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

1. 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 of 392 Victoria Street, Richmond VIC;

g. Insurance and rates for Torbeckin’s assets;

h. Lease arrangements for 392 Victoria Street, Richmond VIC; and

i. All subpoenaed documents from proceeding S ECI 2022 04086 in their possession.

4.That the Plaintiff’s application, per the summons filed 24 April 2025, for a stay of the cost orders:

a.Dated 4 October 2024 ($21,450), in favour of Innis Anthony Cull and Timothy Bradd as joint and several liquidators of Torbeckin Pty Ltd (in liquidation);

b. Dated 7 February 2025 ($7,550), in favour of Innis Anthony Cull and Paul Anthony Allen as joint and several liquidators of Torbeckin Pty Ltd (in liquidation); and

c. Dated 14 March 2025 ($18,670), in favour of Innis Anthony Cull and Paul Anthony Allen as joint and several liquidators of Torbeckin Pty Ltd (in liquidation); and

d.The warrant authorized on 29 November 2024, be supported until further order.

…

1. The relief sought in Ms Domino’s summons filed in the Secure Funding proceeding is substantially similar. Ms Domino relied upon affidavits made on 27 and 29 April 2025, and also made submissions at the hearing. The Torbeckin proceeding was commenced by her partner, Mr Jeremy Rowell (Jeremy), by way of originating process filed 23 July 2024, seeking various forms of relief against the liquidators of Torbeckin Pty Ltd (in liquidation) (ACN 006 306 047) (Torbeckin). The Secure Funding proceeding was commenced by Secure Funding Pty Ltd (ACN 081 982 872) (Secure Funding) by way of writ filed 21 June 2023, seeking to enforce a loan agreement with Torbeckin. Jeremy and his father, Mr Rodney Rowell, are defendants against whom claims are made in their capacity as guarantors of Torbeckin’s obligations under the loan agreement.

1. On 2 May 2025, I ordered that Ms Domino’s summonses in the proceedings be dismissed and said that I would provide reasons on 5 May 2025.

Applicable principles

1. The applicable principles concerning interveners are conveniently set out in Levy v Victoria,[1] in which Brennan CJ said:

The jurisdiction to allow non-party intervention in these proceedings was not challenged.

…

… an indirect affection of legal interests enlivens no absolute right to intervene. The assumption is that the Court will determine the law correctly, so that the indirect affection of an applicant's legal interest is simply the inevitable consequence of the exercise by this Court of its jurisdiction as the final Court in the Australian hierarchy. On that assumption, no undue prejudice is suffered by a person whose interests will be affected by the decision. The exercise of this Court's jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the Court's judgments. Such a condition would virtually paralyse the exercise of that jurisdiction. The principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised.

However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.[2]

[1](1997) 189 CLR 579.

[2]Ibid 603–4 (citations omitted) (emphasis added). See also Priest v West (2011) 35 VR 225 and Bolitho v Banksia Securities Ltd (No 6) (2019) 63 VR 291.

1. Upon the grant of leave, an intervener acquires all the benefits of party to the proceeding.[3]

   [3]Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396.

Ms Domino’s evidence and submissions

1. In summary, Ms Domino gave evidence and submitted as follows:

(a)   she is a co-director, non-beneficial shareholder, and a creditor of Torbeckin owed $2,433,037.66;

(b)  she is highly likely under investigation by the liquidators but has never been interviewed by them;

(c)   the liquidators are biased;

(d)  the liquidators are colluding with a number of persons and this threatens Torbeckin’s equity in certain land;

(e)   the liquidators’ conduct prioritises the interests of the colluding parties over other creditors, with the intent to steal the equity in Torbeckin’s land;

(f)    the specific acts of the liquidators’ misconduct include:

(i)     undervaluation of the land and inaction on a falsified lease;

(ii)  a fraudulent sale of a caravan and a funding ‘discrepancy’;

(iii)             inaction in re-financing opportunities and neglect of insurance and rates;

(iv)             withholding of subpoenaed documents, sharing documents with other persons but not with Jeremy or her, preventing the filing of a claim against Rodney that includes her claim in the sum of $2,433,037.66, which she said: ‘further obstruct my ability to formalize my creditor claim, exacerbating the harm to my interests and Torbeckin’s assets, requiring my intervention to protect these interests’;

(g)  she has a fiduciary duty to protect Torbeckin’s assets and Jeremy’s beneficial ownership ‘to safeguard his shares from [Mr Rodney Rowell’s] fraudulent attempts to reclaim them’;

(h)  she said her interests will be affected if the cost orders are not stayed. She said that she is entitled to know about the investigation as her rights may be affected and that this includes whether Jeremy, her partner, has committed any offences;

(i)     she knows Ms Jessica Rodriguez who is colluding with the liquidators and can give evidence of these matters;

(j)     she has other unique knowledge of the circumstances of Torbeckin, including its liquidation.

1. I otherwise refer to the matters set out in her affidavits.

Analysis

Torbeckin proceeding

1. By paragraphs 1, 2 and 4 of her summons, Ms Domino seeks to intervene and support Jeremy’s applications for a stay of the costs orders made against him. Ms Domino confirmed this at the hearing.

1. It is appropriate and just to dismiss Ms Domino’s application for leave to intervene.

1. Ms Domino does not have an absolute entitlement to intervene. She did not submit that she did. The cost orders, the subject of the applications for a stay, were not made against her. They were not made against Torbeckin. They were made against Jeremy. Even accepting that her legal interests may be indirectly affected, I am not satisfied, in all of the circumstances, that I should exercise my discretion and allow Ms Domino to intervene. I am not satisfied that any submissions proposed to be made by Ms Domino, or evidence to be relied upon her, would assist the Court in reaching a correct determination of the issues raised on Jeremy’s applications which will not otherwise be addressed by Jeremy. This is because:

(a)   none have been adequately identified by Ms Domino;

(b)  Ms Domino did not submit that Jeremy may not present fully the submissions on any particular issue;

(c)   as I have already said, Jeremy informed the Court that he relies upon the affidavit of Ms Domino on his applications for a stay. The affidavit set outs in detail the matters that Ms Domino sought to rely upon in the event that leave was granted. I note he also relies upon the affidavit of Ms Domino in the Secure Funding proceeding on his applications for a stay;

(d)  Ms Dominio sought to rely upon her unique relationship with Ms Jessica Rodriguez, and other unique knowledge, but the matters sought to be addressed by Ms Domino on these matters are set out in her affidavits. Jeremy intends to rely upon those affidavits;

(e)   Ms Domino also sought to rely upon extensive evidence of Jeremy in relation to matters set out in numerous of his affidavits.

1. As a result, the grant of leave to Ms Domino would lead to additional costs and delay without any corresponding benefit to the administration of justice.

1. Next, by paragraph 3 of her summons, Ms Domino seeks substantive relief against the liquidators pursuant to s 90-15 of Sch 2 of the Corporations Act 2001 (Cth) (the Insolvency Practice Schedule (Corporations)), for access to records. The relief sought in paragraph 3 is final relief against the liquidators. Ms Domino must seek this relief by originating process and the most appropriate course is for her to commence her own proceeding, if minded to do so, by filing an originating process. This was explained to Ms Domino at the hearing.

1. For these reasons, Ms Domino’s summons in the Torbeckin proceeding will be dismissed.

Secure Funding proceeding

1. Paragraphs 1, 2 and 3 of Ms Domino’s summons filed in the Secure Funding proceeding are, in effect, for the same relief as paragraphs 1, 2 and 4 of her summons filed in the Torbeckin proceeding. In this respect, I refer to my reasons at paragraphs 10, 11 and 13 above. By paragraph 4 of her summons, Ms Domino, in effect, seeks relief in the same terms as paragraph 3 of her summons in the Torbeckin proceeding. In this respect, I refer to my reasons at paragraphs 12 and 13 above. In addition, I make the following observations:

(a)   the liquidators are not a party to the Secure Funding proceeding. Their involvement was that of an intervener in relation to discrete issues arising upon an application by Jeremy for derivative leave. That intervention has ended;

(b)  the subject matter of the Secure Funding proceeding is concerned with the enforcement by Secure Funding of a loan agreement with Torbeckin. The proceeding is, accordingly, not an appropriate forum for Ms Domino to prosecute claims against the liquidators. The addition of Ms Domino as a party in the manner she seeks would, in effect, introduce new claims between two present non-parties to that proceeding. This would be unjust and inconvenient to the parties to the Secure Funding proceeding and also prejudicial to the prompt, cost effective resolution of the questions in that proceeding;

(c)   the Secure Funding proceeding is a proceeding commenced by writ, being managed in the general Commercial List. The relief sought by Ms Domino against the liquidators is appropriate for management in the Corporations List.

1. For these reasons, Ms Domino’s summons in the Secure Funding proceeding will also be dismissed.

Conclusion

1. In conclusion, for the reasons I have given, Ms Domino’s summons in each proceeding will be dismissed.

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SCHEDULE OF PARTIES

S ECI 2024 03825

JEREMY STANLEY ROWELL	Plaintiff
- and -
TORBECKIN PTY LTD (IN LIQUIDATION) (ACN 006 306 047)	First Defendant
INNIS ANTHONY CULL	Second Defendant
PAUL ANTHONY ALLEN	Third Defendant
EMMA DOMINO	Proposed Intervener

S ECI 2023 02679

SECURE FUNDING PTY LTD (ACN 081 982 872)	Plaintiff
- and -
TORBECKIN PTY LTD (IN LIQUIDATION) (ACN 006 306 047)	First Defendant
JEREMY STANLEY ROWELL	Second Defendant
RODNEY STANLEY ROWELL	Third Defendant
INNIS CULL AND PAUL ALLEN AS JOINT AND SEVERAL LIQUIDATORS OF TORBECKIN PTY LTD (IN LIQUIDATION) (ACN 006 306 047)	Intervener
EMMA DOMINO	Proposed Second Intervener