A Abi-Rizk v BB Dundas Pty Ltd in its capacity as Trustee of the BB Dundas Trust

[2024] NSWSC 498

Supreme Court

New South Wales

Medium Neutral Citation:

A Abi-Rizk v BB Dundas Pty Ltd in its capacity as Trustee of the BB Dundas Trust [2024] NSWSC 498

Hearing dates:

On the papers

Date of orders:

1 May 2024

Decision date:

01 May 2024

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Paragraphs 1-4 of Notice of Motion dismissed.

Catchwords:

PRACTICE AND PROCEDURE – reagitation of issues already determined by Court.

Legislation Cited:

- Civil Procedure Act 2005 (NSW), s 56

- Corporations Act 2001 (Cth), s 462

- Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Category:

Procedural rulings

Parties:

Antonios Abi-Rizk (First Plaintiff)
Koukab Rizk (Second Plaintiff)
Sonia Rizk (Third Plaintiff)
BB Dundas Pty Ltd in its capacity as Trustee of the BB Dundas Trust (First Defendant)
Habib Boustany (Second Defendant)
Danny Basseal (Third Defendant)
BB & B Penrith Pty Ltd (Fourth Defendant)

Representation:

Solicitors:
Solve Legal (Plaintiffs)
Mr Danny Basseal (self-represented)

File Number(s):

2020/63010

Judgment

1. On 29 April 2024, I heard and determined a Notice of Motion filed by the Plaintiffs in these proceedings, seeking orders for the reinstatement of BB Dundas Pty Ltd (“Company”) and that, upon its reinstatement, the Company be placed in liquidation. The Notice of Motion was called in the Motions List at 9.15am and there was no appearance for any party other than the Plaintiffs in the proceedings. The Notice of Motion was then allocated a hearing time and heard and determined in the late morning on that date.

2. For the reasons set out in my oral ex tempore judgment, which was provided to the parties on 29 April 2024, I made orders that:

1. Pursuant to s 601AH(2) of the Corporations Act, the Australian Securities and Investments Commission reinstate the registration of [the Company].

2. To the extent necessary, dispense with the requirement for service, notice and publication of the application for winding-up.

3. Immediately upon its reinstatement, [the Company] be wound up and Mr Joseph Sleiman be appointed as its liquidator.

4. Leave to continue proceedings 2020/63010 in the Equity Division against [the Company].

5. The costs of this application be reserved to be dealt with in association with the costs of the Equity Division proceedings.

6. The matter be relisted for further directions and/or allocation of a hearing date before the Registrar in the Equity List on 2 May 2024, or such other date as may be agreed between the parties and the Registrar.

7. The Plaintiff[s] use [their] best efforts to give notice to the Defendants in the Equity Division proceedings of these orders by 4pm on 30 April 2024.

3. I note, for completeness, that the Registrar has now vacated the listing of the matter on 2 May 2024, made orders for the Plaintiffs to serve expert evidence by 30 May 2024 and relisted the matter on 6 June 2024.

4. It has now emerged that, after the Notice of Motion had been called in the Corporations Motions List at 9.15am on that date and allocated a hearing time, and possibly after the Motion had been heard and determined, the Third Defendant in the proceedings, Mr Basseal, filed a further Notice of Motion which sought several orders that are inconsistent with the result which I have reached and the orders that I have made and other orders. That Motion was initially made returnable on 22 May 2024, although I have now afforded Mr Basseal the opportunity to make submissions as to why paragraphs 1-4 of his Notice of Motion filed on 29 April 2024 should not be dismissed, or struck out as an abuse of process, on the basis that the orders sought cannot be made where they are inconsistent with my judgment delivered on 29 April.

5. Mr Basseal’s submissions are as follows:

“This notice of motion was given to the desk at the federal court (A gentleman by the name of [redacted]) but from my understanding was not filed since the fee hadn't been paid and the application to defer the payment hadn't been completed. Also, this motion was presented at the federal court before any orders/judgment was provided to us. Also, this motion was supposed to be filed last week by our legal representative who also didn't turn up to the hearing on the 29th of April 2024. I am inexperienced in the correct procedure here and hope this email is sufficient to explain how the motion came to be.”

6. Plainly, the reference to the Federal Court here is in error, since Mr Basseal’s Motion was in fact filed in this Court, even if a filing fee was not paid. If Mr Basseal is represented by solicitors, as his email indicates, it is also not apparent how Mr Basseal could properly file his Motion, which was signed by him on the basis that he was self-represented. I recognise that Mr Basseal’s email may suggest that he did not seek, or does not now seek, to proceed with his Motion after the Court had determined the Plaintiffs’ Motion, although he does not explain how his Motion came to be filed on the same day that the Plaintiffs’ Motion was to be heard and determined. In dealing with the matters that arise from Mr Basseal’s Motion in this judgment, I do not assume, or find, that Mr Basseal had any subjectively improper purpose.

7. First, by paragraph 1 of the further Notice of Motion, Mr Basseal seeks a declaration that the Plaintiffs have no standing to seek the orders sought in their Notice of Motion filed on 17 January 2024. I reached the contrary result in my judgment delivered on 29 April and it is not now open to grant that declaration, for several reasons. First, Mr Basseal was afforded procedural fairness in respect of the Plaintiffs’ Motion determined on 29 April, which required only that he have the opportunity be heard and not that he took advantage of that opportunity. Second, there is no basis to permit the duplication of applications, to permit a respondent to an application who does not participate in the hearing of that application to then seek the opposite result in a new application possibly heard by a different judge, and that approach would obviously be destructive of the just, quick and cheap resolution of the real issues in the proceedings and inconsistent with s 56 of the Civil Procedure Act 2005 (NSW). Third, even if a reinstatement order and the appointment of a liquidator could be characterised as interlocutory rather than final relief, there has been no change of circumstances which would warrant the Court reopening the questions which have already been determined on their merits. Fourth, the Court should not exercise its discretion to make a declaration that is inconsistent with the orders that it has already made on the merits.

8. Second, by paragraph 2 of the further Notice of Motion, Mr Basseal seeks an order that, purportedly in accordance with s 462(4) of the Corporations Act 2001 (Cth), the Notice of Motion must not be heard. Plainly, that order cannot be made, because the application has already been heard and determined, quite apart from the fact that that section (which was addressed in submissions in the earlier hearing and in my judgment) does not require that result. Third, by paragraph 3 of the further Notice of Motion, Mr Basseal makes a statement, which may be impliedly an application for a declaration or an order, that the Plaintiffs are not entitled to apply for an order to wind up the Company. Such a declaration or order would not be made, where I have determined that matter to the contrary in my earlier judgment and no basis to reopen that determination is shown. Fourth, by paragraph 4 of the further Notice of Motion, Mr Basseal seeks an order that the Notice of Motion filed by the Plaintiffs on 17 January 2024 be dismissed. That order cannot be made where that Notice of Motion has been determined, by my earlier judgment and orders, in the Plaintiffs’ favour and no basis to reopen that determination is shown.

9. As I noted above, I have allowed Mr Basseal an opportunity to make submissions. The submissions he has made do not indicate any reason to reopen the matters addressed by my judgment, so as to allow him to reagitate the issues that I have already determined, and as to which he had the opportunity to be heard, at a later date. Paragraphs 1 – 4 of Mr Basseal’s Notice of Motion filed on 29 April 2024 should be dismissed as an abuse of process, or alternatively because the declarations and orders he seeks cannot and should not be made for the reasons noted above. Accordingly, I have made orders in Chambers dismissing paragraphs 1 – 4 of Mr Basseal’s Notice of Motion filed on 29 April 2024.

10. Paragraph 5 of Mr Basseal’s Notice of Motion raises a different question, whether the proceedings generally should be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), which deals with the dismissal of proceedings where a plaintiff does not prosecute the proceedings with due dispatch, and paragraph 6 of that Notice of Motion raises a consequential question as to the costs of the proceedings. These matters may properly be left to the Registrar or another judge in the Equity Division for determination, where that determination would not be inconsistent with my judgment. Paragraph 7 of Mr Basseal’s Motion raises the question of the costs of his Motion. That should also be left for future determination, where the result may depend in part on the outcome of the remaining issues raised by paragraphs 5 and 6 of that Notice of Motion.

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Decision last updated: 03 May 2024