Huber v CellOS Software Ltd

MCELWAINE J: 1 In proceeding VID338/2020 (the appeal), Mr Huber seeks to appeal orders made by Beach J on 17 April 2020, where inter alia his Honour declared that Mr Huber breached his statutory and fiduciary duties owed to CellOS Software Ltd (CellOS) by procuring, through a complex number of related off-shore companies, shares in CellOS which were then sold at a profit and which diverted investors from taking up shares in CellOS and at a higher price. Those orders were made following a protracted liability trial which his Honour determined adversely to Mr Huber and associated corporations for reasons published on 20 December 2018: CellOS Software Ltd v Huber (2019) 132 ACSR 468; [2018] FCA 2069 (liability judgment or LJ). His Honour also ordered that Mr Huber and other related corporate respondents must account to CellOS in the amount of $42 million: CellOS Software Ltd v Huber (No 2) (2020) 144 ACSR 267; [2020] FCA 505 (relief judgment or RJ). 2 CellOS was placed into administration on 10 January 2022 and, following the second meeting of creditors, was voluntarily wound up pursuant to s 439C(c) of the Corporations Act 2001 (Cth) on 19 April 2022. 3 Mr Huber as the single appellant attempted to file a notice of appeal from the relief judgment on 15 May 2020, but was unsuccessful due to difficulties in relation to the payment of the filing fee. Eventually, his notice of appeal was accepted for filing on 25 May 2020, 10 days out of time. He requires an extension of time: s 25(2)(b) Federal Court of Australia Act 1976 (FCA Act). That is not the only discretion to be exercised in favour of Mr Huber so that his appeal may proceed. On 29 June 2022, I determined, as a separate question in the appeal, that Mr Huber required leave to proceed pursuant to s 500(2) of the Corporations Act: Huber v CellOS Software Ltd (in liq) [2022] FCA 744 (leave judgment). 4 On 12 August 2022, Mr Huber commenced proceeding VID458/2022 for leave to continue his appeal (leave application). Separately, on 29 August 2022, Mr Huber commenced proceeding VID545/2022 in which he seeks an order to stay the liquidation of CellOS until the determination of his appeal (stay application) pursuant to s 482 of the Corporations Act. 5 CellOS by its liquidator was represented by Mills Oakley in the appeal. No notice of ceasing to act has been filed in the appeal. Mills Oakley also act for CellOS by its liquidator in the leave application and the stay application, however, I was informed by Ms Griggs of the firm at a case management hearing on 12 October 2022, that the liquidator is without funds to facilitate their participation in the leave application or the stay application, despite the fact that CellOS has the benefit of a very substantial judgment which remains wholly unsatisfied. 6 Accordingly, on 8 February 2023 I heard the leave application and the stay application by receiving evidence and submissions only from Mr Huber who is self-represented. For the following reasons, I have determined that each application must be dismissed.

Leave to proceed and extension of time applications: provision and principles 7 Section 500(2) of the Corporations Act provides: After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes. 8 As is well understood, the purpose of this provision is to protect the assets of the company from dissipation by litigation which is unnecessary - a claimant with a provable claim should generally be required to lodge a proof of debt in the liquidation. Recently, Halley J summarised the principles relevant to the exercise of the discretion to grant leave in ZOLL Medical Australia, in the matter of Cardiac Defibrillators Australia Pty Ltd (in liq) v Cardiac Defibrillators Australia Pty Ltd (in liq) [2022] FCA 167 (ZOLL Medical) at [25]. In this case not all of the considerations summarised by his Honour are relevant for the self-evident reason that Mr Huber does not seek to agitate in his appeal an underlying provable debt. Rather, his appeal may be characterised as a defensive proceeding. Nonetheless, I concluded in the leave judgment that s 500(2) applies. 9 Parker J dealt with a grant of leave pursuant to s 471B of the Corporations Act (the terms of which are presently indistinguishable) by an unsuccessful defendant to appeal a judgment entered in the Magistrates Court in Caruso v Built It Pty Ltd (in liq) (No 2) (2019) 134 SASR 280; [2019] SASC 125. His Honour resolved the "vexed question" that leave was required and then from [59] considered factors relevant to the exercise of the discretion. At [63] his Honour referenced as relevant whether the appeal has "a solid foundation in law and fact and give[s] rise to a serious dispute". His Honour drew attention to the decision of the Full Court of this Court in Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 where Wilcox, Burchett and Beazley JJ dismissed an appeal from a primary judge's decision to grant leave to proceed with an action commenced against a respondent for relief pursuant to s 87 of the Trade Practices Act 1974 (Cth). At issue in the appeal was whether the primary judge applied the correct test to the exercise of the discretion being satisfaction that "a real dispute exists between the parties and that in light of all the circumstances it is more convenient (or otherwise appropriate) to allow the matter to proceed to judgment" at 553. The Full Court undertook a comprehensive review of the authorities and at 556 concluded: Upon a close reading of the relevant authorities, it is apparent to us that the courts have not in fact required applicants for leave to demonstrate a prima facie case against the company in liquidation, in the technical sense of that term. They have required to be affirmatively satisfied that the claim has a solid foundation and gives rise to a serious dispute. Having regard to the course actually taken by the courts, the term "prima facie case" is misleading. Perhaps it should be avoided in the future. The test which has actually been applied is akin to that now used in considering whether interlocutory relief should be granted: "a serious question to be tried"… 10 The Court in that matter was not concerned with an application for leave to continue with an appeal. That point of distinction may in some cases be important, however, for the reasons that I explain, it is not in this matter. 11 Rule 36.05 of the Federal Court Rules 2011 (Cth) (Rules) confers a discretion to extend the time for the filing of a notice of appeal. Mr Huber requires a relatively short extension of time. The principles relevant to the exercise of the Court's discretion to extend time to file a notice of appeal were summarised by the Full Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33], per Yates, Wheelahan and O'Bryan JJ: Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court's discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]: (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. (b) There must be some acceptable explanation for the delay. (c) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. (d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. (e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to "assess the merits in a fairly rough and ready way": Jackamarra v Krakouer (1998) 195 CLR 516 at [7] - [9]. (f) The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases…. 12 More recently, the High Court has considered the power, to extend time pursuant to s 477A(2) of the Migration Act 1958 (Cth) for a remedy in the exercise of this Court's original jurisdiction: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28. Although there are differences in the legislative provisions, what is common is the relevance of an assessment of the merit of, in the case of the Migration Act, the proposed application and in this case the proposed appeal. In considering the merit of Mr Huber's appeal I do not consider that I am confined to an "impressionistic evaluation of the underlying merit" of the individual grounds: [19]. Further, I consider that this is an appropriate case to examine the appeal grounds "in some detail" (at [18]) in order to properly inform the exercise of my discretion pursuant to s 500(2) of the Corporations Act and r 36.05 of the Rules. Why that is so emerges from my consideration of the proposed appeal grounds and also from the fact that I did not have the benefit of submissions from a contradictor. 13 I also consider as relevant to the exercise of my discretion pursuant to s 500(2) of the Corporations Act, some of the matters that are usually considered where the question is whether an applicant should have leave to pursue a claim, or an appeal therefrom, which is a provable debt in a liquidation. I gratefully adopt the summary of Halley J in ZOLL Medical at [25]: … (a) the purpose of s 500(2) is to prevent a company's assets being dissipated by unnecessary litigation: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2018] NSWCA 139 (Seymour Whyte) at [16] (Sackville AJA), citing In the matter of DSHE Holdings Limited (recs and mgrs apptd) (in liq) [2018] NSWSC 82 (DSHE Holdings) at [18] (Black J); Re Gordon Grant and Grant Pty. Ltd. [1983] 2 Qd R 314 (Re Grant) at 316 (Campbell CJ, Sheahan J and McPherson J); (b) the power to grant leave is discretionary: Seymour Whyte at [16], citing DSHE Holdings at [18] (Black J); White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) (No 5) [2018] FCA 184 at [21] (Perram J); (c) a plaintiff for leave will be required to show why it should not be left to prove its debt in the winding up: Seymour Whyte at [16], citing DSHE Holdings at [18]; (d) a plaintiff must establish that the claim has a solid foundation and gives rise to a serious question to be tried: Seymour Whyte at [16], citing DSHE Holdings at [18]; (e) factors relevant to the exercise of the court's discretion may include the degree of complexity of legal and factual issues: Seymour Whyte at [16], citing DSHE Holdings at [18]; Zamattia v Jainti Pty Ltd (in liq) in its capacity as Trustee of the Zambito Trust [2022] NSWCA 3 (Zamattia) at [8] (Leeming JA). It may also include whether there are complex procedural matters such as discovery or interrogatories involved: Zamattia at [8]; Re Grant at 317; (f) the effects that the proceedings may have on creditors of the company in liquidation are to be taken into account: Zamattia at [8]; (g) leave should generally be granted for a proprietary claim which cannot be accommodated within the proof of debt procedure: Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 at [40] (Barrett J); on appeal Chahwan v Euphoric Pty Ltd and Another (2008) 227 ALR 43; [2008] NSWCA 52 at [8] (Beazley, Tobias and Bell JJ); Oliveri v P M Sulcs & Associates Pty Limited (in liq) [2012] NSWSC 1311 at [10] (Black J); Richardson v Lo Pilato (Liquidator); In the Matter of Trojan Hospitality (ACT) Pty Limited (In Liq) [2014] FCA 888 at [52]- [54] (Foster J); and (h) the Court will normally grant leave as of right where plaintiffs seek to recover their own property from the company because such claims cannot be accommodated within the proof of debt regime. Claims which can only be resolved by court proceedings include rectification, specific performance, injunction and rescission of a contract: Commonwealth v Davis Samuel Pty Ltd (No 5) (2008) 68 ACSR 336; [2008] ACTSC 124 (Davis Samuel) at [34]-[36] (Refshauge J); cited with approval in Palace v RCR O'Donnell Griffin Pty Ltd (in liq) [2021] QCA 137 at [40] (Sofronoff P and Morrison and Bond JJA); QNI Resources Pty Ltd and Others v Park and Others (2015) 116 ACSR 321; [2016] QSC 222 at [49] (Bond J). 14 I explain in these reasons why some of those factors are relevant where Mr Huber seeks to have set aside a judgment in favour of CellOS and which favour a positive exercise of the discretion. 15 However, as I explain in some detail, I am satisfied that the appeal grounds are without merit and to permit Mr Huber to pursue the appeal would be contrary to the overarching purpose of the civil practice and procedure of the Court at ss 37M and 37N of the FCA Act. These considerations substantially outweigh the other matters. In so concluding it is otiose to separately address the extension of time application.

The liability judgment 16 The reasons of Beach J are comprehensive, detailed and meticulous. The proceeding involved 19 respondents, most of which, in addition to Mr Huber, were corporations that his Honour found were controlled by Mr Huber and which were incorporated in exotic locations such as Belize, the British Virgin Islands, Anguilla, Panama and Samoa. Other corporations featured in the case were beneficially owned or controlled by Mr Huber, but were not parties to the proceedings. Those corporations variously acted to purchase shares from CellOS investors or lent funds to CellOS. It is convenient to refer to all of these corporations as the Huber entities. Some respondents were not associated with Mr Huber: notably Mr and Mrs Peck and Mr Tan. Of the of the Huber entities, only Mr Huber and Blue Delorite Investments Pty Ltd (Blue Delorite) filed defences. 17 CellOS contended that Mr Huber, while appointed as its Chief Executive Officer and as a director, between 2012 and 3 September 2015 engaged in a scheme to trade in the shares of CellOS by creating a grey market and in so doing deprived it of the opportunity of issuing shares to potential investors at a market price higher than the price at which Mr Huber caused its shares to be bought and sold. A further aspect of the scheme contended that LGA Energy Investments Ltd (LGA), an offshore company controlled by Mr Huber, lent money to CellOS and then exercised an option to convert the loan funds into shares at a price significantly less than the market value at the time. CellOS contended that the entire scheme was fraudulent and generated significant profit for Mr Huber. It founded its proceeding in breach of duty by Mr Huber as a director and officer contrary to ss 181, 182 and 183 of the Corporations Act together with breach of fiduciary duty. 18 The trial before his Honour was conducted on various days in September 2017 and May and June 2018. For most of the trial, Mr Huber was self-represented. For reasons published in the liability judgment, his Honour dismissed the proceedings against Mr and Mrs Peck and Mr Tan and upheld the claims against Mr Huber and the Huber entities. Relevantly, his Honour ordered that CellOS, Mr Huber and Blue Delorite within 28 days file and serve short minutes of orders to give effect to the reasons and for the further conduct of the proceeding. 19 The proceeding resumed before his Honour in October 2019. For reasons published in the relief judgment, his Honour declared that Mr Huber had breached his fiduciary duties as well as his statutory duties pursuant to the Corporations Act by procuring the purchase of a substantial number of shares in CellOS and the sale of those shares for profit "thereby diverting investors from taking up shares" in CellOS. Further Mr Huber breached his duties by causing CellOS to enter into a loan agreement with LGA and then by causing it to exercise the option to purchase a substantial number of shares in CellOS for SGD1.80 per share, when the market price for those shares was greater. His Honour ordered Mr Huber and the Huber entities to account to CellOS in the sum of $42 million and ordered that they pay CellOS's costs of and incidental to the proceeding. 20 His Honour summarised the essential contentions of CellOS against Mr Huber and the Huber entities in the liability judgment at [2]-[19] as follows: CellOS alleges that Mr Huber carried out a scheme against it, and in carrying out this scheme breached various statutory and fiduciary duties owed to CellOS, particularly under ss 181, 182 and 183 of the Corporations Act 2001 (Cth). Broadly, CellOS alleges that the scheme carried out by Mr Huber consisted of the following steps. At all relevant times CellOS was not generating sufficient revenue and was reliant upon new equity capital or debt funding to continue its operations and its business of software development. Mr Huber was personally responsible for securing this funding. From late 2012, Mr Huber instructed a corporate secretarial services provider to establish a web of offshore companies registered in Belize, Panama, Anguilla, British Virgin Islands and Samoa, which Mr Huber was to control, and which were designed to disguise Mr Huber's involvement in his planned scheme and in those vehicles. Mr Huber established a web of offshore companies to hold his CellOS shares (Huber controlled entities) with the corporate secretarial assistance of Mr Chua Min Wee and his company Grandeza Corporate Services Pte Ltd (Grandeza), a Singaporean company, and Mr Harveen Singh Narulla. The Huber controlled entities disguised Mr Huber's involvement in what later occurred. From at least late 2012, Mr Huber procured through these Huber controlled entities at least 47,872,063 CellOS shares from early investors in CellOS, without disclosing his involvement to the vendors or to CellOS; it is said that these transactions were entered into without CellOS' knowledge. It is known that Huber controlled entities purchased 19,059,834 shares (out of 47,872,063 shares transferred from private investors) for AU$4,848,094. The price for the remainder is not known. From at least late 2012, Mr Huber sought out potential investors for CellOS, ostensibly to raise funds for CellOS' ongoing operations. But instead of CellOS issuing shares directly to new investors, Mr Huber procured investors to purchase shares from Huber controlled entities at prices between US$2 and US$10. Between late 2012 and mid-2015, the Huber controlled entities sold 51,945,132 shares in CellOS to 355 private investors. It is known that Huber controlled entities sold 22,832,921 shares out of 51,945,132 shares transferred to private investors for AU$50,353,076. The price for the remainder is not known. Mr Huber directly or indirectly lent part of the proceeds from these share sales back to CellOS in order to fund its operations. In or around May 2013, Mr Huber arranged for CellOS to enter into a loan agreement with one of his offshore companies, LGA Energy Investments Ltd based in Belize (LGA) to loan CellOS up to SG$25 million (LGA loan) without disclosing his interest in LGA or the LGA loan to either CellOS' board or its shareholders, on terms that the loan could be converted to shares at SG$1.80. Mr Huber wearing his CellOS hat would call for loans from LGA and then convert those loans to shares. At the time, CellOS was able to issue new shares at US$5 per share and CellOS shares were on the secondary market at up to US$5 per share. LGA is not a party to the proceedings. The LGA loan operated such that: (a) The loan operated retrospectively to cover money advanced since 1 March 2012, that is, over a year earlier and included advances by third parties nominated by LGA; (b) LGA or third parties would loan money to CellOS; and (c) LGA had an option to convert the loan amount into CellOS shares at the price of SG$1.80 per share, which was favourable to Mr Huber and LGA but disadvantageous to CellOS and the other shareholders. The effect of the LGA loan allowed: (a) Mr Huber to immediately benefit from the funds he had been lending CellOS since March 2012 by converting them into new CellOS shares at the favourable strike price of SG$1.80 per share; and (b) Mr Huber to, first, prospectively sell CellOS shares held by the Huber controlled entities, second, then lend the funds to CellOS under the LGA loan and, third, obtain more shares at SG$1.80 per share by exercising the conversion option. Significant proceeds from the sale of shares by the Huber controlled entities were paid to CellOS and attributed to the LGA loan. In all, Mr Huber procured payments into CellOS of SG$29,143,387.90 and AU$1,228,786.85, which were attributed to the LGA loan, and through LGA converted those loan funds into 17,477,204 shares in CellOS at SG$1.80 per share. Mr Huber directed LGA to transfer 16,815,157 of those shares to Huber controlled entities for no consideration and then procured the on-sale of 4,265,157 of those shares, of which 2 million were sold at US$2 per share, 399,000 at US$10 per share, and the remainder at unknown prices. As I say, between 28 June 2013 and 27 March 2014, LGA came to hold almost 17 million CellOS shares by way of its conversion option under the LGA loan. In May 2014, LGA transferred these shares to seven of the Huber controlled entities. On 1 July 2014 Mr Huber arranged for CellOS to enter into another loan arrangement with another associated company, Pized Management Ltd (Pized) (Pized loan). Pized is the fourteenth respondent. The Pized loan was similar to the LGA loan, and Mr Huber again failed to disclose his interest. Significant proceeds from the sale of shares by the Huber controlled entities were advanced to CellOS and attributed to the Pized loan. When Mr Huber was removed from his position in September 2015, amounts under the Pized loan in the order of SG$2.5 million and US$8.3 million had not been converted and still remain a liability owing to Pized on CellOS' books. CellOS alleges that Mr Huber's scheme, which it characterises as fraudulent, generated significant profits for him. But Mr Huber's response to CellOS' claims is that Mr Min Wee and particularly Mr Narulla went rogue and set up and used the Huber controlled entities to buy and sell CellOS shares without Mr Huber's knowledge and for their own profit. Further, in respect of the LGA loan and the Pized loan, Mr Huber says that both of these arrangements were entered into with proper disclosure being made to CellOS that he was the controller of both companies. As I say, Mr Huber's defence is that the fraud perpetrated against CellOS was not by him, but by his personal assistant Mr Narulla. Mr Huber says that he instructed Mr Narulla to sell off some of Mr Huber's personal shares to raise funds for CellOS through the LGA loan and the Pized loan, but that Mr Narulla went rogue and bought and sold shares using the Huber controlled entities. But CellOS says that the contemporaneous record establishes that Mr Huber did carry out the fraudulent scheme. In any event it says that even if the evidentiary foundation of Mr Huber's defence were to be accepted, nevertheless because Mr Narulla was his agent and Mr Narulla directed the profits from the fraudulent scheme to Mr Huber's personal benefit both for the purchase of assets and for payment into the LGA loan and the Pized loan, Mr Huber is still liable for that conduct and required to account to CellOS for any profits. Let me turn to the other respondents. The second to thirteenth and fifteenth respondents include some of the Huber controlled entities that it is said were involved in Mr Huber's scheme. They are the following: (a) Birinc Centre Corp (Birinc) is the second respondent, although it has been incorrectly described as "Birinc Trade Corp" in CellOS' originating process. Its alleged involvement is the receipt of CellOS shares from LGA as part of the LGA loan scheme. (b) Sky Wealth International Ltd (Sky Wealth) is the third respondent. Its alleged involvement is the receipt of CellOS shares from LGA as part of the LGA loan scheme. (c) Rex Investors Ltd (Rex Investors) is the fourth respondent. Its alleged involvement is the purchase of CellOS shares from early investors, the sale of those shares to private investors and the receipt of CellOS shares from LGA as part of Mr Huber's scheme. (d) Sun Way Global Group Limited (Sun Way) is the fifth respondent. Its alleged involvement is the receipt of CellOS shares from LGA as part of the scheme. (e) Aura Finance Limited (Aura Finance) is the sixth respondent. Its alleged involvement is the receipt of CellOS shares from LGA as part of the scheme. (f) Harvest Sky Holdings Limited (Harvest Sky) is the seventh respondent. Its alleged involvement is the purchase of CellOS shares from early investors, the sale of those shares to private investors and the receipt of CellOS shares from LGA as part of the scheme. (g) Rich Max Investments Limited (Rich Max) is the eighth respondent. Its alleged involvement is the receipt of CellOS shares from LGA as part of the scheme. (h) Nesterland Services Ltd (Nesterland) is the ninth respondent. Its alleged involvement is the purchase of CellOS shares from early investors and the sale of those shares to private investors. There is a contest between the parties as to which of Mr Huber or Mr Narulla truly controlled Nesterland and the identity of its ultimate beneficial owner. (i) Willow Financial Limited (Willow) is the tenth respondent. Its alleged involvement is the sale of early investor shares to private investors, which it received by way of transfers from other Huber controlled entities. (j) Lighthouse Investments Limited (Lighthouse) is the eleventh respondent. Its alleged involvement is the sale of early investor shares to private investors, which it received by way of transfers from other Huber controlled entities. (k) Leario Overseas Corp (Leario) is the twelfth respondent. Its alleged involvement is the purchase of CellOS shares from early investors. (l) Stardust Financial Corporation (Stardust Financial) is the thirteenth respondent. Its alleged involvement is the purchase of CellOS shares from early investors and the sale of those shares to private investors. (m) Blue Delorite Investments Pty Ltd (Blue Delorite) is the fifteenth respondent; it has also been incorrectly described in CellOS' originating process. Its alleged involvement is the purchase of CellOS shares from early investors and the sale of those shares to private investors. Now defences have only been filed by the first and fifteenth respondents, that is, by Mr Huber and by Blue Delorite. The second to fourteenth respondents are variously registered in Belize, Anguilla, Samoa, Panama and the British Virgin Islands. Service out of the jurisdiction has been effected on some of these respondents, but they have otherwise taken no role in these proceedings. 21 His Honour dismissed the proceeding against Mr and Mrs Peck on the basis that he was not satisfied that they were knowingly concerned in and parties to the scheme of Mr Huber. His Honour dismissed the proceeding against Mr Tan on two grounds: first, he was not satisfied that Mr Tan knew or could be expected to know what had taken place with respect to the share dealings orchestrated by Mr Huber and second, that Mr Tan did not understand that what he was doing was causing loss to CellOS. 22 As the summary of the claims by his Honour which I have set out makes clear, the defence mounted by Mr Huber to the effect that he had been the victim of a fraud perpetrated by Mr Wee and Mr Narulla failed. In particular in reasoning to that conclusion, his Honour made some very adverse findings of credit against Mr Huber. At LJ [39] his Honour found: Let me address a discrete issue that needs to be developed before proceeding further. There are a number of companies who bought, sold and transferred amongst themselves CellOS shares during the relevant period. In broad terms, CellOS submits that these entities were controlled by Mr Huber and used by him to cover his tracks. I would say now that I have little doubt that these entities were controlled by Mr Huber and, generally speaking, used to conceal his share dealings. Moreover, the opaque structures that he used, the denial of his control and his assertion that somehow Mr Narulla had gone rogue in relation to a large number of transactions did not instil me with great confidence as to the reliability of his evidence generally or the weight I should give to it. Indeed I would say at this point in relation to Mr Huber's evidence that I have given it little weight except where it has been independently corroborated by other probative evidence or where it was adverse to his interest. 23 In many other paragraphs, his Honour variously found the evidence of Mr Huber to be "not credible" (at LJ [465]), "evasive and argumentative" (at LJ [436]), "misleading" (at LJ [447]), "false" (at LJ [451], [452] and [460]), "incoherent" (at LJ [470]), "a recent invention" (at LJ [471]) and ultimately and in summary at LJ [474]: …I have not found Mr Huber's evidence to be reliable, and have not accepted it unless independently corroborated by other probative evidence or it was otherwise adverse to his interest. (Original emphasis.) 24 Somewhat obviously, these findings are more than simply problematic for Mr Huber in the exercise of my discretions to grant leave to continue with the appeal and to extend the time for its commencement. They are major hurdles which Mr Huber fails to grapple with in the drafting of his appeal grounds or in the written and oral arguments that he relies upon in support of his applications. 25 In contrast, his Honour accepted as truthful and honest the evidence of other witnesses, in particular, Mr and Mrs Peck (at LJ [486] and [490]); the company auditors from Deloitte, Mr Zannis and Mr McGuigan (at LJ [655]-[656]); the Chief Operating Officer and a director of CellOS, Mr Patel (at LJ [418]); Mr Wolfenden, a shareholder and director of CellOS (at LJ[423]); Ms Tapner, the group accountant of CellOS (at LJ [424]); Mr Roche, an audit partner of Deloitte (at [425]); Mr Reid, the company secretary of CellOS (at LJ [426]) and Ms Hennessey, an expert witness and forensic accountant (at LJ [428]). 26 Mr Narulla did not give evidence and no Jones v Dunkel inference was drawn: LJ [429]-[433]. 27 His Honour's judgment is factually intense for the reasons stated by his Honour commencing with "a few preliminary observations" (at LJ [33]), where he addressed the apparent tension between there being "nothing wrong per se" with a director buying and selling shares in the corporation of which he or she is a director, putting aside cases of insider trading, and the scenario that his Honour faced where Mr Huber as the CEO and a director of CellOS surreptitiously created a grey market in the trading of its securities and in doing so diverted, for his benefit or that of the Huber entities, opportunities that would otherwise have been afforded to CellOS to raise equity by issuing shares at market prices. This was a fact intense case as his Honour noted at LJ [36]: …My case is rich in facts, including the application of Singaporean law proved as a foreign fact. Now brevity may be desirable where one is intellectualising on a legal issue stripped of the complexity of intricate commercial dealings over a lengthy period. But it is a luxury I cannot afford in the present case. 28 In oral submissions before me, after I pointed out the difficulty that appellants generally face in overturning adverse credit findings, Mr Huber described his appeal as one which asserts that "almost every material finding of fact" that Beach J made adverse to him was contrary to the evidence. That submission immediately invites suspicion that what Mr Huber seeks to do by vehicle of an appeal is to have the Full Court rehear the proceeding ab initio. Relevant to the present applications is how his Honour dealt with the morass of evidence in order to find the CellOS claims proven and in particular to reject the contention of Mr Huber that, as an innocent actor, he was a victim of fraud. 29 In summary, his Honour found: (1) In November 2012, Mr Huber personally signed a share statement for Basalt Pte Ltd (Basalt) evidencing a purchase by it of 25,152,717 shares in CellOS from early investors: LJ [44] and [52]. Basalt was one of the companies established at the direction of Mr Huber: LJ [722]. Basalt then transferred the shares to offshore companies that Mr Huber admitted were controlled by him: LJ [55]; (2) Maitreya Mandala Ltd (Maitreya) is not a party to the proceeding. It purchased 5,642,500 CellOS shares from early investors and sold 5,019,921 CellOS shares to private investors: LJ [58]. Mr Huber claimed that this company was controlled by Mr Narulla, but accepted that in May 2013 he gave instructions to approve the transfers of CellOS shares to the company: LJ [60]; (3) Child and Family Education Foundation PTE LTD (Child and Family) is not a party to the proceeding, but purchased 3,110,000 CellOS shares from early investors and sold 9,125,755 CellOS shares to private investors: LJ [66]. It did so on Mr Huber's behalf and transferred 615,745 to his personal company, Swallow Ltd: LJ [67]; (4) Stardust Financial Corporation (Stardust) is the thirteenth respondent. It purchased 1,588,181 CellOS shares from early investors and sold 477,181 CellOS shares to private investors: LJ [72]. It is incorporated in Belize. Mr Huber controls and is the ultimate beneficial owner of Stardust, which acted to hold shares in CellOS on his behalf: LJ [76]. In May 2013, Stardust purchased 775,000 shares from an early investor for USD0.15 per share: LJ [78]. Mr Huber denied any knowledge of this transaction, which denial could not be reconciled with an admission made by Mr Huber in an affidavit in a related proceeding in Singapore where he stated that the shares were purchased because the vendors wanted to "exit the company". This evidenced direct knowledge by Mr Huber that the corporations associated with him were buying shares in CellOS at well below the market price, and his evidence to the contrary was rejected: LJ [78]-[79]; (5) Harvest Sky Holdings Ltd (Harvest) is the seventh respondent. It bought and sold shares in CellOS: LJ [80]. Mr Huber admitted that Harvest was one of the offshore companies operated by Mr Narulla: LJ [81]. Mr Narulla stated in writing to Mr Huber that Harvest was being administered to hold shares on behalf of Mr Huber: LJ [81]; (6) Rex Investors Ltd (Rex) is the fourth respondent. Mr Huber admitted that it held shares on his behalf: LJ [84]. It purchased significant shares in CellOS and sold shares to private investors: LJ [83]. Mr Huber personally signed and approved the transfer forms: LJ [86]; (7) Money Max Foundation (Money Max) is not a party to the proceeding. Mr Huber admitted that it was transacting the sale of his shares for his benefit: LJ [90]. It received an indirect transfer of 3,500,000 CellOS shares and then transferred those shares to other Huber entities: LJ [91]. Mr Huber received specific legal advice in relation to Money Max making a large sale of shares to a particular investor: LJ [94]; (8) Nesterland Services Ltd (Nesterland) is the ninth respondent. It purchased 457,286 CellOS shares from early investors and sold 11,842,000 CellOS shares to private investors: LJ [95]. Mr Huber admitted that Nesterland is one of the offshore companies operated by Mr Narulla which held and sold shares on his behalf: LJ [96]. Mr Huber sold 7 million CellOS shares to Mr and Mrs Peck that were transferred from Nesterland pursuant to his instructions: LJ [97]. Despite conflicting evidence as to the ultimate beneficial owner of Nesterland, on any view Mr Huber used it as a conduit for the implementation of his scheme: LJ [100]; (9) Blue Delorite is the 15th respondent. It purchased 400,000 CellOS shares from early investors and sold 2,050,000 CellOS shares to private investors: LJ [101]. Mr Huber is the sole shareholder and director of Blue Delorite: LJ [102]; (10) Leario Overseas Corp is incorporated in Belize: LJ [108]. Mr Huber admits that he is the ultimate beneficial owner of this company: LJ [110]. It purchased 241,086 CellOS shares from early investors: LJ [107]; (11) Between 20 September 2011 and 8 May 2015, the Huber entities transferred 51,945,132 CellOS shares to 12 companies that were used to sell the shares to private investors. The same corporations bought and sold shares in the shadow marketplace. Some of the companies were merely intermediaries: LJ [114]; (12) Lighthouse Investments Ltd (Lighthouse) is the eleventh respondent. It sold 5,150,000 CellOS shares to private investors: LJ [116]. Mr Huber admitted that he is the ultimate beneficial owner of Lighthouse: LJ [118]; (13) Willow Financial Ltd (Willow) is the tenth respondent. It sold 320,000 CellOS shares to private investors: LJ [119]. Mr Huber admitted that he is the ultimate beneficial owner of this company, which was administered to hold shares on his behalf: LJ [122]; (14) On 9 May 2014, LGA transferred to seven Huber entities shares that it had acquired in CellOS in consequence of the exercise of options. Approximately 14 million issues were transferred: LJ [123]; (15) Birinc Centre Corp (Birinc), Sky Wealth International Ltd (Sky), Sun Way Global Group Ltd (Sun), Aura Finance Ltd (Aura), and Rich Max Investments Ltd (Rich Max) are each respondents to the proceeding. Each received a significant transfer of CellOS shares from LGA. Mr Huber admits that he is the ultimate beneficial owner of each of these corporations: LJ [125]-[139]; (16) Mr Narulla may have been engaged in some dealings in the shares of CellOS that were unknown to Mr Huber. However, that does not "substantially detract from" the finding that "Mr Huber set up and engaged in the relevant scheme": LJ [157]; (17) Between 2013 and 2015, Mr Huber engaged Mr Narulla to assist in managing shares in CellOS in respect of which Mr Huber had or held interests or rights: LJ [208]; (18) In early 2013, CellOS entered into a loan and convertible option agreement with LGA, signed by Mr Huber. LGA agreed to provide facility finance of up to SGD25 million at an interest rate of 10% per annum and with an option to convert any outstanding amounts to equity in CellOS at an option price fixed at SGD1.80 per fully paid ordinary share: LJ [214]; (19) Loan conversion events and the option was occurred by exercised in October 2013 and February 2014 for 3,467,877 and 1,666,666 shares respectively: at LJ [305] and [351]; (20) On 27 March 2015, Mr Huber met with three persons from Deloitte. Minutes of the meeting were prepared, albeit much later. The minutes record an admission made by Mr Huber that there was "an active grey market" for CellOS shares and that he "controls" the market. It also records Mr Huber admitted that he was "selling his own shares" which enabled him to control the market: at LJ [402]; (21) Mrs Peck commissioned a report from a former director as to the state of affairs of CellOS. In that report dated 3 June 2015, the author stated that there was evidence of fraud and misrepresentation by Mr Huber and that he was running a "Ponzi" scheme: LJ [404]; (22) Mr Huber was removed as a director of CellOS on 3 September 2015: LJ [408]; (23) Extensive and adverse credit findings were made about Mr Huber and his evidence: LJ [435]-[474]. In numerous respects, the evidence of Mr Huber was found to be false, misleading or otherwise unreliable. In particular evidence from Mr Huber that between 2008 and 2010 he transferred 4.5 million shares in CellOS to Mr Narulla to hold for him and later sell, and which were sold to Child and Family by mid-2012 at which point he transferred a further 16 million shares to Mr Narulla to sell, was found to be false. The 4.5 million shares were not transferred to Mr Narulla on trust for Mr Huber, but were provided in consideration for services rendered: LJ [450]-[451]; (24) A claim made by Mr Huber was that he transferred 20.5 million of his personal shares to Mr Narulla to be sold to investors, with the proceeds being loaned to CellOS to fund company operations. By the mechanism of the LGA loan agreement, the loan funds could be converted to shares at a strike price of SGD1.80. However, what occurred is that Mr Narulla was buying shares cheaply from early investors and the shares were then sold at higher prices. Mr Huber falsely denied knowledge of that conduct:LJ [459]-[460]. The first tranche of shares, 4.5 million, were not the personal shares of Mr Huber and there was no further transfer from his personal holdings of 16 million shares: LJ [461]-[462]. Mr Huber knew Mr Narulla was not selling his personal shares. Mr Huber personally signed statements for the share transfers from the original investors as a director. He admitted that he was "at relevant times monitoring all transactions, and indeed controlling the transfers of his shares": LJ [464]. Further, Mr Huber's denial that he was monitoring and was unaware of Mr Narulla's share trading between January 2013 in 2014 was false, in that he personally signed letters approving the transactions from companies controlled by Mr Narulla: LJ [465]; (25) Mr Huber "knew about and hid his involvement" in the share transfer transactions: LJ [466]. He used various private email addresses in an effort to hide his involvement in the share trades and when it was put to him that he did so in order to "cover up his involvement", he simply responded "there's no reason": LJ [467]; (26) Mr Huber was the only person responsible for fundraising in order to conduct the operations of CellOS: LJ [577]. Despite the existence of "willing buyers", he did not take meaningful steps to cause CellOS to raise equity through the issue of new shares in order to conduct its business and then, at LJ [587]: Instead of Mr Huber procuring potential investors to buy shares issued by CellOS, Mr Huber diverted them to buying shares from him through companies he controlled, which shares he was purchasing for that purpose in the grey market for CellOS shares at a substantial discount to the price that CellOS could have issued them for. Further, in order to fund CellOS, Mr Huber then caused companies he controlled to enter into loan agreements with CellOS, without disclosing his interest in the lending entries. In acting in that way, Mr Huber diverted an opportunity that was available to CellOS of issuing its shares to investors in order to raise significantly greater sums of money than it did: LJ [589]-[595]. At various times the difference was between SGD1.80 per share and USD2 and USD5 per share: LJ [595]; (27) Mr Huber failed to disclose his related party transactions to the auditors: LJ [643]-[650]; (28) The loan agreement between CellOS and LGA was an uncommercial transaction: LJ [687]; and (29) Mr Huber admitted that on various share sales to Mr and Mrs Peck he made a profit being the difference between the option strike price of SGD1.80 and the sale price of SGD2.50: LJ [689]. 30 This is not for obvious reasons a comprehensive summary of all of the adverse factual findings made by Beach J. However together with highlighting the overall findings by way of conclusion, it is sufficient to inform the exercise of my discretions. Those conclusions were, at LJ [714]-[717]: First, Mr Huber did not disclose to the board at the relevant time his interest in LGA or Pized or the relevant loans. Second, both the LGA loan and the Pized loan contained uncommercial terms in relation to the strike price for the conversion options. Moreover, the retrospective operational aspect of the LGA loan was uncommercial. Third, the substitution of debt funding for equity funding caused CellOS to be placed at a disadvantage. Fourth, by LGA exercising the conversion option at a strike price below market value, this caused relative detriment to other shareholders of CellOS. Their shareholdings were being diluted in disadvantageous circumstances. Moreover, it was not in the interests of CellOS to issue shares at less than their market value. 31 The ultimate effect of the scheme was found by his Honour at LJ [726]-[735] as follows: Between 20 September 2011 and 12 August 2015, the Huber controlled entities had transferred to them at least 47,872,063 shares in CellOS from third party investors. Between 20 September 2011 and 8 May 2015, the Huber controlled entities transferred at least 51,945,132 shares in CellOS into 12 offshore companies that would be used to sell the shares to private investors. That is, the same companies were not both buying and selling shares in the marketplace. Some companies were merely intermediaries. Mr Huber then promoted CellOS shares to investors, ostensibly to raise capital directly for CellOS by the issue of new shares, but in fact it was to sell to such investors the same shares, which Mr Huber had purchased from early investors, at a considerable profit margin. Between about February 2012 to late 2013, Mr Patel attended around 20 potential investor presentations with Mr Huber. There were about 10 to 20 potential investors at each, and they were held in CellOS' Singapore offices. Between 20 September 2011 and 11 August 2015, Mr Huber procured the sale of at least 51,945,132 shares in CellOS from the Huber controlled entities to 355 third party investors. Mr Huber was using various brokers to sell the offshore companies' CellOS shares in addition to Mr Tan. In March 2015, Mr Huber said that he was then using 8 brokers. These brokers included Mr Tan, Ms Sandra Dierstein at Proventus Consulting JLT in Dubai, Ms Charlene Kwok and Ms Marie Cronogue at Boswell Management Services & Consultancy. It is known that Huber controlled entities purchased 19,059,834 shares (out of 47,872,063 shares transferred from private investors) for AU$4,848,094, and Huber controlled entities sold 22,832,921 shares (out of 51,945,132 transferred to private investors) for AU$50,353,076.35. The prices for the other transactions are unknown. Mr Huber used part of these profits to fund CellOS through the LGA loan and the Pized loan. Mr Huber also used the profits in connection with the discharge of his bankruptcy, other personal expenses, and the purchase of properties in Melbourne and Dubai. In order to provide funds to CellOS so that it could continue to operate, in or about May 2013 Mr Huber procured CellOS to enter into a loan agreement with LGA, one of his offshore companies, with the loan convertible to shares at a price below market value. Mr Huber did not disclose his relationship with LGA to CellOS' board nor that the loan was being funded by profits generated from his trading in CellOS' shares. 32 Finally, it is relevant for present purposes to record that at RJ [788]-[790], his Honour soundly rejected three key claims of Mr Huber: First, Mr Huber says that the claim concerning the share trading conduct fails because it falls outside Mr Huber's duties. But the evidence is clear that Mr Huber, as a director and the CEO with responsibility for fund raising, conducted share trading to divert the relevant opportunity otherwise available to CellOS. Second, Mr Huber says that there was no diversion because there was no mature effort to obtain funding. Further, Mr Huber says that the board needed to resolve that there would be an equity raising in order that the opportunity be mature. But CellOS was always trying to raise equity. And the principle is that a corporate opportunity that a director diverts covers opportunities which the company could have been expected to pursue if it had had the opportunity to do so, having regard to its stated aspirations. That principle was engaged here by Mr Huber's conduct. Third, Mr Huber's evidence was to the effect that he did not do the share trading conduct. He says that it was undertaken without his knowledge by his personal assistant Mr Narulla, and to a more limited extent by Mr Min Wee. But in my view, Mr Huber's evidence was unreliable. And for the most part Mr Huber knew and authorised what Mr Narulla and Mr Min Wee were doing on his behalf. But even if Mr Huber's evidence were to be accepted, his assertions do not constitute any defence or excuse. For the most part Mr Narulla and Mr Min Wee were acting as Mr Huber's agents in buying and selling the shares of early investors. Mr Narulla and Mr Min Wee were directing profits from the sale of those shares into the LGA loan and the Pized loan and to Mr Huber personally. Further, Mr Huber ratified those transactions by directing CellOS' registry manager and bookkeepers to record and process these transactions. I agree with CellOS that Mr Huber is responsible for the acts of his agents. (Original emphasis.) 33 The trial before his Honour proceeded first on the question of liability. Having resolved the liability claims adversely to Mr Huber, his Honour adjourned the hearing in order to receive submissions "as to the necessary orders to make to facilitate the next stage of the proceedings": LJ [1057]. The trial resumed on 28 and 29 October 2019 (the account hearing). CellOS claimed by way of remedy an account of profits made by Mr Huber and the Huber entities on the share sale transactions. His Honour received, and found in accordance with, independent expert evidence from Ms Hennessey, a partner of PwC Australia. His Honour for reasons published in the relief judgment accepted the methodology of Ms Hennessey as set out in two reports: one dated 21 May 2019 (Hennessey report) and the other 2 December 2019 (supplementary report). Mr Huber relied upon material which his Honour characterised as "two sets of extensive written submissions" dated 21 October 2019 and 20 December 2019 "together with additional documentary material by way of further evidence": RJ [7]. 34 His Honour (at RJ [9]-[34]) summarised the principles applicable to an award of an account of profits against a defaulting fiduciary, particularly by reference to Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43 (Ancient Order), Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ. A point that should be emphasised, as it looms large in the submissions made by Mr Huber, is the onus of proof once it is established that a causal connection exists between breach of fiduciary obligation and the benefit or gain which is liable to be accounted for: RJ [22] - [23]. Where that causal connection is established: "the onus shifts to the respondent to establish that it is inequitable to require an accounting of the total value of the benefit or gain received" (at RJ [24]), by reference to the plurality in Ancient Order at [13]. His Honour particularly emphasised what Gageler J said in his separate reasons in Ancient Order at [92] and [94] where, in the former, he observed: Putting aside those cases in which equitable relief might be withheld on established discretionary grounds by reference to disentitling conduct of the plaintiff, the defendant needs to demonstrate, in order to establish that it is inequitable to order an account of the value of the whole of the identified benefit or gain, either that the benefit or gain is attributable in part to one or more other contributing causes by reference to which it is "practically just" that the benefit or gain be apportioned or that some allowance be made in favour of the defendant, or that there is some other reason why accounting for the whole of the gain would amount to a windfall to the plaintiff of such a nature or to such a degree that the accounting would fail to vindicate the purposes underlying equity's imposition of the fiduciary obligation that has been breached. (Citations omitted.) 35 Returning to the analysis of the facts, his Honour concluded that "by diverting CellOS' opportunity for it to issue new shares into the market, Mr Huber improperly gained profits": RJ [35]. The Hennessey report set out Ms Hennessey's calculations to determine the quantum of that profit. Necessarily, Ms Hennessey did so based on various assumptions including that the profit varied between $52,515,488 and $114,196,498. The primary variable in that analysis turned upon assumptions made by Ms Hennessey as to the price paid to the Huber entities for share sales where the price was not known: RJ [38]. Accordingly, Ms Hennessey proceeded by reference to weighted averages. His Honour found her methodology to be appropriate: RJ [40]. 36 Ms Hennessey made an allowance for a $1 million annual salary in favour of Mr Huber, conformably with Warman International Ltd v Dwyer (1995) 182 CLR 544, "notwithstanding that it was for Mr Huber to make out any appropriate allowances in light of his conduct": RJ [41]. 37 Mr Huber failed to file an affidavit as directed to disclose the profits that he had made: RJ [42]. Rather, his affidavits were described by his Honour as "in the main" seeking to challenge the liability judgment. Accordingly, his Honour proceeded as explained at RJ [42]-[43]: Much remains unexplained and undisclosed, including Mr Huber's failure to disclose additional bank accounts which may show the flow of funds to him, the source of the payment of US$900,000 for the balance of his personal property purchase in Dubai or much in the way of corroborating documentation for the assertions contained in his affidavits. In such circumstances, I am entitled to draw inferences about the respondents' profits extrapolating out from the known purchase and sales consideration, and upon making the assumption that shares were sold at market price. Indeed, it was for Mr Huber to prove that the consideration actually paid in respect of any of those share transfers was less than the market price, and to make out any appropriate deductable allowances. 38 From RJ [57], his Honour methodically dealt with eight issues agitated by Mr Huber in addition to his "more general point that he made no profit": RJ [58]. Each issue was resolved adversely to Mr Huber, primarily on the onus question. For example, in resolving the third issue where Mr Huber claimed to be entitled to an allowance for 12.7 million shares asserted to have been erroneously included by Ms Hennessey as a component of 20.8 million shares transferred to Mr Narulla as purchases from third parties, his Honour found (at RJ [80]) that save for 3 million shares transferred to Maitreya, the 20.8 million shares were not the property of Mr Huber. Further, his Honour found at RJ [84]: In my view Mr Huber bears the onus of disentangling any profits obtained from his property from the profits obtained by reason of his fiduciary breaches. Accordingly, even if the 20,800,000 shares were transferred to Mr Narulla and others to hold on Mr Huber's behalf, he has failed to prove that any of his shares, save for CellOS' concession as to 1,100,000 of these shares, were sold as part of the Scheme and erroneously included in Ms Hennessy's assessment of profit. 39 The supplementary report made various allowances consequential upon the matters dealt with at the hearing in October 2019. In this report Ms Hennessey calculated the profit, again based on various assumptions, between $44,663,904 and $106,896,164. In particular, in the supplementary report, Ms Hennessey removed from her calculation profit on any of the 20.8 million shares being those identified by Mr Huber as his, and which Ms Hennessey was unable to trace through the scheme: RJ [97]. Nor could the proceeds of those share sales be traced into the loan monies advanced pursuant to the LGA loan or the Pized loan: RJ [98]. However, his Honour accepted that "on any view, the funds going into CellOS as part of the LGA loan and the Pized loan can be treated as funds derived from the Scheme, even if not sourced to these 20,800,000 shares specifically": RJ [99]. 40 From RJ [100] to [138], his Honour undertook a comprehensive analysis of the supplementary report to ultimately accept her methodology (at RJ [139]) as founding an account of profits based on the low scenario estimate of $44,663,904, which he discounted for contingencies to the round sum of $42 million. Within that analysis (at RJ [121]-[128]), his Honour considered and rejected further written submissions and material filed by Mr Huber on 23 December 2019, ostensibly for the purpose of responding to the supplementary report of Ms Hennessey, but which invited his Honour to reopen and review his findings as set out in the liability judgment. Unsurprisingly, his Honour rejected the invitation. A matter that Mr Huber raises in one or more of his grounds of appeal is that his Honour erroneously did not take account of losses which Mr Huber asserted he had made and his further assertion that he did not make a secret profit from the share trading of others. His Honour rejected those arguments at RJ [123]-[127] as follows: Second, Mr Huber asserted that he made losses on the LGA and Pized loans. He has also asserted that he made no profit from the secret trading of others. Now I have looked at appendix one to his submissions of some 20 pages which seems to be a cobbled together version of bits and pieces which constitute in a sense Mr Huber's case thesis that I largely rejected at the trial on liability. Moreover, I found that the proceeds of the Scheme were used to provide the funds that were then advanced as part of the LGA loan and the Pized loan. I do not accept any of his analysis including assertions about losses at the relevant time. Moreover, his detailed analysis in appendix one seems more focused, in the case of LGA, on shares in and out, and shares "owed" to him by CellOS (see p 28). But none of this is to deny the appropriateness of the profit calculations or methodology used by Ms Hennessy flowing from the Scheme. Further, as to his assertion that he is down 705,000 shares concerning Pized, again this does not take him anywhere. The fact is that the proceeds of the Scheme were used to fund the Pized loan. I should say that I do accept that there may be losses now in terms of the value of the shares currently held by the Huber controlled entities. But of course for an account of profits, one is looking at the profits made from and at the time of the breaches of fiduciary duty. Third, what has been asserted by Mr Huber from [5] to [13] of his latest submissions is a composite of a stream of consciousness and wishful thinking. The opportunity given to Mr Huber was to respond to the supplementary Hennessy report in terms of its up to date calculations flowing from the hearing on quantum. It was not an opportunity for Mr Huber to have another go as to how he would have wished the trial on liability to have proceeded and been determined. Fourth, I have considered the miscellany of points at [14] to [25] of his latest submissions. To the extent, which are few in number, that they engage with Ms Hennessy's analysis they are unconvincing. Nevertheless I am going to discount Ms Hennessy's overall figures in order to cover any contingencies or points that I might have overlooked. Further, to the extent that these points seek to re-open my liability findings, I reject them. Fifth, Mr Huber has made submissions on topics such as "Alleged leakage" (including appendix three) and "Secret Share Trading" (including appendix four), but again much of this seems to engage more with my liability findings and not with the supplementary Hennessy report although there are some rare exceptions (see for example [111] on p 53). The same can be said for matters concerning Mr Patel (appendix two). In this context, I have also considered the summary of points at [19] to [25], [41] to [43], [44] to [46] and [47] to [53], but the same points can be made.

The notice of appeal 41 Pursuant to orders as ultimately made by Davies J on 18 June 2021, leave was granted to Mr Huber to file and serve an amended proposed notice of appeal. The document pressed by Mr Huber with that title is dated 7 April 2022 and comprises nine grounds and 10 pages. Unfortunately that economy masks the real complaints of Mr Huber which are revealed in a prolix document with the disarming title: Appeal Book Chapters 1-9 (Chapters document) extending over 841 pages with multiple annexures. Some of the annexures appear to be documents that were before Beach J. Others were not, for example there is much material that is concerned with the liquidation of CellOS. There is also material that Mr Huber provides as his account of losses that he claims he and the Huber entities suffered in consequence of the share trading. The Chapters document is replete with argumentative material, claims of lies and fraud to the effect that the other persons concerned in the management of CellOS implemented a project to oust Mr Huber from the company, to ruin his personal and professional life and to fraudulently commence the proceeding as a component of the scheme. Mr Huber refers to this as "PROJECT-D (Decapitation)". In his own words the scheme amounted to: "Sabotage, Theft and ruin of CellOS and its founder." Mr Huber describes the scheme participants and primary elements as : 2.1 By the middle of 2013 a Secret Share Trading Scheme was set up by Harveen Singh Narulla ("Harveen") with Melvin Tan ("Melvin" or "TAN"). Eventually Melvin Tan brought Constance Peck ("Constance") into the scheme and by 2015 the scheme also included Janifer Yeo-Tan, Jasbir Narulla, Inderjit Singh, Kamlesh Patel, Thio Gim Hock, Ong-Ang Ai Boon and others. 2.2. From 2007 Harveen was company secretary of CellOS and was responsible for the company's share management. In mid 2013 Harveen, arranged to secretly trade CellOS shares with one of the main CellOS engaged share brokers called Melvin Tan and his client Constance Peck and they set up several secret companies with the help of Chua Min Wee and his company Grandeza. Harveen admitted Refer to Douglas Reid Affidavit 08/09/2017 DR-3 that he used these companies and secretly bought cheap shares from early shareholders including his family and friends. Harveen used many secret companies ("Harveen Controlled Companies "HCC") and further transferred the shares to more secret Harveen Controlled Companies. see para 28 witness statement (amended) 17/05/2018 Tan. 2.3. Harveen sold most of the shares to Melvin Tan, and Constance Peck. Melvin Tan also interposed his wife, Seah Chye Tin to further hide their identities from the Appellant, who then on-sold the shares mainly to the parishioners of the Christian City Mission Church in Kallang Singapore with the help of the two Senior Pastors Thio Gim Hock and Ong-Ang Ai Boon. Shareholders were made to pledge 10% of their impending profits to Thio Gim Hock's Charities. See Ex P17 List of Exhibits tendered at trial provided to parties May 2018, BUNDLE OF PLEDGES IN WITH THE PURCHASE OF SHARES (NOT IN CB) 2.4. The Appellant discovered and stopped the secret trading. As explained below It is incomprehensible that the share trading could be conducted for the Appellant when the Glaringly Obvious Evidence is that the Conspirators deliberately hid the trading from him and that he did everything possible find out about it and subsequently stopped it. (Original emphasis.) 42 This is a component of Chapter 9, comprising 32 pages of argumentative propositions and references to evidence that it is said Beach J overlooked or misunderstood. Of course the immediate difficulty with this Chapter is that his Honour well understood that Mr Huber's case at trial included the contention that he was the victim of fraudulent conduct by Mr Narulla and Mr Tan, which he summarised (at LJ [16]-[17]) and rejected as implausible, unreliable, false, as falling with the adverse credibility findings and as a recent invention: for example, LJ [39], [436], [451],[465] and [471]. 43 I return to the proposed appeal grounds. They provide (with original emphasis and without correcting for grammatical errors) that Beach J erred in: 1. failing to objectively consider that the allegations made against the Appellant were so serious and had such serious consequences see Appeal Book Chapter1 Para16 that the evidence and issues presented in the case were required to be considered by application of the Briginshaw standard. This provision reflects Dixon J's discussion of the quality of persuasion required for this purpose in Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342 (Briginshaw). 1.1 The Learned Judge ought to have recognised the seriousness of the allegations against the Appellant as Gzell J. did in Australian Securities and Investments Commission v Macdonald [No 11] [2009] NSWSC 287; [2009] 71 ACSR 368, [2009] 230 FLR1, and the potential consequences of civil penalty proceedings demanded the application of the Briginshaw standard. His Honour explained (at [182]-[186]) that: Section 140 of the Evidence Act 1995 prescribes the standard of proof in civil proceedings as the balance of probabilities and provides that the court may take into account in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. 1.2 the Learned Judge ought to have proceeded upon the basis that the Briginshaw standard applied following the recognition of the serious consequences, see appeal book Chapter1 Para similar to the decision by Spigelman CJ, Beazley and Giles JJA, in the Court of Appeal decision of Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; [2010] NSWCA 331; Their Honours confirmed that that standard finds its modern expression in the terms of Section 140 of the Evidence Act 1995 (Cth) ('The Evidence Act') and that the Briginshaw standard is routinely applied in civil penalty proceedings. 1.3 applying the Briginshaw standard to the facts of the case which involved detailed accounting statements, required that he consider all of the information before him objectively. Instead, the Learned Judge applied a subjective standard where he preferred the statements proffered by the Respondent over those of the Appellant based on his incorrect assessment of relative credibility of the witnesses. as follows: See Appeal Book Chapter1 paragraph10 to 15 2. failing to provide reasons for not providing a reconciliation between the competing accounting statements of the parties to demonstrate why the Appellant's financial statements were incorrect. 2.1 In Makita (Australia) Pty Ltd v Sprowles, (2001) 52 NSWLR 705. Heydon JA interpreted Australian Corporations Law s.79 to require identification and proof of the factual basis of an opinion, and the exposure of the expert's reasoning process to demonstrate that an opinion is based on specialised knowledge. It is necessary for the expert to disclose the reasoning which led to the expert's opinion. (Refer Makita at para 85.) The Learned Judge again based his Verdict 2020 for Quantum on the third Hennessy report of 2 December 2019. Ms Hennessy erred at law when she failed to provide the necessary factual basis for not disclosing her reasons why she considered all the transactions to be "homogeneous" and therefore not producing the ordered reconciliation. See Appeal Book Chapter1 para4.2 3. failing to provide reasons for not providing a reconciliation between the competing accounting statements of the parties to demonstrate why the Appellant's financial statements were false. 3.1 The Learned Judge referred to this comprehensive share transfer and cash flow analyses articulated by the Appellant in Appendix 1 of the Affidavit dated 20/12/2019 Huber, as 'cobbled together'. see para 6, 122 and 123 Verdict 2020 which in layman or non-technical terms, are not acceptable. further and in the alternative the learned Judge erred in law when he failed to provide reasons and explain how the cash flow analysis is "cobbled". See Appeal Book Chapter1 para3&4. 4. failing to objectively consider the reconciliation provided by the Appellant that the Appellant did in fact suffer substantial losses in providing additional working capital for the Respondent. 4.1 When the reconciliation provided by the Appellant showed that he suffered losses of over 4.5million shares see below Table 3 line 7 for the benefit of CellOS under the loan agreements AND the Appellant lost another 3.8 million shares see below Table 3 line 12 in shares he transferred to Directors and Staff on behalf of CellOS. The Appellant's Total Loss was 8.3million shares see below Table 3 line 13, for the benefit of CellOS. see Appendix1 in the Affidavit VID951/2015, 20 December 2019 Huber, and see Appeal Book Chapter4 TABLE3, Page 18 table2 and 3. 4.2. Below Table 2 is a reconciliation between June 2011 and June 2015 of the original shares contributed by the Appellant to Fund CellOS with the shares sold under the LGA and Pized Loans. see attached Appeal Book Chapter 4 TABLE 3 Page 18 table 2. Only Appellant's Shares Used Shares used Shares From Appellant Shares again Shares Transferred to Harveen Narulla 18,441,659 Shares refunded to Harvest Sky sold again 2,583,641 Shares refunded to Rex sold again 600,000 3,183,641 Total Appellant's shares used to fund CellOS (21,625,300) Portion of above shares Sold under LGA (20,261,176) Portion of above Shares sold under Pized (1,496,000) Appellant's original shares sold under LGA and Pized (21,757,176)

Below Table 3 is a Reconciliation June 2011 and June 2015 of the Appellant's original shares sold with the shares refunded, and the Appellant's original shares transferred by the Appellant to Directors and Management. see Appeal Book Chapter 4 TABLE 3 Page 18 table 3. no Combined share loss to the Appellant. Reference Shares From Appellant Shares Loss 1 Total shares Sold under LGA AppCh4T3 Para 2 (20,261,176) 2 Total shares Sold under PIZED AppCH4T3 Para 3 (1,496,000) 3 Total LGA and Pized shares sold (21,757,176) 4 Shares refunded under LGA 16,815,157 6 US$10million PIZED Loan Conversion refund AppCH4T3 Para 3 HUB.001.001.0160 400,000 7 Net Loss of Shares to the Appellant LGA & PIZED (4,542,019) 8 Appellant's Shares Transferred to 9 Kamlesh Patel (Director) CB1232-1240 and (2,100,000) A82 TAB5 10 John Buhagiar (Director) CB3 1448 CEL.114.001.0067 (1,000,000) 11 Management Team CEL.209.016.1290 CEL.211.010.1645 (1,100,000) 12 Less Management returned shares AppCh4 TABLE2 No 786 to790 400,000 (3,800,000) 13 Total share loss to the Appellant (8,342,019)

5. failing to objectively consider the evidence that the Appellant was not aware of, did not participate in, and did not benefit from the secret trading by Harveen Narulla when: 5.1 the evidence is that None of these transactions that he attributed to the Appellant were seen or signed by the Appellant, who was unaware of the secret trades because from August 2012, he no longer signed any share statements. Harveen Narulla admitted that from the Middle of 2013 he was able to deliberately hide the transactions from the Appellant because the investors dealt directly with Computershare, enableing Harveen Narulla to circumvent the Appellant. When the evidence is that the Appellant made efforts to find out about the share trading and upon discovery, he blocked them, still not knowing that Harveen Narulla was secretly supplying the shares to Melvin Tan. See full Affidavit VID338/2020, 10 August 2021 Huber. 5.2 the Respondent admitted that by June 2015, the Appellant sold all his original 21 million shares, to Singapore based retail investors and the proceeds, A$40million advanced to CellOS, of which CellOS only refunded to the Appellant 16.8million shares. See Mathew Critchley Letter attached to Appeal Chapter 4.1 and Appendix A 3rd Revised Report 2 December 2019 Hennessy. Compare Appeal Book Chapter 4 Table 3 to Chapter 3 Table 3 • when all the Appellant's share sales to fund CellOS under the LGA and Pized loans were personally signed by the Appellant See Appeal Book Chapter 4 TABLE 1 WHEREAS: • when none of these secret sales by Harveen Narulla were seen or signed by the Appellant. See Appeal Book Chapter 3 TABLE 1. AND: • when none of the share transfer forms of the secret purchases by Harveen Narulla were seen or signed by the Appellant. see Appeal Book Chapter 3 TABLE 2 5.3 Harveen Narulla, Melvin Tan and Constance Peck all gave uncontested, and glaringly obvious evidence and testimony of their scheme to secretly trade CellOS shares mainly using Melvin Tan's wife Seah Chye Tin as a front and testified about the great lengths they took to camouflage the trades from the Appellant for example: see Appeal Chapter1 para 8.2 5.3.1. when Melvin Tan testified ---No. Absolutely - I - I strongly believe there's no inkling between Jason Huber and - and Harveen, because he swore me to secrecy time and time and again that, "Melvin, please, never, ever - if you want to buy my shares, never, ever to let Jason Huber know that I am selling CellOS shares." So I strongly believe that it's nothing to do with Jason Huber. He is completely out of the loop." T1309 Melvin Tan. And see witness statement 5/09/2017 Melvin Tan and when Melvin Tan testified that Mr Narulla and his family had plenty of money and controlled many companies with money and had the personal ability to buy the shares. and the evidence confirmed this statement by Melvin Tan T1309 Melvin Tan. See Appeal Book Chapter 2 Para 10.2&10.3 and see Appeal Appendix 10. 5.3.2 when the glaringly obvious evidence was that the Appellant was unaware of the secret trades because from August 2012, he no longer signed any share statements. The Investors dealt directly with Computershare enabling Harveen to hide the transactions from the Appellant. See full affidavit VID338/2020, 9 August 2021 Huber. 5.3.3 when Harveen Narulla wrote to Chua Min Wee of Grandeza. "Your firm managed my CellOS assets" and "it made sense for me to ensure that my shares were managed discretely, with no reference to him." And "I hopped along that relationship as I was also at the time looking for someone to help manage my own assets." Harveen admitted that he understood how the Lawyers would misinterpret the company ownership, control and shareholdings when he wrote "the lawyers in Melbourne seem to have assumed that whatever is held these companies was Huber's. This is not correct, but I can understand them making this mistake." Refer to DR-3 VID951/2015 Affidavit 08/09/2017 Douglas Reid. 5.4. Extensive correspondence and testimony evidence showed, the Appellant had tried to find out about the secret companies and share trading. See CEL.209.010.4431. On Discovery of the trading the Appellant took several active steps to stop the secret trading including engaging the company lawyers to block the trades. The Appellant wrote emails to and had a meeting with Constance Peck in October 2013 to enquire about the trades CB1097-1100, CEL.209.007.8825, and Harveen Narulla, and eventually instructed Computershare to block several of the trades despite Computershare writing letters to the Appellant warning him that according to the company constitution Para 8 he could not legally block the sales without "Precise reasons," see attach 24 witness statement VID951/2015 17 August 2017 Huber wrote a 'Cease and Desist' letter to Melvin Tan. see VID951/2015, AB1944, CEL.209.022.0918. see Appeal Book Chapter 3. 6. The Learned Judge erred in his analysis of the law which he set out in paras 28-34 of the Verdict 2020 for in the analysis he failed to address, in substance or form the basic accounting concept underlying any company's balance sheet, tie the basic accounting equation which states that assets equal equity plus debt (A = E+ D). As a consequence of that error, he failed to provide the reconciliation of the matter of causation, between the appellant's alleged actions and CellOS financial position. 6.1. Table 5 Verdict 2020 merely contains hypothetical profits based on a mixture of transfers between the secret companies owned and controlled by Harveen Narulla, Melvin Tan, his wife Seah Chye Tin and Constance Peck for which there is no evidence of the Appellant having seen or signed these transactions and for which no connection is attributed to the Respondent's audited financial statements. Curiously Table 5 deducts the A$53,183,539 Funds advanced by the Appellant from the sale of his original shares and unpaid salary which had no connection to the secret trading by Harveen Narulla. See Appeal Book Chapter1 para4.4&4.5 6.2. Even if the Learned Judge had in his analysis of the law that he set-out in paras 28-34 of the Verdict 2020 contemplated the basic accounting equation underlying his analysis he erred when he failed to identify what the asset value would have been, had the share transactions attributed to the Appellant not taken place. 6.3. Instead, the Learned Judge ordered an account of profits; an order that can only be complied with if there was in fact a profit and neglected to provide a reconciliation for which the learned judge has not found possible to quantify. 6.4. Even if the Learned Judge's order of an account of profits is in fact an order to provide an accounting of the loss of funds (which he alludes to the last two lines of paragraph 32) he does not then make any reference to CellOS published financial statements including statement of cashflow. and cash balances for the relevant period. 6.5. Whereas the Appellant did provide a reconciliation of the Losses he incurred on selling his 21million original shares and the eventual refund of 16.8million shares by the Respondent and the further outgoing of 3.8million original shares by the Appellant in Bonuses to Directors and Management and the cash proceeds of A$40million advanced to CellOS for which CellOS only gained and for which had no connection to the secret trading by Harveen Narulla. The funding of CellOS was correctly accounted for and presented in the CellOS unqualified Audited financial statements for the financial years ending 30 June 2012 to 2014. 6.6. It is then submitted that the failure to consider cashflows and cash balances in his analysis is evidence that the learned judge had in his analysis contained in paras 28-34 of the Verdict 2020 had erred in considering a balance sheet when he in fact had in his contemplation a cashflow test. 6.7. Having applied an incorrect test the Learned Judge has now ordered that the appellant provide an accounting that satisfies the court, but where the court has not made any finding as to where the financial statements presented are flawed. See Verdict 2020. 7. failing to consider that the financial statements provided by the Respondent "were not in the form of financial statements which the court can read for itself" (per Austin) in ASIC v. Rich, (2005) 53 ACSR 110, at para 284), instead attempting to analyse the figures before him without any guidance but that of the Respondents. 7.1. Further and in the alternative, even if the Judge is considered to have applied the correct test, the order he has made with regards an accounting is ambiguous for it contemplates the submission of financial statements that are different to those already presented to the court, but for which the Court has not provided any finding of falsity or inaccuracy in form and substance. See CellOS Audited Financial Statements for the years ended 30 June 2012 to 2014. 7.2. The Learned Judge failed to consider the financial transactions in the form of a reconciliation that are at the heart of this matter. The reasons for the decision allude to various cash transactions and their consequences for CellOS but then there is no reference at all to any of CellOS audited cashflow statements. Cash transactions can only be evidenced by the cashflow statement and if not the source documents underlying the cashflow statement (ref: The statement of cash flow as a tool to determine solvency Ganesh Sahathevan (2005) 16 JBFLP 93 at 94)) 7.3. Errors in the quantifying of damages, in assessing the quantum of damages The Learned Judge seems to have applied the balance sheet test, which has been shown to be an impractical if not impossible method of evaluating cash balances (ref: The statement of cash flow as a tool to determine solvency Ganesh Sahathevan (2005) 16 JBFLP 93 at 94). He has done so despite his cash-based evaluation of CellOS potential value. 8. failing to seek expert accounting opinion to reconcile or choose between the competing financial statements before him, instead substituting his own subjective evidence assessment. The Appellant is a qualified Fellow Certified Practicing Accountant, but the Judge chose to ignore his evidence based on his own subjective assessment. 9. failing to be impartial and in applying an objective standard to the evidence before him. In his words: "Indeed I would say at this point in relation to evidence by Mr Huber that I have given it little weight except where it has been independently corroborated by other probative evidence or where it was adverse to his interest". Para 39 of the verdict 2018. 44 Manifestly this notice fails to comply with the basal requirements for a notice of appeal. And as noted, lurking behind each ground is the Chapters document. Thus and taking ground 1 as an example, the contention that his Honour failed to proceed in accordance with the "Briginshaw standard" is Chapter 1 which is introduced as follows: Objective Test The learned Judge failed to apply the Briginshaw standard in evaluating the evidence before him, given the especially serious allegations against the Appellant, rather he applied a subjective test despite objective accounting evidence being put before him. Evidenced Accounting Cash Flow In failing to produce and objectively consider the financial transactions in the form of a reconciliation that are at the heart of this matter. The reasons for the decision allude to various cash transactions and their consequences for CellOS but then there is no reference at all to any of CellOS audited cashflow statements. Cash transactions canonly be evidenced by the cashflow statement and if not, the source documents underlying the cashflow statement as provided in the Reconciliation Tables by the Appellant. The Learned Judge made findings on important matters which could not be supported on the evidence leading him to make errors of law of such significance that the decision should be overturned. 45 There is an index to this Chapter which proceeds by reference to 18 cross-referenced paragraphs that assert various forms of error. By way of further illustration, the second contended error is that his Honour: "failed to provide the necessary reconciliation" in the verdict and where, by way of further elaboration, the cross referenced paragraphs provide: 2. The Judge failed to apply the Briginshaw standard in evaluating the evidence before him, given the especially serious allegations against the Appellant, rather he applied a subjective test despite objective accounting evidence being put before him. the Judge wrote: "Indeed I would say at this point in relation to evidence by Mr Huber that I have given it little weight except where it has been independently corroborated by other probative evidence or where it was adverse to his interest". Para 39 of the verdict 2018. 2.1. The Learned Judge erred by applying a subjective standard when only an objective standard in the assessment of the facts could have possibly resolved the competing arguments before him. When doing so The Learned Judge evaluated accounting evidence by assessing the credibility of the witnesses and the Appellant, and failed to provide the necessary "reconciliation" of the share sales of the original shares made by the Appellant for no personal benefit as opposed to the shares purchased and resold for personal profit by Harveen Narulla with Melvin Tan and Constance Peck , despite the admission by the Lawyers for the Respondent that the Appellant's original shares were the basis for the funding of CellOS. Instead, the Judge said that the onus was on the Appellant to prove that he did not benefit from the secret share trading. See para 140 Verdict 2020. However: 2.2. The Learned Judge failed to objectively consider that the Appellant DID provide the required reconciliation that proved that he did not participate in or benefit from the secret trading between the Conspirators. Furthermore, the evidence is that upon his discovery the Appellant appointed lawyers and took formal steps to block the secret trading. See Appendix 1 Affidavit 20 December 2019 Huber. The Appellant is a Qualified Fellow Certified Practicing Accountant with over 25years public accounting experience and who co-signed the 8 Unqualified Audited Financial Statements of CellOS with respect to the financial years between 2006 and 2013 inclusive. 46 This is as much of the Chapters document that a reader of this judgment needs to comprehend. It is pointless to set out more of it. It follows the same theme. 47 What these argumentative paragraphs fail to engage with is identification of specific error in the relief judgment. The reconciliation claimed to have been provided by Mr Huber cannot itself be reconciled with his Honour's statement of the equitable accounting principle at RJ [24]-[28] where his Honour was careful to explain how the onus shifts to a respondent to establish that it is inequitable "to require an accounting of the total value of the benefit or gain received" (at RJ [24]), particularly by reference to the statement of principle by Gageler J in Ancient Order that his Honour set out (at RJ [26]), which I have reproduced above. Moreover, these contentions fail to grapple with the reasoning of his Honour in the relief judgment that Mr Huber failed, despite further direction from the Court, to file an affidavit upon the taking of the account, at RJ [42]: Now although Mr Huber was directed to file an affidavit disclosing the profits made by him, Mr Huber's affidavits in the main simply seek to challenge my principal reasons. Much remains unexplained and undisclosed, including Mr Huber's failure to disclose additional bank accounts which may show the flow of funds to him, the source of the payment of US$900,000 for the balance of his personal property purchase in Dubai or much in the way of corroborating documentation for the assertions contained in his affidavits. 48 Mr Huber was afforded ample opportunity through the mechanism of the taking of the account to provide evidence as to the profits, or losses, made or suffered in consequence of the implementation of the share trading scheme. He failed to do so. Further, his Honour was satisfied that Mr Huber did derive significant profit from the scheme, despite that his Honour accepted that some of the share trading by Mr Narulla was undertaken without the knowledge of Mr Huber: RJ [89]. However, that did not detract from the general proposition that profits were made, as found by his Honour at RJ [90]: Fourth, irrespective of whether Mr Huber knew about the transactions, he profited from the transactions. Generally speaking, Mr Huber used the profits of the Scheme to fund CellOS through the LGA loan and the Pized loan. He also used such profits in connection with the discharge of his bankruptcy, paying other personal expenses, and in the purchase of properties in Melbourne and Dubai. I found that the proceeds of share sales were paid into Nesterland's bank account, and Mr Huber's personal expenses were paid out of the Nesterland bank account. 49 The generalised assertions formulated by Mr Huber as comprising ground 1 of his appeal amount to no more than un-particularised assertions that his Honour failed to make findings in accordance with his evidence and case theory. An appeal by way of rehearing is not a re-run of the trial. Nor is it a rehearsal. A trial does not serve as a venue for obtaining further particulars before the real case is developed on appeal. An appellant is obliged to identify appealable error in the notice of appeal. These propositions are elementary: Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208-209, Windeyer J; Coulton v Halcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23], Gaudron, McHugh, Gummow and Hayne JJ. 50 Rule 36.01 of the Rules at subrule (2)(c) requires that the notice of appeal must state "briefly but specifically, the grounds relied on in support of the appeal." Whilst failure to comply with this requirement does not necessarily result in an incompetent appeal, as is well understood, an appeal notice which fails to identify in a coherent way the error or errors said to have been committed by the primary judge is liable to be struck out, dismissed as incompetent or as an abuse of process: Young v Crime and Corruption Commission [2018] QCA 55, where Sofronoff P observed: Rule 747(1)(b) of the UCPR requires that a notice of appeal must state briefly and specifically the grounds of appeal. This notice does not comply with that rule; worse, its contents are entirely irrational and incomprehensible and demonstrate that the proposed appeal, at least in its current form, would be vexatious. Litigation is burdensome and not only be reason of the time and money that must be spent. The Courts cannot permit litigants to prosecute claims or appeals which are self-evidently groundless. 51 Baseless appeals should not be brought. Over many years the same or similar criticisms have been expressed by the Full Court of this Court, often in exasperation and frequently in the context of determining appeals by self-represented litigants. Thus in Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30, Gyles, Stone and Buchanan JJ, in dismissing an appeal by a self-represented appellant, commenced by observing, in terms which have obvious parallels to this matter, at [2]-[4]: To reach his conclusions the primary judge undertook a painstaking examination of the evidence, including an assessment of the credibility of witnesses. The proceedings took many days to hear. They are ones in which the primary judge had the clearest of advantages over an appeal court in assessing the evidence and drawing conclusions. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [22]- [30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (as trustee for the Baker Family Trust) [2005] FCAFC 131; (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error. The main judgment under appeal is long and thorough. It appears to us that the appellant had the benefit of a patient and conscientious consideration of all her complaints and of the admissible evidence upon which she relied to advance her claims. The fact that the proceedings did not result in a more favourable outcome for her reflects the character and content of her case at first instance rather than any error in the approach taken by the primary judge…. 52 See also: Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 128, Spender, O'Loughlin and Branson JJ, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2015) 234 FCR 549; [2015] FCAFC 157 (Sydneywide) at [4], Branson J and [48]-[49], Weinberg and Dowsett JJ, Mawhinney v Australian Securities and Investments Commission (2022) 405 ALR 292; [2022] FCAFC 159 at [4]-[7], Jagot, O'Bryan and Cheeseman JJ, Giddings v Australian Information Commissioner [2017] FCAFC 225 at [9], Collier, Flick and Charlesworth JJ and, particularly in appeals limited to a question of law, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; [2003] FCAFC 244 at [41]-[48], Branson J. 53 Frequently the Full Court of this Court is vexed with a multiplicity of discursive appeal grounds which fail to identify appealable error, recast arguments that failed at trial or invite review of the minutiae of factual findings. An appeal is not a vehicle to express disagreement with any adverse fact finding which is said to be supported by contrary evidence, especially where, as here, the findings challenged were influenced by his Honour's adverse credibility assessment of the whole of the evidence of Mr Huber. An appeal which seizes "upon some relatively minor aspects of the reasons" as disclosing error ignores what is required to challenge a finding of fact made or influenced by demeanour: Massoud v Nationwide News Pty Ltd [2022] NSWCA 150 at [143], Leeming JA (Mitchelmore JA and Simpson AJA concurring). As explained in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] by Bell, Gageler, Nettle and Edelman JJ: A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". (Footnotes omitted.) 54 Even where credit is not determinative, challenges to subordinate fact findings are unlikely to succeed absent demonstration that the primary judge erred in wrongly determining an ultimate fact: Sydneywide at [4], Branson J. 55 Regrettably, the requirement to formulate appeal grounds that succinctly identify error is often overlooked by lawyers and is almost universally ignored by self-represented litigants. Sage advice as to what is required was provided by the Honourable Michael McHugh AC QC writing in 2010: Preparing and arguing an appeal (2010) NSW Bar News 85 at 87: The findings of the trial judge are not provisional until they are affirmed by the appellate court. They are the reality with which you must deal. You have to accept them or attack them. Until error is demonstrated, those findings bind the parties. The primary focus of the appeal therefore is different from the focus of the trial court. The appellate court searches for error and will not make its own findings - whether of fact or law - until the appellant has persuaded the court that the trial judge or, in the case of the High Court - the intermediate Court of Appeal, has erred. The playing field in the appeal is therefore smaller than it was at the trial. Unfortunately, this is a lesson that many trial lawyers who conduct appeals fail to understand… Many points open at the trial will no longer be open to debate. Nor is it the place to debate every area which might have some connection with the issues in the appeal. To do so inevitably results in that party's argument lacking force and coherence. 56 Justice Katzmann somewhat more pithily made the same point in 2015 in a talk presented as part of the College of Law Judges Series: Pleadings and case management in civil proceedings in the Federal Court of Australia, and which is published on the Court's website: Remember this: A judge will not look at a prolix notice of appeal and think the primary judge stuffed up the case. Rather, generally speaking the judge's instinctive reaction will be that the practitioner who drafted or settled the document and the one who failed to jettison it is incompetent and/or lacks judgment. That might give the judge the impression that the appeal is without merit. That is not a good start. 57 Her Honour's advice deserves wider circulation. 58 Self-represented litigants enjoy no especial dispensation from these requirements. Speaking in relation to pleadings, though in terms equally applicable to appeals, the Full Court forcefully made that point Manolakis v Carter [2008] FCAFC 183, Spender, Graham and Tracey JJ, particularly at [9]-[10]: Whatever the difficulties facing an applicant in person may be, those difficulties cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go. Justice requires fairness to all parties. A respondent is entitled, at the least, to know the case that is brought against him or her and the rudimentary facts upon which that case is based. Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private 'Royal Commissions'. Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court. 59 Frequently the degree of latitude that is afforded to self-represented litigants is difficult to reconcile with the overarching purpose of the civil practice and procedure of the Court that is required by ss 37M and 37N of the FCA Act. As paragraph [7] of the Central Practice Note: National Court Framework and Case Management (CPN-1) makes unambiguously clear, parties and lawyers "are expected, and have a statutory duty, to co-operate with the Court and among themselves to assist in achieving the overarching purpose". The overarching purpose "is expressed in language which is imperative and immediate": Vita Group Ltd, In the matter of Vita Group Ltd [2023] FCA 400 at [14], Jackman J. 60 Of itself the statutory obligation to conduct a proceeding, including an appeal, in a way that is consistent with the overarching purpose according to law, as quickly, inexpensively and efficiently as possible including to achieve the objectives of the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court's overall caseload, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute requires that careful attention be paid to the drafting of appeal grounds that identify relevant error in a coherent manner. The duty to ensure that a self-represented litigant receives a fair trial is framed by the overarching purpose. 61 It must be accepted that it is often difficult for, at least some, self-represented litigants to comprehend what is required in order to formulate a notice of appeal which complies with the various requirements that I have summarised. However, what must not be permitted in my view is the proliferation of "appeal grounds" which "are replete with general assertions of error and irrelevancies with little, if any, attempt being made to identify the alleged errors, much less to explain why they are said to constitute errors": DOQ17 v Australian Financial Security Authority [2020] FCAFC 219 at [3], Reeves, Anastassiou and Abraham JJ, which appeal concerned an unsatisfactory notice of appeal as drawn by a self-represented appellant. As further explained by the Court in that case at [4]: In large part, these deficiencies are likely to stem from the fact that DOQ17 is self-represented in this appeal. The difficult balancing task which confronts an appeal court when this situation arises was the subject of the following observations by another Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [52]- [54]. There the Court said: 52 ... "[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy". In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter. 53 However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator ... Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties ... 54 The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent ... (Citations omitted.) 62 I return to Mr Huber's proposed notice of appeal and grounds which, for the reasons that follow, fundamentally fail to identify appealable error in a coherent way and which, on detailed analysis, amount to no more than expressing disagreement with the way in which Beach J resolved many questions of fact adversely to the case presented by Mr Huber at the trial. Those considerations in this particular case weigh heavily against a favourable exercise of the discretion to grant leave to continue with the appeal pursuant to s 500(2) of the Corporations Act. 63 I confine my analysis to the nine grounds as set out in the proposed notice of appeal. I do not read that document as informed by or incorporating the corresponding Chapters document. Initially Mr Huber framed his proposed appeal grounds in the form of a document annexed to his affidavit of 21 May 2020, in support of an application to extend the time for the filing of the appeal. That notice extended to 21 pages with a multiplicity of sub-grounds arising from three primary grounds. At a case management hearing on 2 October 2020, Davies J explained why that document failed to comply with the requirements for a valid notice of appeal in that it purported to challenge a very large number of factual findings that were made by Beach J without identifying what relevant findings were made, and why his Honour erred. Her Honour granted leave to file and serve an amended draft notice of appeal by 6 November 2020. 64 The resulting amended proposed notice of appeal was filed by Mr Huber on 6 November 2020. This document extended over 47 pages, purportedly comprising three main grounds with a multiplicity of sub-grounds and contentions. That document was discussed before Davies J at a case management hearing on 27 November 2020. Her Honour explained to Mr Huber that many of his appeal grounds were oblique, failed to specifically identify what factual findings were the subject of challenge and why it was said Beach J erred. Her Honour granted further leave to Mr Huber to file an amended proposed notice of appeal by 15 January 2021. 65 On 13 January 2021, Mr Huber filed an affidavit and on 14 January 2021, a further proposed notice of appeal extending to 92 pages, which Davies J dealt with at a case management hearing on 12 February 2021. As correctly submitted by counsel for the respondent at that time the document was: "a mixture of appeal grounds, argument, background material for information, and quotations. A lot of it doesn't even seem to relate to what the grounds of appeal may be." Her Honour agreed, observing that the document: "has become even more prolix, and even more confusing about what the essence" of what Mr Huber's appeal was about. Her Honour granted further leave to Mr Huber to file a further amended proposed notice of appeal by 7 May 2021. That order was subsequently varied on 17 May 2021, so as to provide that a further amended proposed notice of appeal be filed by 11 June 2021. 66 Davies J conducted a further case management hearing on 18 June 2021, at which time Mr Huber was legally represented. The order made on 17 May 2021 was not complied with and counsel offered an explanation as to why. An indulgence was requested, and ultimately granted, to the effect that the proposed amended notice of appeal was required to be filed by 23 July 2021. 67 Mr Huber did not retain legal counsel for very long. On 23 July 2021, he authored and filed an amended proposed notice of appeal comprising 44 pages, once again with a multiplicity of sub-grounds. Davies J conducted another case management hearing on 30 July 2021. Counsel for the respondent objected to this document and foreshadowed an application to strike out the appeal. Her Honour adjourned the case management hearing to 13 August 2021. 68 On 13 August 2021 her Honour noted an affidavit filed by Mr Huber on 10 August 2021 as apparently containing an explanation for the manner of the drafting of the proposed appeal grounds. Counsel for the respondent foreshadowed an application to dismiss the appeal, and her Honour adjourned the further case management for that purpose to a date to be fixed. Thereafter, the application to extend time for the filing of the appeal was docketed to my list. I conducted a case management hearing on 13 April 2022, by which time the respondent had been placed into administration, and the question of leave to proceed then arose. 69 Mr Huber submitted to me that a reason for preparing his Chapters document is that Davies J limited his notice of appeal to 10 pages. The proposed notice of appeal pressed before me is so limited. As Davies J repeatedly explained to Mr Huber, it is the notice of appeal which must set out the appeal grounds in a way that identifies error on the part of a primary judge. What is apparent is that Mr Huber relies on the Chapters document as a means of avoiding the 10 page limit. The Chapters document is a prolix and impenetrable litany of rambling complaints which, in large measure, regurgitate evidence and arguments that Mr Huber put to Beach J which his Honour comprehensively rejected. It is the notice of appeal and the grounds identified in it to which consideration of the leave to proceed question must be confined. To proceed otherwise is to ignore the basic requirements for a valid and conforming notice of appeal. Any material deficiency in that document is incapable of being remedied by the Chapters document and Mr Huber's list of grievances.

The Grounds of Appeal 70 Ground 1 on its face is of no merit and has no prospect of success. It is inconceivable that Beach J was not cognisant of the fact that serious allegations were made against and by Mr Huber. His Honour clearly understood that it was a case of significant broad scale and complex fraud and said so on multiple occasions: for example, LJ [15], [17] and [23]. It is quite wrong to imply, as this ground does, that his Honour did not mention Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362, per Dixon J. He did (at LJ [834]) in the context of satisfaction that fraud is a serious allegation. Moreover, plainly his Honour did not make findings of fact based on "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw at 362. Rather, he proceeded in accordance with the oral testimony of many witnesses, who he found to be honest, and by a meticulous examination of the contemporaneous documents. At LJ [181] his Honour explained that he had no intention of listing every share transaction to or from the Huber entities; instead he focused on "some particularly relevant or large transactions". The findings of fact that his Honour made relating to those share transfers were based on the documents adduced in evidence at the trial. 71 The assertion that his Honour did not objectively assess the evidence to make findings of fact is devoid of any merit and contrary to the detailed and extensive evidentiary analysis and factual findings as set out in the liability judgment and the relief judgment. 72 The jumble of authorities referenced in this ground which have applied the Briginshaw analysis do not assist in identifying where and in what respects his Honour erred in misunderstanding the quality of the evidence required to make out the fraud allegations. Expressed at a level of generality that fails to reveal error, Mr Huber contends that his Honour made an incorrect assessment of the credibility of unidentified witnesses. On one view, this may be taken to include a reference to paragraph [39] of the liability judgment where his Honour summarised his overall conclusion that he did not have confidence in the reliability of Mr Huber's evidence generally or the weight that should be afforded to it. The paragraph concludes with the finding that Mr Huber's evidence was given little weight except where independently corroborated or adverse to interest. This ground is hopeless. 73 Ground 2 of the proposed appeal is a general assertion that his Honour failed to provide reasons for not providing a reconciliation between the competing accounting evidence, the focus of which is upon the relief judgment. Mr Huber was afforded ample opportunity, following the liability findings, to file affidavit material disclosing what, if any, profits he and the Huber entities made or lost in consequence of the scheme. He failed to do so as explained at RJ [122]-[123], where his Honour said that he had considered the material purportedly filed by Mr Huber in response to the supplementary report of Ms Hennessey which he characterised as "a cobbled together version of bits and pieces which constitute in a sense Mr Huber's case thesis that I largely rejected at the trial on liability". Manifestly, his Honour did not fail to provide reasons for that conclusion: they are set out in the balance of paragraph RJ [123] to and including [127]. 74 There is no merit in the contention that his Honour failed to provide reasons for "not" providing a reconciliation between competing accounting evidence. That assertion is simply incorrect when one has regard to the analysis that is his Honour's reconciliation of the competing evidence as set out in relief judgment at [95]-[116]. It also overlooks the principle of law to which his Honour drew attention at RJ [24]-[27], that once the causal connection between breach of duty and benefit is established, the onus shifted to Mr Huber to establish that it was inequitable to require an accounting of the total value of the benefit or gain received. It is in that context that his Honour analysed the "illustrative calculations of the estimated total profit made by the respondents from the scheme" (at RJ [114]) which his Honour then adopted as an appropriate methodology for the account that he ordered (at RJ [139]) in the sum of $42 million. 75 This ground makes no attempt to demonstrate why that approach was erroneous. It is devoid of any merit. 76 Ground 3 is an un-particularised assertion that his Honour failed to provide reasons for not providing a reconciliation between the competing accounting evidence so as to demonstrate why Mr Huber's financial statements were false. As expressed this ground is incoherent. His Honour was careful to explain in the relief judgment that he ordered Mr Huber and the Huber entities to account in the sum of $42 million because Mr Huber had failed to discharge the onus of disentangling the total benefit from each individual breach of duty. As his Honour correctly noted at RJ [28]: Ultimately, one is engaged in both a factual and evaluative exercise in determining the true measure of the benefit or gain for which the respondent must account, requiring an analysis of both causation and the points just made. 77 From that premise, his Honour identified the task that Ms Hennessey was instructed to perform at RJ [37]: "to calculate the profit made by the respondents" after making revisions and allowances in accordance with the liability judgment. She attended to that task as set out in the Hennessey report. She revised her calculations and opinions in the supplementary report. Rather than file an affidavit which disclosed the profits, or asserted losses, of Mr Huber and the Huber entities he chose to proceed by filing affidavits which sought to challenge the liability judgment at RJ [42]. In proceeding in that way, his Honour observed at RJ [42]: Much remains unexplained and undisclosed, including Mr Huber's failure to disclose additional bank accounts which may show the flow of funds to him, the source of the payment of US$900,000 for the balance of his personal property purchase in Dubai or much in the way of corroborating documentation for the assertions contained in his affidavits. 78 This failure led his Honour to proceed by drawing adverse inferences which he explained at RJ[43]: In such circumstances, I am entitled to draw inferences about the respondents' profits extrapolating out from the known purchase and sales consideration, and upon making the assumption that shares were sold at market price. Indeed, it was for Mr Huber to prove that the consideration actually paid in respect of any of those share transfers was less than the market price, and to make out any appropriate deductable allowances. 79 Mr Huber does not in his appeal grounds attempt to grapple with the obvious difficulty that he now faces in consequence of proceeding in the manner that he did. Moreover, the argumentative assertions in this ground fail to address the revised calculations undertaken by Ms Hennessey and as set out in the supplementary report, which his Honour dealt with at [95]-[120] of the relief judgment. As his Honour noted, Mr Huber's response to that was his cobbled together material reflecting his overall case thesis. 80 This ground has no prospect of success and fails to identify appealable error. 81 Ground 4 asserts that his Honour failed to objectively consider "the reconciliation" provided by Mr Huber to the effect that he, and presumably the Huber entities, suffered substantial losses in the manner in which working capital was provided to CellOS. What follows is argumentative and fails to coherently identify the error on which this ground turns. In essence, Mr Huber asserts by way of his reconciliation as now provided, that a loss of $21,757,176 was suffered upon reconciliation of the shares originally contributed and the shares sold under the LGA and Pized loan agreements plus a further loss of $8,342,019 in accordance with a reconciliation between Mr Huber's original shares as sold with the shares re-funded and transferred at later points in time. 82 There is no reference to these figures in the relief judgment, which is doubtless explained by his Honour's rejection of the argumentative material filed by Mr Huber in the form of an affidavit, but in the form of a discursive submission on 20 December 2019. In any event, this ground makes no attempt to engage with why his Honour erred in rejecting Mr Huber's assertion that he did not make profits from the secret trading in the shares, the reasons for which his Honour set out at [123]-[127] of the relief judgment and which I have set out above. 83 As formulated, this ground has no prospect of success because it fails to explain why his Honour erred in rejecting the no profit contention of Mr Huber that was advanced in the context of the taking of the account and where Mr Huber bore the onus of proof as I have explained. 84 Ground 5 asserts that Beach J erred in rejecting Mr Huber's claim that he was not aware of, did not participate in and did not benefit from the share trading undertaken by Mr Narulla. This contention is said to be "glaringly obvious" from August 2012 for the reason that Mr Huber from that time did not sign any share transfer statements addressed to Computershare. This invites attention as to how his Honour dealt with this defence commencing at LJ [140] and concluding at [157]. What is clear from those paragraphs is that his Honour correctly understood Mr Huber's contention that he was not aware of the share trading activities of Mr Narulla from August 2012. Mr Tan gave evidence to the effect that Mr Narulla hid the sale of shares from Mr Huber: at LJ [146]. Comprehensively at LJ [148] his Honour set out all of the evidence of Mr Tan given under cross-examination that Mr Huber relied upon as evidencing his lack of knowledge. At LJ [150] his Honour set out further evidence relied upon by Mr Huber being an affidavit made by Mr Reid. Between paragraphs LJ [151] to [156], his Honour summarised the further evidence relied upon by Mr Huber, but then concluded at LJ [157]: What should be made of all of this? I am prepared to accept in favour of Mr Huber that there were some dealings engaged in by Mr Narulla, which may also have involved Mr Tan, that were unknown to Mr Huber. I am also prepared to accept that some dealings between Mr Tan and Mrs Peck were kept from Mr Huber. But to so accept does not substantially detract from my finding that Mr Huber set up and engaged in the relevant scheme. And more generally, as I have said, Mr Huber set up and ultimately controlled the Huber controlled entities, subject to the qualification I have already made concerning Nesterland. 85 The finding that Mr Huber set up and engaged in the scheme relies on multiple findings made by his Honour commencing at LJ [49] and concluding at [139] including findings that Mr Huber controlled the Huber entities which were used as essential components of the scheme. Further, his Honour made very specific adverse credit findings together with findings that Mr Huber was the scheme mastermind commencing at LJ [435] and concluding at [474]. Within those paragraphs, one sees discrete findings that the evidence given by Mr Huber that he knew nothing about Mr Narulla's conduct was false (at LJ [460]) for the ten reasons given commencing at LJ [461] and ending at [474]. Overall, his Honour concluded at LJ [471] that Mr Huber's allegations that Mr Narulla "went rogue appear to be a recent invention". 86 This proposed appeal ground comprises no more than repetition of the evidence that Mr Huber relied upon before his Honour as supporting his lack of knowledge arguments. No attempt is made to identify which of the very many findings of fact made by his Honour, as leading to his overall rejection of the lack of knowledge defence, were wrong, and in particular why those findings were wrong. This proposed ground has no prospect of success and fails to comply with the requirements for a valid ground of appeal. 87 Ground 6 asserts that his Honour erred in law at paragraphs [28]-[34] of the relief judgment, which is surprising in that those paragraphs reference various statements made by judges of the High Court and the Full Court of this Court. Drilling down into this ground in a little more detail, Mr Huber asserts that his Honour failed to understand a basic accounting concept that assets equal equity plus liabilities. There is no doubt that this is an accepted accounting equation in the balance sheet of a corporation. However, there is nothing within the identified paragraphs in the relief judgment which reflects any misunderstanding of this concept by his Honour or, indeed, any reference to it. Within those paragraphs his Honour was concerned to set out binding statements of principle that apply to the requirement a defaulting fiduciary who is liable to account for profits made in consequence of default. In undertaking that analysis, his Honour contrasted an alternative outcome by an award of equitable compensation to compensate CellOS for its loss. Ultimately, his Honour reasoned that he would not order equitable compensation because of difficulties in ascertaining the actual loss to CellOS on the assumption that what it lost was the opportunity to issue shares at a higher price. 88 The failure of this ground to grapple with the way in which his Honour proceeded reveals an obvious further difficulty with it. Subparagraph 6.3 asserts that a defaulting fiduciary can only be ordered to account if, in fact, a profit was made. In expressing the ground in that way, Mr Huber asserts that it was not possible to quantify whether profits had in fact been made. The fundamental difficulty with that contention is that it does not reveal error flowing from what occurred upon the account hearing where, as I have noted, Mr Huber chose not to provide an affidavit by way of an account, despite being ordered to do so (at RJ [7]) and where he bore the onus of disentangling profits derived in consequence of breach of duty from other profits (at RJ [19]) and of demonstrating that it was inequitable to require an accounting of the total benefit or gain received (at RJ [24]). 89 This ground has no prospect of success for the reason that it simply ignores the way in which Beach J proceeded and fails to identify error in doing so. 90 Ground 7 asserts that the financial statements provided by CellOS were not in a form that were capable of being read and understood by Beach J. That is an extraordinary and unjustified assertion which completely ignores all of the accounting and financial information that his Honour relied upon in order to make findings of fact in each judgment. No attempt whatsoever is made by Mr Huber in this ground to identify what financial information was not understood by his Honour, and in turn why those errors infect either judgment. This ground has no prospect of success. 91 Ground 8 asserts that his Honour erred in failing to seek expert accounting opinion in order to reconcile or choose between the competing financial statements that were produced in evidence, and somehow in some un-particularised way, substituted his own subjective assessment. With this one must read the assertion that his Honour wrongly rejected the evidence of Mr Huber who is a certified practising accountant. 92 No identifiable error emerges from this ground. It conveniently ignores the multiple and detailed findings of fact that his Honour made about share transfers, the dates of transfers and the monies received. It ignores the expert accounting evidence of Ms Hennessey, which his Honour accepted as reliable. And it further ignores the simple fact that Mr Huber did not, despite being ordered to do so, bother to file an affidavit explaining his version of the profits or losses upon the taking of the account. This ground has no prospect of success. 93 Finally, there is ground 9 which asserts that his Honour did not act impartially and which is anchored by the adverse credibility finding made in the liability judgment at [39]. No attempt is made to identify why his Honour was wrong in making his various adverse credibility findings. This ground has no prospect of success. 94 It follows that the proposed notice of appeal fails in fundamental respects to comply with the requirements for a valid notice of appeal in that it fails to identify specific error by Beach J, none of the grounds have any prospect of success (let alone any reasonable prospect), it amounts to no more than agitation by Mr Huber of various arguments that he put to the primary judge which were rejected. I am quite satisfied that none of the proposed appeal grounds rest on any solid foundation or raise any serious question to be resolved at an appeal. As such the entirety of the document, if allowed, in my view would amount to an abuse of the process of the Court and most certainly is manifestly contrary to the overarching purpose of the civil practice and procedure of the Court. These are powerful reasons that tend against the exercise of my discretion to grant leave to proceed pursuant to s 500(2) of the Corporations Act.

Other matters relevant to my discretion 95 My conclusion as to the form and substance of the proposed notice of appeal and grounds do not foreclose the exercise of my discretion to grant leave to proceed. Self-evidently, what is required is a balancing of all relevant factors. As I have noted, guidance is to be found in cases that have considered the exercise of the discretion to grant leave to proceed against an insolvent corporation even where those cases were concerned with provable debts which is the distinct point of difference with this matter. To suffer a judgment by way of an account in the sum of $42 million is obviously a very serious consideration where a refusal to grant leave will preclude Mr Huber from contesting that onerous liability. 96 If Mr Huber is granted leave to proceed, there is some risk that the assets of CellOS may be dissipated. According to the liquidators' report of 13 May 2022, which Mr Huber attaches to his affidavit of 8 August 2022, but which he described in submissions before me as a "complete fabrication" as well as submitting that the liquidator cannot be trusted, the liquidators are without funds in the liquidation. In an earlier report prepared by the administrator on 7 April 2022 (the supplementary report to creditors), the assets include intellectual property and a potential insurance recovery of approximately $900,000. There is no overall statement of the quantum of assets and liabilities. In the supplementary eport to creditors, the estimated realisable value of the assets is between $1 and $10 million and liabilities are stated at $5,978,741. 97 The fact that the liquidators did not participate in the hearing of Mr Huber's application for leave to proceed, is not determinative of whether the liquidators would seek to defend Mr Huber's appeal if leave is granted. On one view it would be an extraordinary decision for the liquidators not to take some steps to defend the judgment which is the main asset of CellOS. There is at least the risk that the liquidators will incur further fees, which may or may not be recovered, in the event that leave is granted. I do not however consider this to be a weighty matter against a grant of leave in the particular circumstances. 98 The complexity of the legal and factual issues that Mr Huber seeks to agitate upon appeal is self-evident. Despite Mr Huber's assertion to me in argument that the appeal could be heard in one day, his time estimate is manifestly inadequate. As I have observed, Mr Huber seeks to dispute every material finding of fact that was made by the primary judge adversely to him and the Huber entities. The material difficulty that Mr Huber faces is that despite many attempts, by reason of indulgences granted by Davies J, he has not been able within a period of over two years to identify specific error by the primary judge and which arguably supports one or more of his proposed appeal grounds. 99 It is relevant to consider the effect that the appeal may have on other creditors of CellOS. What is known is that despite a single letter of demand, no active steps have been taken by the liquidators to enforce the judgment against Mr Huber or the Huber entities. No explanation has been provided by the liquidators as to why obvious enforcement steps had not been taken. There is no evidence that the creditors have taken any step to require the liquidators to commence enforcement proceedings or that any creditors have been prepared to fund those steps. In these circumstances, this is not a weighty consideration against a grant of leave. 100 There is authority, as summarised in ZOLL Medical to the effect that leave should generally be granted for a claim which cannot be the subject of the proof of debt procedure. Correspondingly, it may be said that leave should generally be granted where that procedure is irrelevant. The fact that Mr Huber wishes to contest his substantial liability is a matter of some weight in favour of a grant of leave. 101 Apart from prosecution of the appeal, there is no other mechanism available to Mr Huber to dispute his liability. Somewhat obviously, in the case of, for example, a default judgment, that will ordinarily be an important consideration which favours a granted leave. However, in this case Mr Huber was afforded every opportunity to put his case in defence before the primary judge. He comprehensively failed, inter alia, because his Honour made very adverse credit findings and which Mr Huber does not in an intelligible way challenge by asserting specific error in his proposed appeal grounds. This weighs against a grant of leave.

Resolution of the leave question 102 Whilst I have identified some matters which favour a grant of leave, primarily that Mr Huber wishes to proceed with an essentially defensive appeal in order to overturn a very substantial liability that he has suffered, that matter together with other factors of less weight which favour the exercise of the discretion are in my view very substantially outweighed by my conclusion that the proposed appeal does not have a solid foundation in law or fact and does not give rise to a serious question that Beach J erred. None of the proposed grounds as formulated have any prospect of success. The notice of appeal fundamentally fails to comply with the requirement that the grounds must state briefly but specifically the grounds relied upon as identifying error. The notice of appeal on its face is an abuse of the appellate procedure. To permit Mr Huber to agitate his proposed grounds before the Full Court is contrary to the overarching purpose of the civil practice and procedure provisions and is contrary to Mr Huber's duty to conduct the appeal in a way consistent with the overarching purpose. 103 Mr Huber has had ample and very fair opportunity to address the obvious deficiencies in his proposed grounds. His inability to do so leads me to conclude that he is incapable of identifying appealable error for the reason that there is no error in the careful reasons for decision by the primary judge in each of the liability judgment and the relief judgment. 104 For these reasons, I dismiss Mr Huber's application for leave to proceed pursuant to s 500(2) of the Corporations Act. It is unnecessary in consequence to consider Mr Huber's application for an extension of time to file his appeal.

The stay application 105 Section 482(1) of the Corporations Act confers discretionary power to stay a winding up either indefinitely or for a limited time. Mr Huber as a contributory is a person entitled to make the application. The matters that are usually considered upon the stay application were summarised by Palmer J in Leveraged Capital Pty Ltd (in liq) v Modena Imports Pty Ltd (in liq) [2010] NSWSC 739 at [13]. Apart from explaining the general background of CellOS and the circumstances that led to its winding up, Mr Huber has wholly failed to address those considerations in his affidavit in support made on 25 August 2022. 106 Put at its highest, his case is that I should accept that "the conspirators" whom he identifies as other board members including Mr Tan, set about planning and implementing a strategy to "sabotage and steal CellOS", by issuing 600 million shares to themselves at a very significantly discounted price, and then when Mr Huber discovered and exposed the fraud, they engaged in vexatious litigation in Singapore and in the proceeding determined by Beach J to harm Mr Huber and to prevent him from taking steps to have the fraud exposed and remedied. To these allegations, Mr Huber adds that the administrators report is "fabricated" and that the present liquidators, appointed by the conspirators, are not impartial. There is much cross referencing to the Chapters document. Mr Huber says that the fraudulent misconduct of the conspirators must be investigated and criminally prosecuted. He does not explain why allegations of serious misconduct of that character cannot be independently investigated by the liquidators or by the police. 107 Mr Huber seeks an order for a stay of the liquidation until determination of his appeal. 108 There is no merit in this application. Mr Huber does not have leave to proceed with the appeal. And in any event, there is no proper basis disclosed in his affidavit in support to discharge the clear onus that he bears to make out a proper case for the exercise of this discretion.

Result 109 For these reasons I order as follows:

1. The application for leave to proceed with the appeal in proceeding VID 338 of 2020 filed 8 August 2022 is dismissed.
2. The application for a stay of the liquidation of CellOS Ltd (in liq) filed 29 August 2022 is dismissed. I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.