Yap v Australian Securities & Investment Commission

REASONS FOR JUDGMENT ON MOTION TO DISMISS PROCEEDINGS 1 On 7 December 2007 Yap Cheng See filed an application in this Court seeking an order against the Australian Securities and Investments Commission (ASIC) for the reinstatement of a deregistered company, Cheshire Securities Pty Ltd (Cheshire). She sought compensation from ASIC for "wrongful deregistration on 20 June 2000". Orders were also sought against a variety of other parties in the following terms: 2. Curtin University of WA to reinstate the company's 50-years [sic] LEASE executed on 11 August 1988 between Curtin U (Lessor) Cheshire (Lessee) and CS Yap (Guarantor). 3. Esanda F Ltd to reimburse the company all rents derived from its Student Housing "Don Watt House" from 17 November 1988 with interest compounded at Court rate till Judgment and to compensate its Guarantors (Arcola Pty Ltd and CS Yap) for wrongful seizure and sale of their properties. The Registrar of Titles to: a) revert Swan Loc 1978 in CT Vol 1794 Folio 145 back into the name of Yap Cheng See of 57 Whaleback Avenue Parkwood WA, b) revert Swan Loc 73 Lot 6 on Diagram 5694 CT Vol 1590 Folio 117 back into the name of Yap Cheng See of 57 Whaleback Av Parkwood. 4. ANZ and Challenge Bank to reimburse Arcola Pty Ltd rents derived from 58 58A 58B and 60 Second Avenue Rossmoyne from 17 November 1988 with interest at Court rate till Judgment. Challenge Bank to reimburse CS Yap all rents derived from Lot 896/No 235 Preston Point Rd Bicton from 25.5.88 with interest at Ct rate till Judgment. a) Registrar of Titles to revert Lot 337 CT Vol 1773 Folio 274 and Lot 14 on Diagram 23627 CT Vol 1763 Folio 869 back into the name of Arcola Pty Ltd ACN 009 203 838 and b) revert Lot 896/No 235 Preston Point Rd Bicton back into the name of Yap Cheng See of 57 Whaleback Avenue Parkwood. 5. Bank of Singapore to compensate Cheshire Securities Pty Ltd for breach of fiduciary duty to the company and a) Registrar of Titles to revert Portion of Perth Town Lot Y260 and being Lot 100 on Diagram 42401 CT Vol 1337 Folio 399 back into the name of Westpoint Holdings Pty Ltd ACN 009 308 301 and b) Bank of Singapore to reimburse the company rents derived from its property from 23 February 1989 (date Bank released property to a stranger, Mr P Vivante pursuant to Transfer No EO29410 CSY48). 6. Commonwealth Bank to compensate Yap Cheng See all rents derived from Lot 26/No 254 Preston Point Rd Bicton consisting of original house and two Townhouses, from 25.5.88 with interest at Crt rate till Judgment and other damages as the Court sees fit and a) Registrar of Titles to revert Lot 26/No 254 Preston Point Rd Bicton back into the name of Yap Cheng See of 57 Whaleback Avenue Parkwood WA. 7. The DC Bailiff to pay Yap Cheng See $142,000 pursuant to writ of FiFa215/93 issued by M Ellison pursuant to DC1536/89 P Vivante & Co Pty Ltd vs CS Yap which claim proved to be false and which action Esanda F Ltd funded evidence in CSY42 and CSY71. 8. The State of WA to compensate Cheshire Securities Pty Ltd as the Court sees just as it is the victim of Curtin U Student Housing project that WADC facilitated. 9. Mr Peter Fermanis to repay Cheshire Securities Pty Ltd all monies he received from Public Trustee unlawfully pursuant to his SC CIV 1172/88 P Fermanis vs Cheshire Hldgs Pty Ltd CSY2. 10. The bankruptcy of Yap Cheng See pursuant to WG 7047/98 effected by Granich & Asso on 10.12.98 ought to be annulled as a result of fraud by P Vivante & Co Pty Ltd in DC1536/89 in CSY78. 11. On 31.10.93 CS Yap was declared a vexatious litigant pursuant to SC CIV 2722/02 by Granich & Asso ought to be rescinded for same reason as in par 10 evidence in CSY79. 2 An affidavit sworn by Mrs Yap on 5 November 2007 was filed with the application. It was in two volumes. It was long and turgid and covered events dating back to 1987. It appeared to make allegations of fraud and improper conduct against a variety of parties. 3 On 1 February 2008 I made directions that each respondent to the application who had appeared had leave to file a motion together with written submissions as to summary disposition of the proceedings under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act) or as an abuse of the process of the Court or otherwise. A timetable was set for the filing of the motions, submissions and reply submissions. ASIC and Esanda Finance Corporation Ltd (Esanda) both filed motions and submissions. ASIC had already filed an affidavit on 16 January 2008 in opposition to the reinstatement application. The Sheriff for Western Australia and the State of Western Australia who both entered conditional appearances, also filed submissions seeking dismissal pursuant to s 31A. 4 Mrs Yap's application had been served on Freehills on the basis that they were the solicitors for Esanda, Challenge Bank Ltd (Challenge) and Bank of Singapore Ltd. It was also served on the Australia & New Zealand Banking Group Ltd (ANZ). Mr John, a solicitor working at Freehills, swore his affidavit on behalf of Esanda and ANZ. He sought leave to be heard on their behalf on the first return date of the application. 5 Mr John deposed that a substantial aspect of the claim contemplated by the application is the reinstatement of Cheshire to the Register of Companies. Much of the other relief sought in the application was relief sought by Cheshire which would not be able to be pursued if it were not reinstated. He pointed out that Cheshire was previously known as Cheshire Holdings Pty Ltd and was deregistered on 13 April 1992 following a winding up order made by the Supreme Court of Western Australia on 5 September 1990. A copy of the relevant ASIC search was exhibited to the affidavit. 6 As appeared from the present application the purpose of the proposed reinstatement of Cheshire was to enable it to pursue proceedings against Esanda and ANZ in relation to events which evidently occurred in 1988 and 1989. Both Esanda and ANZ deny that they had any liability to Cheshire, Mrs Yap, Arcola Pty Ltd or Akibilt Pty Ltd. They opposed the application to reinstate Cheshire on the grounds that the issues raised by the application were res judicata and/or subject to an issue estoppel. Mr John pointed out that the present application is the fifth attempt by Mrs Yap to reinstate Cheshire. The four earlier applications were unsuccessful. They were as follows: (a) Action COR 220 of 1994 in the Supreme Court of Western Australia. Steytler J then dismissed Mrs Yap's application to reinstate Cheshire together with a related application to stay its winding up. A copy of Steytler J's unreported decision was exhibited. It was delivered on 22 November 1995. Mrs Yap appealed that decision to the Full Court of the Supreme Court of Western Australia. The appeal was dismissed on 9 April 1998 for want of prosecution. An application for special leave to appeal against the decision of the Full Court was lodged. Mr John indicated Esanda did not receive any notice of the outcome of that appeal but presumed that it failed. (b) While the decision of the Full Court of the Supreme Court was pending, Mrs Yap brought a further application in the Supreme Court to reinstate Cheshire in Action COR 131 of 1997. That application was dismissed by Master Sanderson on 11 July 1997. His decision was appealed to the Full Court of the Supreme Court by notice of appeal dated 14 July 1997. Again, Esanda received no notice of any steps taken in relation to that appeal since it was filed. (c) A further application to reinstate Cheshire was made by Mrs Yap on 1 September 1997 in the Supreme Court. It was dismissed by Master Sanderson on 19 September 1997. (d) In the following year another application was made in Action COR 209 of 1998. It was dismissed on 19 August 1998. That was by a decision of Master Sanderson. His decision was appealed to the Full Court of the Supreme Court of Western Australia. Although the notice of appeal was filed in 1998 for some reason it was not heard until February 2007 and dismissed on 8 February 2007. 7 Mr John was aware of two other unsuccessful applications to reinstate Cheshire, being applications by Mr Chong, who is Mrs Yap's son. Those applications were: (a) Action COR 302 of 2001 in the Supreme Court of Western Australia. Master Bredmeyer dismissed the application on 4 October 2001. (b) Action COR 81 of 2002. Master Newnes dismissed the application on 6 June 2003. 8 In the written submissions in support of its motion for the proceeding to be dismissed ASIC referred to the history of past applications to reinstate Cheshire. ASIC also mentioned past attempts at prosecution of civil claims against Esanda, Challenge and the Commonwealth Bank of Australia Ltd (Commonwealth Bank). 9 ASIC submitted that Mrs Yap's reasons for seeking reinstatement of Cheshire appeared to be to enable it to bring the same claims against Esanda, Challenge and the Commonwealth Bank as she had previously brought. The matters sought to be determined in the application had already been considered and ruled upon in earlier proceedings and were therefore the subject of issue estoppel and res judicata. Although there was no issue estoppel strictly arising as between Cheshire and the defendants to the civil claims previously pursued by Mrs Yap, it was said nonetheless to be clear that she was pursuing substantially the same allegations in those proceedings as would be pursued by Cheshire if reinstated. To that extent, the previous civil claims pursued by Mrs Yap indicated that the claims that would be brought by Cheshire had no prospect of success. Even if it could be argued that some allegations of fact in her affidavit were not dealt with in previous proceedings, it was clear enough that the questions in issue in this proceeding relied entirely on facts that could or should have been raised in the earlier proceedings. 10 ASIC submitted that the application could only succeed if it were based on new material facts which had arisen or become known to Mrs Yap after her last application to the Supreme Court of Western Australia. In any event if Cheshire had any valid claims against any of the respondents they must have accrued prior to Cheshire being deregistered on 13 April 1992. Any cause of action was likely now to be statute barred. 11 Mrs Yap filed a response. Her response traversed events that had occurred over the last 20 years or so. I do not propose to descend into an analysis of Mrs Yap's almost unintelligible claims. 12 The remedies sought in the application substantially depend upon the reinstatement of Cheshire. In my opinion that application has no reasonable prospect of success. It is on the face of it an abuse of process. It seeks to relitigate issues that have been litigated over many years. If there be, buried in the mound of material that Mrs Yap submits to this Court, some issue which has not been litigated it is not the task of the Court to unearth it. I will dismiss the application under s 31A of the Act and alternatively on the basis that it is an abuse of process. 13 I am satisfied that Mrs Yap has habitually, persistently and without reasonable grounds instituted vexatious proceedings in this and the Supreme Court of Western Australia, they being this proceeding and the other proceedings referred to in Mr John's affidavit. I therefore direct under O 21, r (1)(b) of the Federal Court of Australia Rules that in future Mrs Yap may not institute a proceeding in this Court without the leave of the Court. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.