Islam v Australian Securities & Investments Commission

[2023] NSWSC 1188

Supreme Court

New South Wales

Medium Neutral Citation:	Islam v Australian Securities & Investments Commission [2023] NSWSC 1188
Hearing dates:	03 October 2023
Date of orders:	06 October 2023
Decision date:	06 October 2023
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Proceedings dismissed with costs.
Catchwords:	CIVIL PROCEDURE – application to strike out summons or dismiss the proceedings – UCPR 13.4 and 14.28 – where plaintiff acts for himself and pleads a string of strongly held but vague grievances not specifically related to present defendants – whether amenable to cure by a legitimate amendment
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) r 14.28
Cases Cited:	Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1970] UKPC 30
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Md Rajibul Islam (Plaintiff) Australian Securities and Investments Commission (1st Defendant) Commonwealth of Australia (2nd Defendant) Amit Sharma (3rd Defendant) Md Jobayer Al Rashid (4th Defendant) Shahanur F Chowdhury (5th Defendant) Maisha Samiha (6th Defendant) Afra Anjum Khan (7th defendant) Atif Anowar (8th Defendant) Md Jahangir Islam (9th Defendant) Mohammad Nurul Islam (10th Defendant) Md Shohel (11th Defendant) Nour Abbas (12th Defendant) Ishita Afzana Khan (13th Defendant) Fauzia Nigar (14th Defendant) Tejinder Singh Grewal (15th Defendant) Sultana Akter (16th Defendant) Md Nurul Huda (17th Defendant) Ridwan Rahman Khan Chowdhury (18th Defendant) Md Kamruzzaman (19th Defendant) Mahmud Hossain (20th Defendant) Raihan Karim (21st Defendant) DCS – NSW Fair Trading (22nd Defendant) Joydeep Chowdhury Pantha (23rd Defendant)
Representation:	Counsel: M Algie (20th Defendant) R Lee (22nd Defendant) Solicitors: Australian Government Solicitor (1st and 2nd Defendants) Macquarie Law Group (4th-7th, 13th and 14th Defendants) Carter Newell Lawyers (20th Defendant) Crown Solicitor’s Office (22nd Defendant)
File Number(s):	2023/152394
Publication restriction:	Nil

JUDGMENT

1. HIS HONOUR: On 12 May 2023, Md Rajibul Islam commenced these proceedings by the filing of a summons naming 23 defendants. Although described as a summons, the document is in an unusual form containing a series of numbered and unnumbered paragraphs in a discursive and confusing combination of disconnected topics. With the benefit of Mr Islam’s oral submissions, it is at least apparent that he was formerly a director of Australian Real Estate Relation Pty Ltd trading as Raine and Horne Ingleburn and that the business he conducted has now been shut down. Mr Islam appears to contend that this was the result of the negligence of his employees, who presumably number among the named defendants, as well as unspecified fraudulent dealings with the assets and goodwill of the business. With the exception of the third defendant, none of the remaining defendants is referred to in the summons in a way that clearly or specifically connects any of them with these allegations. The document contains absolutely no particulars of the complaints that are made.

2. It is entirely unsurprising in these circumstances that several of the defendants have moved the Court by notices of motion seeking orders that the proceedings be dismissed or in the alternative that the “pleadings” be struck out. It is uncontroversial that the summons is amenable to an order pursuant to UCPR 14.28, if only having regard to Mr Islam’s concession to that effect. The only matter of any controversy is whether there is any possible utility in giving him an opportunity to re-plead his case in a form that complies with the rules and which articulates in clear terms some cause or causes of action known to the law.

3. Some, although limited, assistance to the understanding of Mr Islam’s concerns can be gleaned from an affidavit affirmed by him on 23 August 2023. The affidavit is also in an unusual form and was read subject to relevance. Some paragraphs of the affidavit, curiously appearing more than once in the document, are as follows:

“BACKGROUND

The plaintiff, in a spirit of mutual cooperation, entered into a contractual agreement with the defendants, who operate a real estate business under the banner ‘Linkers Real Estate’, aimed at facilitating the provision of referrals for home loans. Pursuant to this contractual understanding, the defendants undertook an unequivocal obligation to duly compensate the plaintiff for home loans derived from referrals and to indemnify the plaintiff against any financial losses incurred due to clawbacks.

7 8 FRAUDULENT ACTIVITIES AND EGREGIOUS VIOLATIONS

A shocking revelation came to light when the plaintiff unearthed that the defendants, including but not limited to Mr Mahmud Hossain and his familial cohort, were entrenched in acts of deception manifesting as the surreptitious presentation of spurious documents to orchestrate fraudulent home loans. Further investigation revealed an even graver transgression wherein the defendants orchestrated the sale of properties, originally financed by the plaintiff’s services, to multiple unwitting buyers.

The nefarious stratagem resulted in a twofold calamity of financial impairment and egregious detriment to the plaintiff’s professional standing.

SERIAL BREACHES OF CONTRACTUAL OBLIGATIONS

In an alarming disregard for contractual ethics, the defendants perpetrated a series of egregious breaches of the agreed terms, notably abstaining from discharging the plaintiff’s rightful commissions owed for the home loans facilitated through his referrals. In a diametric repudiation of their solemn commitment, the defendants further evaded their responsibility to indemnify the plaintiff against clawbacks, thereby compounding their contractual dereliction.

BREACHES OF THE SACRED FIDUCIARY DUTY

Central to this imbroglio is the defendants’ unassailable duty as directors of Linkers Real Estate, a duty that by its very nature is imbued with fiduciary reverence. This sacred obligation was flagrantly trampled upon through their orchestration of fraudulent machinations, wilful misrepresentation, and outright failure to uphold their stipulated responsibilities.

8 9 VIOLATION OF NOBLE LEGISLATIVE EDIFICES

The defendants’ reprehensible course of action has ensnared them in contravention of the hallowed Corporations Act 2001 (Cth), a statute meticulously sculpted to safeguard the sanctity of corporate governance. This transgression spans multiple dimensions including, but not limited to, breaches of fiduciary conduct, financial misconduct, and the wanton erosion of the plaintiff’s commercial prosperity.

Their audacious disregard has also led to their violation of the Australian Financial Complaints Authority (AFCA) Rules and the ASIC Regulatory Guides, instrumental paradigms designed to uphold the highest standards of professional conduct. Through their actions, they have heaved the plaintiff into the maelstrom of financial loss and irrevocable damage to his reputation.

CALAMITOUS TOLL ON THE PLAINTIFF

The relentless concatenation of the defendants’ actions culminated in a staggering financial loss that tolled to the disheartening figure of $178,000.

This sum, encapsulating both upfront commissions and trails, serves as an irrefutable testament to the grievous harm inflicted on the plaintiff. Furthermore, the plaintiff’s business, once a paragon of repute and trust, now stands eroded by the defendants’ malevolent acts. The corrosion of trust, loss of clients, and tarnished reputation together comprise the intangible yet equally harrowing toll borne by the plaintiff’s enterprise.

9 10 ENTREATY FOR JUSTICE AND REQUITAL

With a solemn heart, the plaintiff beseeches this honourable court for the balm of justice, the restitution of financial losses, the salve for reputational wounds, and any equitable redress the Court deems apt and fitting.

The plaintiff, Mr Md Rajibul Islam, brings this action against the defendants for their deliberate and injurious actions, which have wrought substantial damage to the plaintiff’s business and financial well-being.”

4. It is not possible for me to determine whether any of these omnibus complaints are capable of reformulation as a pleading that could withstand scrutiny having regard to the rules of court. It is clear that the summons discloses no reasonable cause of action against any of the defendants. I note in this respect the following commentary at [13.4.15] in Ritchie’s Uniform Civil Procedure NSW:

“Although the power to dismiss proceedings on the basis that they disclose ‘no reasonable cause of action’ requires a high degree of caution and certainty, the potentially permissive wording of UCPR 13.4(1)(b) applied against the background of the overriding purpose in CPA s 56(1) and (2), encourages a practical judgment about the proceedings’ prospects of success. It suggests that the dismissal power conferred by the present rule is not confined to proceedings that are demonstrably certain to fail: Simmons v Protective Commissioner of NSW [2012] NSWSC 455; McDonald v Grech [2012] NSWSC 717 at [32] – [33].

5. When contemplating the prospect that the summons might be capable of reformulation in a way that promotes some recognised cause of action, the content of the several paragraphs of the summons is necessarily instructive. While it may be accepted generally from the terms of the document, particularly with the assistance of Mr Islam’s affidavit, that he considers himself to have been badly treated and even defrauded by his former business associates in a multitude of ways, none of the material before me provides a clear route to a conclusion that these grievances are actionable in some recognised fashion. In my opinion, the summons is beyond saving by legitimate amendment: Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628; [1970] UKPC 30 at 631. It is difficult presently to conceive of how the effectively unintelligible, vague and general allegations in the summons could ever be moulded into a legitimate or recognisable cause of action.

6. I am satisfied that the ill-expressed and unstructured form of the summons could not possibly be amended or re-pleaded so as to reveal the existence of any viable cause of action against any of the defendants. The proceedings should therefore be dismissed with costs.

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Decision last updated: 06 October 2023