Re Torbeckin Pty Ltd (in liq) (Stay)
[2025] VSC 234
•5 May 2025
| 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) (Stay) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 234 |
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PRACTICE AND PROCEDURE – Interlocutory applications by a party in two proceedings – Where party seeks stays of gross sum cost orders – Where Court has previously refused a stay of some of the cost orders – Proposed stays for indeterminate duration – No proper basis for stay – Applications refused – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.16 – Sami v Roads Corporation [2009] VSCA 44 and Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, considered and applied.
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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 |
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 |
HIS HONOUR:
Introduction
Mr Jeremy Rowell (Jeremy),[1] by summonses filed in proceeding no. S ECI 2024 03825 (the Torbeckin proceeding) and proceeding no. S ECI 2023 02679 (the Secure Funding proceeding), applied for orders that cost orders made against him be stayed until further order of the Court. The summonses have been heard together.
[1]I will refer to him as Jeremy to avoid confusion as his father is also a party to the Secure Funding proceeding.
Procedural background
Torbeckin proceeding
The Torbeckin proceeding was commenced by 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). By paragraph 2 of his amended originating process filed 18 October 2024, Jeremy sought, inter alia, the following relief:
2.[A]n order, pursuant to s 198F and 290 and/or s 486 of the Corporations Act 2001 (Cth) and/or 70-10 of Sch 2 of the Act (the Insolvency Practice Schedule (Corporations)), that the second and third defendant, make available for inspection and copying by the plaintiff or his representative, the documents referred to as the books of the first defendant listed in the annexure attached since their appointment as liquidators on 6 December 2023.
The annexure to Jeremy’s amended originating process identified 41 categories of documents within the scope of the ‘books of Torbeckin’. Paragraph 2 of Jeremy’s amended originating process was referred to the Honourable Associate Justice Steffensen for hearing and determination and her Honour delivered ex tempore oral reasons on 19 February 2025. In summary, her Honour held that:
(a) categories 1, 2, 3, 4, 5, 6, 12, 13, 15, 21, 23, 25, 26 and 28 are documents that do not exist and there is no utility in making an order for production of those documents;
(b) categories 7, 8, 9, 10, 11, 11 14, 16, 17, 19, 22, 24, 27, 31 to 37, 39 and 40 are documents likely to be held by the liquidators and were reasonable to produce, subject to redaction of any privileged material;
(c) category 41 is reasonable and should be complied with; and
(d) categories 18 and 20 encompass materials of such breadth that it is reasonable for the liquidators to refuse to produce them, unless payment is made for the liquidators’ reasonable costs of compliance. Her Honour found that it was not possible, at that time, to make any determination as to what reasonable costs might be.
In consequence of her ruling, Associate Justice Steffensen made an order on 19 February 2025 that, inter alia:
1. The hearing of paragraph 2 of the Amended Originating Process is adjourned to 14 March 2025 at 10:30am or such other later time as is convenient to Court.
On 14 March 2025, Associate Justice Steffensen delivered a ruling on the issue of costs. Her Honour held that Jeremy should pay the liquidators’ costs of the original formulation of paragraph 2 of the originating process, because it raised a legal basis for access to documents which, following receipt of the liquidators’ submissions, was in effect abandoned. Further, having regard to the parties’ mixed success in relation to paragraph 2 of Jeremy’s amended originating process, her Honour considered it appropriate to order that the plaintiff pay the liquidators’ costs in a fixed gross sum of $18,670. Her Honour made the following order:
5.The plaintiff pay the second and third defendants’ costs of and incidental to paragraph 2 of the Amended Originating Process, fixed pursuant to r 63.07(2)(c) of the Rules as a gross sum of $18,670.
By summons filed 24 April 2025 in the Torbeckin proceeding, Jeremy seeks a stay of the costs order made against him in the sum of $18,670. The liquidators oppose Jeremy’s application for a stay.
Secure Funding proceeding
The Secure Funding proceeding was commenced by Secure Funding Pty Ltd (ACN 081 982 872) by way of writ filed 21 June 2023, seeking to enforce a loan agreement with Torbeckin. Jeremy and his father, Mr Rodney Rowell, were also named as defendants in their capacity as guarantors of Torbeckin’s obligations under the loan agreement. By way of summons filed on 2 May 2024, Jeremy sought derivative leave, pursuant to the Court’s inherent jurisdiction, to file a defence and counterclaim on behalf of Torbeckin. The liquidators appeared as an intervener in relation to that application. In the result, Jeremy’s application for derivative leave was dismissed because, inter alia, the Court was not satisfied that the proposed claims, including the relief sought, had a solid foundation; Torbeckin’s liquidators opposed the grant of leave; and Jeremy had not offered any indemnity.[2] In consequence of the ruling on Jeremy’s application for derivative leave, the Court made a further ruling on 4 October 2024 on the question of costs.[3] The Court then ordered on 4 October 2024 that, inter alia:
1.The second defendant pay the third defendant’s costs of and incidental to the second defendant’s summons, to be taxed forthwith on a standard basis if not agreed.
2.The second defendant pay the intervener’s costs of and incidental to the second defendant’s summons, fixed pursuant to r 63.07(c) of the Rules as a gross sum of $21,450.00.
[2]See Secure Funding Pty Ltd v Torbeckin Pty Ltd(in liq) [2024] VSC 571.
[3]See Secure Funding Pty Ltd v Torbeckin Pty Ltd(in liq) (No 2) [2024] VSC 609.
On 8 November 2024, Jeremy filed a further summons seeking, inter alia, the following relief:
8. [A]n order, pursuant to section 66.16 of the Supreme Court (General Civil Procedure) Rules 2015, that orders 1 and 2 made 4 October 2024 be stayed until the conclusion of this proceeding and the related proceedings with reference numbers S ECI 2022 04086 and S ECI 2024 03825.
That relief was the subject of the Court’s oral ruling delivered on 2 December 2024, in which the Court refused a stay. On 2 December 2024, the Court ordered, inter alia, that:
1.The second defendant’s applications in paragraphs 1 and 8 of his summons filed 8 November 2024 (the second defendant’s summons) are dismissed.
By summons filed 28 April 2025 in the Secure Funding proceeding, Jeremy seeks a stay of the costs order made against him in the sum of $21,450. The liquidators oppose Jeremy’s application for a stay.
On 7 February 2025, the liquidators sought their costs in relation to Jeremy’s summons filed 8 November 2024. Following oral submissions, the Court found that the liquidators were entitled to their costs and that the amounts sought were reasonable. Jeremy subsequently made an oral application for an order that the costs orders be stayed until 21 days after the conclusion of any proceeding in this Court in which he is a party. This application was dismissed on the basis that, inter alia, no proper basis had been established for a stay. On 7 February 2024, the Court made the following orders:
5. The second defendant pay the intervener’s costs of and incidental to the application in paragraph 8 of the second defendant’s summons, fixed pursuant to r 63.07(2)(c) of the Rules as a gross sum of $7,550.00.
6.The second defendant’s oral applications today to stay the cost orders made in favour of the liquidators and the third defendant in this proceeding are dismissed.
By summons filed 28 April 2025 in the Secure Funding proceeding, Jeremy seeks a stay of the costs order made against him in the sum of $7,550.00. The liquidators oppose Jeremy’s application for a stay.
Applicable principles
The applicable principles are well established. Rule 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides:
Stay of execution
The Court may stay execution of a judgment.
In Sami v Roads Corporation,[4] Williams AJA (with whom Redlich JA agreed) said:
[4][2009] VSCA 44.
24The Court has an inherent jurisdiction to stay execution. It is required to take into account all the circumstances of the case and is not bound by decisions on other sets of facts.
25.The starting point in relation to the Court's discretion is that a party who obtains a judgment is entitled to have it enforced without delay. The circumstances justifying a stay are those which go to the enforcement of the judgment and not to its validity or correctness
26.Stays under r 66.16 and equivalent provisions have been granted in situations such as those in which determinations of related or third party proceedings were pending.
27.The possibility of setting off obligations under a costs order against some future order in favour of an applicant has been proffered as the justification for a stay. This was the case in Grant v Banque Franco-Egyptienne where a stay of costs orders associated with an application was sought on the basis that the amount payable could be set off against costs which might be payable if the applicant were successful in the action. The application was refused, and Jessell MR (with whom Cotton and Thesiger LJJ agreed) said:
It was quite unheard of, in Courts where the practice of several taxations prevailed, that the mere chance of the litigant obtaining costs upon a decision at some subsequent stage of the case was to prevent his paying the costs already ordered to be paid under a separate judgment. Certainly no such rule ever existed in the old Court of Chancery and no such practice has been established under the Judicature Act; it does not seem to me that we ought to establish any such practice and that part of the application ought to fail.
28.A similar application was met with a different fate in Re UTSA Pty Ltd (in liquidation), where Chernov J distinguished the facts in Grant from those before the court. His Honour awarded a short stay of an order for costs in favour of liquidators who were obliged to pay costs, yet to be taxed, to the applicant in another proceeding.
29.Chernov J emphasised the width of the Court's discretion to grant a stay under r 66.16 in a proper case. He considered the circumstances of the case, referring to the fact that there was no further step to be taken before the applicant became entitled to the costs ordered in its favour, which were to be taxed within a matter of months only. His Honour cited the lack of material which might reasonably have been expected from the liquidators as to their asserted ability to satisfy their obligations. He granted the stay, having concluded, in all the circumstances of the litigation between the parties, that there was a reasonable basis for the applicant's concern about the liquidators’ ability to meet their obligations and a reasonable risk of prejudice to it if the stay were not granted.[5]
[5]Ibid [24]–[29] (citations omitted).
Jeremy’s evidence and submissions
Jeremy relied upon numerous of his affidavits filed in the Torbeckin proceeding and the Secure Funding proceeding, including, but not limited to: his recent affidavits of 5 February 2025, 10 March 2025, 31 March 2025, 24 April 2025 and 27 April 2025, filed in the Torbeckin proceeding and of 29 April 2025, filed in the Secure Funding proceeding; the affidavits of his partner, Ms Emma Domino, made 27 and 29 April 2025, filed in the Torbeckin and Secure Funding proceedings respectively; and other affidavits, including an affidavit of one of the liquidators, Mr Innis Cull, made 24 April 2025.
Jeremy gave evidence explaining the basis for the applications for a stay in his affidavit made 24 April 2025, in the following terms:
Background
5. I am a sole director and the sole shareholder of the First Defendant, Torbeckin Pty Ltd (in liquidation) (“Torbeckin”). The Second and Third Defendants are the joint and several liquidators of Torbeckin, appointed on 6 December 2023.
6.I rely on my affidavits affirmed 31 March 2025 and 5 February 2025, which detail fraud allegations and misconduct by the Second and Third Defendants, including a $108,700 fraudulent caravan insurance claim, a $52,881.99 funding discrepancy, failure to recover Torbeckin's Peugeot 208, neglect of council rates and mail, and misrepresentation of liquidation funds (31 March 2025 affidavit, paragraphs 8-12, 44-50; 5 February 2025 affidavit, paragraphs 17-40).
7.The stay is necessary to prevent enforcement of the cost orders until my fraud allegations are substantiated via a subpoena application listed for 16 May 2025, as enforcement risks irreparable financial prejudice, including bankruptcy.
…
Subpoena Application
15.I have an application listed for 16 May 2025 to issue subpoenas to Australian Associated Motor Insurers Limited, Victoria Police, and others to obtain evidence substantiating the fraud allegations and liquidator misconduct (31 March 2025 affidavit, paragraph 49).
16.The evidence sought includes records of the $108,700 caravan claim, the Peugeot 208 write-off (3 December 2024), and the $52,881.99 funding source, which are critical to determining whether the cost orders were obtained through improper conduct (5 February 2025 affidavit, paragraphs 28-30, 38-40).
17.The delay until 16 May 2025, beyond the enforcement time line of the cost orders and BN277 421, necessitates a stay to preserve my ability to pursue this proceeding (Amended Originating Process, paragraph 29(d)).
Financial Prejudice
18.On 16 April 2025, the Defendants served Bankruptcy Notice BN277421 for $30,263.44, comprising the $21,450 and $7,550 cost orders plus $1,263.44 interest, with a 21-day compliance period ending 7 May 2025 (JR-10, pages 3-11 “Bankruptcy Notice”; pages 12-13 “Service of Notice”).
19.This follows BN275149, issued 11 December 2024 for $21,836.80, served strategically before the 2024 holidays to induce bankruptcy, with a hearing now scheduled for 20 March 2025 (5 February 2025 affidavit, paragraphs 5-16; exhibit JR-6, pages 16-18). The Defendants’ repeated use of bankruptcy notices escalates financial pressure, risking my directorship and standing in this proceeding.
20.The total cost orders ($47,670) and BN277421 threaten irreparable prejudice, as enforcement before the subpoena application's resolution could lead to bankruptcy, preventing me from substantiating the fraud allegations (5 February 2025 affidavit, paragraph 15).
21.As a self-represented litigant and Torbeckin director, I face significant financial strain, exacerbated by the Defendants’ failure to prioritize creditor interests, such as neglecting mortgage payments (5 February 2025 affidavit, paragraphs 41-44).
Conclusion
22.The fraud allegations and liquidator misconduct raise a serious question to be tried, supported by my affidavits of 31 March 2025 and 5 February 2025. A stay is necessary to prevent enforcement of potentially unjust cost orders until the subpoena application is resolved, avoiding irreparable prejudice.
23.I respectfully request the Court grant the stay, with liberty to apply and costs reserved, pending the outcome of the 16 May 2025 subpoena application.
I also refer to Jeremy’s submissions set out in his submission filed 24 April 2025 and also made at the hearing. In summary, he alleges that if the stays are not granted he will be made bankrupt and suffer irreparable prejudice. This is because:
(a) if the ‘fraud allegations and misconduct’ of the liquidators are substantiated this may render the costs orders unjust and also ‘invalidate the cost orders’;
(b) his application for leave to issue subpoenas to various persons is set down for hearing on 16 May 2025 and these seek evidence to substantiate the fraud allegations against the liquidators and this is critical to determining the validity of the costs orders. He submitted that the application for leave to issue the subpoenas requires ‘interim relief’; and
(c) enforcement of the costs orders risks bankruptcy, outweighing the liquidators’ interests.
Analysis
No jurisdiction
The Court has already refused a stay of the cost orders made on 4 October 2024 and on 7 February 2025. As a result, the Court is functus officio and does not have jurisdiction to entertain a further application for, or to simply reconsider, a stay of these cost orders.[6] Jeremy has not appealed any orders upon which the cost orders are based, the cost orders themselves or the refusal of his previous applications to stay them.
[6]See Re VGM Holdings Ltd [1941] 3 All ER 417. See also Bodycorp Repairers Pty Ltd (ACN 068 589 408) v Oakley Thompson and Co Pty Ltd (ACN 092 053 239) [2017] VSCA 22, [83]–[84], (Warren CJ, Tate and McLeish JJA), citing Commonwealth v Davis Samuel Pty Ltd [No 11] [2017] ACTSC 2, [99]–[101] and[104]–[107] (Refshauge ACJ); CBI Constructors Pty Ltd v Chevron Australia Pty Ltd (2024) 98 ALJR 1096 (Jagot and Beech-Jones JJ) [72].
But it is still necessary to address whether there should be a stay of the cost order made by Associate Justice Steffensen. This has not been previously the subject of an application for a stay. In addition, in case I am incorrect and the Court has jurisdiction to entertain a further application for a stay of the cost orders made on 4 October 2024 and on 7 February 2025, I will also address whether there should be a stay of these cost orders.
Prejudice to the liquidators
In my view, the liquidators will suffer prejudice if the cost orders are stayed.
First, the liquidators have incurred costs and have the benefit of the costs orders. They are prima facie entitled to the ‘fruits’ of the costs orders.[7]
[7]See Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, [87] (Kyrou and McLeish JJA).
Second, I accept that if the stays are not granted then it is likely that Jeremy will not pay the costs and that, as a consequence, Jeremy is likely to be made bankrupt and a trustee appointed to his estate. This was common ground between the parties. But this does not mean that the liquidators will not suffer any prejudice by a stay. This is because if the costs orders are stayed the liquidators will be deprived of the opportunity during the period of the stay to take steps to make Jeremy bankrupt and potentially benefit from the appointment of a trustee. This includes:
(a) any potential recoveries made by a trustee in bankruptcy by taking possible steps to, inter alia, recover preferential payments or wind back voidable dispositions of property; and
(b) the independent forensic judgement that a trustee would be capable of applying to the Torbeckin proceeding and the Secure Funding proceeding.
Third, the stays would be of indeterminate duration. The liquidators would be precluded from accessing the fruits of the costs orders for an indeterminate period of time. This would be manifestly oppressive. It would also be contrary to the administration of justice. The proceedings would be, in effect, stayed for a unknown period of time. The stays are expressed variously by Jeremy as, inter alia being:
(a) ‘until further order of the Court’ (paragraph 1 of Jeremy’s summonses filed in each proceeding);
(b) ‘until my fraud allegations are substantiated via a subpoena application’ (paragraph 7 of his affidavit made 24 April 2025);
(c) ‘pending the outcome of the 16 May 2025 subpoena application’ (paragraph 23 of his affidavit made 24 April 2025).
Jeremy further said that the liquidators would ‘retain enforcement rights if allegations are disproven.’ (emphasis added) (paragraph 13 of his submissions filed 24 April 2025).
At the hearing, Jeremy confirmed that the stays are sought until the fraud allegations against the liquidators and Rodney are resolved. This is indeterminate. It is uncertain and speculative as to when any such allegations would be resolved. It is also likely to be a very significant period of time. The stays are not sought only until the production of any documents pursuant to the subpoenas for which leave is sought in the Torbeckin proceeding.
No appeal
Jeremy has not appealed any of the costs orders or any orders upon which the cost orders are based. The Court has also already refused a stay of the cost orders made on 4 October 2024 and on 7 February 2025. In addition, the Court made a ruling as to why a gross costs order was appropriate in the circumstances in relation to each of the costs orders the subject of a stay. I refer to the following rulings of the Court:
(a) $21,450 costs order: ruling made 4 October 2024 in the Secure Funding proceeding;
(b) $7,550 costs order: revised ruling made 7 February 2025 in the Secure Funding Proceeding; and
(c) $18,760 costs order: revised ruling made 14 March 2025 in the Torbeckin proceeding.
Prejudice to Jeremy
As I have already said, I accept that if the stays are not granted then it is likely that Jeremy will not pay the costs and that, as a consequence, he is likely to be made bankrupt and a trustee appointed to his estate. This would be prejudicial to him. I also accept that this would mean that he could not personally conduct his claims against the liquidators in the Torbeckin proceeding or his defence and counterclaim in the Secure Funding proceeding. I further address the position of a trustee later in this ruling shortly below at paragraph 38.
I do not accept that, in the circumstances, an opportunity would be lost to pursue arguable claims against the liquidators. This was the primary focus of his application for the stays. The claims against the liquidators are vague, speculative and not adequately formulated.
Jeremy submitted that if the cost orders are not stayed then he will be made bankrupt and be prevented from ‘substantiating the fraud allegations’ (paragraph 20 of his affidavit of 24 April 2025). He gave evidence (see paragraph 12 of his affidavit of 29 April 2025):
12.Enforcing the costs orders and warrant would cause irreparable harm by potentially bankrupting me, limiting my ability to pursue claims against the Liquidators and protect Torbeckin’s creditors. The total costs ($47,670) are disproportionate to the Liquidators’ legal and administrative expenses ($253,000 as of 22 November 2024), suggesting their pursuit is economically irrational and motivated by ulterior purposes.
First, Jeremy has not commenced any proceeding against the liquidators concerning any of the alleged fraud and misconduct.
Second, Jeremy has not formulated any claims against the liquidators with any precision.
Third, the claims appear to concern wrongs to Torbeckin and not Jeremy. Jeremy has not identified what step he would take to prosecute these claims on his own behalf or on behalf of Torbeckin (e.g. a derivative proceeding). He sought derivative leave to maintain a defence and counterclaim in the Secure Funding proceeding and that application was unsuccessful.[8] He has not identified what steps he would take to prosecute any claims that Torbeckin may have.
[8]See Secure Funding Pty Ltd v Torbeckin Pty Ltd (in liq) [2024] VSC 571.
Fourth, I do not intend to individually address the numerous claims made in his affidavit but I do make the following observations on the claims set out in paragraphs 5 to 7 of his submissions in which he describes ‘fraudulent conduct and breaches of fiduciary duty’ of the liquidators:
(a) Caravan (para 5): Jeremy most recently addressed this claim in paragraphs 7 to 9 of his affidavit made 29 April 2025. See also paragraphs 10 to 15 and 18 to 20 of Jeremy’s affidavit made 27 April 2025. This concerns alleged fraudulent conduct by Rodney and his partner Natamon and an alleged failure by the liquidators to report this to Victoria Police and ASIC. I am not satisfied that the evidence relied upon identifies any basis for a substantive claim against the liquidators.
(b) Liquidation funds (para 5): Jeremy complains that he cannot verify the legitimacy of certain funds (see para 5). I am not satisfied that the evidence relied upon identifies any basis for a substantive claim against the liquidators.
(c) Peugeot (para 5): Jeremy most recently addressed this claim in paragraph 10 of his affidavit made 29 April 2025. This concerns the write off of a motor vehicle ‘potentially due to further fraud of Rodney’ and an alleged failure by the liquidators to take steps to recover it. I am not satisfied that the evidence relied upon identifies any basis for a substantive claim of Jeremy against the liquidators. In addition, there was no adequate evidence as to the value of the Peugeot 2012 vehicle. In addition, the claim appears to concern a potential further fraud of Rodney and not the liquidators (see para 5).
(d) City of Yarra (para 5): This concerns alleged unpaid rates. I am not satisfied that the evidence relied upon identifies any basis for a substantive claim against the liquidators.
(e) Funds (para 5): I am not satisfied that the evidence relied upon identifies any basis for a substantive claim against the liquidators.
(f) Lease agreement (para 6): Jeremy most recently addressed this claim in paragraph 10 of his affidavit made 29 April 2025. The evidence relied upon does not identify any basis for a substantive claim against the liquidators. This concerns the conduct of Rodney and not the liquidators. The land has not even been sold.
(g) Documents: The evidence relied upon does not identify any basis for a substantive claim against the liquidators.
(h) Devaluing and undervaluing the land: Jeremy mostly recently addressed this claim in paragraph 10 of his affidavit made 29 April 2025. The land has not even been sold. I am not satisfied that the evidence relied upon identifies any basis for a claim against the liquidators.
Jeremy now relies upon ‘new evidence’ being Rodney’s response to Jeremy’s claims in a Magistrates’ Court proceeding. Jeremy gave evidence in his affidavit of 27 April 2025:
New Evidence in Support of Costs Stay
6.On 4 May 2023, I filed an application for a Family Violence Intervention Order (FVIO) against Rodney Rowell in the Magistrates’ Court of Victoria (case number P10943575) (JR-11, pages 1-4), alleging that Rodney engaged in economic abuse by misappropriating Torbeckin’s assets, including $413,662 transferred from the company’s account after I deposited funds from the sale of my home on 22 February 2022, and made false police reports in February 2023 claiming I had him under surveillance via a tracking device on a stolen company vehicle.
7.Rodney's reply to my further and better particulars for this FVIO application, was received on 27 April 2025 at 5:00 pm (JR-11, pages 5-15), specifically paragraph 7 on page 9, reveals that Rodney was aware of the Liquidators’ investigation into my conduct.
8.I was not aware of this investigation until receiving Rodney’s reply, which triggered this affidavit, the affidavit of Emma Christine Domino dated 27 April 2025, and her application to intervene in these proceedings under Rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015.
9.This indicates collusion and bias by the Liquidators, as they have used their investigative powers to assist Rodney and collude with others rather than acting impartially in Torbeckin's liquidation, further supported by their failure to report Rodney and Natamon Rowell's fraudulent AAMI insurance claim to Victoria Police despite awareness, as evidenced by correspondence with their solicitor on 24 April 2025 (JR-11, pages 16-18). This evidence was not available prior to my filing with the court on 24 April 2025, strengthening my application to stay the costs orders and enforcement.
No objection was taken to this evidence. I am concerned that it may involve a breach of the implied ‘Harman undertaking’ not to use Rodney’s reply to Jeremy’s application for a Family Violence Intervention Order in the Magistrates’ Court proceeding for a collateral or ulterior purpose.[9] In any event, I am not satisfied that any of this this gives rise to any claim against the liquidators. It was relied upon as ‘proof’ that the liquidators are investigating Jeremy and Ms Domino and colluding with others.
[9]See Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Jeremy also seeks to rely upon documents filed in the Magistrates’ Court proceedings to submit that the liquidators ‘may be misusing their investigative powers to assist Rodney and Natamon’ (paragraphs 17 and 18 of Jeremy’s affidavit of 27 April 2025). This is speculative. I am not satisfied that the evidence relied upon identifies any basis for a substantive claim against the liquidators.
Fifth, the vague, speculative and unformulated nature of the allegations against the liquidators was confirmed by Jeremy’s submissions and evidence upon his applications for stays of the cost orders. He submitted that he seeks a stay, in part, to prosecute his application for leave to issue subpoenas in the Torbeckin proceeding. He submitted that he ‘seeks evidence to substantiate the fraud allegations’. He also gave evidence that:
(a) the subpoenas are required in order ‘to obtain evidence substantiating the fraud allegations and liquidator misconduct’ (paragraph 15 of his affidavit made 24 April 2025) (emphasis added);
(b) the subpoenas ‘are critical to determining whether the cost orders were obtained through improper conduct’ (paragraph 16 of his affidavit made 24 April 2025) (emphasis added);
(c) the liquidators ‘have committed multiple breaches of their fiduciary duties under the Corporations Act 2001 (Cth) and have violated several provisions of the Australian Restructuring Insolvency & Turnaround Association (ARITA) Code of Ethics and Code of Professional Practice: Insolvency Services (COPP: Insolvency Services), which I am seeking to investigate through access to Torbeckin’s books and subpoenas listed for hearing on 16 May 2025’ (emphasis added).
In addition, if a trustee in bankruptcy is appointed this does not mean that the claims, if they have merit, would not be pursued. As observed by the Court of Appeal in Gangemi v Osborne:[10]
23.If a trustee is appointed, the likelihood that the appeal would be prosecuted is diminished, as the trustee has an obligation to handle any remaining funds prudently. However, this does not mean that the appeal would not be prosecuted.
24.In Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd, Callaway JA, with whom Chernov JA agreed, said that it was not “irrelevant that the liquidator may still pursue the appeal if he or she considers that to be worthwhile”.
25.Unlike the company in Kalifair, Gangemi clearly has some limited assets and it is possible that a trustee in bankruptcy would apply those funds to the prosecution of the appeal. This likelihood is, we submit, relative to the strengths of the case; a prudent trustee could not ignore an excellent case, just as a hopeless case could not be prosecuted.
26.Accordingly, without a stay, Gangemi would not lose his ‘only avenue of legal redress’. This application being refused would only alter the likelihood of the appeal being prosecuted, as the decision would be made according to the principles applicable to trustees’ discharge of duty.[11]
[10][2008] VSCA 221 (emphasis added).
[11]Ibid [23]–[26] (emphasis added). See also St Kilda Arts and Events Company (Vic) Pty Ltd & Ors v Apes with Wings Pty Ltd & Anor [2015] VSCA 199, [32] (Weinberg JA and Garde JA).
Intentions of the liquidators
I am not satisfied that, as submitted by Jeremy, the enforcement actions of the liquidators based upon the cost orders are ‘strategically aimed at bankrupting [Jeremy] to gain powers under bankruptcy laws to suppress [his] efforts to expose their breaches of fiduciary duties’ (paragraph 4 of Jeremy’s affidavit of 29 April 2025. See also paragraph 4 of Jeremy’s affidavit of 27 April 2025) (emphasis added). The liquidators are prima facie entitled to enforce the costs orders by taking steps to bankrupt him and appoint a trustee if he does not pay them.
No nexus between the allegations of fraud and misconduct and the costs orders
Jeremy submitted that if the ‘fraud allegations and misconduct’ of the liquidators are substantiated that this ‘may’ render the costs orders unjust and or ‘may’ invalidate them. He did not further explain this submission. It is mere speculation. He submitted that the applications for leave to issue the subpoenas concerns evidence that is ‘critical to determining the costs orders validity’. None of this was explained or further developed. It is assertion. I am not satisfied that there is any nexus between the allegations of fraud and misconduct and the cost orders. Even if the allegations of fraud and misconduct were formulated into claims and were successful I am not satisfied that this would result in the cost orders being set aside.
Exercise of discretion
Taking in account the matters I have addressed, I am not satisfied, in the circumstances, that I should exercise my discretion to stay the costs orders. As a result, I will dismiss Jeremy’s applications for stays of the cost orders.
Conclusion and orders
In conclusion, for the reasons I have given, I will exercise my discretion to refuse the applications to stay the cost orders. I will order:
(a) The plaintiff’s summons filed 24 April 2025 in proceeding S ECI 2024 03825 is dismissed.
(b) The second defendant’s summons filed 28 April 2025 in proceeding S ECI 2023 02679 is dismissed.
(c) The issue of the costs of the summonses is set down for hearing on 16 May 2025. Both proceedings are presently listed on that day for other applications.
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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 |
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 |
0
6
0