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[2020] FCA 1485
Federal Court of Australia
2020-10-15
Slattery J, Markovic J
Original judgment source is linked above.
The application 43 As set out above Ms Mariconte seeks to set aside the Bankruptcy Notice on the basis that it is an abuse of process. 44 In summary Ms Mariconte contends that Mr Nobarani knows and, at all relevant times, knew that she was not insolvent and that Mr Nobarani engaged in an abuse of process by issuing the Bankruptcy Notice, having regard to the matters that transpired on 18 December 2019 when the Probate Proceeding was listed before Parker J in the Supreme Court.
Parties' submissions 45 Ms Mariconte submits that consequent upon the orders made on 18 December 2019 in the Probate Proceeding, the Supreme Court afforded Mr Nobarani an opportunity to seek orders specifically directed towards the enforcement of the Restitution Judgment and compelling Ms Mariconte to repay that amount to Mr Nobarani, but no application for such orders was ever made. 46 Ms Mariconte says that a mediation then occurred on 28 February 2020 at which the Probate Proceeding was not resolved. However, after the mediation Mr Nobarani's process server, who Ms Mariconte had observed to be sitting around during the mediation, immediately served her with the Bankruptcy Notice. 47 Ms Mariconte submits that it is plain from the exchange between Parker J and counsel for Mr Nobarani at the time that Mr Nobarani's intention has always been to use, impermissibly, the bankruptcy legislation as a debt collection mechanism in order to recover the Restitution Judgment from her by forcing her to sell the Caringbah Property. 48 Ms Mariconte contends that there was no need for Mr Nobarani to resort to reliance upon the bankruptcy legislation for two reasons: first, the exchange between Parker J and counsel for Mr Nobarani at the time (see [21] above) demonstrates that Mr Nobarani was given ample opportunity to seek the "obvious order" by asking the Court for a sale order, which Mr Nobarani declined to do "on good grounds"; and secondly, Mr Nobarani has never suggested that the sale of the Caringbah Property would not result in the Restitution Judgment being paid. 49 Ms Mariconte also submits that she is not insolvent. She submits that there is little doubt that the Caringbah Property falls within the definition of an asset that could be realised within a relatively short time, relying on Sandell v Porter (1966) 115 CLR 666 (Sandell v Porter). She says that real property in this country has always been shown to be saleable within short periods, particularly when appropriately priced, and that there is no suggestion that the $600,000 figure suggested by Ms Harvey in her evidence is anything other than an appropriate price. 50 Insofar as Mr Nobarani contends that he is owed certain amounts for outstanding costs orders, Ms Mariconte accepts that there is an obligation to pay costs conformably with the form of the orders but says that none of the amounts for costs claimed by Mr Nobarani are agreed as to quantum or have been crystallised by the issue of a costs certificate by a costs assessor. Ms Mariconte thus contends that the amounts, which Mr Nobarani claims are payable to him as costs, cannot or should not be taken into account when determining her solvency. 51 Ms Mariconte submits that it must follow that she is solvent within the meaning of the legislation. 52 In his written submissions, Mr Nobarani first addresses the question of Ms Mariconte's solvency. He submits that there is no basis for a finding that Ms Mariconte is solvent and that, to the contrary, the evidence demonstrates that she is not able to pay her debts as and when they become due and payable for the following reasons: (1) the Restitution Judgment remains due and payable and no evidence has been led by Ms Mariconte showing that she will be able to pay that debt any time soon; (2) based on Ms Mariconte's affidavit affirmed on 19 November 2019 and relied on before Parker J, Ms Mariconte is impecunious and the evidence relied on by her in this proceeding indicates that there has been no material change in her financial position; (3) the Caringbah Property cannot be sold quickly given that it is subject to the Undertaking and the Caveat; (4) there is a real question as to whether the Caringbah Property is held on trust for the benefit of Ms McLaren's estate. If so, the proceeds of any sale would need to be accounted to the estate and could not be used by Ms Mariconte to pay off personal creditors such as Mr Nobarani. Mr Nobarani says that those proceeds would need to be paid into Court pending the determination of the Probate Proceeding; and (5) Ms Mariconte has other sizeable debts owing to Mr Nobarani, namely the costs orders made in his favour, although Mr Nobarani seems to accept that those debts are for amounts which have not yet been assessed and are thus not yet payable, as well as the various amounts referred to by Ms Harvey (see [40] above). 53 Mr Nobarani submits that if Ms Mariconte is not solvent there is no basis for the Court to find that the Bankruptcy Notice is an abuse of process and that he is entitled to issue the Bankruptcy Notice in circumstances where Ms Mariconte is in no position to pay the Restitution Judgment which she has owed since 18 December 2019. 54 Next, Mr Nobarani addresses the issues that are said to arise from the hearing before Parker J on 18 December 2019. He submits that it can hardly be an abuse of process to issue the Bankruptcy Notice in circumstances where he has been entitled to receive payment of the Restitution Judgment since 18 December 2019 and Ms Mariconte has taken no steps to pay the amount due. He says that eight months have now passed since the hearing before Parker J and the Restitution Judgment remains unpaid. 55 Mr Nobarani contends that it was not properly explained to Parker J on 18 December 2019 that the Caringbah Property may not be Ms Mariconte's to sell. Mr Nobarani submits that there remains a live issue as to whether the Caringbah Property is an asset currently held on trust for the benefit of Ms McLaren's estate and that his decision not to seek an enforcement order for the sale of that property needs to be understood in that context. He contends that, if he was to receive the proceeds of any such sale, the executor of Ms McLaren's estate may well pursue him under the principles in Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy) in that he might become a recipient of trust property. 56 Mr Nobarani submits that Ms Mariconte only has herself to blame for her predicament as she took the risk of dissipating the estate's funds in circumstances where she knew that he was still making a claim against the estate by prosecuting his appeal rights. 57 Finally, Mr Nobarani says that it was also not explained to Parker J on 18 December 2019 that Ms Mariconte had other creditors and any payments to him from the sale proceeds of Ms Mariconte's only asset may be seen as an unfair preference under s 122 of the Bankruptcy Act 1966 (Cth).
Legal principles 58 The Court has an inherent power to set aside a bankruptcy notice as an abuse of process: see Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77. 59 The categories of conduct or circumstances which may constitute an abuse of process are not closed: see Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 (Batistatos) at [9]. That is also the case in relation to the circumstances in which the Court may set aside a bankruptcy notice as an abuse of process. In Batistatos, in further considering when an abuse of the Court's process may arise, Gleeson CJ, Gummow, Hayne and Crennan JJ referred to the following decisions (at [14]-[15]): 14 In Ridgeway v The Queen, Gaudron J explained: "The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'." 15 Earlier, in Rogers v The Queen, McHugh J observed: "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. (Footnotes omitted.) 60 If it is apparent that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the Court's jurisdiction in relation to insolvency, the issue of a bankruptcy notice is an abuse of process: see Brunninghausen v Glavanics [1998] FCA 230. 61 The time to judge abuse of process is the time the bankruptcy notice is issued. Subsequent events have relatively slight relevance and may be relevant if they throw light on circumstances foreseen at the time of issue of the notice: Killoran v Duncan, in the matter of Killoran [1999] FCA 1574 (Killoran) at [13]. 62 It is for the debtor to establish that the issue of a bankruptcy notice is an abuse of process. In Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616 at [90] Gordon J relevantly said: There is a heavy onus on the person alleging the abuse of process. In any particular case, whether there is a use of the process or an abuse of it depends upon the purpose rather than the result: Re Excel Finance Corporation (Receiver and Manager Appointed); Worthley v Australian Securities Commission (1993) 41 FCR 346. To establish abuse of process, more than mere assertion is required: Davidova v Murphy [2009] FCA 601 at [91] citing Watts v Adelaide Bank Limited [2009] FCA 420.
Consideration 63 Having regard to the circumstances of this case, I am satisfied that the Bankruptcy Notice was issued for an improper purpose rather than to invoke the Court's jurisdiction in relation to insolvency and, as such, is liable to be set aside as an abuse of process. 64 My reasons for reaching that conclusion follow. 65 The sequence of events that led to the issue of the Bankruptcy Notice and its subsequent service was, in summary, as follows: (1) on 18 December 2019 Parker J informed Ms Mariconte and Mr Nobarani of the conclusions his Honour had reached in relation to the Third Cross-Claim, which resulted in the Restitution Judgment; (2) also on 18 December 2019, after learning of the result of the Third Cross-Claim and that the resulting judgment would not be stayed, Mr Nobarani, through his counsel at the time, informed the court that he did not wish to press any application seeking to enforce the Restitution Judgment by applying for the issue of a writ for the levy of property in relation to the Caringbah Property. Given that, Ms Mariconte did not make her foreshadowed application for Mareva style relief in relation to any proceeds of sale of the Caringbah Property paid to Mr Nobarani; (3) on 5 February 2020 the Bankruptcy Notice was issued; (4) service of the Bankruptcy Notice on Ms Mariconte was attempted on 11 and 20 February 2020 and the morning of 28 February 2020; (5) on 28 February 2020 Ms Mariconte and Mr Nobarani attended a mediation of the Probate Proceeding, which was unsuccessful; and (6) on the afternoon of 28 February 2020, shortly after the conclusion of the mediation, the Bankruptcy Notice was served on Ms Mariconte in the circumstances described at [30]-[35] above. 66 Based on this sequence of events the following findings can be made and/or inferences drawn. 67 At the time of issue of the Bankruptcy Notice Mr Nobarani had taken no steps to attempt to enforce the Restitution Judgment. Most notably, he did not pursue his foreshadowed application to apply for a writ of execution in relation to the Caringbah Property after Parker J informed the parties of his decision on the Third Cross-Claim. Nor did Mr Nobarani take any other step by way of enforcement. Based on the evidence before me he did not even issue a demand to Ms Mariconte for payment of the amount of the Restitution Judgment. 68 The evidence establishes that the Caringbah Property is Ms Mariconte's only asset of value. Justice Parker's observation, recorded in the transcript of the hearing which took place on 18 December 2019, that the only way that Mr Nobarani was "going to be paid is if money is either raised on the property or the property is sold" is apt. Despite that being so, Mr Nobarani provides no explanation as to why he did not take the steps available to him, and which he had foreshadowed, to enforce the Restitution Judgment. 69 On 18 December 2019, in the context of an exchange as to why Mr Nobarani sought an adjournment of the hearing of his application to be appointed as an administrator pendente lite, counsel for Mr Nobarani informed the court that "we consider a very strong likelihood that something is going to happen between now and February". The "something" was then said to be settlement negotiations of some form or "some sort of enforcement action, for instance, by way of bankruptcy proceedings". When challenged by Parker J about the classification of bankruptcy proceedings as an enforcement action, counsel for Mr Nobarani at the time withdrew framing the process in that way and informed the court that "if events along those lines are put in place, then they might raise an issue in the trustee's mind as to whether that property is a trust estate in bankruptcy" and "whether the estate should be represented to counter any suggestion that that is an estate in the bankruptcy's purview". The relevant exchange is set out in detail at [21] above. 70 The inference to be drawn from this exchange is that Mr Nobarani was, as at 18 December 2019, considering the issue of a bankruptcy notice. Given that he declined to take up the invitation to apply for the issue of a writ in relation to the Caringbah Property I would infer that he preferred this process as a method of "enforcement". The possibility of the appointment of a trustee in bankruptcy to Ms McLaren's estate was one of the possibilities being contemplated by Mr Nobarani in the context of the way forward with his application to be appointed as an administrator pendente lite and, it seems, a factor which was of some relevance to that application. 71 The relevant facts must be viewed through the prism of the ongoing Probate Proceeding. That is, Ms Mariconte and Mr Nobarani have been locked in litigation in relation to Ms McLaren's estate since 2014. The Probate Proceeding is ongoing. At the time of the issue of the Bankruptcy Notice it had not been allocated a hearing date and, in fact, it seems that the parties were to attend a mediation. It is not clear if the date for that mediation had, at the time, been agreed. However, I would infer that the issue of the Bankruptcy Notice, which Mr Nobarani had attempted to serve on three occasions prior to the mediation, was designed to bring further pressure to bear on Ms Mariconte in the context of the further conduct of that proceeding, including the mediation. 72 That Ms Mariconte has not brought an appeal against the Restitution Judgment or asserted a counter-claim, set-off or cross demand and took no steps to realise the Caringbah Property herself following entry of the Restitution Judgment is not a proper basis for the issue of the Bankruptcy Notice. While it is the case that Ms Mariconte has not paid or challenged the Restitution Judgment, that of itself is not sufficient to justify the issue of the Bankruptcy Notice. This is particularly so when Mr Nobarani had open to him another avenue for enforcement which would lead to satisfaction of the Restitution Judgment and he took no steps to avail himself of that or any other method of enforcement. 73 Further, only a period of some six weeks had passed between the date of the Restitution Judgment and the issue of the Bankruptcy Notice. That six week period included the Christmas/New Year holiday period. It is hardly surprising that, given the relatively short period of time, the fact that a mediation was scheduled and the complications of the Caveat and the Undertaking, Ms Mariconte had not taken steps herself to realise the Caringbah Property. This conclusion is further reinforced when viewed in the context of the ongoing litigation between the parties which has continued over a period of some six years. 74 As a reason for issue of the Bankruptcy Notice Mr Nobarani raises his concern that receipt of funds via a sale of the Caringbah Property may involve him being in receipt of trust property because the Caringbah Property may be an asset currently held on trust for the benefit of Ms McLaren's estate. Mr Nobarani says this was not properly explained to Parker J on 18 December 2019 and he now contends that, if that were so, he would be at risk of a Barnes v Addy claim at the suit of the trustee of Ms McLaren's estate. Even if that is so, it does not assist Mr Nobarani and does not justify his actions in serving the Bankruptcy Notice. 75 That is for two reasons: (1) if there is such a concern, it does not prevent enforcement of the Restitution Judgment by issue of a writ against the Caringbah Property and sale of that property. Any such concern could be addressed by paying the amount of the Restitution Judgment obtained from the proceeds of sale into an account until such time as the Probate Proceeding is resolved; and (2) the appointment of a trustee in bankruptcy does not allay the concern or risk. If Mr Nobarani is correct then the trustee in bankruptcy would face the same issue and, I apprehend, be loath to deal with the Caringbah Property until such time as the Probate Proceeding is concluded. 76 At a practical level, as Ms Mariconte points out, if she is successful in the Probate Proceeding and the December 2013 Will is again admitted to probate, all of the assets in Ms McLaren's estate would devolve to her and Mr Nobarani could not be exposed to a claim of the nature he identifies. That said, if, on the other hand, Mr Nobarani is successful in the Probate Proceeding and the 2004 Will is granted letters of administration, Mr Nobarani will be the administrator of Ms McLaren's estate. In those circumstances, Mr Nobarani would find himself in the somewhat undesirable situation of having to decide whether to bring the action he describes for the benefit of the estate. 77 But these issues simply highlight the complexity of the situation that has arisen and the way in which the course and outcome of the Probate Proceeding will affect future steps. They reinforce the conclusion I have reached that the Bankruptcy Notice was issued for an improper purpose. 78 Before leaving this topic, I note that Ms Mariconte suggests that the way in which the Bankruptcy Notice was served adds to the conclusion that its issue was an abuse of process. There is no doubt, based on the evidence of Ms Harvey, that the circumstances in which the Bankruptcy Notice was served were less than ideal and caused Ms Mariconte unnecessary stress. It is surprising, given the history of the matter, that Mr Nobarani's solicitors did not correspond with Ms Mariconte's solicitors about their client's attempts or intentions in relation to service of the Bankruptcy Notice. However, as unsatisfactory as the events related to service were, they do not assist Ms Mariconte other than perhaps to reinforce the poor relationship between her and Mr Nobarani. 79 Next, it is necessary to address the issue and impact of Ms Mariconte's solvency. On the one hand, Ms Mariconte contends, as a secondary reason why the Court would set aside the Bankruptcy Notice, that she is solvent and accordingly it is inappropriate to invoke the bankruptcy jurisdiction of the Court. On the other hand, Mr Nobarani says that Ms Mariconte is insolvent, he properly invoked the bankruptcy jurisdiction of the Court and he is entitled to serve the Bankruptcy Notice. He submits that "[i]f Ms Mariconte is not solvent, there is no basis for the Court to find that the bankruptcy notice is an abuse of process". In other words, Mr Nobarani seems to consider solvency to be a threshold issue which, if demonstrated, entitles him to serve the Bankruptcy Notice notwithstanding the circumstances in which it was issued. 80 In Killoran at [12] and [14] Gyles J said: 12 Whilst there is no debate about the jurisdiction of the Court to set aside a bankruptcy notice as an abuse of process where it can be concluded that it was simply to put pressure on the debtor rather than to genuinely invoke the Court's jurisdiction, I am not satisfied that that is the position here. There is nothing to indicate that the respondent creditor does not genuinely intend to pursue the matter if there is default in complying with the notice. In my opinion, there is nothing special about abuse of process in this field, and, if a person wishes to resort to the jurisdiction of the Court for appropriate orders, then it will be an unusual case in which that will be prevented. … 14 If, contrary to my view, however, there were a prima facie case of abuse of process, the remedy is discretionary and, in my view, if circumstances following that time had altered significantly so that it would not be appropriate to set aside the notice, I think that the jurisdiction of the Court is wide enough to give effect to that. I have in mind here that whilst the immediate parties to the application are those with the most interest in the matter, the body of creditors generally also have an interest and I cannot be certain one way or the other about the position of solvency. It may be most unfortunate if a bankruptcy notice were set aside in circumstances where the debtor is in fact insolvent. 81 These oft-cited passages indicate that where a prima case of abuse of process is made out, the Court retains a discretion as to whether to set aside the bankruptcy notice in question. One of the matters which may be taken into account in the exercise of that discretion is the solvency of the debtor. 82 The test for considering whether a person is able to pay his or her debts as they fall due was considered in Sandell v Porter at 670-671 where Barwick CJ (with whom McTiernan and Windeyer JJ agreed) said: Insolvency is expressed in s. 95 as an inability to pay debts as they fall due out of the debtor's own money. But the debtor's own moneys are not limited to his cash resources immediately available. They extend to moneys which he can procure by realization by sale or by mortgage or pledge of his assets within a relatively short time - relative to the nature and amount of the debts and to the circumstances, including the nature of the business, of the debtor. The conclusion of insolvency ought to be clear from a consideration of the debtor's financial position in its entirety and generally speaking ought not to be drawn simply from evidence of a temporary lack of liquidity. It is the debtor's inability, utilizing such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due which indicates insolvency. Whether that state of his affairs has arrived is a question for the Court and not one as to which expert evidence may be given in terms though no doubt experts may speak as to the likelihood of any of the debtor's assets or capacities yielding ready cash in sufficient time to meet the debts as they fall due. 83 The evidence before me was, in my view, inconclusive on the issue of Ms Mariconte's solvency or otherwise. 84 Ms Mariconte is the registered proprietor of the Caringbah Property which has been appraised for sale at an estimate of between $620,000 and $649,000. It seems that her only source of income is a payment in the amount of $620 per fortnight as at November 2019 with some suggestion that this amount has doubled. 85 There was a dispute about whether a sale of the Caringbah Property could be achieved within a relatively short time because of the Caveat and the Undertaking. Mr Nobarani submits that there is no evidence as to how the Caveat and the Undertaking will be addressed and, assuming they are, how a sale of the Caringbah Property will be achieved. 86 In relation to the Caveat, counsel for Ms Mariconte informed the Court that she had provided instructions to lapse the Caveat. Assuming this occurs, this may or may not lead to a further dispute between Ms Mariconte and the caveators. Although there was no evidence before me about the time it would take to resolve such a dispute, should it follow as a result of the instigation of steps to lapse the Caveat, such a dispute will not necessarily mean that Ms Mariconte is prevented from selling the Caringbah Property within a relatively short time. This is because other arrangements could be made with the caveators to protect their interests pending the resolution of any dispute, such as placing an agreed sum from the proceeds of sale into a nominated account or into court. 87 In relation to the Undertaking, an application for its variation could be made to the Supreme Court. Such an application was foreshadowed on 18 December 2019 but not pressed when it became apparent that Mr Nobarani did not intend to make any application in aid of enforcement of the Restitution Judgment. 88 In the circumstances I am satisfied that, notwithstanding the Caveat and the Undertaking, the Caringbah Property could be sold. While I anticipate that a sale could be achieved, there is, however, no evidence as to its timing, a matter relevant to the question of solvency. 89 In oral submissions Mr Nobarani relied on two decisions in support of his contention that the failure to establish the time within which the Caringbah Property could be sold meant that Ms Mariconte could not rely on that property as an asset to establish her solvency. However, those cases were determined in different contexts. 90 Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13 concerned an application by the applicant, Mr Reaper, for an annulment of his bankruptcy under s 153B of the Act. Justice Pagone found that Mr Reaper had not established his solvency and declined to make the order sought. Relevantly at [11] his Honour said: The statement of affairs prepared by Mr Reaper, and the evidence of his Trustee, reveals the existence of a residential house owned jointly with Ms Fisher on which some $295,000 was owed to Crucis Pty Ltd as mortgagee. Mr Vrsecky has applied for partition of the property but the asset was not otherwise the subject of evidence by Mr Reaper, or Ms Fisher, concerning its sale for the purpose of enabling Mr Reaper to pay his debts as and when they fall due. Even if Mr Reaper had relied upon his equity in the property in establishing solvency, an asset cannot be taken into account in assessing solvency without reference to the time it would take to effect realisation and produce cash: see Sandell v Porter (1966) 115 CLR 666 at 670; Hall v Poolman (2007) 65 ACSR 123 at 163 [187]. Realisable property can only be taken into account "if that property is in such a position as to title and otherwise that it could be realised in time to meet the indebtedness as the claims mature": Bank of Australasia v Hall (1907) 4 CLR 1514 at 1543. There is nothing in the material to suggest that Mr Reaper has taken any steps or made any arrangements for the residential house to be realised to meet his debts. 91 Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWSC 222 concerned an application to wind up the defendant in circumstances where it had failed to comply with a statutory demand. The formalities for its winding up were proved and the only issue before the court was whether the defendant had established that it was not insolvent. On the basis of the evidence, Hodgson CJ in Eq concluded that the defendant was suffering from more than a mere temporary lack of liquidity and it was unable to pay its debts as and when they became due, and made an order for its winding up. In coming to that conclusion, in relation to one of the defendant's assets, a property situated in Erskineville, at [39] his Honour said: Even if the Erskineville property were put on the market immediately, there is no evidence as to when it could be sold and when the proceeds of sale could be expected; and I could not use judicial notice to come to a conclusion that the proceeds of sale could be received any earlier than about three months from now. Furthermore, as submitted by Mr Coles, this is not in fact intended, and would be inconsistent with the course actually being undertaken of developing the site and selling units from the completed development. Plainly, that process will take much longer than three months: again there is no evidence, but I could not take judicial notice that the proceeds of that process would be available any earlier than about one year from now. … 92 In each of those cases the question of solvency was central to their determination. Here Ms Mariconte raises solvency as a secondary or alternative basis upon which the Bankruptcy Notice ought to be set aside. However, as I have already observed, there is insufficient evidence on which I can come to a conclusion on that issue which includes the lack of evidence about the time within which a sale of the Caringbah Property could be achieved. 93 Ms Mariconte has a number of creditors. Putting aside her liability for legal fees, they comprise utilities, in relation to which Ms Mariconte has payment arrangements in place, and council and strata fees. The amounts owed are not excessive and there is no evidence that any of these creditors are taking any action against Ms Mariconte. 94 Insofar as legal fees are concerned, they broadly fall into two categories: those owed by Ms Mariconte to solicitors who previously acted for her; and those owed pursuant to costs orders made in various proceedings in Mr Nobarani's favour. As to the former, with the possible exception of the fees of $30,000 owing to Mr Bradstreet, none of the amounts claimed have been assessed. As to the latter, with the exception of the Restitution Judgment, the amounts claimed by Mr Nobarani have not been assessed. As to that, he seems to accept that, in the absence of an assessment, those amounts are not due and payable. 95 The final matter concerns the proceeds of Ms McLaren's estate. Mr Nobarani contends that, because the May 2015 Orders were set aside, Ms Mariconte is now indebted to Ms McLaren's estate in the sum of approximately $1.8 million. In response to that submission, Ms Mariconte sought to tender, over Mr Nobarani's objection, the affidavit of Michael Edward Bradstreet sworn on 13 February 2014 and the affidavit of Rachel Parseghian sworn on 22 July 2014, both of which have been filed and continue to be relied on in the Probate Proceeding. Mr Bradstreet was Ms McLaren's lawyer. His evidence concerns the preparation of the December 2013 Will. Ms Parseghian was one of the witnesses to the December 2013 Will. I reserved my ruling on the admission of those affidavits into evidence. 96 Ms Mariconte submits that this evidence would permit this Court to reject the submission put by Mr Nobarani that she will be required to remit $1.8 million to Ms McLaren's estate, and goes to the question of whether that amount will ultimately be repayable and thus whether it should be taken into account in an analysis of Ms Mariconte's solvency. Mr Nobarani understood that Ms Mariconte wished to persuade the Court that, even if, as a matter of law, she now owes the estate $1.8 million, based on the affidavits the likelihood of her not being executor is remote because of the strength of her case. Thus Mr Nobarani objects to the evidence on the basis that, given the late notification of the intended reliance on it, he did not have the opportunity to call evidence in response. 97 I do not intend to admit the affidavits of Mr Bradstreet or Ms Parseghian on this application. It is not the role of this Court to determine what might happen in the Probate Proceeding and whether remittal of the $1.8 million is likely. The question of whether Ms Mariconte presently owes Ms McLaren's estate $1.8 million such that it would be taken into account as a liability for the purposes of determining whether Ms McLaren is solvent was not developed. In any event, on the evidence before me, no order requiring repayment of that amount has been made nor is any such relief pursued. 98 As I have already observed, the evidence before me as to Ms Mariconte's financial position does not permit me to reach a conclusion about her solvency. Although her financial situation may be finely balanced, given that she is the registered proprietor of an asset which is significantly greater in value than the sum of those debts that are currently due and payable I could not presently conclude that Ms Mariconte is insolvent.
Conclusion 99 For the reasons set out above, I am satisfied that the Bankruptcy Notice should be set aside as an abuse of process. As Ms Mariconte has been successful, it follows that Mr Nobarani should pay her costs of this application. 100 I will make orders accordingly. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.
Mariconte
Nobarani
Ms McLaren's wills and the litigation between Ms Mariconte and Mr Nobarani 5 There has been a long history of litigation between Ms Mariconte and Mr Nobarani dating back some six years. The genesis of that litigation is the will of the late Iris McLaren who passed away in 2013. In her will made on 5 December 2013 (December 2013 Will) Ms McLaren named Ms Mariconte as executor and gave the whole of her estate to Ms Mariconte. 6 In the Probate Proceeding Ms Mariconte sought orders for admission of the December 2013 Will to probate. Mr Nobarani challenged the December 2013 Will on the basis of a number of earlier wills he said had been made by Ms McLaren. 7 Ms McLaren had made earlier wills. One of those, made on 12 August 2004 (2004 Will), mentions both Ms Mariconte and Mr Nobarani and, under its terms, Ms Mariconte was to receive a named piece of jewellery and $10,000 and was to share with Mr Nobarani and five other named persons in equal shares in the balance of Ms McLaren's jewellery. In the 2004 Will, the real property owned by Ms McLaren was to go to the Animal Welfare League. Mr Nobarani contended that in late August or early September 2013 Ms McLaren made a will under which he and the Animal Welfare League were to benefit (September 2013 Will). Searches for that will were undertaken at Ms McLaren's home but it was never located: see Re Estate of McLaren; Mariconte v Nobarani [2015] NSWSC 667 (Estate of McLaren) at [17]-[20]. 8 The hearing of the Probate Proceeding took place on 20 and 21 May 2015 in the Supreme Court before Slattery J. At that hearing, Mr Nobarani was self-represented. His Honour delivered judgment on 22 May 2015. 9 Having noted that the search for the September 2013 Will had failed to locate that will or a copy of it, Slattery J identified that the primary issue before the court was the validity of the December 2013 Will, given the revocation clause contained in it. His Honour also noted that, as Mr Nobarani had an interest under the 2004 Will, he had standing to contest the December 2013 Will and that any further interest that there might be in the September 2013 Will was dependent upon whether a challenge could be made to the December 2013 Will: Estate of McLaren at [28]. 10 The question of the validity of the December 2013 Will was then considered. Based on the evidence before him, Slattery J concluded that no doubt had been thrown on Ms McLaren's execution and other mental elements required for validity of the December 2013 Will and was satisfied as to its validity: Estate of McLaren at [87]. Accordingly, his Honour made orders granting probate of the December 2013 Will to Ms Mariconte and requiring Mr Nobarani to pay Ms Mariconte's costs of the Probate Proceeding (May 2015 Orders). 11 Mr Nobarani appealed from the May 2015 Orders on the ground that the primary judge denied him procedural fairness at the hearing in particular ways he identified. By a majority, the New South Wales Court of Appeal dismissed the appeal: see Nobarani v Mariconte (No 2) [2017] NSWCA 124. 12 Mr Nobarani then successfully applied to the High Court of Australia (High Court) for special leave to appeal from the judgment of the New South Wales Court of Appeal and was ultimately successful in that court. On 15 August 2018 the High Court made orders, among others, allowing the appeal, setting aside the orders made by the New South Wales Court of Appeal and the May 2015 Orders, requiring Ms Mariconte to pay Mr Nobarani's costs of the Probate Proceeding and remitting the Probate Proceeding to the Supreme Court for a new trial: see Nobarani v Mariconte (2018) 265 CLR 236. 13 The remitted Probate Proceeding is before the Supreme Court. As at the date of the hearing of this application, it had not been allocated a hearing date. However, the evidence before me was that the Supreme Court wishes to deal with the matter, I infer by way of final hearing, "sooner rather than later". 14 In the meantime, consequent upon the orders made by the High Court, in July 2019 Mr Nobarani filed two notices of motion in the Probate Proceeding, the first of which sought an order for repayment of the costs which Mr Nobarani was required to pay by Order 3 of the May 2015 Orders. Those costs had been assessed and payment of them enforced in the sum of $121,259.14 by way of a garnishee notice in December 2016. 15 On 4 November 2019 Ms Mariconte gave the following undertaking in the Probate Proceeding (Undertaking): The Court notes that the plaintiff undertakes to the Court, until delivery of judgment in the substantive matter or until further order of the Court, she will not deal, dispose, transfer or otherwise allow to be encumbered in any way, the [Caringbah Property]. At that time an order was also made for Mr Nobarani to file any cross-claim by 8 November 2019 and the proceeding was next to be listed for directions before Parker J on 20 November 2019. 16 The relief sought in the notice of motion described at [14] above was, because of a procedural issue that arose, ultimately sought by way of cross-claim (Third Cross-Claim), I infer, filed in accordance with the orders made by the Supreme Court on 4 November 2019, in which Mr Nobarani claimed, by way of restitution, the entry of judgment for the amount he had wrongly paid under the May 2015 Orders plus interest from the date of payment. 17 Ms Mariconte did not dispute her liability to repay the $121,000 garnisheed from Mr Nobarani and the entitlement to interest on that amount, but sought to limit the period for which interest should be paid. Ms Mariconte also foreshadowed that if judgment was entered in favour of Mr Nobarani, she would apply for a stay of execution until the principal proceeding had been decided: see Re Iris McLaren (No 2) [2019] NSWSC 1894 (McLaren (No 2)) at [5], [11]-[13]. 18 The Third Cross-Claim was listed for hearing before Parker J in the Supreme Court on 11 December 2019. At that time his Honour heard argument on it which was limited to a point of law raised by Ms Mariconte as to the court's power to entertain Mr Nobarani's claim, Mr Nobarani's entitlement to interest and Ms Mariconte's application for a stay. As it became apparent in the course of the hearing that, depending on the decision on the points argued, other interlocutory issues might arise, his Honour reserved his decision and adjourned the proceeding to 18 December 2019 with a view to delivering it at that time and dealing with any further consequential applications. Justice Parker noted that those other interlocutory issues were, on the part of Mr Nobarani, proceeding to orders to enforce the sale of Ms Mariconte's residence (referred to as the Caringbah Property) if a stay was refused and the application for Mr Nobarani to be appointed as administrator pendente lite and, on the part of Ms Mariconte, the possibility of Mareva style relief to prevent Mr Nobarani from dissipating any funds he might receive: McLaren (No 2) at [16]. 19 On 18 December 2019 Parker J announced his decision on those matters that had been argued on 11 December 2019, noting that reasons would be given in due course. His Honour ordered that there be judgment in favour of Mr Nobarani for restitution in the sum of $121,000 plus interest awarded from 1 December 2016, i.e. the Restitution Judgment, and that Ms Mariconte's application for stay of execution of that judgment be refused: see McLaren (No 2) at [83]. 20 After informing the parties of that decision his Honour turned to deal with "consequential orders and decisions". In doing so there was first an exchange between the court and counsel appearing for Mr Nobarani at the time, Ms Hall, which included: His Honour: What, that leaves is, Ms Hall, on your part, a question of whether you propose to seek any further specific enforcement relief, and secondly, the remaining matter pleaded in the statement of claim, namely, application to have the defendant appointed as administrator pendente lite, and then on your part, I am sorry, Mr Martin, on your part, Mr Martin, foreshadowed, whether you wish to pursue the foreshadowed application for Mareva-type relief. I say Mareva-type relief, it may involve payment into a bank account or something like that, but the substance of it is Mareva type. I think I should proceed first with Ms Hall, so [Ms] Hall, where are we? Ms Hall: Your Honour, we are not seeking some specifics form of enforcement before you today, so that's where we stand on that … 21 There followed a discussion about Mr Nobarani's outstanding application for appointment as an administrator pendente lite, which Mr Nobarani proposed should be adjourned for hearing on another occasion, and Ms Mariconte's residential property. That exchange then continued as follows: Ms Hall: … But it is just because of, we consider a very strong likelihood that something is going to happen between now and February and for efficiency reasons-- His Honour: Let's not be coy. What is the something? Ms Hall: It may be that the entering of judgment today in Mr Nobarani's favour triggers some sort of, dare I say it, in hope, some sort of settlement negotiations between the parties. It may trigger some sort of enforcement action, for instance, by way of bankruptcy proceedings which-- His Honour: Well, bankruptcy proceedings are not an enforcement action, and the effect of bankruptcy would be to vest this property in a trustee in bankruptcy. Ms Hall: Precisely. His Honour: Well, I would have thought that if that was going to happen, then there would be zero chance that the Court would then intervene by putting a further administrator in. Ms Hall: And this is why it will depend, there are other possibilities as well, but that's one possibility. If a trustee were appointed, and I take your Honour's note about enforcement, so I withdraw framing it as an enforcement process, but if events along those lines are put in place, then they might raise an issue in the trustee's mind as to whether that property is a trust estate in bankruptcy, and as I have said, that raises the issue of whether the estate should be represented to counter any suggestion that that is an estate in the bankruptcy's purview. His Honour: So you are going to issue a bankruptcy notice? Ms Hall: Your Honour I make no statement, I don't consider my client obligated to provide comments in relation to what he is definitively going to do. I am outlining in response to your Honour's question of what all the possibilities are. His Honour: True you are, you are responding to that particular question. This is in the context of whether you have been offered an opportunity to take the matter further by way of enforcement and you have declined that opportunity. Ms Hall: I have, your Honour, and I can assure you there are good reasons got that, and I did-- His Honour: You don't have to go into it but that is the fact. Ms Hall: Yes, your Honour. His Honour: You don't want the Court, well, you are not asking the Court, to make what one would have thought was the obvious order, and the order foreshadowed by Mr Windsor when he was here, of some sort of enforcement action by way of sale of the property. Ms Hall: And, your Honour, all I can say is the reason for change in sentiment of what was expressed by Mr Windsor has good cause. It is actually not a question of what our client wants, I again make reference to the caveat and the terms of the caveat on the property, but I confirm that the position is as I have stated, we are not seeking enforcement. His Honour: What has the caveat got to do with anything? Ms Hall: The caveat prohibits certain action being taken with respect to the property, including writs or receivership. His Honour: It is not for me, obviously, to advise your client but you have presented this case for your client on the basis that your client has a sum of money in a bank account which represented the proceeds of personal injury action. That money was taken away from him. It is now accepted, wrongfully, and yet when I ask, does your client want the form of relief which would be most calculated to get him his money back, the answer is, he doesn't, and instead, what he wants me to do, is to keep it open to allow him to negotiate, sorry, to keep matters open to allow him next year to make an application to be appointed to, as administrator of the estate. It seems a very indirect and somewhat surprising way to go about things, but it is not for the Court to tell your client what to do, but can I just ask this. If your client succeeds in this litigation, he will be entitled to some sort of share of some part of the deceased's property under the earlier will. That is all he will be entitled to. What will the entitlement actually be worth? Ms Hall: Your Honour, I understand in terms of monetary value, I hesitate, but I mean, I think it is common ground that the will, my recollection, we are talking about some items of jewellery and personal effects. 22 His Honour declined to adjourn the hearing of Mr Nobarani's application to be appointed as an administrator pendente lite and informed the parties that he intended to proceed to hear that application. Before proceeding to do so, the following exchange took place between the court and Mr Martin, counsel appearing for Ms Mariconte: His Honour: But can I just ask, while you are on your feet, once I have dealt with this application, is there going to be an application on your side. Mr Martin: Given my friend's indication that there isn't to be any enforcement relief sought today, I suspect the answer is no, your Honour. His Honour: All right. Mr Martin: I should indicate this, though, whilst I am on my feet. To the extent it is said that there will be at some point some enforcement action in relation to the judgment your Honour has now given. His Honour: Well, I haven't actually pronounced it, but I am about to give. Mr Martin: I accept that. That will almost certainly result in my client having to deal with the property in which she lives. Now, she has previously given an undertaking to the Court that she won't deal with that asset as a result of the application now being pressed for the administrator to be appointed. That undertaking will need to be varied, it seems, to take account of any enforcement action which may be taken, because it's the very same asset, the only asset, from which she could ever be able to meet any enforcement action so taken. So I raise that now. His Honour: Are you suggesting that your client might voluntarily put the property on the market. Mr Martin: No. What I am suggesting, your Honour, is to the extent any enforcement action is taken against my client, the only way she would be able to meet that is by dealing with the home in which she lives. Presently, she has given an undertaking to this Court that she will not deal with the home in which she lives pending the resolution of the estate proceeding. Now, to the extent enforcement action is taken against her which would necessitate her dealing with her property, and I will have to formulate the proposed changes to the undertaking, there will need to be a change given to the undertaking because at the moment it is unconditional. His Honour: All right. Well, I will certainly hear an application for a variation of the undertaking. Mr Martin: As your Honour pleases. His Honour: And if that can't be agreed, well, I will hear it. But maybe Ms Hall and you can agree that. Mr Martin: Yes. 23 Ultimately, Mr Nobarani did not press his application to be appointed as an administrator pendente lite and that application was dismissed without prejudice to his right to bring an application at a later date. There was then discussion between the court and Mr Martin about a proposed variation of the Undertaking. That exchange included the following: His Honour: See, what [bothers] me about saying in response to enforcement action is that, you know, the order, the undertaking needs to be in clear terms, so that everyone knows exactly what it is covered by it, what it covers and what it doesn't cover. And that is a vague phrase. I am going to restrain myself from saying anything more about bankruptcy. All I am going to say at this point is that it's far from clear to me that the issuing of a bankruptcy notice would be a proper way for Mr Nobarani to proceed, in the circumstances. On the evidence before the Court, the only way in which Mr Nobarani is going to be paid is if money is either raised on the property or the property is sold. I won't say any more on that. … Mr Martin: I suppose the only final matter, your Honour, is this. I indicated a little earlier, in answer to your Honour's question, that I wasn't going to be pressing for any sort of Mareva relief today. His Honour: Yes. Mr Martin: In the absence of Ms Hall pressing for any enforcement relief. His Honour: Yes. Mr Martin: Might I reserve my client's position with respect to making such an application once some further form of - well, some form of enforcement relief is actually sought. I know your Honour was at pains to point out, on the last occasion, that my client shouldn't take the view that she is open to run the same arguments again at a later point. I was intending today for there to be some application for enforcement, and for my application to be responsive to that. There hasn't been such an application. I thought it prudent to put on the record that my client wishes to reserve her position with relation to making such an application, still responsive to any application for enforcement which Mr Nobarani ultimately seeks, without being too nebulous. … His Honour: The more time goes by, the less credible your client's position will be, if there is an attempt to enforce the judgment. But I can't stop you from not making that application now. But it just makes it more likely that a judge will say, on the next occasion, I am really not interested in hearing from you, until I see a cheque. And if your client hasn't taken any steps to realise the property or to raise money on it by that stage, well. There's nothing to stop her going out and asking a bank whether, if the caveat can be cleared, she can borrow the money. Nor is there anything to stop her from approaching the people who she has generously assisted over the past few years, and explaining the difficulties in which her generosity has placed her. Mr Martin: That's understood, your Honour.
(2006) 226 CLR 256
(1980) 30 ALR 77
(1966) 115 CLR 666
(2018) 265 CLR 236
(1993) 41 FCR 346
(1907) 4 CLR 1514