Lamont v Malishus Limited (NZ)

[2023] FedCFamC2G 462

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lamont v Malishus Limited (NZ) [2023] FedCFamC2G 462

File number(s):

SYG 787 of 2020

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

1 June 2023

Catchwords:

INTELLECTUAL PROPERTY – Practice and procedure – ex parte application for freezing orders and other orders – application dismissed.

Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 20.02(1), 20.02(2)

Cases cited:

Insolvency Guardian Melbourne Pty Ltd v Carlei [2016] FCA 72

Lamont v Malishus Limited (NZ) & Ors (No 2) [2020] FCCA 1227

Lamont v Malishus & Ors (No.2) [2018] FCCA 895

Witham v Holloway (1995) 183 CLR 525

Division:

General

Number of paragraphs:

13

Date of hearing:

30 May 2023

Place:

Sydney

The Applicant:

Appeared in person, by telephone

The Respondents:

No appearance by, or on behalf of, the respondents

ORDERS

SYG 787 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DARREN LAMONT

Applicant

AND:

MALISHUS LIMITED (NZ) NZCN: 4429858

First Respondent

ROBERT JURCIC

Second Respondent

CLINTON SELWYN (and another named in the Schedule)

Third Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	1 JUNE 2023

THE COURT ORDERS THAT:

1.The application in a proceeding filed by the applicant on 24 May 2023 is dismissed.

2.By 5:00 pm on 2 June 2023 the applicant serve on the respondents the application in a proceeding the applicant filed on 24 May 2023, the affidavit the applicant filed on 24 May 2023, the written submissions on which the applicant relied at the ex parte hearing on 30 May 2023 headed “Applicants [sic] Brief Explanatory Notes”, and exhibit “A”, being a copy of the letter dated 26 May 2023 from the Australian Taxation Office to the applicant, on which the applicant relied at the ex parte hearing.

3.The transcript of the ex parte hearing held on 30 May 2023 be sent to the parties.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. On 23 May 2023 the Court’s Registry informed my Associate that the applicant, Mr Lamont, lodged for filing an application in a proceeding for freezing and other orders against the respondents, and that Mr Lamont wanted to make the application ex parte. In response to that request, and after the Registry had confirmed that Mr Lamont had lodged an affidavit in support of his application, I authorised my Associate to inform the Registry that it could accept for filing Mr Lamont’s application in a proceeding and also his affidavit in support, and that the matter be listed before me for an ex parte hearing at 10:15 am on 30 May 2023.

2. At 10:15 am on 30 May 2023 I heard Mr Lamont’s application and listed the matter for judgment on the ex parte application at 9:30 am on 1 June 2023. In these reasons for judgment, therefore, I consider Mr Lamont’s application.

   MR LAMONT’S APPLICATION AND COURSE OF EX PARTE HEARING

3. In his application in a proceeding Mr Lamont claims orders that include the following (errors in original):

   1.a Mareva “Freezing Order” to Freeze all Respondents Assets; and

   2.an InterlocutoryInjunction to “Provide ALL respondents’ Financials/Assets in their names & third parties”;

   3.. . .

   4.the respondents be ordered to Cease & Desist in any further Perjury Under Oath, Document Fabricating; and

   5.an order to star contempt proceeding against the first, second and third respondents and fifth respondent

   6.All final orders sought in the applicant’s Originating Application dated 03/11/2020 stays, and these orders ‘above’ are to be added in addition.

4. Order 3 of the orders Mr Lamont seeks is directed to pro bono counsel who has been acting on behalf of the respondents. At the outset of the hearing I informed Mr Lamont that ten years ago I was a member of the same barristers chambers of which pro bono counsel was and currently is a member, that I knew him, and that, if Mr Lamont intended to proceed with his application for the order he claims against pro bono counsel, I would have to recuse myself. Mr Lamont said he would not proceed with his application for an order against pro bono counsel. I then proceeded to hear Mr Lamont’s application.

   MR LAMONT’S AFFIDAVIT

5. Mr Lamont’s affidavit is divided according to the orders Mr Lamont seeks in the application. In relation to order 1, Mr Lamont asserts as follows:

   (a)The second respondent, Mr Jurcic, has controlled the first respondent (Malishus NZ) for and on behalf of all respondents “as proven by the video clip dated (9 April, 2016)”.

   (b)Malishus NZ has always been based in Melbourne.

   (c)Mr Jurcic has described his occupation as a “Stevedore, Port labourer and Labourer”; but Mr Jurcic has always been a “highly qualified professional business development manager, business consultant and owns his own (Consulting Company)”. Mr Lamont annexes a document which purports to record that as at 14 July 2014 Mr Jurcic was a director and secretary of a company called “Anebre Consulting Pty Ltd”.

   (d)Mr Jurcic has engaged in conduct. I will not repeat the assertions Mr Lamont makes in relation to Mr Jurcic’s conduct because they are conclusory and, therefore, do not identify the facts and matters on which the assertions are based.

   (e)The third respondent, Mr Selwyn, has engaged in “blocking” conduct. Mr Lamont annexes screenshots of Mr Selwyn’s Facebook on the basis of which Mr Lamont asserts Mr Selwyn has knowingly blocked Mr Lamont in an attempt to hide material evidence.

   (f)Mr Selwyn has engaged in conduct. I will not repeat the assertions Mr Lamont makes in relation to Mr Selwyn’s conduct because they are conclusory and, therefore, do not identify the facts and matters on which the assertions are based.

   (g)The fifth respondent, Mr Hau, has engaged in conduct. I will not repeat the assertions Mr Lamont makes in relation to Mr Hau’s conduct because they are conclusory and, therefore, do not identify the facts and matters on which the assertions are based.

6. In support of his application for order 2, Mr Lamont relies on substantially the same assertions on which he relies in support of his application for order 1.

7. In support of his application for orders 4 and 5, Mr Lamont relies on most of the assertions on which he relies in support of orders 1 and 2, but he sets out a number of additional assertions on the basis of which he contends that Mr Jurcic and Mr Selwyn had breached orders I had made in earlier proceedings. The assertions include Mr Selwyn having established a new Instagram account, assertions in relation to Mr Jurcic filing a notice with the New Zealand Companies Office, and assertions in relation to a conversation Mr Lamont says he had with Mr Jurcic in 2006.

   DETERMINATION

8. I have delivered a judgment in this and in an earlier proceeding Mr Lamont had commenced in which I explained the nature of freezing orders, and the circumstances in which a freezing order may be granted.[1] In both judgments I set out the following passage from the judgment of Edelman J (when his Honour was a judge of the Federal Court of Australia) in Insolvency Guardian Melbourne: [2]

   [1] Lamont v Malishus & Ors (No.2) [2018] FCCA 895; Lamont v Malishus Limited (NZ) & Ors (No 2) [2020] FCCA 1227

   [2] Insolvency Guardian Melbourne Pty Ltd v Carlei [2016] FCA 72, at [16]

   The criteria that must be satisfied for the court to grant a freezing order are set out in r.7.35 of the Federal Court Rules 2011 (Cth). In substance, the criteria relevant to this application are that:

   (1)the applicant have a good, arguable case on an accrued or prospective cause of action that is justiciable in the Federal Court of Australia;

   (2)there is a sufficient prospect that the judgment will be registered in or enforced by the Federal Court of Australia; and

   (3)the Court is satisfied, having regard to all the circumstances, that there is a danger that a prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

   (a) the judgment debtor, prospective judgment debtor or another person absconds; or

   (b) the assets of the judgment debtor, prospective judgment debtor or another person are:

   (i)removed from Australia or from a place inside or outside Australia, or

   (ii)disposed of, dealt with or diminished in value.

9. The material contained in Mr Lamont’s affidavit does not disclose he has a good arguable case which would merit the grant of a freezing order. That is not to say, however, that Mr Lamont does not have a good arguable case. On 6 February 2023 the respondents filed an application in a proceeding for an order that the proceeding be dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). On 28 April 2023 I ordered that that application be set down for hearing before me on 27 June 2023, and that Mr Lamont file and serve all evidence on which he intends to rely by 2 June 2023. Whether Mr Lamont has a sufficiently arguable case to resist the respondents’ application for dismissal will be the subject of evidence and submissions at the hearing of 27 June 2023.

10. Even if Mr Lamont’s affidavit had disclosed a good arguable case, the material contained in his affidavit is incapable of supporting a finding that the respondents hold assets or, to the extent they do hold assets, there is a risk they intend to remove them to avoid satisfying any judgment that Mr Lamont may be able to recover against them.

11. Finally, it is apparent from the language Mr Lamont uses in his affidavit that he believes that the respondents have breached orders I made in an earlier proceeding. Where a party wishes to allege that a person has disobeyed this Court’s orders and, for that reason, the person has committed a contempt of court, the party alleging contempt must file an application pursuant to r 20.02(1) of the GFL Rules. Subrule 20.02(2) of the GFL Rules provides:

    An application must:

    (a)       be in accordance with the approved form; and

    (b)       state the contempt alleged; and

    (c)       be supported by an affidavit setting out the facts relied on.

12. The standard of proof for contempt, whether civil or criminal, is proof beyond reasonable doubt.[3] The material on which Mr Lamont relies in his affidavit for alleging the respondents have disobeyed this Court’s orders is incapable of proving beyond reasonable doubt that any of the respondents have committed a contempt of court.

    [3] Witham v Holloway (1995) 183 CLR 525, at page 534: “[A]ll charges of contempt must be proved beyond reasonable doubt.”

    DISPOSITION

13. I will order that Mr Lamont’s application in a proceeding be dismissed. I will also order that by 5:00 pm on 2 June 2023 Mr Lamont serve on the respondents the application in a proceeding and the affidavit on which he relied, the written submissions on which Mr Lamont relied at the hearing, and exhibit “A”, being a copy of the letter dated 26 May 2023 from the Australian Taxation Office to Mr Lamont on which Mr Lamont relied at the hearing. I will also order that the transcript of the ex parte hearing be sent to the parties.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       1 June 2023

SCHEDULE OF PARTIES

SYG 787 of 2020
Respondents
Fifth Respondent:	CHRIS HAU