Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer

The case involved Finsec Pty Limited as Trustee of the Batterham Retirement Fund, the plaintiff, and Marcel Andre Nauer, the defendant. The dispute arose from an application by the plaintiff to proceed with the litigation without being represented by a solicitor on the record. The matter was heard in the Supreme Court of New South Wales. The plaintiff, a trustee of a retirement fund, sought to litigate against the defendant, who was its sole director, concerning issues related to the management of the fund. The plaintiff initially commenced proceedings represented by its sole director, but the court questioned the appropriateness of this representation given the contentious nature of the claims.

The primary legal issues the court needed to address were whether the plaintiff should be allowed to proceed without a solicitor on the record and if the court should exercise its discretion under the Uniform Civil Procedure Rules to dispense with this requirement. The court considered the plaintiff's history of litigation with the same defendant, the allegations of dishonesty made in the Commercial List Statement, and the director's past conduct, which included multiple dismissed proceedings and significant outstanding costs orders against him. The court was required to determine if these factors justified dispensing with the requirement for legal representation.

The court determined that the plaintiff should not be permitted to proceed without a solicitor on the record. The court found that the director had a history of unethical and irresponsible behaviour, including multiple dismissed proceedings with substantially similar complaints, which undermined the court's confidence in his ability to conduct the litigation ethically and responsibly. Additionally, the court observed that the director had significant outstanding costs orders against him in favour of the defendant, further indicating a lack of credibility and reliability. The court concluded that the proceedings had no reasonable prospect of success and that it was in the interests of justice to maintain the requirement for the plaintiff to be represented by a solicitor.

The court refused the plaintiff's application to proceed without a solicitor on the record and mandated that legal representation be obtained within 28 days. If the plaintiff failed to comply with this order, the defendant was granted leave to apply for the dismissal of the proceedings. The court's decision underscored the importance of adhering to procedural requirements and the need for ethical and responsible conduct in litigation.