Sebie v ENA Development Pty Ltd

A INTRODUCTION AND BACKGROUND 1 Before the Court is an interlocutory process by which the second plaintiff, Mr Robert Sebie, seeks not interlocutory, but final (quasi-declaratory) relief. He also seeks a review of a judicial Registrar's decision and an order for a stay of the winding up of the respondent, ENA Development Pty Ltd (ENA). 2 It is unnecessary for me to set out the background to the orgy of litigation which seems to have arisen in relation to the liquidation of ENA. 3 Some of that history, including the background to this interlocutory process, was traversed by Goodman J in Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2 (at [3]-[8]), upon his Honour hearing and determining an "urgent" application by Mr Sebie for a stay of the winding up of ENA pursuant to s 482 of the Corporations Act 2001 (Cth) (Corporations Act). 4 It is well to set out several observations made by Goodman J, which provide a frame of reference for the interlocutory process presently before the Court. 5 Justice Goodman dismissed Mr Sebie's application on the basis that he did not have standing to seek a stay of the winding up because he is not a creditor or a contributory of ENA as required by s 482(1A)(a) of the Corporations Act. 6 In addition, his Honour was not satisfied that Mr Sebie has reasonable prospects of succeeding in his application for an order staying or terminating the winding up, in view of the matters that inform the exercise of the discretion under s 482 of the Corporations Act: see In the matter of Sails Corp Pty Ltd [2021] NSWSC 1241 (at [19] per Black J). This conclusion is hardly surprising. First, Mr Sebie provided no explanation as to why the application before me today (and another application before a Judge of the Supreme Court of New South Wales) were not brought with celerity. Secondly, Goodman J was satisfied that the "urgent" application before him was a second attempt to obtain a stay of the writ of possession of a property in the Sydney suburb of Homebush. His Honour explained that bringing a second proceeding in a different court on what is in substance the same subject matter is highly undesirable, given the risk of inconsistent findings and the waste of public resources: Sebie v ENA Development (at [22]); Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134 (at [44] per Halley J).

B THE INTERLOCUTORY PROCESS 7 More particularly, by way of his interlocutory process, Mr Sebie seeks the following relief: 1. Stay of order made by [the Registrar] on the 16 November 2022. 2. Review of orders made by [the Registrar] on the 16 November 2022. 3. Order that Robert Sebie be appointed legal guardian of Rose Sebie. 4. Leave to file and serve the amended Originating Process. 5. Leave to joint [sic] Enterprise ICT Pty Ltd into these proceedings. 6. Order that on the 27/01/2022 ENA Development Pty Ltd should of [sic] never been placed into liquidation as creditor statutory [sic] of demand should of [sic] never been issued. The petition creditor "Andy Pham" has Supreme Court order number 1 dated 1 April 2021 in Supreme Court of NSW Proceeding # 2015/00325044 to take the petition debt of $46,144 (correctly $46,164) from the Funds that was [sic] in court. a) If Andy Pham has not already taken the petition debt of $46,144 (correctly $46,164). Then as per order dated 1 April 2021 in Supreme Court of NSW Proceeding # 2015/00325044 to take the petition debt of $46,144 (correctly $46,164) from the Fund in court, which is now held by the Liquidator. b) The Liquidation of ENA Development Pty Ltd to be terminated under section 482 of the Corporation ACT 2001. 8 As is evident, Mr Sebie seeks a wide range of orders. In particular, he seeks a review of a decision of a Registrar of this Court pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). He also seeks, in prayer 6(b), relief under s 482 of the Corporations Act which is substantially the same as the relief sought by the plaintiffs in the originating process.

C THE INTERLOCUTORY HEARING 9 When the parties came before me, Mr Sebie told the Court he was able to move on some but not all of his prayers for relief, owing to his ill health. This was curious, given that no medical evidence whatsoever (let alone medical evidence of any cogency) was put forward, and Mr Sebie was notified of the listing some time ago, on 22 December 2022. 10 Mr Sebie was prepared, however, to proceed with prayers 3, 4 and 5. 11 During the course of oral argument, it became apparent that substantively the same issues may well be canvassed in the Federal Circuit and Family Court of Australia (FCFCOA) in a five day hearing set to commence on 20 February 2023. Three relevant applications are returnable on this date (FCFCOA Applications). 12 The first of those applications seeks, among other things, an order that the winding up of ENA be terminated. By the second and third applications, the liquidator seeks various directions which require the FCFCOA to consider, among other things, whether the liquidator would be justified in rejecting proofs of debt purportedly submitted by Mrs Rose Sebie (the former first plaintiff in this proceeding). 13 The orders made and matters to be determined by the Judge hearing the matter in the FCFCOA are, obviously enough, matters for that Judge. However, if that Judge does deal with the FCFCOA Applications, then it will be necessary for that Judge to make findings relating to the very matters the subject of interlocutory process before me today. 14 Obviously enough, this is unsatisfactory. Controversies arising out of the same factual substratum should be determined in one forum. The continuation of this proceeding while the same issues may be heard and determined by the FCFCOA runs contrary to the overarching purpose of civil litigation in this Court: s 37M of the FCA Act.

D THE COURSE TO BE TAKEN 15 In all the circumstances, it is appropriate for this matter to be adjourned pending the determination of the FCFCOA Applications. 16 I was initially against this course. In fact, I was attracted to the idea of dismissing the interlocutory process altogether, on the basis that it is deficient in form. Three compounding factors changed my view, however. 17 First, it became evident over the course of Mr Sebie's oral submissions that what was being sought was, in effect, final relief. The review of a Registrar's decision is a rehearing de novo in which the Court may receive fresh evidence and depart from factual findings made by the Registrar: Mazukov v University of Tasmania [2004] FCAFC 159 (at [21]-[24] per Kiefel, Weinberg and Stone JJ). It is a "complete rehearing" (Callegher v Australian Securities and Investments Commission [2007] FCA 482; (2007) 218 FCR 81 (at 89-90 [46] per Lander J)) which "fulfils a constitutional imperative that the delegation of the exercise of judicial power to a Registrar is subject to real and effective control and supervision by the Court": Deputy Commissioner of Taxation v Melking Holdings Pty Ltd [2019] FCA 988 (at [19] per Colvin J). Moreover, as explained above, prayer 6 effectively restates the final relief sought in prayers 1 and 2 of the originating process. 18 Dismissing the interlocutory process may operate to shut Mr Sebie out, and occasion practical difficulties for him. He asked the Court to "keep" the interlocutory process "open" to give him the opportunity to file an amended interlocutory process if the FCFCOA does not deal with the applications currently before it. He explained that if the interlocutory process is dismissed, he will be required to pay a filing fee should he file a further interlocutory process. As such, I have determined to adopt this course. 19 Secondly, Mr Sebie filed submissions in the hours preceding the interlocutory hearing, identifying a large amount of evidence that the liquidator has not had the opportunity to review. An adjournment will allow the liquidator to review that material and incorporate a response to it into submissions. 20 Thirdly, and in any event, it is unlikely I would be able to list the matter for final determination before July 2023. 21 Accordingly, the most pragmatic course forward is for there to be an adjournment of the balance of the relief sought in the interlocutory application, pending the determination of the FCFCOA Applications. 22 In the light of the hesitations expressed above, however, I will make an order that in the event no amended interlocutory process is filed, the proceeding be dismissed.

E CONCLUDING REMARKS 23 It should be said that if Mr Sebie is to put on an amended interlocutory process following determination of the applications before the FCFCOA, there is much work to be done. The evidence currently before the Court is manifestly deficient. If it is going to be suggested that the winding up of ENA be terminated on the basis that the company is solvent, then appropriate opinion evidence should be filed which is relevant pursuant to the Evidence Act 1995 (Cth) and in compliance with the Federal Court Rules 2011 (Cth). 24 It goes without saying that there is no need to make orders concerning the filing and service of evidence at this stage, given that it may be that all substantive issues are dealt with by the FCFCOA. 25 Finally, I will reserve the costs of today. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.