Riva NSW Pty Limited v The Official Trustee in Bankruptcy

Supreme Court of NSW|2023-10-04|Before: Slattery J, Kunc J, Black J

Judgment

On 22 February 2022, Kunc J made orders staying proceedings brought by the plaintiff, Riva NSW Pty Ltd ("Riva") against the Official Trustee in Bankruptcy, pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a) ('the Act'). Kunc J also made an order against Mr Angelo Ferella, a principal of Riva, prohibiting him pursuant to the Act, s 8(7)(b) from instituting proceedings in New South Wales against the Official Trustee.
Riva now seeks by motion dated 28 August 2023 ("the 28 August 2023 motion") to file a motion (which is Annexure A to the 28 August 2023 motion - the Annexure a motion) for leave under the Act, ss 9 and 14(2) to set aside, stay or vary Kunc J's orders and to continue the proceedings on the basis of an Amended Statement of Claim against the defendant, the Official Trustee in Bankruptcy ("the Official Trustee"). Mr Ferella is nominated as the second plaintiff in both the 28 August 2023 and the Annexure motions. He has signed the 28 August 2023 motion and sworn two affidavits in support of the motion.
The unusual procedural structure of Riva seeking by the 28 August 2023 motion to continue the proceedings with the Annexure A motion, follows from the terms of the Act, which restrict a person who is subject to a vexatious proceedings order from instituting proceedings without first seeking leave from an "authorised court". The Act, s4 defines "proceedings" broadly to include any "interlocutory proceedings or applications". By the Act, s13(2) where a proceeding (even in the form of an application for leave itself) is filed without first being the subject of an application for leave, the proceedings are stayed until dismissed or taken to be dismissed: Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2023] NSWSC 896 (Black J).
Mr A. Maroya of counsel appeared on behalf of Riva on the application. As the 28 August 2023 motion was not served on the Official Trustee there was no appearance on its behalf.

Background to the Issues

It is unnecessary to set out the history of these proceedings or the structure of the Act other than in very summary form. As with many proceedings brought under the Act, the Court on this application and Riva itself have the benefit of the detailed examinations of the history of these very proceedings and the application of the Act to these proceedings that have been undertaken by the Court on prior applications made in 2022 and 2023.
Section 9 of the Act, upon which the 28 August 2023 motion is based provides that an authorised Court may, by order, vary or set aside a vexatious proceedings order that the Court has made. Riva is seeking such an order in this application.
Section 13 of the Act relevantly provides that: (1) If an authorised Court makes a vexatious proceedings order prohibiting a person from instituting proceedings: (a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised Court under section 16, and (b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised Court under section 16. (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. (3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the Court or Tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are dismissed under subsection (4).
Section 13(3) of the Act operates automatically without reserving any discretion to the Court, and without need for any order of the Court. Once it operates proceedings instituted in contravention of the section are dismissed within the 28-day period, if they have not first been dismissed by a previous order made by the Court.
Section 14 of the Act provides the requirements for an application for leave to bring proceedings. Importantly the Act, s 14(2) provides that: "(2) the applicant [being a person subject to a vexatious proceedings order] may apply to an appropriate authorised Court for leave to institute proceedings that the order would otherwise prohibit the person from instituting."
And s 15 of the Act requires that the Court must dismiss an application for leave made under s 14, if the affidavit requirements of section 14(3) are not met, the proceedings are vexatious proceedings, or there is no prima facie ground for the proceedings. Section 16 provides for the grant of applications for leave made under s 14.
Reference is made to three judgments of the Court as background and this judgment should be read with those three judgments. The first is the judgment of Kunc J on 22 February 2022: Riva NSW Pty Limited v The Official Trustee in Bankruptcy; The Official Trustee in Bankruptcy v Ferella [2022] NSWSC 153. There Kunc J conducted an extensive review of the several prior proceedings in which Riva and Mr Ferella had been involved since 2006 and found that Riva was "a person" within the Act, s 8(1)(a) who had "frequently instituted or conducted vexatious proceedings". And for the reasons given Kunc J permanently stayed these proceedings under the Act, s 8(7)(a). Moreover, Kunc J found that s 8(7)(a) was also satisfied here and that Mr Ferella was a person "acting in concert with" Riva within the meaning of s 8(1)(b) of the Act and he made orders against Mr Ferella under s 8(7)(a) of the Act prohibiting him from instituting proceedings in New South Wales. These were "vexatious proceedings orders" under the Act.
On 15 June 2022 Riva and Mr Ferella filed a summons seeking leave to appeal against the orders made by Kunc J. That appeal did not come on for hearing until 22 September 2023. In the meantime, on 2 June 2023 Riva filed a motion pursuant to the Act, s 9 seeking to vary or set aside Kunc J's vexatious proceedings order in relation to Riva, to allow the proceedings to continue based on an Amended Statement of Claim dated 7 February 2022, which had not until then been able to be filed because of the existing vexatious proceedings orders made by Kunc J. The 2 June 2023 motion also sought leave to be granted retrospectively for it to be filed. The Amended Statement of Claim had since been amended to provide more detailed particulars of various allegations of slander of title, malice, fraudulent concealment, perjury, and conspiracy to defraud.
In the second prior judgment of significance here, Black J considered the motion and dismissed it on the preliminary basis that the motion filed on 2 June 2023 is itself a "proceeding" for the purposes of s 4 of the Act and Riva had not applied before filing that motion for leave to do so. Applying established authority such as the decision of Robb J in Nina Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86 (Zepinic), Black J concluded that because Mr Ferella had brought the 2 June 2023 motion when he was subject to a vexatious proceedings order and had not previously applied for leave to file it, that s 13 of the Act had been triggered with the consequence that the motion was stayed by force of that section and then dismissed by force of that section 28 days later: Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2023] NSWSC 896. Black J declared that Riva's 2 June 2023 motion had already been dismissed by force of s 13 of the Act. Black J did not have to consider the merits of the Amended Statement of Claim and whether leave would have been granted to allow it to be filed under section 14(2) and 16 of the Act.
To overcome the effect of Black J's decision Riva now comes to Court with the 28 August 2023 motion, seeking leave to institute proceedings through the Annexure A motion, the latter seeking much the same relief as had been sought before Black J. In the Court's view the 28 August 2023 motion conforms with the requirements of Zepinic and was not automatically dismissed under s 13 of the Act because the 28 August 2023 motion is not a "proceedings of the kind to which the [vexatious proceedings] order relates" within s 13(1)(a), and seeks advance leave for the filing of the Annexure A motion, which is "proceedings of the kind to which the [vexatious proceedings] order relates".
The 28 August 2023 motion was adjourned on a number of occasions up until 4 October 2023 for two main purposes: for the filing of an affidavit in conformity with s 14(3), listing the prior proceedings commenced by the applicant and to allow Riva, if it was minded to do so, to further amend its Amended Statement of Claim to refine the pleading to ensure that it was materially different from prior pleadings determined by the Court, that it disclosed a cause of action and was not embarrassing in form. The pleading had been authored by Mr Ferella himself. Riva was instructing Mr Maroya directly. In the result, Mr Maroya took a practical course of highlighting parts of the pleading that he regarded as constituting its essence.
But before the last of those adjourned occasions of the 28 August 2023 motion, in the third significant prior judgment in these proceedings, the Court of Appeal heard the application for leave to appeal from Kunc J's decision on 22 September 2023 and refused leave on 5 October 2023 and ordered Riva to pay the costs of the Official Trustee of the appeal: Riva NSW Pty Limited v Official Trustee in Bankruptcy [2023] NSWCA 235. The Court of Appeal concluded (at [41]) that there was no basis for finding that the judgment of the primary judge, Kunc J, was other than correct.
The Court of Appeal's decision (at [4] - [9]) sets out the following concise summary of the relevant prior history of the proceedings. '[4] The dispute between the parties arose out of sequestration orders made in October 2005 by the Federal Magistrates Court against Mr Ferella and his father, Gustavo Ferella (since deceased). The Official Trustee in Bankruptcy was appointed to manage their respective estates and promptly lodged a caveat over a property held by them jointly located at Wingadal Place, Point Piper in eastern Sydney. The property was subject to a mortgage and was sold by the mortgagee exercising its power of sale in April 2006. However, the dispute arose from the Ferellas' contention that they had purchased the property in their capacity as trustees of the Cavallino Unit Trust. They further asserted that Riva had replaced them as trustee of the trust in April 2005, some six months before the sequestration orders were made. At all times since about March 2006, Mr Ferella has maintained that the Official Trustee held no interest in the property because it formed part of the trust and that the caveat lodged by the Official Trustee had prevented efforts to refinance. [5] In a judgment delivered on 8 July 2008, Nicholas J held that the property had been purchased by the Ferellas as trustees of the unit trust and, by a further judgment delivered on 28 August 2009, that Riva was entitled to the bulk of the net proceeds of sale after deduction of amounts due to the mortgagee. [6] Over subsequent years, Mr Ferella and Riva commenced numerous proceedings seeking to hold the Official Trustee accountable for the family's loss of the Point Piper property. Despite lack of success in earlier proceedings, on 7 July 2020, Riva commenced proceedings in the Equity Division (case no 2020/206189) by summons against the Official Trustee claiming declarations that (i) the property at Point Piper did not vest in the Official Trustee, (ii) the conduct of the Official Trustee in asserting rights in relation to the property was unconscionable and (iii) the Official Trustee held rights over the funds as a constructive trustee for Riva. The claim further sought damages for slander of title, breach of fiduciary duties, breach of trust, together with equitable damages and compensation. [7] On 19 May 2021, the Official Trustee filed a notice of motion seeking to have the proceedings dismissed on various grounds, including that they be stayed pursuant to s 8(7)(a) of the Vexatious Proceedings Act. The Official Trustee also sought an order against Mr Ferella. However, pursuant to directions given by Ward CJ in Eq on 22 July 2021, the Official Trustee was directed to commence separate proceedings by way of summons (duly filed on 23 July 2021) seeking the order against Mr Ferella under s 8(7)(b) of the Vexatious Proceedings Act, which was done (case no 2021/210771). [8] The orders made by the primary judge, as entered on 4 March 2022 were as follows: "In matter 2020/206189: (1) Pursuant to the Vexatious Proceedings Act 2008 (NSW) the proceedings herein are permanently stayed. (2) The plaintiff, and Angelo Ferella, pay the defendant's costs as agreed or assessed. In matter 2021/210771: (1) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), that Angelo Ferella be, from the date of this order, prohibited from instituting or conducting any proceedings against the Official Trustee in Bankruptcy, in his own name, or in the names of Gustavo Ferella or [Riva]."
The prior proceedings in which Mr Ferella was involved on behalf of Riva and the various judgments in those proceedings are extensively listed in Kunc J's judgment and need not be listed again here. Suffice it to say there were multiple proceedings commenced between 2006 and 2019, some of which are referred to in these reasons later by the year in which they were commenced.
Riva gave notice that it was bringing the motion of 28 August 2023 to the Official Trustee and offered it the opportunity to appear on the motion if it wished. But as earlier indicated it was not represented on the motion.
Mr Maroya of counsel for Riva sought to reassure the Court that although Riva and Mr Ferella were bringing both the 28 August 2023 motion in the application for leave to appeal, the parallel proceedings challenging the decision of Kunc J were not an abuse of process. He explained that the reason that the 28 August 2023 motion was being advanced in addition to the application for leave to appeal was because of the terms of s 14(6) of the Act, which provides that "the applicant may not appeal from a decision disposing of the application". Mr Maroya submitted it was therefore arguable that on the proper construction of the legislation it was necessary for a disappointed applicant whose application is dismissed under s 15, to bring another application for leave, rather than to seek leave to appeal. Now that the Court of Appeal has refused leave to appeal is sufficient to dispose of 28 August 2023 motion without dealing with Mr Maroya's argument about the dual pathways challenging Kunc J's decision.
The task now before the Court is to advert to the command of s 15(1) of the Act, which requires that it must dismiss a s 14(2) application for leave to institute proceedings if it considers the Annexure A motion which would open the way to continuing this litigation on the Amended Statement of Claim, is "vexatious proceedings", or there is no prima facie ground for the proceedings. The Court is satisfied that Riva and Mr Ferella have complied with the s 15 requirement to file an affidavit that substantially complies with s 14(3) of the Act.
The definition of "vexatious proceedings" in s 6 of the Act includes proceedings that are an abuse of process, instituted to harass or annoyed or to cause delay or detriment or other wrongful purpose, instituted without reasonable ground and proceedings conducted to achieve a wrongful purpose.

The Amended Statement of Claim

Even a short analysis of the Amended Statement of Claim shows that on its face it merely seeks to relitigate issues that have already been determined in the litigation which were thoroughly examined by Kunc J. The Court readily concludes that to allow it to be filed and for the proceedings to continue upon it would amply make these proceedings "vexatious proceedings": the Act s 15(1)(b). Moreover there is no prima facie ground for the proceedings as constituted by the Amended Statement of Claim: the Act s 15(1)(c).
Prayers for relief 1 to 3 of the Amended Statement of Claim seek declarations that the Point Piper property never vested in the Official Trustee, that the Official Trustee was "fraudulent and unconscionable" in asserting rights inconsistent with the trustee and beneficiaries of the Trust and that the Official Trustee "from the beginning held all rights as constructive trustee for" Riva in its capacity as trustee of the Trust.
Prayers for relief 4 to 10 of the prayers for relief in the Amended Statement of Claim seek declarations and damages on the basis that the Official Trustee engaged in slander of title and malice, fraudulent concealment, conspiracy to defraud, damages for acting as a constructive trustee without consent, and damages for lodging two caveats.
The pleadings and particulars in the Amended Statement of Claim supporting the relief plead facts that substantially reproduce the issues litigated and decided in the earlier proceedings. The structure of the pleading may be briefly recounted in what is only a high-level summary. 1. Paragraphs 1 - 12. Mr Ferella and his father became trustees of the Trust, were replaced by Riva as trustee, but they committed an act of bankruptcy and the Official Trustee became their trustee in bankruptcy, they informed officers of Official Trustee of the existence of the Trust but Riva was at all times entitled to enjoy legal ownership of the Point Piper property, subject to a mortgage to Key Nominees Pty Ltd (Key) and to hold the property on trust for the beneficiaries of the Trust subject to keys rights, although the Official Trustee lodged a caveat on the title to the Point Piper property claiming an interest in it. 2. Paragraphs 13 - 18. Mr Ferella and his father delivered statements of affairs to Official Trustee giving further notice of the Trust to the Official Trustee and lapsing notices with respect to the caveat. Key obtained an order for possession of the Point Piper property and a financier agreed to refinance the land to pay out the indebtedness to Key but the Official Trustee declined to allow transfer of the legal title of Point Piper property at the direction of Riva to Mr Ferella's father pursuant to the refinancing and so the refinancing could not proceed. 3. Paragraphs 19 - 20. Lawyers on behalf of the Official Trustee made representations that caused the refunding of the Point Piper property to be abandoned, and these representations were said to be false because they asserted that the land was vested in the Official Trustee and no one else was authorised to deal with it. The Official Trustee filed a second caveat setting an interest in the Point Piper property. 4. Paragraphs 21 - 22. Based on evidence in its own possession and giving notice to it, the Official Trustee was always a constructive trustee for Riva of the Point Piper property and its proceeds of sale. 5. Paragraphs 23 - 28. Lawyers acting on behalf of Official Trustee and officers of Official Trustee made wilfully false statements and deliberately suppressed and concealed material facts about the true title of the Point Piper property to mislead various courts and deliberately filed false caveats to support those wilful false statements. This conduct was said to have taken place in all the proceedings in which Riva was involved and is also said to be malicious and to slander Riva's title to the Point Piper property. The Courts allegedly misled by these wilfully false statements included the Supreme Court of New South Wales and the Federal Court of Australia sitting in bankruptcy. Various lawyers allegedly conspired with a petitioning creditor in the bankruptcy proceedings to intentionally conceal material facts from the Court, apparently as to the true ownership of the Point Piper property. 6. Paragraphs 29. But now "new evidence" that has become available relevant to the 2015 proceedings which shows that many of the facts asserted against Mr Ferella and his father were incorrect. Due to the fraudulent concealment of documents from Riva by persons who had acted for the Official Trustee the limitation period for the causes of action which Riva now seeks to maintain only commenced when this new evidence was made available to Riva between June and December 2021. 7. Paragraph 30. Various proceedings relating to Mr Ferella and his father and Riva have resulted in judgments in the various proceedings that have become "grossly infected, false and made without merit" including various proceedings in the Federal Court of Australia, the Supreme Court of New South Wales at first instance and on appeal and in the High Court of Australia's refusal to allow leave to appeal from a decision of the New South Wales Court of Appeal. And in the 2015 proceedings the Official Trustee's witnesses first allegedly perjured themselves and then made concessions. 8. Paragraphs 31 - 34. Riva and Mr Ferella sought various documents on discovery concerning costs charged to the estate of Mr Ferella's father and these documents were allegedly not produced during the conduct of any of the proceedings. The documents not produced are said to include advice from counsel conceding that the Point Piper property was held on the Trust and invoices from the solicitors and counsel involved in the 2006 proceedings. 9. Paragraphs 35 - 44. In this final section of the Amended Statement of Claim the claimed causes of action are summarised against the Official Trustee, to include wilful and fraudulent intent to conceal material facts and deliberately to make false representations regarding the ownership of the Point Piper property. This said to have occurred "from the beginning", which appears to allege conduct in all proceedings commencing with the 2006 proceedings, and then to continue into the 2015, 2018 and 2019 proceedings. This part of the leading repeats the allegations of fraudulent and intentional conduct. Riva further contends that this misconduct led to the wrongful sale of the Point Piper property under the "purported exercise of a power of sale by Key" over the property, causing damage to Riva.
The Court does not need to hear from the Official Trustee before declining leave to allow this proposed pleading to be filed. The document is manifestly embarrassing in multiple ways. To permit it to be filed would only invite an application to strike it out. The pleading is so obscure in places that no proceeding could be conducted in this Court based on this pleading in manner consistent with the Court's objective of conducting proceedings justly, quickly, and cheaply: Civil Procedure Act 2005, ss 56 - 60. And for the many reasons which follow, it is not a pleading which is capable of amendment, to plead recognisable and maintainable causes of action or claims for relief. Despite attempts at amending the pleading after the decision of Kunc J, it still exhibits the same basic defects upon which Kunc J commented and it has collected a few more.
First, the pleading merely attempts to relitigate earlier proceedings which have already determined the matters pleaded. The following observations Kunc J made (at [90]) about the pleading then under consideration are equally true of the present pleading: "[90] It is undeniable that there are strong similarities in the material advanced by Riva in the current proceedings when compared to the proceedings before Perry J in the Federal Court of Australia and Pembroke J in the Supreme Court of NSW. The Official Trustee - as it did in the matter before Pembroke J - provided a side-by-side comparison of the statements of claim in each matter which exposed these consistencies. There are few differences to be identified between the statement of claim filed in the current proceedings and those before Pembroke J. As was put by Mr Lynch SC for the Official Trustee, they are "near identical". The Court accepts that submission. Of 39 paragraphs, 28 are materially the same with a few inconsequential alterations. The only substantive new material in the statement of claim arises in relation to particulars for claims of fraud and perjury by the Official Trustee. With the exception of a claim for slander of title, the matters Riva seeks to litigate have already been considered by this and other courts."
The amendments that have been made to the proposed pleading do not change its basic structure. They mostly only change the intensity of the allegations of alleged misconduct. Indeed, prayers for relief 1,2 and 3 of the same. Kunc J demonstrates, at [91] to [95] that these claims are nothing more than matters already determined in earlier proceedings: "[91] By prayer one, Riva seeks a declaration that the property never vested in the Official Trustee. This appears to be a revival of the long-settled findings of Nicholas J in the Supreme Court of NSW ([2008] NSWSC 685). His Honour held that the property was never validly vested in Riva because it remained vested at all times in Angelo and Gustavo. Upon their bankruptcy, an interest was conferred upon the Official Trustee sufficient for it to lodge a caveat against the property and exercise a lien over the proceeds of sale. Riva never obtained any interest. This was reiterated by Yates J in the inquiry proceedings, Perry J in the Federal Court of Australia, and Emmett AJA (Bell P agreeing) in the NSW Court of Appeal. [92] By prayer two, Riva alleges unconscionability by the Official Trustee founded on accusations of breach of trust, consisting of fraud and perjury. Riva had previously sought leave to amend its pleadings before Perry J to include a claim of fraud but was refused (at [88]). Fraud was again raised before Pembroke J. His Honour determined the claims had "no prospect of success and should not have been made" (at [18]). [93] New particulars of fraud have been included in the current statement of claim. These relate largely to the invoices referred to at [87] above. Riva also alleges that the invoices form the basis for an accusation of perjury. These claims rise no higher than speculation and are without reasonable foundation. They should not have been made. [94] In any event, any claim of fraud would be untenable because it is beyond the 12-year limitation period set out in s 55 of the Limitation Act. Mr Lynch SC raised the limitation issue at hearing, submitting that any claim of fraud was hopeless as the period in which to bring such a claim would have lapsed in 2018. The Court accepts that submission. [95] By prayer three, Riva seeks a declaration that the Official Trustee held the property as constructive trustee for Riva. Riva sought the same relief in proceedings before Pembroke J which his Honour held was a reiteration of the relief sought before Perry J (albeit using the language of de son tort as opposed to constructive trustee). In both matters there was no reasonably arguable case to answer ([2017] FCA 188 at [64]-[67]; [2019] NSWSC 49 at [14]-[15]). Perry J noted that a finding in favour of Riva on the question of a trustee de son tort would be contrary to the decision of Nicholas J (at [66]). Her Honour also held that such a claim was barred by the operation of s 48 of the Limitation Act (at [84]). Emmett AJA (Bell P agreeing) in the NSW Court of Appeal also dealt with this issue of a constructive trustee, concluding that it was "not possible" to establish a constructive trust on the available material (at [36]). There is nothing new, either in the facts or the evidence before the Court, to justify any divergence from these findings."
Moreover, the other relief claimed in the present pleading including slander of title breaches, fiduciary duty and breach of trust, and claim for equitable compensation Kunc J pointed out (at [97] to [101]) have already been determined.
Secondly, many of the changes made introduce additional and broader charges of fraudulent conduct, including false representations, slander of title, perjury, conspiracy, and fraudulent concealment which bring with them other pleading issues. Only a few of them need be mentioned. The fraud allegations include allegations against solicitors and counsel, who are not joined as defendants and whose level of participation in the alleged misconduct is unclear on the pleading. In places for example they are said to be responsible for their client's "perjury". The conspiracy allegations do not identify the parties to the alleged conspiracy, the common agreed scope of the conspiracy, and whether it was a conspiracy to use lawful or unlawful means to achieve its conspiratorial end.
Thirdly, many of the causes of action are inappropriately pleaded and do not suit the underlying facts. For example, the tort of slander of title is expressly invoked but is hardly an appropriate label for the pleaded circumstances. The 2006 proceedings involved a reasonably unremarkable contest about the beneficial ownership of certain property, which may or may not have become part of a bankrupt estate.
Fourthly, a clear distinction is not drawn in the pleading between misleading conduct which is alleged to take place by lawyers in the context of litigation or parties exercising their procedural rights to advance their cases in the courtroom and other conduct outside that context. The former would attract absolute privilege against defamation for the client and immunity from suit for the advocate. The latter would not.
Fifthly, the pleading invites an impermissible indirect challenge to the integrity of earlier decisions of the Court by collateral attack. Several judges' decisions that are said to have been influenced by the fraudulent nondisclosure are said as a result to have been "grossly infected false and made without merit". A new proceeding seeking by indirect collateral attack to undermine a previous decision of the court, which decision could have been, or has been, the subject of an appeal is an abuse of process. Appeals are the correct way of challenging decisions not the filing of a statement of claim in fresh proceedings.
Sixthly, there is nothing in the allegation of fraudulent concealment which would be likely to extend any applicable limitation period for the causes of action or the claim for equitable relief. Nothing suggests that a claim for relief has been suppressed and kept away from Riva or that most of the material facts have not long been known to Riva. At best the material said to have been concealed is material that does not appear to be decisive in establishing an otherwise known cause of action or claim for relief but to be merely additional evidence. In this respect the Court agrees with what Kunc said at (at [89]): "[89] The notion that the Official Trustee was aware of the status of the property as trust property has been well traversed. It received consideration in the original proceedings before Nicholas J, inquiry proceedings before Yates J and on appeal before Dowsett, Foster and Nicholas JJ. It was also raised in the vexatious proceedings before Perry J and again before Pembroke J. Yates J noted specifically that "by July 2006 the respondent had formed the view, no doubt assisted by the legal advice it had obtained, that it was not satisfied that the Point Piper funds were an asset of a trust" and it was "not unreasonable" in doing so (emphasis added) ([2011] FCA 69 at [165], [167]). Nothing in the invoices undermines this conclusion except insofar as the Official Trustee was reluctant to provide Riva with the documents in circumstances where Riva was already engaged in vexatious proceedings against it. It follows that the documents now before the Court are not new in any meaningful way. They are merely a convenient vehicle for Riva and Angelo to resurrect old grievances"
In conclusion therefore, notwithstanding Mr Maroya's careful submissions to the contrary, the Court will therefore dismiss this application under the Act, s 15(b) and (c) on the basis that the application is a "vexatious proceeding" as defined by the Act and there is "no prima facie ground for the proceedings". The proceedings seek to relitigate earlier proceedings and therefore are an abuse of process. Their pleaded form and their obvious similarity to what was considered by Kunc J allows the Court to infer that they were instituted "to harass or annoy, to cause delay or detriment, or for another wrongful purpose" because they do not plead maintainable forms of relief and are likely be struck out as being embarrassing in form.
Notwithstanding the lack of success on Riva's part, the Court has been assisted by the careful arguments of counsel Mr Maroya that were put on Riva's behalf.

Conclusions and Orders

Riva has been unsuccessful. But because the Official Trustee has not been served, it has not incurred any legal costs. It is therefore not necessary for a costs order to be made. The Court will therefore make the following orders: 1. The plaintiff's motion filed on 28 August 2023 is dismissed under Vexatious Proceedings Act 2008 s 15(b) and (c); and 2. Note that there is no order as to costs made in relation to the plaintiff's motion.

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: 03 November 2023

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