Jambrecina v Official Trustee in Bankruptcy

REASONS FOR JUDGMENT 1 The applicant in these proceedings ('Mr Jambrecina') is also currently an applicant for special leave in the High Court. The applicant became a bankrupt on 1 April 2003. The application for special leave was filed on 22 April 2003. The respondent, the Official Trustee in Bankruptcy ('the Official Trustee'), does not wish to continue those proceedings nor assign the cause of action to Mr Jambrecina. Mr Jambrecina applies to this Court under s 178 of the Bankruptcy Act 1966 (Cth) ('the Act') for orders directing the respondent to continue with the proceedings in the High Court or directing the respondent to assign the cause of action to him. Mr Jambrecina appeared in person. Mr Murray appeared for the Official Trustee.

The history of Mr Jambrecina's litigation in the Supreme Court of New South Wales 2 Mr Jambrecina gave extensive details of his litigation, although it was not easy from his evidence to determine the salient features. In summary, it would seem that he commenced proceedings against Pyramid Building Society Limited (in liquidation) ('Pyramid') and Farrow Mortgage Services Pty Ltd ('Farrow'), formerly named Combined Mortgage Services Pty Ltd ('Combined'). 3 Mr Jambrecina's evidence is as follows. In 1987, on advice, Mr Jambrecina consolidated all his debts into one loan from Combined. On 21 September 1988, his solicitor requested the 'discharge' of a certain property in Queanbeyan. In early 1990, his solicitor requested the 'discharge' of another property in Queanbeyan. In each case, Farrow acceded to the request upon payment of money. On 22 June 1990, the 'administrator of Pyramid Building Society (Pyramid) was appointed under control of Farrow'. 4 On 31 July 1990 Farrow transferred Mr Jambrecina's mortgage to Pyramid. Mr Jambrecina alleges that his mortgage was then transferred to another entity before being transferred back to Pyramid. Pyramid (in liquidation) commenced proceedings against Mr Jambrecina in the Common Law Division of the Supreme Court of New South Wales. I do not have the pleadings or all of the evidence in that case but it would seem that the liquidator of Pyramid denied that there was any obligation on the part of Pyramid to grant a partial discharge of its mortgage. It would also seem that payments due to Pyramid from Mr Jambrecina under the loan agreement were not made. 5 There also seems to have been proceedings commenced by Mr Jambrecina in the Common Law Division of the Supreme Court of New South Wales against Pyramid (in liquidation) and Farrow (in liquidation) ([2001] NSWSC 175). Taking the facts from the judgment of Master Harrison in those proceedings, it would seem that Mr Jambrecina complained about the outcome of earlier proceedings whereby consent orders for possession of various properties in Queanbeyan were made. In 1992, Mr Jambrecina was declared bankrupt and the period of bankruptcy expired in September 1995. In 2000, the Official Trustee in Bankruptcy assigned the legal right to the causes of action being considered by Master Harrison to Mr Jambrecina. Master Harrison dismissed the statement of claim with costs. Previously, Master Malpass ([1999] NSWSC 760 and [1999] NSWSC 1234) had ordered the statement of claim and an amended statement of claim before him to be struck out. It appears that the statement of claim before Master Harrison dealt with essentially the same matters that were before Master Malpas. 6 Apparently, following the decision of Master Harrison, Mr Jambrecina repleaded the statement of claim another time, which statement of claim was struck out by Levine J. On the application of Pyramid and Farrow, Levine J also declared Mr Jambrecina a vexatious litigant within the meaning of s 84(2) of the Supreme Court Act 1970 (NSW) ('the Supreme Court Act') (Jambrecina v Pyramid Building Society & Anor; Pyramid Building Society & Anor v Jambrecina [2002] NSWSC 1076). An application for leave to appeal to the Court of Appeal (Meagher and Stein JJA) was dismissed on 18 March 2003. The Court observed: 'We are unable to see any error in the judgment of His Honour Judge Levine'. The application for special leave to the High Court, the subject matter of this application, makes assertions as to the conduct of counsel for the defendants, the two Masters and Levine J. 7 A sequestration order was made against Mr Jambrecina's estate on 1 April 2003 and the respondent is the trustee. The petitioning creditors were Pyramid and Farrow. 8 The evidence was clarified somewhat by Ms Field, an Assistant Official Receiver, who swore an affidavit setting out her understanding of the history, based upon her investigations into the affairs of Mr Jambrecina. That history is as follows: '4. In 1987, the Applicant and his wife owned several properties in Queanbeyan. They refinanced all the debts owing on the properties into one interest only facility with Combined Mortgaged Services Pty Ltd which later became Farrow Mortgage Services Pty Limited ("Farrow") which later assigned the benefit of the mortgage to Pyramid Building Society ("Pyramid"). 5. In 1990, Pyramid went into liquidation and because of default in payments by the Applicant and his wife, action was taken in 1992 by the liquidator of Pyramid to gain possession and sell the properties. These proceedings were commenced in the Supreme Court of New South Wales in proceedings number 10647/92. The Applicant and his wife contested Pyramid's actions. By judgment of 2 March 1993, Pyramid was successful and the properties were sold. 6. On 7 August 1992, the Applicant alleged that there were irregularities in respect of the actions by Pyramid and he commenced an action against Pyramid ("the action against Pyramid"). 7. On 21 August 1992, the Applicant was made bankrupt on a sequestration order on the petition of Westpac Banking Corporation. Mr Barry Taylor, a registered trustee in bankruptcy, was appointed trustee but he resigned as trustee and on 31 August 1994 the Office Trustee was appointed pursuant to s.160 of the Bankruptcy Act … 8. The Official Trustee did not prosecute the action against Pyramid and no election was made under s.60(2) of the Bankruptcy Act. 9. On 8 September 1995, the applicant was discharged from bankruptcy. 10. On 8 March 1999, the Official Trustee assigned to the Applicant the action against Pyramid and Farrow … 11. There were various other proceedings between the Applicant and Pyramid and Farrow in the Supreme Court of New South Wales. 12. In proceedings 20019 of 2002 the Applicant commenced further proceedings against Pyramid and Farrow. On 15 November 2002, the Supreme Court of New South Wales made various orders striking out the Applicant's proceedings. The Court also made declarations that the Applicant was a vexatious litigant under section 84 of the Supreme Court Act 1970; … 13. On 18 March 2003, the Applicant lodged an appeal against the orders made by the Supreme Court which was heard by the New South Wales Court of Appeal, which dismissed the appeal… 14. On 1 April 2003, a sequestration order was made against the estate of the Applicant. 15. On 22 April 2003, the Applicant filed in the Sydney office of the High Court of Australia, an application for special leave to appeal dated 22 April 2003…' 9 Mr Jambrecina filed written submissions in this Court which annexed a statement of claim as filed in the Supreme Court of New South Wales. That statement of claim was, apparently, the one before Master Harrison. The respondent subsequently provided the amended statement of claim the subject of consideration by Levine J, together with the summons for leave to appeal and notice of appeal from that decision. As they were necessary to understand Mr Jambrecina's material and are formal documents and have not been subject to objection or adverse comment from Mr Jambrecina, I admitted them. Mr Jambrecina's submissions refer to the statement of claim he annexed and numerous transcript references of the hearings and evidence in the Supreme Court, as well as contentions of factual inaccuracies in the judgments of Master Malpass and Levine J. Mr Jambrecina also asserts that, despite the 1992 proceedings, neither res judicata nor the principle in Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 apply and that the claims are not statute barred. These are matters that were determined adversely to Mr Jambrecina in the judgment of Master Harrison. Levine J considered the limitation point as part of his consideration of the pleading before him and said (at [13]) with respect to the statement of claim: 'It is a hopeless pleading and as far as it can be understood at all, points to an outcome that is hopeless in terms of what the plaintiff might be seeking to achieve'. 10 The statement of claim that was before Levine J and therefore the subject of the High Court application, claims as follows: 'PARTICULARS OF LOSSES AND DAMAGES i. Loss of commercial property known as 220 Crawford street, Queanbeyan. ii. Loss of residential property known as 79 Crawford street, Queanbeyan. iii. Loss of residential property known as 16 Pindari crescent, Queanbeyan. iv. Loss of residential property known as 49 Derima road, Queanbeyan. v. Loss of residential property known as 35 Booth street, Queanbeyan. vi. Loss of residential property known as 5 Yarrow street, Queanbeyan. vii. Loss of residential property known as 11 Yarrow street, Queanbeyan. viii. Loss of residential property known as 86 Atkinson street, Queanbeyan. ix. Loss of business known as Queanbeyan Concrete Pumping. x. Loss of opportunity to complete further development on properties, 35 Booth street, 5 and 11 Yarrow street, 86 Atkinson street and 49 Derima road, Queanbeyan, NSW. xi. Economic and opportunity losses. xii. Plaintiff became bankrupt on 21.08.1992.' The Plaintiff claims compensation for damages, losses, pain, suffering exemplary damages and interest under section 94 of the Supreme Court Act.'