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[2026] NSWCA 202
respondent. The notice of appeal was dismissed as incompetent, leave to appeal was refused, and Prakash was ordered to pay Commsec’s costs; any application for gross-sum costs was to follow the specified...
The Court of Appeal did not decide whether Commsec's margin call was lawful or whether Prakash's underlying allegations were true. It considered only whether he could appeal interlocutory decisions. Leave was required, and the Court said it would be granted only for a qualifying issue of principle, public importance, or reasonably clear injustice. The main appeal ground depended on a default judgment that the Court record showed had not been entered. The other grounds did not meet the threshold. The appeal notice was dismissed as incompetent, leave was refused, and costs were ordered against Prakash.
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5 cited instruments linked from this judgment.
2,243 words · generated 08/10/2026
The judgment concerns an application by Arjun Prakash for leave to appeal from interlocutory orders made in proceedings against Commonwealth Securities Limited, trading as Commsec. Leeming JA and Adamson JA heard the application on 17 September 2026 and delivered judgment on 22 September 2026. The Court dealt with the appeal threshold, not the merits of Prakash's underlying allegations about Commsec's margin calculations.
Prakash had opened an options-trading account with Commsec in July 2024. On 11 April 2025, Commsec made a margin call for $823,412.50, comprising an ASX margin of $79,440.50 and a Commsec margin of $743,972. Prakash's proposed amended statement of claim alleged wrongdoing, including fraud, and claimed losses of $5,126,850 with interest: [6]. These are allegations recorded in the judgment, not findings by the Court of Appeal.
Prakash brought proceedings in Queensland and the ACT as well as NSW. The Queensland proceedings were dismissed on 21 November 2025, one as an abuse of process and the other for disclosing no reasonable cause of action and also being an abuse of process: [7]. The ACT proceedings were dismissed as an abuse of process on 27 March 2026: [8]. The NSW proceedings had started on 5 November 2025, while the Queensland and ACT proceedings were still on foot: [9].
In the NSW case, Prakash sought default judgment. Commsec, which had not filed a defence, applied for summary dismissal. The primary judge heard the applications on 23 April 2026. The judge refused default judgment and dismissed the proceedings under UCPR r 13.4, finding abuse of process and no reasonable cause of action: [13]-[16]. The judge also addressed striking out the pleading under UCPR r 14.28, concluding it was prolix, imprecise and unparticularised: [21]-[22]. The Court of Appeal recounted that history; it was not itself deciding the underlying claim afresh.
The primary judge made orders on 29 April 2026, refused an application for recusal on 4 May, and ordered gross-sum costs of $68,181.82 on 12 May: [23]-[24]. Prakash filed a notice of appeal on 2 June and later sought leave to appeal. The Court of Appeal held that the notice of appeal was incompetent because leave was required for each challenged interlocutory decision: [2]. It then refused leave.
The Court framed the question narrowly. It said the issue was whether leave ought to be granted under the principles set out in its reasons: [28]. The governing threshold, drawn from PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6], required an issue of principle, a question of public importance, or reasonably clear injustice going beyond something merely arguable: [3]. The Court was not persuaded that any of these had been shown: [4].
The central problem with proposed ground 1 was factual. Prakash argued that default judgment had already been entered before the primary judge heard the motions, so the judge had no power to dismiss the proceedings. The Court said that the Court record did not support this premise. It recorded that Prakash had mistakenly believed that filing a motion for default judgment meant he had obtained default judgment: [9]. It then concluded that the proposed ground, resting on that misapprehension, was without merit: [30]. This was decisive against the premise underlying the requested restoration and enforcement orders.
The procedural-fairness complaint concerned the primary judge not determining Prakash's 15 April motion and not dealing with his notice to produce. The Court noted that the motion was not listed for hearing on 23 April and that the notice to produce, filed on 22 April, was not returnable until 6 May: [10], [31]-[32]. It also recorded that the primary judge had given reasons for not hearing an unlisted motion, including that only motions listed for a particular day would be heard that day: [33]. Prakash had not addressed the primary judge about the motion or notice to produce. Given that the proceedings were dismissed on other grounds, the Court saw no reason to preserve the notice's return date or arrange a hearing of the motion: [33]. It found no qualifying injustice or issue of principle: [34].
The hearsay ground failed because the hearing before the primary judge was interlocutory. Commsec had relied on affidavits from its solicitor rather than calling employees or officers. The Court described that as an orthodox forensic choice for interlocutory applications. It then applied s 75 of the Evidence Act 1995 (NSW), which permits hearsay evidence in an interlocutory proceeding if the party adducing it also adduces evidence of its source: [35]. It found no basis for leave in the admission and consideration of those affidavits: [36].
The asserted public interest did not change the result. The Court accepted that licensing transparency in Australian financial markets, expressed generally, was important. But the proposed appeal was about the refusal of default judgment and dismissal of Prakash's proceedings. The relevant inquiry was whether those specific decisions raised an issue of principle or public importance, or caused reasonably clear injustice beyond the merely arguable. The Court held that Prakash had not shown this: [37].
Finally, Prakash did not articulate a basis for challenging the primary judge's refusal to recuse himself. The Court understood the apparent basis to be that the judge had rejected Prakash's arguments. Referring to Majak v Rose (No 5) [2017] NSWCA 238 at [12], it observed that rejection of a party's arguments is not, by itself, a proper basis for alleging apprehended bias: [38].
The judgment did not announce a new test for granting leave to appeal. It applied the existing threshold summarised in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6]: an applicant must show an issue of principle, a question of public importance, or reasonably clear injustice going beyond the merely arguable: [3]. Its contribution in this case is an application of that threshold to the grounds Prakash advanced.
The judgment also applied s 101(2)(e) of the Supreme Court Act 1970 (NSW). The Court held that leave was required because the decisions challenged were interlocutory, making the notice of appeal incompetent: [2]. The judgment's outcome therefore reinforces the procedural distinction between filing a notice of appeal and having the leave required to pursue an appeal from an interlocutory order.
On evidence, the Court applied the text of s 75 of the Evidence Act 1995 (NSW) to affidavits relied on in an interlocutory proceeding. It did not formulate a new hearsay rule. Its reasoning was that the interlocutory character of the application brought the evidence within s 75, where the party also adduces evidence of the source: [35].
The decision did not determine the substantive scope of Commsec's contractual powers, the legality of its margin formula, or whether any alleged conduct breached financial-services obligations. Nor did it decide the merits of the earlier dismissals in Queensland or the ACT. It recounts those matters as procedural background: [7]-[8]. Accordingly, the judgment should not be read as establishing a substantive rule about options margin calls or as a merits decision on Prakash's allegations.
The source provides no information about subsequent cases treating this judgment. It is therefore not possible, from this judgment alone, to say whether later courts have applied, distinguished or criticised it.
At [3], the Court states that leave requires “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable.” In plain English, an applicant must show more than that an appeal point can be argued. The point must have the specified significance or disclose a sufficiently clear injustice.
At [30], the Court says proposed ground 1 rested on a “misapprehension” because the asserted default judgment was inconsistent with the Court record. In plain English, the appeal could not succeed on the basis that an order existed when the record showed it had not been made.
At [33], the Court explains that the primary judge did not hear the unlisted motion and did not address the notice to produce, which was not yet returnable. The Court also says that merely because documents are produced, that does not give a party a right to cross-examine the other party's personnel about them. The significance is limited to the circumstances discussed: the notice's future return date, the listing arrangements, and the basis asserted for cross-examination.
At [35], the Court describes s 75 of the Evidence Act as applying to evidence in interlocutory proceedings where the adducing party also adduces evidence of its source. In plain English, hearsay evidence is not automatically excluded from an interlocutory application if the statutory condition is met. The Court considered that condition applicable to the affidavits in this matter.
At [37], the Court accepts that market transparency is important when stated generally but focuses on the specific decisions under appeal. In plain English, a broad public-interest topic does not itself satisfy the leave threshold: the proposed appeal must connect that importance to the particular orders being challenged.
The judgment is relevant to applications for leave to appeal interlocutory decisions in NSW where the applicant must establish the threshold described at [3]. It is particularly pertinent where the proposed grounds depend on a factual premise that can be checked against the court record. Here, the asserted entry of default judgment was the foundation for the claimed lack of power to dismiss, but the record contradicted it: [30].
It may also be relevant where a party alleges procedural unfairness because a motion was not heard. The judgment examines whether the motion was listed, whether the applicant addressed it, the status of related production requests, and whether the primary judge gave reasons for the listing approach: [31]-[34]. Those details matter to the Court's assessment; the judgment does not declare that every unlisted motion may be left undetermined in every situation.
For evidence issues, it is relevant where hearsay is tendered in an interlocutory proceeding and the source is also given. The Court applied s 75 to the solicitor affidavits before the primary judge: [35]-[36]. Its reasoning is tied to the interlocutory nature of that proceeding and the statutory text.
The decision also provides an example of a distinction between broad public significance and the significance of a particular appeal. A dispute may be framed in terms of an important regulatory subject, but the applicant still has to show how the specific order under challenge raises an issue of principle or public importance: [37].
The judgment is not authority, on the material provided, for resolving the merits of the underlying margin-call dispute, the validity of a financial product disclosure statement, or alleged fraud. Those matters were not decided by the Court of Appeal.
The judgment identifies PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 as the source of the leave threshold and applies its summary: [3]. It also refers to Majak v Rose (No 5) [2017] NSWCA 238 in discussing the recusal allegation: [38]. These are the authorities the Court itself used.
No post-judgment decisions or later treatment are included in the supplied text. It would therefore be unsupported to describe how later courts have treated Prakash v Commonwealth Securities Limited trading as Commsec [2026] NSWCA 202. The judgment's own account does not indicate that it overruled, distinguished or altered the authorities it cited.
The prior ACT and NSW Prakash decisions are recounted as procedural history. The Court notes the ACT dismissal at [8], and identifies the primary judge's NSW decisions at [1] and [23]-[24]. It does not treat those decisions as appellate precedents determining the legal test for leave.
The Court did not determine whether Commsec's margin call was lawful, whether its margin calculations complied with the account terms, or whether the allegations of fraud, misleading conduct, unconscionable conduct or negligence were made out. Those allegations and the primary judge's conclusions about the pleading appear as background, not as matters decided on their merits by the Court of Appeal: [6], [18]-[22], [27]-[28].
The judgment does not resolve the underlying regulatory questions raised in the proposed appeal, including the alleged use of pricing multipliers or alleged disclosure failures. It explains that the general topic of licensing transparency did not, in itself, establish the required importance of this particular proposed appeal: [25], [37].
Nor does it decide what evidence would be required in a different interlocutory proceeding for s 75 to apply. Its account is limited to the solicitor affidavits and the interlocutory hearing before the primary judge: [35]-[36].
The reasons do not give a broader rule for when an unlisted motion must be heard, or when a notice to produce should remain in force after the proceeding is dismissed. The Court's conclusion arose from the listing circumstances, the notice's return date, the applicant's failure to address those matters at the hearing, and the dismissal of the proceedings on other grounds: [31]-[34].
The final orders were procedural and costs-related. The Court dismissed the notice of appeal as incompetent, refused leave, ordered Prakash to pay Commsec's costs, and set a timetable for any application for a gross-sum costs order under s 98(4) of the Supreme Court Act 1970 (NSW): [42]. The judgment does not include a later determination of any such costs application.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Prakash v Commonwealth Securities Limited trading as Commsec [2026] NSWCA 202
Hearing dates: 17 September 2026
Decision date: 22 September 2026
Before: Leeming JA; Adamson JA
Decision: (1) Dismiss the notice of appeal filed on 2 June 2026 as incompetent.
(2) Refuse leave to appeal.
(3) Order the applicant to pay the respondent’s costs of the proceedings.
(4) If the respondent seeks an order that the costs be ordered in a gross sum pursuant to s 98(4) of the Supreme Court Act 1970 (NSW), direct:
(a) the respondent to file and serve any such application together with evidence and submissions relied on in support within 14 days of the date of this order;
(b) the applicant to file and serve any evidence and submissions in response to any such application within a further 14 days; and
(c) the respondent to file and serve any evidence and submissions in reply within a further 7 days.
(5) Order that any application that costs be paid in a gross sum be dealt with on the papers.
Catchwords: APPEALS — leave to appeal — interlocutory decisions — whether leave to appeal ought be granted — where applicant relies on a misapprehension as to order for default judgment — where no issue of principle, question of public importance or reasonably clear injustice shown
Legislation Cited: Evidence Act 1995 (NSW), s 75
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited: Majak v Rose (No 5) [2017] NSWCA 238
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Prakash v Commonwealth Securities Ltd [2026] ACTSC 77
Category: Principal judgment
Parties: Arjun Prakash (Applicant)
Commonwealth Securities Limited trading as Commsec (Respondent)
Representation: Counsel:
Applicant (Self-represented)
J Foley (Respondent)
Solicitors:
Not applicable (Applicant)
Norton Rose Fulbright Australia (Respondent)
File Number(s): 2026/179231
THE COURT: By summons filed on 19 June 2026, Mr Arjun Prakash (the applicant) seeks leave to appeal against orders made by Sirtes J (the primary judge) in the Common Law Division of the Supreme Court (the Court below) on 29 April 2026 (Prakash v Commonwealth Securities Ltd [2026] NSWSC 432) (Prakash No 1), 4 May 2026 (Prakash v Commonwealth Securities Ltd (No 2) [2026] NSWSC 455) (Prakash No 2). There is no separate challenge to the determination of the quantum of the gross sum costs order made by the primary judge on 12 May 2026 (Prakash v Commonwealth Securities Ltd (No 3) [2026] NSWSC 505 (Prakash No 3).
Although the applicant filed a notice of appeal on 2 June 2026, the appeal was incompetent as the applicant needs leave to appeal pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW) since each of the decisions challenged was an interlocutory order.
In order to obtain leave to appeal, the applicant needs to demonstrate an issue of principle, a question of public importance or a reasonably clear injustice going beyond something which is merely arguable: see the summary of authorities in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA).
For the reasons which follow we are not persuaded that the applicant has raised an issue of principle or a question of public importance. Nor are we persuaded that there is any reasonably clear injustice going beyond the merely arguable. Accordingly, leave to appeal ought be refused.
The application for leave to appeal is made in the following circumstances.
The applicant traded options contracts using an account with the respondent, Commonwealth Securities Ltd trading as Commsec (Commsec), which he opened in July 2024. On 11 April 2025, Commsec made a margin call on the applicant’s account for $823,412.50 which comprised an ASX margin of $79,440.50 and a Commsec margin of $743,972. In his proposed amended statement of claim sought to be filed in the Court below on 23 December 2025 (but rejected by the Registry), the applicant claims that, as a result of Commsec’s alleged wrongdoing (which is said to amount to fraud), he suffered loss, amounting to $5,126,850, on which he claims interest.
On 27 June 2025, the applicant commenced proceedings against Commsec in the Supreme Court of Queensland. On 26 September 2025, the applicant commenced further proceedings against Commsec in the Supreme Court of Queensland on the same basis as the first proceedings had been commenced. On 21 November 2025, both proceedings were dismissed on Commsec’s application: the second on the basis that it was an abuse of process and the first on the basis that no reasonable cause of action was disclosed and that the proceedings were also an abuse of process.
On 14 October 2025, the applicant commenced proceedings against Commsec to the same effect in the Supreme Court of the Australian Capital Territory (the ACT proceedings). On 27 March 2026, on Commsec’s application, Muller AJ dismissed the ACT proceedings as an abuse of process: Prakash v Commonwealth Securities Ltd [2026] ACTSC 77.
The proceedings in the Court below were commenced by statement of claim filed on 5 November 2025 (while both the Queensland proceedings and the ACT proceedings were still on foot). It was served by 14 November 2025 and Commsec filed a notice of appearance on 21 November 2025. On 13 December 2025, the applicant filed a notice of motion for default judgment and Commsec, which had not filed a defence, filed a notice of motion for summary dismissal of the proceedings. The applicant was under the mistaken apprehension that, by filing a motion for default judgment, he had, in fact, obtained default judgment. However, the Court record established that this was not the case.
On 22 April 2026 the applicant filed a notice to produce dated 14 April 2026 on Commsec, seeking production of extensive records in Commsec’s possession relating to the calculation of margin calls. It was given a return date of 6 May 2026 (that is, after the hearing before the primary judge).
On 15 April 2026, the applicant filed a notice of motion in the Court below in which he sought the following orders:
1. That pursuant to UCPR 12.7(2), the Defendant’s Notice of Motion filed 13 December 2025 (seeking orders under UCPR 13.4 and 14.28) be dismissed for want of due despatch, as the proceedings were already disposed of by the final, sealed judgment entered on 30 March 2026.
2. A declaration that the Defendant is in default pursuant to UCPR 16.2(1), having failed to file a verified Defence (Form 7A) within the time limited by UCPR 14.3.
3. That the Defendant’s Written Submissions filed 9 April 2026 be struck out as procedurally moot and an abuse of process under the Court’s inherent jurisdiction.
4. That pursuant to UCPR 18.3(3), this motion be determined in chambers on 23 April 2026 without a hearing.
5. The Defendant pay the Plaintiff’s costs of this motion as agreed or assessed.
6. A declaration that the final default judgment entered on 30 March 2026 is perfected and remains in full force and effect.
7. That pursuant to UCPR 36.4(3), the judgment entered on 30 March 2026 take effect immediately for the purposes of enforcement, notwithstanding the usual 28-day period.
8. That the Plaintiff have leave to proceed with immediate enforcement of the judgment debt, including but not limited to the issuance of a Writ for the Levy of Property (Form 66) or Garnishee Orders (Forms 53-55).
- That the Defendant ‘s recent filings be stayed or dismissed under UCPR 12. 7 to prevent any further obstruction of the enforcement of the sealed judgment.
10. That pursuant to UCPR 21.12, the Defendant be precluded from relying on any documents or evidence related to margin calculations or risk policies that were not produced in response to the Plaintiffs Form 19 Notice to Produce served on 26 March 2026.
11. That the Defendant’s applications under UCPR 13.4 and 14 .28 be dismissed as they fail to address the systemic non-disclosure of the margin formulation described as “0 .9 x Risk Margin while ignoring Premium Margin.”
- That the Court declare the “Ben Doe” margin calculation method to be a breach of the Defendant’s statutory duty to act “efficiently , honestly, and fairly” under Section 912A of the Corporations Act 2001 (Cth) .
- That Investigations by ASIC, ACCC, APRA, AFP be ordered in the Systemic fraud, Unconscionable Conduct and SCAM of Commonwealth Securities Ltd.
- That NortonRoseFulbright be investigated for Perjury.
These applications were heard by the primary judge on 23 April 2026.
The primary judge refused the applicant’s application for default judgment since, although Commsec had not filed a defence, it had sought summary dismissal of the proceedings on the same day on which the applicant sought default judgment.
The primary judge dismissed the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4, which provides:
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
His Honour found the proceedings to be an abuse of process within the meaning of UCPR, r 13.4(1)(c), as they amount to a relitigation of proceedings that were summarily dismissed in Queensland as an abuse of process.
The primary judge also found that no reasonable cause of action was disclosed by the proceedings and that their dismissal was also warranted on this basis.
The primary judge referred to the applicant’s notice of motion filed on 15 April 2026 at [19] of Prakash (No 1) and said:
On 15 April 2026, Mr Prakash filed a third Notice of Motion. By that motion he sought an array of relief, ranging from a dismissal of CommSec’s motion for want of due despatch, writs of execution, declaratory relief in relation to the substantive claim, and the referral of the matter for investigation by the Australian Securities and Investments Commission (ASIC), the Australian Competition and Consumer Commission, the Australian Prudential Regulation Authority, and the Australian Federal Police (AFP). Strictly speaking, that motion was not listed for hearing before the Court. In any event, no submissions were made in relation to it at the hearing, and the relief sought by it is peripheral to the issues I must decide.
The crux of Mr Prakash’s complaint appears to be that the margin requirements imposed by CommSec were too high which caused loss when he was unable to meet them. This contention is in part informed by Mr Prakash’s claim that he had valuable “deep in the money” positions in his portfolio which CommSec either undervalued or ignored when calculating his risk profile and formulating its margin requirements. Furthermore, Mr Prakash says that the formula CommSec used to calculate its margin requirements was never revealed to him when his account was active and was not permitted by the terms governing the account.
The primary judge noted that Commsec relied on cll 20 and 21 of its Commsec Exchange Traded Options Product Disclosure Statement and Terms and Conditions (PDS) and that cl 21 of the PDS entitled Commsec “in its absolute discretion, appropriate in connection with the obligations incurred” to demand the payment of money or provision of security: [67] of Prakash (No 1). Commsec said when it closed out the applicant’s positions on 15 May 2025, it lost $91,051.25: [90] of Prakash (No 1).
The primary judge noted the applicant’s complaints against Commsec including breach of contract, fraud, misleading or deceptive conduct, unconscionable conduct and negligence: [72]-[76] of Prakash (No 1). The primary judge referred to the allegations of fraud and the absence of particulars: [73] of Prakash (No 1). His Honour continued:
74 … There must be an articulated legal structure that corrals this array of disparate facts into some, even loosely, coherent legal framework. None exists.
75 Mr Prakash cites many rules and regulations from various entities, including ASIC, the ASX, and others. His claim does not make apparent how CommSec has breached those requirements, or how such breaches are actionable at law.
76 There are several allegations of criminal conduct by CommSec. Similar charges were levelled at CommSec’s legal representatives prior to and at the hearing. There is no foundation for those allegations. They are scandalous. Had they been made by a legal practitioner that practitioner would be liable to professional sanction. In any event, and contrary to Mr Prakash’s submission, this is a civil case and not a criminal one. The commission of a criminal offence does not, by itself, give rise to an action at law.
77 I accept that Mr Prakash is a self-represented litigant. However, even if he had the benefit of legal assistance to refine his position, I have determined that his claim discloses no reasonable cause of action. It must be dismissed.
14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
82 The Amended Statement of Claim does not comply with any of these requirements. The pleadings are prolix. The Amended Statement of Claim is 35 pages in length. It does not put CommSec on notice of the specific legal claim or claims it must meet, but is instead an imprecise recitation of Mr Prakash’s complaints about its conduct. The several allegations of fraud, negligence, and misleading or deceptive conduct are mere assertion and are unparticularised.
83 To my mind there is no question that the Amended Statement of Claim is embarrassing, fails to disclose a reasonable cause of action, and must be struck out.
His Honour refused to grant leave to the applicant to replead. On 29 April 2026, the primary judge dismissed the applicant’s application for default judgment, dismissed the applicant’s claim pursuant to UCPR, r 13.4, ordered the applicant to pay Commsec’s costs of the proceedings and made directions regarding Commsec’s application for a gross sum costs order.
On 4 May 2026, the primary judge refused the applicant’s application that his Honour recuse himself on the grounds of apprehended bias: Prakash (No 2). On 12 May 2026, the primary judge ordered the applicant to pay Commsec’s costs in the gross sum of $68,181.82: Prakash No 3.
SUBSTANTIVE GROUNDS FOR LEAVE TO APPEAL [UCPR 51.10)
The Applicant submits that this application raises fundamental questions of law and involves a severe, documented denial of procedural fairness that meets the strict statutory criteria for appellate intervention [UCPR 51.53]:
Ground 1: The Lower Court Acted Entirely Functus Officio [UCPR 36.16]
The Applicant’s Form 38 Default Judgment was regularised, sealed, and perfected on 13 April 2026 [UCPR 36.16]. Under the unyielding statutory timeline of UCPR Rule 36.16(3C**)** , the trial division’s jurisdiction to alter, vary, or set aside that perfected ledger entry expired permanently on 27 April 2026 [UCPR 36.16]. Because that timeline passed in total silence without a valid Form 7B Ground of Opposition or verified corporate affidavit on the record, the primary court’s power was completely exhausted. The subsequent 29 April strike-out entries represent an unmitigated jurisdictional nullity [UCPR 36.16].
Ground 2: Total Denial of Procedural Fairness and Due Process [UCPR 51.53]
The trial division systematically quashed the Applicant’s active Form 20 Stay Motion and suppressed the active Form 24 Subpoena to Produce-which legally demanded CommSec hand over their raw options trading desk logs-behind closed doors, without conducting a single oral hearing, allowing cross-examination, or permitting the Applicant to present arguments [UCPR 51.53]. This closed-door case destruction is a fatal violation of natural justice [UCPR 51.53] .
Ground 3: CommSec’s Permanent, Unsworn Corporate Default Track [UCPR Part 35]
The Respondent has conducted this entire multi-million dollar dispute with in an absolute corporate signatory vacuum containing 0 sworn corporate facts, 0 corporate affidavits verified by CommSec executives, and 0 valid defences [UCPR Part 35]. Under the strict operation of UCPR Part 35, their legal representatives hold absolutely zero standing to speaking or resist enforcement using unverified solicitor hearsay and clerical placeholders [UCPR Part 35].
Ground 4: Core Systemic Disclosures and AFSL Algorithmic Crimes [s 1013D]
The underlying lawsuit involves a severe statutory breach under Section 1013D and Section 912A of the Corporations Act 2001 (Cth**).** The Respondent deployed hidden 148x, 12x, and 7x pricing multipliers inside its options trading software that were completely omitted from its public PDS disclosures, artificially bloating retail risk boundaries to force equity liquidation events [s 912A, s 1013D]. This case raises an overriding public interest issue regarding licensing transparency in Australian financial markets.
ORDERS SOUGHT BY THE APPLICANT [UCPR 51.10]
The Applicant seeks the following orders from the Court of Appeal:
- GRANT OF LEAVE: That the Applicant be granted formal Leave to Appeal under UCPR Rule 51.10 against the interlocutory case-management notes and strike-out entries issued by the trial division [UCPR 51.10].
2. TOTAL JURISDICTIONAL QUASHING: That the electronic chamber notes of 29 April 2026, the subsequent case management directions of 4 May 2026**,** and the back-office registry log entries of 12 Ma****y 2026 marking the file portal status as “Case Closed” be formally declared a jurisdictional nullity, quashed , and wiped from the master records [UCPR 36.16, UCPR 51.56].
3. LEDGER RESTORATION: That the Applicant’s regularised, ink-sealed, and perfected 13 April 2026 Form 38 Default Judgment for the capital debt asset sum of $5**,500,**000.00 be fully restored to an unhindered, active state of execution on the Supreme Court master database [UCPR 36.16].
- MANDATORY ENFORCEMENT UNBLOCKING: That the Level 5 counter clerks be immediately procedurally mandated to sign, seal, and issue the Applicant’s pending execution packets, specifically comprising Form 46 (Writ for the Levy of Property) and Form 69 (Garnishee Order for Debts) (UCPR 4.4 , UCPR 36.16].
5. 72-HOUR REPLIES ULTIMATUM: That under UCPR Rule 51.56, the Respondent be placed on a compressed 72-hour maximum case management ultimatum to file any responsive evidence, which must be signed under oath by the CommSec CEO, the CBA Group CEO, or the Company Secretary, or face permanent exclusion from these proceedings [UCPR Part 35, UCPR 51.56].
In the hearing in this Court, the applicant made oral submissions which summarised his written submissions to the effect that he had suffered a gross injustice because Commsec had made a margin call on his trading account which he alleged was illegal (on several grounds, including fraud) and had had devastating financial consequences for him for which he sought compensation by way of the proceedings in the Court below.
The issue with which this Court is concerned is the relatively narrow issue whether leave to appeal ought be granted in accordance with the principles set out earlier in these reasons.
Before turning to the proposed grounds, it is convenient to outline the effect of the orders sought in the proposed appeal (extracted above). Prayer 1 seeks, as is appropriate, a grant of leave to appeal and is, for that reason, unobjectionable. Prayers 2-5 seek orders, including an order for enforcement, consequential on there being a valid and unassailable default judgment in the applicant’s favour. Prayer 5 seeks an order requiring certain officers of Commsec to provide sworn evidence on oath. The jurisprudential basis for prayer 5 is not articulated and would appear to be lacking.
The applicant submitted that it was a denial of procedural fairness for the primary judge not to determine his application for a stay (which we take to be a reference to his motion filed on 15 April 2026) or to allow him to agitate issues concerning his subpoena to Commsec in the hearing on 23 April 2026. We apprehend that the reference to the applicant’s subpoena to Commsec is a reference to the notice to produce which was filed by the applicant on 22 April 2026 and given a return date of 6 May 2026.
The transcript of the hearing in the Court below indicates that the primary judge afforded an opportunity to the applicant to address his Honour about matters germane to the notices of motion which were before his Honour. The applicant did not address the primary judge about the notice to produce which was, in any event, not returnable until 6 May 2026.
The primary judge gave reasons for not addressing the motion filed on 15 April 2026 at the hearing on 23 April 2026 at [19] of Prakash (No 2) (extracted above). His Honour’s reasons concerned matters of practice and procedure, including that, as a matter of procedural fairness to both parties, only those motions which are listed to be heard on a particular day will be heard on that day. Further, as the applicant did not address the Court on that motion or the notice to produce on 23 April 2026, his Honour did not address it. As the primary judge dismissed the proceedings on the bases set out above, there was no reason for the return date of the notice to produce to be preserved or the notice of motion filed on 15 April 2026 to be heard. Insofar as the applicant considered that he would be entitled to cross-examine Commsec personnel about the documents produced merely by reason of their having been produced, he was mistaken.
We discern no issue of principle, question of public importance or reasonably clear injustice going beyond the merely arguable in his Honour’s approach.
We apprehend that the gravamen of ground 3 is that Commsec chose to rely on affidavits of its solicitor, Ms Rhiannon Zahra, in support of its motion for summary dismissal and in opposition to the applicant’s motion for default judgment, rather than calling employees or officers of Commsec. Commsec’s forensic choice was orthodox for interlocutory applications. It followed from this forensic choice that the evidence adduced on behalf of Commsec was hearsay. However, it was admissible pursuant to s 75 of the Evidence Act 1995 (NSW), which provides that “[i]n an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.” The proceeding before the primary judge on 23 April 2026 was interlocutory and therefore s 75 of the Evidence Act applied.
We discern no issue of principle, question of public importance or reasonably clear injustice going beyond the merely arguable in the primary judge admitting and taking into account the affidavits of Ms Zahra on the motions before his Honour.
Two final points should be made. The first is that the applicant included a great deal of material in the white folders prepared for the hearing of the application for leave. In all there were in excess of 1800 pages of material, and a large number of affidavits made by him. We do not wish it to be thought that we have overlooked this. They need not be summarised because none of this material went to the issues on which the grant or refusal of leave to appeal turned. Those issues have been addressed above.
Secondly, on the morning of the day after judgment was reserved, the applicant supplied a further email to the Court with the heading “Deliberate pagination error deception hindrance yet Material facts seen in the Court establishes enough ground for Leave granted”. The email contained a lengthy submission with nine main headings, the first of which was “1. THE OPENING ANCHOR: THE DELIBERATE PAGINATION DECEPTION HINDRANCE” and which concluded “9. MODERN REGULATORY MANDATES & TOTAL JUDICIAL INJUSTICE”. The email should not have been sent after judgment was reserved, although we are not critical of Mr Prakash, who is not a lawyer, on that front. The email referred to exchanges at the hearing reflecting the fact that the members of the Court could not follow immediately the page numbers to which Mr Prakash referred, and Mr Prakash could not immediately follow the page numbers to which the Court referred. It became evident that Mr Prakash was not using the pagination in the White Folders which the Registrar had directed the respondent to file and serve. Why that occurred is unclear, but it is unnecessary to consider that any further. Nonetheless, at all times where this difficulty arose, the members of the Court and Mr Prakash were able eventually to get to the right document (for the most part, being pages of the Product Disclosure Statement). We note that Mr Prakash was permitted to address for approximately triple the time ordinarily allowed in an application of this nature. We do not consider that this caused any material disadvantage to Mr Prakash, nor did it have any impact upon the outcome of the application for leave.
It is unnecessary to summarise the other matters raised in Mr Prakash’s email, which do not bear upon the issues governing the grant of leave.
For the reasons given above, the Court orders:
Dismiss the notice of appeal filed on 2 June 2026 as incompetent.
Refuse leave to appeal.
Order the applicant to pay the respondent’s costs of the proceedings.
If the respondent seeks an order that the costs be ordered in a gross sum pursuant to s 98(4) of the Supreme Court Act 1970 (NSW), direct:
(a) the respondent to file and serve any such application together with evidence and submissions relied on in support within 14 days of the date of this order; (b) the applicant to file and serve any evidence and submissions in response to any such application within a further 14 days; and (c) the respondent to file and serve any evidence and submissions in reply within a further 7 days.
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Prakash
Commonwealth Securities Limited trading as Commsec
The notice of appeal was dismissed as incompetent, leave to appeal was refused, and Prakash was ordered to pay Commsec’s costs; any application for gross-sum costs was to follow the specified filing timetable and be determined on the papers.