In the matter of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363)

[2023] NSWSC 503

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) [2023] NSWSC 503

Hearing dates:

24, 26, 27, 28 April and 5 May 2023, with further written submissions received on 5 and 11 May 2023

Date of orders:

15 May 2023

Decision date:

15 May 2023

Jurisdiction:

Equity - Corporations List

Before:

Williams J

Decision:

See orders at paragraph [355].

Catchwords:

CIVIL PROCEDURE – vexatious proceedings orders

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 58, 64, 91
Corporations Act 2001 (Cth) ss 480, 482(1), 482(3), 488(2), 530C, sch 2 s 90-15(1)
Evidence Act 1995 (NSW) s 91
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 4
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5
Real Property Act 1900 (NSW) ss 42, 43, 74MA
Supreme Court Act 1970 (NSW) s 67
Trustee Act 1925 (NSW) s 63
Vexatious Proceedings Act 2008 (NSW) ss 4, 6(a), 6(b), 6(c), 6(d), 7, 8(1), 8(2)(a), 8(2)(c), 8(3), 8(4), 8(7)(a), 8(7)(b)

Cases Cited:

Andy Vuong Duc Pham v Enterprise ICT Pty Limited (Supreme Court of New South Wales, 30 May 2022, unrep)
Attorney-General v Tareq Altaranesi [2013] NSWSC 63
Bathis-Brown v Woods [2015] NSWSC 1194
CBRE (V) Pty Limited v Trilogy Funds Management Limited (2021) 107 NSWLR 202; [2021] NSWCA 316
Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185
In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703
In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919
In the matter of ENA Development Pty Ltd (in liquidation) (Costs) [2023] NSWSC 162
In the matter of ENA Development Pty Ltd [2022] NSWSC 54
In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478
In the matter of Raejoe Pty Limited (receiver and manager appointed) (administrators appointed) as trustee for “The Coe Family Trust” [2012] NSWSC 1457
In the matter of Spartan Pastoral Company Pty Ltd (in liquidation) [2020] NSWSC 1218
Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134
Metcash Ltd v Jardim (No 2) [2010] NSWSC 1042
Mohareb v Palmer (No 2) [2020] NSWCA 324
O’Neill v Kwon [2016] NSWSC 1706
Official Trustee v Bankruptcy v Gargan (No 2) [2009] FCA 398
One T Development Pty Ltd v Peter Krejci (Court of Appeal (NSW), 20 February 2023, unrep)
Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446
Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; (2015) 53 Fam LR 308; [2015] NSWCA 129
Quach v New South Wales Health Care Complaints Commission [2017] NSWCA 267
Ronald Jemmott v ENA Development Pty Ltd (in liquidation) (Supreme Court of New South Wales, 6 January 2023, unrep)
Ronald Jemmott v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liquidation) (Federal Court of Australia, 8 February 2023, unrep)
Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2
Sebie v Pham (No 3) [2021] NSWCA 277
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 323 ALR 1; (2015) 254 IR 371; [2015] HCA 28
Toronto (City) v C.U.P.E Local 79 [2003] 3 SCR 77; [2003] SCJ No 64; 232 DLR (4th) 385; 9 Admin LR (4th) 161; 2003 SCC 63
UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77; (2018) 92 ALJR 968; (2018) 360 ALR 184; [2018] HCA 45
Viavattene v Attorney-General (NSW) [2015] NSWCA 44
Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) (First Plaintiff)
ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) (Second Plaintiff)
Robert Sebie (First Defendant)
Ronald Jemmott (Second Defendant)
One T Development Pty Ltd (ACN 632 081 853) (Third Defendant)
Enterprise ICT Pty Ltd (ACN 169 428 988) (Fourth Defendant)
Enterprise INT Pty Ltd (ACN 604 743 740) (Fifth Defendant)

Representation:

Counsel:
Mr M L Rose (Plaintiffs)

Solicitors:
ERA Legal (Plaintiffs)

Appearances in person:
Robert Sebie (Litigant in person) (First Defendant)

No appearance:
Ronald Jemmott (Second Defendant)
One T Development Pty Ltd (ACN 632 081 853) (Third Defendant)
Enterprise ICT Pty Ltd (ACN 169 428 988) (Fourth Defendant)
Enterprise INT Pty Ltd (ACN 604 743 740) (Fifth Defendant)

File Number(s):

2023/107422

Publication restriction:

N/A

Judgment

1. Introduction

1. On 27 January 2022, this Court made orders in proceeding 2021/303982 winding up ENA Development Pty Ltd (ACN 105 235 363) (ENA Development) in insolvency and appointing Mr Peter Krejci as its liquidator (the winding up proceedings). By further order of this Court made on 3 February 2022, Mr Krejci was appointed as receiver of the assets of the ENA Development Trust (the Trust) pursuant to s 67 of the Supreme Court Act 1970 (NSW). Although Mr Krejci holds these separate appointments, I will generally refer to him in these reasons as the Liquidator.

2. The Liquidator and ENA Development are the first and second plaintiffs (respectively) in these proceedings brought under the Vexatious Proceedings Act 2008 (NSW).

3. The first defendant, Mr Robert Sebie, was the sole director, secretary, and shareholder of ENA Development when it was incorporated on 24 June 2003. According to a Form 484 lodged with the Australian Securities and Investments Commission (ASIC) on 5 March 2018—and apparently dated 19 November 2007—Mr Sebie was removed as a director, secretary, and shareholder of ENA Development with effect from 25 June 2003, one day after its incorporation. According to that Form 484, Mr Sebie was replaced by Ms Rose Sebie as the sole director and shareholder and Ms Raymonda Gayed become the sole shareholder of ENA Development, with effect from 25 June 2003. Ms Rose Sebie is Mr Sebie’s mother. Ms Gayed is Mr Sebie’s sister. According to ASIC’s register, Ms Rose Sebie is currently the sole director and secretary of ENA Development, with Mr Mazen Zraika and Mr Ronald Jemmott listed as alternate directors. Ms Gayed owns 99.6 per cent of the issued shares in ENA Development. The remaining shares are owned by Mr Jemmott and Mr Zraika.

4. Mr Jemmott is the second defendant in these proceedings. In addition to being an alternate director and minority shareholder of ENA Development, Mr Jemmott is the sole director and sole shareholder of each of the third defendant—One T Development Pty Ltd (One T Development)—and the fifth defendant—Enterprise INT Pty Ltd (Enterprise INT). According to ASIC’s register, Mr Jemmott does not own his shares in One T Development beneficially.

5. The fourth defendant in these proceedings is Enterprise ICT Pty Ltd (Enterprise ICT). Mr Sebie has been the sole director of that company since 19 August 2022. Prior to that date, the directors were Ms Gayed (from the company’s incorporation on 7 May 2014 until 19 August 2014) and Mr Richard Sebie (from 19 August 2014 until 18 August 2022). Ms Gayed is the sole shareholder. Mr Richard Sebie and Mr Robert Sebie are brothers. References to Mr Sebie in these reasons for judgment are references to Mr Robert Sebie.

6. The plaintiffs contend that various proceedings and interlocutory applications instituted and conducted by the defendants in this Court, in the Federal Court of Australia, and in the Federal Circuit and Family Court of Australia in the period since May 2022—all of which related to, or were connected with, the winding up of ENA Development—are vexatious proceedings within the meaning of the Vexatious Proceedings Act.

7. The plaintiffs seek the following orders against each of the five defendants: [1]

   1. Prayers 5, 5A, 6 and 7 of the Amended Originating Process filed in court on 27 April 2023. In closing submissions on 28 April 2023, the plaintiffs abandoned any reliance on the inherent jurisdiction of the Court as an alternative basis for the relief sought.

1. an order pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) that the defendants (by themselves, or by their servants or agents) be prohibited from instituting any proceedings in New South Wales, or filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person against:

1. the Liquidator;

2. ENA Development;

3. any current or former director, employee, agent, or consultant of the Liquidator’s firm, BRI Ferrier; and

4. any current or former director, employee, agent, or consultant of the plaintiffs’ solicitors in these proceedings, ERA Legal,

5. relating to or in any way connected with the winding up of ENA Development, without first obtaining leave of this Court;

2. orders pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) that the following proceedings be stayed:

1. Supreme Court of New South Wales proceeding 2023/33566; and

2. any other proceeding commenced on or after 27 April 2023 by or on behalf of any one or more of the defendants relating to or in any way connected with the winding up of ENA Development;

3. orders (or notations) that, for the purposes of the orders sought above (if made), a defendant is to be taken to do something in the name of another person or company if they sign any document in the name of, or purportedly in the name of, or purportedly on behalf of, any other person or company, or file, or cause to be filed with a court or tribunal, or make any oral application to any court or tribunal in the name of, or purportedly on behalf of, any other person or company; and

4. an order that the defendants pay the plaintiffs’ costs of these proceedings.

8. By notice of motion filed on 26 April 2023, Mr Sebie seeks an order striking out the present proceedings as an abuse of process. The principal basis of that application is Mr Sebie’s contention that the plaintiffs are seeking in these proceedings the same relief that they sought in an application that has already been heard in proceedings in the Federal Circuit and Family Court of Australia.

9. The proceedings were heard over five days during the period from 24 April to 5 May 2023. Mr Rose of counsel appeared for the plaintiffs. Mr Sebie represented himself but failed to attend court at various times during the hearing. There was no appearance on behalf of the other defendants. Evidence adduced by the plaintiffs established that each of the defendants had been served in accordance with orders made on 3 April 2023.

10. The balance of these reasons for judgment is structured as follows:

Section II: Summary of evidence

This section summarises the evidence adduced by the plaintiffs and by Mr Sebie to the extent that it is relevant to the plaintiffs’ claims for vexatious proceedings orders and/or to Mr Sebie’s contention that these proceedings are an abuse of process.

Section III: Procedural history of the present proceedings and the conduct of the hearing between 24 April and 5 May 2023

This section explains the procedural history of the present proceedings and the manner in which the hearing was conducted.

Section IV: Applicable legislation and legal principles

This section summarises the relevant provisions of the Vexatious Proceedings Act and the established principles that apply to the determination of claims for vexatious proceedings orders under the Act, including the principles concerning abuse of process which are relevant to Mr Sebie’s application to strike out the proceedings as well as to the plaintiffs’ claims under the Act.

Section V: Mr Sebie’s claim that these proceedings are an abuse of process

This section addresses Mr Sebie’s claim made in his notice of motion filed on 26 April 2023 that these proceedings are an abuse of process.

Section VI: The allegedly vexatious proceedings

This section identifies each of the proceedings relied upon by the plaintiffs as being vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

Section VII: Determination in relation to each allegedly vexatious proceeding

This section examines each of the proceedings identified in Section VI and sets out my determination in respect of each proceeding, having regard to the evidence referred to in Section II and applying the legislation and principles referred to in Section IV.

Section VIII: Has each defendant frequently instituted or conducted vexatious proceedings in Australia?

This section addresses the question whether each of the defendants—Mr Sebie, Mr Jemmott, One T Development, Enterprise ICT, and Enterprise INT—has frequently instituted or conducted vexatious proceedings in Australia, or has instituted or conducted vexatious proceedings in Australia acting in concert with one or more of the other defendants who has frequently instituted such proceedings.

Section IX: Should vexatious proceedings orders be made in respect of any or all of the defendants?

This section addresses the matters relevant to the exercise of the discretion whether to make vexatious proceedings orders, and the terms on which any such orders should be made.

Section X: Orders

This section sets out the final orders that I have determined to make to dispose of these proceedings.

1. Summary of evidence

11. The following summary is drawn from the evidence adduced by the plaintiffs and by Mr Sebie at the hearing before me that was conducted over five days during the period from 24 April to 5 May 2023.

Proceedings relating to the Chiswick property

12. From 2015, Mr Sebie, ENA Development, Mr Any Vuong Duc Pham, and Mrs Thi Huong Giang Pham were parties to proceedings in this Court in relation to disputes arising from the sale of a property at 11 Tutt Crescent, Chiswick, in New South Wales (the Chiswick property).

13. The following summary of the evidence concerning the proceedings relating to the Chiswick property is drawn from the Liquidator’s affidavit affirmed on 22 March 2023 and read in the present proceedings, findings made in judgments of the Court in earlier proceedings referred to in the Liquidator’s affidavit, and documents exhibited to the Liquidator’s affidavit. The summary is limited to those matters that are relevant to my assessment of the evidence relating to Mr Sebie’s application made in one of those earlier proceedings on 30 May 2022. That application, which was dismissed on 14 October 2022, is one of the proceedings that the plaintiffs contend was a vexatious proceeding.

14. Mr Sebie purchased the Chiswick property in September 2005.

15. On 29 October 2014, Mr Sebie entered into a contract for the sale of the Chiswick property to Mr and Mrs Pham for $2,200,000.00. The date fixed for settlement came, and went, and Mr Sebie failed to comply with a notice to complete issued by Mr and Mrs Pham. In February 2015, Mr and Mrs Pham lodged a caveat on the title to the Chiswick property and commenced proceedings 2015/325044 against Mr Sebie for specific performance of the contract for sale (the Chiswick specific performance proceedings). [2]

    2. Pham v Enterprise ICT Pty Ltd [2017] NSWSC 446 at [21]-[29].

16. On 15 May 2015, ENA Development commenced proceedings 2015/145498 against Mr Sebie seeking possession of the Chiswick property, claiming to have a security interest in the Chiswick property (the Chiswick possession proceedings). [3]

    3. Ibid.

17. Mr Sebie claimed to have served a lapsing notice on Mr and Mrs Pham with respect to their caveat on 19 June 2015. That claim was ultimately rejected by Pembroke J in his Honour’s judgment referred to at [22] below. Pembroke J found that Mr Sebie had made a false statutory declaration on 23 June 2015 relating to service of the lapsing notice, and that he had compounded that dishonesty by swearing several affidavits in the Chiswick possession proceedings repeating the false claim that he had served the lapsing notice. [4]

    4. Ibid at [32], [39]-[45].

18. On 6 July 2015, ENA Development obtained judgment by consent for possession of the Chiswick property in the Chiswick possession proceedings. Mr and Mrs Pham were not a party to those proceedings. [5]

    5. Ibid at [31]-[33].

19. Approximately two weeks after that judgment was entered in favour of ENA Development, a document described as a deed of arrangement between ENA Development and Enterprise ICT was created and signed by Ms Rose Sebie as a director of ENA Development and by Mr Richard Sebie as a director of Enterprise ICT. That document provided that ENA Development would transfer the Chiswick property to Enterprise ICT, with no moneys to be exchanged for the transfer due to the shareholders of the two companies being identical. The document stated that ENA Development had obtained possession of the property as full and final settlement for a loan. ENA Development had lodged a caveat against the Chiswick property in February 2014 claiming an interest in the land by reason of an unsecured loan made to Mr Sebie to fund his purchase of the Chiswick property. However, in correspondence with Mr and Mrs Pham concerning his delay in completing the contracts for sale of land during January and February 2015, Mr Sebie had contended that the loan from ENA Development was secured over the Chiswick property. [6]

    6. Ibid at [16]ff and [34].

20. On 20 July 2015, Mr Sebie signed a transfer of the Chiswick property to Enterprise ICT. [7]

    7. Ibid at [35].

21. Mr and Mrs Pham then lodged a second caveat over the Chiswick property. A lapsing notice with respect to that second caveat was served on Mr Pham on 23 October 2015, resulting in the commencement of further proceedings by Mr and Mrs Pham to extend the operation of that caveat. Those proceedings were consolidated with the Chiswick specific performance proceedings. [8]

    8. Ibid at [12]; [35].

22. The consolidated Chiswick specific performance proceedings were heard and determined by Pembroke J in April 2017. His Honour held that Mr and Mrs Pham had an equitable interest in the Chiswick property as the purchasers under the contract for sale dated 29 October 2014, and that their interest had not been defeated by Mr Sebie’s transfer of the Chiswick property to Enterprise ICT, which was fraudulent within the meaning of ss 42 and 43 of the Real Property Act 1900 (NSW). His Honour held that the registration of the transfer to Enterprise ICT should be set aside, and that Mr and Mrs Pham were entitled to an order for specific performance of the contract dated 29 October 2014. [9]

    9. Ibid at [56]-[58].

23. An appeal by Enterprise ICT and Mr Sebie was dismissed on 15 August 2018. [10] In the meantime, the Chiswick property had been transferred to Mr and Mrs Pham, and the sale proceeds had been paid into court in May 2018. ENA Development claimed to have a charge over the sale proceeds to secure the repayment of a loan allegedly made to Mr Sebie when he first purchased the Chiswick property in September 2005, together with a further sum that ENA Development claimed to have paid to the Commonwealth Bank of Australia in July 2015 to discharge that bank’s registered first mortgage over the Chiswick property. The discharge of that registered first mortgage had occurred at the time of Mr Sebie’s transfer of the Chiswick property to Enterprise ICT, which Pembroke J had found to be fraudulent as referred to above.

    10. Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185.

24. The judgment of Pembroke J and the appeal did not determine a cross-claim that ENA Development had filed in the Chiswick specific performance proceedings against Mr Sebie (as the first cross-defendant), Mr and Mrs Pham (as the second and third cross-defendants), and Mr Sebie’s former wife (as the fourth cross-defendant). The final iteration of that cross-claim was a Further Amended Cross-Claim filed on 6 August 2021. The cross-claim sought a declaration to the effect that ENA Development had a charge over the Chiswick property sale proceeds and various other declarations.

25. Shortly after his appointment on 27 January 2022, the Liquidator came into possession of a Defence to the Further Amended Cross-Claim. That Defence, which appears on the face of it to have been signed by Mr Sebie and which was ostensibly prepared in his name, was dated 24 August 2021. It contained admissions to allegations to the following effect in the Further Amended Cross-Claim:

1. ENA Development made a loan of $1,379,315.00 to Mr Sebie in or about September 2005 that was secured by way of charge or other security interest over the Chiswick property upon Mr Sebie becoming the registered proprietor of that property;

2. Mr Sebie’s title to the Chiswick property remained subject to that charge or security interest in favour of ENA Development, in addition to a registered first mortgage in favour of the Commonwealth Bank of Australia, when Mr Sebie contracted to sell the Chiswick property to Mr and Mrs Pham in October 2014;

3. ENA Development paid the sum of $504,709.00 to the Commonwealth Bank of Australia in July 2015 to discharge the bank’s registered first mortgage over the Chiswick property, and ENA Development was thereby subrogated to the bank’s rights as registered first mortgagee;

4. ENA Development’s security interest in the Chiswick property arising from its loan to Mr Sebie, and its discharge of the Commonwealth Bank of Australia’s mortgage, ranked in priority ahead of the alleged interest of any other person, including Mr Sebie;

5. the purchase price for the Chiswick property that Mr and Mrs Pham had paid into court in May 2018 (referred to as the Fund) is the property of Mr Sebie, subject to a charge or security interest in favour of ENA Development to secure repayment of the moneys advanced to Mr Sebie in September 2005 and the moneys paid by ENA Development to discharge the registered first mortgage in July 2015; and

6. the amount owing to ENA Development and secured by the charge or security interest over the Fund was $3,852,006.00 (including compound interest) as at May 2019. I note that this amount substantially exceeded the amount of the Fund, because it substantially exceeded the total price of $2,200,000.00 paid by Mr and Mrs Pham for the Chiswick property. [11]

   11. See [15] above.

26. The only allegation in ENA Development’s Further Amended Cross-Claim that Mr Sebie denied or did not admit was a statement that his former wife had been added as a party to the cross-claim as a consequence of an assertion by her legal representative that she was a proper party to the cross-claim.

27. Following his appointment on 27 January 2022, the Liquidator caused ENA Development to enter into a deed of settlement with each of Mr and Mrs Pham and Mr Sebie’s former wife resolving the remaining issues in the Chiswick specific performance proceedings. The Liquidator has given evidence in the present proceedings that he did not involve Mr Sebie in the negotiation of the terms of that deed—and did not seek to include Mr Sebie as a party to that deed—because Mr Sebie appeared to support ENA Development’s claim to be entitled to the Fund.

28. At a directions hearing in the Chiswick specific performance proceedings on 22 April 2022, Mr and Mrs Pham were represented by Mr Zipser of counsel, ENA Development (then in liquidation) was represented by Mr Rose of counsel, and each of Mr Sebie and his former wife appeared in person. The transcript records that Mr Rose informed Sackar J that the parties, save for Mr Sebie, had agreed to resolve ENA Development’s cross-claim on the terms of orders that had been sent to his Honour’s Associate. Mr Rose continued:

“That leaves Mr Sebie’s position on the cross-claim unresolved. We have invited Mr Sebie to consent to judgment but he hasn’t. We have done this in circumstances where the defence filed to the cross-claim admitted all save one of the subparagraphs of the cross-claim, and the one subparagraph of which issue is joined is not germane to the claim in any material sense, the short point being that it is not clear to us where [sic] Mr Sebie would not consent to judgment, having regard to his admission of all material facts in the cross-claim.”

29. That led to the following exchange between his Honour and Mr Sebie:

“HIS HONOUR: Mr Sebie, is there any explanation of why you don’t want to consent?

SEBIE: Your Honour, I haven’t seen the alleged agreement between the parties, I have asked for a copy of that multiple times.

HIS HONOUR: … what you have in front of you just at the moment, first of all you have the terms and conditions of the short minutes which I am being asked to make today which I am told are being consented to. Secondly, you are being told that you have made admissions and, if that is not true, by all means correct it, but … as Mr Rose puts it … you have made admissions in your defence to the cross-claim which he says in effect against you is game, set and match, there is nothing left for you to argue, because of the admissions you have made. …

SEBIE: I haven’t seen those short minutes …

…

HIS HONOUR: Mr Sebie, what I’m going to do is I’m going to make these orders, and I’m going to leave it then to Mr Rose to initiate such further proceedings as may be necessary to secure an arrangement between them and you, or, rather, to secure the dismissal of your defence or whatever other course Mr Rose may be instructed to take to conclude the matters in totality.”

30. Sackar J then made the orders that had been agreed as between ENA Development, Mr and Mrs Pham, and Mr Sebie’s former wife, in circumstances where his Honour had been informed that Mr Sebie had admitted all of the allegations in ENA Development’s cross-claim, where his Honour had invited Mr Sebie to inform him if that was not correct, and where Mr Sebie had not disputed the correctness of what Mr Rose had told his Honour about Mr Sebie’s admissions. Those orders were in the following terms:

“1.   Judgment be entered in favour of the cross claimant, ENA Development Pty Ltd (in liquidation), on the Further Amended Cross Claim filed 6 August 2021.

2.   Order that the Further Amended Cross Claim as against the second cross defendant (Andy Vuong Duc Pham), third cross-defendant (Thi Huong Giang Pham) and fourth cross-defendant [Mr Sebie’s former wife] be discontinued.

3.   Order that the cross claimant pay the second and third cross defendants’ costs in respect of the cross-claim in the amount of $171,460.70.

4.   To give effect to order 3, order that the Supreme Court Registrar pay:

a.   The $125,000 paid into court as security for the second and third cross defendants’ costs of the cross claim to the second and third cross defendants by payment into the trust account of Andy Pham Lawyers in partial satisfaction of order 3 of these orders; and

b.   The amount of $46,460.70 out of the money held in Court comprising the sale proceeds of the property at 11 Tutt Crescent, Chiswick NSW 2046 (the Fund) to the second and third cross defendants by payment into the trust account of Andy Pham Lawyers.

5.   Order that the cross claimant pay the fourth cross defendant’s costs in respect of the cross claim in the amount of $75,000.

6.   Order that the balance of the Fund (after payment referred to in order 4 above) be paid to the cross-claimant.”

31. Immediately after making those orders, during that same directions hearing on 22 April 2022, Sackar J indicted that the matter would be stood over to 29 April 2022 for the Court to be informed on that occasion what was to be done about Mr Sebie’s position. It was then that Mr Sebie disputed—for the first time during that directions hearing—that he had made the admissions or filed a defence to the cross-claim. His Honour indicated that the matter would be stood over to 29 April 2022 on the basis that ENA Development would send Mr Sebie a copy of the defence that it understood he had filed to its cross-claim, and in order to give Mr Sebie time to check his records.

32. Prior to the conclusion of the directions hearing, Mr Rose informed the Court that Mr Sebie’s defence containing the admissions had been included in a court book that had been provided to the chambers of Sackar J prior to a hearing before his Honour in the Chiswick specific performance proceedings commencing on 6 December 2021, prior to the winding up of ENA Development. The evidence adduced by the Liquidator in these proceedings includes the transcript of Mr Sebie’s cross-examination during that hearing on 10 December 2021. Mr Sebie gave evidence under cross-examination to the effect that he borrowed approximately $1,400,000.00 from ENA Development to fund his purchase of the Chiswick property in September 2005, that he signed a loan agreement with ENA Development recording the terms of that loan on 15 September 2005 on the same day that he purchased the Chiswick property, that he had no doubt that he was required to repay the loan to ENA Development, and that it was his understanding that ENA Development would be able to sell the Chiswick property if he were unable to repay the loan.

33. The inclusion of Mr Sebie’s signed defence in the court book, together with Mr Sebie’s evidence in cross-examination which is broadly consistent with the admissions in his defence, appear to have formed the basis of the Liquidator’s assumption at the directions hearing on 22 April 2022 that Mr Sebie’s defence had been filed. Sackar J noted during the directions hearing on 22 April 2022 that, if Mr Sebie had not filed any defence to the cross-claim, he would be out of time to do so without leave.

34. There is no evidence before the Court in the present proceedings about what occurred at the further directions hearing in the Chiswick specific performance proceedings on 29 April 2022.

35. On 30 May 2022, Mr Sebie filed a notice of motion in the Chiswick specific performance proceedings seeking the following orders:

“1.   The consent orders (‘consent orders’) made on 22 April 2022 to be stayed and set aside, Pursuant to Reg 36.16 Uniform Civil Procedure Rules 2005.

2.   The fund of $171,460.70 associated with the consent orders ‘sitting in the Trust account of Andy Pham Lawyers’ to be transferred to Robert Sebie forthwith.

3.   The fund of $1,739,780.47 associated with the consent orders ‘sitting in the Trust account of Peter Krejci (ENA Development Pty Ltd)’ to be transferred to Robert Sebie forthwith.

4.   Costs.”

36. As referred to at [74]-[79] below, that notice of motion was subsequently amended by Mr Sebie on 15 August 2022, and was ultimately dismissed by Black J on 14 October 2022.

The Trust proceedings

37. ENA Development is the registered proprietor of Lot 36 in Strata Plan 74598 in Homebush, New South Wales (the Homebush property).

38. On 3 February 2022, the Liquidator commenced proceedings 2022/32115 in this Court seeking an order appointing him as receiver of the assets of the Trust the Trust proceedings).

39. On 9 May 2022, the Liquidator filed an interlocutory process in the Trust proceedings seeking orders pursuant to s 90-15(1) of Schedule 2 to the Corporations Act 2001 (Cth) (the Insolvency Practice Schedule (Corporations)), or alternatively under s 63 of the Trustee Act 1925 (NSW), that he would be justified in treating the following assets as assets to which ENA Development is beneficially entitled:

1. the Homebush property;

2. the Fund paid into court by Mr and Mrs Pham in the Chiswick specific performance proceedings, representing the proceeds of sale of the Chiswick property;

3. shares and securities listed on the Australian Stock Exchange and traded through a Commonwealth Securities Limited account maintained in the name of ENA Development; and

4. monies held in an account with the Commonwealth Bank of Australia in the name of ENA Development.

40. That interlocutory process was heard by Stevenson J on 14 and15 June 2022. One T Development was the second defendant in the Trust proceedings and acted as contradictor to the Liquidator’s application.

41. Mr Jemmott gave evidence on behalf of One T Development during that hearing. In the course of his reasons for judgment published on 11 July 2022, Stevenson J made the following observations about Mr Jemmott’s evidence:[12]

“[22]   Mr Jemmott made a number of affidavits on this application. However, he did not draft his affidavits alone. He said that ‘they were drafted in the office between myself’, Mr Mohamed El-Masri, who Mr Jemmott described as ‘the accountant’, and by someone he described as Ms Sophie Georgy.

[23]   Mr Jemmott agreed that he had not himself located the documents he exhibited to his affidavits. He said he relied on Mr El-Masri to obtain those documents.

[24]   Mr Jemmott gave his evidence by Audio Visual Link. Initially Mr El-Masri was in the room with him when he was being cross-examined. After I asked Mr El-Masri to leave the room, Mr Jemmott referred on multiple occasions to ‘notes’ he said he had prepared for his cross-examination and did so despite my direction that he cease doing so. Very often, he paused for some time before answering questions in cross-examination. He appeared often to be searching for documents that might assist him answer the questions. The impression I gained was th[at] Mr Jemmott has little, if any, personal knowledge of the affairs of One T Development about which he was purporting to give evidence.”

12. In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919 at [22]-[24].

42. Stevenson J also stated:[13]

“It is not clear what relationship exists between One T Development and ENA. Nor is it clear whether Mr Jemmott is the controlling mind behind One T Development, nor whether he was in truth acting independently of those that were the controlling minds behind ENA, prior to Mr Krejci’s appointment.”

13. Ibid at [21].

43. In relation to the Homebush property, Stevenson J referred to the Liquidator’s evidence that he had applied to be appointed as receiver of the assets of the Trust on the basis of the limited books and records available to him, and the limited investigations that he had undertaken at that early stage of his appointment as Liquidator, which led him to believe that ENA Development was the trustee of the “ENA Development Trust” and that it held the Homebush property “on trust for the ENA Trust”. [14]

    14. Ibid at [56].

44. On the basis of the more extensive evidence that subsequently emerged, which was adduced at the hearing before his Honour, Stevenson J rejected One T Development’s contentions that the Homebush property was held as an asset of one of two trusts—referred to as the “Fixed Trust” and the “Concessional Trust”. His Honour accepted the Liquidator’s submission that there was no reliable basis upon which it was possible to conclude that the Homebush property was held on any trust. His Honour advised the Liquidator that he would be justified, and would be acting reasonably, in treating the Homebush property as being beneficially owned by ENA Development. [15]

    15. Ibid at [53]-[83].

45. Stevenson J did not find it necessary to determine One T Development’s claim to have been appointed as the trustee of one or both of the Fixed Trust and the Concessional Trust. The Liquidator’s application for advice concerned whether he would be justified in treating the relevant assets as being owned by ENA Development beneficially. The application did not call for any determination as to whether those assets—assuming that they were not owned by ENA Development beneficially—were owned by ENA Development as the trustee of either, or both, of the Fixed Trust and the Concessional Trust. Nor did the Liquidator’s application call for the Court to determine whether One T Development was now the trustee of either, or both, of those trusts. [16]

    16. Ibid at [48]-[51].

46. In relation to the Fund, Stevenson J observed that ENA Development had not yet established its entitlement to the Fund, referring to a recent judgment of the New South Wales Court of Appeal in which Bell P (as the Chief Justice then was) and Basten JA had described ENA Development’s claim to the Fund as “murky and unresolved”. [17] Stevenson J considered that he was not in a position to make any finding as to whether the Liquidator would be able to establish that ENA Development is entitled to the Fund, and that any advice given in relation to ENA Development’s beneficial entitlement to the Fund could only be given on the assumption that the Liquidator will, in due course, establish such an entitlement. [18]

    17. Ibid at [89], referring to Sebie v Pham (No 3) [2021] NSWCA 277 at [19] (Bell P and Basten JA, Brereton JA dissenting).

    18. Ibid at [90]-[91].

47. Stevenson J made the orders sought by the Liquidator and referred to above at [39] in respect of the Homebush property, the shares and securities, and the monies held in the Commonwealth Bank of Australia Account. In relation to the Fund, Stevenson J made an order that the Liquidator would be justified, and would be acting reasonably, in treating the Fund as an asset to which ENA Development is beneficially entitled on the assumption referred to above that the Liquidator is able to establish ENA Development’s entitlement to the Fund in due course. [19]

    19. Ibid at [123]-[124].

48. As referred to at [98] and [137]-[142] below, One T Development appealed from those orders. That appeal was heard on 20 April 2023 and the judgment of the Court of Appeal was reserved as at the date of publication of these reasons.

August 2022 applications in the Trust proceedings

49. On 7 August 2022, an amended notice of motion was filed in the Trust proceedings on behalf of One T Development, Ms Cheryl Ansah, Enterprise INT, Enterprise ICT, Mr Jemmott, Ms Gayed, and “ENA Development Trust – Trust Beneficiaries (Richard Sebie, Rose Sebie)” (the 7 August 2022 applicants). The amended notice of motion sought, inter alia, the following relief against the Liquidator:

1. orders for the return of materials seized or copied by the Liquidator and his solicitor, Mr O’Neill, in the execution of a search warrant issued by the Court pursuant to s 530C of the Corporations Act at the Homebush property;

2. an order pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) setting aside the orders made by Stevenson J on 11 July 2022 and, in lieu of those orders, declarations to the effect that One T Development was appointed as trustee of the Trust before ENA Development went into liquidation;

3. an order pursuant to UCPR r 36.16 setting aside the order made by Black J on 3 February 2022 appointing the Liquidator as receiver of the assets of the Trust and, in lieu thereof, an order that One T Development hold the assets of the Trust (including the Homebush property) pending further order, and an order restraining One T Development from dealing with those assets without 14 days’ prior notice to the parties;

4. a stay of the orders made by Black J on 27 January 2022 for the winding up of ENA Development or, alternatively, an order removing Mr Krejci and appointing Mr Domenic Calabretta as liquidator and receiver of ENA Development;

5. further, or alternatively, an order terminating the winding up of ENA Development upon payment of the petitioning creditor’s debt out of the Fund, the filing of deeds of deferral or release by other creditors, and the payment of the Liquidator’s reasonable fees and expenses out of the Fund;

6. a declaration that the Liquidator had lacked power to cause ENA Development to consent to the orders made by Sackar J on 22 April 2022 in the Chiswick specific performance proceedings; and

7. an order setting aside the orders made by Sackar J on 22 April 2022.

50. On 10 August 2022, the Liquidator’s solicitors wrote to Kazi & Associates, who were the solicitors on record for the 7 August 2022 applicants, setting out reasons why they contended that the motion would be dismissed, including that:

1. the amended notice of motion sought relief on behalf of, and against, persons who were not parties to the Trust proceedings and there was no application on foot to join those persons as parties to the Trust proceedings;

2. the applications to set aside orders previously made by the Court were incompetent because they were out of time; and

3. there was no evidence supporting the application for a stay of the winding up order made in respect of ENA Development or the application for the removal of Mr Krejci and the appointment of Mr Calabretta as liquidator of ENA Development.

51. On 10 August 2022, the Court made orders dismissing the motion with no order as to costs, by consent of the Liquidator and all of the 7 August 2022 applicants on the motion.

52. On 12 August 2022, the solicitor acting for the 7 August 2022 applicants sent an email to the Associate to Black J attaching a further notice of motion in the Trust proceedings seeking on behalf of the same applicants the same relief against the Liquidator that had been sought in the 7 August 2022 amended notice of motion. The solicitor requested that the motion be included in the Corporations List on the forthcoming Monday, 15 August 2022.

53. The Associate to Black J replied in the following terms:

“His Honour notes that this Notice of Motion is substantively identical … with the first 15 paragraphs of the Notice of Motion which was dismissed by consent of the parties on 10 August 2022. His Honour will allow your client until 9.15am on Monday morning to make submissions as to why his Honour should not decline to permit the Notice of Motion to be filed on the basis that it would be an abuse of process now to reagitate an application which was dismissed some 3 days ago by your client’s consent.”

54. The 12 August 2022 notice of motion was never filed. However, on the evening of 14 August 2022, the applicants’ solicitor sent a further email to the Associate to Black J and the Associate to the Chief Judge in Equity attaching “by way of service” an interlocutory process that had been filed earlier that day. The email was copied to the solicitors acting for the Liquidator, who was again named as the respondent to the application. The applicants’ solicitor did not attach to the email any evidence on which the applicants proposed to rely in support of the interlocutory process. Nor did the email refer to any such evidence. As identified in an email from the Associate to Black J to the parties on the morning of 15 August 2022, that interlocutory process sought substantially the same relief as had been sought in both the notice of motion dated 7 August 2022 and the unfiled notice of motion dated 12 August 2022, although the claims for relief had been re-ordered and restructured in the latter.

55. On 15 August 2022, Black J made an order striking the interlocutory process from the file. His Honour revoked that order later that morning and noted that the applicants sought to proceed with the claims for relief in prayers 1 and 5 of the interlocutory process, which were to be heard and determined at 2:00pm that day. His Honour granted leave to the applicants to discontinue the interlocutory process (save for prayers 1 and 5), on the undertaking given by each of the applicants by their counsel not to bring a further application, interlocutory process, or notice of motion in or substantially in the form of paragraphs 2 to 4 and 6 to 11 of the interlocutory process filed on 14 August 2022 (the 15 August 2022 undertaking).

56. The claims to which the 15 August 2022 undertaking applied were in the following terms (errors in original):

“2.   … Peter Krejci’s appointment as liquidator and receiver of ENA Development Pty Ltd (in liq) be terminated and Domenic Calabretta be appointed as liquidator [and receiver] of that company.

3.   Further and alternatively, that directions be given in the winding up of ENA Development Pty Limited (in liq), that the winding up be terminated upon the happening of the following events:

a.   Payment of the petitioner’s debt in the amount of $46,164 from the monies as were held in Court or from the sale of the ASX Shares Comsec Account ENA Development at the date of Mr Krejci’s appointment as liquidator, and that are presently in an account maintained by the liquidator of ENA Developments Pty Limited;

b.   The filing of deeds of deferral or release by the Second to Seventh Defendants (as Creditors) from the payment of their debts by the liquidator, in lieu of the repayment of their debts:

Creditors as per creditor’s schedule: Source: Liquidators Report to Creditors of 27-04-2022 refers page 25, list of creditors.

c.   The liquidator’s reasonable fees and expenses in administering the winding up, from the fund presently maintained by the liquidator;

FAILED TO CALL A MEETING

4.   A declaration that Mr Peter Krejci failed to call a meeting of creditors upon receiving valid notices from the Creditors to do so.

Return of Items

…

6.   That the court to vary or set aside the orders of Justice Stevenson made on 11 July 2022.

7.   In lieu of the orders made on 6 July 2022, the Court declare that:

a.   One T Development was appointed as the Trustee of the ENA Development Trust on 30 March 2021.

b.   whereas ENA Development Pty Limited was previously a Trustee of the ENA Development Trust, its appointment as Trustee of the Trust came to an end on 30 March 2021, or alternatively at a time not later than the 2 September 2021, being the date recorded with Revenue NSW and before which ENA Development Pty Limited was placed into liquidation and Mr Peter Krejci was appointed as its liquidator.

8.   That the court set aside, the orders of Justice Black made on 3 February 2022, in which Mr Krejci was appointed as Receiver over Lot 36, 146 Parramatta Road, Homebush NSW 2140.

9.   In lieu of the orders made on 3 February 2022, the Court order that One T Development Pty Ltd as the Trustee of ENA Development Trust, to hold the assets of the trust pending further order but not to deal with them otherwise than upon the giving of 14 days’ notice to the parties.

Particulars of the Trust Assets

(a).    Lot 36, 146 Parramatta Road, Homebush NSW 2140

(b).    Fund in Supreme Court $1,900,000 (now sitting with the liquidator)

(c).    ASX Share Portfolio $115,000, Comsec Account ENA Development

(d).    Further Cash at bank CBA ENA Development Pty Ltd $9000

10.   Declaration that Peter Krejci was not empowered to cause the First Defendant to give consent to the making by consent on the 22 April 2022 in the Supreme Court Case # 2015/325044 as a result of:

a.   Peter Krejci is not a Receiver of the trust asset being ‘the fund’ referred to as the ENA Development Trust (Concessional)

b. section 477(2A) of the Corporations Act; or

b.   order 4(a) of the Orders made on 4 February 2022; or

c.   any other reason the court determines.

d.   Confer no rights to make such agreement in priority to the finalisation of the ENA Development Trust Cross Claim, which rights were pre-existing and continued against the Fund As matter of Law …

11.   Orders made by consent on 22 April 2022 in Supreme Court Case # 2015/325044 be set aside on the basis that they were made without permission of the Creditors and Robert Sebie.”

57. The claims for relief in prayers 1 and 5 of the interlocutory process filed on 14 August 2022 were claims for an order terminating the winding up of ENA Development pursuant to s 482 of the Corporations Act on the basis that it had sufficient funds to pay creditors and the Liquidators, and for an order requiring the Liquidator and his solicitor (Mr O’Neill of ERA Legal) to return documents, files, computer hard drives, and other goods and chattels seized during the execution of the search warrant.

58. The applicants to the 14 August 2022 interlocutory process ultimately sought to discontinue their claims in prayers 1 and 5 on 15 August 2022, and Black J granted them leave to do so. The evidence adduced in the present proceedings does not disclose the events or circumstances that caused the applicants to change course and discontinue those claims, rather than having them heard and determined on the afternoon of 15 August 2022 as had been arranged earlier that morning. Black J also made an order requiring the applicants to pay the Liquidator’s costs of that interlocutory process on an indemnity basis. Those costs have not yet been paid.

59. The solicitor who had filed the 7 August 2022 and 14 August 2022 notices of motion on behalf of One T and the other named applicants wrote to the Associate to Black J on 17 August 2022 seeking leave to file a notice of ceasing to act. The proposed notice of ceasing to act provided Mr Sebie’s email address as the last known email address for One T and the named applicants. [20]

    20. The same email address that Mr Sebie stipulated in his notice of appearance filed in the present proceedings on 24 April 2023.

Federal Court proceedings commenced by Mr Jemmott

60. On 19 August 2022, Mr Jemmott commenced proceedings NSD662/2022 in the Federal Court of Australia seeking:

1. in prayer 1 of the originating process, an order pursuant to s 482(1) of the Corporations Act that the winding up of ENA Development be terminated or stayed indefinitely;

2. in prayer 2 of the originating process, an order pursuant to s 482(3) of the Corporations Act that the management and control of ENA Development revert back to the director;

3. in prayer 3 of the originating process, an order that Mr Krejci’s appointment as Liquidator be terminated under s 90-15 of the Insolvency Practice Schedule (Corporations), and that Mr Domenic Calabretta be appointed as liquidator in his stead;

4. in prayer 4 of the originating process, a direction that the winding up of ENA Development be terminated upon payment of the petitioning creditor’s debt, filing of deeds or deferral or release by certain other creditors and payment of the Liquidator’s reasonable expenses;

5. in prayer 5 of the originating process, a declaration that ENA Development and the Trust “both had a substantial positive net asset position of $3,100,000 and liquid assets (cash flow) position of $120,000 as at the date of the winding up”; and

6. in prayer 6 of the originating process, a declaration that One T Development held the following assets on trust in its capacity as trustee of the Trust from 30 March 2021:

1. the Homebush property;

2. a fund of $1,900,000.00 held in the Liquidator’s trust account;

3. the proceeds of shares realised for $115,000.00, also held in the Liquidator’s trust account; and

4. the sum of $9,700.00 cash at bank in the account of ENA Development.

61. The plaintiffs refer to these proceedings as the First Jemmott Federal Court proceedings, and I will adopt the same convention.

62. Prayers 1 to 4, and prayer 6, of the originating process in the First Jemmott Federal Court proceedings sought substantially the same relief as prayers 1 to 3, and prayers 7 and 9, of the interlocutory process filed in the Trust proceedings on 14 August 2022 by One T Development, Mr Jemmott, and others. [21] Mr Jemmott’s claims for relief in prayers 3, 4, and 6 of the originating process filed in the Federal Court of Australia breached the 15 August 2022 undertaking given to this Court. [22]

    21. See [55]-[59] above.

    22. See [57] above.

63. On 25 August 2022, Mr Jemmott filed an interlocutory process in the First Jemmott Federal Court proceedings seeking, inter alia, an order for the urgent listing of his application that the winding up of ENA Development be terminated or stayed indefinitely. A mere ten days earlier, Mr Jemmott had sought and been granted leave to discontinue a claim for the same relief in the Trust proceedings in this Court. [23]

    23. See [58]-[59] above.

64. On 7 September 2022, Mr Jemmott sent an email to the Associate to Markovic J in the Federal Court of Australia attaching an unfiled amended interlocutory process seeking, in addition or in the alternative to an urgent listing of his application for the winding up of ENA Development:

1. an order that Mr Krejci “be instantly removed” as Liquidator and as receiver of the Trust;

2. an order staying the operation of all previous court orders that Mr Krejci “initiated” in his capacity as Liquidator; and

3. an order that the winding up of ENA Development be stayed for 14 days or until the Court determines the application for a permanent stay of the winding up or appointment of Mr Calabretta to replace Mr Krejci as Liquidator.

65. Mr Jemmott’s email also attached an affidavit of Mr Robert Sebie, in which Mr Sebie stated that Mr Krejci should not have accepted his appointment as liquidator of ENA Development because he had a conflict of interest. Mr Sebie described four matters that he claimed gave rise to the alleged conflict:

1. since June 2010, Mr Krejci and his family had lived in a property in the same street as the Chiswick property that Mr Sebie had vacated after it was transferred to Mr and Mrs Pham in 2018; [24]

2. the neighbourly relationship between Mr Sebie’s family and Mr Krejci was allegedly “unpleasant”;

3. Mr Sebie had observed Mr Pham entering Mr Krejci’s home and speaking with him in December 2018 while Mr Sebie was in the process of moving his family’s belongings out of the Chiswick property; and

4. Mr Sebie had seen Mr Pham and Mr Krejci talking to one another in January or February 2019 while Mr Sebie was walking in the area of the Chiswick property.

   24. See [23] above.

66. I note that all of these matters allegedly occurred between three and twelve years before Mr Krejci was appointed as the liquidator of ENA Development on 27 January 2022. Mr Sebie’s affidavit concluded (emphasis, and errors, in original):

“ENA Development Pty Ltd ‘ENA’ is engaged in a legal proceedings from 2018 which involved the Phams, the issues of that matter is in relation to a real property ‘the Chiswick property’. ENA has active Statement of Claim (2015/ 00145498) / Cross Claim (2015 / 325044) which involved the plaintiffs, the amount claimed in that cross claim $3,852,002. This full divisional hearing commence on the 6 December 2021 in front Sackar J. This hearing was to conclude in February 2022. ENA has active Statement of Claim (2015/ 00145498) / Cross Claim (2015 / 325044) should have been dealt with in 2018 before judgment debt of $46,164. Since 2018, Andy Pham has done everything possible to delay or oppose ENA getting its claim heard. This Winding Up application issued by the plaintiffs is premature and should not have occurred.”

67. I note that:

1. the “judgment debt of $46,164” referred to in Mr Sebie’s affidavit above is the net amount of costs that ENA Development was ordered to pay Mr and Mrs Pham in the Chiswick specific performance proceedings on 24 December 2020;

2. on 1 April 2021, the Court made an order in the Chiswick specific performance proceedings that the said amount be paid to Mr and Mrs Pham from the Fund, which had been paid into Court by Mr and Mrs Pham in or about May 2018, [25] and which had a balance of approximately $1,900,000.00 as at 1 April 2021;

   25. See [23] above

3. the said sum does not appear to have been paid to Mr and Mrs Pham in accordance with the order made on 1 April 2021, because they issued a statutory demand to ENA Development on 28 September 2021 in respect of the debt of $46,164.00 owing pursuant to the orders made by this Court in the Chiswick specific performance proceedings on 24 December 2020;

4. by the time of each of the events referred to above, ENA Development’s only outstanding claim in respect of the Chiswick property was its cross-claim filed in the Chiswick specific performance proceedings claiming a security interest in the sale proceeds, being the Fund that Mr and Mrs Pham had paid into court in May 2018; [26]

5. on 22 April 2022, judgment had been entered in favour of ENA Development in respect of that cross-claim with the consent of all parties to those proceedings other than Mr Sebie, who had either served a defence in which he admitted ENA Development’s claims or had failed to file any defence to ENA Development’s cross-claims; [27]

6. as at the date of Mr Sebie’s affidavit affirmed on 7 September 2022, the only outstanding issue concerning ENA Development’s claims in respect of the Chiswick property was Mr Sebie’s notice of motion filed in the Chiswick specific performance proceedings on 30 May 2022 (as amended on 15 August 2022) seeking to stay or set aside the judgment entered on 22 April 2022 and seeking orders for the payment of the Fund to Mr Sebie; [28] and

7. Mr Sebie’s description of ENA Development’s claims in the Chiswick possession proceedings and Chiswick specific performance proceedings as “active” in his 7 September 2022 affidavit was inaccurate because ENA Development’s claims had been finally determined by the 22 April 2022 judgment unless and until that judgment was set aside.

   26. See [23]-[35] above.

   27. See [23]-[35] above.

   28. See [36]-[37] above and [74]-[75] below.

68. The final sentence of Mr Sebie’s 7 September 2022 affidavit referred to above—“[t]his Winding Up application issued by the plaintiffs is premature and should not have occurred”—is difficult to understand, as Mr Jemmott was the only plaintiff in the First Jemmott Federal Court proceedings for which Mr Sebie’s affidavit was affirmed. However, I infer that Mr Sebie was making the same contentions that he repeatedly sought to advance during the hearing of the present proceedings before me, namely that:

1. Mr and Mrs Pham should not have issued the statutory demand to ENA Development in respect of the judgment debt of $46,164.00; and

2. ENA Development should not have been wound up for failure to comply with that statutory demand,

in circumstances where the orders made on 1 April 2021 entitled Mr and Mrs Pham to payment of the $46,164.00 sum out of the Fund, and ENA Development’s claims to be entitled to the Fund had not yet been determined.

69. If and to the extent that ENA Development shared or adopted Mr Sebie’s contentions referred to above, it was incumbent upon ENA Development to raise them in an application properly made to set aside the statutory demand issued by Mr and Mrs Pham, or otherwise in defending the winding up application. The winding up proceedings had been heard and determined by Black J on 27 January 2022. His Honour’s reasons for judgment include the following observations concerning ENA Development’s conduct of those proceedings, referring to various submissions made by Mr Dobbs of counsel who appeared for ENA Development:[29]

“[2] The Plaintiffs’ application to wind up ENA is founded on a creditor’s statutory demand (‘Demand’) and the Plaintiffs read the affidavit dated 26 October 2021 of Mr Pham in support of the application. The Demand annexed to that affidavit referred to a debt of $46,164 owed by ENA to Mr Pham and Mrs Pham arising from an order of the Supreme Court in proceedings 2015/325044 relating to costs. Although there has been reference to an application to set aside that order to which I will refer below, no order has been made to set it aside and there is no room to dispute its binding and operative character and effect. In any event, no application was made to set aside the Demand on the basis that the debt was disputed and no dispute as to the costs liability reflected in that costs order can now be raised in a winding up application, absent leave under s 459S of the Corporations Act 2001 (Cth) (‘Act’), which was not sought by ENA and would likely not have been granted. By his affidavit dated 26 October 2021, Mr Pham also referred to ENA’s indebtedness to the Plaintiffs in that amount arising from the costs order and to the issue of and service of the Demand.

…

[14]   Mr Dobbs in turn puts several submissions, which were appropriately measured, on behalf of ENA. The first is that Mr Dobbs is instructed to submit that the directors believe that ENA is not insolvent and is capable of paying the debt claimed in the Demand. I will refer below to the function of the presumption of insolvency in an application of this kind, but it is plain that ENA has not sought to establish, nor has it established, that it is cashflow solvent. Any claim that it is now capable of paying the one debt claimed in the Demand does not establish its solvency in respect of its debts generally, still less where a presumption of insolvency has arisen in circumstances that it has not, in fact, paid the debt claimed in the Demand over a considerable period.

…

[16]   … Mr Dobbs referred to ENA’s directors' asserted confidence that ENA could pay the debt within 24 hours, but that would not establish ENA's solvency, as I noted above. Mr Dobbs also referred to ENA's belief that it was entitled to a payment of funds out of Court, a matter which appears to have been agitated in several earlier proceedings and may also be raised in the Expedition List Proceedings. A liquidator of ENA may or may not pursue such a claim on behalf of ENA, but a future entitlement of that kind does not establish ENA's present solvency. Mr Dobbs also indicated, on instructions, that the other debts on which the Plaintiffs had relied in reply were disputed, although he fairly acknowledged there was no evidence as to that matter.”

29. In the matter of ENA Development Pty Ltd [2022] NSWSC 54 at [2], [14], and [16].

70. It is plain from his Honour’s reasons for judgment that ENA Development failed to adduce any evidence in the winding up proceedings that was capable of supporting the contentions referred to at [68] above, which Mr Sebie sought to advance approximately eight months later in his affidavit affirmed on 7 September 2022 in the First Jemmott Federal Court proceedings. Those same contentions were subsequently propounded by Mr Sebie in proceedings that he commenced in the Federal Court of Australia on 26 October 2022,[30] and at the hearing of the present proceedings before me.

    30. See [105] below.

71. The First Jemmott Federal Court Proceedings were listed for case management hearings in the Federal Court on 8 and 15 September 2022. Mr Sebie sought to appear by audio visual link and to be heard at the 15 September 2022 case management hearing.

72. On 21 September 2022, the Federal Court made orders on the application of the Liquidator transferring the First Jemmott Federal Court proceedings to this Court. The reasons for judgment of Halley J record that Mr Jemmott, who was represented by a solicitor at the hearing of the transfer application, did not adduce any evidence or make any submissions in opposition to the transfer application. [31] In determining that it was in the interests of justice that the proceedings be transferred to this Court, Halley J compared the relief sought in the interlocutory process filed by Mr Jemmott and others in the Trust proceedings in this Court on 14 August 2022 with the relief sought in the originating process filed in the First Jemmott Federal Court proceedings. His Honour said (emphasis in original):[32]

    31. Jemmott v ENA Development Pty Ltd (in liq) (Receiver Appointed) [2022] FCA 1134 at [34]

    32. Ibid at [38]-[45].

“38   It is readily apparent that there is a substantial identity and overlap between the relief sought in the Originating Process and the 14 August Motion.

39 I am satisfied that this proceeding is a proceeding with respect to a civil matter arising under the Corporations Law and the Supreme Court has jurisdiction with respect to the matters for determination in the Originating Process.

40   Further, for the following reasons I have concluded that, having regard to the interests of justice, it is more appropriate that these proceedings be determined by the Supreme Court of New South Wales.

41   First, given the substantial overlap in the relief sought in the Originating Process and the 14 August Motion, it would appear that Mr Jemmott may have breached the undertaking that he gave to the Supreme Court of New South Wales not to bring any further application in or in substantially the same form as paragraphs 2 to 4 and 6 to 11 of the 14 August Motion. The overlap also raises potential issue estoppel and abuse of process considerations. These are matters that it is more appropriate for the Supreme Court to determine given the undertakings were given to the Supreme Court and the existence of any issue estoppels is a matter more readily capable of determination by that Court.

42   Second, the Liquidator was appointed as a liquidator of ENA and as a receiver of the assets of the ENA Trust pursuant to orders made by the Supreme Court of New South Wales. The Supreme Court is the more appropriate court to determine applications to terminate those appointments, particularly if there are other pending applications before the Supreme Court concerning the winding up of ENA.

43   Third, given that the Liquidator was appointed as a receiver of the assets of the ENA Development Trust by an order of the Supreme Court of New South Wales it is not apparent how any court other than the Supreme Court could make orders terminating that appointment.

44   Fourth, it is highly desirable for multiple controversies and disputes that might arise out of the same factual substratum to be determined in a single court rather than multiple courts. This not only reduces the risk of conflicting judgments and conflicting findings of fact but also avoids the parties incurring the likely inevitable additional costs and expenses that would be incurred in litigating common or overlapping issues in multiple courts. At the same time it ensures that there is a more effective utilisation of the finite resources of this Court and the Supreme Court of New South Wales for the benefit of the community as a whole in obtaining timely access to justice.

45   Fifth, I am not aware of any substantive prejudice to Mr Jemmott if the proceedings were transferred to the Supreme Court of New South Wales. The relief that he seeks in the Originating Process is relief that the Supreme Court has the power to determine and, as I explain above, the orders sought by the defendants to give effect to the transfer of the proceedings to the Supreme Court do not determine any issue in the proceedings and any amendment application, including the Oral Amendment Application, may be pursued in the Supreme Court.”

73. After the transfer of the First Jemmott Federal Court proceedings to this Court, Mr Jemmott’s application for the relief set out in the originating process was listed for hearing before Black J on 21 October 2022. Mr Jemmott did not appear on that occasion. The proceedings were dismissed as an abuse of process and Mr Jemmott was ordered to pay the costs of the Liquidator and ENA Development forthwith on an indemnity basis.

Dismissal of Mr Sebie’s motion to stay and set aside the 22 April 2022 orders in the Chiswick specific performance proceedings

74. As referred to at [35] and [36] above, Mr Sebie’s motion filed on 30 May 2022—for orders staying or setting aside the judgment entered on 22 April 2022 in favour of ENA Development on its cross-claim in the Chiswick specific performance proceedings, and for orders requiring Mr Pham and the Liquidator to transfer the Fund to him—was amended by an amended notice of motion filed on 15 August 2022.

75. In addition to the relief sought in the notice of motion filed on 30 May 2022, the amended notice of motion sought an order staying the operation of any orders made in the Trust proceedings relating to the proceeds of sale of the Chiswick property, pending the hearing of the motion. It will be recalled that the only order made in the Trust proceedings on 11 July 2022 concerning the proceeds of sale of the Chiswick property was an order that the Liquidator would be justified, and would be acting reasonably, in treating those proceeds as an asset to which ENA Development is beneficially entitled on the assumption above that the Liquidator was able to establish ENA Development’s entitlement to the Fund in due course. [33]

    33. See [44]-[47] above.

76. Mr Sebie’s amended notice of motion was listed for hearing before Black J on 14 October 2022, together with an application by the Liquidator for orders transferring the Chiswick specific performance proceedings to the Federal Circuit and Family Court of Australia.

77. The reasons for judgment delivered by Black J ex tempore at the conclusion of that hearing on 14 October 2022 record that the Court had made orders on 26 September 2022 for the filing and service of evidence and submissions in respect of Mr Sebie’s amended notice of motion. Black J made the following observations: [34]

“I should say something as to the content of the Amended Notice of Motion, and the Notice of Motion which it superseded, before turning to the way in which the matter has developed today. First, by paragraph 1 of his 30 May 2022 motion and paragraph 1 of his Amended Notice of Motion filed 15 August 2022, Mr Sebie sought orders that consent orders made by Sackar J on 22 April 2022 be stayed and set aside under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). Two difficulties may have arisen in respect of that application, had it been pressed. The first, to which the liquidator drew attention in submissions, was that the criteria for setting aside an order under UCPR r 36.16 were, on their face, not satisfied. The second was that, so far as the evidence went, there may be a question as to whether any basis for setting aside such orders could have been established on the merits. As events have developed, that issue will only likely be relevant to the questions of costs, and further issues which may arise after the making of a costs order.

Second, Mr Sebie sought an order that orders made in other proceedings, relating to the liquidation of ENA, be stayed until his Notice of Motion filed 30 May 2022 was heard. That appears to be a reference to the motion dated 30 May 2022 filed in these proceedings, now superseded by the Amended Notice of Motion, in which that order was sought. There are two obvious difficulties with that order, the first being that it was not apparent why the Court should, in these proceedings, stay orders made in other, separate proceedings, and the second being that, in any event, the motion had no content since the 30 May 2022 motion was superseded by the Amended Notice of Motion, and that Amended Notice of Motion was being heard today and would have been determined today had it been pressed.

Two further orders were sought relating to the transfer of monies to Mr Sebie … Those orders appeared to be premised on the basis that the consent orders would be set aside, because otherwise there was no basis to proceed in a way that was contrary to them.”

34. Andy Vuong Duc Pham v Enterprise ICT Pty Limited (Supreme Court of New South Wales, 30 May 2022, unrep).

78. Black J then recorded that, though Mr Sebie did not seek to proceed with his motion, he resisted its dismissal on the basis that the proceedings were to be transferred to the Federal Circuit and Family Court of Australia. His Honour noted that the transfer application had been listed for hearing on 14 October 2022 on the basis that it would be heard and determined only after Mr Sebie’s amended notice of motion filed on 15 August 2022 had been determined and that, even after being reminded of that position and being offered an adjournment to allow further time to prepare for the hearing, counsel for Mr Sebie had confirmed after taking instructions that Mr Sebie did not wish to press his motion notwithstanding that he continued to oppose the motion being dismissed with costs.

79. Black J considered that there was no basis on which this Court would, or should, leave it to the Federal Circuit and Family Court of Australia to determine whether orders made by this Court should be set aside. His Honour recorded that a very substantial amount of evidence had been served in relation to Mr Sebie’s motion, including a court book prepared by Mr Sebie and several affidavits of Mr Sebie, such that the motion was ready to be heard had Mr Sebie not declined to proceed. His Honour acknowledged that Mr Sebie’s solicitor and counsel had only recently been instructed, and that they had not taken up an adjournment offered to them that would have allowed them time to familiarise themselves with the material, to take instructions, and to prepare for a hearing of the motion on the merits. His Honour dismissed Mr Sebie’s motion and ordered him to pay the Liquidator’s costs of the motion as agreed or assessed and Mr Pham’s costs of the motion fixed in the sum of $2,500.00 inclusive of GST.

80. Black J also made orders transferring the Chiswick specific performance proceedings to the Federal Circuit and Family Court of Australia. The ex tempore judgment of Black J records that the transfer order was made in circumstances where there were proceedings on foot in the Federal Circuit Court of Australia between Mr Sebie and his former wife, who contended that ENA Development was his alter ego and that the assets of ENA Development (which were held by the Liquidator) formed part of the pool of marital assets (the family law proceedings). [35] The Liquidator contended that the Chiswick specific performance proceedings had been wholly resolved, whilst Mr Sebie contended that the cross-claim filed against him in those proceedings had not been determined. The Liquidator applied for the proceedings to be transferred to the Federal Circuit and Family Court of Australia on the basis that, if any further application could properly be made in those proceedings, it should be determined in that Court.

    35. Ibid.

Mr Sebie’s notice of motion in the Trust proceedings

81. On 31 August 2022, Mr Sebie filed a notice of motion in the Trust proceedings, which was subsequently amended on 26 September 2022.

82. The amended notice of motion sought the following relief:

1. in prayer 1, an order joining Mr Sebie to the Trust proceedings as the third defendant;

2. in prayer 2, an order that the Homebush property “be stayed or placed on paused” (sic) until the Chiswick specific performance proceedings were finalised;

3. in prayer 3, an order setting aside orders made in the Trust proceedings insofar as they affected the Homebush property;

4. in prayers 4 and 5, declarations that the Homebush property “is a trust asset” and that Mr Robert Sebie and Mr Richard Sebie were the beneficial owners of that property;

5. in prayers 6 and 7, an order requiring the Liquidator to return all items taken from the Homebush property, and that the Liquidator and his solicitors be restrained from keeping copies of those items; and

6. in prayer 8, a declaration that the Liquidator had a conflict of interest in performing his duties as liquidator of ENA Development.

83. That application was listed for hearing before Black J on 21 October 2022. Mr Sebie, who represented himself at that hearing, did not press for the relief in prayers 2, 4, and 5 referred to above, but did press the balance of the claims for relief. Black J made orders on that day dismissing the motion and requiring Mr Sebie to pay the Liquidator’s costs forthwith, in an amount to be agreed or assessed. His Honour gave reasons ex tempore, which were later published. [36]

    36. In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478.

84. In relation to Mr Sebie’s claim in prayer 1 of the amended notice of motion for an order joining him as a party to the Trust proceedings, Black J observed (with reference to authority) that a person ought to be joined as a party to proceedings if their legal rights are directly affected by the orders sought, but not otherwise. [37] His Honour then stated:[38]

“[9]   … Mr Sebie appears to rely upon his occupancy of the Homebush Property to assert that his joinder is necessary to the proceedings. It does not seem to me that that supports his joinder to the proceedings, or has the consequence that he is either a necessary or proper party to the proceedings, where no legal basis on which he is entitled to occupation is identified.

[10] Mr Sebie has been, and will be, afforded procedural fairness to the extent that he has been heard in the proceedings under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW). ...”

37. Ibid at [9], citing Metcash Ltd v Jardim (No 2) [2010] NSWSC 1042 at [7]; In the matter of Raejoe Pty Limited (receiver and manager appointed) (administrators appointed) as trustee for “The Coe Family Trust” [2012] NSWSC 1457 at [5]-[9]; In the matter of Beechworth Land Estates Pty Ltd (in liquidation) and Griffith Estates Pty Ltd (in liquidation) [2018] NSWSC 1703 at [28].

38. Ibid at [9]-[10].

85. Black J observed that prayer 3 of the amended notice of motion did not identify the specific orders that Mr Sebie sought to set aside. His Honour described the manner in which Mr Sebie had presented his case for the order sought in prayer 3:[39]

“[15] … Mr Sebie also drew attention, in submissions, to a number of documents which relate to this matter. I bear in mind that these documents were largely tendered in a manner that isolated them from their context and were also unsupported by evidence to establish their authenticity or the circumstances in which they were prepared. It is not apparent that those documents would, individually or as a whole, establish what Mr Sebie would need to establish, had he sought more specific relief addressed to the particular orders that have been made in the proceedings. If Mr Sebie seeks to terminate the winding up, and if he has standing to bring such an application, it would need to made under s 482 of the Act and be supported by evidence of ENA's cash flow solvency in the usual way.”

39. Ibid at [13].

86. Black J then identified the following orders that emerged from Mr Sebie’s submissions as the orders that he sought to set aside:

1. the orders winding up ENA Development; [40]

2. the order appointing the Liquidator as receiver of the assets of the Trust; [41] and

3. the judicial advice given to the Liquidator that he would be justified in treating the Homebush property as beneficially owned by ENA Development. [42]

   40. Ibid at [14].

   41. Ibid at [16].

   42. Ibid at [18].

87. In relation to the substance of Mr Sebie’s application to set aside the winding up order, Black J noted that a similar application had previously been made and abandoned by other persons associated with ENA, on the basis that ENA had a substantial asset to its name, being the Homebush property. [43] His Honour recorded Mr Sebie’s submission that the Homebush property could readily be realised to repay the petitioning creditor who had sought and obtained the winding up order in January 2022. Black J rejected Mr Sebie’s application because any application by Mr Sebie to terminate the winding up of ENA Development would need to be made under s 482 of the Corporations Act (if indeed Mr Sebie had standing to make such an application) and would need to be supported by evidence of ENA’s cash flow solvency. [44] His Honour stated:[45]

“… the fact that ENA has, whether as trustee or as absolute owner, a substantial property does not have the consequence it is solvent, because solvency depends on the application of a cash flow test. The proposition that ENA is solvent is hardly self-evident where, over a long period, it has in fact failed to repay the moneys due to Mr Pham, the creditor who sought and obtained its winding up.” 

43. See [55]-[58] above.

44. [2022] NSWSC 1478 at [14]-[15].

45. Ibid at [15].

88. In relation to Mr Sebie’s application to set aside the appointment of the Liquidator as receiver of the assets of the Trust, Black J said:[46]

“[16] … The principles on which such an appointment is made are well-established: see, for example, Re Stansfield DIY Wealth Pty Ltd (in liq) (2014) 291 FCR 17; (2014) 103 ACSR 401; [2014] NSWSC 1484; Re Glenvine Pty Ltd (in liq) [2020] NSWSC 866; Re Double Bay Property Management Pty Ltd (in liq) [2020] NSWSC 203; Re Peak Invest Pty Ltd (admins apptd) [2021] NSWSC 1714 at [19]ff. Here, Mr Sebie concedes all of the matters which supported that appointment, namely that ENA was and is the registered owner of the Homebush Property; that ENA was at least formerly the trustee of the ENA Trust, although Mr Sebie contends that One T is now its trustee; that, as former trustee of the trust, ENA has a right of indemnity against the trust assets (including the Homebush Property, if, contrary to Stevenson J’s later direction, it was trust property) for liabilities which it had properly incurred as trustee; and that there are now many cases in this Court, other State Courts and the Federal Court of Australia where liquidators of former trustees have been appointed as receivers of trust property, to support the exercise of that right of indemnity. The appointment of Mr Krejci as receiver of the assets of the ENA Trusts reflected an orthodox application of those principles.

[17]   It seems to me that the position is, at best for Mr Sebie’s application, that ENA was the former trustee of the ENA Trust, and, at worst for that application, that it is absolute owner of the property consistent with the advice given by Stevenson J. Neither position would support an order setting aside the appointment of Mr Krejci as receiver of the assets of the ENA Trust including the Homebush Property (if it was trust property) in the relevant circumstances. The fact that One T is now purportedly or actually the trustee of the ENA Trust, a matter on which Mr Sebie places great emphasis, does not assist him, because an order appointing a liquidator as receiver of trust assets in this way is ordinarily made in circumstances where a new trustee has been appointed or purportedly appointed to a trust. That is a reason to make the order, rather than a reason to set it aside. I would not make the second order that may be sought by Mr Sebie in this application.”

295. I accept the plaintiffs’ submission that, by reason of the matters referred to at [297] above, the motion was conducted in a way that harassed, or caused unreasonable annoyance, delay, or detriment to, the plaintiffs—the detriment being the costs incurred. I also accept the plaintiff’s submission that this annoyance and detriment was compounded by the manner in which Mr Sebie conducted the hearing of the motion, as referred to in Black J’s reasons for judgment extracted at [85] above. [120]

     120. In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [13].

296. For the reasons explained at [297]-[298] above, I find that the notice of motion filed by Mr Sebie in the Trust proceedings on 31 August 2022, as amended on 26 September 2022, was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act. I address the following additional matters relied on by the plaintiffs for completeness only.

297. The first matter is the plaintiffs’ submission that Mr Sebie’s claim in the motion for an order joining him as a defendant to the Trust proceedings was without merit, for the reasons identified by Black J. [121] I accept that submission, but I do not consider that this, by itself, would have warranted the motion being characterised as a vexatious proceeding. [122]

     121. See [84] above; In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [9]-[10].

     122. Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6].

298. As identified by Black J in his reasons for judgment referred to at [87] above, Mr Sebie’s claim for an order setting aside the winding up order was an inappropriate vehicle by which to seek to bring the liquidation of ENA Development to an end. The appropriate vehicle would have been an application to terminate the winding up under s 482 of the Corporations Act. In addition, Mr Sebie’s claim for a declaration that the Liquidator had a conflict of interest was futile in circumstances where it was not accompanied by a claim under the Insolvency Practice Schedule (Corporations) to remove the Liquidator, as Black J identified in his reasons for judgment extracted at [92] above. [123] In circumstances where Mr Sebie did not have legal representation in respect of the 31 August 2022 motion, I do not consider that his attempts to prosecute those claims by inappropriate means would have warranted the characterisation of the motion as a vexatious proceeding. I reject the plaintiffs’ submissions to the contrary. [124]

     123. In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478 at [22].

     124. Zepinic at [120].

299. However, Mr Sebie’s 31 August 2002 motion suffered from the further problem that any application designed to bring the winding up of ENA Development to an end was manifestly hopeless without evidence that the company was solvent and likely to remain solvent. [125] The absence of such evidence in support of his 31 August 2022 motion seeking to set aside the winding up order meant that his claim for that relief was, objectively, without reasonable ground. [126]

     125. See [280] above.

     126. Teoh at [55]; Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6]; see also Kwon at [41]; Bathis-Brown at [18].

The application filed in the family law proceedings on 26 October 2022

303. The evidence concerning the application filed in the family law proceedings on 26 October 2022 is summarised at [100]-[104] and [143]-[148] above.

304. The plaintiffs’ submissions that this application was a vexatious proceeding assume that the application was instituted and conducted by One T Development. The evidence referred to at [100] above does not prove that assumption on the balance of probabilities. Mr Zraika is not a defendant to the present proceedings. Nor is he a person with whom Mr Sebie is alleged to have acted in concert in relation to the commencement or conduct of any proceeding. It is therefore not necessary to consider this application further.

Sebie Federal Court proceedings

305. The evidence concerning the Sebie Federal Court proceedings is summarised at [105]-[111] above.

306. The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of the Sebie Federal Court proceedings.

307. I accept the plaintiffs’ submission that the Sebie Federal Court proceedings were an abuse of process because the originating process sought:

1. substantially the same relief as that which had been claimed by Mr Jemmott, One T Developments, Enterprise INT, and Enterprise ICT—with Mr Sebie acting in concert with them—in the 7 August 2022 notice of motion and in the 14 August 2022 interlocutory process;

2. substantially the same relief as had been sought by Mr Jemmott, with Mr Sebie acting in concert with him, in the First Jemmott Federal Court proceedings; and

3. substantially the same relief as Mr Sebie had sought in his notice of motion filed on 31 August 2022 in the Trust proceedings.

308. The evidence adduced in the present proceedings does not disclose any material change in circumstances since 15 August 2022, including since 21 October 2022 when this Court had dismissed the transferred First Jemmott Federal Court proceedings as an abuse of process and had also dismissed Mr Sebie’s 31 August 2022 motion in the Trust proceedings. Mr Sebie’s use of this Court’s procedures to propound substantially the same claims for a fifth time, only days after the third and fourth iterations of those claims had been dismissed, occasioned unjustifiable oppression to the plaintiffs in the present proceedings, who were unnecessarily required to expend time and incur costs in dealing with the claims for a fourth time. Mr Sebie’s conduct brings the administration of justice into disrepute.

309. I also accept the plaintiffs’ submission that the Sebie Federal Court proceedings were commenced without reasonable ground, at least in so far as Mr Sebie sought orders for the termination or stay of the winding up of ENA Development under s 482 of the Corporations Act. In the course of determining Mr Sebie’s urgent application in the Sebie Federal Court proceedings on 9 January 2023, Goodman J found that Mr Sebie is neither a creditor nor a contributory of ENA Development and therefore lacks standing to apply for those orders under s 482. [127]

     127. See [118] above; Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2 at [19]-[22].

310. For those reasons, I find that the Sebie Federal Court proceedings were vexatious proceedings within the meaning of s 6 of the Vexatious Proceedings Act.

The stay motion in the Trust proceedings

311. The evidence concerning the stay motion is summarised at [112]-[128] above. The proceeding was a notice of motion filed by Mr Jemmott, Enterprise INT, and One T Development in the Trust proceedings on 22 December 2022. The stay motion was heard and determined by Ierace J and heard on 6 January 2023, save for the question of costs which his Honour determined at a later time.

312. On the basis of Mr Sebie’s email sent to Goodman J on 5 January 2023 and extracted at [117] above, I find that Mr Sebie acted in concert with Mr Jemmott, Enterprise INT, and One T Development in the institution and conduct of that motion.

313. I accept the plaintiffs’ submission that the stay motion was an abuse of process. As a matter of substance and reality, paragraph 5 of the notice of motion, and prayers 5 to 11 of the statement of claim referred to in paragraph 3 of the notice of motion,[128] relitigate:

     128. See [112]-[114] above.

1. the claims in prayers 7 and 9 of the 14 August 2022 interlocutory process instituted by Mr Jemmott, Enterprise INT, and One T Development and others in concert with Mr Sebie, and in respect of which Mr Jemmott, Enterprise INT, and One T Development gave the 15 August 2022 undertaking to this Court; [129]

2. the claim in prayer 6 of the originating process in the First Jemmott Federal Court proceedings instituted by Mr Jemmott in concert with Mr Sebie, which had been dismissed as an abuse of process on 21 October 2022 and which I have independently found was an abuse of process for the reasons explained above; [130] and

3. the claim in prayer 5 of the Sebie Federal Court proceedings, which I have found are an abuse of process for the reasons explained above,[131]

4. in circumstances where there had been no appeal from the order made in favour of the Liquidator for possession of the Homebush property on 21 October 2022. [132]

   129. See [55]-[56] above.

   130. See [60]-[62], [73] and [289]-[294] above.

   131. See [106]-[107] and [305]-[310] above.

   132. See [93] above.

314. For those reasons, I find that the stay motion was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act. It is not necessary to address the various additional matters relied on by the plaintiffs as supporting that finding.

Mr Sebie’s application in the Sebie Federal Court proceedings on 6 January 2023

315. The evidence concerning Mr Sebie’s application made in the Sebie Federal Court proceedings on 6 January 2023, immediately after the dismissal of the stay motion in the Trust proceedings, is summarised at [117]-[119] above.

316. The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of that application.

317. The application sought an urgent review of Registrar Segal’s dismissal of Mr Sebie’s application under s 482 of the Corporations Act for a termination or stay of the winding up of ENA Development. The application was dismissed by Goodman J on 9 January 2023.

318. I find that the application was an abuse of process and was commenced without reasonable ground for the same reasons explained at [307]-[309] above in relation to the Sebie Federal Court proceedings. I therefore find that the application was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act.

January 2023 email communications

319. The evidence concerning Mr Jemmott’s email communications with the chambers of the Common Law Duty Judge and Equity Duty Judge during January 2023 seeking to relist the stay motion is summarised at [125]-[128] above.

320. Contrary to the plaintiffs’ submissions, these communications were not proceedings. [133] The question whether they were vexatious does not arise.

     133. Zepinic at [109].

Second Jemmott Federal Court proceedings

321. The evidence concerning the Second Jemmott Federal Court proceedings is summarised at [128]-[134] above.

322. On the basis of the overall course of conduct referred to at [274] above, and of Mr Sebie’s attempted interjection during the hearing of the proceedings before Markovic J on 8 February 2023 referred to at [133] above, I find that Mr Sebie acted in concert with Mr Jemmott in the institution and conduct of the Second Jemmott Federal Court proceedings. I reject Mr Sebie’s submission that he was merely a witness in those proceedings.

323. In making the finding immediately above, I have paid no regard to the Liquidator’s evidence concerning observations made by Mr Chase Berry at the hearings on 27 January, 2 February, and 8 February 2023. [134] As Mr Sebie submitted, Mr Chase Berry gave evidence in these proceedings which omitted any reference to the matters described by the Liquidator second hand and in very general terms. In the circumstances, that aspect of the Liquidator’s evidence carries no weight.

     134. See [131]-[133] above.

324. The Second Jemmott Federal Court proceedings sought the same relief as Mr Sebie had sought in the Sebie Federal Court proceedings. [135] I find that the Second Jemmott Federal Court proceedings were an abuse of process and were commenced without reasonable grounds for the same reasons explained at [307]-[309] above in relation to the Sebie Federal Court proceedings. I note that Markovic J independently came to the same conclusion for the same reasons. [136]

     135. See [129]-[130] above.

     136. See [134] above; Ronald Jemmott v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liquidation) (Federal Court of Australia, 8 February 2023, unrep).

The stay application in the 2022 appeal proceedings

325. The evidence concerning the application made by One T Development in the 2022 appeal proceedings on 17 February 2023 for a stay of orders made by Stevenson J in the Trust proceedings has been summarised at [140]-[141] above.

326. As the plaintiffs submitted, Mr Sebie appeared at the hearing of the application in the Court of Appeal rather than appearing in person at the hearing of the family law proceedings on 20 February 2023. [137] I infer from this that Mr Sebie regarded the application in the 2022 appeal proceedings as more important to him than the family law proceedings with his former wife. On that basis, I find that Mr Sebie acted in concert with One T Development in instituting and conducting the application.

     137. See [146] above.

327. In making the finding immediately above, I have paid no regard to the Liquidator’s evidence concerning observations made by Mr Chase Berry at the hearing on 20 February 2023. [138] That aspect of the Liquidator’s evidence carries no weight for the same reasons explained at [323] above in relation to similar evidence concerning an earlier hearing.

     138. See [140] above.

328. The reasons for judgment of Macfarlan JA refer to the unexplained delay in making the application. [139] The reasons for that delay stand in stark contrast to the urgency with which the applicant brought the application on for hearing one business day after it was filed. I accept the plaintiffs’ submission that those matters give rise to an inference that the application was conducted in a way that harassed or caused unreasonable annoyance and detriment to the Liquidator, in that the unexpected filing and hearing of the application must necessarily have interfered with the Liquidator’s orderly conduct of the hearing in the family law proceedings that commenced on the same day as the hearing of the application. On the basis of that inference, I find that the application was a vexatious proceeding within the meaning of s 6(d) of the Vexatious Proceedings Act.

VIII. Has each defendant frequently instituted or conducted vexatious proceedings in Australia?

139. See [141] above; One T Development Pty Ltd v Peter Krejci (Court of Appeal (NSW), 20 February 2023, unrep) at [3]-[4].

Mr Sebie

329. I have found in Section VII above, Mr Sebie has instituted and conducted the following vexatious proceedings in Australia:

1. the notice of motion filed by Mr Sebie on 30 May 2022, as amended on 15 August 2022, seeking an order that the orders made by Sackar J in the Chiswick specific performance proceedings on 22 April 2022 be “stayed and set aside”;

2. the notice of motion filed by Mr Sebie in the Trust proceedings on 31 August 2022 (as amended on 26 September 2022);

3. the Sebie Federal Court proceedings commenced on 26 October 2022; and

4. Mr Sebie’s application made on an urgent basis in the Sebie Federal Court proceedings on 6 January 2023.

330. The second, third, and fourth proceedings referred to above were all instituted within a period of approximately four months and, as explained in Section VII above, sought substantially the same relief. I consider that this meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act. [140]

     140. See above at [242], and the excerpt there from Potier at [115]-[118] (Leeming JA, Basten and Meagher JJA agreeing).

331. In addition, I have found in Section VII above that Mr Sebie has acted in concert with the other defendants in instituting and conducting the following additional vexatious proceedings in Australia:

1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT;

2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others;

3. the First Jemmott Federal Court proceedings commenced on 19 August 2022;

4. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT, and One T Development, and which was heard on 6 January 2023; and

5. the Second Jemmott Federal Court proceedings commenced on 23 January 2023.

332. For the reasons explained below, each of those other defendants has frequently instituted or conducted vexatious proceedings in Australia.

333. I am therefore satisfied that Mr Sebie has frequently instituted or conducted vexatious proceedings in Australia, and has also instituted or conducted vexatious proceedings in Australia acting in concert with the other defendants (who themselves have instituted or conducted such proceedings frequently). The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Mr Sebie.

Mr Jemmott

334. I have found in Section VII above that Mr Jemmott has instituted and conducted the following vexatious proceedings in Australia:

1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT;

2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others;

3. the First Jemmott Federal Court proceedings commenced on 19 August 2022;

4. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT, and One T Development, and which was heard on 6 January 2023; and

5. the Second Jemmott Federal Court proceedings commenced on 23 January 2023.

335. The First Jemmott Federal Court proceedings and Second Jemmott Federal Court proceedings were commenced within a period of approximately five months. The Second Jemmott Federal Court proceeding was commenced only three months after the First Jemmott Federal Court proceeding was dismissed as an abuse of process. I consider that this meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act in circumstances where, [141] as explained in Section VII above, the First and Second Jemmott Federal Court proceedings sought substantially the same relief, and that same relief had also been sought during the same five month period in separate Federal Court proceedings commenced by Mr Sebie, who acted in concert with Mr Jemmott in relation to Mr Jemmott’s two Federal Court proceedings. [142]

     141. Ibid.

     142. Above at [331].

336. I am therefore satisfied that Mr Jemmott has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Mr Jemmott.

One T Development

337. I have found in Section VII above that One T Development has instituted and conducted the following vexatious proceedings in Australia:

1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT and Enterprise ICT;

2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others;

3. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT and One T Development and heard on 6 January 2023; and

4. the notice of motion filed by One T Development on 17 February 2023 in the 2022 appeal proceedings seeking a stay of orders made by Stevenson J in the Trust proceedings on 11 July 2022.

338. These three proceedings were commenced within a period of approximately six months. I have found in Section VII above that Mr Sebie acted in concert with One T Development in relation to the institution and conduct of those proceedings. Each of those proceedings formed part of the course of conduct referred to at [274] above, which included the relitigation of previous claims in the stay motion, as referred to at [313] above. In those circumstances, I consider that One T Development’s institution of the three vexatious proceedings referred to above during the period from 7 August 2022 to 17 February 2023 meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act.

338. I am therefore satisfied that One T Development has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to One T Development.

Enterprise ICT

340. I have found in Section VII above that Enterprise ICT has instituted and conducted the following vexatious proceedings in Australia:

1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT and Enterprise ICT; and

2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others.

341. In my opinion, the commencement of those two proceedings, each without reasonable ground, within one week of one another and in the context of the overall course of conduct referred to at [274] and [313] above, meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act.

342. I am therefore satisfied that Enterprise ICT has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Enterprise ICT.

Enterprise INT

343. I have found in Section VII above that Enterprise INT has instituted and conducted the following vexatious proceedings in Australia:

1. the amended notice of motion filed in the Trust proceedings on 7 August 2022 by several parties including Mr Jemmott, One T Development, Enterprise INT and Enterprise ICT;

2. the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others; and

3. the stay motion that was instituted by the notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, Enterprise INT, and One T Development, and which was heard on 6 January 2023.

344. My observations and findings above in relation to Enterprise ICT apply equally to Enterprise INT, and all the more so given its role in the stay motion.

345. I am therefore satisfied that Enterprise INT has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Enterprise INT.

1. Should vexatious proceedings orders be made in respect of any or all of the defendants?

346. A vexatious proceedings order restricting the defendants’ access to the courts is a very serious matter, and is not to be made lightly. However, I consider that each of the defendants, by their role in the repetitious suits that I have found to be vexatious proceedings, has harassed and caused unreasonable detriment to the plaintiffs and has burdened publicly funded court resources in a manner that calls for the plaintiffs and the courts to be protected from the continuation of that conduct.

347. I do not accept Mr Sebie’s submission that there will be no further repetitive suits because all outstanding matters relating to the winding up of ENA Development were included in the hearings before the Federal Circuit and Family Court of Australia in February 2023. There is every likelihood Mr Sebie and some or all of the other defendants will commence further proceedings if the Federal Circuit and Family Court of Australia determines any of those matters adversely to them. The history set out in Section II of these reasons demonstrates that the dismissal of the defendants’ claims in one proceeding has not constrained them from commencing fresh proceedings making the same claims.

348. The manner in which Mr Sebie defended the present proceedings gives me no cause to believe that this risk has diminished over time. Mr Sebie displayed no insight into his past conduct, and demonstrated his propensity to ignore decisions that he does not like and his firm belief that he is entitled to run claims that he believes are meritorious, irrespective of whether a court has already dismissed those claims. Mr Sebie’s conduct demonstrates his refusal to accept that the question whether a claim or application has merit is to be determined objectively by the court hearing that claim or application, on the basis of the evidence adduced at that hearing. Mr Sebie’s subjective views, however strongly held, do not do not entitle him to start over again on each occasion that a court determines a claim in a manner that is unfavourable to him. [143]

     143. Particularly his conduct referred to at [209] and [230] above.

349. I am therefore satisfied that it is appropriate to exercise the discretion to make the order sought by the plaintiffs pursuant to s 8(7)(b) of the Vexatious Proceedings Act that the defendants (by themselves, or by their servants or agents) be prohibited from instituting any proceedings in New South Wales, or filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person against:

1. the Liquidator;

2. ENA Development;

3. any current or former director, employee, agent, or consultant of the Liquidator’s firm, BRI Ferrier; and

4. any current or former director, employee, agent, or consultant of the plaintiffs’ solicitors in these proceedings, ERA Legal,

relating to or in any way connected with the winding up of ENA Development, without first obtaining leave of this Court.

350. That order makes it clear that it applies to the institution of proceedings in New South Wales by the defendants, including whether they institute proceedings in the name of another person or entity. I do not consider that it is necessary or appropriate to make the plaintiffs’ proposed notation to the effect that a defendant is to be taken to do something in the name of another person or entity in specified circumstances. Whether proceedings commenced in the name of another are, in truth, proceedings instituted by one or more of the defendants, is a question of fact that should be determined on a case by case basis if and when such cases arise.

351. In circumstances where the summons for leave to appeal has been filed by Mr Sebie, Mr Jemmott and One T Development in the 2023 appeal proceedings but is yet to be heard, and the plaintiffs do not seek an order staying the 2023 appeal proceedings, I consider that there should be an exception to the order referred to above for any notice of appeal filed in the 2023 appeal proceedings by the applicants for leave to appeal strictly in accordance with any order of the Court of Appeal granting leave to appeal.

352. In my opinion, the protective purpose of the power in s 8 of the Vexatious Proceedings Act would not be served by an order staying the Real Property List proceedings in the absence of any evidence about those proceedings and without any finding having been made that those proceedings are vexatious. [144] Mr Sebie’s submission to that effect has force, for the reasons explained at [247] above. I decline to make the order sought by the plaintiffs staying the Real Property List proceedings.

     144. See [136] above.

353. The plaintiffs’ application for a “blanket” stay of any proceedings commenced after 27 April 2023 is refused for the reasons already explained at [246]-[248] above.

354. Mr Sebie’s application in prayer 2 of his notice of motion filed on 26 April 2023 for an order staying the present proceedings as an abuse of process is dismissed for the reasons explained in Section V above. As explained in Section III above, Mr Sebie was not permitted to move on the other prayers in that notice of motion during the course of the hearing. That motion will be formally disposed of by an order dismissing it.

1. Orders

355. For all of the foregoing reasons, the orders of the Court are:

1. Order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) that the defendants (by themselves, or by their servants or agents) are prohibited from instituting any proceedings in New South Wales, including by filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person, against:

1. Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd (ACN 105 235 363) (in liq) (the Liquidator);

2. ENA Development Pty Ltd (ACN 105 235 363) (in liq);

3. any current or former director, employee, agent, or consultant of the Liquidator’s firm, BRI Ferrier; and

4. any current or former director, employee, agent, or consultant of the plaintiffs’ solicitors in these proceedings, ERA Legal,

relating to or in any way connected with the winding up of ENA    Development Pty Ltd (ACN 105 235 363) (in liq), without first obtaining    leave of this Court, save that this order does not prohibit the first,    second and third defendants, as the applicants for leave to appeal in    Court of Appeal proceedings 2023/115895, from filing a notice of    appeal in those proceedings strictly in accordance with the terms of    any grant of leave to appeal that may be made by the Court of Appeal    in those proceedings.

2. Order that the plaintiffs’ claims for relief in the Amended Originating Process are otherwise dismissed, save for the claim for costs which is reserved for further consideration.

3. Order that the first defendant’s notice of motion filed on 26 April 2023 is dismissed, reserving the question of costs.

356. I will hear the parties in relation to costs.

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Endnotes

Decision last updated: 15 May 2023