HIS HONOUR: By notice of motion filed on 23 April 2024 the applicant, Robbie Stimpson, seeks various orders be made with respect to the substantive proceedings. The applicant was not a party to those proceedings. Those proceedings were between the NSW Crime Commission and William John Stock and William Michael Stock. Without intending any disrespect I will refer to those persons as "William senior" and "William junior" respectively.
The applicant states that he acts for himself, Cheral Stimpson and Aydden Stimpson who he refers to collectively as the Stimpson consortium. The applicant is unrepresented on this motion, although he has appeared with, and received assistance from his son, Mitch Stimpson. Neither the applicant nor Mitch Stimpson are legally qualified.
The substantive proceedings in this matter were conducted some time ago. They were, as I have said, between the NSW Crime Commission, respondent to the motion, and William senior and William junior. The proceedings were brought under the Criminal Assets Recovery Act 1990 (NSW). Under that Act on 27 June 2024 the respondent sought and obtained restraining orders with respect to the property of William junior and William senior. Ultimately, orders were made, including proceeds assessment orders against both William junior and William senior in amounts of $480,000 as against William senior and in an amount of $250,000 as against William junior.
Included in the restrained property was real estate described in schedule 3 of the Crime Commission's summons as Lot 2 in Deposited Plan 1062123 at Duranbah registered in the name of William Michael Stock (the Duranbah property). An order was made in the proceedings that that interest in the Duranbah property be applied in partial satisfaction of the proceeds assessment order made against William senior.
On 21 July 2009 the proceedings were finalised. From the material filed on behalf of the applicant on his motion it is apparent that, on his case, he lent or more correctly, the Stimpson consortium lent a substantial amount of money to William junior for the purchase of the Duranbah property. He claims that the Stimpson consortium held an equitable mortgage over that property as a result. Ultimately, he claims an entitlement to the payment of the amount secured by that mortgage together with a payment of interest. Standing in his way on the present motion is the fact that the proceedings have been finalised.
I do not intend in anything that follows to suggest that the finalisation of the proceedings between the Crime Commission and William senior and William junior forecloses the bringing of a separate action by the applicant with respect to his claim. Any such action would, of course, need to be supported by evidence. It may also be necessary to consider any relevant limitation provision that might apply. I make no further comment with respect to these matters.
It is convenient then to turn to the orders sought by the applicant as set out in his notice of motion. The applicant in his motion indicates the persons directly affected by the orders sought is the New South Wales Treasury and/or the Honourable Daniel Mookhey MLC, who is referred to as "currently acting for and on behalf of the 'Crown' as the treasurer of New South Wales, the respondent".
In the section of the motion identifying the respondents, reference is made to the New South Wales Treasury Corporation and the New South Wales Treasury for and on behalf of the Crown. It might be noted that insofar as the motion identifies the New South Wales Treasury, it does not identify a legal person. Insofar as it identifies Mr Mookhey personally it does not, as I understand it, seek to involve Mr Mookhey in a personal capacity. The New South Wales Treasury Corporation is, as I understand it, a legal person. It is not entirely clear that that legal person, however, has any relevant relationship to the present matter. Insofar as the document identifies the New South Wales Treasury for and on behalf of the Crown, it can perhaps be taken to identify the State of New South Wales. The identification of the State, which is a legal entity capable of suing and being sued, perhaps points up the nature of at least some of the matters raised by the applicant as, in truth, being a separate claim against the State rather than a motion properly issued in the proceedings between the Crime Commission and the Stocks.
That said the NSW Crime Commission has appeared as the respondent to the application. In the event that orders made in the substantive proceedings were set aside, there may be the opportunity for the applicant to make his claim with respect to the property, or at least given that the property has long since been sold, the proceeds of that sale.
The first order sought by the applicant is for orders setting aside various orders made by this Court on 17 July 2009. The applicant seeks further orders either in addition or in the alternative, in effect asking the Court to revisit and review the original proceedings for "their correctness and/or accuracy". As a further alternative orders are sought which would have the effect of paying to the applicant amounts of money, with alternative calculations, but in essence representing the claimed loss to the applicant as a result of the failure to recognise him as a secured creditor at the time of the original proceedings.
Finally, the applicant seeks by what is described as "the absolute alternative", all of the relevant documentation with respect to the substantive proceedings in order that the applicant might "ascertain a clear picture of what exactly happened in the aforementioned proceedings". The NSW Crime Commission has also filed a motion which was listed for hearing concurrently with the applicant's motion. That motion seeks orders either dismissing the applicant's motion or an order that the applicant's motion be struck out. It was accepted by counsel for the Crime Commission that its motion is effectively otiose in the event that the Court is to hear and determine the applicant's motion.
It is convenient to deal with the first order sought by the applicant, that is that orders of this Court made in the substantive proceedings be set aside. Rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) provides a power to the Court to set aside a judgment or order. That rule provides:
36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
In order to determine the application of the rule to the facts of the present case, it is necessary to refer to the evidence in some greater detail. The applicant read his own affidavit on the application. That affidavit was some 40 pages plus annexures. The respondent relied on an affidavit which in essence provided a history of the substantive proceedings.
The evidence of the applicant is that on 17 May 2005 William junior purchased the Duranbah property which was registered in his name. The property was purchased for $550,000. Vendor finance in an amount of $330,000 was provided. There was thus a mortgage backed vendor. The term of that loan was four years. It follows from this that William junior provided some $220,000 towards the purchase price of the property. The applicant states that the Stimpson consortium advanced $476,000 to William junior during the period 2002 to 2007. The purpose of those payments was to fund either the future purchase of property, or subsequent to the purchase of the Duranbah property, repayments on that property. The applicant states that the money was advanced for that sole purpose. The source of the funds advanced by the Stimpson consortium included funds raised by a mortgage taken out against the applicant's property in Kingscliff which I understand to be his primary residence.
Annexed to the applicant's affidavit are documents setting out amounts said to have been advanced to William junior as at particular dates and stating that the amount is secured against the property portfolio or with respect to documents postdating the purchase of the Duranbah property specifically referring to that property.
The documents annexed to the applicant's affidavit are unsigned. The applicant states that signed copies were in existence but that these were stolen in late 2008.
William junior and William senior were arrested in June 2008. It seems that some three days prior to that arrest restraining orders were obtained by the respondent under the CARA. The applicant's interest was clearly in jeopardy as a result of the proceedings brought by the respondent. The applicant states that he made various attempts to secure the interest of the Stimpson consortium at the time. He says that on 22 July 2008 he instructed his solicitors, Parker Simmonds, to register a caveat over the property. This appears to have been done.
On 6 August 2008, the respondent sent to the applicant's solicitors a production order seeking production of documents, including documents with respect to any interest in the property of William junior. I understand from the affidavit that to the best of the applicant's knowledge, Parker Simmonds complied with the production order.
I pause to note that Parker Simmonds were also, certainly at one stage, the solicitors for William junior. In any event, what is clear is that on 15 September 2008 a production order was issued to the applicant. The applicant states that he complied with this order producing what he describes as a number of "prima facie source documents that satisfied the requested criteria". The relevant criteria including, I infer, documents relating to the applicant's interest in the Duranbah property.
The applicant further states that he had a conversation with an officer from the NSW Crime Commission on 16 September 2008 in the course of which he advised that the Stimpson consortium had advanced a substantial amount of money to purchase the Duranbah property. The applicant states he was given certain advice in the course of that conversation. I note that the respondent disputes the content of any such advice.
The applicant states that sometime in October 2008 William junior, having been granted bail, came to the applicant's home and threatened the applicant not to exercise his rights with respect to equitable mortgage over the Duranbah property in order that William junior could "cut a deal with the NSW Crime Commission". It is not in dispute that William junior and William senior ultimately pleaded guilty and were sentenced to imprisonment. At this point the proceedings remained outstanding with the applicant's interest having been notified, including by the lodgement of the caveat.
On 23 April 2009, the applicant received a letter from Ellis & Baxter Lawyers enclosing a notice that the caveat that had been issued over the Duranbah property would lapse in 21 days. The notice effectively required the applicant to take some action in order to maintain the caveat.
On 24 April 2009, the applicant wrote to Parker Simmonds Lawyers advising of the notice and enclosing the letter. The applicant states in his affidavit that he became concerned around this time that the solicitors involved were not acting in his best interests, he says, due to the existence of conflicts of interest. He further asserts that the NSW Crime Commission should have known of this issue. It seems the caveat was allowed to lapse.
As I have said on 16 July 2009 orders were made finalising the substantive proceedings. In essence the result was the property was disposed of to satisfy the proceeds assessment order. No payment was made to the applicant, he being treated as an unsecured creditor in the process.
The applicant states that on 14 April 2010 he wrote to Parker Simmonds Lawyers in an attempt to "ensure that we be named as secured creditor over" the Duranbah property. He states he received no response to that letter. He says that following this he became frustrated and found it difficult to trust anyone who might be able to help. He states that, as such, his motivation, together with that of other members of the Stimpson Consortium "diminished over time, hampering his efforts of continually attempting to find redress or a solution that was fair".
Despite this, there was further communication with the NSW Crime Commission in February and in May of 2011. Correspondence received from the NSW Crime Commission indicated that the NSW Crime Commission "after careful consideration of the matter... has concluded that your assertion of priority status cannot be sustained" and further stating that any recourse with respect to the outstanding debt should be referred to William Junior.
In the May letter, the NSW Crime Commission indicated that it was under no legal obligation to advise the Supreme Court of William Junior's creditors, but did accept that an affidavit was filed in the proceedings by William Junior dated 13 August, in which he listed his assets and liabilities. It was acknowledged in that letter that William junior referred to the applicant, albeit naming him Michael Stimpson, nominating the applicant as an unsecured creditor in an amount of $475,000. It was also observed that the applicant had been served with a lapsing notice with respect to the caveat, and further that the applicant had not put his case to the Supreme Court as to being a secured creditor.
The applicant states in his affidavit that, having regard to various matters set out, the "NSW Crime Commission obviously had substantial reason to believe TSC (The Stimpson Consortium)/I had an equitable interest in [the Duranbah property] because out of approximately 21 or so million people in Australia in 2008 they served" the production orders on him.
The applicant states that, given the history of the matter, "an answer should be sought" as to whether and, if so, the extent to which the NSW Crime Commission "impeded or hindered the ability of the court to adjudicate the proceedings with accuracy and with full knowledge and disclosure of all the equitable facts, and impeded or hindered the ability of TSC/me to understand and adequately realise the full scale of the equitable ramifications that we would eventually find ourselves in."
The applicant contends that what has occurred amounts to serious misconduct, potentially fraud, or serious maladministration, was "unreasonable, unjust, oppressive" potentially arising from "improper or even malicious motives."
The applicant, before me this morning, made similar submissions. I pause to note that, whilst unrepresented, the applicant has clearly gone to significant efforts to present material to the Court setting out his case and has, in conducting the proceedings before me this morning, at all times acted respectfully and appropriately.
[2]
Determination
The applicant bears the onus to satisfy me that I have the power to re‑open the original proceedings and that, assuming the existence of that power, I should exercise my discretion to do so. The existence of the power is dependent on my finding that "the judgment was given or entered or the order was made irregularly, illegally or against good faith."
That is clearly the applicant's case.
The applicant relies in part on the assertions I have referred to with respect to the solicitors acting for himself and, to an extent, those acting for William senior and William junior. The assertions that the solicitors involved in the failure to renew the applicant's caveat over the Duranbah property were acting improperly and contrary to the interests of the applicant is a serious allegation.
Ordinarily the court would expect highly probative evidence in support of such an allegation. Ultimately, it is not necessary to resolve that question in this case because the NSW Crime Commission was entitled to proceed on the basis that the applicant's solicitors were acting properly.
In essence, the respondent's position is that, whilst they were aware of the applicant's claim, they were not obliged to recognise it or do anything further with respect to it. I accept that, from the respondent's perspective, they had evidence in the form of William Junior's affidavit that the debt was unsecured. Further, whilst a caveat had been placed over the property by the applicant, the applicant had allowed that to lapse. I accept it was not for the respondent to inquire as to why the applicant allowed that caveat to lapse.
Further, the applicant had the opportunity to appear in the substantive proceedings and make his case with respect to the existence of an equitable mortgage and thus his rights with respect to receipt of proceeds of any sale in satisfaction of the debt. Again, it was not for the NSW Crime Commission to inquire as to why the applicant did not pursue his claim at that time.
Whilst the applicant has asserted that the NSW Crime Commission did not act in his best interests, that was not their obligation; nor is it the test with respect to r 36.15.
With respect to the claims made by the applicant, which would establish that the NSW Crime Commission acted in a manner such that the orders were obtained irregularly, illegally or against good faith, I am not satisfied that any of these matters have been established by the applicant. As I have said, based on the information the respondent had at the time, they were entitled to proceed in the manner in which they did. It follows that the necessary precondition for the exercise of the discretion in r 36.15 has not been satisfied.
I should add that even if the applicant had satisfied me, there are powerful discretionary considerations telling against the exercise of a discretion in the applicant's favour, in particular the substantial lapse of time between the entry of those orders and the present date: see Weber v Aquaqueen International Pty Limited; Aquaqueen International Pty Limited v Weber [2013] NSWSC 1181 at [116] per Garling J.
It follows that the applicant must fail with respect to prayer 1 of his motion in so far as it relates to the setting aside of orders in the substantive proceedings.
In so far as the applicant seeks orders to "revisit" and review material in the original proceedings, such orders were sought on an and/or basis with the orders seeking the original orders be set aside. In the absence of orders setting aside the original orders, there is no occasion to reconsider the proceedings, and the application that they be reviewed must fail.
With respect to the application for orders seeking payments of money, there is a question whether these are orders that would be available in the original proceedings, they being arguably more in the nature of a separate claim. It will be, as I have said, for the applicant to determine whether he wishes to pursue any such claim. Whatever be the case, with respect to the present motion the applicant has failed to have the original orders set aside, and the orders sought with respect to payment of moneys in essence fall away.
The same conclusion follows with respect to orders for the production of documents. Again, whether in the context of a new claim, the applicant is able to obtain or utilise some form of interlocutory process to obtain documents is not for determination here. The short response to this claim is that, these proceedings having been finalised, there is no basis for the ordering of the production of the documents sought.
In the result, the applicant has failed with respect to each of the orders sought. His notice of motion is dismissed. In those circumstances, it is unnecessary to consider the respondent's motion, which ultimately was, in effect, not pressed in the event that I was to determine the applicant's motion. That motion should also be dismissed.
[His Honour heard the parties on costs.]
[3]
Costs
In relation to this matter, having found for the respondent, the respondent seeks costs. The applicant has indicated that he opposes the award of costs, in essence on the basis of his capacity to pay.
I am of the view that mere incapacity to pay is not a sufficient basis not to make an award. Clearly the utility of seeking to enforce any such award will be a matter for the respondent. In those circumstances, the applicant is to pay the respondent's costs on the motion.
[4]
Orders
I make the following orders:
1. The applicant's motion filed 23 April 2024 is dismissed.
2. The respondent's motion filed 15 August 2024 is dismissed.
3. The applicant is to pay the respondent's costs of the motion.
[5]
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: 20 December 2024