Sebie v Krejci

Court of Appeal (NSW)|2023-09-13|Before: Gleeson JA, Black J, Ierace J

Solicitors: ERA Legal (First respondent) File Number(s): 2023/115895 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division / Common Law Division Citation: [2022] NSWSC 54 (Black J); [2022] NSWSC 1478 (Black J); [2023] NSWSC 162 (Ierace J) Date of Decision: 21-22 October 2022; 15 August 2022; 27 January 2022; 6 January 2023; 28 February 2023 Before: Black J; Ierace J File Number(s): 2021/303982; 2022/32115

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

THE COURT: Following a hearing on 9 August 2023, on 10 August 2023 the Court dismissed (i) an amended summons seeking leave to appeal filed 15 June 2023, and (ii) an amended notice of motion filed 14 June 2023: Sebie v Krejci [2023] NSWCA 187 (the judgment).
By notice of motion filed 11 August 2023, Mr Robert Sebie and Mr Ronald Jemmott (two of the three applicants for leave to appeal) sought a variety of relief, including: 1. that the Court vary or set aside the judgment or orders dated "17 August 2023", pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.15 or 36.16 (par 2); 2. a stay of orders dated 27 January 2022 made by Black J in the winding up proceedings 2021/303982 (par 3); and 3. leave to "hear and file" this notice of motion (par 6). The reference in par 2 to "17 August 2023" is an error; it should be taken to be a reference to 10 August 2023.
Written submissions on the motion have been received from the parties on the basis that the Court would deal with the motion on the papers.
The applicants seek to reopen the judgment entered on 10 August 2023 on the grounds that "the incorrect application and documents" were before the Court on 9 August 2023, relevantly, (i) the incorrect version of the summons seeking leave to appeal, (ii) the incorrect version of the notice of motion, and (iii) "possibly" the incorrect version of the summary of argument.
The applicants relevantly rely upon UCPR, r 36.16(1) and (3A). The combined effect of these rules is that if a notice of motion to set aside or vary the judgment is filed within 14 days after the judgment or order is entered, the court may determine the matter and (if appropriate) set aside or vary the judgment under sub-rule (1), as if the judgment or order had not been entered.
In his submissions filed 17 August 2023, the liquidator of ENA Development Pty Ltd raised an objection that the applicants' present motion was filed without leave, contrary to the terms of the order made by Williams J on 15 May 2023 against, relevantly, Mr Sebie, Mr Jemmott and One T Development Pty Ltd, pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) (the Act). (The terms of that order as relevantly set out at [4] of the judgment.) It is said that the motion was filed without leave contrary to the terms of s 14 of the Act, and as a result is taken to be dismissed, given the terms of s 13 of the Act.
On 21 August 2023, Mr Jemmott filed an affidavit bearing the date 18 August 2023 on the cover page and 10 August 2023 on the title page, purporting to comply with the requirements set out in s 14(3) of the Act that an application for leave to institute proceedings prohibited by a vexatious proceedings order, (a) lists all occasions on which the applicant has applied for leave under s 14(1) to institute proceedings that the order would otherwise prohibit the applicant from instituting, (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of s 14, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
The affidavit of Mr Jemmott relevantly states: … (2) In response, the Notice of motion in front of the Supreme Court of NSW Proceeding No: 2023/1158895 [sic] dated 11 August 2023 is the first application to be filed under the requirements of the above Vexatious Proceedings Act. (3) I have applied to overturn the orders made on the 15 May 2023 in relations to the Vexatious Proceeding Act as they were made in my absent [sic].
Although par 6 of the 11 August motion is not expressed to be an application under s 14 of the Act for leave to institute proceedings by way of that motion, the language of par 6 is sufficiently broad to encompass an application for leave under s 14 of the Act. Insofar as the affidavit of Mr Jemmott does not fully comply with the requirements of, at least, s 14(3)(b) of the Act, it is appropriate not to insist on strict compliance in the circumstances of this case, given the limited grant of leave to be given in respect of the two matters referred to in [10] below.
For the reasons which follow, there will be a grant leave under s 16(3) of the Act to permit the applicants to institute the proceedings the subject of the motion filed 11 August 2023 on condition that the relief sought in that motion is limited to seeking: 1. leave to reopen the judgment of 10 August 2023 only in respect of the relief sought in par [17] of the applicants' amended notice of motion of 21 July 2023 (which sought review of the orders of the Registrar made on 21 July 2023); and 2. a stay of the orders of made by Black J on 27 January 2022 winding up ENA Development Pty Ltd and appointing Mr Krejci as liquidator, pending the determination of the reopening application and an application for special leave to appeal to the High Court filed 15 August 2023.

Notice of motion 21 July 2023

The applicants say that they emailed an amended notice of motion dated 21 July 2023 to the Registrar on 24 July 2023, which included an additional claim for relief in par 17: "Review of orders made on 21 July 2023 by the registrar".
The applicants draw attention to email correspondence annexed to the affidavit of Mr Sebie of 7 August 2023, relevantly, an email from the Registrar dated 27 July 2023 at 5:45 pm in which the Registrar informed the parties: In respect of the amendment made to include the existing motion a review of my orders to which listed for hearing on 9 August 2023, that motion as amended will continue to be listed for hearing on 9 August 2023.
A copy of the unfiled amended notice of motion dated 21 July 2023 containing the new par 17 was not included in the white folder which the applicants filed on the leave application, or in the additional volume 2 of the white folder emailed to the Court on the morning of the hearing on 9 August 2023. Nor was the relief sought in par 17 of the unfiled amended motion referred to in the applicants' summary of argument, or the summary of argument dated 8 August 2023 (updated) filed electronically on 9 August 2023 at 7:50 am on the morning of the hearing.
Nevertheless, given the terms of the Registrar's email to the parties of 27 July 2023, the Court's reasons for judgment inadvertently did not deal with this topic that was before the Court on 9 August 2023. In these circumstances, it is appropriate to grant leave to reopen this Court's judgment to address the relief sought in par 17 of the amended notice of motion dated 21 July 2023.
The nature of a review of a decision of a Registrar of the Court under s 121(3) of the Supreme Court Act and the UCPR, r 49.19 was considered by this Court in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [4]-[10] (Hodgson JA, Ipp JA agreeing), at [52]-[53] (Basten JA). In summary, a review of a decision of the Registrar is not an appeal and in such a review, the Court must exercise its own discretion. This discretion extends to a discretion as to whether and, if so, how to intervene.
The onus is on the applicant seeking to have the Court set aside or vary a Registrar's decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so: Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [18] (Hodgson JA). With respect to a decision on practice or procedure, this will normally require at least a demonstration of error of law or error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.
The summons seeking leave to appeal sought to challenge the orders made in two proceedings by Black J on 27 January 2022, 15 August 2022 and 21 October 2022 and Ierace J on 6 January 2023. The Registrar's reasons for decision given on 21 July 2023 included comprehensive reasons at [8]-[18] for not permitting the applicants to include in their amended summons seeking leave to appeal filed 15 June 2023, which had been filed without leave, the proposed challenge to the order made by Williams J on 15 May 2023 in separate proceedings.
In arriving at that conclusion, the Registrar correctly took into account the overriding consideration of the "just, cheap and quick" resolution of the real issues in the proceedings in this Court, being an application for leave to appeal from the orders of Black J and Ierace J, together with an application for an extension of time: Civil Procedure Act 2005 (NSW), s 56. The applicants' written submissions do not identify any error of law, or any other error of the kind referred to in House v The King in the case management orders made by the Registrar on 21 July 2023.
Rather, it is said that it would avoid extra costs and time which will occur in filing a new application for leave to appeal from the order made by Williams J if the Court were to keep this part of the (proposed amended) leave to appeal application "open to be determined on the papers". It is not apparent that this argument was raised before the Registrar, but in any event, it is not a sufficient or compelling reason to set aside the orders made by the Registrar.
There were sound reasons favouring efficiency and the timely determination of the application for leave to appeal and the related application for an extension of time, not to permit the leave application to be burdened by an additional challenge to the orders of Williams J in separate proceedings. Among other reasons, to permit that course would undoubtedly have led to vacation of the date fixed for the hearing of the application for leave to appeal from the orders of Black J and Ierace J. It also would have been inappropriate to delay the hearing of the application for leave to appeal against the winding up order made over 19 months earlier.
No basis for intervening in the Registrar's decision of 21 July 2023 has been demonstrated. Accordingly, the relief sought in par 17 of the amended notice of motion dated 21 July 2023 is refused.

Further amended summons for leave to appeal

The applicants say that they emailed a further amended summons seeking leave to appeal dated 5 June 2023 to the Registrar of the Court on 21 July 2023 and that the Court did not deal with this application on 9 August 2023. It is correct that the Court did not deal with the (unfiled) further amended summons seeking leave to appeal at the hearing on 9 August 2023. That was because leave had not been sought or granted to file the further amended summons seeking leave to appeal.
The relevant application for leave to appeal before the Court on 9 August 2023 was the amended summons seeking leave to appeal filed 15 June 2023, excluding the references in that summons to challenges to the order made by Williams J on 15 May 2023, given the orders made by the Registrar on 21 July 2023.
Ignoring the inclusion of the references to the challenges to the decision of Williams J, which had been struck out by order 1 made by the Registrar on 21 July 2023, the only new matter in the further amended summons seeking leave to appeal was the relief sought in par 24: 24 Consent orders made on 22 April 2022 by Sackar J proceeding number 2015/325044 to be set aside.
Four matters should be noted in relation to the relief sought in par 24: (i) no leave had been given to file the further amended summons seeking leave to appeal, which included the relief sought in par 24, (ii) the order made by Sackar J on 22 April 2022 in proceedings 2015/325044 was made in different proceedings to the two proceedings the subject of the existing application for leave to appeal, (iii) the draft notice of appeal did not include any ground of appeal challenging the order made by Sackar J on 22 April 2022, nor seek relief to set aside that order, and (iv) a copy of the order made by Sackar J on 22 April 2022 was not included in the white book, nor referred to in any of the written submissions or summary of argument by the applicants. (A copy of orders made by Registrar Walton in December 2020, which included listing the 2015 proceedings before Sackar J on 1 April 2021, was included in vol 2 of the updated white book.)
One further matter should be mentioned. The applicants' written submissions on the present motion do not identify any basis for challenging the order made by Sackar J on 22 April 2022 in the 2015 proceedings. If leave had been sought at the hearing on 9 August 2023 to file the further amended summons seeking leave to appeal, leave would have been refused on the basis that any proposed challenge to the order made by Sackar J on 22 April 2022 was outside the scope of the leave application which had been fixed for hearing.

Summary of argument

On the morning of the hearing on 9 August 2023, the applicants filed electronically at 7.50 am a document styled "Summary of Argument dated 8 August 2023 (Updated)". Although filed without leave, that document was provided to the Court by the Registry prior to the hearing. The changes in this document to the summary of argument already filed were immaterial; the changes were updating the reference on the cover page to the evidence relied on and updating some footnote references.
The premise of the reopening application, that "possibly" the "incorrect" version of applicants' summary of argument was before the Court on 9 August 2023 is unfounded. To the extent the documents were different, that difference was immaterial.

Other matters relied upon by the applicants

To the extent that the applicants' submissions filed 6 September 2023 cavil with the Court's reasons for judgment, the submissions repeat matters previously raised in support of the unsuccessful application for leave to appeal. The applicants should not be permitted to seek leave to reopen the Court's reasons for judgment where what is sought to occur is re-agitation of the arguments already considered by the Court: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 (Mason CJ); [1993] HCA 6.
To the extent that the applicants' additional submissions filed without leave on 8 September 2023 repeat matters raised in their earlier submissions filed 6 September 2023, the same reasoning in [29] above applies for refusing leave to reopen the judgment of the Court.
Insofar as the additional submissions contend that Black J erred on 27 January 2022 because his Honour failed to deal with a notice of motion filed 27 January 2022 at 12:09 pm in the 2015 proceedings (2015/325044) to review the orders made by Registrar Walton on 24 December 2020, this complaint was not raised as a proposed ground of appeal on the application for leave to appeal against the winding up order made by Black J on 27 January 2022. Leave to reopen the judgment of the Court to raise this new argument is refused.
In any event, two observations should be noted. First, Black J addressed the significance of the 27 January 2022 motion at [12] of his Honour's reasons ([2022] NSWSC 54): ENA also sent other documents to the Court in the course of this hearing, but did not tender them, including a document which was said to amount to a notice of motion seeking review of the Registrar's order for costs against ENA which was the subject of the Demand. I observed in my oral ex tempore judgment that one notice of motion contained in that bundle did not, on its face, seek review of that order. I should add to that oral judgment that a second notice of motion, which was not filed until 12.09pm on the day of this hearing, did address that matter. That application is not in evidence, but even if it had been, that costs order was still in place and no application had been made to set aside the Demand, as a result of which a presumption of insolvency has already arisen.
Second, the applicants' additional submissions do not identify any arguable basis for challenging the reasoning in the last sentence of [12] of the reasons of Black J.

Application for a stay

The applicants seek a stay of the orders made by Black J on 27 January 2022 winding up ENA Development Pty Ltd and appointing Mr Krejci as liquidator, until this application is dealt with and the application for special leave to appeal to the High Court filed 15 August 2023 is heard.
As to the first matter, given that there is no basis to reopen this Court's judgment of 9 August 2023 refusing leave to appeal from the orders of Black J, there is no basis for a stay of the orders of 27 January 2022 pending the determination of the reopening application.
As to the second matter, the test for a stay of this Court's own orders pending the determination of an application for special leave to the High Court is stated in Reinhart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 at [47] (Bathurst CJ, Beazley P and McColl JA agreeing). This Court should apply the principles applied by the High Court in resolving such applications, relevantly, as identified by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 684-685; [1986] HCA 84.
The correct approach has been conveniently summarised by Kirk JA in 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 at [10]: In summary, then, exceptional circumstances must be shown to warrant the grant of a stay pending the determination of a special leave application; significant factors in that regard are whether the applicant has substantial prospects of obtaining special leave, where the balance of convenience lies and whether the application for special leave may be rendered nugatory unless a stay is granted; those factors are not exhaustive; "substantial prospects" does not require that the court conclude that a grant of special leave is likely; the overall question is whether, taking account of all the circumstances, there are sufficiently significant prospects of special leave being obtained to warrant a grant of a stay, perhaps on terms designed to protect the interests of the respondent.
Assessing prospects of obtaining special leave is an impressionistic exercise: Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 308; [1996] HCA 3. It is not necessary to summarise each of the ten grounds identified in the application for special leave to appeal. It is sufficient to say that having considered the application for special leave to appeal, in our view, the applicants have no significant prospect of obtaining a grant of special leave to appeal.
Further, the balance of convenience plainly favours refusing a stay. The winding up order has been in place for some 19 months. It is not suggested, and there is no evidence, that there is a real risk that the application for special leave to appeal to the High Court will be rendered nugatory to the extent that a stay of the winding up order is not granted.
The applicants have not demonstrated a basis for a stay of the orders of Black J made on 22 January 2022 pending the determination of their special leave application to the High Court.

Recusal application

In written submissions dated 31 August 2023 (par 8(f)), Mr Jemmott requested that Basten JA recuse himself from dealing with these proceedings, "as the applicants' view his honour has per-determined [sic] stance in this matter and history of the proceedings". For the reasons separately given by Basten JA, his Honour does not accede to that application. Nor does Gleeson JA consider that his Honour should have recused himself, for the reasons he has given.

Costs of the motion

Given that the applicants have succeeded in part in obtaining leave to institute proceedings the subject of the 11 August motion on conditions, but have otherwise failed to obtain the substantive relief sought on the motion, the appropriate order is that there be no order as to costs of the motion.

Orders

The orders of the Court are: 1. Grant leave to the applicants pursuant to s 16(3) of the Vexatious Proceedings Act 2008 (NSW) to institute the proceedings the subject of the notice of motion filed 11 August 2023 on condition that such leave is limited to seeking (i) leave to reopen the judgment delivered on 10 August 2023 insofar as the judgment did not deal with par 17 of the applicants' notice of motion of 21 July 2023, and (ii) a stay of the orders made by Black J on 27 January 2022 until the reopening application is dealt with and the application for special leave to appeal to the High Court filed 15 August 2023 is heard. 2. Dismiss par 17 of the amended notice of motion dated 21 July 2023. 3. Refuse the application for a stay of the orders made by Black J on 27 January 2022. 4. Dismiss the notice of motion filed 11 August 2023. 5. Make no order as to costs of that motion.

Amendments 13 September 2023 - Order (3) - "2023" amended to read "2022". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2023

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