I first set out the factual background to these proceedings and this application, drawing upon the affidavit evidence to which I refer below and the helpful submissions of Mr Robertson, who appears for the Defendants, summarising that evidence.
Between 2010 and May 2017, Courtenay House Pty Limited (in liq) and Courtenay House Capital Trading Group Pty Limited (in liq) ("Companies") operated a Ponzi scheme, in which they claimed to trade in foreign exchange, futures and commodities on behalf of investors and paid monthly returns to investors generated by such trading. In fact, little of the deposited funds were traded by the Companies and monthly "returns" paid to investors were largely paid using funds deposited by investors. That scheme operated until about April 2017, when this Court made freezing orders over the Companies' assets and bank accounts on the application of the Australian Securities and Investments Commission ("ASIC"). On 16 May 2017, the Court appointed Messrs Jahani and McInerney of GTA as the liquidators of the Companies, also on ASIC's application. CBP has acted as the solicitors for the liquidators and the Companies in subsequent litigation, including proceedings brought against persons involved in the Ponzi scheme.
The Plaintiff appears to be associated with "Oceanic Sun Group", which is not an incorporated entity, and which invested amounts totalling $10,600,000 with the Companies prior to their liquidation. In particular, Oceanic Sun Group invested amounts totalling $7,800,000 in a purported investment product offered by the Companies called the "Brexit Special Product". These amounts were deposited into an account ("NAB 1 Account") operated by the Companies. Oceanic Sun Group also invested amounts totalling $2,800,000 in other purported investment products offered by the Companies, which were deposited into another account ("Westpac Account") operated by the Companies.
In his judgment in Re Courtenay House Capital Trading Group Pty Limited (in liq) and Courtenay House Pty Limited (in liq) [2018] NSWSC 404; (2018) 125 ACSR 149, Brereton J found the funds invested in respect of the Brexit Special Product were held by the Companies on express trust or under a Quistclose trust for the investors in that product. On 22 June 2018, Brereton J made orders:
"That the Liquidators are justified in distributing funds that were held in the NAB 1 Account to The Oceanic Sun Group or [Kyle] Sheridan in the amount specified in Schedule C of the Liquidators' affidavit, less an amount representing a proportionate amount for provision for the Liquidators' future costs and expenses (as referred to in the orders above), to be approved in accordance with the Court Orders of 11 December 2017, pending further directions of the Court."
The liquidators have since distributed funds to those investors that invested in the Brexit Special Product, including the Oceanic Sun Group, less deductions for their costs and expenses as approved by the committee of inspection. The Oceanic Sun Group was repaid the sum of $7,542,991.33 (referable to their original investment of $7,800,000 in the Brexit Special Product) on 27 June 2018. The shortfall in that repayment reflected the liquidators' costs and expenses. On 8 August 2018, Brereton J held that the liquidators were entitled to pay their proportionate costs and expenses from the amount of $7.8 million deposited by the Oceanic Sun Group with the Companies and dismissed an interlocutory process filed by the Plaintiff seeking a contrary order.
By letter dated 26 October 2018, the Plaintiff demanded that his "property" be returned immediately by the liquidators and the "trespass" on his property be discontinued by them.
On 31 October 2018, the liquidators filed an Interlocutory Process seeking directions from the Court as to how the remaining funds in the Westpac Account should be distributed. Those proceedings have been set down for hearing on 24 and 25 July 2019. There has not yet been any distribution paid to any investors in respect of amounts deposited in the Westpac Account. I will refer below to the evidence as to the likely distribution to the Oceanic Sun Group in respect of the amounts deposited in the Westpac Account.
The Plaintiff then filed his Statement of Claim on 9 November 2018 in the Common Law Division, bringing a claim for $75 million against CBP and GTA. That Statement of Claim identified and provided particulars of the claim as follows:
"I, a man claim:
● The said wrongdoers Trespass upon my property
● The casual agents of the trespass comes by way of Theft
● The trespass did and does harm my property
● The trespass did and does cause injury
● The commencement of the wrong and harm began on May 16, 2017
● The wrong and harm continues to this day
● I require compensation for the initial and continual trespass upon my property [theft]
● Compensation due: Seventy Five Million Australian Dollars"
The reference to "i, a man" in the Plaintiff's Statement of Claim and other documents which he seeks to file, to which I refer below, appears to have something in common origin with the references to a "flesh and blood man", noted to have many variations, in Meads v Meads [2012] ABQB 571, where the Court of Queen's Bench of Alberta, Canada, undertook a comprehensive review of the characteristic features of what it described as "organized pseudolegal commercial argument". That decision has in turn been noted by the High Court of New Zealand in Meenken v Family Court at Masterton [2017] NZHC 2103 and in decisions of the Federal Circuit Court of Australia, including Ennis v Credit Union Australia [2016] FCCA 1705, Deputy Commissioner of Taxation v Woods [2018] FCCA 1815 and Lion Finance Pty Ltd v Johnston [2018] FCCA 2745, with reference to a class of arguments deployed by self-represented creditors in a different context, in order to seek to avoid payment of debts: see also T Bloy, "Pseudolaw and Debt Enforcement" [2013] NZLJ 47.
That Statement of Claim was verified by the Plaintiff with a notation "under protest & Duress Forced coerced against my Free will". It appears that the relevance to duress, force and coercion arose from the Court Registry's requirement that a Statement of Claim filed in this Court comply with the forms prescribed by the UCPR. I will turn to the form of claim which the Plaintiff prefers below.
The Plaintiff in turn recorded his position in respect of the Statement of Claim, as filed, by an email dated 19 November 2018 to the Common Law Registrar which stated that:
"The 'Sheridan Court' hereby delivers notice:
i, a man was forced to file my case by 'administrator' of the Supreme Court of New South Wales, under a 'Civil Form' application turning my 'Claim' into a "complaint";
Turning 'Prosecutor' into 'Plaintiff' and 'Wrongdoers' into 'Defendants';
case number 2018/344655 is NOT a 'civil' action;
i require a 'court of record' ; 'trial by jury'
The administrator of the court refused to file documentation into a court of record, in order to for [sic] i, a man to obtain a case file number;
i, believe this interferes with my rights …"
That email also referred to the Plaintiff's dissatisfaction with events that had transpired at an appointment with a Registrar on 14 November 2018.
The matter was subsequently listed in the Common Law Registrar's list on 13 December 2018, when the Common Law Registrar referred it to the Corporations List Judge to consider inclusion in this list, so far as the claim is brought against liquidators appointed by the Court in proceedings in this List.
When the matter was listed in the Corporations List on 4 February 2019, I determined that the matter should remain in this List where it arises out of the conduct of liquidators appointed by the Court in proceedings in this list. It became apparent that the Plaintiff preferred to proceed by a "Summons" (MFI 1) in the Common Law Division and by a "Claim" (MFI 2) rather than by the Statement of Claim by which the proceedings were commenced. I will address those documents below. I dispensed with the need for the Plaintiff to file any Interlocutory Process in support of any application to rely on that alternative form of Summons and Claim and made orders requiring him to serve and send to my Associate all affidavit evidence on which he relied in support of his application to proceed by way of the alternative form of Summons and Claim. I also directed the Defendants to serve and send to my Associate all affidavit evidence on which they relied, and their submissions, in support of any order that the existing Statement of Claim be struck out or summarily dismissed.
I heard the Defendants' applications for summary dismissal or striking out of the Plaintiff's claim on 29 April 2019. The Plaintiff relied, at the hearing on 29 April, on two affidavits of service, in conventional form but referring to proceedings in a Common Law Division List, in respect of service of documents on CBP and GTA. There is no dispute that CBP and GTA have been served with the proceedings. The Plaintiff also sought to rely on an affidavit dated 10 April 2019, which did not comply with the requirements of the Oaths Act 1900 (NSW). The affidavit commenced with the words:
"i, a man do solemnly and sincerely affirm and declare with good faith and with good conscience the following affidavit of the facts"
That affidavit was not sworn or affirmed in the form prescribed by the Oaths Act, but signed by the Plaintiff and also included a red thumbprint, in a practice noted in Meads v Meads above. The Plaintiff was not identified in the manner required by s 34 of the Oaths Act. I did not permit the Plaintiff to rely on the affidavit in that form, but allowed him the opportunity to give oral evidence adopting that affidavit. He gave such evidence, on affirmation, at the hearing on 29 April 2019.
The Plaintiff's affidavit referred to some 27 "[f]act[s]", many of them by assertion rather than in a narrative form, including that:
"1. Fact 1: It is not incumbent upon a man to prove a claim until such time as another man, disputes the claim andor [sic] testifies against it.
2. Fact 2: No man has come forward in full liability to dispute claim andor [sic] testify against claim (The claim stands)."
The Plaintiff also referred to aspects of the conduct of the proceedings, and alleged that:
"10. Fact 10: Wrongdoer 1 [CBP] and Wrongdoer 2 [GTA] trespass upon my property (Trust) by holding Trust property (The Oceanic Sun group) to the amount of $10,600,000.00."
The Plaintiff set out (paragraph 13) allegations as to knowledge attributable to CBP, GTA and the Court and refers to a determination by Brereton J as to the Oceanic Sun Group's entitlement to an amount of $7.8 million. The Plaintiff alleged that CBP and GTA committed "[t]heft" and "[t]respass" by paying only $7,542,991.33 of the $7,800,000 invested by Oceanic Sun Group in the Brexit Special Product, a "short fall of $257,008.67" (paragraph [16]). The Plaintiff also alleges that CBP and GTA (I interpolate, as distinct from the Companies or the liquidators) held the funds for over one year, earning interest which was never returned to the investors, which is described as "Theft, profiting from the proceeds of a crime" (paragraph [17]). The Plaintiff then stated that CBP and GTA "took fees from trust property without right, without consent, without approval of the Board of Trustees", which is described as "Trespass, theft" (paragraph [18]).
The Plaintiff also states that CBP and GTA "obtain[ed] funds without any contract with the trust andor [sic] trustees of The Oceanic Sun group" (paragraph [19]) and that the Defendants "failed to provide the funds in an expedited manner" (paragraph [21]). The Plaintiff also alleges, plainly referring to funds deposited to the Westpac Account, that CBP and GTA "continue to hold trust Property in excess to the amount of $2,800,000.00, excluding interest earned on the funds, while the trespasser control the funds" (paragraph [22]). The Plaintiff states that the "commencement of the wrong and harm began on May 16, 2017" (paragraph [23]), the date the liquidators were appointed by the Court. The affidavit refers to his claim for "compensation" in the amount of $75 million (paragraph [25]).
The affidavit also states (paragraph 32) that:
"In Equity, the claim can not continue due to additional evidence that is Private, Proprietary documentation and not for the public record, It will be provided on the day of next court date being 29, April, 2019 to be viewed in chambers."
I would not receive that evidence on that basis and the Plaintiff did not choose to tender it on a basis that allowed at least the Defendants' Counsel access to it, although I advised him that he could do so and seek appropriate orders to restrict publication of the evidence.
The Defendants relied at the hearing on the affidavit dated 15 April 2019 of their solicitor, Mr Stuart McKenzie. That affidavit sets out the history of the Companies' liquidation, to which I have referred above, and refers to CBP's role as the liquidators' and Companies' solicitors. Mr McKenzie also refers to the circumstances in which the liquidators assumed control of several bank accounts of the Companies, after their appointment as liquidators; and to the determination of a separate question in the liquidation as to whether the funds held in one of those accounts in relation to the Brexit Special Product were held on trust for creditors who deposited funds into that account, and to Brereton J's determination as to the position of investors in the Brexit Special Product and the subsequent payment to those investors. Mr McKenzie also refers to the application by the liquidators for directions from the Court as to how to distribute the remaining funds held by the Companies in the Westpac Account, which, as I noted above, has been set down for hearing on 24-25 July 2019.
Mr McKenzie's evidence is that, as I noted above, the Plaintiff claims to represent the Oceanic Sun Group although searches undertaken by Mr McKenzie have not identified any registration for that group, which appears to be an unincorporated association or unincorporated group. Mr McKenzie also refers to the Oceanic Sun Group's investment of $7.8 million in the Brexit Special Product and $2.8 million in other purported investments with the Companies to which I have referred above. Mr McKenzie also sets out the history of proceedings previously brought by the Plaintiff and refers to the payment made by the liquidators of $7,542,991.33 to the Oceanic Sun Group on 27 June 2018, in respect of its investment in the Brexit Special Product, to which I referred above. Mr McKenzie also refers to the liquidators' estimate that the Oceanic Sun Group may be entitled to receive a distribution of between $344,621 and $614,874 from funds held in the Westpac Account, depending upon the outcome of the remaining application in respect of distribution of funds held by the Companies.
Mr McKenzie's affidavit also sets out the history of the present proceedings, to which I have also referred above. Mr McKenzie also addressed aspects of the claims brought by the Plaintiff in these proceedings, in a manner which is properly treated as submission, and which was also addressed in the submissions made by Mr Robertson on behalf of the Defendants in this application. I will address those submissions below.
After the hearing on 29 April 2019, I made orders allowing the Plaintiff to serve any affidavit in reply to Mr McKenzie's affidavit by 6 May 2019, and allowing the parties an opportunity to make any submissions in respect of the decision in Meads v Meads above and the Australian cases that referred to that decision, and otherwise reserved my judgment.
On 3 May 2019, the Plaintiff advised my Associate that he intended to discontinue these proceedings and had engaged Counsel for the purpose of reaching consent, if that were possible, with the Defendants as to costs. I relisted the matter for the afternoon of 6 May 2019 to allow any such discontinuance to be implemented. However, after the matter had been relisted, the Plaintiff advised my Associate on 5 May 2019 that he retracted his notice that he intended to discontinue the proceedings and discontinued any legal representation in relation to the matter and would attend the Court on 6 May 2019.
The proceedings were then listed on the afternoon of 6 May 2019. The Defendants led no evidence and made no further submissions on that occasion. The Plaintiff advanced the submission that:
"… you [Black J] have no jurisdiction in the court. I'm not standing in your corporate court today and I'm standing you down. I'm retiring you [Black J] from this court. You're operating in a fraud in the statutory court and I hereby stand you down and retire you. I will be speaking today on the record and the inherent jurisdiction of the de jure Supreme Court of New South Wales under Her Majesty's Royal great seal." (T1)
The Plaintiff also advised that:
"There will be no judgment because you [Black J] are standing in a corporate court and I am standing you down and retiring you. The next time we have a conversation will be in Her Majesty's Federal Court of which we will deal with this. Right now I have documentation that is required to be pressed for the record, and I will not be interfered and I will not stand in your corporate court today. I have documented evidence currently to be submitted. I wish to have it … advanced and filed." (T1)
The Plaintiff provided several documents to the Court, which I marked MFI 1, which he indicated were in response to Mr McKenzie's affidavit and also addressed the decision in Meads v Meads above. These documents included a document titled "Living Testimony in a Form of an Affidavit Notice to agent is notice to principal, notice to principal is notice to agent", which was also not sworn or affirmed in accordance with the requirements of the Oaths Act. That document contains quotations from Coke's Institutes, referred to several maxims of equity; contains a number of religious references and also refers to the Uniform Commercial Code of the United States of America, to shipwrecks, and, oddly, to the Western Australian Treasury Corporation and the International Monetary Fund, which had not previously had any role in these proceedings. That document also asserted the existence of a "commercial lien" against GTA and CBP and, apparently also against the Supreme Court of New South Wales and several other persons (including Black J). The document further stated that:
"Those who have contracted me, without my consent either directly or indirectly where I have provided my FEE SCHEDULE, that will be made forcible by my application to the Federal Court for Judgement, where your Business House Trading as SUPREME COURT OF NSW, A.B.N 77 057 165 500, andor has DISHONOURED, whereby removing my infallible rights as a man at Common Law Jurisdiction"
That document also developed several broader propositions as to the nature of government, the nature of law and the Plaintiff's capacity to act as a sovereign being upon coming of age. The Plaintiff also contended that several entities (including the Department of the Premier and Cabinet, the Department of Justice and Attorney General, the NSW Police Force, Treasury and several Queensland entities, which had also not previously had any role in the proceedings) were "Australian Businesses purporting to be 'State Government entities'".
The Plaintiff also relied on an "International Public Notice" of a "Common Law Commercial Lien" extending to GTA, CBP, the Supreme Court of New South Wales and various individuals, claiming a commercial lien to the value of $300 million and relied a "Bill of Lading Ship From [sic]" which appeared to be connected with the "commercial lien". The Plaintiff also issued an invoice to, inter alia, CBP and several individuals in the amount of $300 million, referable to the Plaintiff as lien claimant. I understand these documents to amount to an attempt unilaterally to create a liability of $300 million owed to the Plaintiff, by asserting the existence of that liability and relying upon a failure to controvert it.
These documents appear to adopted on approach that was described by the Court of Queen's Bench of Alberta, Canada in Meads v Meads above, where the Court noted (at [447]) that a class of self-represented litigants:
"frequently attempt to unilaterally foist obligations on other litigants, peace officers, state actors, or the court and court personnel. These foisted obligations take many forms. None, of course, creates any binding legal obligation. In that sense, these are yet more 'magic hats'."
The Court also observed (at [458]ff) that a unilateral document of that kind does not bind its recipient, absent acceptance of the offer comprised in such a document and establishment of the other requirements for a binding contract. It seems to me that that observation, while directed to Canadian common law, also reflects the position under the Australian law of contract. I do not presently need to address, and do not address, any question whether the Plaintiffs' claim to impose the suggested lien on the Court or a trial judge, in respect of the performance of the Court's inherent and statutory functions, might constitute a contempt of Court.
[2]
The summary dismissal application in respect of the existing Statement of Claim
The principles applicable to whether the existing claim should be summarily dismissed are set out in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57] and Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24], and I have drawn on my summary of those principles in Guo v Song [2018] NSWSC 12, to which Mr Robertson drew attention. In Agar v Hyde above at [57], the plurality of the High Court observed that:
"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." (footnote omitted).
That formulation was also adopted in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [46] and Spencer v Commonwealth of Australia above at [24]. In Shaw v New South Wales [2012] NSWCA 102 at [30]-[32], Barrett JA summarised the relevant principles and noted that the relevant question was:
"… 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."
In Ren v Jiang [2014] NSWCA 388; (2014) 104 ACSR 149 at [49], the Court of Appeal in turn observed that:
"The test to be applied before entering summary judgment has been variously stated, and little is to be gained by reiterating those formulations; cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. There is no controversy that the power must be exercised with "great care" and "exceptional caution": Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24] and [55] (noting that this was said of the lesser standard made applicable by s 31A of the Federal Court of Australia Act 1976 (Cth)). In Spencer, Hayne, Crennan, Kiefel and Bell JJ referred to the (unamended) test as "requiring formation of a certain and concluded determination that a proceeding would necessarily fail": at [53]. Repeatedly, it has been said that the court must be so certain of the outcome that to permit the proceeding to go forward would amount to an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90; Spencer at [54]; O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [3] and [67]."
Mr Robertson also referred to the summary of the relevant principles by Walton J in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 at [140]-[143] as follows:
"The Court may strike out a claim if an absence of a viable claim is clearly demonstrated: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ("General Steel") at 129. A pleading may be struck out if the Court is satisfied that, even if all the facts set out in the pleading were proven, those facts would not establish the essential ingredients of a cause of action: see Hubbuck at 91 and 94, and Judicial Commission of NSW, Civil Trials Bench Book, (at 15 November 2018) [2-6940].
The descriptions for the test for the absence of a cause of action were set out in General Steel as follows (at 129):
(1) the claim was "so obviously untenable that it cannot possibly succeed";
(2) "manifestly groundless";
(3) "so manifestly faulty that it does not admit of argument";
(4) "discloses a case which the Court is satisfied cannot succeed";
(5) "under no possibility can there be a good cause of action"; and
(6) "be manifest to allow [the pleadings] to stand would involve useless expense".
Similarly, the Court may strike out pleadings in plain and obvious cases: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946.
The Court may strike out pleadings where, for example, a claim is:
(1) doomed to fail (Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392); or
(2) untenable in the admitted (pleaded) circumstances: Charles Forte Investments Ltd v Amanda [1964] Ch 240; Australian Mid-Eastern Club Ltd v Elbakht (1988) 13 NSWLR 697."
The principles applicable to an order for summary dismissal were also recently summarised by the Court of Appeal in Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [71] as follows:
"The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 ("Dey"); General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 128-129; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] … and O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91).
Mr Robertson submits, correctly, that the Plaintiff's Statement of Claim does not disclose the facts, matters or circumstances on which the Plaintiff's claim is based. However, he refers to the outline of those allegations in the Plaintiff's affidavit, to which I have referred above, and rightly submits that the Plaintiff's evidence indicates that his claim for compensation of $75 million against CBP and GTA for "trespass" and "theft" is directed to the liquidators' treatment of the Companies' funds, and particularly the funds invested by the Oceanic Sun Group with the Companies, after their appointment as Court-appointed liquidators of the Companies on 16 May 2017 and during the liquidation.
Mr Robertson referred to the principles to be applied in an application to strike out a Statement of Claim pursuant to UCPR r 14.28, or summarily dismiss proceedings pursuant to UCPR r 13.4. Mr Robertson submits that the Statement of Claim does not disclose any reasonable cause of action against the Defendants. He points out that the factual basis for the Plaintiff's claims against the Defendants appears to be that, by reason of the liquidators' appointment to the Companies and the liquidators' taking control of the Companies' property including the funds invested by Oceanic Sun Group, the Defendants have committed "trespass" and "theft" of Oceanic Sun Group's invested funds. Mr Robertson submits that the gist of the cause of action of trespass to property (that is, goods) (a civil claim) is the wrongful detention of goods and/or interference with a plaintiff's immediate right to possession of the goods: Gollan v Nugent (1988) 166 CLR 18 at 24-25. Mr Robertson submits that, similarly, one of the elements of the offence of theft of goods (a criminal offence) is an intention to permanently deprive the owner of his or her property: McIlwraith v R [2017] NSWCCA 13; (2017) 265 A Crim R 216 at [21].
Mr Robertson submits that CBP and GTA cannot have committed any trespass to, or theft of, the funds invested by Oceanic Sun Group with the Companies, for several reasons. First, he points out that orders were made by the Court for the winding up of the Companies and the appointment of the liquidators, under ss 461(1)(k) and 472(1) of the Corporations Act 2001 (Cth): Re Courtenay House Capital Trading Group Pty Limited [2017] NSWSC 883. Second, upon the making of the winding up order and the appointment of the liquidators, they were required to take the Companies' property into their possession under s 474 of the Corporations Act. Mr Robertson submits this included the funds that Oceanic Sun Group had deposited with the Companies, although I note that the position may be more complex so far as those funds were, or were potentially, trust funds. Third, Mr Robertson submits that, on the making up of the winding up order, unsecured creditors such as Oceanic Sun Group have a right to prove in the liquidation for payment of a dividend, but they do not have the right to the return of any specific property or assets and where the company's assets are insufficient to repay the creditors in full, unsecured creditors have a right to a pari passu distribution of the company's assets. Again, that proposition may require qualification where a company in liquidation holds assets in trust.
Mr Robertson submits that, where the funds invested in the Brexit Special Product were subsequently found to be trust property, the liquidators held those funds on trust for the particular investors and were required to deal with those funds in accordance with the Court's orders. The Plaintiff does not allege they did not take that course, although he appears to deny that he is affected by those orders. Mr Robertson also points out that none of the funds deposited in the Westpac Account have yet been distributed to any creditors, and those funds are retained by the Companies and the liquidators pending the hearing of the liquidators' application for directions, which is to be heard on 24 and 25 July 2019. Mr Robertson submits that, at all times, the liquidators had a lawful entitlement to retain and deal with all funds held by the Companies (including the funds deposited by Oceanic Sun Group) and have dealt with those funds in accordance with their obligations under the Corporations Act and the Court's orders made from time to time. Mr Robertson also submits that there is still no basis for inferring that the pleaded facts could give rise to a claim for compensation or damages totalling $75 million, where the Oceanic Sun Group invested amounts totalling $10,600,000 with the Companies; has been repaid the amount of $7,542,991.33 and, putting aside the further amounts that will be distributed to investors after the Court determines their entitlements, the Oceanic Sun Group is now owed an amount of $3,057,008.67 of its total investment. Mr Robertson also submits, in a submission that has substantial merit but may not support a summary dismissal or striking out of the claim, that any loss of the principal sum invested by the Oceanic Sun Group with the Companies is due to the Companies' (or their directors' and associates') wrongdoing, not any wrongdoing on the part of the Defendants.
Mr Robertson also points out that the Companies' records indicate that the unincorporated association or group known as the "Oceanic Sun Group", rather than the Plaintiff personally, invested the relevant funds with the Companies, although I note that the orders made by Brereton J on 22 June 2018 contemplated the return of funds by the liquidators to the Plaintiff or the Oceanic Sun Group. Mr Robertson rightly points out that, if the Oceanic Sun Group as an unincorporated association sought to commence proceedings, it would generally be necessary that each member of the unincorporated association be joined as a plaintiff to the proceedings or as a defendant if they do not consent to be joined as a plaintiff: Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 at [46]-[52]. I accept that proposition, and it highlights the fact that this claim is brought only by the Plaintiff, not by the Oceanic Sun Group, and the Statement of Claim does not plead that he (as distinct from the Oceanic Sun Group) invested funds with the Companies, or the extent of such an investment. In any event, the quantum of damages claimed by the Plaintiff has no apparent connection with the amount initially invested, still less the amount that has not yet been, or will not be, repaid by the Companies to the Oceanic Sun Group as further distributions in the liquidation.
The Plaintiff's response to these submissions, made in his oral submissions at the hearing, involves diverse elements. In oral submissions on 29 April 2019, the Plaintiff submitted that the liquidators' reliance on the proceedings in the Corporations List that had determined creditors' entitlement to funds in respect of the Brexit Special Product, in which the Plaintiff was represented, involved a "different case with a different matter with a different person". The Plaintiff also submitted that the affidavit on which he relied was an "affidavit of facts" and remained as such until rebutted. He indicated that he disregarded the UCPR, which were against his "belief", and would "entrap and enslave" him into the procedures of a Court to which he did not consent. He submitted that the claim was a claim for trespass against CBP and GTA, which was not made on behalf of a trust, because he as a man created the trust and "[m]an is far superior than some piece of legislation" and the claim is "from the man that created the trust" and the trust is his property, because he created it. He also indicated that the claim was for trespass, where CBP and GTA were not employed by him, and did not represent him, and he had no contract with them and "the trespass does come by way of theft because [he had] no contract with them to pay them anything because they didn't do a service for [him]" and "were doing a service for the Court" (T28).
The Plaintiff also submitted that, so far as the liquidators relied on their statutory obligations under the Corporations Act, "[l]egislation is not law" and is "pretend law" which "does not apply to a man" and only to persons, or fictitious entities, which the Plaintiff is not (T28). This argument, and possibly the Plaintiff's earlier suggestion that the proceedings before Brereton J involved different persons, appears to adopt another argument recognised in Meads v Meads above, distinguishing between the natural person and his or her legal self. I am, with respect, unable to accept that the "Lord Kyle Sheridan" who was the plaintiff or applicant in several previous proceedings before Brereton J to which I refer above, and the same individual, now described as "i, a man" who seeks to be the "prosecutor" in these proceedings, are different persons, or that the history or result of the earlier proceedings is irrelevant to these proceedings.
The Plaintiff also submitted that, where he brought his claim as "a man at common law", the UCPR does not apply (T29). He submitted that the trust on which he relied was superior to legislation that did not apply to him and:
"Unless [legislation has] been proclaimed under the Royal Great Seal, as constitutionally recognised … it is a pretend law made in excess of power, and it is not a law at all and I have a right to disregard it. So I disregard the liquidation and the Acts that they [the liquidators] are using to be a cloak for their fraud." (T29)
The Plaintiff also made clear, in response to my question, that the legislation that should be disregarded included the Corporations Act, so far as it would prevent the liquidators' conduct of the liquidation constituting a trespass or theft.
The Plaintiff also referred in the course of his submissions to the status of the other proceedings that he had brought which were previously listed before Brereton J. It appears that the issues in one of those proceedings were determined, in substance, by the orders made by Brereton J in respect of the Brexit Special Product, following a hearing in which the Plaintiff appeared with legal representation. Any remaining issue in any other of those proceedings are likely to be determined at the further hearing on 24-25 July 2019. The Plaintiff, if he wishes, would be free to seek to be heard on that occasion, either as a party or under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW).
I am satisfied, to the level required by the authorities to which I have referred above, that the case pleaded in the Statement of Claim clearly does not demonstrate any tenable cause of action and could not succeed. The action for theft, on which the Plaintiff partly relies, overlaps with the action for larceny at common law. The essential element of such a claim is the taking and carrying away of the personal goods of another from any place with the felonious intent to convert them to the taker's own use, and to make them permanently his or her own property without the consent of the true owner: Croton v R (1967) 117 CLR 326 at 323; Ilich v The Queen (1997) 162 CLR 110 at 123. The concept of "theft" in several Australian States and in Commonwealth legislation, for example in s 72(1) of the Crimes Act 1958 (Vic) and s 131.1 of the Criminal Code Act 1995 (Cth), similarly requires a dishonest appropriation of property belonging to another, with the intention of permanently depriving the other person of that property. The matters on which the Plaintiff relies cannot establish any intent to convert property to CBP's or GTA's own use, where that property was and is to be distributed by the liquidators in a liquidation in accordance with the directions of the Court; and cannot establish any intent to make the property permanently the property of GTA, still less to CBP, where such a distribution was to occur to creditors after the Court had determined their entitlement to the relevant property; to GTA only in respect of remuneration; and to CBP in respect of proper legal costs in the liquidation.
At general law, trespass is an act of a defendant which directly and either intentionally or negligently disturbs the plaintiff's possession of a chattel, such as taking goods out of the plaintiff's possession: Halsbury's Laws of Australia (LexisNexis Australia), [415-445]. I put aside the question whether the monies paid by the Oceanic Sun Group to the Companies could be described as "goods" or "chattels" for the purposes of a claim in trespass. On the matters pleaded, and on the relevant facts, it would not be possible for the Plaintiff to establish that he had possession of those monies, or of trust property constituted by them to which he referred in submissions, after the monies had been paid by the Oceanic Sun Group to the Companies, or that the liquidators thereafter took any step to disturb the Plaintiff's possession of those monies, in the course of administering the liquidation, where he had parted with such possession before the liquidation commenced.
Here, the liquidators are in control of the Companies and are obliged to distribute the property held by the Companies (including property they may hold as trustee) to those properly entitled to it. They have properly sought the Court's determination of who those persons are, and have acted and will act in accordance with that determination. A case in trespass or theft cannot be established against CBP or GTA where the Companies (under the control of the liquidators and not CBP or GTA) merely retained monies which the Plaintiff or the Oceanic Sun Group and many other persons had paid them pending a determination by the Court of who was entitled to those monies and in what amount. The Plaintiff had no better claim to, or property in, those monies than other claimants until that claim was determined and the liquidators have paid and will pay out that money in accordance with that determination.
[3]
The strike out application in respect of the existing Statement of Claim
I also recognise that a pleading may be struck out under UCPR r 14.28, or an amendment not permitted, if the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings: Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 at [18]; McGuirk v University of New South Wales [2009] NSWSC 1424 at [30]-[33]. It seems to me that the Statement of Claim would also be struck out on that basis. Its deficiencies are numerous, and include that the material facts constituting the alleged trespass are not pleaded and it is difficult to see how they could be pleaded, given the matters noted above and where the Companies (under the control of the liquidators and not CBP or GTA) retained monies which the Plaintiff and others had paid the Companies pending a determination by the Court of who was entitled to them. As I noted above, the Plaintiff had no better claim to, or property in, those monies than other claimants until that claim was determined. The material facts relating to how the monies the Plaintiff claimed were his property are also not pleaded, and, as I noted above, it appears they may be property of members of the association described as the "Oceanic Sun Group". The Plaintiff asserted they were his property because he created the Oceanic Sun Group, but the appointor of a trust or the person who creates an unincorporated association does not, for that reason, own the property held on trust or the property held for the association. The Plaintiff has not pleaded any terms of the documents that constituted the association or trust and declined to tender them when the Court would not receive them "in chambers", on the basis that that deprived the Defendants or their Counsel of the opportunity to make submissions about them.
The reference in the Statement of Claim to "casual agents" of the "wrongdoers", or what they are or who they might be, is obscure. The material facts constituting the alleged theft are not pleaded, and it is difficult to see how they could be pleaded given the matters noted above and, where, as I noted above, the Companies (under the control of the liquidators and not CBP or GTA) retained monies which the Plaintiff and others had paid them pending a determination by the Court of who was entitled to them. As I noted above, the Plaintiff had no better claim to, or property in, those monies than other claimants until that claim was determined, and the holding of those monies until the person with a proper claim to them could not be a theft of them.
The proposition that the alleged trespass did and does harm the Plaintiff's property is untenable, where the Plaintiff has not pleaded the facts that show his (as distinct from the association's) entitlement to the monies; those monies were paid to the Companies prior to the liquidation; and, in any event, the balance of the funds were and will be paid by the liquidators to those entitled to them, in the amount to which they were entitled, as determined by the Court. The proposition that the trespass caused injury is equally untenable for the same reasons. The proposition that the alleged wrong and harm continues to this day is so wide as to be untenable, where it is plain that the large part of the monies were repaid by the Companies (under the control of their liquidators) when the Court determined who was entitled to them, and the remaining monies will be repaid when the Court reaches a determination as to who is entitled to them. No material facts are pleaded to support the extravagant claim to damages, including on the basis put by the Plaintiff in oral submissions that they reflect his "fees".
I note, for completeness, that aspects of these deficiencies may have been capable of being remedied by a repleading of the Statement of Claim in proper form. However, it is apparent that the Plaintiff has no wish to replead the Statement of Claim to comply with the requirements of the UCPR, which he considers do not apply to him, and I see no useful purpose in granting leave for him to do what he does not wish to do, still less in ordering him to take the steps that would allow him to continue the proceedings where he does not wish to do so. For that reason, I would also strike out the pleading, had I not summarily dismissed the proceedings, without leave to replead.
[4]
Whether the Plaintiff should be granted leave to file the documents on which he seeks to rely
As I noted above, the Plaintiff wishes to proceed, not on the basis of the Statement of Claim by which the proceedings were commenced, and which I would have struck out, but by a "Summons" (MFI 1) that identifies the "wrongdoers" as CBP and GTA and pleads that:
"1. A claim has been filed against you
2. Wrongdoer 1 and Wrongdoer 2 are required to attend the Sheridan Court to testify and press the record if you wish to dispute the claim
3. Delivered with this summons, are a copy of the document titled 'CLAIM' Notice: Void Application, Notice: right Pursue a Claim.
4. All documents contained in this summons will be filed on the record on the day;
5. NOTICE: this is not a 'CIVIL ACTION', or 'CIVIL CLAIM'"
The Plaintiff's preferred form of "Claim" (MFI 2) in turn recorded the same eight points as the Statement of Claim, to which I referred above, again commencing with the phrase "i, a man claim" and concluding with the identification of the compensation due as "Seventy Five Million Australian Dollars". The Claim was signed by the Plaintiff and appears to bear a red thumb print. The Plaintiff explained, in oral submissions, that was to identify him. As I observed above, the use of red thumb print as an identifying mark reflects a practice also noted in Meads v Meads above.
A document which the plaintiff wishes to file headed "Notice" (MFI 3) indicated that the "Sheridan Court" delivered notice described as follows:
"i, a man declare: that on November, 09, 2018 the 'the court clerk', [sic] refused to accept: I, a man original documentation being "CLAIM" set out in accordance with the Supreme Court Act 1970;
i, a man now require the 'office of the court clerk, for the 'Supreme Court', not to interfere with my right to pursue a claim. …"
That document was also signed by the Plaintiff and also bears a red thumb print. A second document also headed "Notice" (MFI 4) that the Plaintiff wishes to file states that:
"The Sheridan Court delivers notice:
It is hereby 'Ordered' that the originating application filed on Friday, November 9th 2018 Titled 'Statement of Claim' as a Uniform Civil Procedure Form is hereby 'VOID'.
The document was signed "under protest and duress, forced and coerced against my free will" making the document VOID at Common Law.
It is hereby 'Ordered' that the Case File 2018/344655 is a common law 'claim' by 'i, a man' as per the document titled 'Claim' …"
In oral submissions on 29 April 2019, the Plaintiff submitted that the claim was his "civil claim" and that he was not subject to regulation that took away his "inalienable rights" and that no-one, implicitly including the Court, had authority to determine whether the documents he sought to be filed could be filed.
This question whether the Plaintiff should be given leave to file these documents is to be dealt with by applying the same principles as would be applied to an application for summary judgment or summary dismissal: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWSC 1073 at [11]; Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073 at [46]. The Plaintiff should not be granted leave to file these documents if an application for summary dismissal or strike out would succeed in respect of them. The Plaintiff should not be granted such leave for the reasons that emerge below.
The Plaintiff should not be granted leave to file the "Summons" in the form of MFI 1, the "Claim" in the form of MFI 2 and the "Notice[s]" in the form of MFI 3 and MFI 4. The Plaintiff should not be granted leave to file the "Summons" in the form of MFI 1 because the proceedings are not, as that document states, continuing in the Common Law Division; the person by whom the claim would be brought is not a prosecutor, but a plaintiff, and the persons against whom the claims would be brought are defendants in civil proceedings and not properly referred to as "wrongdoers". I explored with the Plaintiff on 4 February 2019 whether he in fact sought to bring a criminal claim against CBP and GTA, which would need to be commenced by following the procedures in ss 14, 49 and 174 of the Criminal Procedure Act 1986 (NSW), potentially on application before a Registrar of the Local Court of New South Wales. While that course was open to the Plaintiff, if these proceedings were discontinued, he did not seek to take it. Third, this Court is not the "Sheridan Court", and the relationship between the Court and the Plaintiff is not, as the Plaintiff suggested in oral submissions, that he rents the Court so that it is his Court. Fourth, if the proceedings were in a form that they could properly proceed, they would constitute a civil claim and the statement to the contrary is incorrect.
The Plaintiff should not be granted leave to file the "Claim" in the form of MFI 2 because, as I noted above, the proceedings, if they could properly continue, would not be brought by a prosecutor but by a plaintiff; CBP and GTA would be defendants and not properly described as "wrongdoers"; and it is not open to the Plaintiff to require trial by jury in an action of this kind. For the reasons noted above in respect of the Statement of Claim as filed, the articulation of the elements of the Plaintiff's claim and the compensation due is such that it would properly be summarily dismissed, or alternatively struck out without leave to replead, which the Plaintiff does not wish to do.
The Plaintiff should not be granted leave to file the "Notice" in the form of MFI 3 because this Court is not properly described as the "Sheridan Court" and because it is not open to the Plaintiff to require the Court "not to interfere" with his right to pursue a claim by insisting that he properly comply with the requirements of the Civil Procedure Act 2005 (NSW) and the UCPR in articulating such a claim. The Plaintiff should not be granted leave to file the "Notice" in the form of MFI 4 because the Court is not the "Sheridan Court"; it has not been established that the Statement of Claim was filed under duress, force or coercion, where the Registry did no more than require the Plaintiff to comply with the UCPR if he wished to file proceedings in this Court, which he was not bound to do, and the Court should not order that the proceedings are a common law "claim" by "i, a man".
[5]
Orders
I am satisfied, for these reasons, that the Statement of Claim filed on 9 November 2018 should be struck out and the proceedings should be summarily dismissed. There is no utility in allowing the Plaintiff a further opportunity to reformulate the Statement of Claim, because the matters alleged are not capable of giving rise to an arguable claim against the liquidators, GTA as their firm or CBP as the solicitors acting for them, and because it is apparent that the Plaintiff does not wish to reformulate his claim as civil proceedings in a manner compliant with the UCPR in any event.
I will allow the parties the opportunity to be heard as to the costs of these proceedings, and whether an order should be made restraining the Plaintiff from commencing or continuing any other proceedings (as he has foreshadowed) in respect of the matters raised in these proceedings until those costs have been paid.
For these reasons I make the following orders:
The Statement of Claim filed by the Plaintiff on 9 November 2018 be struck out and the proceedings be dismissed.
The parties submit their agreed short minutes of order to give effect to this judgment, including as to the matters noted in paragraph [61] above, or otherwise their respective short minutes of order and short submissions as to any differences between them, by 4pm on 17 May 2019.
[6]
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: 10 May 2019
A 86
Texts Cited: - Halsbury's Laws of Australia (LexisNexis Australia) [415-445]
- T Bloy, "Pseudolaw and Debt Enforcement" [2013] NZLJ 47
Category: Procedural and other rulings
Parties: Kyle Lester Sheridan (Plaintiff)
Colin Biggers & Paisley Pty Ltd (First Defendant)
Grant Thornton Australia Ltd (Second Defendant)
Representation: Counsel:
D Robertson (Defendants)