The substantive issues pleaded in the Amended Statement of Claim concern the legal and beneficial ownership of several assets, including a property in Homebush. The plaintiffs seek, inter alia:
1. A declaration that One T is the legal owner of the Homebush property, and an order that ENA transfer that property to One T and Mr Krejci remove his caveat over the property;
2. A declaration that the proceeds of sale of a property in Chiswick (referred to as part of "the Fund") are held by One T as trustee; and
3. An order setting aside the orders appointing Mr Krejci as liquidator of ENA.
Mr Robert Sebie was the original sole director of ENA. It appears that Mr Ronald Jemmott was appointed an alternate director in September 2018.
The current proceedings were commenced in the context of a long procedural history, summarised by Williams J in In the matter of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) [2023] NSWSC 503. The defendants in that case were Mr Sebie, Mr Jemmott, One T, Enterprise ICT Pty Ltd, and Enterprise INT Pty Ltd.
In that judgment, her Honour made the following relevant order at [355]:
1. Order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) that the defendants (by themselves, or by their servants or agents) are prohibited from instituting any proceedings in New South Wales, including by filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person, against:
(a) Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (ACN 105 235 363) (in liq) (the Liquidator);
(b) ENA Development Pty Ltd (ACN 105 235 363) (in liq);
(c) any current or former director, employee, agent, or consultant of the Liquidator's firm, BRI Ferrier; and
(d) any current or former director, employee, agent, or consultant of the plaintiffs' solicitors in these proceedings, ERA Legal,
relating to or in any way connected with the winding up of ENA Development Pty Ltd (ACN 105 235 363) (in liq), without first obtaining leave of this Court, save that this order does not prohibit the first, second and third defendants, as the applicants for leave to appeal in Court of Appeal proceedings 2023/115895, from filing a notice of appeal in those proceedings strictly in accordance with the terms of any grant of leave to appeal that may be made by the Court of Appeal in those proceedings.
Her Honour expressly excluded from the operation of that order these current proceedings, because there was no evidence about these proceedings before her to justify any order: see [2023] NSWSC 503 at [136], [206] and [352].
There is no appeal on foot from her Honour's judgment.
[2]
Brief history of other proceedings
Below is a brief summary of other proceedings involving the same parties and the same and similar issues. Information has been sourced from the Liquidator's evidence, references in the pleadings, the parties' submissions, and from the public record of judgments in this Court, the Federal Court and the Federal Circuit and Family Court. The summary does not purport to be comprehensive.
The first set of proceedings related to a dispute over the 2014 sale of a property in Chiswick. Mr Sebie, as the registered proprietor of the property, entered into a contract for the sale of land with Mr Andy Vuong Duc Pham and Mrs Thi Huong Giang Pham. When Mr Sebie failed to proceed to settlement of the sale, Mr and Mrs Pham brought a claim for specific performance (Chiswick Specific Performance Proceedings).
In separate proceedings, ENA brought a claim against Mr Sebie seeking possession of the Chiswick property pursuant to its alleged security interest (Mr and Mrs Pham were not party to these proceedings). ENA and Mr Sebie consented to possession of the Chiswick property being given to ENA, and Mr Sebie then transferred the property to Enterprise ICT by deed of arrangement. In April 2017, Pembroke J held that the transfer was fraudulent and should be set aside, and that Mr and Mrs Pham were entitled to specific performance of the contract for sale with Mr Sebie. The Chiswick property was transferred to the Phams: see Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 and Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583. Various appeals by Mr Sebie were unsuccessful: see eg Sebie v Pham (No 3) [2021] NSWCA 277.
In May 2018, the proceeds of sale of the Chiswick property were paid into Court. ENA continued to maintain that it had a charge over that money, which was the subject of a cross-claim filed by ENA in the Chiswick Specific Performance Proceedings against Mr Sebie, Mr and Mrs Pham, and Mr Sebie's former wife. The cross-claim was only resolved by orders made by Sackar J on 22 April 2022 in favour of ENA against Mr Sebie, with the claims against the remaining cross-defendants being discontinued. On 30 May 2022, Mr Sebie filed a notice of motion in the Chiswick Specific Performance Proceedings seeking that the orders of 22 April 2022 be set aside and that the funds associated with the orders, including the Chiswick proceeds of sale, be transferred to him. That motion failed.
On 28 September 2021, Mr and Mrs Pham issued a statutory demand on ENA for the judgment debt of $46,164, which represented their costs of the Chiswick Specific Performance Proceedings.
On 27 January 2022, Mr Peter Krejci was appointed as liquidator of ENA by order of Black J, as ENA had failed to comply with that statutory demand.
On 3 February 2022, Black J appointed Mr Krejci as receiver of the ENA Development Trust property, held by ENA (the Trust Proceedings). Black J also granted liberty to any person with sufficient interest under the Trust to apply to the Corporations Judge to set aside the order.
At that point, a range of other proceedings involving ENA in the Supreme Court, the Court of Appeal, the Federal Court, and the Federal Circuit and Family Court were on foot. Mr Jemmott made a number of applications in the Trust Proceedings seeking relief in the nature of termination of ENA's liquidation, replacement of Mr Krejci as liquidator and receiver, and declarations regarding the involvement of One T in various alleged trusts.
On 21 February 2022, Black J made orders that the Registrar General be restrained from registering a transfer of the Homebush property to One T, lodged by Mr Jemmott.
On 9 May 2022, Mr Krejci sought orders in this Court that pursuant to s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth), he would be justified in dealing with certain assets legally held by ENA, such as the Homebush property, as assets to which ENA was beneficially entitled. Stevenson J gave the directions sought: In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919.
The plaintiffs resisted Stevenson J giving that judicial advice. His Honour expressed "grave doubts" as to the genuineness of the deed of trust relied upon by Mr Sebie and Mr Jemmott in various proceedings, that purported to bear the date of 1 September 2009, which, if genuine, would mean ENA was not the beneficial owner of the assets. That same trust deed was before Black J and is relied upon by the plaintiffs in these proceedings to justify some of the relief sought.
In that judgment, at [81]-[82], Stevenson J was not persuaded that there were any reliable documents to support One T's claims that the Homebush property was held on trust, and declined to determine whether One T had been appointed to replace ENA as trustee of the ENA Development Trust.
On 7 August 2022, One T and Mr Jemmott (and others) filed a notice of motion in the Trust Proceedings seeking relief in relation to Mr Krejci, including:
1. the replacement of Mr Krejci as liquidator or the termination of ENA's winding up on the basis that it was solvent;
2. a declaration that One T as the trustee of the ENA Development Trust, held the Homebush property (inter alia) on trust; and
3. a stay of orders made involving the proceeds of sale of the Chiswick property.
On 10 August 2022, the whole motion was dismissed by consent. Nevertheless, on 12 August 2022, a further notice of motion reagitating the same issues was sent to Black J's Associate and filed on 14 August 2022. Black J asked the parties to provide submissions as to why the notice of motion ought not be dismissed as an abuse of process. No submissions were made by the applicants.
On 15 August 2022, Black J made consent orders granting leave to discontinue the 14 August 2022 motion in the Trust Proceedings in the following terms:
…Grants leave to [One T] and the six named applicants, Ms Ansah and others, to discontinue the interlocutory process filed on 14 August 2022, on terms that this order be treated as constituting this discontinuance such that a separate notice of discontinuance need not be filed, on the undertaking given by each of One T and each of the Applicants by their counsel, not to bring a further application, interlocutory process or notice of motion, in or substantially in the form of paragraphs 2-4 and 6-11 of the Interlocutory Process filed 14 August 2022.
The applicants included ENA, One T, Mr Jemmott, and Mr Richard Sebie. Mr Sebie was not one of the applicants on that motion and was not present at Court on 15 August 2022: see eg [2023] NSWCA 187, at [22]. It will be necessary to return to the substance of the orders sought in the 14 August 2022 application in determining Mr Krejci's current application.
On 19 August 2022, Mr Jemmott commenced proceedings in the Federal Court, seeking relief under ss 482(1) and 480 of the Corporations Act (First Jemmott Federal Court Proceedings). On 21 September 2022, Halley J made orders transferring those proceedings from the Federal Court to the Supreme Court of NSW, because the relief sought was substantially the same as the relief sought in the 14 August 2022 motion: Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134.
On 31 August 2022, Mr Sebie filed a motion in the Trust Proceedings, seeking among other things, to be joined as a defendant and a declaration that the Homebush property was a trust asset, in relation to which his brother Richard Sebie was beneficially entitled. Richard Sebie's affidavit relied upon in defence of the motion makes that assertion also. Mr Sebie also sought that the winding up of ENA be set aside, including Mr Krejci's appointment as receiver of the Trust's assets. That motion was amended on 26 September 2022.
On 21 October 2022, Black J dismissed Mr Sebie's 26 September 2022 amended motion at the same time as he dismissed the transferred First Jemmott Federal Court Proceedings as an abuse of process: In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478. In that judgment, on the application of Mr Krejci, Black J also transferred what remained of the Chiswick Specific Performance Proceedings to the Federal Circuit and Family Court, because of proceedings on foot between Mr Sebie and his former wife, in which his former wife claimed that ENA's assets formed part of the pool of marital assets.
Black J refused to join Mr Sebie to the proceedings, because his occupancy of the Homebush property was an insufficient reason to do so: see [2022] NSWSC 1478 at [9]-[10].
Black J also recorded that Mr Sebie conceded that ENA as "former trustee of the trust [if found] … has a right of indemnity against the trust assets (including the Homebush property, if contrary to Stevenson J's later direction, it was trust property) for liabilities which it had properly incurred as trustee": [2022] NSWSC 1478 at [16]. Further, at [17] his Honour stated:
It seems to me that the position is, at best for Mr Sebie's application, that ENA was the former trustee of the ENA Trust, and at worst for that application, that it is absolute owner of the property consistent with the advice given by Stevenson J. Neither position would support an order setting aside the appointment of Mr Krejci as receiver of the assets of the ENA Trust including the Homebush Property (if it was trust property) … The fact that One T is now purportedly or actually the trustee of the ENA Trust, a matter on which Mr Sebie places great emphasis, does not assist him, because an order appointing a liquidator as receiver of trust assets in this way is ordinarily made in circumstances where a new trustee has been appointed or purportedly appointed to a trust.
Before Black J, Mr Sebie did not assert he was entitled to any beneficial interest in the Homebush property beyond being an occupant, but did submit that One T had replaced ENA as trustee of a trust and on that basis was entitled to legal title of the Homebush property. However, Black J made an order for possession of the Homebush property in favour of the Liquidator, and stated at [40]:
…no other person has established a claim for the property, a proposition which is established by the purported lessees' failure to give effect to or comply with the leases including by paying rent, which I have set out above; and, in those circumstances, ENA is entitled to possession of the property, to the exclusion of those persons who claim under the purported leases, or Mr Sebie, who appears to be resident in the premises, but has not established any legal right supporting that residence.
On 24 October 2022, Black J ordered that Mr Sebie remove his caveat on title to the Homebush property.
On 25 October 2022, One T filed an application in the Federal Circuit and Family Court of Australia, seeking inter alia, orders similar to those sought in the August 2022 motions.
On 25 October 2022, One T commenced proceedings in the Court of Appeal seeking leave to appeal against the judicial directions given to Mr Krejci by Stevenson J. Leave to appeal was granted on 8 February 2023 and the appeal was heard and determined shortly thereafter, as detailed below.
On 26 October 2022, Mr Sebie commenced proceedings in the Federal Court (Sebie Federal Court Proceedings) seeking substantially the same relief as the First Jemmott Federal Court Proceedings, which also were substantially the same as the relief sought in the August 2022 motions before Black J.
Mr Sebie also sought a stay of the winding up of ENA and other relief. On 2 November 2022, that stay application was dismissed.
On 16 November 2022, Registrar Segal dismissed the Sebie Federal Court Proceedings. Mr Sebie sought a review of the dismissal, and on 9 January 2023, Goodman J dismissed that review application.
On 11 November 2022, a writ of possession for the Homebush property was issued for Mr Krejci.
On 6 December 2022, Mr Sebie filed an interlocutory process in the Federal Court seeking a stay and review of the orders dismissing his earlier interlocutory application and the Sebie Federal Court Proceedings. On 13 February 2023, the application was heard by Lee J, who referred to the "orgy of litigation which seems to have arisen in relation to the liquidation of ENA": Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd (No 2) [2023] FCA 141 at [2]. Lee J made directions for the filing of any further application following determination of proceedings in the Federal Circuit and Family Court of Australia that were listed for hearing commencing on 20 February 2023, in which the winding up of ENA was challenged, inter alia. Judgment in those substantive family law proceedings was reserved on 20 April 2023: [2023] FedCFamC1F 600.
On 22 December 2022, Mr Jemmott, in his capacity as a director and manager of Enterprise INT Pty Ltd, and the sole director of One T, filed a notice of motion in the Trust Proceedings seeking that Mr Jemmott and Enterprise INT be joined as defendants, that the writ of possession be stayed, and a declaration that "One T is the legal owner of the Homebush property".
On 6 January 2023, Ierace J dismissed that notice of motion and gave an ex tempore judgment. Ierace J noted that Mr Sebie also sought to be joined to the proceedings and for the writ of possession to be stayed. However, Mr Sebie did not submit that he was entitled to any proprietary interest in the Homebush property, other than as an occupier. The whole of the motion was dismissed, which as noted above, included a prayer for relief in the form of a declaration that One T is the legal owner of the Homebush property. The ex tempore judgment is referred to in a later judgment: see In the matter of ENA Development Pty Ltd (in liq) (Costs) [2023] NSWSC 162. The writ of possession was scheduled to be executed on 9 January 2023.
On the evening of 6 January 2023, Mr Sebie approached Goodman J, as duty judge in the Federal Court, and sought a stay of the winding up of ENA. The application was dismissed, and Goodman J noted that the application was an attempt to obtain a stay of the writ of possession in another way: Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2 at [22].
On 20 January 2023, Mr Jemmott filed an originating process in the Federal Court seeking the termination of ENA's winding up, the removal of Mr Krejci as liquidator, and a declaration that One T holds assets, including the Homebush property, on trust (Second Jemmott Federal Court Proceedings). The relief was substantially the same as the relief sought in the First Jemmott Federal Court Proceedings and the August 2022 motions and the Sebie Federal Court Proceedings. On 8 February 2023, those proceedings were dismissed as an abuse of process. On 6 March 2023, Mr Jemmott commenced an application for extension of time and leave to appeal against those orders (Federal Court Appeal Proceedings).
On 1 February 2023, Mr Jemmott and One T commenced the current proceedings in the Real Property List.
On 17 February 2023, One T filed a notice of motion seeking to stay Stevenson J's judicial directions, which was dismissed by Macfarlan JA on 20 February 2023.
On 17 March 2023, pursuant to leave granted, the plaintiffs filed an amended statement of claim in these proceedings.
On 11 April 2023, Mr Jemmott, One T and Mr Sebie filed in the Court of Appeal an application for leave to appeal from the following orders:
1. Black J's orders on 27 January 2022 for the winding up of ENA and the appointment of Mr Krejci as liquidator in In the matter of ENA Development Pty Ltd [2022] NSWSC 54.
2. Black J's orders granting possession of the Homebush property to Mr Krejci and requiring Mr Sebie's caveat to be removed on 21 October 2022 (amended 24 October 2022) in In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478.
3. Ierace J's orders dismissing the stay motion in the Trust Proceedings on 6 January 2023 in In the matter of ENA Development Pty Ltd (in liq) (Costs) [2023] NSWSC 162. I note that the applicants did not seek leave to appeal from Ierace J's dismissal of the prayer for relief in the form of a declaration concerning One T's legal ownership of the Homebush property. Instead, the leave application asserted that:
Ierace J erred that Ronald Jemmott and Robert Sebie has combined commercial leases to occupy the [Homebush property].
As noted above, on 15 May 2023, Williams J declared, relevantly, Mr Jemmott, Mr Sebie, and One T to be vexatious litigants. The proceedings declared vexatious pursuant to s 6 Vexatious Proceedings Act were:
1. Mr Sebie's 30 May 2022 notice of motion filed in the Chiswick Specific Performance Proceedings seeking to set aside Sackar J's 22 April 2022 orders finalising the issue of costs and sale of proceeds of the Chiswick property, which was ultimately dismissed by Black J on 14 October 2022.
2. The 7 August 2022 notice of motion filed in the Trust Proceedings, which was dismissed by consent orders.
3. The 14 August 2022 motion filed in the Trust Proceedings, discontinued by way of consent orders made by Black J on 15 August 2022 on the undertaking not to seek the same relief.
4. The 19 August 2022 First Jemmott Federal Court Proceedings dismissed by Black J as an abuse of process.
5. The 31 August 2022 notice of motion (as amended on 26 September 2022) filed in the Trust Proceedings dismissed by Black J.
6. The 26 October 2022 Sebie Federal Court Proceedings.
7. The 22 December 2022 motion dismissed by Ierace J on 6 January 2023.
8. The application for review of the dismissal of the Sebie Federal Court Proceedings.
9. The Second Jemmott Federal Court Proceedings.
On 2 June 2023, the Court of Appeal dismissed the appeal from the orders made by Stevenson J. It was held that the orders did not determine the beneficial ownership of the property held legally by ENA, and that their primary purpose was to provide some limited protection for Mr Krejci against interlocutory relief being sought to restrain a dealing with ENA's property, and against a personal costs order being sought if the property was finally held to not belong beneficially to ENA. As his Honour's doubts regarding the legitimacy of the trust deed were fundamental to the granting of the orders, they had been properly expressed and did not found an appealable error: One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd [2023] NSWCA 120 at [36], [40] and [56] (Ward P, Leeming and Mitchelmore JJA).
The Court also dismissed other grounds of appeal that alleged error in the form of a failure to have regard to certain evidence, and an error in the use of evidence contrary to a ruling.
On 20 July 2023, on the Court's own motion, Henderson J dismissed two applications made in the substantive Federal Circuit and Family Court (Division 1) concerning family law issues between Mr Sebie and his former wife:
1. An application filed on 8 May 2023 was dismissed. That motion sought, inter alia, the undoing of the winding up of ENA. Henderson J concluded the application was brought "to circumvent the order of Williams J made in May 2023": see [2023] FedCFamC1F 600 at [61]. Henderson J described the application at [62] as "vexatious, an abuse of process, doomed to fail at the outset, brought for an ulterior motive and utterly devoid of merit".
2. An application filed on 6 July 2023 seeking to vary or set aside Black J's orders made by consent discontinuing the August 2022 motions was summarily dismissed: [2023] FedCFamC1F 601.
On 2 August 2023, Jackman J made orders prohibiting Mr Sebie, Mr Jemmott and One T from bringing any proceedings relating to the winding up of ENA against Mr Krejci, ENA, any current or former director, employee, agent or consultant of BRI Ferrier and ERA Legal, unless leave is granted. He agreed with Williams J's orders that the various proceedings in the Federal Court were vexatious and made the same finding pursuant to s 37 AO(2)(b) of the Federal Court of Australia Act 1976 (Cth). Jackman J also permanently stayed the existing Sebie Federal Court Proceedings and Federal Court Appeal Proceedings: Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884.
On 10 August 2023, Gleeson JA and Basten AJ refused the 11 April 2023 application for leave to appeal: Sebie v Krejci [2023] NSWCA 187. This had the following effect:
1. ENA's winding up order cannot be further challenged. In particular, the Court of Appeal refused leave to appeal from the finding that ENA was insolvent at the relevant time.
2. There was insufficient a basis to overturn the consent orders made by Black J on 15 August 2022 and allow the applicants to agitate for similar relief to that sought in the August 2022 motions. The Court of Appeal noted that Mr Jemmott accepts that he gave instructions for the discontinuance of the 15 August 2022 motion.
3. The order for possession of the Homebush property and the removal of Mr Sebie's caveat from title binds the parties.
4. The order for the writ of possession of the Homebush property is final. In any event, the Liquidator is in possession of the property.
[3]
Substance of motion to strike out or dismiss for abuse of process
In essence, the Liquidator submits that there is a complete overlap between the relief sought in these proceedings and that which has been sought in other proceedings, which has either already failed, or is caught by the undertaking given to the Court on 15 August 2022.
It is necessary therefore to compare the relief sought in these proceedings with previous orders and the details of the undertaking.
In the Amended Statement of Claim in these proceedings, prayer for relief 1 seeks:
A declaration that Enterprise INT Pty Ltd is a leaseholder and has possession in the Land Lot 36 in Strata Plan 74958, known as Unit 36, 146-152 Parramatta Road, Homebush NSW 2140 (the Homebush property).
I accept the Liquidator's submission that Enterprise INT Pty Ltd is not a party to the proceedings, and therefore that prayer cannot succeed and ought be struck out. In any event, the Liquidator already has possession of the Homebush property.
Prayers for relief 2-5 seek:
2. A declaration that One T Development Pty Ltd is the legal owner of Strata Plan 74958, known as Unit 36, 146-152 Parramatta Road, Homebush NSW 2140.
3. An order to complete the transfer of the Homebush Property into the name of One T Development Pty Ltd.
4. A declaration that the fund "the Fund" arise by the process of sale of the land known as 11 Tutt Crescent, Chiswick NSW 2046 which commence on the 7 May 2018 is a trust assets of ENA Development Trust - Concessional, which One T Development Pty Ltd is the trustee as of 30 March 2021.
5. A declaration that the ASX Shares held in Comsec Account #2133693 or ASX SIN/APN/SBN 1402 HIN 33720939 as of the 27 January 2022 is a trust assets [sic] of ENA Development Trust - Concessional, which One T Development Pty Ltd is the trustee as of 30 March 2022.
The Liquidator submits that those prayers for relief are substantially identical to the relief sought in orders 7 and 9 of the August 2022 motions, and order 6 in the First Jemmott Federal Court Proceedings.
Orders 7 and 9 sought in the August 2022 motions were:
7. In lieu of the orders made on 6 July 2022, the Court declare that
a. One T Development Trust was appointed as the Trustee of the ENA Development Trust on 30 March 2021.
b. whereas ENA Development Pty Ltd was previously a Trustee of the ENA Development Trust, its appointment as Trustee of the Trust came to an end on 30 March 2021, or alternatively at a time not later than the 2 September 2021, being the date recorded with Revenue NSW and before which ENA Development Pty Limited was placed into liquidation and Mr Peter Krejci was appointed as its liquidator.
9. In lieu of the orders made on 3 February 2022, the Court order that One T Development Pty Ltd as the Trustee of ENA Development Trust, to hold the assets of the trust pending further order but not to deal with them otherwise than upon the giving of 14 days' notice to the parties.
Particulars of the Trust Assets
a. Lot 36, 146 Paramatta Road Homebush NSW 2140
b. Fund in Supreme Court $1,900,000 (now sitting with the liquidator)
c. ASX Share Portfolio $115,000 Comsec Account ENA Development
d. Further cash at bank CBA ENA Development Pty Ltd $9000
Order 6 sought in the First Jemmott Federal Court Proceedings was:
A declaration that One T Development Pty Ltd as the Trustee of ENA Development Trust as or after 30 March 2021 to hold the assets on trust under section 63 of the Trustee Act 1925; Property known as Lot 36, 146 Parramatta Road, Homebush NSW 2140, the Fund of $1,900,000 now sitting in the Liquidator Trust Account, realisation of Shares to the value of $115,000 now sitting in the liquidator's trust account, the value of $9700 Cash at back [sic] Account CBA ENA Development.
I accept the Liquidator's submission that the effect of the prayers for relief 2-5 sought in these proceedings are to the same effect as those already sought in the August 2022 motions and the First Jemmott Federal Court Proceedings. The relief concerning the ownership of the Homebush property was also part of the motion filed on 22 December 2022 and dismissed by Ierace J. By reason of the Court of Appeal's refusal to grant leave to appeal in relation to Black J's orders concerning the August 2022 motions, Ierace J's orders, and the dismissal of the transferred First Jemmott Federal Court Proceedings by Black J, I accept that prayers for relief 2-5 in the current proceedings are an abuse of process because:
1. To allow the plaintiffs to continue would be unjustifiably oppressive to the Liquidator and would bring the administration of justice into disrepute; and
2. The substance of the prayers for relief seeks to impugn results in previous judgments and orders by way of further litigation.
In these proceedings, prayer for relief 6 seeks:
That orders 2 and 3 made on the 3 February 2022 in proceedings numbered 2022/00032115 [Trust Proceedings] be set aside.
Those orders concerned the winding up of ENA. Those matters have already been raised in:
1. The August 2022 motions, prayers 8, 9 and 11; and
2. The First Jemmott Federal Court Proceedings, prayer 3.
Again, the Court of Appeal has refused leave to appeal in relation to those matters. For the same reasons as for prayers 2-5, prayer for relief 6 is an abuse of process.
While the Liquidator did not make this submission, it follows that prayer for relief 15 is in the same category. It seeks:
Leave is granted by this court to bring this application by One T Development Pty Ltd or Stay or vary order 1 dated 15 August 2022 by Black J in proceedings number 2022/00032115 [Trust Proceedings].
In these proceedings, prayer for relief 7 seeks:
Order 1 made on the 21 February 2022 in proceedings number 2022/00032115 [Trust Proceedings] be discharged.
That order 1 in the Trust Proceedings was:
1. Upon the plaintiff's giving of the usual undertaking as to damages by his counsel, Order pursuant to s.66 of the Supreme Court Act 1970 (NSW) that the Registrar General be restrained from registering an unregistered Transfer with dealing number AR480833 lodged on title to real property with folio identifier 36/SP74958 being the land situated at and known as 36/146-152 Parramatta Road, Homebush NSW until further order.
The transfer that was not to be registered was a transfer of the Homebush property to One T Development, dated 14 February 2021. On 30 September 2021, one day after freezing orders were made by Henderson J against ENA and Mr Sebie in his family law proceedings, attempts were made to lodge the transfer. Because this order concerns the ownership of the Homebush property, the same reasoning applies and this amounts to an abuse of process.
In these proceedings, prayer for relief 8 seeks:
Order under section 74MA of the Real Property Act 1900 that the first defendant lodge with the Registrar-General a withdraw [sic] of caveat AR880336.
That caveat was lodged by the Liquidator on the title of the Homebush property.
I accept the Liquidator's submission that the relief sought in prayers 7 and 8 is derivative of the earlier prayers for relief concerning the Homebush property and cannot stand alone. Therefore, I consider them an abuse of process for the same reasons.
The plaintiffs' prayers for relief 9-13 seek, in the alternative to orders concerning the transfer of the Homebush property, damages from the Liquidator and costs. Again, the relief sought concerns the Homebush property and damages. Those prayers are derivative of the earlier prayers for relief and amount to an abuse of process.
Prayer for relief 14 seeks:
Stay of [sic] reverse of the writ of possession of the Land Lot 36 in Strata Plan 74958… made on 11 November 2022 by Registrar Gerritsen.
A stay of the writ of possession was refused by Ierace J: In the matter of ENA Development Pty Ltd (in liq) (Costs) [2023] NSWSC 162 at [1]-[3]. Leave to appeal from that decision was refused: [2023] NSWCA 187. Further, such an order is pointless, as the Liquidator is in possession of the property. I consider that prayer for relief an abuse of process for the same reasons as above.
Prayer for relief 16 seeks an order that the Liquidator be prevented from using "the Fund" to "pay any disbursements or costs in any means what so ever". However, by reason of Stevenson J's decision providing the Liquidator with directions, which were not overturned on appeal, the Liquidator is entitled to use "the Fund" in accordance with Stevenson J's directions. That claim is an abuse of process and cannot be agitated again.
[4]
Rejection of Mr Jemmott's submissions
For completeness I deal with Mr Jemmott's submissions resisting the finding that the current proceedings are an abuse of process for various reasons.
First, he submits that Stevenson J's orders were interlocutory and did not determine the "true owner" of the "Fund" and Homebush property, which was confirmed on appeal. Mr Jemmott similarly submits his claim is not an abuse of process, because he has never had an application in any Court heard on its merits.
While it is correct that Stevenson J's judicial advice was not finally determinative, this does not address the abuse of process argument propounded by Mr Krejci. The vast procedural history of this matter shows that Mr Jemmott has been unsuccessful on previous occasions, where he has sought similar relief in relation to the Homebush property and the "Fund". Claims seeking substantially the same relief have been previously litigated and failed or in relation to which the 15 August 2022 undertaking was given. Mr Jemmott also does not deal with the Court of Appeal's refusal to grant leave to appeal.
Mr Jemmott submits that the undertaking provided to Black J on 15 August 2022 was provided by his solicitor, Mr Ardino, without his knowledge or consent. However, as noted by the Court of Appeal, on 15 August 2022, Mr Jemmott emailed Mr Mark Robinson of senior counsel, copied to Karzai & Associates, confirming "On Rocco's advice, I withdraw the notice of motion which was filed yesterday and was going to be heard today": [2023] NSWCA 187 at [23].
The transcript of 15 August 2022 demonstrates the undertaking was given to the Court for all the applicants by Mr Robinson, not Mr Ardino. It indicates that Mr Robinson was initially unable to provide the undertaking, and only did so after he obtained instructions following two adjournments at the hearing:
HIS HONOUR: Do they consent to an order on terms that the issues may not be re agitated by them?
ROBINSON: I would have to seek instructions, your Honour, but that is not likely to happen.
…
HIS HONOUR: Now I note your instructing solicitor is back in court, but I will adjourn so that you have the opportunity to go out and speak to him in private. I will come back in five minutes.
ROBINSON: Thank you, your Honour.
SHORT ADJOURNMENT
HIS HONOUR: Mr Robinson?
ROBINSON: I don't have instructions, your Honour, I'm sorry. I have got multiple clients and they are talking to each other at the moment and there may be no end in sight, so I simply am unable to say to your Honour that I have instructions.
HIS HONOUR: All right. And you have nothing that will assist matters to put forward without instructions?
ROBINSON: No, your Honour, except to say that we do not move on the motion that your Honour has kindly allowed this morning to be agitated. We seek to withdraw with tail between our legs and to pay the costs associated of the other side, associated costs of the motion.
…
ROBINSON: I have instructions. The clients agree to give the undertaking that we talked about however, and the two however's are significant. They want their documents back, their files that were taken by the liquidator from the premises that is referred to in the documentation, and may be that is something that we can discuss with the liquidator at some point. They need their files back.
Secondly, they still want to press order number 1 which is the section 482 order [challenging the winding up] basically to end the litigation in the future, and it may be that that separate order, and possibly if the liquidator wants to hang on to my client's files for some reason, that can be dealt with on another day, those two issues.
Other than that, my clients are prepared to give the Court the undertakings that we spoke of earlier that they will not seek to file a motion in this Court replicating the issues in the notice of motion or in substantially similar terms and again, except for these two issues.
The Court of Appeal did not engage with a submission that no authority was given to provide the undertaking, because instructions were given to discontinue the interlocutory process, and that was a sufficient basis to refuse leave to appeal against the consent orders.
I consider that the undertaking binds Mr Jemmott and the others, for whom it was given.
A legal practitioner may give an undertaking for a client with implied, if not express, authority to do so, if there has been no express limitation placed on the authority. Such undertaking will generally be binding: Donellan v Watson (1990) 21 NSWLR 335 at 341-342. Mr Jemmott does not give any evidence that he expressly limited Mr Ardino or Mr Robinson's authority. The undertaking was given in Mr Robinson's professional capacity appearing in Court at the instruction of Mr Jemmott and the other applicants. Further, Mr Robinson informed the Court that he had received instructions, and there is no suggestion that was false.
Mr Jemmott has not provided any evidence that the undertaking was expressly unauthorised, nor has he established any mistake on Mr Robinson or Mr Ardino's part as to the extent of their authority to provide an undertaking.
Mr Jemmott's affidavit deposes to an alleged conversation with Mr Ardino before, but not during the hearing:
Ardino: The application and evidence I prepared didn't address the issues we want in proper format, we need to withdraw the application and re-file once it is in correct form, I will try to work out deal with the other party about cost.
Jemmott: How did this happen, you should be on top of this, I am upset the application was not prepared correctly. If this is your advice to withdraw it, ok then, but I am not happy how you are handling this, you are wasting time and costs.
I do not accept that conversation occurred. At no time was an application "re-filed" as Mr Jemmott suggests Mr Ardino proposed to do. Black J indicated to the parties that he expected submissions on why the 14 August 2022 motion ought not be dismissed as an abuse of process and no submissions were made.
I also note that Mr Jemmott did not call Mr Ardino, a solicitor, to give evidence. Mr Ardino has been involved in various proceedings with Mr Jemmott. For example, he was granted leave to appear at the hearing before Ierace J on 6 January 2023 for Mr Jemmott as amicus curiae: In the matter of ENA Development Pty Ltd (in liquidation) (Costs) [2023] NSWSC 162 at [1]. If Mr Jemmott had wished to obtain a finding that Mr Ardino and Mr Robinson acted without instructions, which is a very serious allegation to make against an officer of the Court, then it was incumbent on him to prove it properly and explain why he has not brought forward evidence from Mr Ardino, in particular, consistent with Mr Jemmott's asserted conversation. Mr Jemmott did not suggest that he has complained to Mr Ardino, nor sought redress for any alleged breach of authority. On balance, I do not accept that Mr Ardino made the statement alleged, or that Mr Robinson acted without instructions. Even if the conversation occurred, it was overtaken by the instructions given to Mr Robinson on 15 August 2022.
Furthermore, there is no evidence that, even if Mr Ardino or Mr Robinson lacked authority, which I do not accept, the other parties were aware of any limitations on their ability to act for Mr Jemmott when the undertaking was proffered in the context of the consent orders. There has been no attempt by the plaintiffs to set aside the agreement that formed the basis of the consent orders and included the undertaking: see eg The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587 at 605-606; [2017] NSWCA 341 (Beazley P, Leeming JA and Emmett AJA agreeing). Therefore, I consider the consent orders and undertaking are binding on Mr Jemmott.
Secondly, Mr Jemmott argues that ENA should not have been placed into liquidation and that ENA is solvent. Black J determined that matter in In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [14]-[15], where his Honour noted that terminating the winding up would require an application under s 482 Corporations Act 2001 (Cth). There, Black J also declined to set aside the appointment of Mr Krejci as receiver and noted that no basis upon which the Court had the power to set aside the relevant orders had been identified. The same problem arises in the present case. Further, the Court of Appeal has now refused leave to appeal from that decision of Black J and it therefore binds the parties.
Thirdly, Mr Jemmott's submissions attach a proposed further amended Statement of Claim that joins Mr Sebie as second defendant and alters some of the relief sought.
No leave to rely upon an amended pleading has been sought, and Mr Krejci has not been given an opportunity to be heard on whether an amended pleading ought to be allowed. In any event, that proposed pleading does not remove the substantive issues raised above. A substantial overlap between the relief sought in the proposed further amended Statement of Claim and the relief sought in previously litigated claims remains.
Some new prayers for relief are added, but no further facts are pleaded. A declaration is sought that ENA holds the Homebush property on trust for One T. Therefore, the substance of that relief is that One T has an interest in the Homebush property, and the same reasoning as above applies.
While unnecessary to decide whether leave ought to be granted to rely on the proposed pleading, I note some further problems with it. An alternative prayer for relief is that Mr Sebie is the legal owner of the Homebush property due to a resulting trust. However, Mr Sebie cannot be the legal owner of the property; at most he would have some equitable interest in it. Further, that claim is contrary to the following:
1. Mr Jemmott's submission that on 13 February 2013 ENA "purchased the Homebush property" and the contrary submission that Richard Sebie (not Mr Sebie) is "an interested Party" in the Homebush property.
2. Mr Sebie's application to seek relief that his brother Mr Richard Sebie is the beneficial owner of the Homebush property, which was dismissed by Black J: In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478; and in relation to which leave to appeal has been refused: [2023] NSWCA 187.
3. Mr Sebie's submissions and agitation for a stay of the writ of possession before Ierace J on 6 January 2023, during which he merely asserted a right of occupancy, rather than a resulting trust. The Court of Appeal has also refused leave to appeal that judgment.
4. Mr Sebie's evidence on 27 June 2023, upon which the plaintiffs rely, includes assertions by Mr Sebie of deposits of money into ENA "to fund the purchase of Homebush" and conversations with his parents about an oral agreement concerning the beneficial ownership of the Homebush property. However, Mr Sebie's caveat claiming an equitable interest in the property by way of a constructive trust was removed by order of Black J on 24 October 2022. I note that, at that hearing, Mr Sebie agreed that the caveat needed to be amended. The Court of Appeal also refused leave to appeal this order removing the caveat. Mr Sebie did not commence proceedings positively asserting any entitlement to a proprietary interest in the Homebush property. Despite his assertion on 7 July 2023 that he wished to bring a cross-claim in the current proceedings, due to the orders of William J, he cannot do so without complying with the Vexatious Proceedings Act.
In the proposed amended pleadings, there are also added allegations of fraud against Mr Krejci, which have not been pleaded or particularised as required by the Uniform Civil Procedure Rules. Further, leave is sought under s 237(2)(c) of the Corporations Act to bring a derivative action on behalf of ENA against Mr Krejci. No explanation has been provided by Mr Jemmott as to a proper basis for these matters.
Fourthly, Mr Jemmott submits that allowing the treatment of the "assets" as beneficially owned by ENA unjustly enriched ENA. However, the legal basis for the submission is not explained, nor how it would operate in light of the other orders that have already been made.
I do not consider that the plaintiffs have provided any reason to dissuade me from the view that the orders in the defendant's notice of motion ought be made.
[5]
Mr Sebie
As noted above, on 7 July 2023, Mr Sebie accompanied Mr Jemmott to Court.
On 21 July 2023, Mr Sebie filed written submissions alleging that he had been joined to the proceedings as a defendant by Mr Jemmott. That is not correct. As noted above, no leave has been granted to the plaintiffs to file a further amended statement of claim. No leave was granted to Mr Sebie to file written submissions.
As already noted, Mr Sebie has been declared a vexatious litigant and may not bring proceedings related to the subject matters identified by Williams J without leave in accordance with s 14 of the Vexatious Proceedings Act. Mr Sebie has made no attempt to do so. He has not filed an affidavit listing all other proceedings he has instituted in Australia in accordance with s 14(3). This requirement was brought to his attention at the hearing on 7 July 2023.
To the extent that he is seeking it, I refuse Mr Sebie leave to agitate any matters in the current proceedings, where he is not a current party, and he has failed to comply with the Vexatious Proceedings Act.
[6]
Costs
The Liquidator seeks his costs of the motion on an indemnity basis. The plaintiffs made no submissions resisting such an order.
In circumstances where it is appropriate to dismiss or strike out the amended statement of claim as an abuse of process, I consider it an appropriate exercise of my discretion to order costs on an indemnity basis and payable forthwith.
[7]
Orders
The appropriate orders are:
1. Order pursuant to rule 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) the Amended Statement of Claim filed 17 March 2023 be struck out as an abuse of process.
2. Order the plaintiffs pay the defendant's costs of the proceedings forthwith on an indemnity basis.
3. Should the defendant seek a lump sum costs order, evidence and submissions of no more than 3 pages to be provided to Chambers to Peden J by 8 September 2023. The plaintiffs are to provide any evidence and submissions of no more than 3 pages by 15 September 2023. Such application to be determined on the papers if appropriate.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 September 2023
This is an application by the defendant to have the plaintiffs' statement of claim summarily dismissed or struck out as an abuse of process, relying on any or all of rules 14.28(1)(b), 14.28(1)(c), 13.4(1), 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW).
The plaintiffs, Mr Ronald Jemmott and One T Development Pty Ltd (One T), commenced these proceedings by way of Statement of Claim on 1 February 2023 against the defendant, the appointed liquidator of ENA Development Pty Ltd in liquidation (ENA). The plaintiffs allege that ENA was the trustee of a fixed unit trust, which is the subject of an alleged trust deed dated 1 September 2009. It is referred to in various judgments as the "ENA Trust" or "ENA Development Trust".
On 2 June 2023, at a directions hearing in the Real Property List, orders were made granting leave to the defendant to file and serve the present notice of motion and listing the motion for hearing on 7 July 2023. Orders were also made setting a timetable for the filing and serving of evidence and submissions. On that occasion, Mr E Patakas appeared for the plaintiffs.
On 6 June 2023, the Liquidator's motion was filed.
On 7 July 2023, Mr Ronald Jemmott appeared in person, accompanied by Mr Robert Sebie. Mr Jemmott had not complied with the 2 June 2023 timetable for evidence, nor sought to relist the matter to seek an extension of time. He informed the Court that he was not ready to proceed with the hearing and that he needed more time so that he could obtain legal representation. At first he suggested that he had not seen the Liquidator's motion, nor the supporting material, and vaguely asserted that he needed to wait until his solicitor, Mr Patakas, was available. He did not at the outset make an application for an adjournment, but later attempted to do so. I refused the application because there was no evidence as to why Mr Patakas was unable to appear, nor what steps Mr Jemmott had taken between 2 June and 7 July 2023 to obtain legal advice or comply with the Court's timetable. Mr Jemmott accepted that he personally had been involved in many legal proceedings and in fact had been served with all the Liquidator's material.
The oral hearing proceeded. However, after some oral submissions, it became clear that the motion could not be heard in the time that had been estimated by the parties and allocated by the Court. That was due to various reasons including:
1. Mr Jemmott had not provided any evidence or written submissions to either the Liquidator or the Court (in breach of the Court's directions), and instead sought to hand up a large volume of material at the hearing;
2. Mr Jemmott was not able to advance any submissions in a helpful way; and
3. There were unhelpful interruptions from Mr Robert Sebie. He is not a party to the current proceedings. Nevertheless, at the oral hearing, Mr Sebie sat at the bar table and asserted he was there "amicus" or as a McKenzie friend for Mr Jemmott. I indicated to him that such a status did not provide him with a right to make submissions, instead of Mr Jemmott. I noted that the plaintiffs had been legally represented previously. Nevertheless, Mr Sebie did not refrain from attempting to make submissions and telling Mr Jemmott what to say, which Mr Jemmott then repeated orally. Mr Sebie also attempted to hand up further material to the Court.
Summary relief
Summary relief may be granted pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), which states, relevantly:
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (per Gleeson JA, Beazley P and Barrett JA agreeing):
[196] It is not in dispute that 'great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal': General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).
[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:
'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.'
…
[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:
'The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.'
[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].
The cause of action must be "so obviously untenable that it cannot possibly succeed" or "manifestly groundless": General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ). It requires a high degree of certainty that the claim will fail if it proceeds to trial in the ordinary way, taking the plaintiff's case at its highest: Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (Gleeson JA, Beazley P and Barrett JA agreeing).
Strike-out
A pleading may be struck out pursuant to r 14.28 of the UCPR, which states, relevantly:
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
Chen J summarised the principles on abuse of process in Massalski v The Owners SP 90255 [2023] NSWSC 23 at [54]:
(1) The "varied circumstances in which the use of the courts processes will amount to an abuse … do not lend themselves to exhaustive statement" or being "susceptible of formulation which would confine it to closed categories": UBS [UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45] at [1] and [72].
(2) An abuse of process will occur where either of two conditions are met: "where the use of the court procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute": UBS at [1]; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] ('Tomlinson').
(3) There is no inflexible rule that a party is precluded from relitigating issues determined in an earlier proceeding, but it might do so: Tomlinson at [26]. The question will be whether, in doing so, it would be unjustifiably oppressive upon the other party or would bring the administration of justice into disrepute - issues that involve a "broad merits based judgment which takes account of the public and private interests and all the circumstances of the case: UBS at [7], citing Johnson v Gore Wood & Co [2002] 2 AC 1, 31.
(4) Whether the circumstances constitute an abuse of process is to be assessed in light of, and must take into account, "the procedural law administered by the court whose processes are engaged": UBS at [34] and [72].
(5) It is unnecessary, in order to establish abuse of process, that subsequent proceedings involve the same parties as the first one, or their privies: Tomlinson at [26]; UBS at [63]. It is also unnecessary to show a superadded element - such as collateral attack or dishonesty - albeit that the presence of such an element may demonstrate, or assist in doing so: UBS at [67].
At [56], his Honour explained the meaning of a 'collateral attack':
A collateral attack occurs where a party seeks to challenge or impugn the result of the previous judgment, not through an appeal, but through subsequent litigation. That is, a party invites a court, in those later proceedings involving that party, to "arrive at a decision inconsistent with that arrived at" in that earlier case: Arthur J S Hall & Co v Simons (a firm) [2002] 1 AC 615, 743. In the end, the concept describes inconsistency, albeit of a fundamental and impermissible kind. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 541 it was said that it was an abuse of process to initiate
proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
The parties agreed that the motion ought not continue being heard orally, and instead should be determined on the papers. Mr Jemmott was provided until 14 July 2023 to file and serve evidence and written submissions. The defendant was directed to file and serve any reply submissions by 21 July 2023.
On 14 July 2023, following email correspondence from Mr Jemmott, orders were made extending the time for the plaintiffs to file and serve submissions and evidence to 17 July 2023.
Mr Jemmott provided a list of material in his written submissions, upon which he said he relied. Below I set out the material listed that was in fact provided to the Court:
1. Amended further statement of claim filed (without leave) on 16 July 2023.
2. Affidavits of Mr Jemmott dated: 10 September 2022, 19 January 2023 (without the exhibit RJEM), 6 July 2023, 13 July 2023.
3. Affidavit of Erkan Mentesh, accountant, dated 13 June 2023, which refers to various affidavits not read on the motion and asserts that these affidavits are "not correct".
4. Affidavit of Richard Sebie dated 3 March 2022.
5. Affidavits of Robert Sebie:
1. said to be dated 24 May 2023 (which I take to be an affidavit filed 5 July 2023 and dated 24 May 2023, but with that date crossed out and 27 June 2023 added); and
2. 7 September 2022 (filed on 5 July 2023).
1. Chronology.
2. Submissions provided on 17 July 2023.
The following material was listed in Mr Jemmott's submissions, but was not provided to the Court in accordance with the orders, and therefore has not been considered:
1. Affidavit of Mr Jemmott dated 14 April 2023.
2. Expert report of Ian Paul, Polemic Forensic Accountants. In any event, I note that the Practice Note and Uniform Civil Procedure Rules concerning expert evidence were not complied with.
3. "Bank statements - ENA and Robert Sebie". No bank statements were provided separately from the various exhibits to affidavits. There are ENA bank statements in Ex RON-1 of Mr Jemmott's 10 September 2022 affidavit (filed 17 July 2023, dated 8 September 2022). That same exhibit contains bank statements from Richard Sebie and Rose Sebie, but not Robert Sebie.
4. Exhibit RJEM, referred to in Mr Jemmott's 19 January 2023 affidavit.
On 26 July 2023, the plaintiffs sent to chambers "supplementary submissions". No order had been sought nor made for further submissions and I have not considered them.
I note that on 27 July 2023, the plaintiffs sent to chambers a notice of motion to "stay" Mr Krejci's 6 June 2023 motion, inter alia.
The matter was listed on 11 August 2023 for directions to hear the parties on whether leave to file the notice of motion ought to be granted to the plaintiffs. Mr Krejci resisted leave being granted. When the matter was called and after I asked Mr Jemmott to explain the power he sought to invoke, he decided not to seek leave to file the motion. No leave has been granted to file any further notice of motion. However, since that time, Mr Jemmott has continued to send various emails to chambers.
During the oral hearing on 7 July 2023, the parties referred to Mr Jemmott and Mr Sebie's application to the Court of Appeal, seeking leave to appeal various first instance judgments. The amended summons seeking leave to appeal and the draft notice of appeal were attached to Mr Jemmott's submissions. Mr Jemmott submitted that even if leave to appeal was granted and the appeal was successful there would still be matters that remained to be determined in these proceedings. On 11 August 2023, I asked both parties if they wished to make any submissions on the effect of the Court of Appeal's judgment Sebie v Krejci [2023] NSWCA 187. That decision refused the application for leave to appeal judgments, and was delivered on 10 August 2023, after the previous timetable for submissions was made. Neither party wished to make any further submissions, but accepted I should have regard to that decision in determining the motion.