Romulus Remus Group Pty Limited v The Official Trustee in Bankruptcy

Medium Neutral Citation: Romulus Remus Group Pty Limited v The Official Trustee in Bankruptcy [2026] NSWSC 317

Hearing dates: 4 February 2026

Date of orders: 2 April 2026

Decision date: 02 April 2026

Jurisdiction: Equity

Before: McGrath J

Decision: Declarations that the proceedings are proceedings to which ss 13(2) and 13(3) of the Vexatious Proceedings Act 2008 (NSW) apply, proceedings were stayed on 6 May 2025 and dismissed on 2 June 2025 pursuant to ss 13(2) and 13(3) of the Vexatious Proceedings Act 2008 (NSW); and an order that the plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords: PRACTICE AND PROCEDURE — Vexatious proceedings order — whether plaintiff brought proceedings “acting in concert” with person subject to a vexatious proceedings order and without the leave of the court contrary to s 13(1)(b) of the Vexatious Proceedings Act 2008 (NSW) — HELD — plaintiff brought proceedings acting in concert with person subject to vexatious proceedings order — proceedings taken to have been automatically stayed when instituted and dismissed 28 days after they were instituted in accordance with ss 13(2) and 13(3) of the Vexatious Proceedings Act 2008 (NSW)
CIVIL PROCEDURE — stay — application by the defendant to have the proceedings stayed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.4 — whether the making of an order for costs as agreed or assessed gives rise to a liability for costs prior to its quantification — HELD — an order for costs may not take effect until it is quantified but gives rise to a liability to pay costs upon the date the order is made — the proceedings are substantially the same as discontinued proceedings — the proceedings would have been stayed until the costs of discontinued proceedings paid if not dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW)
CIVIL PROCEDURE — stay — application by defendant to have the proceedings stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) — relitigation of claims made in prior proceedings — HELD — proceedings are an abuse of process — the proceedings would have been stayed as an abuse of process if not dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW)
CIVIL PROCEDURE — summary dismissal and strike out — application by defendant to have the proceedings dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4 or alternatively statement of claim struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 14.28 — HELD — proceedings are an abuse of process and no reasonable cause of action disclosed — the proceedings would have been dismissed or statement of claim entirely struck out if not dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW)

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 67
Limitations Act 1969 (NSW), s 55
Vexatious Proceedings Act 2008 (NSW), ss 8, 13
Uniform Civil Procedure Rules 2005 (NSW), rr 12.4, 13.4, 14.28, 46.4

Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Agius v New South Wales [2001] NSWCA 371
Agusta Pty Ltd & ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685
Agusta Pty Ltd and Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella (Unreported, 28 August 2009, Nicholas J)
Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129
Bank of Western Australia v Ocean Trawlers (1995) 16 ACSR 501
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Bateman v Newhaven Part Stud Ltd (2004) 207 ALR 406
Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27
Caroline Chamoun v Gemi Nominees Pty Limited [2025] NSWSC 1300
CGU Insurance Ltd v Watson (as trustee of the deed of arrangement in respect of Greaves) [2007] NSWCA 301
Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989)
Dickens v State of New South Wales (No 3) [2018] NSWSC 485
Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619
Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508
Ferella v Official Trustee in Bankruptcy (No 2) [2018] FCA 18
Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712
Ferella v Official Trustee in Bankruptcy (No 5) [2015] FCA 983
Ferella v Official Trustee in Bankruptcy [2010] FCA 766
Ferella v Official Trustee in Bankruptcy [2013] FCA 1319
Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Ferella v Official Trustee in Bankruptcy [2016] FCA 1270
Ferella v Official Trustee in Bankruptcy [2016] FCA 1297
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490; [1916] HCA 81
GR v Secretary, Department of Communities and Justice [2023] NSWCA 239
Gulic v Boral Transport Ltd [2016] NSWCA 269
Haigh v Haddad [2025] NSWCA 28
Herbert v American Express Australia Limited [2018] FCA 1790
In the matter of Tetbury Pty Ltd [2017] NSWSC 37
Karam v Palmone Shoes Pty Ltd [2012] VSCA 97
Knorr v CSIRO (No 3) [2012] VSC 529
Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94
Kronenberg v Macaulay [2025] NSWCA 195
Martin v Beauchamp (1883) 25 Ch D 12
McCabe v Bank of Ireland (1889) 14 App Cas 413 McGuirk v The University of New South Wales [2009] NSWSC 1424 New South Wales v Plaintiff A [2012] NSWCA 248 Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep) Pi v Zhou [2016] NSWCA 148 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 Re Boart Longyear Ltd (No 2) (2017) 323 FLR 241; [2017] NSWSC 1105 Re Elgar Heights Pty Ltd [1985] VR 657 Re Payne (1883) 23 Ch D 288 Riva NSW Pty Limited v Official Trustee in Bankruptcy [2023] NSWCA 235 Riva NSW Pty Limited v The Official Trustee in Bankruptcy [2023] NSWSC 1323 Riva NSW Pty Limited v The Official Trustee in Bankruptcy; The Official Trustee in Bankruptcy v Ferella [2022] NSWSC 153 Riva NSW Pty Ltd v Key Nominees [2023] NSWSC 711 Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] HCASL 389 Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] NSWCA 186 Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2023] NSWSC 896 Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2019] NSWSC 49 Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Texts Cited: Ritchie’s Uniform Civil Procedure NSW (LexisNexis, looseleaf)

Category: Principal judgment

Parties: Romulus Remus Group Pty Limited (Plaintiff)
The Official Trustee in Bankruptcy (Defendant)

Representation: Counsel:
B Ng (Defendant/Applicant)
A E Maroya (Plaintiff/Respondent)
Solicitors:
MinterEllison (Defendant/Applicant)

File Number(s): 2025/00192295

Publication restriction: Nil

JUDGMENT

INTRODUCTION

1. These proceedings are the latest iteration of an extensive history of litigation since 2006, principally in this court and the Federal Court of Australia, variously brought by the late Gustavo Ferella and his son Angelo Ferella, Nida Ferella (the widow of Gustavo and the mother of Angelo), Riva NSW Pty Ltd (the former trustee of the Cavallino Unit Trust) and Romulus Remus Group Pty Ltd (the current trustee of the Trust) against the Official Trustee in Bankruptcy.

2. For convenience and with no disrespect intended, I will refer to Gustavo, Angelo and Nida by their given names.

3. The central dispute relates to the administration of a property in Point Piper (Point Piper Property) upon the bankruptcies of Gustavo and Angelo in October 2005 and the subsequent conduct of the Official Trustee.

4. Romulus, in its capacity as trustee of the Trust, filed the statement of claim commencing these proceedings (2025 SOC) in which it seeks various forms of declaratory and compensatory relief against the Official Trustee arising from allegations of breach of trust, conspiracy to defraud, slander of title and malice. The thrust of the 2025 SOC centres on the essential complaint by Gustavo and Angelo that by the Official Trustee lodging caveats and making certain alleged representations it caused Provident Capital Limited to decline to refinance borrowings secured over the Point Piper Property.

5. The issues I must determine are whether I should make orders sought by the Official Trustee that these proceedings be dismissed or stayed or, alternatively, that the 2025 SOC be struck out.

6. I have determined that:

7. Romulus’ failure to obtain leave to commence these proceedings has contravened s 13(1)(b) of the Vexatious Proceedings Act 2008 (NSW) (VP A****ct) because Romulus was acting in concert with Angelo and, by reason of ss 13(2) and 13(3) of the VP Act, the proceedings are taken to have been stayed when they were instituted and dismissed 28 days after they were instituted.

8. If I am wrong to conclude that the proceedings are taken to have been stayed and dismissed under the VP Act, I would have:

(a) stayed the proceedings under r 12.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) until the costs of the earlier discontinued proceedings brought by Romulus against the Official Trustee had been paid by Romulus; and (b) permanently stayed the proceedings under s 67 of the Civil Procedure Act 2005 (NSW) (CPA), summarily dismissed the proceedings under r 13.4 of the UCPR as an abuse of process or struck out the 2025 SOC in its entirety under r 14.28 of the UCPR.

RELEVANT FACTS

Riva, Romulus and the power of attorney in favour of Angelo

7. Riva was registered on 19 April 2005, and the current sole director and secretary is Angelo, who was appointed on 13 June 2020. Nida has previously been a director of Riva, from 19 April 2005 to 24 February 2006 and on 21 February 2013. The daughter of Nida, who is the sister of Angelo, Tiziana Ferella, has also been a previous director of Riva, from 7 February 2006 to 21 February 2013 and from 1 March 2013 to 30 June 2021.

8. Romulus was registered on 5 February 2024, and the current and sole director of Romulus is Nida. Nida is also a secretary of Romulus alongside Tiziana

9. Since 20 June 2012, Angelo has held a power of attorney for Nida. This was observed in Ferella v Official Trustee in Bankruptcy [2013] FCA 1319 by Jacobson J at [3]:

Mr Angelo Ferella is not an applicant in the proceeding. Nor is he a director or shareholder of the second applicant. However, he has been actively involved in the conduct of the proceeding, at very least, on behalf of his mother, Mrs Nida Ferella, who is the first applicant in the proceeding and for whom Mr Angelo Ferella holds a power of attorney. …

10. Angelo confirmed that he retains the power of attorney for Nida in his affidavit sworn 4 September 2025 in these proceedings, stating at [1]:

I am duly authorised to swear this affidavit for and on behalf of the sole Director and secretary of the plaintiff appointed on 5 February 2024, Nida Ferella (‘my mother’) and as the donee of a Power of Attorney given to me on 20 June 2012. …

11. The power of attorney made by Nida was in evidence before me. It appointed Angelo to be her attorney, operated immediately and was not subject to any conditions or limitations.

12. The addresses of Riva, Romulus, Angelo, Nida and Tiziana are all the same.

Summary of central facts

13. The facts relevant to this dispute have been explained in great detail in several previous judgments in the determination of related proceedings.

14. Most recently, the Court of Appeal (Adamson JA, Simpson and Basten AJJA) set out the following concise summary of the central facts in Riva NSW Pty Limited v Official Trustee in Bankruptcy [2023] NSWCA 235 at [4]–[8]:

[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].

2 The defendant, and [Riva], pay the plaintiff’s costs as agreed or assessed.

15. In short, on 4 March 2022, Kunc J made a vexatious proceedings order against Angelo under s 8(7)(b) of the VP Act to prohibit him from bringing proceedings against the Official Trustee in his own name, Gustavo’s name and Riva’s name (Angelo VP Order). On the same date, Kunc J also made a finding that Riva was also a person within the meaning of s 8(1)(a) of the VP Act because it has frequently instituted or conducted vexatious proceedings (at [113]).

16. Further events must be added to this summary as outlined below.

Long history of litigation and judgments

17. The proceedings involving Gustavo, Angelo, Nida, Tiziana, Agusta Pty Ltd, Riva and Romulus against the Official Trustee related to the same dispute as these proceedings and the various judgments which have been delivered are as follows:

18. Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685 (Nicholas J) (Nicholas J Agusta Judgment).

19. Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 (Beazley, Tobias and Macfarlan JJA).

20. Agusta Pty Ltd and Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella (Unreported, 28 August 2009, Nicholas J).

21. Ferella v Official Trustee in Bankruptcy [2010] FCA 766 (Yates J).

22. Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619 (Yates J).

23. Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43 (Dowsett, Foster and Nicholas JJ).

24. Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712 (Yates J).

25. Ferella v Official Trustee in Bankruptcy (No 5) [2015] FCA 983 (Yates J).

26. Ferella v Official Trustee in Bankruptcy [2016] FCA 1297 (Nicholas J).

27. Proceedings in the District Court of New South Wales (123875/2011), which were discontinued on or about 9 September 2011.

28. Ferella v Official Trustee in Bankruptcy [2013] FCA 1319 (Jacobson J).

29. Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508 (Gleeson J).

30. Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 (Bergin CJ in Eq, Tobias and Emmett AJJA).

31. Riva NSW Pty Ltd v The Official Trustee in Bankruptcy (2015/00199962), heard by Rein J in this court before consent orders were made to transfer the proceedings to the Federal Court of Australia.

2024 Romulus Proceedings

19. On 21 June 2024, Romulus commenced proceedings 2024/00229388 in this court against the Official Trustee (2024 Romulus Proceedings) by statement of claim. Romulus did so in its capacity as trustee of the Trust, having replaced Riva as trustee of the Trust on 5 February 2024.

20. On 16 August 2024, the Official Trustee filed a notice of motion seeking to summarily dismiss the 2024 Romulus Proceedings. The 2024 Romulus Proceedings were then discontinued pursuant to a notice of discontinuance signed on 23 September 2024 in the following terms:

Consent to the proceedings being discontinued is given on the following terms:

1 The defendants notice of motion of 16 August 2024 be dismissed.

2 The Plaintiff pay the Defendant’s costs of these proceedings as agreed or assessed.

3 The discontinuance of these proceedings referred to in the preceding paragraph is done upon the terms of the plaintiff shall be at liberty to file fresh proceedings, in such form as it may be advised.

Commencement of these proceedings

21. On 6 May 2025, Romulus commenced these proceedings against the Official Trustee by filing the 2025 SOC. The 2025 SOC is verified by an affidavit sworn by Tiziana.

Offer to Romulus to pay costs of the Discontinued Proceedings

22. On 20 June 2025, the solicitors for the Official Trustee, MinterEllison, sent a letter to Romulus proposing that the costs payable under the costs order made as part of the terms of the discontinuance of the 2024 Romulus Proceedings be agreed in the amount of $18,000 (inclusive of GST), failing which the Official Trustee may trigger the cost assessment procedure. Romulus has not responded to that letter.

The 26 March 2009 Email

23. A document which assumed some importance on the application is an email dated 26 March 2009 from Mark Findlay, Director of Bankruptcy Regulation for the Central Region of Insolvency and Trustee Service Australia (ITSA) (the former name of the Australian Financial Security Authority) to Angelo (26 March 2009 Email) in response to an email dated 12 February 2009 from Angelo, which refers to the inspection of the Official Trustee’s file and relevantly states:

From my inspection of the file, from the start, the Official Trustee was being pressed to claim the trust funds from the sale of the Point Piper property as property in the bankrupt estate by the petitioning creditor. The Official Trustee appears to have acted in accordance with legal advice at all times. I do not intend addressing your remarks about the standard of legal representation of the Official Trustee. At this stage the records shows that the representation has been successful for the Official Trustee in that the Court found in favour of the Official Trustee.

24. Romulus asserts that the 26 March 2009 Email is “new evidence” on which it wishes to rely in these proceedings, contending that it was discovered in December 2021 after it had previously been concealed due to a malware breach.

25. The Official Trustee contests the assertion that the 26 March 2009 Email is new evidence.

26. I have dealt with this issue in detail below.

Analysis of similarities in allegations and relief sought in 2025 SOC and statements of claim in related proceedings

27. There are strong similarities in the allegations and relief sought by Romulus in these proceedings when compared to certain prior proceedings variously brought by Riva, Angelo, Gustavo and Romulus, being:

28. the 2015 Riva Proceedings;

29. the 2018 Riva Proceedings;

30. the 2020 Riva & Ferella Proceedings;

31. the 2020 Riva Proceedings; and

32. the 2024 Romulus Proceedings.

33. To demonstrate this, the Official Trustee produced an aide memoire in the form of a lengthy table covering 31 pages that set out a detailed comparison of the following statements of claim:

34. the statement of claim filed on 8 July 2015 (2015 S****OC) in the 2015 Riva Proceedings;

35. the statement of claim filed on 2 March 2018 (2018 SOC) in the 2018 Riva Proceedings;

36. the statement of claim filed on 18 February 2021 (2021 SOC) in the Riva & Ferella Proceedings;

37. the proposed amended statement of claim dated 7 February 2022 (proposed 2022 ASOC) in the 2020 Riva Proceedings;

38. the proposed amended statement of claim dated 24 April 2023 (proposed 2023 A****SOC) in the 2020 Riva Proceedings;

39. the statement of claim filed on 21 June 2024 (2024 S****OC) in the 2024 Romulus Proceedings; and

40. the 2025 SOC in these proceedings.

41. Save for the 2024 SOC in the 2024 Romulus Proceedings and the 2025 SOC in these proceedings, each of these statements of claim have been considered in prior judgments. The 2015 SOC was the subject of the Perry J Riva Judgment. The 2018 SOC was the subject of the Pembroke J Riva Judgment. The 2021 SOC was the subject of the Kunc J Riva Judgment. The proposed 2022 ASOC and the proposed 2023 ASOC were the subject of the Slattery J Riva Judgment.

42. The table in the aide memoire sets out a side-by-side comparison of the statements of claim in each of those proceedings, which exposed the evident similarities between the allegations and the relief which is sought in each of them.

43. In the Slattery J Riva Judgment at [26], Slattery J summarised the proposed 2023 ASOC in the 2020 Riva Proceedings as follows:

[26] The pleadings and particulars in the [2023] Amended Statement of Claim supporting the relief plead facts that substantially reproduce 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) 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.

32. In the Slattery J Riva Judgment at [27], the proposed 2023 ASOC was described as “manifestly embarrassing in multiple ways”, “so obscure in places that no proceeding could be conducted in this Court based on this pleading in a manner consistent with the Court’s objective” and that it was “not a pleading which is capable of amendment, to plead recognisable and maintainable causes of action or claims for relief”.

33. Further, the defects identified by Slattery J at [32]–[34] remain in the 2025 SOC:

[32] 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 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.

[33] Fourthly, a clear distinction is not drawn in the pleading between misleading conduct which is alleged to have taken 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.

[34] 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.

34. The integrity of the Slattery J Riva Judgment can be added as the target of an indirect challenge by the 2025 SOC, which has been amended to include the following at paragraph 32(d):

[32] … (d) … On 3 November 2023 Slattery J, dismissing the proceedings, the findings grossly infected, misleading and erroneous, Slattery J failed to take into account, the favourable findings and concessions of the court of appeal …

35. Attached as the A****nnexure to this judgment is a table which compares the changes which occurred between the proposed 2022 ASOC, the proposed 2023 ASOC, the 2024 SOC and the 2025 SOC. Different colours denote the changes as they were made between each version of those statements of claim.

36. It is useful to consider the similarities and changes between the proposed 2023 ASOC in the 2020 Riva Proceedings and the 2025 SOC because upon a close analysis it becomes clear that the pleading issues and flaws identified in the Slattery J Riva Judgment remain and that the amendments which have occurred only raise yet further pleading issues. Using the paragraph numbers in the proposed 2023 ASOC, those changes appearing in the 2025 SOC are as follows:

37. Paragraphs 1**–**12: There have been no material amendments made between the proposed 2023 ASOC and the 2025 SOC.

38. Paragraphs 13**–**18: The only amendments made between the proposed 2023 ASOC and the 2025 SOC are the addition of a further particular of the “mortgage documents from Provident to Agusta Pty Ltd of 28 February 2006” in [16] of the 2025 SOC and a further allegation in [17] of the 2025 SOC that the Official Trustee had no “lawful basis” to, and was “sitting in the shoes of Riva” when it did, decline to permit the transfer of the legal title of the Point Piper Property to Agusta.

39. Paragraphs 19**–**20: The only amendment between the 2023 SOC and the 2025 SOC is the specification in [19] that the representations were “wilful actual fraudulent representations” as part of “a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage”. This phrase has been added to several paragraphs throughout the SOC.

40. Paragraphs 21**–**22: The allegation in [21] of the proposed 2023 ASOC that the Official Trustee was a constructive trustee for Riva of the Point Piper Property is no longer pressed in the 2025 SOC. A new allegation is advanced in [21] of the 2025 SOC that the Official Trustee was under an equitable duty and obligation to Riva and in [22] of the proposed 2023 ASOC that the Official Trustee breached these obligations by way of “a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage”. The paragraphs otherwise remain unchanged. The allegations in [22] of the proposed 2023 ASOC relating to the Official Trustee’s alleged knowledge and evidence of the misrepresentation have been amended in the form of [23] of the 2025 SOC. Romulus now contends in the 2025 SOC that the Official Trustee conceded that the misrepresentation was made and that responsibility for that misrepresentation also extended to the Official Trustee’s legal representatives. This is said to be supported by the 26 March 2009 Email.

[30(c)] The proceedings referred to at [30(b)] above [the 2008 Agusta Proceedings] were limited to a claim made by the trustee of the Trust for the return of the surplus proceeds of sale of the Point Piper land held unlawfully by the defendant, further, findings of who is the Trustee and the existence of the Trust, further to, the ownership of the Point Piper land. In the eleventh hour the defendant proceeded with an application claiming a lien over those monies as trustee in the bankrupt estates of Gustavo and Angelo, engaged in actual fraud in doing so, the defendant succeeded in obtaining an erroneous order regarding its lien argument before Nicholas J on 8 July 2008. The trustee of the Trust commenced an appeal to the court of appeal on 25 July 2008, proceedings No 40326/08 and successfully succeeded in having the adverse orders regarding the lien argument made on 8 July 2008 set aside. On 7 May 2009 the court of appeal made orders for the defendant to return the proceeds of sale of the Point Piper land with interest, further, ordered to pay the costs of the appeal and the proceedings below which also included the defendants cross appeal after it was discovered at hearing before Beazley JA, Tobias JA and Macfarlan JA made comment across the bench to Counsel Stephen Golledge, for the defendant: “will a tax liability arise in respect of your lien argument”. Counsel Stephen Golledge replied, “no, a tax liability will not arise”, that evidence withheld was obtained by the defendant on 16 July 2008 from the Australian Taxation Office and predicated on the letter obtained at first instance from the Australian Taxation Office on 7 May 2008 claiming the tax liability after the defendant made application to the Australian Taxation Office with regard to a misleading tax liability in the bankrupt estates of Gustavo and Angelo, ultimately withdrawn by the Australian taxation Office …”.

[30(d)] Federal Court of Australia s.179 Inquiry

Gustavo and Angelo “not the trustee of the Trust” on 11 November 2009 commenced proceedings in the federal court of Australia, proceedings No. NSD 1284/2009 seeking orders for an inquiry into the actual fraudulent conduct of the defendant in relation to the administration of the bankrupt estates of Gustavo and Angelo, the order granted on 6 June 2011. There were many applications, interlocutory applications and judgments which included the defendants own interlocutory applications in reply to avoid an inquiry before the court prior to the order of Yates J being granted. Amongst other orders sought, an order the defendant engaged in preventing the course of justice, with deliberate intent the wilful withholding of evidence in proceedings 4820/06 of the Supreme Court of New South Wales, predicated on the erroneous order obtained on 8 July 2008 in respect of the lien argument before Nicholas J. On 14 July 2015, Yates J made at finding that the defendant was guilty of withholding of evidence, further ordered the defendant to pay costs. The adverse findings of the Ferellas of Yates J, grossly infected, misleading and erroneous. Any further proceedings commenced in the federal court of Australia and the federal circuit court of Australia regarding annulment applications and other applications to recover third party monies to annul the former bankruptcy of Gustavo and Angelo are irrelevant to these proceedings.

6. Paragraph 29: No material amendment has been made to [29] of the proposed 2023 ASOC compared to what is now [31] in the 2025 SOC.
7. Paragraph 30: The only material amendment to what was [30] in the proposed 2023 ASOC and is [32] in the 2025 SOC is the addition of the following excerpt:

[32] … (e) A summons seeking leave to appeal was filed in the Court of Appeal on 15 June 2022 (2022/00078376) appealing from the grossly infected and erroneous decision of Kunc J below in proceedings No. (2020/00206189) made on 22 February 2022, [2022] NSW SC 153, predicated on the statement of claim of 18 February 2021 which was no longer the prevailing claim where leave to file the amended statement of claim granted on 27 January 2022 was thereafter denied. On 5 October 2023, Adamson JA, Simpson AJA and Basten AJA of the Court of Appeal refused leave to appeal. The findings grossly infected, misleading and erroneous, the grossly infected and erroneous orders of the court below in proceedings No. 2020/0020689 before Kunc J were predicated on the statement of claim which was no longer the prevailing claim, however Adamson JA conceded at hearing of 22 September 2023 the amended statement of claim was a new claim in support of the many new pleadings, the findings on a separate application of the defendant, Kunc J made order, Angelo Ferella is declared a vexatious litigant, not “Riva”, the order made by Kunc J below, now grossly infected and erroneous. Riva further relies on the oral concessions of Senior Counsel, Terence Lynch of the defendant conceding the amended statement of claim Riva was prevented of filing in the Court below, in proceedings No. 2020/00206189 was a new claim. The plaintiff now relies on two favourable concessions of the Court of Appeal where Riva was prevented from prosecuting its new claim which also includes the 2019 proceedings before Bell P and Emmett AJA conceding the statement of claim filed in the 2018 proceedings was a new claim, referring to the 2015 proceedings.

(f) Riva is not prevented from commencing fresh proceedings against the defendant, further has not been declared a vexatious litigant, Riva on 2 June 2023 commenced proceedings by notice of motion in support of the amended statement of claim “known as then” referred to at paragraph 32(e) above, proceedings No. 2020/00206189. On 27 July 2023 Black J, dismissing the proceedings, on procedural grounds. Riva on 28 August 2023 commenced further proceedings by notice of motion, proceedings No. 2020/00206189. On 3 November 2023 Slattery J, dismissing the proceedings, the findings grossly infected, misleading and erroneous, Slattery J failed to take into account, the favourable findings and concessions of the court of appeal referred to at paragraph 32 (c), (e) above (a) below, where the amended statement of claim known as then contains many new pleadings, at least 10 of, failed to consider the decision in UBS AG v Tyne (2018) 360 ALR 184; [2018] HCA 45) now law, further to, the new decision in Seedo v El Gamal and others [2023] EWCA Civ 330, the new evidence referred to at paragraph 30, the limitations act 1969-section 55 (Fraud and Deceit), the decision in The High Court of Australia in Hawkins v Clayton (1988) Aust Torts Reports 80-163; [1988] 164 CLR 539, that where wrongful conduct of the defendant has the effect of preventing the institution of proceedings against the defendant, the commencement of the limitation period is suspended for as long as the prevention continues.

8. Paragraphs 31**–**34: The allegations in the proposed 2023 ASOC at [31] are substantially replicated in [35] of the 2025 SOC. Otherwise, [32], [33] and [34] do not appear in the 2025 SOC.
9. The only material amendment to the remainder of the 2025 SOC compared to the content of the proposed 2023 ASOC is the addition of emphasis that each relevant breach alleged to be carried out was done so “in a manner of a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage” (at [36], [37], [38], [39] and [42]).
10. The relief sought in the 2025 SOC has been amended compared to that sought in the proposed 2023 ASOC to remove a request for punitive damages and a declaration that the Official Trustee was fraudulent and unconscionable in all the circumstances, but the balance of the relief sought in the proposed 2023 ASOC remains in the 2025 SOC. The following additional relief is sought in the 2025 SOC:

(1) A declaration that the defendant from the outset (from 1 November 2005) made wilful fraudulent representations, carried out in a manner of a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage, engaged in actual fraud.

(2) A declaration that the defendant from the outset (from 1 November 2005) was aware that the land (“the land”) comprised in folio identifier 2/389502 known as 1 Wingadal Place, Point Piper, was not beneficially held by Gustavo and Angelo, continued to hold out and proceed on the basis that it was beneficially held.

(3) A declaration that the defendant from the outset (1 November 2005) was under an equitable duty and obligation to Riva to the title to the land in folio identifier 2/389502.

(4) A declaration that the defendant from the outset made wilful, actual fraudulent representations to Key Nominees Pty Ltd, further to the incoming financier Provident Capital Limited sitting in the shoes of Riva as an authorised representative, without consent, taking control, making adverse decisions, causing harm, loss and damage.

…

(9) An order that the operation of the Limitations Act 1969 (section 55) be suspended from 3 March 2006 to December 2021).

…

(15) Equitable damages and compensation occasioned by the sale of the land by Key on 1 June 2006.

37. Apart from the addition of the new allegations and new relief sought in the 2025 SOC which are outlined above, the allegations and relief sought in the 2024 SOC in the 2024 Romulus Proceedings are substantially the same as the allegations and relief sought in the 2025 SOC. This is demonstrated in the Annexure, where the changes between 2024 SOC and the 2025 SOC are highlighted.

38. It is abundantly clear that the changes which appear in the 2025 SOC from the 2024 SOC are not material in any way and demonstrate a failure by Romulus to accept the judicial determinations which have come before in multiple proceedings. The complete form of [32] of the 2025 SOC is the grandest example of this flaw:

(a) Riva commenced proceedings similar, but not identical, to the present new proceedings which were commenced in this Court on 8 July 2015 (2015/99962). By consent those proceedings were transferred to the Federal Court of Australia (and became NSD 1391/2015). On 3 March 2017 Perry J gave judgment in [2017] FCA 188, in which the transferred proceedings in NSD 1391/2015 were summarily dismissed under s.31.A of the Federal Court Act. The adverse findings of Riva of Perry J, grossly infected and erroneous. (b) Similarly, but not identical, to the present new proceedings on 2 March 2018 further proceedings were commenced in this Court (2018/69230). By notice of motion filed on 6 July 2018 the defendant sought, inter alia, the dismissal of the proceedings. On 7 February 2019 Pembroke J, dismissing the proceedings, Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2019] NSWSC 49. The adverse findings of Riva of Pembroke J, grossly infected and erroneous. (c) A summons seeking leave to appeal was filed on 7 May 2019 in the Court of Appeal (2019/72651). On 31 July 2019 Bell P and Emmett AJA of the Court of Appeal refused leave to appeal, however, at [31] of the decision conceding it may well be reasonably arguable that the formulation of Riva's claim in its statement of claim in the proceedings is different from the claim made in the 2015 proceedings, Riva NSW Pty Limited v Official Trustee in Bankruptcy [2019] NSWCA 186. The adverse findings of Riva of Bell P and Emmett AJA, grossly infected and erroneous. (d) An application for special leave was filed in the High Court of Australia on 28 August 2019 (S259/2019). On 4 December 2019 M.M Gordon and J.J Edelman of the High Court of Australia refused leave to appeal. The adverse findings of Riva of M.M Gordon and J.J Edelman, grossly infected and erroneous. (e) A summons seeking Leave to appeal was filed in the Court of Appeal on 15 June 2022 (2022/000 78376) appealing from the grossly infected and erroneous decision of Kunc J below in proceedings No. (2020/00206189) made on 22 February 2022, [2022] NSW SC 153, predicated on the statement of claim of 18 February 2021 which was no longer the prevailing claim where leave to file the amended statement of claim granted on 27 January 2022 was thereafter denied. On 5 October 2023, Adamson JA, Simpson AJA and Basten AJA of the Court of Appeal refused leave to appeal. The findings grossly infected, misleading and erroneous, the grossly infected and erroneous orders of the court below in proceedings No. 2020/0020689 before Kunc J were predicated on the statement of claim which was no longer the prevailing claim, however Adamson JA conceded at hearing of 22 September 2023 the amended statement of claim was a new claim in support of the many new pleadings, the findings on a separate application of the defendant, Kunc J made order, Angelo Ferella is declared a vexatious litigant, not “Riva”, the order made by Kunc J below, now grossly infected and erroneous. Riva further relies on the oral concessions of Senior Counsel, Terence Lynch of the defendant conceding the amended statement of claim Riva was prevented of filing in the Court below, in proceedings No. 2020/00206189 was a new claim. The plaintiff now relies on two favourable concessions of the Court of Appeal where Riva was prevented from prosecuting its new claim which also includes the 2019 proceedings before Bell P and Emmett AJA conceding the statement of claim filed in the 2018 proceedings was a new claim, referring to the 2015 proceedings. (f) Riva is not prevented from commencing fresh proceedings against the defendant, further has not been declared a vexatious litigant, Riva on 2 June 2023 commenced proceedings by notice of motion in support of the amended statement of claim “known as then” referred to at paragraph 32(e) above, proceedings No. 2020/00206189. On 27 July 2023 Black J, dismissing the proceedings, on procedural grounds. Riva on 28 August 2023 commenced further proceedings by notice of motion, proceedings No. 2020/00206189. On 3 November 2023 Slattery J, dismissing the proceedings, the findings grossly infected, misleading and erroneous, Slattery J failed to take into account, the favourable findings and concessions of the court of appeal referred to at paragraph 32 (c), (e) above and (a) below, where the amended statement of claim known as then contains many new pleadings, at least 10 of, failed to consider the decision in

Particulars

(Concessions)

(a) On 22 September 2023 at hearing, Adamson JA of the Court of Appeal made a concession conceding the amended statement of claim “known as then” was “similar” to the previous version, and thus, a new claim having regard to the new pleadings, similarly, Senior Counsel, Terrence Lynch of the respondent also made concession conceding the amended statement of claim was a new claim and referred to at particulars of proceedings at paragraph 32(e) above.

Claims made and relief sought in the 2025 SOC which have already been determined

39. The 2025 SOC seeks to reagitate several claims and forms of relief which have already been the subject of adverse judicial determination in earlier related proceedings.

40. Much of the 2025 SOC proceeds on the basis described at [6] of the 2025 SOC:

The land, not being part of the property of Gustavo and Angelo, did not vest in the defendant upon the bankruptcy of Gustavo and Angelo and at all times up until sold by Key Nominees (with the consent of the defendant) was the property of Riva in its capacity as trustee of the Trust.

41. The contrary position has been determined by this court and others on several occasions: see the Nicholas J Agusta Judgment at [32]. This finding has been characterised by this court as “long-settled”: Kunc J Riva Judgment at [91].

42. By prayer one in the 2025 SOC, Romulus seeks a declaration that the Official Trustee made “wilful fraudulent representations, carried out in a manner of a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage, engaged in actual fraud”. In effect, this claim was determined in the Perry J Riva Judgment at [67]:

Secondly, the representations on which the applicants rely do not evince any intention on the part of the Official Trustee to hold the land as trustee for the beneficiaries of the Cavallino Unit Trust…

43. By prayer two in the 2025 SOC, Romulus seeks a declaration that the Official Trustee was “aware that the [Property] was not beneficially held by Gustavo and Angelo, continued to hold out and proceed on the basis that it was beneficially held”. The following findings in the Kunc J Riva Judgment at [89] are particularly pertinent:

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 Doswett, 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.

44. By prayer three of the 2025 SOC, Romulus seeks a declaration that the defendant was under an “equitable duty and obligation to Riva to the title to the land in folio identifier 2/389502”. At [38] of the 2025 SOC, Romulus contends that the Official Trustee acted contrary to two duties: the duty to transfer or cause the transfer of the legal title to the land to Riva or its nominee; and the duty not to interfere with dealings with the land on behalf of Riva including the said proposed refinancing of the land with Provident. There is no description in the 2025 SOC as to how these duties are said to arise, they are simply asserted. The findings made in the Perry J Riva Judgment at [59] are applicable here:

Thirdly, the alleged breaches of duty do not marry with the duties of a trustee in bankruptcy as articulated in Adsett and other authorities. For example, the pleading that the Official Trustee breached his duty by failing to act in accordance with the applicants’ wishes with respect to the land is untenable (cf statement of claim at [28(b)]). Any such obligation would run counter to the duty vested by law in the Official Trustee to administer the estate so as to maximise the return from estate assets for creditors in the first instance and any possible surplus. Equally, there can be no breach in the Official Trustee “preferring its own interests” insofar as this refers to the Official Trustee preferring the interests of the administration of the bankrupt estates over those of the bankrupts and Riva: cf the allegation at [28(e)] of the statement of claim.

45. In any event, the submission that the Official Trustee owed Riva a nondescript “equitable duty and obligation” does not arise above bare assertion and ignores the fact that the Point Piper Property did not vest in the Official Trustee but rather that it obtained an interest in the proceeds of sale in the form of a lien at the time of the bankruptcy of Angelo and Gustavo.

46. Prayers four and five of the 2025 SOC seek declarations that the Official Trustee made fraudulent representations, engaged in fraudulent concealment and in conspiracy to defraud. These matters were determined in the Kunc J Riva Judgment at [94] as follows:

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 submissions.

47. By prayer six of the 2025 SOC, Romulus claims damage for conspiracy to defraud. There has been no material amendment to this claim between the 2025 SOC and the 2023 ASOC. The defects in this pleading were identified in the Slattery J Riva Judgment at [31]:

… 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.

48. By prayers seven and twelve of the 2025 SOC, Romulus claims damages for slander of title. The following findings in the Kunc J Riva Judgment at [97] are equally applicable here:

By prayer four, Riva claims damages for slander of title. No specific pleadings appear for this claim, but it is presumably based on the caveats lodged by the Official Trustee and conversations by the Official Trustee to the same effect. These facts are not new as they appeared in the pleadings before Perry J and Pembroke J. The cause of action for slander of title has been raised despite the fact that Emmett AJA (Bell P agreeing) conclusively stated that “any such claim is clearly barred by the Limitation Act” ([2019] NSWCA 186 at [32]). …

49. By prayers eight of the 2025 SOC, Romulus seeks a declaration that the Official Trustee engaged in malice. This relief is sought on the basis that the Official Trustee was aware from the outset that the statements made asserting the Point Piper Property was beneficially held by Gustavo and Angelo was at all times false. As indicated above, this claim is inconsistent with the conclusion reached in the Nicholas J Agusta Judgment that the Point Piper Property was in fact beneficially held by Gustavo and Angelo at the time of their bankruptcy.

50. By prayer nine of the 2025 SOC, and in connection with the relief sought above, Romulus contends that the operation of s 55 of the Limitations Act 1969 (NSW) ought to be suspended from 3 March 2006 to December 2021. This claim was determined by in the Slattery J Riva Judgment at [35]:

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 supressed 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 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 [J] 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”[.]

51. By prayer ten of the 2025 SOC, Romulus seeks damages for breach of trust. In respect of this relief, the following findings were made in the Kunc J Riva Judgment at [92] and [100]:

[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 pleading 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]).

…

[100] By prayer six, Riva claims damages for breach of trust. This was previously raised before Perry J and Pembroke J. While it appears that Riva has cured some of the defects in its pleadings identified by Perry J which conflated the position of Riva and Angelo (at [57]), this does not undermine the overall conclusions drawn by her Honour that the claim was “misconceived” and “untenable” (at [56]-[57]).

52. By prayers eleven, twelve, thirteen, fourteen and fifteen of the 2025 SOC, Romulus seeks damages for conspiracy to defraud, slander of title, consequential damages and equitable damages and compensation. Given the court’s conclusions in the preceding paragraphs, there is no basis on which to grant this relief.

53. It is therefore clear that the matters raised in the 2025 SOC are an attempt to relitigate issues which have already been determined in earlier proceedings. The observations in the Kunc J Riva Judgment at [90] are similarly applicable to this case:

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.

Is reliance on the 26 March 2009 Email “new evidence”?

54. Romulus submits that the 26 March 2009 Email makes clear that the petitioning creditor was urging upon the Official Trustee the view that at least the surplus funds were not vested in any trust but remained vested in the natural persons bankrupted. Accordingly, Romulus alleges that the insistence that was being urged by Angelo and Gustavo upon the Official Trustee was that the Point Piper Property had vested in the Trust and that those pleas were ignored. On this basis, Romulus contends that the 26 March 2009 Email is relevant to the assessment of the probability of the sequence of facts which [30] of the 2025 SOC seeks to establish. Further, and to the extent of disagreement, Romulus contends that the ultimate connotation of the 26 March 2009 Email and the bearing it has on the whole of the evidence is a matter for the court to decide, seized of all the facts. For these reasons, Romulus submits that it should be permitted to conduct that case.

55. The Official Trustee contends that the 26 March 2009 Email does not constitute fresh evidence and advances three arguments in support of its position.

56. First, the Official Trustee claims that the 26 March 2009 Email is not new and was mentioned in:

57. [29] of the proposed 2022 ASOC in support of an allegation of fraud:

… further new evidence received from the Bankruptcy Regulator discovered in December 2021.

2. the “Particulars (of New Evidence)” to [29] of the proposed 2023 ASOC:

… the documents of the findings of an inquiry of the Bankruptcy Regulator discovered in December 2021.

3. the “Particulars (New Evidence)” to [28(a)] of the 2024 SOC:

The affirmed findings of an inquiry undertaken by the Director of Bankruptcy Regulation, Central Region discovered in December 2021, confirming from the outset counsel Stephen Golledge, Solicitor Sally Nash, Phillip Madden and Sally Jane Wooderson officers of the defendant conceded the Trustee and the Trust, further, the Point Piper land is the property of the Trust, further to, the residue monies of the forced sale on 1 June 2005 is the property of the Trust. The evidence retrieved from a corrupted computer sustaining an infection from a malware breach to data.

4. the “Particulars (New Evidence)” to [30] of the 2025 SOC:

The affirmed findings of an inquiry undertaken by the Director of Bankruptcy Regulation, Central Region discovered in December 2021, confirming from the outset Counsel Stephen Golledge, Solicitor Sally Nash, Phillip Madden and Sally Jane Wooderson officers of the defendant on 1 November 2005 conceded the Trustee and the Trust, further, the Point Piper land is the property of the Trust, further to, the residue monies of the forced sale on 1 June 2006 is the property of the Trust. The evidence retrieved from a corrupted computer sustaining an infection from a malware breach to data.

57. The Official Trustee contends that the 26 March 2009 Email is not fresh evidence and has been the subject of previous pleadings as early as 2022.

58. Secondly, the Official Trustee submits that Romulus has provided no explanation as to the delay in bringing the purportedly new claim in the 2025 SOC in circumstances where the new evidence had been discovered in December 2021.

59. Thirdly, the Official Trustee submits that the portion of the 26 March 2009 Email relied upon does not substantiate the purported new claim because Mr Findlay does not confirm nor concede that the Point Piper Property was the property of the Trust in the 26 March 2009 Email. Rather, it is contended that Mr Findlay conveyed to Angelo the fact that the petitioning creditor had been pressing the Official Trustee to claim the trust funds from the sale of the Point Piper Property as property in the bankrupt estate. The Official Trustee suggests that these formed part of the following findings made in the Nicholas J Agusta Judgment at [32]:

As for the issue of vesting, there was no evidence before the Court which demonstrated that the Ferellas had taken any action to cause the property to be vested in Riva in compliance with cl 15(d) trust deed. In my assessment, the weight of the evidence was very much to the contrary. Significantly, the Ferellas remained the registered proprietors of the property until the time of its sale. Nothing in the evidence indicated that before their bankruptcy the Ferellas ever turned their minds to performance of the obligation to comply with cl 15(d). It follows, in my opinion, that the assets of the trust remained vested in the Ferellas at the time of their bankruptcy.

60. In reply, Romulus contends that the fact the 26 March 2009 Email was mentioned in the particulars contained in a proposed 2022 SOC does not prevent it from being relied upon as new evidence in the 2025 SOC. On this, Romulus submits that the novelty of [30] of the 2025 SOC can be inferred by the fact that the issues relating to the 26 March 2009 Email have not yet been ventilated at trial as neither the proposed 2022 ASOC nor the proposed 2023 ASOC became the subject at trial because leave was not granted for the proceedings to continue.

61. In further reply, Romulus submits that the court, in conducting its assessment as to whether [30] of the 2025 SOC has the character contended for by Romulus, should take the allegations in the 2025 SOC at their hypothetical highest in order to assess the viability of the proceedings. However, Romulus suggests that it is not possible for the court to conduct that exercise in the abstract nor at this liminal stage. On this basis, it is argued that the present application is not the sort of interlocutory proceeding in which the court, faced with a factual dispute involving arguments concerning the nuances of the 26 March 2009 Email, will be able to solve and instead it should be permitted to run its course to trial.

62. In my mind, the 26 March 2009 Email cannot have the import which Romulus seeks to suggest that it does for the following reasons:

63. It has been raised in previous pleadings (the proposed 2022 ASOC and the proposed 2023 ASOC) which were rejected by the court in the Slattery J Riva Judgment.

64. The position stated in the 26 March 2009 Email — “from the start, the Official Trustee was being pressed to claim the trust funds from the sale of the Point Piper property as property in the bankrupt estate by the petitioning creditor” — is exactly as it was found to be in the Nicholas J Agusta Judgment at [32].

65. Romulus failed to explain how the reference to the 26 March 2009 Email in the 2025 SOC was any different from what had come before by way of “new evidence”.

ISSUE 1: DISMISSAL UNDER SECTION 13 OF THE VP ACT

63. During the preparation of this judgment, it came to my attention that ss 13(1)(b), 13(2) and 13(3) of the VP Act may have an automatic operation in circumstances where the person instituting the proceedings is acting in concert with a person who has been declared a vexatious litigant under s 8(7)(b) of the VP Act and has not been granted leave under s 16 of the VP Act.

64. Consequently, on 4 March 2026 I invited the parties to provide written submissions to my chambers in relation to whether these provisions have any operation in these proceedings and, if so, the consequence of their operation. On 11 March 2026, the parties each provided submissions to my chambers on this issue.

Legal principles

65. Section 13 of the VP Act provides as follows:

13 Contravention of vexatious proceedings order prohibiting institution of proceedings

(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 sooner dismissed under subsection (4).

(4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which proceedings are instituted, may make –

(a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and

(b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and

(c) any other order in relation to the proceedings that it considers appropriate, including an order for costs.

(5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4).

(6) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court or the court or tribunal in which the proceedings are instituted.

66. The automatic operation of s 13 was described by Black J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2023] NSWSC 896 at [17]–[19] in the following terms:

[17] The scope of s 13 of the Act has been addressed in the case law. In Nina Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 86 (Zepinic 1), Robb J considered the scope of that section, where Mr Zepinic had brought a notice of motion at a time that he was subject to an order under the Act, and held that s 13 of the Act had been triggered, with the consequence that the notice of motion was stayed by the force of the Act, and then dismissed by the force of the Act 28 days after the notice of motion. Robb J then went on to observe that he had explained to Mr Zepinic that:

If he wishes to seek relief of the sort contained in the motion or amended notice of motion, it is essential that he first seek leave in the specific manner required by s 13 of the [Act]. If he does not do that, the [Act] will have effect of its own force and it will be inevitable that any proceeding he commences will be dismissed. It has been explained that it is not a matter for the discretion of the Court. [emphasis added]

[18] It is important to note Robb J’s observation that s 13 of the Act contemplates that a person who is the subject of an order under the Act may not institute proceedings without “first seek[ing] leave” in the specified manner. Notwithstanding Mr Maroya’s submission to the contrary, it seems to me that that is the proper construction of the section, where the section is a prohibition on instituting proceedings without the leave of the Court, and that prohibition can only be avoided by, as Robb J noted, first obtaining that leave. The section does not contemplate an application which both seeks leave and seeks substantive relief, with the consequence that a defendant would be required to address both the leave application and the substantive relief application at the same time. I return to that matter below.

[19] In a second decision, Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWSC 408 (Zepinic 2), Lindsay J referred to the observations of Robb J in Zepinic 1, and applied those observations in a similar case where an application had been brought by Mr Zepinic without leave.

67. The consequences of a third party instituting proceedings in concert with a person declared to be a vexatious litigant without having applied for or having been granted leave to institute proceedings under s 16 was explained in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 by Bell P at [69]–[73]:

[69] As Beazley P explained in De Varda v Austin [2018] NSWCA 263 at [29] (De Varda):

Once an order has been made under the Vexatious Proceedings Act, the person against whom the order has been made ‘may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16’: s 13(1)(a). An ‘authorised court’ is defined in s 3 to include the Supreme Court. An ‘appropriate authorised court’ is defined in s 12 to mean, relevantly, the authorised court that made the order. In this case, as the order was made in the Supreme Court it was necessary for the applicants to seek the leave of the Supreme Court before instituting any proceedings that were constrained by the terms of the Vexatious Proceedings order. (emphasis in original),

[70] No such leave was secured in the present case.

[71] The consequences of Ms Kostov not seeking leave prior to commencing proceedings are dictated by s 13(3) of the Vexatious Proceedings Act, extracted at [11] above, namely that the proceedings are to be dismissed.

[72] It is not necessary to consider the Director of Public Prosecutions (NSW)’s fall back position that leave should not be granted, even if it could not be sought from this Court and granted nunc pro tunc.

[73] Consistent with this Court’s decision in Klewer and De Varda, in my opinion, Ms Kostov’s failure to have first obtained leave to commence the judicial review proceedings has contravened s 13(1) of the Vexatious Proceedings Act. As no leave was sought or granted within 28 days of the institution of those proceedings, they are, by reason of s 13(3) of the Vexatious Proceedings Act, taken to have been dismissed. Consistent with the order made in De Varda, a declaration that the proceedings stand dismissed will be made.

Submissions of the Official Trustee

68. The Official Trustee’s submissions on this issue can be summarised as follows:

69. The provisions of s 13 of the VP Act operate of their own force.

70. This court, being an authorised court as defined in s 3 of the VP Act, made orders under s 8(7)(b) of the VP Act prohibiting Angelo from instituting proceedings in New South Wales against the Official Trustee.

71. Romulus is “another person” acting in concert with Angelo in instituting these proceedings.

72. Leave has not been granted by this court to institute these proceedings against the Official Trustee.

73. Of these propositions, the Official Trustee accepted (correctly in my view) that an issue arose as to whether Romulus is acting in concert with Angelo in instituting these proceedings. If so, the Official Trustee says that by operation of s 13 of the VP Act, these proceedings were instituted in contravention of s 13(1)(b) and must be taken to have been dismissed on the expiry of the period 28 days after the proceedings were first instituted: ss 13(2) and 13(3) of the VP Act.

74. The Official Trustee submits that “acting in concert” will only be established where there is a real understanding, common purpose or a combination or aggregation of those matters, between Angelo and Romulus: Re Boart Longyear Ltd (No 2) (2017) 323 FLR 241; [2017] NSWSC 1105, Black J at [320]. The Official Trustee argues that this extends to informal and unenforceable arrangements, including those in which the parties are free to withdraw from or to act inconsistently notwithstanding their participation in the arrangement: Bateman v Newhaven Part Stud Ltd (2004) 207 ALR 406, Barrett J at [18], citing Bank of Western Australia v Ocean Trawlers (1995) 16 ACSR 501 at 523–525 .

75. Accordingly, the Official Trustee contends that the words “acting in concert” in s 13 of the VP Act serve the purpose of preventing the commencement or continuance of litigation that circumvents the letter or the spirit of the statutory prohibition presently in effect against Angelo. The Official Trustee points to the following indicia to suggest that Romulus and Angelo were “acting in concert” within the meaning of s 13 of the VP Act:

76. Romulus was incorporated on 5 February 2024. On the same day, Romulus was appointed trustee of the Trust in substitution for Riva following a meeting of Riva’s directors (being Angelo and Nida).

77. The events pleaded in the 2025 SOC substantially pre-date Romulus’ incorporation and had, until that time, been the subject of repeated proceedings instituted or controlled by Angelo. In circumstances where Romulus was not involved in the underlying events and was only incorporated after the Angelo VP Order, the available inference is that the incorporation of Romulus and its appointment as trustee provided the mechanism by which these proceedings were commenced.

Submissions of Romulus

72. Romulus makes two submissions on the issue of the application of s 13 of the VP Act.

73. First, Romulus submits that the terms of the Angelo VP Order have not been infringed by the institution of these proceedings as they were not brought in the name of Angelo, Gustavo or Riva. Romulus asserts that in the Kunc J Decision, Kunc J (at [153]) was careful to point out that he considered the wide form of orders sought by the Official Trustee were not appropriate and rejected the Official Trustee’s submission that an order should be made prohibiting Angelo from “participating in the institution or conduct” of any proceedings against it.

74. Consequently, Romulus contends that even if it did act in concert with Angelo, that fact could only have a deleterious consequence for Romulus if Angelo were enjoined, by the terms of an order made under s 8 of the VP Act, preventing him from being involved in any proceedings whatsoever regardless by whom they were brought.

75. Secondly, Romulus argues that the facts do not disclose that Angelo and Romulus are “acting in concert” within the meaning of s 13 of the VP Act. Romulus points to the following matters to support its argument:

76. Angelo has never been an officeholder in Romulus and the only two issued shares in Romulus are held by Nida.

77. The tight-knit nature of the Ferella family, including in the conduct of their business interests, should not result in the conclusion that they are acting in concert with an improper purpose without more.

78. Nida is nearly 88 years of age.

79. Angelo provided an affidavit in these proceedings because he is the natural and appropriate deponent of such evidence insofar as he has intimate knowledge of the long procedural history of the litigation concerning the Point Piper Property.

Consideration

76. I am satisfied that s 13(1)(b) of the VP Act applies to these proceedings and, by virtue of the automatic operation of ss 13(2) and 13(3) of the VP Act, these proceedings were stayed when they were instituted and dismissed 28 days after they were first instituted. Accordingly, these proceedings are taken to be dismissed on 2 June 2025 (28 days after the date the 2025 SOC was filed).

Relevance of the scope of the Angelo VP Order

77. I reject the relevance of the submission by Romulus that because it is not named in the Angelo VP Order, the Angelo VP Order has not been breached if Angelo acted in concert with Romulus. As is made clear by the plain and ordinary meaning of the words “acting in concert”, the effect of s 13(1)(b) of the VP Act is to extend the operation of any order made under s 8(7) of the VP Act to prevent the commencement or continuation of proceedings by a third party, acting in concert with a person named in the order made under s 8(7), without leave of the court. This is regardless of whether that third party is named in the relevant vexatious litigant order.

78. It is therefore irrelevant that the Angelo VP Order did not expressly name Romulus as a party prevented from instituting or conducting such proceedings. In fact, it would be absurd if that was the case. It would render the operation of s 13(1)(b) effectively otiose and frustrate the provision’s object of preventing the commencement of vexatious proceedings that are instigated by a third party acting in concert with a person who is subject to a vexatious proceedings order without leave of the court. Angelo is prevented by the Angelo VP Order from instituting proceedings without leave of the court, pursuant to the operation of s 13(1)(a) of the VP Act. Any third party acting in concert with Angelo is also prevented from instituting proceedings without leave of the court, pursuant to the operation of s 13(1)(b) of the VP Act.

79. The crucial question is not whether the Angelo VP Order has been breached but whether the terms of s 13(1)(b) have been engaged.

Are Romulus and Angelo “acting in concert”?

80. The issue of whether these proceedings have been automatically stayed and then dismissed pursuant to ss 13(2) and 13(3) of the VP Act depends on whether Romulus is “acting in concert” with Angelo in bringing these proceedings. The following matters in combination strongly establish that Romulus is acting in concert with Angelo in instituting these proceedings:

81. For the reasons outlined above, the allegations in these proceedings share significant material similarity with the allegations which have been made in prior proceedings instituted and pursued by Angelo (acting before the making of the Angelo VP Order).

82. Romulus was incorporated and appointed trustee of the Trust on 5 February 2024, after the making of the Angelo VP Order and almost two decades after the events which are the subject of these proceedings and the repeated other proceedings which have been brought in which Angelo has been involved. Romulus had no involvement in any of the relevant events. In these circumstances, I infer that the incorporation of Romulus and its appointment as trustee of the Trust have provided the mechanism by which these proceedings were commenced.

83. The sole director of Romulus is Nida.

84. Angelo holds the power of attorney on behalf of Nida which is without condition or limitation.

85. Angelo produced an affidavit in these proceedings on 25 August 2025 in support of the 2025 SOC and was authorised to do so by Nida, as the sole director of Romulus, from whom he holds the power of attorney.

86. Tiziana has made an affidavit verifying the 2025 SOC as secretary of Romulus.

87. The affidavit produced by Angelo in these proceedings was detailed and set out the background facts which give rise to the dispute, discussed the prior occasions on which the dispute had been ventilated and attempted to provide reasons why the “new evidence” in the 26 March 2009 Email is said to support the allegations in the 2025 SOC.

88. I reject the arguments raised by Romulus, in which it negates any inference that it was acting in concert with Angelo. In particular:

89. The fact that Angelo is not an officeholder nor a shareholder in Romulus does not preclude the conclusion that he was “acting in concert” with Romulus.

90. Romulus sought to explain the extent of Angelo’s involvement in these proceedings by reference to the “tight-knit” nature of the Ferella family, Nida’s elderly age and his extensive knowledge of the proceedings. While these factors may explain Angelo’s involvement, they support, rather than contradict, the conclusion that Angelo is “acting in concert” with Romulus because they demonstrate the extent of Angelo’s active involvement in these proceedings, which has been previously observed in similar circumstances in related proceedings in [2013] FCA 1319 by Jacobson J at [3] (set out above) and in [2014] FCA 508 by Gleeson J at [5] and [8] as follows:

[5] It appears that a Mr Angelo Ferella had been actively involved in the conduct of the proceedings for the applicants. The first applicant is his mother. The second applicant is a company, the sole director of which is Mr Ferella’s sister. Mr Ferella gave evidence in support of the application to vacate the hearing.

…

[8] No evidence was provided by the applicants as to the following matters:

(a) why the first applicant could not swear an affidavit in support of the application (although Mr Ferella said that “[i]t would be over her head to try and do so” as she was an “elderly lady”);

(b) why the director of the second applicant could not swear an affidavit in support of the application; …

82. In my view, Romulus has brought these proceedings “acting in concert” with Angelo. Accordingly, these proceedings were instituted without leave, contrary to s 13(1)(b) of the VP Act. They must be taken to have been stayed when they were instituted and dismissed 28 days after the proceedings were first instituted (being 2 June 2025), pursuant to the automatic operation of ss 13(2) and 13(3) of the VP Act.

83. In case I am wrong about this conclusion, I have set out below my reasoning in relation to the other issues raised at the hearing in respect of the stay or summary dismissal of these proceedings or striking out of the 2025 SOC on the basis that as a matter of general practice, a trial judge should determine all issues in order to assist the appeal process and obviate the need for a retrial: see Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227, Bell CJ, Leeming and Mitchelmore JJA at [99], cited in Kronenberg v Macaulay [2025] NSWCA 195, Leeming JA at [20] (with whom Mitchelmore and Free JJA agreed); Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37, French CJ, Kiefel, Bell, Keane and Nettle JJ at [113]; Gulic v Boral Transport Ltd [2016] NSWCA 269, Macfarlan JA (with whom Gleeson JA and Garling J agreed) at [7].

ISSUE 2: STAY OF PROCEEDINGS UNDER r 12.4 of the UCPR

84. The Official Trustee contends that these proceedings should be stayed under r 12.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), relying on the fact that Romulus is liable to pay, and has not yet paid, the Official Trustee’s costs of the 2024 Romulus Proceedings, pursuant to the terms of the notice of discontinuance.

Legal principles

85. UCPR r 12.4 provides:

12.4 Stay of further proceedings to secure costs of discontinued proceedings

If --

(a) as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and

(b) before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced, the court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit.

86. The purpose of an order made under r 12.4 of the UCPR was explained by Gleeson JA in Pi v Zhou [2016] NSWCA 148 at [17] as being that it “prevents the injustice to the defendant of being saddled twice with unpaid costs”. This is evident in the terms of the rule which operates during the period between the plaintiff having a liability to pay costs and the payment of those costs.

87. The meaning of the expression “same or substantially the same cause of action as that on which the former proceedings were commenced” in r 12.4 of the UCPR was considered in CGU Insurance Ltd v Watson (as trustee of the deed of arrangement in respect of Greaves) [2007] NSWCA 301 by Giles JA at [41]:

[41] The necessity for the second proceedings to be in the same cause as the first, an expression which I have taken from Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWCA 202 at [104], has been variously stated. In Rice v Henley (1915) 32 WN 54 at 54 the expression used was “for the same cause”, but with reference to the plaintiff relying on “the same facts and the same evidence”. In Bowen v Hickey (1958) 78 WN at 820 at 822 the expression was “based on the same facts”, but citing amongst other cases Rice v Henley and its expression “for the same cause”. The other cases cited in Bowen v Hickey used the expressions “action for the same matter” (Martin v Earl Beauchamp (1883) 25 Ch D 12 at 15) and “suing … by virtue of the same title” and “asserting the same rights” (McCabe v Bank of Ireland (1889) 14 App Cas 413 at 415, 416). In Idoport Pty Ltd v National Australia Bank Ltd the sameness of cause was later expressed at [110] as “identity of issues” and at [112] as “an identity of the central issue”. The language reflected the citation in that case from Sinclair v British Telecommunications plc (2001) 1 WLR 38 at 50 of a passage referring to second proceedings “arising out of the same issues”.

Submissions of the Official Trustee

88. The Official Trustee submits that these proceedings should be stayed until Romulus pays the Official Trustee’s costs of the 2024 Romulus Proceedings as agreed or assessed. It contends that the requirements for a stay pursuant to r 12.4 of the UCPR are satisfied because the 2024 Romulus Proceedings were discontinued on terms which included an order that Romulus pay the Official Trustee’s costs as agreed or assessed, Romulus has not yet paid those costs and Romulus has commenced these proceedings on the same or substantially the same cause of action as that on which the 2024 Romulus Proceedings were commenced.

89. As the costs of the 2024 Romulus Proceedings are yet to be agreed or assessed, the Official Trustee contends that neither the terms of the order of discontinuance nor the requirements of r 12.4 of the UCPR mandate that there must be a quantification of the costs to engage the operation of the rule.

90. In contending that these proceedings seek to agitate the “same or substantially same cause of action” as that in the 2024 Romulus Proceedings, the Official Trustee relied on the table comparing the 2024 SOC in the 2024 Romulus Proceedings and the 2025 SOC in these proceedings. The Official Trustee contends that the differences between the two documents are immaterial and that these proceedings agitate the “same or substantially the same cause of action” as the 2024 Romulus Proceedings.

Submissions of Romulus

91. Romulus accepts that the court’s orders made as a consequence of the notice of discontinuance will subject Romulus to a liability to pay the Official Trustee’s costs of the 2024 Romulus Proceedings, as agreed or assessed. However, Romulus contends that r 12.4 of the UCPR is not yet engaged because its obligation to pay the Official Trustee’s costs does not crystallise unless and until the costs of the 2024 Romulus Proceedings have been agreed or assessed, citing Re Elgar Heights Pty Ltd [1985] VR 657, Brooking J at 663; In the matter of Tetbury Pty Ltd [2017] NSWSC 37, Black J at [29].

92. Romulus also observes that the terms of the discontinuance do not expressly prohibit these proceedings from being commenced or continued until the payment of the Official Trustee’s costs. It was contended that the Official Trustee’s submission could not succeed unless the court had explicitly ordered that new proceedings not be permitted to be commenced or continued until the payment of costs as agreed or assessed.

Consideration

Do the costs of the 2024 Romulus Proceedings need to be agreed or assessed before r 12.4 of the UCPR is engaged?

93. Whether r 12.4 of the UCPR requires that the costs of the 2024 Romulus Proceedings be fixed (either by assessment or agreement) before it can be engaged was the subject of significant oral argument at the hearing before me. As observed in Ritchie’s Uniform Civil Procedure NSW (LexisNexis, looseleaf) at [12.4.45]:

As a general rule, the court will grant a stay where the circumstances are within this rule: Re Payne (1883) 23 Ch D 288; Martin v Beauchamp (173) 25 Ch D 12; McCabe v Bank of Ireland (1889) 14 App Cas 413; cf Re United Service Assn [1901] 1 Ch 97; Bowen v Hickey (1958) 78 WN (NSW) 820; Thames Investment & Securities v Benjamin [1984] 1 WLR 1381. However, the matter is discretionary and the court may consider the defendant sufficiently protected by a right to set-off the costs of the earlier proceedings: Re United Service Assn [1901] 1 Ch 97; or if there is legal aid in the second action which will guarantee the recovery of costs to the successful party: Hutchinson v Nominal Defendant [1972] 1 NSWLR 443; but cf Dunbee Ltd v Gilman & Co (Aust) Pty Ltd [1969] 1 NSW 406; (1968) 89 WN (Pt 1) (NSW) 259.

94. The determinative question that arises is whether Romulus is “liable to pay the costs” of the 2024 Romulus Proceedings upon the making of the order or only once those costs have been quantified by assessment or agreement.

95. Where costs are awarded “as agreed or assessed”, the date at which liability arises will be distinct from the date upon which a costs order is enforceable or “takes effect” within the meaning of r 36.4 of the UCPR, which provides as follows:

36.4 Date of effect of judgments and orders

(1) A judgment or order takes effect –

(a) as of the date on which it is given or made, or

(b) if the court orders that it not take effect until it is entered, as of the date on which it is entered.

(2) Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor’s certificate is filed.

(3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.

96. A helpful discussion of the nature of a costs order can be found in Riva NSW Pty Ltd v Key Nominees [2023] NSWSC 711 by Meek J at [178]–[184]:

[178] A costs order is a binding determination of rights from the time it is made, even though it cannot result in a judgment for a specific sum of money, nor be enforced until the costs assessment is complete: Lahoud v Lahoud [2011] NSWSC 944 (Lahoud) at [39] per Campbell JA; Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227 at [84] (Zepinic) per McColl JA.

[179] A judgment “takes effect”, within the meaning of r 36.4(2) ICPR, when the judgment becomes enforceable: Lahoud at [38].

[180] If costs are not otherwise fixed by the Court, or agreed between the parties, they “remain indeterminate until the issue of the certificate [of a costs assessor], when the amount of costs becomes a certain sum”: GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont, The Law of Costs) at 701 [18.28] (footnotes omitted) citing Watkins Ltd v Ranger Uranium Mines Pty Ltd (1985) 35 NTR 27 at 42 per Nader J.

[181] The costs assessment process is an administrative one. Applications for costs assessments are not “proceedings”: Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766 at [31] per Davies J. A costs assessor is not the Court nor an officer of the Court: Ballard v Carlisle Attorneys Pty Ltd [2010] NSWSC 769 at [17] per Pembroke J. Nonetheless, the process prescribed for costs assessments bears a resemblance to a court process in the sense that the process is commenced by an application in an approved form as explained in Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 (Wende v Horwath (No 1)) per Beazley P (as her Excellency then was) at [8].

[182] It is not possible to enforce an order for costs until the assessment of costs is complete: cf Lahoud at [38]. A judgment or order of the Court may not be enforced until it has been entered in accordance with the UCPR: s 133(1) CPA, r 36.11(1) UCPR. This includes adjudications giving rise to a certificate which may be filed or registered in the Court, under any other Act or law: s 133(2) CPA, r 36.11(3).

[183] Thus, in the absence of an order to the contrary, a costs order takes effect when the costs assessor’s certificate is filed: r 36.4(2).

[184] A costs assessor’s certificate of determination is (subject to the nuances of the statutory procedures for enforcement of costs), not an order for payment of a sum of money, but, rather, “liability generally depends on an existing costs order by a court or tribunal. The certificate, though rendered enforceable by the court order, is to this end an incident of that order, necessary to quantify the costs recoverable in terms of the order”: Dal Pont, The Law of Costs at 701 [18.28] (footntoes omitted) citing Wentworth v Wentworth (1999) 46 NSWLR 300; [1999] NSWSC 317 (Wentworth v Wentworth) at 316 per Santow J (as his Honour then was) (affirmed in Wentworth v Wentworth (2000) 52 NSWLR 602; [2000] NSWCA 350).

97. Crucially, the distinction between the date at which a party incurs the “liability” to pay a costs order “as agreed or assessed” and the date at which that costs order becomes enforceable was discussed in Wentworth v Wentworth (1999) 46 NSWLR 300; [1999] NSWSC 317 at 316 per Santow J (emphasis added):

Clearly enough, the taxation process [now known as assessment] is not a wholly judicial function. Thus the taxation certificate can neither constitute a final judgment or order, nor an order for payment of a sum of money: Re Cartwright; Ex parte Cartwright v Barker [1975] 1 WLR 573; [1975] 2 All ER 970 followed in Wilmot v Buckley (1984) 2 FCR 540 and later Federal Court cases in the bankruptcy context. Rather liability depends upon a separate order for costs for the source of liability is always the original order or judgment. But while the taxing officer’s certificate is rendered enforceable by the court order, it in turn is an incident of the court order, necessary to quantify the recoverable costs in terms of that order. It does so as an integral part of the court’s processes. …

98. Accordingly, I reject the submission of Romulus that r 12.4 of the UCPR is not engaged unless and until the costs of the 2024 Romulus Proceedings have been agreed or assessed. Although the costs order may not “take effect” until the costs of the 2024 Romulus Proceedings have been agreed or assessed, the terms of r 12.4(a) are concerned only with the anterior question of whether liability to pay those costs has arisen.

99. In my opinion, to accept the submission of Romulus would put a gloss on the operation of the rule which simply does not exist because the terms of r 12.4(a) are engaged as soon as a plaintiff is liable to pay the costs of another party in relation to proceedings as a consequence of the discontinuance of those proceedings, regardless of the terms of that liability. It is clear that the liability under the costs order arises at the time the costs order is made.

100. In other words, the operation of the discretion provided by the rule is triggered once Romulus had a liability to pay the costs, not the quantification of those costs. As stated in Pi, the purpose of r 12.4 of the UCPR is to prevent “the injustice to the defendant of being saddled twice with unpaid costs”. It would run contrary to this purpose if Romulus could force the Official Trustee to incur further costs in defending another set of proceedings merely because the quantum of its liability for costs under the terms of the discontinuance is not yet fixed.

101. This reading of the rule fulfils its protective purpose for the Official Trustee so that the court can consider whether it is appropriate for it not to be vexed twice with the same costs in two or more proceedings which are the same or substantially the same when the costs of the 2024 Romulus Proceedings have not yet been paid. The Official Trustee qualifies for the possible exercise of the discretion if it is appropriate for it to be protected from the moment the discontinuance occurs until the costs of the 2024 Romulus Proceedings are paid, otherwise it will be at a costs jeopardy if Romulus unnecessarily delays agreeing or assessing the costs arising from the discontinuance.

102. The operation of the rule is not punitive to Romulus because it can avoid the discretion arising by either paying the Official Trustee’s costs before bringing the new proceedings or providing security for the Official Trustee’s costs so that it is not at risk of incurring irrecoverable costs in both sets of proceedings.

103. I also disagree with the submission made by Romulus that because the terms of the discontinuance did not expressly prohibit proceedings from being commenced or continued until after the payment of the Official Trustee’s costs, r 12.4 has no operation. In my view, r 12.4 does not pay any mind to the terms of the discontinuance. If such a condition existed then r 12.4 would have no work to do and the discretion would never be engaged because the proceedings could not be initiated under the terms of the discontinuance. It is precisely in cases where the discontinuance contains no term preventing further proceedings before costs are paid that the discretion in r 12.4 is intended to operate.

Are these proceedings “the same or substantially the same” as the 2024 Romulus Proceedings?

106. For the reasons stated above, it is clear that the allegations and relief sought in the 2025 SOC in these proceedings are substantially the same as the allegations and relief sought in the 2024 SOC in the 2024 Romulus Proceedings.

Should the discretion be exercised to stay these proceedings until the costs of the 2024 Romulus Proceedings are paid?

107. The discretion to stay these proceedings has been enlivened under r 12.4 of the UCPR. If these proceedings had not been stayed and dismissed by the operation of s 13(1)(b), 13(2) and 13(3) of the VP Act, this is an appropriate case in which I would have exercised my discretion to stay these proceedings until the costs of the 2024 Romulus Proceedings had been paid for the following reasons, which are in addition to those which engaged the operation of r 12.4:

108. These proceedings and the 2024 Romulus Proceedings are part of a continuous series of litigation which concerns precisely the same dispute in which the Official Trustee has had to repeatedly incur costs.

109. Romulus has failed to respond to the Official Trustee’s attempt to agree on the costs of the 2024 Romulus Proceedings without the need to engage the assessment procedure.

110. The court should be mindful of protecting the Official Trustee from consistently incurring costs in defending substantially the same allegations and relief.

ISSUE 3: PERMANENT STAY UNDER SECTION 67 OF THE CPA

108. In the alternative, the Official Trustee contends that the proceedings should be permanently stayed, pursuant to s 67 of the CPA. The Official Trustee seeks the permanent stay on the same basis as the application for a summary dismissal and strike out of the 2025 SOC (which I have dealt with below), save for an additional argument regarding the frustration of the Angelo VPA Order.

Legal principles

109. Section 67 of the CPA provides that:

67 Stay of proceedings

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

110. This provision does not identify any particular criteria as relevant to the exercise of the power, however it covers a variety of circumstances in which the court’s inherent jurisdiction to prevent abuse of its process may be invoked: New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA (with whom Beazley and Hoeben JJA agreed) at [15].

111. In exercising my discretion under s 67 of the CPA, I must also have regard to the requirements of ss 56 and 57 of the CPA.

112. The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.

113. In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.

Submissions of the Official Trustee

114. The Official Trustee contends that this court should exercise its power under s 67 of the CPA and stay the proceedings on four grounds.

115. First, the Official Trustee contends that the claims made in these proceedings are essentially the same or similar to those made in prior proceedings and that it would be an abuse of the court’s processes to have those matters relitigated in these proceedings.

116. Secondly, the Official Trustee contends that Angelo is using Romulus and his mother Nida (as the sole director and sole shareholder of Romulus) to circumvent the Angelo VP Order declaring him a vexatious litigant. Accordingly, the Official Trustee maintains that this court should stay the proceedings to prevent an abuse of its processes and to ensure compliance with its substantive orders.

117. To this effect, the Official Trustee relies on the observations in Ferella v Official Trustee in Bankruptcy [2013] FCA 1319 by Jacobson J at [3] and the statements in Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508 by Gleeson J at [5] and [8], both of which are extracted above.

118. The Official Trustee submits that I ought to draw an inference that it is Angelo and not Nida who is actively involved in the conduct of these proceedings and, if such an inference is drawn, then it becomes plain that Angelo is using Romulus and Nida to circumvent the Angelo VP Order. This inference is said to be partly on the basis that Romulus provided no explanation as to why Nida did not or could not give evidence.

119. Thirdly, to the extent that Romulus disagrees with the determination of facts or the application of law as determined by various prior judgments, the Official Trustee contends that the appropriate course is an appeal and not the commencement of new proceedings.

120. Fourthly, the Official Trustee submits that Romulus makes no new allegations against the Official Trustee that have not already been rehearsed and determined in the prior proceedings.

Submissions of Romulus

121. In response, Romulus’ primary contention is that the 2025 SOC does not simply relitigate settled disputes but rather is supported by fresh evidence in the form of the 26 March 2009 Email.

122. In response to the Official Trustee’s contention that Angelo is in effect conducting these proceedings and thereby frustrating the Angelo VP Order, Romulus contends that the court should exercise an appropriate measure of restraint in deciding whether it is Angelo and not Nida who is actively involved in the conduct of these proceedings, particularly where it appears that the business of the family has been conducted in a tightly-knit fashion and where a real question arises of disobedience to the court’s orders and the serious consequences entailed by that. Further, Romulus notes that although Nida did not give evidence herself, Angelo gave evidence pursuant to the power of attorney granted to him by Nida.

Consideration

123. If these proceedings had not been stayed and dismissed by the operation of ss 13(1)(b), 13(2) and 13(3) of the VP Act, I would have exercised my discretion to permanently stay these proceedings pursuant to s 67 of the CPA for the following reasons.

124. As stated above, the 2025 SOC attempts to relitigate earlier proceedings which have been determined by this court and others. The amendments that have been made since the proposed 2023 ASOC do not change its basic structure, allegations and relief and instead pursue the previously determined allegations as to the Official Trustee’s purportedly fraudulent conduct with greater fervour. This insistence is demonstrated often by way of only adding the phrase, “carried out in a manner of a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage”, to the claims which featured in the proposed 2023 ASOC.

125. It is inherently an abuse of process to constantly repackage the same or substantially the same allegations with merely cosmetic changes which demonstrate a refusal to accept the judicial determinations on them which has come before. For the reasons expressed above, the 26 March 2009 Email is not “new evidence”. The serial change in the selection of the plaintiff who makes the same allegations does no more than attempt to abuse the process of the court and continually vex the Official Trustee with yet further litigation based on exactly the same dispute.

126. The permanent stay of these proceedings also meets the overriding purpose in ss 56 and 57 of the CPA to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Constant proceedings on the same dispute concerning issues which have already been determined uses scarce judicial resources and wastes time and costs.

ISSUE 4: SUMMARY DISMISSAL & STRIKE OUT

127. In the further alternative, the Official Trustee seeks an order that the proceedings be summarily dismissed pursuant to r 13.4 of the UCPR or that the 2025 SOC be struck out pursuant to r 14.28 of the UCPR.

Legal principles

Summary dismissal

128. The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR, which relevantly provides as follows:

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).

129. For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, in which it was held by Barwick CJ at 128–129 that:

… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. …The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

130. In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way at [57] (citation omitted):

… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

131. This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J at [24].

132. In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:

The question is ... whether the claims in question are so obviously untenable or groundless that there is “a high degree of certainty” that they will fail if allowed to go to trial; and whether this is one of the “clearest of cases” in which the court may accordingly intervene to prevent the claims being litigated.

133. This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (unreported, NSWCA, Priestley and Meagher JJA and Wardell AJA, 15 March 1991); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].

134. The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

… A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.

Self-represented litigants

135. In dealing with an application to summarily dismiss and/or strike out a statement of claim drafted by a self-represented litigant such as this (albeit one who obtained counsel in opposing the application), I must recognise that there is a disadvantage in relation to which I must exercise special care to ensure that there is no viable cause of action in the 2025 SOC which would survive if put in proper form because if it can be done, then I should avoid the summary termination of the proceedings. On this, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P (with whom Hope and Samuels JJA agreed) observed at 536–537:

… care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out. Unrepresented litigants present our courts with significant difficulties.

136. However, in doing so, I must have regard not only to the litigant in person but also to the position of the other parties and what is required in the interests of justice to prevent the unnecessary expenditure of both public and private resources: Herbert v American Express Australia Limited [2018] FCA 1790, Flick J at [60], citing Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989).

137. In balancing these competing interests, I am assisted by the decision of Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485, in which her Honour refers to two further decisions: Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 and Knorr v CSIRO (No 3) [2012] VSC 529. The relevance of those decisions was summarised by Muston J in Caroline Chamoun v Gemi Nominees Pty Limited [2025] NSWSC 1300 at [39]–[40]:

[39] In Knorr, Beach J accepted that giving an unrepresented plaintiff a further opportunity to plead their case would not result in the delivery of a further lengthy and impenetrable document upon which no trial could reasonably or fairly be conducted, and on that basis, His Honour dismissed the proceedings.

[40] In Karam, it was explained (at [36]) that “a self-represented litigant cannot be allowed forever to stand behind the shield of their own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources”. It was observed that there must come a point at which a self-represented litigant must be required to take responsibility for their choices.

Relitigation as an abuse of process

138. In State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81–423 (cited with approval in Haigh v Haddad [2025] NSWCA 28 by Ward P and Adamson JA at [65]), Giles CJ (Comm D) identified the relevant factors for determining whether an attempted re-litigation amounts to an abuse of process in any given case at 64,089:

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; …

(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

Striking out

139. In the alternative, the Official Trustee contends that the 2025 SOC should be struck out. The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides:

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).

140. In relation to the power to strike out a pleading, the court must consider the importance of the pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. However, the court does not treat them as rigid boundaries beyond which the parties may never stray.

141. In Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517 wrote (reading past the gender inappropriate use of “man” from more than 100 years ago):

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.

142. These themes were emphasised in Banque Commerciale SA (in liq*) v Akhil Holdings Ltd* (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296–297, who stated (authorities omitted):

It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings.

143. In Banque Commerciale, Brennan J added at 288:

When the pleadings bring the parties to the issue, the court’s function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings …

144. Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings.

145. These matters were emphasised by Adamson J in Dickens at [36] and [38]–[39]:

[36] The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff’s claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be “embarrassing” in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18]:

‘Embarrassment’ in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.

…

[38] Where a statement of claim is deficient, in that it does not identify the connection between allegations of fact and causes of action alleged; contains a discursive narrative, the relevance of which can only be the subject of conjecture; and makes generalised allegations which could not sensibly be the subject of a response in the defence, it cannot be allowed to stand, if objection is taken. Although there are occasions where a defendant, for forensic reasons, might not take objection to a deficient pleading and prefer to conduct the proceedings on that basis, a defendant who approaches the Court to enforce its rules regarding a pleading is entitled to have the Court require compliance: Northam v Favelle Favco Holdings Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 7 March 1995).

[39] The matters to be taken into account in determining which order to make are set out in Part 6 of the Civil Procedure Act 2005 (NSW), the overriding purpose of which is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: s 56. A properly pleaded statement of claim is, in my view, a prerequisite for the just, quick and cheap resolution of the real issues in the proceedings.

146. The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, Johnson J at [32]–[35], as follows:

[32] A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5–6).

[33] Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417–418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109 at 112–114.

[34] Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Ltd [1960] VR 473 at 476; H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186.

[35] It is not the function of the Court to draw or settle a party’s pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72 87–88 and 97–98; Gunns Limited v Marr at [57]–[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [55].

Overriding purpose

147. In exercising my discretion under r 13.4 and 14.28 of the UCPR, I must also have regard to the requirements of ss 56 and 57 of the CPA of giving effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings, having regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings at a cost affordable by the respective parties.

Submissions of the Official Trustee

148. In addition to the arguments advanced by the Official Trustee contending that these proceedings should be permanently stayed as an abuse of process, the Official Trustee claims that the 2025 SOC ought to be struck out either in its entirety or in part for two reasons.

149. First, the Official Trustee contends that the claims made in these proceedings are essentially the same or similar to those made in prior proceedings. This submission was in terms identical to that made above in respect of the permanent stay sought under s 67 of the CPA.

150. Secondly, the Official Trustee contends that it is not pleaded in the 2025 SOC that there was any kind of vesting or transfer of the chose in action in the form of the right to sue to the Official Trustee upon the retirement of Riva as trustee of the Trust on 5 February 2024 and the appointment of Romulus as trustee of the Trust. Relevantly, cl 15(d) of the Deed of Trust provides that:

15. APPOINTMENT AND REMOVAL OF TRUSTEE

The following provisions shall apply with regard to the appointment and retirement of the Trustee:

…

(d) the Trustee shall on retirement of removal vest the Trust Fund or cause it to be vested in the new trustee and shall deliver to such new trustee al books records documents and other property whatsoever relating to the Trust Fund.

151. The Official Trustee contends that there is no evidence that Riva had taken any action to vest the right to sue, or otherwise cause it to be vested, in Romulus as would be required pursuant to cl 15(d) of the Deed of Trust. As part of its argument, the Official Trustee relies on the Nicholas J Agusta Judgment at [32] to suggest that some further act is required beyond mere appointment to vest the chose of action in Romulus. On this basis, it contends that the 2025 SOC is deficient for want of allegations that establish Romulus’ right to sue as the current trustee.

Submissions of Romulus

152. In response to the first of the Official Trustee’s submissions, Romulus places reliance on the factor identified by Ward P and Adamson JA in Haigh v Haddad at [65(e)], namely whether there is “any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings”. Accordingly, akin to the argument made in respect of the stay under s 67 of the CPA, Romulus contends that the 26 March 2009 Email constitutes fresh evidence that is relevant to the probability of the sequence of facts which [30] of the 2025 SOC seeks to establish. Accordingly, Romulus submits that it should be permitted to place such fresh evidence before this court at trial.

153. In response to the submission that the 2025 SOC is deficient for want of pleadings in respect of the vesting of Riva’s right to sue in Romulus as the new trustee, Romulus ultimately concedes that this a deficiency and seeks an opportunity to correct it.

Consideration

154. For the same reasons as I have expressed above in relation to the permanent stay of these proceedings under s 67 of the CPA, these proceedings are an abuse of process in that Romulus is seeking to relitigate the same or substantially the same allegations from earlier proceedings which have been determined by this court and others. For that reason, if these proceedings had not been stayed and dismissed by operation of ss 13(1)(b), 13(2) and 13(3) of the VP Act, I would have exercised my discretion to summarily dismiss them.

155. If I was wrong about the summary dismissal of the proceedings, then I would have struck out the 2025 SOC in its entirety for the same reasons as had been expressed in the Slattery J Riva Judgment at [26]–[27] and [32]–[34]. In short, as was the case with the proposed 2023 SOC, the 2025 SOC is “not a pleading which is capable of amendment, to plead recognisable and maintainable causes of action or claims for relief”.

156. As I have also concluded above, the 26 March 2009 Email cannot be regarded as “new evidence” and does not provide a basis on which the allegations in the 2025 SOC can be allowed to proceed to trial.

157. Finally, Romulus correctly conceded that the 2025 SOC was deficient to the extent that it did not include an allegation related to the vesting of the right to sue in Romulus. It is at least arguable that the vesting took place by virtue of the appointment of Romulus as trustee, notwithstanding the reasoning at [32] of the Nicholas J Agusta Judgment. However, the failure of Romulus to set out the basis on which the alleged right to sue was vested in Romulus is a deficiency in the 2025 SOC, which would have to be corrected if it were allowed to stand.

CONCLUSION

158. In conclusion, the proceedings were stayed when they were instituted on 6 May 2025 and dismissed on 2 June 2025 by the operation of ss 13(2) and 13(3) of the VP Act as Romulus has instituted proceedings acting in concert with Angelo without the leave of the court.

159. If I am wrong in reaching this conclusion, then I would have exercised my discretion:

160. under r 12.4 of the UCPR to stay these proceedings until the costs of the 2024 Romulus Proceedings were paid by Romulus;

161. under s 67 of the CPA to permanently stay these proceedings as an abuse of process;

162. under r 13.4 of the UCPR to summarily dismiss the proceedings; and

163. under r 14.28 of the UCPR to strike out the 2025 SOC in its entirety.

ORDERS

160. For the reasons set out above, I make the following orders:

161. Declare that the proceedings are proceedings to which ss 13(2) and 13 (3) of the Vexatious Proceedings Act 2008 (NSW) apply.

162. Declare that the proceedings were stayed on 6 May 2025 pursuant to s 13(2) of the Vexatious Proceedings Act 2008 (NSW).

163. Declare that the proceedings were dismissed on 2 June 2025 pursuant to s 13(3) of the Vexatious Proceedings Act 2008 (NSW).

164. Order the plaintiff to pay the defendant’s costs of the proceedings.

Annexure A - Comparison Table (457 KB, pdf)

Annexure A - Comparison Table (133 KB, docx)