Siteberg v Maples

6 The relationship between Siteberg and Mr Maples, however, soon ran into further difficulties. In April 2008, the Department of Commerce informed Mr Tenish that it would not process any future tenders from Siteberg if Mr Maples continued to be involved with the projects. 7 Following the Department's decision, Mr Tenish decided to terminate his relationship with Mr Maples. He appears to have done that simply by causing Siteberg to tender for future projects in its own capacity rather than as trustee of the Southern Highlands Trust. There is a dispute about whether Mr Maples was ever told of that decision. Mr Tenish gave evidence that he informed Mr Maples of his decision by telephone in April. I accept that evidence. It strikes me as inherently probable that Mr Tenish would have said something to Mr Maples after the Department had informed him of its position. Given that Mr Maples had been working as a project manager for Siteberg, it would be very odd if that work had simply ceased without either party saying anything. Moreover, for reasons which will become apparent, I do not regard Mr Maples as a reliable witness and where there is a dispute between his evidence and that given by Mr Tenish, I prefer the evidence given by Mr Tenish. 8 In either June or July 2008, Mr Tenish closed the trust's bank account and transferred the remaining funds (amounting to approximately $13,000) to Siteberg's account. Mr Maples claims to be entitled to half that amount. There is also a dispute about whether Siteberg received amounts totalling $150,000 in respect of projects engaged in by Siteberg as trustee of the Southern Highlands Trust for which Siteberg has not accounted to Mr Maples. 9 Mr Tenish proposed to Mr Maples that they meet with Siteberg's accountant to finalise any financial adjustment between them. That proposal was not acceptable to Mr Maples. Instead, he took a number of extraordinary steps designed to protect his interests. On 4 June 2008, he wrote to the Department as a director of Siteberg asking the Department to change the bank account for Siteberg to which it would make payments to the one nominated in the letter. On 5 June 2008, without Siteberg's or Mr Tenish's knowledge, he lodged a form with ASIC giving notice that he had been appointed a director of Siteberg. He caused false accounts of Siteberg to be prepared which he provided to Kingsway Financial Assessments Pty Ltd, which was conducting a routine review of Siteberg's affairs and operations on behalf of the Department of Commerce. He purchased goods from a number of suppliers and charged the costs of doing so to Siteberg's accounts with those suppliers without Siteberg's consent. He also appears to have prepared an alternative trust deed to which he attached the signature page of the original trust deed. On or about 12 August 2008, he sent a copy of that trust deed to the Department of Commerce together with an undated letter of demand requiring the Department to pay certain moneys to the bank account nominated in the trust deed - which was the bank account previously used by the trust. On 22 September 2008, Mr Maples lodged a notification of details of a charge with ASIC. The liability said to be secured by the charge was described as "Assetts [sic] over company and TRUST" and the amount said to be secured was $300,000. 10 On 3 October 2008, Siteberg commenced proceedings in this court seeking various orders including an order that the trust deed provided to the Department of Commerce was not properly executed and orders restraining Mr Maples from holding himself out as a director or as representing Siteberg. Siteberg also sought a declaration that the trust came to an end on or about 31 May 2008 and a declaration that all contracts entered into by Siteberg since that date have been entered into for its own benefit. Mr Maples did not appear on the return date of the summons. When cross-examined in these proceedings, Mr Maples gave a series of evasive answers about whether he was served with the proceedings commenced in October 2008 by Siteberg. The upshot of his evidence was that he could not recall whether or not he was served with the proceedings. Clearly, however, he was. 11 Rein J made orders substantially in the form sought by Siteberg in the absence of Mr Maples. However, his Honour was not prepared to make orders to the effect that the trust came to an end on 31 May 2008 and that Siteberg since then has entered into contracts on its own account. ASIC was not prepared to remove the charge lodged by Mr Maples without an order pursuant to s 274 or s 1322(4) of the Corporations Act 2001. Consequently, Siteberg filed an amended summons and, on 17 November 2008, Austin J made an order under s 1322(4)(b) directing that the register kept by ASIC be rectified by removing all particulars recorded by ASIC in respect of the details of charge lodged by Mr Maples. Again, the orders were made in the absence of Mr Maples. The proceedings were stood over to the Registrar's List. However, nothing further has happened in them. 12 In the meantime, on 20 July 2009, Mr Maples caused Atco to commence proceedings against Siteberg at Camden Local Court. Atco's claim was expressed to be for: "The loss of money due to lack of supervision and loss of contracts for the Department of Commerce".

Mr Maples says that he served the proceedings by express post. However, Mrs Tenish, who works with her husband and collects the mail for Siteberg, said in an affidavit she filed in the Local Court proceedings that she never received it and Mr Maples' counsel who ultimately appeared in the Local Court proceedings accepted that the proceedings had not been properly served. I do not accept Mr Maples evidence that he posted the summons to Siteberg. In the normal course of events, had he posted it, it would have been received. He engaged in a pattern of behaviour in which he took it upon himself to do things which affected Siteberg without ever giving it notice of what he had done or proposed to do. Moreover, as I will explain shortly, this is not the only occasion on which Mr Maples claims to have posted documents to Siteberg that it never received. 13 Despite the fact that Mr Maples did not notify Siteberg of the proceedings and before, on any view, the time had expired for Siteberg to file a defence, Mr Maples, on 17 August 2009, caused Atco to obtain default judgment against Siteberg. Mr Maples then caused Atco to obtain a garnishee order on the basis of its default judgment. That order was served on Siteberg's bank but not on Siteberg. The bank paid Atco an amount totalling approximately $59,000 in accordance with the garnishee order. Mr Maples says in an affidavit he filed in the Local Court that he did not appreciate that it was necessary to serve the garnishee order on Siteberg. 14 When Siteberg found out what Mr Maples had done, it made an application on 20 August 2009 to set aside the default judgment and garnishee order. At the same time, it commenced proceedings in this court claiming an injunction restraining Mr Maples and Atco from dealing with the money that had been paid pursuant to the garnishee order. 15 Siteberg's application to set aside the default judgment and garnishee orders in the Local Court was heard on 15 September 2009. Mr Maples was represented at that hearing. His counsel conceded that Mr Maples did not have authority to commence the proceedings on behalf of Atco (and, as I have said, that the proceedings had not been properly served). The default judgment and garnishee orders were set aside and Mr Maples was ordered to pay Siteberg's costs on an indemnity basis. Mr Maples now says that his counsel had no instructions to make the concession that he did not have authority to commence the proceedings in Atco's name, although he accepts that he is bound by the concession made on his behalf. 16 In this court, Rein J granted freezing orders against Mr Maples and Siteberg on 20 August 2009. Those orders were extended following an interlocutory hearing on 26 August 2009. After some delay, and a number of interlocutory hearings and mentions at which Mr Maples was represented, the amount that was paid pursuant to the garnishee order was repaid to Siteberg. On 13 November 2009, Rein J ordered that Mr Maples pay Siteberg's costs on an indemnity basis and, on 28 April 2010, I ordered that Mr Maples pay a gross sum of $70,000 in respect of those costs. 17 On 10 February 2010, Mr Maples made another attempt to recover money that he thought was owing to him. This time, he lodged an adjudication application under the Building and Construction Industry Security of Payment Act 1999. In that application, he claimed an amount of $159,776.02. The amount claimed by Mr Maples was said to relate to project management services he supplied to Siteberg in respect of a number of projects on which Siteberg worked for the Department of Commerce during 2008. The application was supported by 41 tax invoices and 14 notices that Mr Maples says were sent to Siteberg and the Department of Commerce. Mr Tenish gave evidence, which I accept, that none of those documents was received by Siteberg, although Mr Maples says that he arranged for the application to be posted to it. In support of that assertion, he provided a statutory declaration to the adjudicator from a Mr Jason Strong who said that he: "… did witness the document titled "Payment Claim under the Building and Construction Industry Security of Payment Act 1999 NSW Section 13" to be hand delivered by myself to a mail box for the purpose of sending said document to the party known as "Siteberg PTY LTD."

However, Mr Strong was not called to give evidence in the hearing before me. Again, I do not accept Mr Maples' evidence on this point. As I have said, the likelihood is that if the documents had been posted, they would have been received by Siteberg. I accept that they were not. It is, of course, possible for things to get lost in the post and the mere fact that a document was not received on one occasion does not mean that it was not sent. However, the likelihood that that would have happened to both sets of proceedings filed by Mr Maples and the various invoices he claims to have sent Siteberg is remote. Moreover, as I have said, Mr Maples has demonstrated a pattern of behaviour in which he has taken action against or affecting Siteberg without giving any notice to Siteberg of what he was doing. Examples include his dealings with ASIC and the Department of Commerce. They also include Mr Maples' application to obtain default judgment and to serve a garnishee order on Siteberg's bank. In my opinion, the likelihood is that he continued that behaviour in relation to the adjudication application. 18 Siteberg's solicitors wrote to the adjudicator on a number of occasions stating that Siteberg was never served with the claim, that it had no business relationship with Mr Maples and that he was not entitled to any part of the amount claimed. Ultimately, the adjudicator rejected those submissions and made a determination in Mr Maples' favour. The adjudicator's precise reasons for doing so are not important. It is, however, significant to note that, throughout this time, Mr Maples maintained his position that the documents had been served on Siteberg and that he was entitled to the amount that he claimed. 19 Following the determination of the adjudicator, Mr Maples commenced proceedings in the Campbelltown District Court in order to register the adjudicator's certificate as a judgment of that court. In response, Siteberg commenced these proceedings. It originally sought an interlocutory injunction restraining Mr Maples from taking any steps to enforce the adjudication determination. An interlocutory injunction, which was opposed by Mr Maples, was granted by Ward J on 18 May 2010. Ultimately, as I have said, Mr Maples, who has been represented throughout the proceedings, consented to the determination being set aside. He does not concede that the application was not served. However, he says that, in circumstances where Siteberg did not receive it, it was appropriate to consent to the orders it sought. In my opinion, that explanation is not plausible. Mr Maples had known for some time that Siteberg asserted that it never received the adjudication application. Nevertheless, he persisted with the application and resisted the interlocutory injunction sought by Siteberg. A more likely explanation of Mr Maples' conduct is that he knew that the application had not been served and that Siteberg was bound to succeed in having the determination of the adjudicator set aside and that, in those circumstances, there was no point in persisting with it. 20 There is one other matter that I should mention which is relevant to the current application. During the course of the hearing, Mr Maples made an application to file a cross-summons seeking orders that the proceedings be referred to an Associate Judge to enquire and certify the assets and liabilities of the Southern Highlands Trust. I dismissed that application on the basis that the application was made very late and that the relief sought was more appropriately sought in separate proceedings. I return to the significance of this matter below. 21 Mr Maples sought to give an explanation of at least some of his conduct in an affidavit filed in these proceedings. He points out, correctly, that the Southern Highlands Trust has not been wound up and that it at least appears that the trust received substantial sums of money in respect of projects performed by it for which it has not accounted to him. He justifies his actions in causing himself to be registered as a director of Siteberg on the basis that he had acted as a de facto director for some time. In support of that assertion, he annexed applications for commercial credit and guarantee forms signed by both him and Mr Tenish, one or more of which were sent under cover of a letter apparently signed by Mr Tenish. Ultimately, however, he was forced to concede in cross-examination that the covering letter had in fact been written and signed by him using Mr Tenish's name. In addition, Mr Tenish gave evidence, which I accept, that Mr Maples had signed the relevant forms without his knowledge or consent. Mr Maples says that he registered the notice of charge to record formally that Siteberg held property on trust. As I have said, he does not accept that his counsel was correct to concede that he did not have authority to commence proceedings in the Local Court on behalf of Atco. He accepts, however, that the pleadings in that claim were defective because they did not properly plead a cause of action but he says that he did not have legal representation at the time he prepared them. Even accepting all these matters, it does not explain why Mr Maples sought to obtain summary judgment without serving the proceedings on Siteberg. In addition, a number of matters are left unexplained - such as the trust deed and accounts that he fabricated or caused to be fabricated and his purchase of goods on Siteberg's credit - and, as I have said, other explanations he gave are implausible - such as his claim that he sent Siteberg by post the various invoices on which he relied in the adjudication application and the application itself. Vexatious Proceedings Act 2008 22 Section 8 of the Vexatious Proceedings Act permits the court to make a vexatious proceedings order in relation to a person if relevantly it is satisfied that "the person has frequently instituted or conducted vexatious proceedings in Australia". 23 Section 8(7) provides: "The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person." 24 "Vexatious proceedings" is defined non-exhaustively in s 6 of the Act to include: "(a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 25 Section 4 of the Act defines "proceedings" broadly to include: "(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question orf a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way." 26 Three questions need to be addressed in this case. The first is whether Mr Maples has instituted or conducted vexatious proceedings in Australia. The second is whether he has done so "frequently". The third is whether, if those two questions are answered affirmatively, the court, in the exercise of its discretion, should make an order in this case. Has Mr Maples conducted vexatious proceedings? 27 Siteberg says that Mr Maples has instituted or conducted 3 proceedings and made 4 applications. The proceedings are the Local Court proceedings, the adjudication proceedings and the proceedings in the District Court to register the certificate given in the adjudication proceedings. The applications are the application for default judgment in the Local Court, an application to oppose the freezing order made by Rein J, an application to oppose the interlocutory injunction sought against him in these proceedings and an application to file a cross-summons in these proceedings. 28 The three proceedings identified by Siteberg are certainly each a proceeding within the meaning of the Act. So also is the application for summary judgment in the Local Court proceedings. It was a proceeding taken in connection with proceedings in the Local Court. I also think that the application to file a cross-summons in these proceedings was a proceeding. Again, it was an interlocutory step taken in the proceedings. However, I do not think that the same can be said of Mr Maples' opposition to the freezing order and the interlocutory injunction. Neither of those actions involved taking a positive step in any proceedings. Both simply involved resistance to the court making orders sought by Siteberg or continuing those orders. By resisting those orders, Mr Maples was not seeking to require Siteberg to do anything; and I do not think that it could be said that Mr Maples was calling into question any decision of the court. 29 In my opinion, the three substantive proceedings and the application for summary judgment in the Local Court were vexatious. The characterisation of the District Court proceedings depends on the correct characterisation of the adjudication proceedings, since the former simply involve enforcement of the latter. In my opinion, the Local Court proceedings, including the application for summary judgment, and the adjudication proceedings were vexatious for several reasons. First, they were both pursued to judgment in circumstances where, to the knowledge of Mr Maples, the originating process had not been served. Secondly, both proceedings were, in my opinion, pursued without reasonable grounds. It is not easy to understand exactly what Mr Maples' complaint was in the Local Court proceedings. The complaint appears to be that Atco suffered damages through the loss of contracts from the Department of Commerce because of something done by Siteberg. Presumably, that something was Mr Tenish signing the contractor performance reports. However, if that is what the complaint is, there is no evidence to support it. In particular, there is no evidence that the reports were incorrect; and, indeed, the position taken by the Department subsequently in relation to Mr Maples suggests that the Department was not prepared to continue to deal with Mr Maples under any circumstances and the reports signed by Mr Tenish were irrelevant to that decision. So far as the adjudication proceedings are concerned, I accept that the invoices on which Mr Maples relied were not sent to Siteberg and there is no evidence that those invoices correspond to any work that Mr Maples did for which he was not paid. In those circumstances, there was no reasonable basis for that claim. Thirdly, and connected to the other two points, I think that the proceedings were vexatious because they were conducted in a way that was designed to harass or annoy Siteberg. What Mr Maples appears to have done is to attempt to obtain by stealth what he regards as justice. In doing so, he has put Siteberg to very substantial and unnecessary expense. 30 On the other hand, I do not accept that Mr Maples' application to file a cross-summons was vexatious. In my opinion, it is appropriate that the trust be wound up and it is quite possible that Mr Maples is owed money by the trust. Mr Benson, who appeared for Siteberg, submitted that it would now be vexatious for Mr Maples to bring a claim seeking to wind up the trust and an account. In his submission, that claim should have been brought as a cross-claim in the proceedings originally commenced by Siteberg and Mr Maples is estopped from pursuing it now. I do not accept that submission. The question whether the trust should be wound up and whether it owes any money to Mr Maples was not resolved by the hearing before Rein J. Indeed, his Honour specifically refused to make orders that would resolve those issues. In those circumstances, I do not see how it could be said that his Honour's judgment resolved those issues or gave rise to some from of Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35. All that has happened is that the issue has been left unresolved by proceedings which themselves have not been finally resolved. Has Mr Maples instituted or conducted vexatious proceedings frequently? 31 "Frequently" is a relative term: Jones v Cusack [1992] HCA 40; (1992) 109 ALR 313; 66 ALJR 815 per Toohey J. For example, it might be said of someone who goes overseas 4 times a year that the person does so frequently. The same could not be said of someone who walks to work 4 times a year. It is uncommon for most individuals to be involved in court proceedings. Consequently, it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently. 32 In determining the question of frequency, it is also important to bear in mind the nature of the proceedings. It is more difficult to say that a person has commenced proceedings frequently where many of the proceedings involve interlocutory applications that are a normal incidence of the principal proceedings. Those interlocutory applications may be vexatious because they are made in furtherance of proceedings which themselves are vexatious. But it does not necessarily follow that the person making the applications has brought vexatious proceedings frequently. It is necessary to examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings or something different for the purpose of assessing the question of frequency. Conversely, the court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter. The court may also be more willing to find that vexatious proceedings are brought frequently where the claim is fanciful. In Jones v Cusack, for example, Mr Cusack had filed two summonses and made 4 other applications concerning the legality of Australia's paper money and banking system. Toohey J had no difficulty in concluding that Mr Cusack had instituted vexatious legal proceedings frequently. See also Attorney General of NSW v Wilson [2010] NSWSC 1008. 33 In this case, Mr Maples pursued one claim himself and caused Atco to pursue another claim against Siteberg. The first claim related to work Mr Maples says he did for Siteberg (as trustee of the Southern Highlands Trust). The second claim appears to have related to damages Atco is said to have suffered as a consequence of the certificates signed by Mr Tenish. Although Mr Maples took a number of other steps which each fall within the definition of "proceedings" each of those steps was a step taken either to enforce judgments he had obtained in respect of the two claims or to defend those judgments. None of the steps Mr Maples took could be described as attempts to re-litigate matters that had been decided against him. Nor could the claims be described as completely fanciful. They arose from a commercial relationship between him and Siteberg where there was at least some basis for a claim. 34 In those circumstances, I am not prepared to find that Mr Maples has instituted or maintained vexatious proceedings frequently. He has clearly engaged in conduct on a number of occasions that might be described as vexatious - such as taking steps to be recorded as a director of Siteberg and creating a forged trust deed. In addition, he has commenced 2 proceedings which are vexatious and taken steps in those proceedings which are also vexatious. However, the vexatious conduct which does not involve instituting or maintaining proceedings is not relevant and, having regard to the particular nature of the proceedings, I do not think that it could yet be said that he has frequently instituted or conducted vexatious proceedings. That is not to say, however, that Mr Maples will not cross the line if he commences further vexatious proceedings. Should the court exercise its discretion? 35 Having regard to the conclusion I have reached in relation to the second issue, this issue does not arise. I should, however, say something about it. 36 In my opinion, on the material I have seen, Mr Maples may have an arguable case that Siteberg has failed to account to him for amounts received by it as trustee of the Southern Highlands Trust before Siteberg ceased in April 2008 to conduct business as trustee of that trust. Siteberg says that little weight should be placed on this consideration because of Mr Maples' conduct to date. In particular, it relies on the fact that Mr Maples has delayed bringing such a claim, that he has sought to justify a claim in respect of the trust by reference to a forged trust deed, that his conduct has already cost Siteberg approximately $200,000 in legal fees and that he has paid none of the costs orders made in Siteberg's favour to date. As a result, it might be argued that Mr Maples could not recover more than he now owes Siteberg in costs. Even accepting all those matters, I would be reluctant to make an order under s 8 of the Vexatious Proceedings Act at this stage even if I were satisfied that Mr Maples has frequently instituted or conducted vexatious proceedings. There is no evidence that Mr Maples is threatening to bring other vexatious proceedings. For the reasons I have given, I do not think that he could be prevented from bringing the proceedings he indicated in his affidavit that he wished to bring. Again, however, that is not to say that the position would not change if Mr Maples instituted or maintained further vexatious proceedings. 37 The orders of the court are:

a The defendant pay the plaintiff's costs of the proceedings so far as those costs relate to the application to set aside the adjudication determination of Mr Les Keady made on or about 22 February 2010; b The proceedings so far as they seek an order pursuant to s 8 of the Vexatious Proceedings Act 2008 be dismissed; c The plaintiff pay the defendant's costs of the proceedings so far as those costs relate to the application under s 8 of the Vexatious Proceedings Act 2008.

14/12/2010 - Typographical error in legislation Vexatious Proceedings Act 2008 should be NSW not Cth - Paragraph(s) not applicable

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