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[2026] NSWSC 932
Supreme Court of NSW
2026-08-07
Brereton J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Venroy Pty Limited (Recusal Application) [2026] NSWSC 932
Hearing dates: On the papers
Date of orders: 7 August 2026
Decision date: 07 August 2026
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision: Dismiss the defendant’s application for recusal
Catchwords: PRACTICE AND PROCEDURE – defendant’s application for recusal from any further determination in proceedings – where the defendant’s statutory demand was set aside – where the remaining issue concerns costs – allegation of apprehended bias – where fair-minded lay observer would not reasonably apprehend that the question of costs had been pre-determined – where fair-minded lay observer would not reasonably apprehend that arguments will not be considered on their merits – consideration of extent of Court’s role in relation to litigants in person – application refused
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Electronic Transactions Act 2000 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Chalik v Chalik [2025] NSWCA 136
CNY v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265; [1995] HCA 43
de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Estate of the late Geoffrey Croft v MTH [2025] HCADisp 231
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
In the matter of LIG Australia Pty Ltd; In the matter of Success Aluminium Pty Ltd [2015] NSWSC 892
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
MTH v State of New South Wales [2025] NSWCA 122
SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8; 100 ALJR 489
Texts Cited: Practice Note SC Eq 4
Category: Consequential orders
Parties: Venroy Pty Limited (plaintiff)
Geoffrey James Finch (defendant)
Representation: Counsel:
D Edney (plaintiff)
G J Finch (self-represented litigant) (defendant)
Solicitors:
Deutsch Miller (plaintiff)
File Number(s): 2026/134896
Publication restriction: N.A.
On 14 May 2026, I ordered that a statutory demand served by Mr Geoffrey Finch on Venroy Pty Limited be set aside. I gave short ex tempore reasons for that decision. I then acceded to a request from Mr Finch that he have an opportunity to provide evidence and written submissions on the question of costs, with a view that costs would be determined on the papers.
On 29 May 2026, I received submissions from Mr Finch by which he sought that I recuse myself from determining any substantive issue, including in particular the question of costs. Venroy made written responsive submissions on that question and Mr Finch replied.
For the reasons set out below, I do not propose to recuse myself.
In order to understand the context of Mr Finch’s application, it is necessary to traverse some background.
On about 27 March 2026, Mr Finch hand delivered to Venroy’s principal place of business a statutory demand dated “27 March 2025” (scil. 2026). It concerned an alleged debt in the amount of $10,000. The statutory demand asserted that the debt arose from the settlement of claims he had made against Venroy in the Small Claims Division of the Local Court of New South Wales. The statutory demand was not accompanied by an affidavit.
Section 459E(3) of the Corporations Act 2001 (Cth) provides:
Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:
(a) verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and
(b) complies with the rules of court.
Mr Finch failed to satisfy that requirement.
On 2 April 2026, Venroy commenced these proceedings by filing an originating process, seeking an order that the statutory demand be set aside pursuant to s 459G of the Corporations Act. The originating process was supported by a document that at least appears to be an affidavit sworn by Mr Sean Venturi on 2 April 2026, who is Venroy’s sole director, and witnessed by Mr Callum Ellison, a solicitor at the firm Deutsch Miller, who act for Venroy. There is a notation that it was “signed and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000 (NSW)”.
Mr Venturi’s affidavit advanced various matters in opposition to the statutory demand. Among other asserted formal defects, the affidavit stated that the statutory demand was not accompanied by an affidavit. Mr Venturi’s affidavit also addressed, in considerable detail, reasons why there was a genuine dispute about the debt. In broad terms, the dispute was said to arise as follows:
(a) on 13 January 2026, Mr Finch sued Venroy in the Local Court seeking payment of $11,522.50 in respect of a contract by which Mr Finch was to produce sketched designs for Venroy’s menswear and womenswear seasonal collections for High Summer 2026; (b) Venroy disputed that Mr Finch performed the services in accordance with the contract; (c) in early 2026, there were settlement discussions relating to the proceedings in the Local Court; (d) Mr Finch authorised his friend, Mr Christian Roger de Robillard, to deal with the matter on his behalf; (e) Mr de Robillard was once a legal practitioner but on 13 December 2024, the Court of Appeal declared that he is not a fit and proper person to be on the roll of legal practitioners of the Supreme Court of New South Wales and ordered that his name be removed from the roll (see de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299); (f) on 26 March 2026, Venroy made an in-principle offer to settle the matter on payment of $10,000 to Mr Finch, conditional upon a deed of settlement; (g) on 27 March 2026, Mr de Robillard advised Venroy’s solicitors that Mr Finch did not agree to the time proposed for payment; (h) Venroy withdrew its offer and no deed of settlement was executed; and (i) the Local Court proceedings remain on foot.
Mr Venturi’s affidavit of 2 April 2026 also annexed a letter from Venroy’s solicitor to Mr Finch sent immediately following service of the statutory demand. The letter sought to explain in detail why the statutory demand was liable to be set aside, including because of the absence of a verifying affidavit. Mr Finch was urged to withdraw the statutory demand.
The matter came before me for directions as the Corporations List Judge on 4 May 2026. Mr Finch appeared for himself. Counsel for Venroy submitted that: (i) the absence of a verifying affidavit would inevitably lead to the statutory demand being set aside; and (ii) the hearing of a separate question would be an efficient way of dealing with the matter because, if Venroy’s submission was correct, then the proceedings could be determined swiftly.
I explained to Mr Finch that, generally, a statutory demand served without a verifying affidavit is ineffective and will be set aside. I explained that a verifying affidavit serves an important function. I suggested to Mr Finch that he might consider whether to withdraw the statutory demand and issue a fresh statutory demand with a verifying affidavit.
I made directions, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that the following question be determined as a separate question: “should the statutory demand dated 27 March 2025 (sic) served by the defendant upon the plaintiff on 27 March 2026 be set aside on the basis that it lacks a verifying affidavit in circumstances where it does not relate to a judgment debt?”.
At the directions hearing on 4 May 2026, counsel for Venroy indicated that Venroy, if successful, would apply for a gross sum costs order. I directed that Venroy was to file and serve any affidavit evidence in support of that application by 12 May 2026.
The matter was fixed for hearing on 14 May 2026.
On 12 May 2026, Venroy filed and served an affidavit of Mr Chris Stevens (the solicitor on the record for Venroy) in support of an application for a gross sum costs order. Venroy also filed and served written submissions.
At the hearing on 14 May 2026, Mr Finch again appeared for himself. He filed an affidavit affirmed by him on 14 May 2026 and provided written submissions. Mr Finch’s affidavit was principally concerned with the alleged debt. The hearing on 14 May 2026 was not concerned with the question of whether there was a genuine dispute as to the existence or amount of the alleged debt; it was concerned with the separate question about whether the statutory demand should be set aside on the basis that it lacks a verifying affidavit. However, Mr Finch’s evidence appeared to support Venroy’s contention that there is a genuine dispute about the debt that was the subject of the statutory demand, because it appeared to recognise that it is (at least) arguable that the Local Court proceedings have not been resolved because there was no deed of settlement.
Mr Finch’s affidavit of 14 May 2026 did not cavil with the contention that his statutory demand was not accompanied by a verifying affidavit.
Mr Finch’s affidavit acknowledged receiving the originating process and supporting affidavit on 2 April 2026, but stated that he was not personally served. Notwithstanding the alleged absence of personal service (which in any event is not prescribed by s 459G), Mr Finch filed a notice of appearance on 7 April 2026.
I set aside the statutory demand because it related to a debt that was not a judgment debt and there was no accompanying affidavit. In my ex tempore reasons, I referred to the fact that there was ample authority supporting that conclusion, and referred specifically to In the matter of LIG Australia Pty Ltd; In the matter of Success Aluminium Pty Ltd [2015] NSWSC 892 at [16].
After I set aside the statutory demand, I moved to the question of costs and heard from counsel for Venroy. Mr Finch asked for an opportunity to make further written submissions and rely on further evidence. I made procedural directions to enable that to occur.
…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
Their Honours further observed that the practical application of this test requires two steps (see Ebner at [8]), being:
an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
Those steps inform the assessment of the reasonableness of the apprehension from the perspective of a fair-minded lay observer.
[20] The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made…
[23] …The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
See also CNY v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [19] (Kiefel CJ and Gageler J).
Mr Finch asserts that a fair-minded lay observer at the hearing on 4 May 2026 would apprehend that the matter was decided when there was an order for a separate question to be determined.
No fair-minded lay observer might reasonably apprehend that I might have already decided the matter (including as to costs) on 4 May 2026, or that I would not bring an impartial mind to the resolution of the questions I was required to decide (assuming I would be the judge to hear the separate question). The fair-minded lay observer could only apprehend that I had fixed a separate question in order to facilitate the just, quick and cheap resolution of the real issues in the proceedings, consistently with the overriding purpose of the Civil Procedure Act 2005 (NSW) (see s 56-60). He or she would appreciate that the application would be case-managed by the Corporations List Judge with the aim of achieving a speedy resolution of the real issues between the parties, consistently with Practice Note SC Eq 4.
I did explain to Mr Finch, in qualified terms, that the absence of a verifying affidavit would ordinarily result in a statutory demand being set aside. The fair-minded lay observer would see this as an attempt to get to the real issue and to facilitate a speedy resolution. It would not lead to a reasonable apprehension that my mind might not be impartial or that the matter (including the question of costs) had already been decided on 4 May 2026.
Mr Finch described the hearing on 14 May 2026 as “the culmination”.
At the beginning of the hearing, Mr Finch asked if he could have Mr de Robillard sit with him at the bar table. I acceded to that request, on an interim basis, on condition that it did not interfere with the orderly conduct of the hearing. From that time, it was evident that Mr de Robillard was giving Mr Finch considerable guidance in his submissions. When I asked Mr Finch questions, he often had a whispered conversation with Mr de Robillard before answering.
At one point when Mr Finch was making submissions, he remained seated after having a short conversation with Mr de Robillard. I explained to him that “you need to stand up when you’re addressing the Court, Mr Finch”. Mr Finch submitted that I ordered him to stand up when he speaks. That is not a fair characterisation. Rather, I politely informed him of the ordinary convention that a person should stand when he or she addresses the Court.
Mr Finch further contends that I adopted what he felt was an unjudicial tone in the following exchange:
DEFENDANT: Your Honour, if I can just point out, as sort of a - and I'll - with your permission, I'll just speak in very plain language? It sort of - we have $10,000 at stake here. It's - there was no genuine dispute at the time that the statutory demand was issued.
Venroy is now adopting a case of splitting technical hairs on it, and then now it's sort of - then it's sort of - but then if I want to stand on a technicality, then they're denying that. Like it's sort of - this is - this is ridiculous. It's wasting everyone's time.
HIS HONOUR: Mr Finch, I entirely agree it's a waste of time, but I think the fault is entirely yours. You served a statutory demand. You did not comply with the Act. You were supposed to serve an affidavit. You did not do that. That was pointed out to you. Yet you persisted with this application.
At the moment, it strikes me as absolutely inevitable that your statutory demand must be set aside, consistent with the authorities, because it didn't comply with the most basic requirement, which was that it be served with a verifying affidavit. Why shouldn't I immediately set aside the statutory demand?
DEFENDANT: Because, your Honour, there is no valid application before the Court.
Mr Finch relies on the part I have emboldened.
My tone was not unjudicial. Mr Finch had accused Venroy of wasting everyone’s time. I expressed the view, having reviewed Venroy’s submissions and evidence before the hearing, and having perused, during the argument, Mr Finch’s affidavit and submissions, that I thought that Mr Finch was wrong in accusing Venroy of wasting everyone’s time; rather, it was he who was wasting time. My voice was not elevated; nor was my tone angry or patronising. It was a matter-of-fact expression of a view.
Mr Finch contends that a fair-minded lay observer would apprehend that I was upset with him, and that I was more concerned with dealing with the matter quickly than to give him a fair opportunity to find his feet and present his oral submissions. I do not accept this contention. A fair-minded lay observer would apprehend that I disagreed with Mr Finch’s submission that Venroy was wasting everyone’s time and that I thought that it was not Venroy, but Mr Finch, who was wasting time. The fair-minded lay observer would not reasonably apprehend that I was more concerned to deal with the matter quickly than give him a fair opportunity to present his case. The fair-minded lay observer is taken to have some knowledge that the judge will take steps to ensure that time is not wasted and would not be unduly sensitive to observations from the judge that time is being wasted. That does not mean that the fair-minded lay observer could reasonably conclude that I was more concerned with speed than fairness. The fair-minded lay observer would conclude that I was concerned to get to the real substance of the dispute as efficiently as possible and was anxious that time not be wasted. The comments would be seen as being consistent with the Court seeking to have the matter resolved justly, quickly and cheaply.
Mr Finch contends that I delivered my reasons as soon as he had “raised the jurisdictional issue”. I will come to the jurisdictional issue below. I did not give my reasons as soon as he raised the jurisdictional issue. They were issues that had been raised earlier in the hearing and in the written submissions.
Mr Finch also contends that after I set aside the statutory demand and moved to the question of costs, I put him “on the spot” by asking him to state what he could say in addition to his written submissions. He submitted I did not make him feel that he had equal access to justice. The fair-minded lay observer would appreciate that following delivery of an ex tempore decision, it is common practice to deal with the question of costs immediately, where possible. In this case, the question of costs had been addressed by Venroy in the evidence and submissions that were filed and served in advance of the hearing. Counsel for Venroy made oral submissions on costs. When I asked Mr Finch if he wished to make oral submissions, he asked for time to file written submissions and evidence. I asked Mr Finch what he wanted to address in the evidence and submissions, noting that he had made submissions on costs in his written submissions. This could only be understood by the fair-minded lay observer as the Court making reasonable inquiries, given that Mr Finch was, in effect, seeking an indulgence for an opportunity to prepare more evidence and submissions; an indulgence that was granted. No fair-minded lay observer might reasonably apprehend that this exchange means that I might not bring an impartial mind to the resolution of the question as to costs.
There was nothing in my exchanges with Mr Finch, either individually or cumulatively, that might reasonably leave the fair-minded lay observer with an apprehension that I might not bring an impartial mind to the resolution of the question of costs, or that I had already decided the question before giving him an opportunity to make submissions or serve evidence on the issue.
Mr Finch’s first ground is rejected.
(a) the affidavit served with the originating process was not an “affidavit” within the meaning of s 459G(3)(a) because it was not sworn in accordance with s 14G of the Electronic Transactions Act 2000 (NSW); and (b) the originating process and supporting affidavit were not served personally as required by UCPR r 10.20, with the consequence that the requirement of service under s 459G(3)(b) was not satisfied.
apprehend that arguments of substance bearing on the costs determination - including the propriety of the plaintiff litigating offensively rather than awaiting a winding-up application - or any mitigating circumstances will may have explained my persistence would not be considered on their merits.
I do not accept this submission. It is true that I dealt with Mr Finch’s jurisdictional arguments in my ex tempore reasons at a high level. It is also true, as Mr Finch submits, that I did not make express reference to the (well-known) decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corp**oration (1995) 184 CLR 265; [1995] HCA 43.
The fair-minded lay observer would conclude that I did not consider that Mr Finch’s jurisdictional points had any merit. The fact that submissions were rejected in brief terms in ex tempore reasons could not lead the fair-minded lay observer to reasonably apprehend that I had already made a decision about costs, or that I might not bring an impartial mind to the resolution of the question of costs and decide that question on the merits after taking into account the submissions and evidence of the parties.
Mr Finch may disagree with my decision. He had a right to appeal my decision. My rejection of his defence does not give rise to a reasonable apprehension of bias.
Mr Finch’s second ground is also rejected.
Although it was not expressly advanced as a separate ground, Mr Finch’s submissions referred to the asymmetry between his position as a litigant in person and that of Venroy. He submitted that “Venroy seems to form part of an intricate corporate family structure managed from the luxury of a property” at a named address in Vaucluse, Sydney. His submissions included what is said to be a photograph of that property. He described Venroy as a “tax savvy and debt-proofed corporate opponent in a specialist list”.
Mr Finch submitted that Venroy’s legal costs would be deductible against its assessable income and “subsidised through the tax system”. Mr Finch submitted that Venroy expended “substantial public resources and in excess of $33,000 tax deductions instead of paying $10,000 into Court”. He submitted that I did not consider the overriding provisions of Part 6 of the Civil Procedure Act 2005 (NSW) and the “well-established judicial concern not to allow taxpayer funded onerous expenses in providing judicial resources to be used inappropriately”, citing Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [7] (Allsop ACJ) and [51] (Young JA).
It is not clear how these submissions support the contention that a fair-minded lay observer might have a reasonable apprehension that I might determine the question of costs otherwise than on the legal and factual merits. In Hans Pet Constructions, Allsop ACJ made the following observations (at [7]):
The reforms of the system of civil litigation in New South Wales in recent years, typified by the Civil Procedure Act and the Uniform Civil Procedure Rules reflect the deliberate governmental (Parliamentary, executive and judicial) aims of promoting and facilitating the speedy disposition of proceedings in order that citizens of the State can obtain prompt resolution of their complaints.
The matter before this Court concerned Venroy’s complaint about Mr Finch serving a statutory demand that was alleged to be defective. Venroy and Mr Finch were entitled to expect, and should have anticipated that, the Court would resolve the complaint promptly. That is what occurred.
It may be accepted that litigants in person will often be in a position of relative disadvantage when opposed to experienced solicitors and counsel. It may be that the manner in which a judge deals with a litigant in person could give rise to an apprehension of bias in the mind of a fair-minded lay observer, even where the same treatment of a legal representative might not do so. That is not to say that a judge should refrain from dealing robustly with a litigant in person where it is warranted in order to advance the overriding purpose of the just, quick and cheap resolution of proceedings.
The obligations of a judge in dealing with a litigant in person are a matter of controversy. In MTH v State of New South Wales [2025] NSWCA 122, Adamson JA (Mitchelmore JA and Price AJA agreeing) held at [66] that:
the primary judge had an obligation to ensure that the appellant did not, because of lack of legal skill, fail to claim rights or put forward legal arguments: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Kirby P, Samuels and Mahoney JJA), cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [47].
A different view was expressed in Chalik v Chalik [2025] NSWCA 136, where Bell CJ, Payne and Free JJA observed in obiter at [68] that the above quoted passage “significantly overstates a court’s responsibility to an unrepresented litigant and is far too absolute in its use of the expression ‘an obligation to ensure …’” It may be expected that the High Court will resolve this controversy in the near future: see Estate of the late Geoffrey Croft v MTH [2025] HCADisp 231.
Whatever the precise character of the Court’s responsibility to an unrepresented litigant, the Court is to remain a neutral umpire of the dispute and must take care to avoid a reasonable apprehension of bias, whether in favour of or against a litigant in person. There should be no finger on the scales in favour of the litigant in person. The fair-minded lay observer appreciates that the judge takes the role of an umpire and is obliged to seek to resolve the dispute justly, quickly and cheaply. That observer understands that disputes are to be resolved by the application of law to the dispute that is properly before the Court.
None of Mr Finch’s contentions based on the contrast between Venroy, as the “tax savvy and debt-proofed” company, and Mr Finch, as the litigant in person, support his application for recusal.
It is appropriate to record that Mr Finch appears to have had the benefit of assistance from Mr de Robillard in his application. He has represented himself but has not been without assistance from a person with legal qualifications and experience.
Apart from assisting Mr Finch on 14 May 2026, Mr Finch’s submissions of 29 May 2026 appear to have been prepared by or with the assistance of Mr de Robillard. They were first received by my chambers as a copy recipient of an email at 4.56pm from what appears to be the email address of Mr de Robillard to Mr Finch. That email to Mr Finch included a draft cover email to my Associate and a notation “To be sent to Chambers Brereton j”. Five minutes later, Mr Finch sent me (but not the plaintiff) a copy of the submissions under cover of the email apparently drafted by Mr de Robillard.
In subsequent email communications from Mr Finch to my Associate on procedural matters, it appears that Mr Finch routinely included Mr de Robillard as a copy recipient of his emails.
**********
[2000] HCA 63
(2019) 268 CLR 76
(1995) 184 CLR 265
(2000) 205 CLR 337
(2015) 255 CLR 135
(2000) 201 CLR 488
(2018) 265 CLR 236