Islam v Australian Securities & Investments Commission

JUDGMENT

1. HIS HONOUR: On 12 May 2023, Md Rajibul Islam commenced these proceedings by the filing of a summons naming 23 defendants. Although described as a summons, the document is in an unusual form containing a series of numbered and unnumbered paragraphs in a discursive and confusing combination of disconnected topics. With the benefit of Mr Islam's oral submissions, it is at least apparent that he was formerly a director of Australian Real Estate Relation Pty Ltd trading as Raine and Horne Ingleburn and that the business he conducted has now been shut down. Mr Islam appears to contend that this was the result of the negligence of his employees, who presumably number among the named defendants, as well as unspecified fraudulent dealings with the assets and goodwill of the business. With the exception of the third defendant, none of the remaining defendants is referred to in the summons in a way that clearly or specifically connects any of them with these allegations. The document contains absolutely no particulars of the complaints that are made.
2. It is entirely unsurprising in these circumstances that several of the defendants have moved the Court by notices of motion seeking orders that the proceedings be dismissed or in the alternative that the "pleadings" be struck out. It is uncontroversial that the summons is amenable to an order pursuant to UCPR 14.28, if only having regard to Mr Islam's concession to that effect. The only matter of any controversy is whether there is any possible utility in giving him an opportunity to re-plead his case in a form that complies with the rules and which articulates in clear terms some cause or causes of action known to the law.
3. Some, although limited, assistance to the understanding of Mr Islam's concerns can be gleaned from an affidavit affirmed by him on 23 August 2023. The affidavit is also in an unusual form and was read subject to relevance. Some paragraphs of the affidavit, curiously appearing more than once in the document, are as follows: "BACKGROUND The plaintiff, in a spirit of mutual cooperation, entered into a contractual agreement with the defendants, who operate a real estate business under the banner 'Linkers Real Estate', aimed at facilitating the provision of referrals for home loans. Pursuant to this contractual understanding, the defendants undertook an unequivocal obligation to duly compensate the plaintiff for home loans derived from referrals and to indemnify the plaintiff against any financial losses incurred due to clawbacks. 7 8 FRAUDULENT ACTIVITIES AND EGREGIOUS VIOLATIONS A shocking revelation came to light when the plaintiff unearthed that the defendants, including but not limited to Mr Mahmud Hossain and his familial cohort, were entrenched in acts of deception manifesting as the surreptitious presentation of spurious documents to orchestrate fraudulent home loans. Further investigation revealed an even graver transgression wherein the defendants orchestrated the sale of properties, originally financed by the plaintiff's services, to multiple unwitting buyers. The nefarious stratagem resulted in a twofold calamity of financial impairment and egregious detriment to the plaintiff's professional standing. SERIAL BREACHES OF CONTRACTUAL OBLIGATIONS In an alarming disregard for contractual ethics, the defendants perpetrated a series of egregious breaches of the agreed terms, notably abstaining from discharging the plaintiff's rightful commissions owed for the home loans facilitated through his referrals. In a diametric repudiation of their solemn commitment, the defendants further evaded their responsibility to indemnify the plaintiff against clawbacks, thereby compounding their contractual dereliction. BREACHES OF THE SACRED FIDUCIARY DUTY Central to this imbroglio is the defendants' unassailable duty as directors of Linkers Real Estate, a duty that by its very nature is imbued with fiduciary reverence. This sacred obligation was flagrantly trampled upon through their orchestration of fraudulent machinations, wilful misrepresentation, and outright failure to uphold their stipulated responsibilities. 8 9 VIOLATION OF NOBLE LEGISLATIVE EDIFICES The defendants' reprehensible course of action has ensnared them in contravention of the hallowed Corporations Act 2001 (Cth), a statute meticulously sculpted to safeguard the sanctity of corporate governance. This transgression spans multiple dimensions including, but not limited to, breaches of fiduciary conduct, financial misconduct, and the wanton erosion of the plaintiff's commercial prosperity. Their audacious disregard has also led to their violation of the Australian Financial Complaints Authority (AFCA) Rules and the ASIC Regulatory Guides, instrumental paradigms designed to uphold the highest standards of professional conduct. Through their actions, they have heaved the plaintiff into the maelstrom of financial loss and irrevocable damage to his reputation. CALAMITOUS TOLL ON THE PLAINTIFF The relentless concatenation of the defendants' actions culminated in a staggering financial loss that tolled to the disheartening figure of $178,000. This sum, encapsulating both upfront commissions and trails, serves as an irrefutable testament to the grievous harm inflicted on the plaintiff. Furthermore, the plaintiff's business, once a paragon of repute and trust, now stands eroded by the defendants' malevolent acts. The corrosion of trust, loss of clients, and tarnished reputation together comprise the intangible yet equally harrowing toll borne by the plaintiff's enterprise. 9 10 ENTREATY FOR JUSTICE AND REQUITAL With a solemn heart, the plaintiff beseeches this honourable court for the balm of justice, the restitution of financial losses, the salve for reputational wounds, and any equitable redress the Court deems apt and fitting. The plaintiff, Mr Md Rajibul Islam, brings this action against the defendants for their deliberate and injurious actions, which have wrought substantial damage to the plaintiff's business and financial well-being."