Riva NSW Pty Limited v The Official Trustee in Bankruptcy; The Official Trustee in Bankruptcy v Ferella

[2022] NSWSC 153

Supreme Court

New South Wales

Medium Neutral Citation:

Riva NSW Pty Limited v The Official Trustee in Bankruptcy; The Official Trustee in Bankruptcy v Ferella [2022] NSWSC 153

Hearing dates:

31 January 2022

Decision date:

22 February 2022

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Proceeding to be stayed; Prohibition orders to be made

Catchwords:

CIVIL PROCEDURE – Parties – Vexatious litigants – Declaration of – Stay of proceedings

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil Procedure Act 2005 (NSW)

Conveyancing Act 1919 (NSW)

Limitation Act 1969 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685

Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129

Agusta Pty Ltd and Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella (Unreported, 28 August 2009)

Attorney-General (NSW) v Croker [2010] NSWSC 942

Attorney-General v Wentworth (1988) 14 NSWLR 481

Attorney General (NSW) v Wilson [2010] NSWSC 1008

Attorney-General (NSW) v Gargan [2010] NSWSC 1192

Ferella v Official Trustee in Bankruptcy [2010] FCA 766

Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619

Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43

Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712

Ferella v Official Trustee in Bankruptcy (No 5) [2015] FCA 983

Ferella v Official Trustee in Bankruptcy [2016] FCA 1297

Ferella v Official Trustee in Bankruptcy [2013] FCA 1319

Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508

Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411

Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188

Ferella v Official Trustee in Bankruptcy [2016] FCA 1270

Ferella v Official Trustee in Bankruptcy (No 2) [2018] FCA 18

Nauer v Batterham [2020] NSWSC 240

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] NSWSC 49

Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] NSWCA 186

Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] HCASL 389

Siteberg v Maples [2010] NSWSC 1344

Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317

Category:

Principal judgment

Parties:

2020/206189 proceedings
Riva NSW Pty Limited (Plaintiff)
The Official Trustee in Bankruptcy (Defendant)

2021/210771 proceedings
The Official Trustee in Bankruptcy (Plaintiff)
Angelo Ferella (Defendant)

Representation:

Counsel:

2020/206189 proceedings
M Coffey (Plaintiff) (Solicitor)
T Lynch SC (Defendant)

2021/210771 proceedings
T Lynch SC (Plaintiff)
M Coffey (Defendant) (Solicitor)

Solicitors:

2020/206189 proceedings

Gells Lawyers (Plaintiff)
Craddock Murray Neumann (Defendant)

2021/210771 proceedings

Craddock Murray Neumann (Plaintiff)
Gells Lawyers (Defendant)

File Number(s):

2020/206189; 2021/210771

Publication restriction:

No

Judgment

Summary

1. These proceedings form part of a considerable history of litigation between the parties dating back to 2006. At the core of the ongoing dispute is a property at Wingadal Place, Point Piper (the property) and proceeds from the sale of that property (the proceeds). The property was purchased by Angelo Ferella, together with his father, Gustavo Ferella, in October 2000. With no disrespect intended, the parties shall be referred to by their given names.

2. At the time the property was purchased, both Angelo and Gustavo were trustees of the Cavallino Unit Trust (the CU Trust). Riva NSW Pty Ltd (Riva) replaced Angelo and Gustavo as trustee on or about 19 April 2005. The director of Riva was Nida Ferella, who is Angelo's mother and Gustavo's wife. Nida was succeeded as director by Tiziana Ferella, who is Angelo's sister, on 7 February 2006. Angelo became a director on 13 June 2020. For several years prior to 2020, Angelo also held the position of manager of Riva. Tiziana resigned on 31 June 2021 and Angelo is now sole director.

3. Agusta Pty Ltd (Agusta) was purportedly appointed trustee of the CU Trust on 9 February 2006. This was later determined by Nicholas J this Court to have been invalid. The effect of this was to determine that Riva has been trustee at all relevant times since its appointment in 2005.

4. On or about 14 October 2005, sequestration orders were made in the Federal Magistrates Court of Australia against Angelo and Gustavo. The Official Trustee in Bankruptcy (the Official Trustee) was appointed to manage their respective estates. In the same month, the Official Trustee lodged a caveat over the property. A further caveat was lodged on 3 March 2006 after the first caveat lapsed.

5. Sometime in early 2006, the mortgagee of the property notified the parties that it intended to exercise its power of sale. Riva sought to refinance to prevent the sale. In a letter dated 4 March 2006, Angelo complained to Mr Phillip Madden, who was the officer of the Official Trustee with carriage of the Ferellas’ estates at that time, that:

1. The caveat was unwarranted as the Official Trustee held no interest in the property because it formed part of the CU Trust; and

2. The caveat was prejudicial to the Ferella's efforts to refinance.

6. On 11 April 2006 the property was sold by the mortgagee for approximately $7.95 million. An amount totalling $1,742,030.39 - being a portion of the proceeds of sale less the mortgagee's entitlements - was deposited into the Common Interest Fund in June 2006 by the Official Trustee in its capacity as trustee in bankruptcy.

7. These events, which have been extrapolated in greater detail in multiple cases, began more than 15 years of litigation involving the parties, culminating in the proceedings currently before the Court.

8. The Official Trustee now seeks orders under the Vexatious Proceedings Act2008 (the Act) against Riva and Angelo. The Official Trustee seeks:

1. An order for a permanent stay of these proceedings brought by Riva pursuant to s 8(7)(a) of the Act.

2. An order prohibiting Angelo Ferella by himself or in the name of others from instituting any proceedings against the Official Trustee in New South Wales pursuant to s 8(7)(b) of the Act.

9. For the reasons which follow, the Court has determined that orders should be made in both cases. Riva is a vexatious litigant pursuant to s 8(1)(a) of the Act. The current proceeding is an abuse of process within the meaning of s 6 and should be stayed. It involves re-litigation of previous matters and has been instituted without reasonable grounds and for wrongful purposes. Angelo is a vexatious litigant pursuant to s 8(1)(b) of the Act as he has acted in concert with Riva.

10. Mr M Coffey, solicitor, appeared for Riva and Angelo Ferella. Mr T Lynch of Senior Counsel appeared for the Official Trustee.

Procedural History

11. There are two proceedings before the Court that are being heard together.

12. The first proceeding was commenced by Riva by summons filed on 7 July 2020. Riva brings the proceedings in its capacity as trustee of the CU Trust against the Official Trustee. In its statement of claim filed on 18 February 2021, Riva seeks relief including:

“1.   A declaration that at no time did the property … at Point Piper … vest in the defendant.

2.   A declaration that in the said circumstances the defendant in asserting rights in respect of [the property] inconsistent with the rights of the trustee and beneficiaries of the Cavallino Unit Trust was unconscionable in all the circumstances.

3.   A declaration that the defendant as trustee in bankruptcy of Gustavo Ferella and Angelo Ferella held all rights as a constructive trustee for the plaintiff in its capacity as trustee of the Cavallino Unit Trust.

4.   Damages for slander of title.

5.   Damages for breach of fiduciary duties owed to the plaintiff.

6.   Damages for breach of trust.

7.   Equitable damages and compensation …”

13. In response, a notice of motion was filed by the Official Trustee on 19 May 2021 seeking:

“Against the Plaintiff:

1.   Pursuant to rule 13.4 of the Uniform Procedure Rules 2005 (NSW) judgment be given for the defendant for the whole of the plaintiff's claim.

2. Further, or in the alternative, pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) the whole of the Summons and Statement of Claim filed by the plaintiff on 2 March 2018 be struck out.

3. Further, or in the alternative, pursuant to section 67 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings be permanently stayed.

4. Further, or in the alternative, pursuant to rule 12.11 of the Uniform Civil Procedure Rules 2005 (NSW) the Summons and Statement of Claim be set aside.

5. Further, or in the alternative, pursuant to section 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW), the whole of the proceedings be stayed.

Against the Respondent:

1. Pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Angelo Ferella be prohibited from instituting proceedings against the defendant in New South Wales, whether in his own name, in the name of Gustavo Ferella or Riva NSW Pty Ltd (ACN 113 881 815) or in the name of any other individual, or corporation, or legal entity, without the leave of the Court … ”

14. On 20 July 2021, the parties in the first proceeding appeared before Ward CJ in Eq. Her Honour ordered the Official Trustee to file a summons in respect of the relief sought under the Act by 30 July 2021.

15. The second proceeding was initiated by the Official Trustee against Angelo by summons filed on 23 July 2021 for orders including:

“1. Pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Angelo Ferella be prohibited from instituting proceedings against the defendant in New South Wales, whether in his own name, in the name of Gustavo Ferella or Riva NSW Pty Ltd (ACN 113 881 815) or in the name of any other individual, or corporation, or legal entity, without the leave of the Court ...”

16. Subsequently, Ward CJ in Eq ordered that the evidence in one proceeding be evidence in the other. On 2 November 2021, her Honour fixed the proceedings for hearing before me on 31 January 2022.

17. On 27 January 2022, Riva applied to me to vacate the hearing date on the basis that it was not ready to proceed. Two reasons were provided. First, Riva intended to add a cause of action in slander of title to their claim, although it was noted that this already appeared in Riva's pleadings. Second, Riva desired further time to prepare a response to submissions by the Official Trustee regarding the Limitation Act1969 (NSW) (Limitation Act). The application was refused on the basis that the Court would deal with the relief claimed by the Official Trustee under the Act which, if successful, would render the remaining issues between the parties nugatory.

18. The hearing took place, as scheduled, on 31 January 2022.

Facts - History of Litigation

19. There is no dispute regarding the essential facts of the litigation between the parties. There can also be no dispute in relation to many of the essentials because these are evident in the judgments. The earliest litigation between the parties commenced in 2006 and concluded in 2008. Further litigation occurred in 2009, 2010, 2011, 2013, 2014, 2015, 2016, 2017, 2018, 2019 and 2020. These matters are:

Original proceedings before Nicholas J in the Supreme Court of NSW

20. Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685 heard by Nicholas J on 28 February and continued on 29 February, 7 March, 1 May and 4 June 2008. The moving parties were Agusta, Riva, Angelo and Nida. His Honour held that the property was purchased by Angelo and Gustavo in their capacity as trustees of the CU Trust. While Riva had succeeded them as trustee, the appropriate steps under the trust deed to vest the property in Riva had not been taken, so the Official Trustee obtained an interest in the proceeds in the form of a lien at the time of Angelo and Gustavo's bankruptcy.

21. Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 heard by Beazley, Tobias and Macfarlan JJA on 7 May 2009. The moving parties were Agusta, Riva, Angelo and Gustavo. Tobias JA (Beazley and Macfarlan JJA agreeing) upheld an appeal against several of the orders made by Nicholas J in relation to the Official Trustee's right of indemnity. Nicholas J's finding that the Official Trustee held a lien over the proceeds was initially challenged but that course was ultimately abandoned. The Official Trustee was ordered to pay the appellant's costs and the matter was remitted to Nicholas J.

22. Agusta Pty Ltd and Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella (Unreported, 28 August 2009) heard by Nicholas J on remitter from the Court of Appeal.

Inquiry Proceedings before Yates J in the Federal Court of Australia

23. Ferella v Official Trustee in Bankruptcy [2010] FCA 766 heard by Yates J on 2 June 2010. Angelo and Gustavo were plaintiffs. These were interlocutory proceedings in which his Honour granted an application for a limited inquiry to be held pursuant to s 179 of the Bankruptcy Act1966 (Cth) (Bankruptcy Act) into the conduct of the Official Trustee’s handling of their estates.

24. Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619 (Ferella (No 2) [2011]) heard by Yates J on 6 June 2011. Angelo and Gustavo raised eleven questions for inquiry under s 179 of the Bankruptcy Act with respect to the conduct of the Official Trustee in the previous proceedings before Nicholas J and its dealings with the property.

25. His Honour noted at [160] that the Ferellas' submissions "focus on the respondent's receipt of the Point Piper funds … and what the respondent should then have done with those funds". On this issue, his Honour described evidence and information provided by the applicants in the course of previous proceedings relating to the identity of the trustee and entitlement to the property as "deficient and inaccurate … confusing and contradictory" (at [164]) with some of the applicants' contentions being afflicted by "unreality" (at [176], [179]).

26. His Honour found that the Official Trustee had not been unreasonable and was justified in several of its actions in respect of the property (at [166], [172]-[173], [185], [209]). Further inquiry was rejected in relation to nine of the eleven questions raised by the applicants (at [186], [196]-[197], [199], [200], [201], [204], [209], [218], [221], [225], [227]). However, his Honour did accept that further inquiry was appropriate in relation to the disclosure of correspondence received from the ATO regarding capital gains tax on the property (at [215], [226]) and that a further issue pertaining to costs would form part of that inquiry (at [224]).

27. Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43 heard by Dowsett, Foster and Nicholas JJ on 7 March 2012. This was an appeal against the interlocutory decision of Yates J in Ferella (No 2) [2011] against Angelo and Gustavo. The appeal was dismissed and the Ferellas were ordered to pay the Official Trustee's costs. Their Honours noted at [48] that several grounds raised regarding the entitlement of the Official Trustee to the property were "simply criticisms" and constituted attempts to "revisit the factual findings and conclusions reached by the primary judge without pointing to any basis for doing so".

28. Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712 (Ferella (No 4) [2015]) heard by Yates J on 6 August and 8 September 2014. This was the conclusion of the earlier inquiry ordered by Yates J into the disclosure of correspondence from the ATO by the Official Trustee. His Honour found that, as it was in the applicant's interest to know about the correspondence, the Official Trustee had not acted reasonably by failing to disclose the correspondence and was not justified in doing so (at [84]-[88], [92], [104]). However, the non-disclosure did not have any material bearing on the matters between the parties (at [94]). Further, his Honour noted that the applicants' submissions "[ignored] my earlier findings" about the validity of the Official Trustee pursuing its claims with respect to the property (at [95]).

29. Ferella v Official Trustee in Bankruptcy (No 5) [2015] FCA 983 (Ferella (No 5) [2015]) heard by Yates J on 31 August 2015. Orders for costs were made by his Honour in relation to the earlier inquiry proceedings. Angelo and Gustavo were ordered to pay ten-elevenths of the Official Trustee's costs and the Official Trustee's indemnity was limited to the same amount (at [22]). The Official Trustee was to pay the Ferellas' costs incidental to the earlier hearings in Ferella (No 4) [2015] in recognition of the breach of duty by the Official Trustee (at [24]).

30. Ferella v Official Trustee in Bankruptcy [2016] FCA 1297 heard by Nicholas J on 2 November 2016. This was an application by Angelo and Gustavo for extension of time to appeal against the costs order made by Yates J in Ferella (No 5) [2015]. While both Angelo and Gustavo were parties, only Angelo provided any evidence (at [10]). His Honour found there had been "substantial" delay by the applicants in filing their application for leave to appeal which had "not been satisfactorily explained" and the explanation given was "wholly implausible" (at [9], [14]). The application was refused.

Discontinued Proceedings in the District Court

31. Proceedings in the District Court of NSW (123875/2011) commenced by Nida and Agusta, of which Tiziana was director, for relief related to funds given by Angelo's mother, Nida, to Phillip Madden in his capacity with the Official Trustee on 13 March 2006. The proceeding was discontinued on or about 9 September 2011.

Proceedings before Jacobson J in the Federal Court of Australia

32. Ferella v Official Trustee in Bankruptcy [2013] FCA 1319 heard by Jacobson J on 2 December 2013. This proceeding was brought on the same basis by the same parties, Nida and Agusta (Tiziana as director), as the discontinued proceedings in the District Court. Despite not being a formal party, Angelo was closely involved, as is discussed at [56] below. The matter was dismissed, and the applicants were ordered to pay the Official Trustee's costs (at [35], [38]).

33. Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508 (Ferella (No 2) [2014]) heard by Gleeson J on 13 May 2014. Nida and Tiziana in her capacity as sole director of Agusta sought an extension of time to appeal the earlier judgment of Jacobson J. Angelo was not a party but was still involved which is dealt with at [56] below. The matter was dismissed and the applicants ordered to pay the Official Trustee's costs. Her Honour deemed that the original application before Jacobson J had lacked merit and was bound to fail (at [24]-[25]).

Proceedings in the Court of Appeal related to s 66G Orders made by Nicholas AJ

34. Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 heard by Bergin CJ in Eq, Tobias AJA and Emmett AJA on 17 November 2015. This was an appeal by Gustavo and Nida against orders made by Nicholas AJ on 18 December 2014 regarding the sale of four properties - which did not include the property - that were vested in the Official Trustee pursuant to s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act). The appeal was dismissed.

35. Tobias AJA (Bergin CJ in Eq agreeing) noted that the appeal was "somewhat difficult" given the parties had consented to the primary judge's orders and rendered the whole matter hopeless (at [23], [44]). His Honour labelled the arguments advanced by the appellants at various times as "misconceived" (at [35]), "a nonsense" (at [46]), "meaningless" (at [50]) and without merit (at [48], [52], [53]). In respect of several matters, these were advanced with little or no evidence in support (at [50], [51]).

34. At [54], Tobias AJA summed up the appellants' case as follows:

"The appellants' submissions on the appeal were, in my respectful view, hopeless to the extent that they should not have been made. The Court's time has been unnecessarily wasted, contrary to the mandate contained in s 56(1) of the Civil Procedure Act 2005 (NSW), a fact that I find disturbing.

37. His Honour contemplated at [55] that the appellants' case was "so lacking in merit as to warrant the award of indemnity costs in favour of the Official Trustee". However, his Honour reserved final judgement on this point to allow the appellants to argue their case regarding costs.

38. Emmett AJA, having read the reasons of Tobias AJA, gave his support to his Honour's conclusions and stated at [71] that "none of the grounds of appeal has any substance".

Proceedings before Perry J in the Federal Court of Australia

39. Riva NSW Pty Ltd v The Official Trustee in Bankruptcy (2015/00199962) heard by Rein J in the Supreme Court of NSW. Riva and Angelo were both parties to the matter. Consent orders were made to transfer the proceedings to the Federal Court of Australia.

40. Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 heard by Perry J on 28 April 2016 after being transferred from the Supreme Court of NSW. Riva, Angelo and Gustavo were plaintiffs. The matter was summarily dismissed as an abuse of process, being vexatious and oppressive (at [109]). Her Honour's decision was founded on three major factors:

1. The matter was an attempt to relitigate earlier issues already comprehensively determined by Nicholas J and Yates J (at [100]).

2. The claims raised lacked any legal merit (at [107]).

3. The claims were well beyond the statutory limitation periods and no satisfactory explanation, nor new evidence, was provided to justify the delay (at [107]).

41. Her Honour took care to expound upon the basis for the dismissal in light of the extensive history of litigation between the parties "in the interest of promoting finality in litigation" (at [5]).

42. Her Honour described the applicant's submissions in relation to a breach of statutory and implied duty by the Official Trustee as "misconceived" and "untenable" (at [56], [57], [59]), and in relation to breach of fiduciary duty as "devoid of merit" (at [68]). Even if this were not the case, the claims were beyond the expiry of the applicable limitation periods and were statute barred (at [86]). Her Honour also noted that the pleadings "conflate" the position of Riva with that of Gustavo and Angelo as bankrupts (at [57]).

43. The applicants sought leave to amend their pleadings in order to add a claim in relation to fraud by the Official Trustee. This was refused, with her Honour stating at [88]:

"… given that no part of the pleadings suggests any reasonably arguable cause of action and my findings made below that the proceedings are an abuse of process, I do not consider that this is an appropriate case in which to refuse the application for summary dismissal in order to allow for such an application to be made. Nor is it apparent that any amendment to plead a case of fraud would not equally constitute an abuse of process …"

44. Application in the Federal Court of Australia (NSD408/2017) to appeal the decision of Perry J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188. The application was withdrawn by consent on 18 September 2016.

45. Ferella v Official Trustee in Bankruptcy [2016] FCA 1270 heard by Perry J on 28 April 2016. An injunction was sought by Gustavo to stay the earlier orders made by Nicholas AJ on 18 December 2014 pursuant to s 66G of the Conveyancing Act. Although Angelo was not a party to the proceeding, Perry J noted his extensive involvement which is dealt with at [56] below. The matter was dismissed as there was no serious question to be tried (at [53], [59], [61]). Even if there had been a serious question to be tried, her Honour would not have granted the injunction in the exercise of her discretion (at [61]). Her Honour noted that earlier findings of Yates J in the inquiry proceedings appeared to have been "ignored" (at [54]). Other contentions were affected by lack of evidence, rising "no higher than mere assertions" (at [55], [56], [61]).

46. Ferella v Official Trustee in Bankruptcy (No 2) [2018] FCA 18 (Ferella (No 2) [2018]). This proceeding was joined together with the previous proceeding ([2016] FCA 1270) heard by Perry J on 28 April 2016 and continued on 28 August 2017. Her Honour summarily dismissed an application by Gustavo to file an amended statement of claim which reformulated the relief sought in the original proceeding ([2016] FCA 1270) (at [5]). The application was made after opportunity had already been afforded to Gustavo to file amended documents pleading the material facts, which he had not done (at [22]). Her Honour found that the changes made to the original statement of claim were "not substantive but rather 'cosmetic' in nature" (at [43]).

47. Pertaining to the applicant's claim for relief under s 178(1) of the Bankruptcy Act her Honour stated at [50]:

"[T]he statement of claim and the draft [Amended Statement of Claim] have no reasonable prospects of success. They also fail to plead the material facts, are embarrassing in that they plead conclusions from unstated facts, are so vague as to fail to disclose the case alleged against the Official Trustee, and are misconceived in point of law."

48. As to the applicant's claim for relief under s 179 of the Bankruptcy Act her Honour stated at [81]-[82]:

"[N]either the Statement of Claim nor the draft Amended Statement of Claim raise a reasonably arguable case that there are substantial grounds for believing that the trustee erred in his administration. As such, I do not consider that any basis has been established on the basis of which it might reasonably be concluded that an inquiry would be fruitful, or do anything other than further obstruct and delay completion of the administration of the estate."

49. Finally, at [90] her Honour stated:

"It would not be in the interests of justice to further delay the administration of the bankrupt estate and to require the expenditure of further money and resources in apparent fruitless litigation."

Proceedings before Pembroke J in the Supreme Court of NSW

50. Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2019] NSWSC 49 heard by Pembroke J in Eq on 1 February 2019. Riva was the only plaintiff in the matter. A permanent stay was granted under s 67 of the Civil Procedure Act2005 (NSW) (the CP Act). His Honour held that the proceeding was an abuse of process, being vexatious and oppressive by reason of repetition and duplication, especially in light of the "extensive prior litigation, the use of public resources, the vexation to the defendant and the unlikely prospects of success" (at [17]).

51. His Honour stated:

"1   This litigation … raises issues that have been comprehensively investigated, analysed, probed and contested before judges in other courts …

11   The allegations and the pleadings in the 2015 proceedings and in these proceedings are overwhelmingly similar. The actual language of each claim is substantially identical, with only a few minor variations. The substance of both proceedings - their pith and core - is the same. The commercial objective is the same. Both agitate the same complaint, point to the same conduct, and propound effectively the same relief. The defendant's solicitor has prepared a schedule comparing the formulation of the statements of claim in the 2015 proceedings and these proceedings. The comparison is revealing. The correspondence between them is alarming …

12   The recitation of facts in each pleading is all but identical. Any differences are minor and immaterial. They represent no more than attempts at drafting refinement. They deal with the longstanding complaint by Gustavo and Angelo Ferella that the defendant's conduct thwarted a proposed re-financing of their borrowings secured over the Point Piper land. They allege that, but for the defendant's conduct, the mortgagee sale of the land would not have occurred.

13   From these facts, the drafter has made an attempt to propound a different legal characterisation. But it is a distinction without a difference, at least a material difference."

52. His Honour noted that the Ferellas had raised new allegations of reckless, fraudulent and deliberate disregard against the Official Trustee. However, his Honour concluded at [18]:

"These allegations have no prospect of success and should not have been made - all the more so because they are based, not on new facts, but on facts which have been traversed scrupulously in the preceding litigation and which do not support such a serious allegation."   

53. Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] NSWCA 186 heard by Bell P and Emmett AJA on 17 July 2019. Riva sought leave to appeal the earlier decision of Pembroke J. Leave was refused. During the course of argument, counsel for Riva “frankly acknowledged that any claim other than a claim for fraudulent breach of trust would be barred by the operation of the Limitation Act” (at [32]). At [42] Emmett AJA (Bell P agreeing) concluded:

"[W]hether or not the claims made in the current proceedings by Riva are identical to, or substantially the same as, the claims made in the 2015 proceedings, the claims made in the current proceedings are bound to fail."

54. Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] HCASL 389 heard by Gordon and Edelman JJ. Riva applied for special leave in the High Court of Australia to appeal the earlier judgment by the Court of Appeal. The application was dismissed, noting the findings of the primary judge that the litigation constituted an abuse of process.

Facts - Evidence of Angelo's Involvement

55. There was disagreement between the parties regarding Angelo's involvement in proceedings brought against the Official Trustee. The evidence clearly demonstrates, and the Court finds, that Angelo appeared as plaintiff in:

1. Supreme Court of NSW proceedings before Nicholas J and on appeal before Beazley JA, Tobias JA and Macfarlan JA.

1. Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685.

2. Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129.

3. Agusta Pty Ltd and Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella (Unreported, 28 August 2009).

2. Inquiry proceedings in the Federal Court of Australia before Yates J and on appeal before Dowsett, Foster and Nicholas JJ

1. Ferella v Official Trustee in Bankruptcy [2010] FCA 766.

2. Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619.

3. Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43.

4. Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712.

5. Ferella v Official Trustee in Bankruptcy (No 5) [2015] FCA 983.

6. Ferella v Official Trustee in Bankruptcy [2016] FCA 1297.

3. Proceedings commenced in the Supreme Court of NSW and transferred by consent to the Federal Court of Australia before Perry J and withdrawn on appeal

1. Riva NSW Pty Ltd v The Official Trustee in Bankruptcy (2015/00199962) in the Supreme Court of New South Wales.

2. Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188.

3. Riva NSW Pty Ltd v Official Trustee in Bankruptcy (NSD408/2017) in the Federal Court of Australia.

56. The evidence also establishes, and the Court finds, that Angelo played a substantial role in other proceedings where Gustavo, Nida and Tiziana were plaintiffs. These include:

1. Ferella v Official Trustee in Bankruptcy [2013] FCA 1319: Angelo was not, in any official capacity, a party to the proceedings. However, Jacobson J noted that Angelo was "actively involved in the conduct of the proceeding" (at [3]). This arose due to these factors:

1. Angelo held power of attorney for his mother, Nida, who was a party to the matter (at [3]).

2. Angelo provided the evidence which formed the basis for the application, including a sworn affidavit (at [12]).

3. Angelo engaged in further substantive conduct in the course of the matter, such as managing correspondence (at [14]), instructing counsel (at [16]-[17]), and acting as intermediary for his mother and sister (at [20]).

2. Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508: Nida and Agusta (Tiziana as Agusta’s director) were plaintiffs. Angelo was not a party to the proceeding but was recorded by Gleeson J to have been "actively involved in the conduct of the proceedings for the applicants" (at [5]). Her Honour also noted that in the prior proceedings ([2013] FCA 1319), Angelo had provided sworn evidence but Nida and Tiziana had not, and no satisfactory explanation was given as to why (at [8]).

3. Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411: Nida and Gustavo were plaintiffs. Angelo provided a sworn affidavit (at [6]).

4. Ferella v Official Trustee in Bankruptcy [2016] FCA 1270: Gustavo was the plaintiff. Angelo provided the evidence relied upon in the form of the sworn affidavit with the originating process and two further sworn affidavits (at [6]). No evidence was given by Gustavo or his legal representatives and Angelo's explanations for this were less than satisfactory to Perry J (at [9]).

Her Honour stated that Angelo sought in his evidence to advance his own views and concerns, and not those of his father who was actually a party to the proceeding despite Angelo's views being "irrelevant" to the matter (at [9]). In the second affidavit provided by Angelo, her Honour stated that Angelo "again purports to speak on behalf of the applicant (as well as for his mother who is not a party)" (at [11]).

Email correspondence between Tiziana and Zali Burrows (Riva’s legal representative in the Federal Court proceedings before Perry J) produced under subpoena, further demonstrated Angelo's involvement in that matter. The first email is dated 20 March 2016. It contains a request by Tiziana for Ms Burrows to respond to an inquiry by Angelo, either by phone or email, in order to "move forward" with the matter. The second email is dated 11 May 2016. In that email, Tiziana confirmed that Angelo is authorised "to take all necessary steps required as requested for [Riva]".

57. A notice to admit facts in the proceedings was served by the Official Trustee and a response provided by Angelo on 23 September 2021. Angelo admitted that he:

1. Signed the affidavit verifying Riva's statement of claim in Ferella v Official Trustee Riva NSW Pty Ltd (2014/00204343) and Riva v Official Trustee in Bankruptcy [2017] FCA 188. This was done with the authority of Tiziana, who was Riva's director at that time.

2. Swore an affidavit on 1 June 2017 on behalf of Riva in the appeal proceedings in the Federal Court of Australia (NSD408/2017) with the authority of Tiziana. These proceedings were withdrawn.

3. Signed the affidavit verifying the statement of claim on behalf of Riva in Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2019] NSWSC 49 with the authority of Tiziana.

4. Instituted the current proceeding against the Official Trustee in the Supreme Court of NSW on behalf of Riva in his capacity as director.

58. An affidavit filed in the current proceedings that was sworn by Angelo on 30 August 2021 was not read in his case. However, the Official Trustee sought to tender a number of statements made in the affidavit as admissions. It was submitted by Mr Coffey for Riva that, for the sake of fairness, the statements should not be included as evidence unless the entire affidavit were also included in order to give the statements their proper context. Many of the statements did not appear contentious. Mr Coffey could not point to any specific statement that would be prejudicial to Riva without further context so I overruled Mr Coffey’s objections and the statements were tendered as admissions. The admissions are:

"1   I have the day to day carriage in this matter and I am aware of the dispute between the parties.

4   I am the sole director of Riva NSW Pty Ltd ("Riva").

5   I became a director of Riva NSW Pty Ltd on 13 June 2020.

6   Before I became a director of Riva my sister Tiziana Ferella was the sole director of Riva. Tiziana resigned as a director on 30 June 2021 due to her health, she is under medication. In 2016 Tiziana was very ill, was diagnosed and suffering from a malignant tumor [sic] derived from epithelial tissue, she underwent chemotherapy sessions, had undergone radical surgery and is to undergo further surgery.

15   By the authority given to me by Tiziana on 7 July 2015, I met with Zali Burrows Lawyers on 8 July 2018, the affidavit verifying was executed by me as the manager of Riva and as a party to the proceedings. Tiziana was not able to meet with Zali Burrows Lawyers to sign the affidavit verifying as a full time carer for her father in law who was gravely ill.

17 On 3 March 2017 Perry J gave judgment in [2017] FCA 188 in which the transferred proceedings in NSD 139/2015 were summarily dismissed under s.31A of the Federal Court Act. Her Honour concluded at [110] that the other causes of action were untenable as a matter of law and that success relied on the question of fact which had been contradicted by findings in other proceedings to which Riva, Gustavo and Angelo were parties, that the claims were barred by statute and the proceedings constituted an abuse of process. Her Honour at [88] declined leave to amend the statement of claim which commenced in the Supreme Court of New South Wales.

18   By the authority given to me by Tiziana on 1 March 2018, I met with Zali Burrows Lawyers on 2 March 2018, the affidavit verifying was executed by me as the manager of Riva, Tiziana was not available to meet with Zali Burrows Lawyers to sign the affidavit as a full time carer caring for our father Gustavo who was gravely ill.

39   Riva and the Ferellas nevertheless have an offsetting claim, the official trustee in bankruptcy have been put on notice of further proceedings to commence in the Federal Court of Australia ("the new Inquiry") having regard to the new evidence, the advices, referred at [27-29] of the amended statement of claim of 1 August 2021, wilfully misled the Courts, engaged in fraud and perjury, referred at [26] of the amended statement of claim, further to, falsely commencing Supreme Court of New South Wales proceedings (2014/204343( ("the 66G proceedings") on the false premise that Riva and or the Ferellas were indebted to the official trustee in bankruptcy and in doing so wilfully misled the Court, engaged in fraud and perjury. Further to the making of misleading and erroneous claims, claims without evidence in former estate of Gustavo Ferella to force an annulment. Gustavo Ferella was annulled on 20 April 2018, NSW 5272/5/0, in excess of $1.5 million dollars has been fraudulently claimed by the official trustee in bankruptcy, even taking into account the benefit of its cost orders, the monies paid by the Ferellas under protest and without prejudice, amongst other orders to be sought including seeking orders setting aside any adverse costs orders made against Riva and or the Ferellas, orders will be sought for the return of those monies with interest.

40   Between 4 May and 20 October 2018 I engaged in email correspondence on behalf of my father with Mark Findlay, the director of Regulations, with the Australian Financial security authority and with Joyce Fu who was the team leader at the time handling the bankrupt estates of my father and myself, Copy of that correspondence is annexed hereto at page 11. In particular, I draw the Court's attention to the statement of Joyce Fu in her email of 18 July 2018 that "the costs claimed in the sum of $274,809.35 cannot be substantiated"."

59. The email correspondence alluded to by Angelo at paragraph 40 of his affidavit refers to email correspondence to the Australian Financial Security Authority dated 26 March 2021. In that email Angelo states that he intends to re-litigate the following matters against the Official Trustee:

1. The inquiry proceedings before Yates J in the Federal Court of Australia;

2. Annulment proceedings involving Gustavo Ferella in the Federal Court of Australia; and

3. The s 66G orders made by Nicholas J.

60. The email also states Angelo's intention to institute new inquiry proceedings in the Federal Court of Australia related to allegations of fraud. According to Angelo's email "[a]ll documents to be filed are currently being finalised of which your office will be served".

The Act

61. The Official Trustee seeks orders under the Act to prevent Riva and Angelo from continuing the current proceedings and preventing the institution of future proceedings.

62. Section 8(7) of the Act provides:

"The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in New South Wales…"

63. "Proceedings" is defined at s 4 of the Act to include:

“(a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and

(b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

(d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

(e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

64. A vexatious proceedings order under s 8(7) is contingent upon s 8(1) of the Act which provides:

“(1)   An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:

(a)   The person has frequently instituted or conducted vexatious proceedings in Australia, or

(b)   The person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.

(2)   For the purposes of subsection (1), an authorised court may have regard to:

(a)   Proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b)   Orders made by any Australian court or tribunal (including orders made before the commencement of this section), and

(c) Evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995."

65. "Vexatious proceedings" is defined under s 6 of the Act and includes:

“(a)   Proceedings that are an abuse of the process of a court or tribunal, and

(b)   Proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   Proceedings instituted or pursued without reasonable ground, and

(d)   Proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings."

Submissions of the Official Trustee in Bankruptcy

66. The submissions for the Official Trustee may be summarised as:

1. The current proceedings before the Court are an abuse of process because:

1. The matters pleaded were largely a repetition of matters unsuccessfully pleaded in Federal Court proceedings before Perry J commenced in 2015 and proceedings in this Court before Pembroke J commenced in 2018. This was evident in the pleadings which it was submitted were "substantially identical". To the extent the pleadings were not identical, they nevertheless "broadly correspond".

2. No new evidence had been brought to justify the revival of matters already pleaded before Perry J and Pembroke J.

3. Claims put by Riva in relation to unconscionability, fraud and perjury were without merit.

4. In the case of fraud, that claim was subject to a limitation period pursuant to ss 47 and 55 of the Limitation Act which would have expired, at the latest, in 2018. This was because any alleged fraud would have been discovered by the time the sale of the property was finalised in June 2006.

5. Claims related to loss of a chance to sell the property on an improved basis were subject to a 6-year limitation period pursuant to s 14 of the Limitation Act which had expired.

6. Claims related to slander of title were subject to a 6-year limitation period pursuant to s 14 of the Limitation Act which had expired.

2. Riva and Angelo had acted in concert to institute 14 substantive proceedings since the conclusion of the appeal against Nicholas J's original decision. They were interchangeable with each other. Some of these matters were commenced in the name of Gustavo or Nida Ferella. Mr Lynch SC submitted that Gustavo and Nida could also be considered interchangeable with Angelo.

3. In cases of re-litigation, relatively few cases were required to establish they had been instituted frequently: Attorney-General v Wilson [2010] NSWSC 1008 at [13] (Wilson).

4. Orders should be made not only to prevent Angelo from instituting proceedings in his own name, but also from participating in the institution or conduct of any proceedings against the Official Trustee by Riva, Gustavo or Nida. During the course of argument, Mr Lynch SC conceded that the language of "participating" was "too imprecise" and that a more specific restraint would be appropriate.

5. The history of proceedings demonstrated a "startlingly consistent record of failure" by Riva and Angelo. Matters instituted by Gustavo or Nida against the Official Trustee were also without merit or success.

6. The proceedings instituted by Riva and Angelo since 2015 were without reasonable grounds, for the purpose of harassing or annoying the Official Trustee, or for some purpose other than the relief claimed.

7. Riva and Angelo have been persistent in pursuing vexatious claims against the Official Trustee by the institution of proceedings since 2015. Riva would continue to pursue vexatious claims against the Official Trustee and had already indicated that it would bring further proceedings.

8. The proceedings brought prior to those in 2015 could be taken into account in establishing the frequency of the proceedings within the meaning of s 8(1) of the Act. This was possible even where the previous proceedings were not themselves vexatious because the language of s 8(2) operated extensively as opposed to restrictively.

Submissions of Riva and Angelo

67. The submissions on behalf of Riva and Angelo may be summarised as:

1. It was for the Official Trustee to show that the orders under the Act were justified in the circumstances, which it had not done.

2. Angelo had not frequently instituted or conducted vexatious proceedings. In this regard, Mr Coffey in his written submissions, directed the Court's attention to Siteberg v Maples [2010] NSWSC 1344 (Siteberg) in which three matters was held not to be sufficient to enliven the notion of frequency. I consider this below at [112].

3. The matters raised by Riva were not a re-litigation of prior proceedings because they concerned new transactions and new issues, such that Angelo had not "had his day in court for Riva". In particular, there was "new evidence" which demonstrated fraud and perjury by the Official Trustee. This is also dealt with below at [87]-[89].

4. The current proceedings were distinguishable from those before Pembroke J on the basis that the prior proceedings were primarily based on the issue of a constructive trust. In contrast, these proceedings were largely directed to the allegation of slander of title.

5. The authorities relied upon by the Official Trustee were different to the circumstances of Riva and Angelo. Nauer v Batterham [2020] NSWSC 240 and Wilson involved abusive or rude behaviour by the person. Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Gargan (No 2)) involved a variety of matters and parties over a period of more than a decade.

6. It was not appropriate to include the current proceedings in the overall quantum of vexatious proceedings because the matter was ongoing and directions were still sought in relation to the cause of action for slander of title. Riva intended to amend the current pleadings. When pressed at hearing as to whether this indicated that Riva and Angelo resiled from the earlier concession regarding the applicability of limitation periods by counsel in the Court of Appeal proceedings before Emmett AJA and Bell P, Mr Coffey stated that concession was made in relation to the matter of a constructive trust and was therefore distinct from the current proceedings.

7. With respect to the matter of any applicable limitation periods to claims of slander of title, Mr Coffey did not provide a reply except to say that argument would be provided in future should the matter continue beyond the current proceedings. This was a further reason that the relief ought not to be granted.

Consideration

68. To deprive a person of their access to the courts is no trifling thing. Orders of this kind must not be made lightly but are justified where it is necessary to shield the public and the Court from the waste generated by repeated, baseless litigation: Gargan (No 2) at [3] per Perram J and cited in Attorney-General v Gargan [2010] NSWSC 1192 (Gargan) at [8], [34].

69. There are four necessary steps for an order to be made pursuant to s 8(7) of the Act, per Simpson AJA (McColl and MacFarlan JJA agreeing) in Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 (Zepinic):

"[13] The first step is to identify the "proceedings" the subject of the application said to be "vexatious". The second step is to determine (applying s 6) which, if any, of those proceedings is ["vexatious"] …

[14] The third step is to determine whether the person has "frequently" instituted or conducted vexatious proceedings in Australia, or has acted in concert with such a person (whether or not subject to a vexatious proceedings order) or who is the subject of a vexatious proceedings order (s 8(1)). (The requirement for frequency does not apply if the court is satisfied that the person has acted in concert with a person who is subject to a vexatious proceedings order, or who has frequently instituted or conducted vexatious proceedings in Australia (see s 8(1)(b)).

[15] The power conferred by s 8(7) being discretionary, the final step is to determine the manner in which the discretion is to be exercised, bearing in mind the wide scope of the power, particularly as stated in s 8(7)(c)."

70. There is an additional step in the present case that it is necessary to undertake. That is to identify who is "the person" that is alleged to have instituted or conducted vexatious proceedings pursuant to s 8(1)(a) and who is "the person" that is alleged to have acted in concert pursuant to s 8(1)(b). I accept Mr Lynch SC's submission that Riva and Angelo may be taken to be interchangeable in many of the cases. If Riva is the person that instituted proceedings, then Angelo has acted in concert and vice versa. The evidence for this conclusion is laid out above but can be briefly summarised. Angelo was sole director of Riva when the proceedings before this Court were initiated. He had extensive involvement in prior proceedings such as providing significant supporting evidence and engaging in their substantive conduct with the authority of Riva's then-director, Tiziana. The judgments, emails tendered by the Official Trustee and Angelo's admissions all demonstrate this.

What are the proceedings subject to the application?

71. The following proceedings in which Riva was plaintiff have been found to be abuses of process:

1. Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 heard by Perry J.

2. Riva NSW Pty Ltd v The Official Trustee in Bankruptcy [2019] NSWSC 49 heard by Pembroke J.

72. Angelo was also a plaintiff in the first matter before Perry J ([2017] FCA 188).

73. Proceedings are "widely" construed within the meaning of s 4 of the Act to include interlocutory proceedings, appeals and incidental matters: Zepinic at [12]. I accept Mr Lynch SC's submission that it is appropriate to consider the totality of litigation engaged in by Riva, including those matters which were not summarily dismissed as an abuse of process.

74. Mr Coffey directed the Court's attention to Attorney-General v Wentworth (1988) 14 NSWLR 481 (Wentworth) at 491. It was not readily apparent to me why Mr Coffey asked the Court to have regard to this case. Wentworth is authority, in part, for the proposition that the substance of a matter, as opposed to its form, is relevant when determining whether a proceeding has been "instituted". This would mean that certain interlocutory proceedings could not be "instituted" in the sense required by law because they are, presumably, not substantive. The statement of law relied upon by Mr Coffey was in respect of the former legislative scheme. The current scheme under s 8 requires no such distinction because it takes into account the conduct of parties in the course of a proceeding: Wilson at [15] per Davies J.

75. If this is not correct, it does not matter to the present applications because the proceedings identified here consist almost entirely of substantive applications, including applications for appeal. To the extent they do not, they are applications for extensions of time to appeal which are sufficient in substance to be taken into account.

76. In addition to those proceedings explicitly declared to have been vexatious, Riva has been plaintiff in seven other proceedings:

1. The original application before Nicholas J in the Supreme Court of NSW in which his Honour found in favour of the Official Trustee (Agusta Pty Ltd & Ors as trustees for the Cavallino Unit Trust v The Official Trustee in Bankruptcy as trustee of the bankrupt estates of Gustavo Ferella and Angelo Ferella [2008] NSWSC 685).

2. The appeal against Nicholas J's findings in respect of the amounts of the indemnity awarded to the Official Trustee before Beazley JA, Tobias J and Macfarlan JA in which Riva was successful (Agusta Pty Ltd v Official Trustee in Bankruptcy as Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129).

3. Application to the Supreme Court of NSW (2015/00199962) before Rein J that was transferred to the Federal Court of Australia.

4. Application in the Federal Court of Australia (NSD408/2017) to appeal the decision by Perry J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 that was withdrawn by consent on 18 September 2016.

5. Application to the NSW Court of Appeal regarding the decision by Pembroke J that was dismissed by Emmett AJA (Bell P agreeing) (Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] NSWCA 186).

6. Application to the High Court of Australia for special leave to appeal the decision by the NSW Court of Appeal that was dismissed by Gordon and Edelman JJ (Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2019] HCASL 389).

7. Current proceedings before the Supreme Court of NSW in Eq (2020/206189).

77. In light of the close relationship between Angelo and Riva, it is also appropriate to consider the vexatiousness of proceedings involving Angelo in which Riva was not a party. This is dealt with at [103]-[105] below.

Which, if any, of the proceedings was vexatious?

78. The Court must form its own view about each piece of litigation. In reaching my own conclusion, I am entitled to take into account the result of each of the proceedings and the views expressed in the various judgments: Wilson at [22] citing Attorney-General of NSW v Croker [2010] NSWSC 942 at [125].

79. Only the earliest decisions by Nicholas J and on appeal by Beazley JA, Tobias J and Macfarlan JA have resulted in any meaningful outcome for Riva. Each of the subsequent proceedings commenced over a period spanning more than a decade has either been discontinued, dismissed or declared to be an abuse of process.

80. There are two proceedings (three including the matter joined by Perry J) about which there can be no debate - those before Perry J and Pembroke J were found to be vexatious and require no further special attention. It is absolutely clear in the judgments extracted above that the proceeding before Perry J was infected with re-litigation, contained serious allegations without substance, raised claims without merit and suffered from extensive - and fatal - delay in bringing particular causes of action. The decision of Pembroke J was similarly blighted. Even if, as posited by Emmett AJA (Bell P agreeing), in the matter before Pembroke J the pleadings were not identical to the matter before Perry J, there remained the lack of grounds to justify the making of serious allegations against the Official Trustee, and the statutory barriers under the Limitation Act. The Court finds that both matters were instituted for the purpose of either harassing or causing delay or detriment to the Official Trustee or for some other wrongful purpose. Those matters fall within ss 6(a), (b) and (c) of the Act.

81. The Court therefore finds that the proceedings before Perry J and Pembroke J were vexatious. It must now be considered whether other matters were also vexatious, including Riva’s initial District Court application, the applications for appeal against the decisions of Perry J and Pembroke J, the current proceedings before the Court, and other proceedings involving Angelo but not Riva explicitly. These are dealt with below.

Supreme Court of NSW Application (2015/00199962)

82. Riva and Angelo were both plaintiffs in an application before Rein J. By consent, the application was transferred to the Federal Court before Perry J, where it was declared vexatious. There is some evidence to suggest that the statement of claim in the Federal Court proceeding was reformulated and not the same as that which came before the Supreme Court. Angelo was also not formally a party to the subsequent proceedings (although he was very much involved). It is not possible to take it into account as a vexatious proceeding.

The Appeal Proceedings

83. The appeals by Riva were first in the Federal Court of Australia against Perry J's decision, second in the NSW Court of Appeal against Pembroke J's decision and third in the High Court of Australia against the Court of Appeal's decision. Each of these were vexatious within the meaning of s 6 for the reason that they were instituted as a continuation of earlier vexatious proceedings and were either withdrawn or dismissed. If this is wrong, I also add:

1. Application in the Federal Court of Australia to appeal the decision of Perry J (NSD408/2017): The primary judgment makes clear that the original application was itself an abuse of process and the application for appeal may be inferred to be a perpetuation of that abuse. The withdrawal of that application does not lessen the inference that the proceeding was instituted as an abuse of process or for some other wrongful purpose within the meaning of s 6.

2. Application in the NSW Court of Appeal for leave to appeal the decision of Pembroke J ([2019] NSWCA 186): Although Emmett AJA (Bell P agreeing) diverged slightly from the primary judge with respect to the whether the proceedings were an attempt at re-litigation, leave to appeal was refused because the claims raised were clearly without merit as they were statute-barred (at [42]).

1. Application in the High Court of Australia for leave to appeal the decision of Emmett AJA and Bell P ([2019] HCASL 389): The application was dismissed, with Gordon and Edelman JJ remarking that it was appropriate to do so in light of the manner in which the proceedings were conducted, as well as the earlier findings of abuse of process by Pembroke J.

The Current Proceeding (2020/206189)

84. For the reasons which follow, the Court finds that the current proceeding is vexatious within the meaning of s 6 of the Act.

85. It is apparent in the numerous judgments that Riva and Angelo have, at various times, both together and separately, maintained that the Official Trustee never held any entitlement to the property or the proceeds of sale. Additionally, and in the alternative, they have alleged that any dealings by the Official Trustee with respect to the property and its proceeds were improper. While these have not been the sole contentions raised, they have cast a long shadow.

86. Riva denied that the current proceedings constitute re-litigation although it was conceded in written submissions for Riva that the matter currently before the Court is "similar" to the proceedings declared vexatious by Perry J in the Federal Court of Australia and Pembroke J in the Supreme Court of NSW. The former itself involved re-litigation of the earlier inquiry proceedings before Yates J. However, Riva pointed to a comment made by Emmett AJA in the NSW Court of Appeal that "it may well be reasonably arguable that the formulation of Riva's claim in its statement of claim … is different" from its earlier claims ([2019] NSWCA 186 at [31]).

87. Riva points to "new evidence" which was said to reinvigorate the issues. The first item of evidence is an invoice of Sally Nash & Co, solicitors for the Official Trustee, dated 13 March 2006. The invoice relates to a charge of $485.00 incurred due to "costs of drawing but not yet typing 77C Notices and advice with respect to the issue of ownership of [the property]". The second item of evidence is an invoice of Steven Golledge, counsel for the Official Trustee, dated 2 June 2006. The invoice relates to a charge of $700.00 incurred for a "Memorandum of Advice" issued in respect of the Ferella estate. A third document in the form of another invoice from Steven Golledge was referred to by Riva in the statement of claim but was not produced. These documents were given to Riva by the Official Trustee in September 2018, after the commencement of proceedings before Pembroke J and several months prior to the hearing on 1 February 2019. There is nothing before the Court to suggest the documents were tendered at that time.

88. Riva sought the substance of the advice referred to in the invoices. The Official Trustee declined to provide it. In doing so, Riva alleges that an inference may be drawn against the Official Trustee. The refusal to disclose documents that may be subject to legal privilege is, in the submission of Riva, tantamount to an admission that the property was known by the Official Trustee to have been held on trust prior to commencing the original proceedings before Nicholas J in 2006. In continuing with the litigation and not producing the documents earlier the Official Trustee engaged in fraud, perjury and breach of duty as trustee.

89. The notion that the Official Trustee was aware of the status of the property as trust property has been well traversed. It received consideration in the original proceedings before Nicholas J, inquiry proceedings before Yates J and on appeal before Dowsett, Foster and Nicholas JJ. It was also raised in the vexatious proceedings before Perry J and again before Pembroke J. Yates J noted specifically that "by July 2006 the respondent had formed the view, no doubt assisted by the legal advice it had obtained, that it was not satisfied that the Point Piper funds were an asset of a trust" and it was "not unreasonable" in doing so (emphasis added) ([2011] FCA 69 at [165], [167]). Nothing in the invoices undermines this conclusion except insofar as the Official Trustee was reluctant to provide Riva with the documents in circumstances where Riva was already engaged in vexatious proceedings against it. It follows that the documents now before the Court are not new in any meaningful way. They are merely a convenient vehicle for Riva and Angelo to resurrect old grievances.

90. It is undeniable that there are strong similarities in the material advanced by Riva in the current proceedings when compared to the proceedings before Perry J in the Federal Court of Australia and Pembroke J in the Supreme Court of NSW. The Official Trustee - as it did in the matter before Pembroke J - provided a side-by-side comparison of the statements of claim in each matter which exposed these consistencies. There are few differences to be identified between the statement of claim filed in the current proceedings and those before Pembroke J. As was put by Mr Lynch SC for the Official Trustee, they are “near identical”. The Court accepts that submission. Of 39 paragraphs, 28 are materially the same with a few inconsequential alterations. The only substantive new material in the statement of claim arises in relation to particulars for claims of fraud and perjury by the Official Trustee. With the exception of a claim for slander of title, the matters Riva seeks to litigate have already been considered by this and other courts.

91. By prayer one, Riva seeks a declaration that the property never vested in the Official Trustee. This appears to be a revival of the long-settled findings of Nicholas J in the Supreme Court of NSW ([2008] NSWSC 685). His Honour held that the property was never validly vested in Riva because it remained vested at all times in Angelo and Gustavo. Upon their bankruptcy, an interest was conferred upon the Official Trustee sufficient for it to lodge a caveat against the property and exercise a lien over the proceeds of sale. Riva never obtained any interest. This was reiterated by Yates J in the inquiry proceedings, Perry J in the Federal Court of Australia, and Emmett AJA (Bell P agreeing) in the NSW Court of Appeal.

92. By prayer two, Riva alleges unconscionability by the Official Trustee founded on accusations of breach of trust, consisting of fraud and perjury. Riva had previously sought leave to amend its pleadings before Perry J to include a claim of fraud but was refused (at [88]). Fraud was again raised before Pembroke J. His Honour determined the claims had "no prospect of success and should not have been made" (at [18]).

93. New particulars of fraud have been included in the current statement of claim. These relate largely to the invoices referred to at [87] above. Riva also alleges that the invoices form the basis for an accusation of perjury. These claims rise no higher than speculation and are without reasonable foundation. They should not have been made.

94. In any event, any claim of fraud would be untenable because it is beyond the 12-year limitation period set out in s 55 of the Limitation Act. Mr Lynch SC raised the limitation issue at hearing, submitting that any claim of fraud was hopeless as the period in which to bring such a claim would have lapsed in 2018. The Court accepts that submission.

95. By prayer three, Riva seeks a declaration that the Official Trustee held the property as constructive trustee for Riva. Riva sought the same relief in proceedings before Pembroke J which his Honour held was a reiteration of the relief sought before Perry J (albeit using the language of de son tort as opposed to constructive trustee). In both matters there was no reasonably arguable case to answer ([2017] FCA 188 at [64]-[67]; [2019] NSWSC 49 at [14]-[15]). Perry J noted that a finding in favour of Riva on the question of a trustee de son tort would be contrary to the decision of Nicholas J (at [66]). Her Honour also held that such a claim was barred by the operation of s 48 of the Limitation Act (at [84]). Emmett AJA (Bell P agreeing) in the NSW Court of Appeal also dealt with this issue of a constructive trustee, concluding that it was "not possible" to establish a constructive trust on the available material (at [36]). There is nothing new, either in the facts or the evidence before the Court, to justify any divergence from these findings.

96. Riva also alleged perjury because the Official Trustee had denied the existence of a meeting between Mr Madden and Angelo on 1 November 2005 before Perry J. The Official Trustee drew the Court's attention to the transcript of those proceedings which contradicts the allegation.

97. By prayer four, Riva claims damages for slander of title. No specific pleadings appear for this claim, but it is presumably based on the caveats lodged by the Official Trustee and conversations by the Official Trustee to the same effect. These facts are not new as they appeared in the pleadings before Perry J and Pembroke J. The cause of action for slander of title has been raised despite the fact that Emmett AJA (Bell P agreeing) conclusively stated that "any such claim is clearly barred by the Limitation Act" ([2019] NSWCA 186 at [32]). When I put this to Mr Coffey during the course of argument, he explained that Riva intended to submit further pleadings on the issue which would include a reply to any defence by the Official Trustee on the limitation issue.

98. Mr Lynch SC opposed this because the matter had been on foot since May 2020. There had been ample time for Riva to file further materials and it had not done so. I accept Mr Lynch SC's argument. It would not be appropriate to permit Riva and Angelo to cause further delay in the current proceeding when there has been sufficient time to address the issue. In reaching this conclusion, I take into account the litigants' previous practice of instituting proceedings with deficient pleadings before seeking leave to amend.

99. By prayer five, Riva claims damages for breach of fiduciary duty. The issue of a fiduciary duty was canvassed by Perry J at [68]-[79] of her Honour's judgment. The facts which grounded the claim before Perry J are the same as those relied upon in the current proceedings. Her Honour concluded that the claim was "devoid of merit" and "misconceived" (at [68]).

100. By prayer six, Riva claims damages for breach of trust. This was previously raised before Perry J and Pembroke J. While it appears that Riva has cured some of the defects in its pleadings identified by Perry J which conflated the position of Riva and Angelo (at [57]), this does not undermine the overall conclusions drawn by her Honour that the claim was "misconceived" and "untenable" (at [56]-[57]).

101. By prayer seven, Riva claims equitable damages and compensation which were also sought before Pembroke J. Given the Court’s conclusions in the preceding paragraphs, there is clearly no basis for this relief.

102. The Court concludes that there is no merit in the current proceeding brought by Riva. In almost every claim for relief there has been finality by way of a previous decision with nothing fresh to justify resuscitation. In other claims there is either no sound basis or a statutory limitation barring the cause of action (if there had been one). It follows that the current proceeding is an abuse of process because it was brought without reasonable ground, raising serious allegations of fraud and perjury without substance, and has been instituted for some purpose other than the relief claimed, which the Court infers from these findings can only be to harass the Official Trustee. The proceeding is therefore vexatious within the meaning of s 6 of the Act.

Angelo Instituting or Conducting Proceedings or Acting in Concert

103. Angelo was plaintiff in one of the vexatious matters discussed above alongside Riva. This was the matter before Perry J in the Federal Court ([2017] FCA 188). That matter was determined by her Honour to be an abuse and the Court respectfully agrees. For the sake of completeness, that proceeding will only be counted once in the total number of proceedings.

104. It is apparent from the various judgments considered above that the following proceedings also instituted by Angelo as plaintiff have elements which could engage s 6 of the Act:

1. Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619 in which Angelo and Gustavo submitted 11 questions for inquiry about the Official Trustee's management of their bankrupt estates. Questions 1-4 of those proceedings are founded in the same issues as those which appear in the current proceeding. Yates J rejected an inquiry in relation to nine questions. The inquiry determined that the Official Trustee had failed in one respect related to the disclosure of an issue of capital gains tax, but the failure to disclose had no material consequence upon the Ferellas. The Official Trustee submitted in the current proceedings that, contrary to the submission of Riva, this was an example of a substantial failure. It is true that many of the questions raised were found not to warrant further inquiry based on the existing evidence. However, it is difficult to conclude that the proceeding was an abuse of process within the meaning of s 6. It is perhaps better characterised as the starting point of a pattern of subsequent vexatious litigation. The matters before Yates J would reappear in later proceedings before Perry J, Pembroke J and this Court.

2. Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43 in which Dowsett, Foster and Nicholas JJ dismissed an appeal against the earlier decision of Yates J in respect of the inquiry proceedings. The matter produced no substantive result for Angelo and involved some attempts at re-litigation, or litigation without merit. However, I am not satisfied the proceeding as a whole was vexatious within the meaning of s 6.

3. Ferella v Official Trustee in Bankruptcy (No 4) [2015] FCA 712 which was the conclusion of the inquiry proceedings. Yates J remarked that the plaintiff's submissions appeared to ignore his Honour's earlier findings. Again, it cannot be said that this proceeding was squarely within the ambit of s 6, but it is evidence of at least Nelsonian blindness by Angelo.

4. Ferella v Official Trustee in Bankruptcy [2016] FCA 1297 which was an application for extension of time to appeal that was refused. The matter involved a significant delay without plausible explanation and was therefore without reasonable grounds. Nicholas J held that it was not in the interests of justice to permit the extension of time (at [15]). I am satisfied that this proceeding comes within the ambit of ss 6(a) and (b) because it was instituted without reasonable basis and with a lengthy delay of more than 12 months from the expiry of the time period for appeal. It was an abuse.

105. Other proceedings in which Angelo had extensive involvement that were without merit or conducted in such a way that they may be inferred to be an abuse of process:

1. District Court proceedings (123875/2011) instituted by Nida and Agusta Pty Ltd and subsequently withdrawn. These were founded on the same basis as later proceedings in the Federal Court of Australia before Jacobson J ([2013] FCA 1319). That matter was dismissed with costs ordered in favour of the Official Trustee. On that basis, I find this matter was vexatious within the meaning of ss 6(a) or (b).

2. Ferella v Official Trustee in Bankruptcy [2013] FCA 1319: The continuation of the earlier District Court proceedings that were withdrawn. The matter came before Jacobson J, who dismissed it entirely after the plaintiffs failed to prepare their case properly for hearing. His Honour referred to the wastefulness of how the proceedings had been conducted, having a deleterious impact on the Official Trustee and other litigants (at [29]). On that basis, I am satisfied this proceeding was an abuse of process within the meaning of ss 6(a) and (b).

3. Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508: Gleeson J dismissed an application by Agusta and Nida for extension of time to appeal an interlocutory application before Jacobson J, noting that the original matter had been bound to fail regardless. There was no error of fact or "credible criticism" raised by the Ferellas (at [24]). I therefore conclude that the proceeding comes within ss 6(a) and (b) as a continuation of the earlier baseless proceedings before Jacobson J.

4. Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411: The appeal against Nicholas AJ's orders made pursuant to s 66G which was found to be "hopeless" and a waste of the Court's time and resources. It falls under ss 6(a) and (b) as an abuse of process without reasonable grounds.

5. Ferella v Official Trustee in Bankruptcy [2016] FCA 1270 which was dismissed for lack of any serious issue to be tried and consisted of re-litigation of earlier findings by Yates J. Again, the matter falls within ss 6(a) and (b) as an abuse of process without reasonable grounds.

Were the proceedings instituted frequently?

106. There is no numerical threshold to establish frequency. It is a matter of context: Wilson at [12] per Davies J; Chan at [37] per Adamson J.

107. The quantum can include baseless applications or appeals. Even a small number of proceedings may suffice so long as the proceedings are an attempt at re-litigation of earlier issues: Wilson at [12]-[15]; Chan at [34], [37] citing Gargan at [7] per Davies J.

108. Since 2015, and including the current proceeding, there are six proceedings that have been instituted by Riva which constitute an abuse of process. Accepting Mr Lynch SC's submission that Riva and Angelo have acted in concert with each other and are interchangeable, proceedings instituted by Angelo are also woven into the tapestry of vexatious litigation. At least one proceeding in which Angelo was plaintiff is an abuse of process, with a further five in which he had substantial involvement in their conduct to the extent that the Court finds, without hesitation, that he was the driving force behind them and therefore “conducted” them for the purposes of the Act. In sum, there are twelve matters that are “vexatious proceedings” as defined in s 6 of the Act.

109. The proceedings have been instituted in short succession, often raising the same issues cloaked in barely different language. There has scarcely been a year without some litigation on foot. It was put by Mr Lynch SC that, since 2015, there has only been a single period of six months without litigation. There has been a variety of types of matter including substantive litigation, appeals and interlocutory proceedings. More than half of the proceedings have taken up considerable time and resources of both the parties and the courts. It is enough to satisfy the requirement that vexatious proceedings have been conducted frequently by Riva, for the purpose of s 8 of the Act. The Court so finds.

110. Even if the proceedings that do not directly involve Riva are removed from the equation, I am nevertheless satisfied that Riva has demonstrated a frequent pattern of vexatious litigation. Riva has been persistent in instituting proceedings since at least 2015 which, without exception, have either been directly vexatious or vexatious continuations of those proceedings. The cases have resurrected old issues to the extent that numerous matters are examples of re-litigation, including the proceedings before Perry J, Pembroke J and this Court. The proceedings instituted or conducted by Angelo form the context which fortifies this conclusion.

111. I do not accept Mr Coffey's submission that the authorities cited by the Official Trustee are inapplicable to the case at bar. While several of the cases do involve aspects of rude or belligerent behaviour by litigants which is lacking in the present case, they are nevertheless persuasive, particularly by demonstrating that a vexatious litigant cannot avoid consequences by hiding behind a corporate entity and re-litigation is an especially offensive type of abuse. Where final judgment is made it is exactly that - final.

106. Mr Coffey pointed in his written submissions to Siteberg, in which three vexatious proceedings were found not to have been sufficient to establish frequency. The totality of proceedings in the case of Riva and Angelo exceeds that number. Even if it did not, Siteberg did not involve re-litigation.

Should the current proceedings be stayed?

113. The Court is satisfied that Riva is a person within the meaning of s 8(1)(a) of the Act because it has frequently instituted or conducted vexatious proceedings. As Riva is a vexatious litigant, it is open to the Court to make an order under s 8(7)(a) wholly staying the current proceeding.

114. For the reasons set out in [84] to [102], the current proceeding is an abuse of process that, if allowed to continue, would only generate waste. It would cause detriment to the Official Trustee and take up considerable time and resources of the Court in circumstances where most of the claims raised have been dealt with by other courts and those which have not are futile.

115. Given these conclusions, the present proceeding will be permanently stayed pursuant to s 8(7)(a) of the Act.

Should an order be made prohibiting Angelo from instituting further proceedings?

116. For the following reasons, the Court is satisfied that Angelo is a person acting in concert with Riva within the meaning of s 8(1)(b) of the Act. It is not necessary that he should have done so frequently: Zepinic at [14]. However, given the frequency of litigation conducted and Angelo’s role as plaintiff in several vexatious proceedings, the Court is also satisfied that Angelo is himself a person of the kind referred to in s 8(1)(a). These conclusions reflect the Court’s acceptance of Mr Lynch SC’s description of Riva and Angelo as “interchangeable”.

117. Angelo has an established history of instituting or conducting proceedings against the Official Trustee on tenuous grounds. On several occasions, he has done so in direct collaboration with Riva. The evidence before the Court shows that, as sole director of Riva, he was the controlling mind behind the current proceeding. He also engaged in the conduct of the vexatious proceedings before Perry J and Pembroke J either as plaintiff in his own right or as manager of Riva, providing sworn evidence and acting with the express authority of Riva bestowed by its director, Tiziana, to provide instructions to Riva's lawyers. More broadly, he was the only source of evidence in proceedings against the Official Trustee that purported to have been instituted by or on behalf of his parents, Nida and Gustavo. He has been both ventriloquist and puppeteer - speaking for others and pulling the legal strings - with the aim of exercising his dissatisfaction with the outcome of the original decision of Nicholas J in 2008.

118. Not only has Angelo acted in concert with Riva in the current and past proceedings, he has also indicated that future proceedings are in preparation. In the interest of preventing further vexatious proceedings against the Official Trustee, and to protect the integrity of the Court's process and resources, it is necessary to make orders under s 8(7)(b) against Angelo. However, the form of the orders sought by the Official Trustee is not appropriate.

119. In his written outline of submissions, Mr Lynch SC suggested an order be made prohibiting Angelo from “participating in the institution or conduct” of any proceedings against the Official Trustee. During the course of argument, I raised my concerns with Mr Lynch SC about the word “participating”. The outer limits of that term are ill-defined and altogether too wide. It leaves open the possibility that Angelo could be in breach of an order for engaging in fairly innocuous behaviour with little or no bearing upon the proceeding.

120. I will give the Official Trustee an opportunity to bring in short minutes giving effect to these reasons and addressing the issue raised in the preceding paragraph. Subject to any further submissions which they might put, the Court’s present view is that costs should follow the event so that Angelo and Riva should pay the Official Trustee’s costs of both proceedings determined by these reasons.

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Decision last updated: 22 February 2022