of Baycorp. I am satisfied that Mr Miller has otherwise complied with the requirements of the Act and of the Bankruptcy Rules, and that the requirements for the making of a sequestration order have been met. I am not satisfied that any of the grounds on which Dr Ghosh has relied for the Court not making a sequestration order constitute a sufficient cause for me not to make a sequestration order."
Mr Neggo then relied on the appeal from that decision, which was heard by Farrell J in the Federal Court of Australia in Ghosh v Miller [2017] FCA 890. On the hearing of that appeal, I note that Dr Ghosh was represented both by solicitors and counsel. Farrell J dismissed the appeal, concluding: "131 Dr Ghosh is not a convincing witness. In my observation of her at the hearing of the appeal and in her approach to its preparation, she is evasive and her evidence is often self-serving. She has not discharged her onus of proof that she was solvent as at 20 July or 30 September 2016. It may well be that she has access to assets and income through trust arrangements or otherwise. However, she has provided insufficient and inconsistent evidence of her true financial position. The evidence she has provided does not support a finding that she could meet (in a timely way) the crystallised debts identified by the trustee in bankruptcy as they fell due either from her own assets or with borrowed funds. I do not accept that the sequestration order should be set aside."
Special leave to appeal from Farrell J's decision was refused by the High Court of Australia.

Dr Ghosh's submissions in reply

In reply, Dr Ghosh sought to take issue with the factual findings of both Judge Manousaridis and Farrell J. She asserted that they were acting on a false affidavit allegedly provided by Mr Newton. She submitted that the FCFCA, on those occasions it had considered her affairs, had been "ridiculous" and "engaged in a gross miscarriage of justice". She submitted that Campton J's decision was no more than a continuation of what she described as "wrong judgments" by the FCFCA.

Consideration and determination

Turning to the proposed pleading, the parties to that pleading, in addition to Dr Ghosh as plaintiff and Messrs Newton and Miller as the first and second defendants (Mr Miller being the original petitioning creditor), include the third defendant, Shaw Gidley Port Macquarie Pty Limited; the fourth defendant, Dr Ghosh's ex-husband; the fifth defendant, her nephew; and the sixth defendant, her sister. The third to sixth defendants are proposed to be added to the proceedings, were the proposed pleading to be permitted to be filed.
The relief which is sought is: "1 Urgent injunctive relief 2 Pursuant to the Jurisdiction of Courts (Cross -Vesting) Act 1987 Cth s 8(1), transfer Family Court Brisbane Proceedings BRC 8518/2020 to and merge with these Proceedings 3 Damages against each of the defendants, including aggravated damages for failure to remedy the breaches or compensate the plaintiff. 4 An order that the first, third and fourth defendants by themselves, their servants or agents be restrained from dealing with the plaintiff's superannuation fund or its assets. 5 Equitable compensation. 6 An account of profits. 7 Interest under s 100 of the Civil Procedure Act 2005 from the date of each breach of trust until the date of any judgment. 8 A declaration that the plaintiff is entitled to set off any amount awarded by this Court In damages as against any moneys she is found liable to pay the first defendant to discharge her bankruptcy. 9 A declaration that the plaintiff is entitled to a refund from the first, second and third defendants of all funds seized in excess of the debts provable in bankruptcy at the date of forced bankruptcy, 30 September 2016 10 An order to restore the plaintiff's estate to its previous state before the breaches of trust. 11 A declaration that the first defendant has no debts provable in bankruptcy, pursuant to s 82(6) of the Bankruptcy Act 1966 12 Costs. 13 A finding of domestic violence, coercive control and financial abuse against the fourth defendant 14 Any other order the Court sees fit"
In so far as claims are made against Mr Newton, the relevant headings of the allegations are sufficient to give a flavour of the claims made: "The first matter complained of is Fraud and Breach of Trust. (A) Forced Solvent Plaintiff into Insolvency by Fraud… (B) Continued Forced Insolvency by Fraud and Breach of Trust, Dismissed Plaintiff's Annulment Application and Appeal by Fraud and Breach of Trust and Breach of Fiduciary Duty… (C) Extended the Plaintiff's bankruptcy period to 8 years by Fraud, and Breach of Trust… (D) Lodged Caveat and Charge against exempt Superannuation Fund Property by Fraud and Breach of Trust… (E) Obtained a s139ZQ Notice from AFSA by Fraud and Breach of Trust… The second matter complained of is Breach of Trust and Breach of Fiduciary Duty to the Plaintiff and Fraudulent Claims for Exaggerated Unassessed Costs… (A) Refused to Discharge Bankruptcy with approved loan… (B) Failed to get any costs assessed in 7 years, claim exaggerated unassessed costs… (C) Forcing Sale of Exempt Superannuation Fund Properties by Ex Parte Consent Orders, without any proof of outstanding debt owed by the plaintiff… (D) Allowed massive theft by fourth defendant… (E) Undersold Prime Properties… (F) Wrote off Debts Owed to the Plaintiff… (G) Paid Second Defendant, Third Defendant and their common lawyer $581k without any assessed costs in 7 years… (H) Refused to pay creditors despite removing $700k from the plaintiff's estate… The third matter complained of is Deceit, Conflict of Interest, Breach of trust pursuant to s197(1) of the Corporations Act 2001 (Cth) ('CA'), Breach of s55(3) of the Superannuation Industry Supervision Act 1993 (SIS Act) (A) Deceived Fourth Defendant into Signing Consent Orders on behalf of the plaintiff's superannuation fund that he had no authority to sign… (B) Deceived Fourth Defendant into signing consent orders in February 2022 by alleging they released the s139ZQ notice Property… (C) Deceived Fourth Defendant on his conditions for consent… The fourth matter complained of is Telecommunications Offences and Criminal Hacking by collusion by the first, second and third defendants… The sixth matter complained of is Contempt of Court, Perjury and Breach of Trust…"
In order to succeed today, Dr Ghosh would have had to have demonstrated a serious question to be tried that she has a cause of action against Mr Newton set out in the proposed pleading that would lead to final orders being made that would necessitate preventing him from enforcing the Possession Order. Given any such order by this Court would at least be a collateral interference with the orders of another court, in my respectful view this Court would have to be more than comfortably satisfied that there was such a serious question to be tried.
I am not satisfied at all that the proposed pleading discloses any such serious question to be tried. That is because the allegations against Mr Newton are prolix, are made in general terms, make serious allegations (including fraud) in a rolled-up fashion without any attempt at particularisation, and do not disclose as a matter of pleading any reasonably maintainable causes of action. Furthermore, it is not sufficient for Dr Ghosh to refer to unspecified affidavit evidence either filed or yet to be filed to fill the substantial gaps in her pleading.
I also accept Mr Neggo's submission that to the extent it appears that the primary cause of action sought to be advanced against Mr Newton is damages, there is no serious question to be tried if the pleading were otherwise a good pleading on an issue that would give rise to an equity that would require the execution of the Possession Order to be restrained.
However, even if I am wrong in those conclusions, I would not make order 4 in the amended notice of motion as a matter of discretion for the following reasons, the first three of which essentially reduce to the proposition that dealing with the Possession Order is a matter for the FCFCA, and this Court will not make orders which directly interfere with the orders of another court save in the most clear and compelling circumstances: 1. Rule 10.13(1)(b) of the Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth) provides that "the court may at any time vary or set aside an order if it was obtained by fraud." To the extent Dr Ghosh says Mr Newton has obtained the Possession Order by fraud, and in so far as she has raised it in the FCFCA, she has either not been successful or has failed to raise it at all. The material before me does not permit precise identification of the extent to which each of these possibilities applies, but as a matter of logic it must be one or the other or some combination of the two. 2. The proper course would be for Dr Ghosh to prosecute her appeal rights against the Possession Order. However, she has not sought a stay of the Possession Order pending any appeal from Campton J, and has expressly rejected the prospect of bringing any such appeal. 3. Her present claim is not a collateral attack upon the Possession Order. It is, in my respectful opinion, a direct attack, which this Court will not countenance to be made except in the most extraordinary circumstances. There is nothing about this application that would suggest such extraordinary circumstances exist. 4. I accept Mr Neggo's submission that injunctive relief to the effect that is sought in order 4 has been refused on at least two occasions by other judges of this Court. No change of circumstances has been demonstrated that would warrant the bringing of a further application. On the contrary, to the extent to which it may be said that there has been any change of circumstances since the decisions of Button J and Sweeney J (see [14] above), it is that the appeal or review by Campton J has now taken place and his Honour has published his reasons rejecting Dr Ghosh's complaints and making orders which, in effect, confirm the Possession Order earlier made by a judicial registrar of the FCFCA.

Conclusion

For these reasons, the result is that paragraph 4 of the amended notice of motion will be dismissed with costs.

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: 12 December 2023

Federal Circuit and Family Court of Australia Family Law Rules 2021(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)

Cited By (2)