Re Torbeckin Pty Ltd (in liq) (Intervention) - [2025] VSC 237

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2024 03825

JEREMY STANLEY ROWELL	Plaintiff
v
TORBECKIN PTY LTD (IN LIQUIDATION) (ACN 006 306 047) & ORS	Defendants
(according to the attached Schedule)

S ECI 2023 02679

SECURE FUNDING PTY LTD (ACN 081 982 872)	Plaintiff
v
TORBECKIN PTY LTD (IN LIQUIDATION) (ACN 006 306 047) & ORS	Defendants
(according to the attached Schedule)

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JUDGE:	Attiwill J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2025
DATE OF RULING:	5 May 2025
CASE MAY BE CITED AS:	Re Torbeckin Pty Ltd (in liq) (Intervention)
MEDIUM NEUTRAL CITATION:	[2025] VSC 237

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PRACTICE AND PROCEDURE – Interveners – Application for leave to intervene in two proceedings – Proposed intervention to support an application by the intervener’s partner for a stay of cost orders against the partner – No utility in intervention – Leave refused – Proposed intervention also raises independent claims for final relief by a summons – Procedure inappropriate for such claims – Applications dismissed – Levy v Victoria (1997) 189 CLR 579, considered.

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S ECI 2024 03825

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	N/A
For the First Defendant	No appearance	N/A
For the Second and Third Defendants	Mr A A Segal	Mason Black + Mendelsons Lawyers
For the Proposed Intervener	In person	N/A

S ECI 2023 02679

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	Norton Rose Fulbright Australia
For the First Defendant	No appearance	N/A
For the Second Defendant	In person	N/A
For the Third Defendant	No appearance	N/A
For the Intervener	Mr A A Segal	Mason Black + Mendelsons Lawyers
For the Proposed Second Intervener	In person	N/A

HIS HONOUR:

Introduction

Ms Emma Domino has filed summonses in proceeding no. S ECI 2024 03825 (the Torbeckin proceeding) and proceeding no. S ECI 2023 02679 (the Secure Funding proceeding). By her summons filed in the Torbeckin proceeding, Ms Domino seeks the following relief:

1.That Emma Christine Domino be granted leave to intervene in proceeding S ECI 2024 03825 as an interested party, being a co-director, non-beneficial shareholder, creditor owed $2,433,037.66 jointly with the Plaintiff, and person highly likely under investigation, pursuant to Rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015, for the purpose of appearing at the hearing of the Plaintiff’s summons filed 24 April 2025.
2.That Emma Christine Domino be permitted to rely on her affidavit affirmed on 27 April 2025 and exhibit bundle marked “ECD-1” at the hearing on 2 May 2025, pursuant to Rule 46.02.
3.That, pursuant to section 90-15 of the Insolvency Practice Schedule (Corporations), the Second and Third Defendants (the Liquidators) be directed to provide Emma Christine Domino with access to records within 7 days, including:
a.Details of their investigation into Emma Christine Domino and the Plaintiff;
b.The source and use of $52,881.96 in funding;
c. Refinancing efforts for Torbeckin Pty Ltd;
d. The caravan sale;
e. Communications with Jessica Rodriguez and Lin Gao;
f. Property valuation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 237
Decision Date: 5 May 2025

CaseChat Overview and Summary

The plaintiff, Jeremy Stanley Rowell, filed a proceeding against Torbeckin Pty Ltd in liquidation, and the plaintiff, Secure Funding Pty Ltd, filed a separate proceeding against Torbeckin Pty Ltd in liquidation and others. Emma Domino, a co-director, non-beneficial shareholder, and creditor of Torbeckin Pty Ltd, applied for leave to intervene in both proceedings. She sought to intervene to support an application for a stay of costs orders against Jeremy Rowell and to obtain access to records from the liquidators. The court had to decide whether to grant Ms Domino leave to intervene in the proceedings and whether her claims for access to records should be heard in the existing proceedings or in separate proceedings.

The court found that Ms Domino did not have an absolute right to intervene and that her intervention would not assist in reaching a correct determination of the issues in the existing proceedings. The court also found that her claims for access to records from the liquidators were final relief claims and should be pursued in separate proceedings. The court dismissed Ms Domino's applications for leave to intervene and her claims for access to records in both proceedings.

The court's decision was based on the principles of natural justice and the need to avoid unnecessary costs and delays. The court found that Ms Domino's proposed intervention would not assist in reaching a correct determination of the issues in the existing proceedings, and that her claims for access to records should be pursued in separate proceedings. The court also found that the existing proceedings were not the appropriate forum for Ms Domino to prosecute her claims against the liquidators.

Orders