Scott & Munayallan (No 12)
[2023] FedCFamC1F 665
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 12) [2023] FedCFamC1F 665
File number: SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – COMPANIES – Assets and/or valuation – Beneficial ownership of assets – Where proceedings concerned the beneficial ownership of assets – Where determination of the beneficial owner was required to crystallise the matrimonial pool for division – Where the assets were associated with a company in liquidation and a trust in receivership – Finding the company in liquidation is the beneficial owner of the assets in question – Finding the trust is a sham – Declarations made in favour of the liquidator – Proofs of debt – Where the liquidator seeks orders that he would be justified in rejecting proofs of debt lodged by various persons and corporate entities – Where there was no appearance by the lodging persons or corporate entities in question – Orders made that the liquidator would be justified and otherwise acting reasonably in rejecting the proofs of debt lodged.
FAMILY LAW – COMPANIES – Receivership and/or liquidation and/or winding up – Liquidator’s remuneration – Where the liquidator seeks the Court determine and approve his remuneration – Where the liquidator conceded his remuneration is extremely high but is nevertheless reasonable – Where the husband and the wife each challenged the quantum of remuneration sought – Where the wife submitted the liquidator should have sought a security for costs order against the husband, his privies, and his alter egos – Consideration of principles relating to the reasonableness of a liquidator’s remuneration – Finding that the husband’s conduct personally and through his privies and alter egos are the sole cause of the high level of remuneration – Finding the remuneration is reasonable in all the circumstances having regard to work required to be carried – Finding it is appropriate for a 10 per cent reduction as the Court accepts the wife’s submissions – Orders made determining the quantum of the liquidator’s remuneration and payment out of funds held by the liquidator.
FAMILY LAW – COSTS – Between parties – Where the liquidator sought his paid legal costs be reimbursed by the husband on an indemnity basis – Where the liquidator sought this debt for paid legal fees be assigned to the wife enabling her to enforce the debt as against the husband – Where the husband resisted any costs order being made against him – Circumstances justifying order – Finding that the husband’s conduct personally and through his privies and alter egos is the sole cause of the high level of legal costs incurred – Indemnity costs – Consideration of principles where indemnity costs should be awarded – Where “exceptional circumstances” must arise to warrant an indemnity costs order – Finding these circumstances are of the most exceptional and an order for indemnity costs is justified – Orders made for the husband to pay the liquidator’s legal costs on an indemnity basis – Orders made for the quantum of the liquidator’s legal fees be assessed at 95 per cent of legal fees and 100 per cent of disbursements – Orders made for the liquidator’s legal fees to be paid out of funds held by the liquidator – Notation made that the liquidator intends to assign the debt owed to him by the husband in respect of legal fees to the wife.
FAMILY LAW – JURISDICTION – Transferred proceedings – Where two sets of proceedings have been transferred from the Supreme Court of New South Wales.
FAMILY LAW – PROPERTY – Transaction to defeat claims – Privies and alter egos – Where the liquidator seeks to set various transactions, agreements, and corporate records aside pursuant to section 106B of the Family Law Act 1975 (Cth) – Finding that various persons are the privies of the husband – Finding that various corporate entities are the alter egos of the husband – Orders made setting aside various transactions, agreements, and minutes of meetings – Orders made pursuant to section 106A of the Family Law Act 1975 (Cth) permitting the liquidator to sign documents on behalf of various persons and corporate entities to rectify records to be made consistent with the findings made by this Court.
FAMILY LAW – PROPERTY SETTLEMENT – Wastage – Add-backs – Where the finding made was that the company in liquidation is the beneficial owner of monies formerly held in the Supreme Court of New South Wales and assets comprised in a trust – Where the wife asserts the remainder of these assets forms part of the matrimonial pool – Finding that the assets in question are matrimonial assets – Finding that the husband, through himself, his privies, and his alter egos, has orchestrated litigation, which has resulted in the matrimonial pool that would have been available for division to now be significantly reduced – Where the wife seeks various add backs to the matrimonial pool for division – Just and equitable – Orders made for the division of the matrimonial pool at 70 per cent to the wife.
FAMILY LAW – SECURITY OF COSTS – Outstanding costs orders – Where the liquidator seeks an order restraining further proceedings being commenced until all costs orders against the husband, his privies, and his alter egos, are satisfied – Where costs orders are spread across this Court, the Supreme Court of New South Wales and the Federal Court of Australia – Where litigation has been ongoing for nearly 10 years in this Court and the Supreme Court of New South Wales – Consideration of the overarching purpose of this Court – Consideration of principles surrounding security of costs – Finding it is necessary for an order restraining any future being continued without satisfaction of costs orders being made in respect of the liquidator and the wife – Orders made accordingly.
Legislation: Corporations Act 2001 (Cth) ss 425. 425(8), 477, 477(2B), 482, 482(1), 482(3), 1335, 1335(2), 60-10 Sch 2, 60-12 Sch 2, 90-15(1) Sch 2, 90-15(2) Sch 2
Family Law Act 1975 (Cth) ss 4(1)(ca)(i), 45A, 75, 75(2), 81, 102PE, 102QB, 106A, 106A(1)(b) 106B, 106B(1), 106B(2), 117, 117(1), 117(2), 117(2A), 117(2A)(c), 117B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Court of Australia Act 1976 (Cth)
Corporations Regulations 2001 (Cth) reg 5.6.71(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31(1), 1.18, 3.09, 10.17, 12.13(4)
Federal Court (Corporations) Rules 2000 (Cth) rr 2.13(1)(a), 2.8
Civil Procedure Act 2005 (NSW) s 67
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5
Limitation Act 1969 (NSW) s 14
Real Property Act 1900 (NSW) ss 42, 43, 74MA
Supreme Court Act 1970 (NSW) s 67
Trustee Act 1925 (NSW) s 63
Vexatious Proceedings Act 2008 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 36.16, 36.16(1), 36.16(3A), 36.16(3C)
Cases cited: See ‘Schedule A’ to Reasons for Judgment.
AJO and GRO (2005) FLC 93-218; [2005] FamCA 195
Amery & Kedrina (2021) FLC 94-023; [2021] FamCAFC 79
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Atkins & Hunt (No 3) [2019] FamCA 977
Australian Securities and Investments Commission v Caddick (2021) 395 ALR 481; [2021] FCA 1443
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bollag & Hunt (1997) 149 ALR 355; [1997] FCA 1146
C Pty Ltd & PGW (as liquidator of S Pty Ltd (in liq)) (2011) FLC 93-485; [2011] FamCAFC 231
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Corporate Affairs Commission v Harvey (liquidator of Timberlands Ltd (in liq)) (1979) 4 ACLR 259; [1980] VR 669
Costigan & Costigan (No 2) [2017] FamCA 886
Dovgan & Dovgan [2022] FedCFamC1F 276
Hampton & Farley (No 3) (2013) 52 Fam LR 366; [2013] FamCA 890
Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178
Hutchins, in the matter of Ardenberg Pty Ltd (in liq) (admins apptd) (No 2) [2020] FCA 1424
J Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) [1993] FCA 42
K Sheridan v Colin Biggers Paisley [2019] NSWSC 621.
Klearchos & Klearchos [2021] FamCA 375
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Kowaliw and Kowaliw (1981) FLC 91-092
Kuay-Hoa & Hoa [2011] FamCA 1093
Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
McAlpin and McAlpin (1993) FLC 92-411; [1993] FamCA 71
Munday & Bowman (1997) FLC 92-784
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Pencious & Searle (2017) FLC 93-085; [2017] FamCAFC 210
Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28
Prantage & Prantage (Costs) [2014] FamCA 850
Rankin & Rankin (No 3) [2019] FamCAFC 133
Re AAA Financial Intelligence Ltd (in liq) (No 2) [2014] NSWSC 1270
Re Fogo Brazilia Holdings Pty Ltd (in liq) (2022) 162 ACSR 380; [2022] NSWSC 556
Re Hawden Property Group Pty Ltd (in liq) (2018) 125 ACSR 355; [2018] NSWSC 481
Re Idylic Solutions Pty Ltd (as trustee for Super Save Superannuation Fund) (2016) 115 ACSR 581; [2016] NSWSC 1292
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Re Lonnex Pty Ltd (in liq) (No 2) (2019) 57 VR 238; [2019] VSCA 62
Re Sails Corp Pty Ltd [2021] NSWSC 1241
Sanderson as liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38
Sfakianakis & Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Smith & Fields (third party costs) [2013] FamCA 505
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Tanham v Nicholson (1871-72) LR 5 HL 561; [1872] 4 WLUK 5
Templeton v Australian Securities and Investments Commission (2015) 108 ACSR 545; [2015] FCAFC 137
Tomilson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Whitaker and Whitaker (1980) FLC 90-813
Worth & Worth (No 2) (2019) FLC 93-910; [2019] FamCAFC 126
Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Australian Restructuring, Insolvency and Turnaround Association, Code of Professional Practice: Insolvency Services (4th edition), 2020).
Division: Division 1 First Instance Number of paragraphs: 721 Date of last submissions: 20 April 2023 Date of hearing: 20–23 February 2023 Place: Sydney The Applicant: Litigant in person The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Rose on 20-22 February 2023, excused for 23 February 2023 Solicitor for the Second Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers on 20-22 February 2023, excused for 23 February 2023 The Third Respondent: Litigant in person (did not participate) Solicitor Advocate for the Fourth Respondent: Mr Patakas on 20 February 2023, litigant in person (did not participate) on 21-23 February 2023 Solicitor for the Fourth Respondent: Evangelos Patakas & Associates on 20 February 2023, litigant in person (did not participate) on 21-23 February 2023 The Fifth Respondent: Litigant in person (did not participate) Solicitor Advocate for the Sixth Respondent: Mr Docker on 20 February 2023, excused for 21-23 February 2023 Solicitor for the Sixth Respondent: Clyde and Co on 20 February 2023, excused for 21-23 February 2023 The Seventh Respondent: Litigant in person on 20 February 2023, excused for 21-23 February 2023 Counsel for the Intervener: Mr Duc on 20 February 2023, excused for 21-23 February 2023 Solicitor for the Intervener: Mills Oakley Lawyers on 20 February 2023, excused for 21-23 February 2023
Table of Corrections 21 August 2023 In “Cases cited”, (4th edition), 2020)” has been replaced with “(4th edition, 2020)”. 21 August 2023 Order 21 has been inserted. 21 August 2023 In footnote 282, “5.6.17(1)” has been replaced with “5.6.71(1)”. ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MUNAYALLAN
Applicant
AND: MR SCOTT
First Respondent
MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD
Second Respondent
DD PTY LTD (and others named in the Schedule)
Third Respondent
MILLS OAKLEY LAWYERS
Intervener
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
11 AUGUST 2023
THE COURT DECLARES THAT:
1.I Pty Ltd (in liquidation) (“I Pty Ltd”) is the beneficial owner of the following:
(a)The funds held in the account titled ‘I Pty Ltd Liquidation account 2’ held by Mr AB in his capacity as liquidator of I Pty Ltd (“the liquidator”);
(b)The assets formerly comprised in the JJ Trust being:
(i)The property at F Street, Suburb MM, New South Wales (“the Suburb MM property”);
(ii)Shares and securities listed on the Australian Stock Exchange and traded through an OO Bank account …93; and
(iii)Monies held in an account in the name of I Pty Ltd held with the Commonwealth Bank of Australia account …73.
THE COURT ORDERS THAT:
2.Pursuant to section 90-15(1) of Schedule 2 to the Corporations Act 2001 (Cth), the liquidator would be justified, and would otherwise be acting reasonably, in rejecting in full the formal proofs of debt or claims submitted by the following:
(a)Ms L dated 22 March 2022;
(b)Ms Scott dated 22 March 2022;
(c)Mr K Scott dated 23 March 2022;
(d)Mr Matten on 23 March 2022;
(e)P Pty Ltd dated 23 March 2022; and
(f)DD Pty Ltd dated 23 March 2022.
3.Pursuant to section 60-10 of Schedule 2 to the Corporations Act 2001 (Cth), the Court determines the remuneration of the liquidator in the sum of $734,220.
4.Pursuant to section 90-15(2) of Schedule 2 to the Corporations Act 2001 (Cth), the liquidator would be justified, and would otherwise be acting reasonably, in paying funds held in the account titled ‘I Pty Ltd Liquidation account 2’ as follows and in the following order and priority:
(a)In payment of his remuneration as determined in Order 3;
(b)To Ms Munayallan (“the wife”) in accordance with clause 4.3 of the Deed of Settlement and Release approved 12 April 2022;
(c)To the creditors of I Pty Ltd as follows:
(i)Australian Taxation Office; for $4,550.00
(ii)MR AV for $500.00;
(iii)Mr AW for $11,879.45;
(iv)AX Pty Ltd for $4,443.59;
(v)Sydney Water for $5,071.02;
(vi)AY Council for $418.88;
(vii)Service NSW for $33,840.00; and
(viii)AZ Management for $29,895.93; and then
(d)Retain the sum of $140,000 for future costs and disbursements to be incurred in selling the Suburb MM property, including completion of rectification works in respect of that property, remuneration necessarily incurred in finalising the winding up of I Pty Ltd and the JJ Trust and legal fees incurred in this respect.
5.In the event the monies referred to in Order 4(d) are insufficient to pay all costs and fees associated with finalising the liquidator’s obligations in respect of I Pty Ltd and the JJ Trust, the liquidator may approach the Court for further determination in that regard.
6.Pursuant to sections 488, and 90-15(2) of Schedule 2, of the Corporations Act 2001 (Cth), special leave be granted to the liquidator to distribute the proceeds of sale of the Suburb MM property, being a surplus asset in the winding up of I Pty Ltd, in specie or otherwise, as follows:
(a)Reimbursement to the liquidator of legal fees in the sum of $1,113,721;
(b)The costs of the sale of the Suburb MM property;
(c)All costs unable to be paid from the ‘I Pty Ltd Liquidation account 2’ specified in Order 4(a)–(d); and thereafter
(d)To balance to the wife, subject to Order 7;
and the liquidator may distribute not only the proceeds of sale of the Suburb MM property, but all other assets, including shares and money in a bank account.
7.Any payment to the wife is to be initially paid, up to an amount of $125,649.38, to Mills Oakley Lawyers in accordance with the consent orders entered into on 20 February 2023, and thereafter to the wife.
8.By way of property division, Mr Scott (“the husband”) is to pay to the wife the sum of $3,566,956 within 14 days after the liquidator has completed his obligations in respect of I Pty Ltd and the JJ Trust.
9.The sum owing by the husband to the wife in Order 8 shall be reduced by the amount of any payment to the wife made by the liquidator in accordance with Order 4(d) and any other order as specified.
10.The monies owing by the husband to the wife pursuant to:
(a)Order 8 of these orders;
(b)$100,000 ordered to be paid by the husband to the wife on 21 December 2021 by way of lump sum spousal maintenance;
(c)$62,275.50 ordered to be paid by the husband to the wife on 21 December 2021 by way of costs order; and
(d)$8,946.44 ordered to be paid by the husband to the wife on 1 April 2022 by way of costs order;
are judgment debts and pursuant to section 117B of the Family Law Act 1975 (Cth) and rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), interest shall accrue on these amounts payable from the date it should have been paid until the date it is paid.
11.Pursuant to rule 1.31(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the requirement for the liquidator to provide details of any costs agreement entered into with ERA Legal pursuant to rule 12.13(4) is dispensed with.
12.Pursuant to section 117 of the Family Law Act 1975 (Cth), the husband is to pay the liquidator’s legal fees in the sum of $1,113,721, with such sum to be paid within 28 days of these orders.
13.In the event any monies are recovered from the husband in satisfaction of Orders 12 or 15(a), the wife is to receive those monies, subject to Order 7.
14.Should any application be filed by any named party or any of the following:
(a)Mr Matten;
(b)Mr Hatem;
(c)Ms L;
(d)Mr L;
(e)Ms AH;
(f)Mr AT;
(g)Ms HH;
(h)Mr AU; or
(i)P Pty Ltd;
the application is to be listed before Justice Henderson, or should Justice Henderson be unavailable, before another Justice of the Federal Circuit and Family Court of Australia (Division 1), and no named respondent is required to file any document unless ordered to do so by the Court.
15.Any further application filed in this Court by the husband is to be stayed pending satisfaction of the costs orders and interest accrued as follows:
(a)Order 10(b)–(d) of these orders; and
(b)Costs of $2,500 ordered to be paid by the husband to the Phongs in October 2022 by Black J in the Supreme Court of New South Wales proceedings ….
16.Orders 14 and 15 do not operate in respect of any appeal lodged from these orders.
17.Pursuant to section 106A(1)(b) of the Family Law Act 1975 (Cth), the liquidator may sign all documents necessary and give all consents necessary to set aside the following:
(a)Any transfer of any interest in I Pty Ltd to any other party other than the husband;
(b)The resolution and meeting minutes from 22 March 2022; and
(c)The transfer of the Suburb MM property to CC Pty Ltd.
18.Leave is granted to the parties to provide a copy of these Reasons for Judgment, in non-anonymised form, to any judicial officer in any Commonwealth, state or territory court, tribunal, or other judicial body.
19.Subject to the above orders, all outstanding applications are dismissed in the following proceedings:
(a)Federal Circuit and Family Court of Australia proceedings SYC59/2010;
(b)Supreme Court of New South Wales proceedings …; and
(c)Supreme Court of New South Wales proceedings ....
20.Leave is granted to the liquidator to file further applications where he deems appropriate.
21.The requirements under reg 5.6.71(1) of the Corporations Regulations 2001 (Cth) are dispensed with.
AND THE COURT NOTES THAT:
A.On 20 February 2023, the following orders were made:
…
2.The requirement for notice to be given by the Liquidator to the Australian Security & Investments Commission pursuant to Rule 2.8 of the Federal Court (Corporations) Rules 2000 be dispensed with.
3.By consent and pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders are made in terms of the attached Consent Orders between [Ms Munayallan] and Mills Oakley, and placed with the Court record as attached hereto.
B.In the event the husband fails to comply with Order 12, the liquidator intends to assign the debt owed to him, by the husband, to the wife.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
PARTIES INVOLVED
[8]
Corporate structure – the Scott group
[9]
I Pty Ltd
[10]
JJ Trust
[14]
CC Pty Ltd
[19]
DD Pty Ltd
[22]
P Pty Ltd
[24]
Other companies
[27]
ISSUES FOR DETERMINATION
[30]
THE HEARING
[47]
Hearing chronology
[54]
20 February 2023
[55]
21 February 2023
[67]
22 February 2023
[74]
23 February 2023
[81]
THE PARTIES’ POSITIONS
[84]
The liquidator’s position
[84]
The wife’s position
[94]
The husband’s position
[98]
DOCUMENTS AND EXHIBITS
[108]
EXTENSIVE CHRONOLOGY
[110]
Chronology and litigation in the Family Law proceedings
[110]
Matters before and up to 21 December 2021
[111]
Matters after 21 December 2021
[159]
Chronology of litigation in the Supreme Court
[172]
The Phong proceedings and litigation pre-appointment of the liquidator
[172]
The appointment of the liquidator and litigation post-appointment
[224]
Activity since judgment was reserved on 20 April 2023
[288]
Chronology of litigation in the Federal Court
[292]
Activity since judgment was reserved on 20 April 2023
[312]
THE EVIDENCE
[318]
Summary of the cross-examination of Mr AB and Mr BA
[318]
The evidence of Mr AB
[333]
Experience as liquidator and expected costs of the winding up of I Pty Ltd
[343]
Actions undertaken and instructions given to his legal representatives
[345]
Updating the Court in relation to matters in other courts and email correspondence
[348]
The conduct of the husband and his privies
[356]
Remuneration
[365]
The evidence of Mr BA
[370]
Attendance at the Suburb MM property in July 2022
[372]
Summary of court events in 2023
[374]
Legal costs
[375]
The evidence of Mr BR
[389]
The husband’s evidence
[392]
Evidence read in the December 2021 judgment
[392]
The husband’s written ‘submissions’
[395]
WHO IS THE BENENFICIAL OWNER OF THE FUND AND THE TRUST ASSETS?
[410]
The Trust assets
[410]
The Fund
[412]
THE PROOFS OF DEBT
[428]
PRIVIES AND ALTER EGOS OF THE HUSBAND, FRAUDULENT CONDUCT, 106A AND 106B ORDERS
[437]
I Pty Ltd and the husband’s conduct
[470]
FINDINGS AND CONCLUSION AS TO ORDERS TO BE MADE
[512]
THE LIQUIDATOR’S REMUNERATION
[515]
The law and principles surrounding Court-determined remuneration of liquidators
[531]
Is the liquidator’s remuneration reasonable?
[534]
LIQUIDATORS LEGAL COSTS
[565]
What Act covers the liquidator’s costs?
[570]
Can the husband be liable for costs in proceedings he was not a party?
[574]
Quantum of costs – indemnity costs?
[580]
OTHER MATTERS RELATING TO THE LIQUIDATOR
[630]
MATTERS RELATING TO THE FAMILY LAW PROCEEDINGS
[632]
OUTSTANDING CAUSES OF ACTION IN THE SUPREME COURT PROCEEDINGS
[677]
I Pty Ltd’s FACC in the Phong proceedings
[677]
Interlocutory Process filed by CC Pty Ltd in March 2022 in the Trust proceedings
[684]
Interlocutory Process filed by the liquidator in February 2022 in the Trust proceedings
[685]
THE HUSBAND’S CONDUCT AND FUTURE LITIGATION
[690]
OUTSTANDING CAUSES OF ACTION IN THE FAMILY LAW PROCEEDINGS
[714]
CONCLUSION
[719]
SCHEDULE A – PUBLISHED JUDGMENTS INVOLVING THE HUSBAND, HIS PRIVIES, AND HIS ALTER EGOS
[p.159]
Judgments published by the Family Court of Australia and at first instance in the Federal Circuit and Family Court of Australia (Division 1)
[p.159]
Judgments published by the Full Court of the Family Court of Australia and the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1)
[p.159]
Judgments published by the Federal Court of Australia
[p.160]
Judgments published by the Supreme Court of New South Wales
[p.160]
Judgments published by the New South Wales Court of Appeal
[p.162]
Judgments published by other courts
[p.163]
SCHEDULE B – THE FAMILY LAW PROCEEDINGS PRODCEDURAL DETAILS
[p.164]
Applications filed by the husband and his privies since 30 April 2014
[p.164]
Appeals filed by the husband and his privies since 30 April 2014
[p.173]
HENDERSON J:
The central figure in this litigation is [Mr Scott]. …
INTRODUCTION
Long ago, on 30 April 2014, Ms Munayallan (“the wife”) filed an Initiating Application to commence proceedings against her former husband, Mr Scott (“the husband”) in respect of property matters. Parenting matters were joined later, and have been dealt with to finality previously. The proceedings have been active for nearly 10 years in this Court and the Supreme Court of New South Wales (“the Supreme Court”), and more recently, the Federal Court of Australia (“the Federal Court”).
These Reasons for Judgment contain two schedules:
(1)Schedule A: all judgments delivered in relation to the husband, his privies,[1] and his alter egos,[2] in this Court, the Supreme Court, the Federal Court, and other courts; and
(2)Schedule B: a list of all applications and appeals filed by the husband, his privies, and his alter egos, since 30 April 2014.
[1] Tomilson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [90]–[96] (Nettle J).
[2] Tanham v Nicholson (1871-72) LR 5 HL 561 at 568 (Lord Hatherley LC).
On 21 December 2021, Reasons for Judgment and orders (“the December 2021 judgment”), which dealt with multiple applications then on-foot in this Court, were delivered.[3] The property proceedings could not be determined to finality at that time as there were ongoing proceedings in the Supreme Court, which required finalisation in order to crystallise the matrimonial pool for division. Those orders remain unchallenged.
[3] Munayallan & Scott (No 5) [2021] FedCFamC1F 284 (Henderson J).
On 14 and 21 October 2022, the Supreme Court transferred all proceedings to this Court, which were necessary to enable crystallisation of the matrimonial pool for division and to be heard with the outstanding proceedings in this Court.
These Reasons for Judgment should be read in conjunction with the December 2021 judgment and the findings contained therein, noting there is a duplication of facts.
Oral evidence closed in February 2023, and final submissions were received from the liquidator on 20 April 2023, and judgment was then reserved.
Since that time, two Applications in a Proceeding have been filed, one by Mr Hatem on 8 May 2023, and one by Mr Matten on 6 July 2023. Mr Hatem’s application sought to re-open the proceedings, while Mr Matten’s application sought to vary final orders made in the Supreme Court. Both applications were heard on 18 July 2023 and summarily dismissed pursuant to section 45A of the Family Law Act 1975 (Cth) (“Act”) on 20 July 2023.[4]
[4] Scott & Munayallan (No 10) [2023] FedCFamC1F 600 (Henderson J); Scott & Munayallan (No 11) [2023] FedCFamC1F 601 (Henderson J).
PARTIES INVOLVED
The relevant parties, persons, and entities, and their involvement in these proceedings are as follows:
(1)The parties and intervener:
(a)The applicant: the wife, Ms Munayallan;
(b)The first respondent: the husband, Mr Scott;
(c)The second respondent: Mr AB (“the liquidator” and “Mr AB”) as the liquidator of the corporate entity I Pty Ltd (in liquidation) and receiver of the JJ Trust;
(d)The third respondent: the corporate entity DD Pty Ltd ;
(e)The fourth respondent: the corporate entity CC Pty Ltd;
(f)The fifth respondent: Mr K Scott, the husband’s brother and the litigation guardian for Ms Scott, their mother;
(g)The sixth respondents: Mr AS and AR Pty Ltd; AR Pty Ltd is a real estate agency who employed Mr AS, who acted as the agent for the sale of the former matrimonial home at J Street, Suburb E, New South Wales (“the Suburb E property”) in 2014;
(h)The seventh respondents: Mr Phong and Ms Phong (collectively referred to as “the Phongs”), who were the purchasers of the Suburb E property in 2014, and have been embroiled in litigation, in the Supreme Court since early 2015 and this Court since September 2018; and
(i)The intervener: the wife’s former legal representatives, Mills Oakley Lawyers;
I note that DD Pty Ltd and Mr K Scott, in his own capacity or as litigation guardian for Ms Scott, did not appear at the hearing at all, and Mr Matten, Mr Hatem, and CC Pty Ltd via their legal representative, Mr Patakas, only appeared for a stay application on the first day of the hearing, although Mr Matten and CC Pty Ltd had been previously joined to the proceedings;
(2)Other relevant persons and entities:
(a)Mr A Scott, now deceased, is the father of the husband and was a director of I Pty Ltd;
(b)Mr Matten is a former director, current alternate director and non-beneficial shareholder of I Pty Ltd, and the current director and shareholder of CC Pty Ltd and DD Pty Ltd;
(c)Mr Hatem is an alternate director of and has a non-beneficial shareholding in I Pty Ltd;
(d)Ms L is the husband’s sister, a non-beneficial shareholder of I Pty Ltd, a beneficial shareholder of P Pty Ltd, and a former director of P Pty Ltd;
(e)Mr L is Ms L’s son, the husband’s nephew, who is a former shareholder of CC Pty Ltd, and a former director and secretary of DD Pty Ltd;
(f)Ms AH is the husband’s cousin and a purported creditor of I Pty Ltd;
(g)Mr AT is a purported employee of CC Pty Ltd;
(h)Ms HH is a former director and shareholder of DD Pty Ltd, and purported creditor of I Pty Ltd;
(i)P Pty Ltd;
(j)Mr AU is associated with P Pty Ltd and lodged a proof of debt on behalf of Mr K Scott;
(k)Mr BA is a solicitor employed at ERA Legal, being the liquidator’s legal representatives; and
(l)Mr BR is another solicitor employed at ERA Legal.
Corporate structure – the Scott group
The authenticity and accuracy of all documents created in respect of what is termed “the Scott group”, consisting of the parties, persons, and companies that appear in these Reasons for Judgment other than the wife, the liquidator, the Phongs, Mr AS and AR Pty Ltd, is unreliable, as the evidence will reveal.
I Pty Ltd
Prior to being placed into liquidation in 2022, I Pty Ltd was a passive investment company. A company tax return signed by Mr Matten from the 2021 financial year states that its main business activity was “holding company and services management”.[5] I Pty Ltd was incorporated in 2003. At that date, the husband was the sole director, secretary and shareholder of 1,000 shares beneficially owned. The following day, the husband’s role as sole director and secretary ceased, and Ms Scott became sole director and shareholder. There have been changes to the landscape of directorship over time.
[5] Liquidator’s Court Book p.1008.
The directorship of I Pty Ltd has been as follows:
(1)The husband: director and secretary on 24 June 2003 (that is, for a single day);
(2)Ms Scott: director and secretary since 25 June 2003;
(3)Mr A Scott: director from 26 January 2018 to 20 January 2021, and alternate director on 26 January 2018 (that is, for a single day);
(4)Mr Matten: director from 10 May 2021 to 14 June 2021 and from 6 August 2021 to 10 September 2021, and alternate director since 28 September 2018; and
(5)Mr Hatem: alternate director since 29 October 2021.
By the time Mr AB was appointed liquidator of I Pty Ltd, the shareholding of I Pty Ltd was as follows:
(1)Ms L: 996 shares non-beneficially owned;
(2)Mr Matten: 2 shares non-beneficially owned; and
(3)Mr Hatem: 2 shares non-beneficially owned.
This change in shareholding was effected in early 2022. Ms L had 1,000 shares non‑beneficially owned from March 2018 to January 2022.
For a number of years, both pre- and post-appointment of the liquidator, I Pty Ltd has been the subject of, or the moving party, in litigation in this Court and the Supreme Court, and post‑appointment, subject to litigation in the Federal Court as well.
The JJ Trust
The JJ Trust is a fixed unit trust purportedly signed by the unit holder, Mr K Scott, in September 2009. Another trust deed is in existence, namely a concessional unit trust deed dated August 2005, naming Mr K Scott and Ms Scott as unit holders. The fixed unit trust deed appointing Mr K Scott as the sole unit holder has been selected as the deed that purported to create the JJ Trust as it was annexed to a caveat lodged at the NSW Land Registry Services on the title to the property at F Street, Suburb MM, New South Wales (“the Suburb MM property”) by the Registrar General. Both deeds nominate I Pty Ltd as the corporate trustee.
Mr AB was appointed as receiver of the JJ Trust in early 2022 by an order of Black J pursuant to section 67 of the Supreme Court Act 1970 (NSW). The purpose of this appointment was that at that time, Mr AB had formed the view that I Pty Ltd owned the Suburb MM property on trust for the JJ Trust, and was concerned the husband may be in a position to transfer the ownership of this property. His concerns were valid.
Further, although I Pty Ltd was nominated the corporate trustee of the JJ Trust, when that company went into liquidation, it could no longer be the trustee of the JJ Trust as per the fixed unit trust deed. Accordingly, the liquidator was required to approach the Supreme Court to be appointed the receiver of the JJ Trust, in order to protect the assets of I Pty Ltd.
I note that the putative assets of the JJ Trust (collectively referred to as “the Trust assets”) are as follows:
(1)The Suburb MM property;
(2)Shares and securities listed on the Australian Stock Exchange (“ASX”) and traded through an OO Bank account …93 (“the ASX shares”) now realised at $97,144.24; and
(3)Monies held in an account in the name of I Pty Ltd held with the Commonwealth Bank of Australia (“CBA”) account …73 (“the CBA funds”) in the sum of $9,685.22.
In mid-2022, Stevenson J in the Supreme Court gave a judicial opinion doubting that the fixed unit trust deed was signed at the time alleged, finding it had been created at the earliest in January 2015, and had grave doubts as to its authenticity. In a subsequent judgment dealing with the costs following, his Honour said the following:
14 In that communication, the Liquidator’s solicitors said:
“It is clear that the [JJ Trust] is a sham and the trust deed purported to have been executed and stamped for duty in about September 2009 is a fabrication. In the circumstances, your client’s application has no merit and ought never have been filed. Similarly, it is clear that all of the assets identified by my client are owned by [I Pty Ltd] beneficially and the [C]ourt will make the directions sought by my client.”
15 In substance, I have upheld those contentions.
(As per the original)
CC Pty Ltd
CC Pty Ltd was incorporated in 2019. The purpose of CC Pty Ltd is unclear.
Mr Matten has been the director since incorporation.
The shareholding of CC Pty Ltd has been as follows:
(1)Mr Matten: from 6 March 2019 to 19 March 2019, 100 shares non-beneficially owned;
(2)Mr L: from 19 March 2019 to 20 March 2019, 100 shares beneficially owned;
(3)Mr Matten: from 20 March 2019 to 16 June 2020, 100 shares non-beneficially owned;
(4)Mr L: from 16 June 2020 to 3 February 2022, 100 shares beneficially owned; and
(5)Mr Matten: from 3 February 2022, 100 shares non-beneficially owned.
DD Pty Ltd
DD Pty Ltd was incorporated in 2015. The purpose of DD Pty Ltd is unclear. The directorship of DD Pty Ltd has been as follows:
(1)Ms HH: director from 30 March 2015 to 16 March 2021 and from 31 May 2021 to 8 June 2021, and secretary from 31 May 2021 to 8 June 2021;
(2)Mr L: director and secretary from 1 February 2021 to 31 May 2021; and
(3)Mr Matten: director and secretary since 8 June 2021.
The shareholding of DD Pty Ltd has been as follows:
(1)Ms HH: from 30 March 2015 to 9 June 2021, 100 shares beneficially owned;
(2)Mr Matten: from 9 June 2021 to 31 July 2021, 100 shares non-beneficially owned; and
(3)Mr Matten: from 31 July 2021, 100 shares beneficially owned.
P Pty Ltd
P Pty Ltd is a holding company, incorporated in 2014.
The directorship of P Pty Ltd has been as follows:
(1)Ms L: director from 7 May 2014 to 19 August 2014;
(2)Mr K Scott: director from 19 August 2014 to 17 August 2022;[6] and
(3)The husband: director from 17 August 2022.
[6] See Liquidator’s Court Book p.1618.
Ms L has been the sole shareholder for P Pty Ltd since incorporation, being 1000 shares beneficially owned.
Other companies
KK Business was an infrastructure company that was deregistered in 2016.
QQ Pty Ltd was a rent incorporation company.
These companies, excluding the JJ Trust, were referred to in the December 2021 judgment where I described them as the Scott group and that they were the husband’s alter egos.[7] In these Reasons for Judgment, the Scott group includes the JJ Trust.
[7] See below at [332].
ISSUES FOR DETERMINATION
This is an application concerning two distinct causes of action. The second is completion of the proceedings under the Act by assessing the value of the matrimonial pool for division between the wife and the husband. Secondly, whether I alter the percentage division I found to be just and equitable on the facts then known, being 70 per cent of the matrimonial pool to the wife and the balance to the husband (“the Family Law proceedings”).
The first issue is determining who is the beneficial owner of the assets of I Pty Ltd, and the JJ Trust following the transfer of the following proceedings to this Court by the Supreme Court (collectively referred to as “the Supreme Court proceedings”):
(1)Proceedings (“the Phong proceedings”) transferred by an order of Black J in October 2022; and
(2)Proceedings (“the Trust proceedings”) transferred by an order of Black J in October 2022.
The determination of the issues in the Supreme Court proceedings is the first task. The liquidator asserts all assets the subject of the liquidation of I Pty Ltd and receivership of the JJ Trust are beneficially owned by I Pty Ltd. The wife asserts they are all matrimonial assets in reality. The husband asserts his brother, Mr K Scott, and his mother, Ms Scott, are entitled to the assets of I Pty Ltd.
This is an inconsistent position to that which he took at one point in time in the Supreme Court proceedings where he asserted these monies were an asset of I Pty Ltd in a Defence he filed in the Phong proceedings and in cross-examination in those proceedings.
As to the assets of the JJ Trust, the husband’s position is unclear. I note the Defence signed by him in the Phong proceedings, as well as a caveat lodged over the Suburb MM property, said his caveatable interest arose because he provided the funds to purchase this property and thus the property was his. This argument was rejected and a finding made that, at best, he had a debt to enforce against the JJ Trust in respect of that asserted advancement.
In relation to I Pty Ltd, the asset in dispute is the beneficial ownership of the proceeds of sale of the Suburb E property (“the Fund”). The Fund was paid into the Supreme Court initially, and a few months after Mr AB’s appointment as liquidator, into an account held by him titled ‘I Pty Ltd Liquidation account 2’. For the purpose of these Reasons for Judgment, whether the Fund was in the Supreme Court or with the liquidator will not be distinguished.
In relation to the JJ Trust, the assets that have been vested in the liquidator are the Trust assets referred to above.
These assets have been vested in the liquidator consequent upon the winding up of I Pty Ltd upon the Phongs commencing enforcement proceedings in relation to a statutory demand against I Pty Ltd for payment of $46,164 pursuant to an order of Sackar J made in April 2021. An order was made by Black J in January 2022 winding up I Pty Ltd in insolvency when that debt was not paid.
The liquidator accepts the following as valid creditors and disputes the remaining proofs of debt lodged:[8]
(1)Australian Taxation Office for $4,550.00;
(2)MR AV for $500.00;
(3)Mr AW for $11,879.45;
(4)AX Pty Ltd for $4,443.59;
(5)Sydney Water for $5,071.02;
(6)AY Council for $418.88;
(7)Service NSW for $33,840.00; and
(8)AZ Management for $29,895.93.
[8] Exhibit L3.
The liquidator is desirous of finalising the winding up and paying these valid creditors, together with other creditors, such as the wife and the Phongs pursuant to the Deed of Settlement and Release entered into between them and the liquidator approved by this Court on 12 April 2022 (“the Deed of Settlement”).[9]
[9] Munayallan & Scott (No 6) [2022] FedCFamC1F 345 (Henderson J).
Further, the liquidator sought the Court approve his remuneration claimed and for a specific costs order to be made against the husband for legal costs incurred and paid in his capacity as liquidator of I Pty Ltd and the receiver of the JJ Trust.
The simple issues in this matter are:
(1)Determining the financial consequences of the winding up of I Pty Ltd and the receivership of the JJ Trust for those who have genuine debts; and
(2)The effect of these events on the matrimonial pool for division.
The wife has been compliant, respectful, and co-operative in this Court, and no doubt the Supreme Court, and has conducted herself with dignity. The evidence will show the husband has orchestrated an interference campaign, with the assistance of others, in this Court, the Supreme Court, and the Federal Court, to prevent any judicial officer from determining these issues; such is his desire to ensure the wife is denied her entitlement to her share of their matrimonial property.
This interference has resulted in multiple side-issues requiring determination, the concomitant increase in costs of all involved and a scandalous waste of judicial time in this Court, the Supreme Court, the Federal Court, both at first instance and the appellate jurisdiction.
This was ultimately the view of Mr AB and Mr BA, who each expressed great sympathy for the wife. The wife agreed with this position.
It is an imperative in finalising the Family Law proceedings that I determine the beneficial ownership of the Fund and the Trust assets. There is a clear connection between the proceedings in this Court and the Supreme Court, hence the appropriateness of the orders made by Black J to transfer the Supreme Court proceedings to this Court pursuant to section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).
I will finalise all and any outstanding applications in this Court, in the Supreme Court proceedings, including those under the Corporations Act 2001 (Cth) (“Corporations Act”), which is necessary to bring to an end this futile and expensive litigation.
THE HEARING
The hearing occurred over four days from 20 to 23 February 2023.
There appearances were:
(1)The wife was self-represented;
(2)The husband was self-represented;
(3)Mr Rose of counsel appeared on behalf of the liquidator and I Pty Ltd;
(4)Mr Patakas appeared as solicitor advocate on behalf of Mr Matten, Mr Hatem and CC Pty Ltd from 10.21am to 10.45am but only in relation to a stay application;
(5)Mr Docker appeared as solicitor advocate on behalf of AR Pty Ltd and Mr AS from 10.21am to 11.03am only in relation to an Application in a Proceeding filed by the husband;
(6)Mr Phong appeared on his and his wife’s behalf from 10.21am to 11.03am; and
(7)Mr Duc of counsel appeared on behalf of the intervener, Mills Oakley Lawyers, from 10.21am to 10.27am in relation to the costs issue between the intervener and the wife, which was settled.
There was no appearance by Mr Matten or for CC Pty Ltd in the substantive proceedings, and no appearance by Ms L, Mr K Scott in his own capacity or as litigation guardian for Ms Scott, or for DD Pty Ltd at all.
The only people to give evidence were Mr AB and Mr BA, both of whom were cross-examined by the wife and the husband.
Although leniency was given to the husband and wife as self-represent litigants, each asked disallowable questions at times, although the husband asked approximately 138 disallowable questions, which were misleading, improper, scandalous and without relevance to the issues requiring my determination.
I was required to intervene and cease the husband’s cross-examination of both Mr AB and Mr BA, as the questions had become harassing, devoid of relevance and were repetitious despite my requests to cease these types of questions.
Most of the wife’s disallowable questions arose out of confusion between the liquidator’s remuneration and legal fees, and conflating questions with submissions. As ever, despite this, the wife conducted herself with dignity in extremely trying circumstances.
Hearing chronology
It is necessary to set out, in some detail, a chronology of the hearing.
20 February 2023
The hearing commenced at 10.21am. I was initially informed by Mr Patakas that Mr Matten, Mr Hatem, and CC Pty Ltd sought a stay of the hearing.
I accepted consent orders between the wife and the intervener, Mills Oakley Lawyers, in relation to the wife’s legal costs at 10.26am.
I then heard the stay application from Mr Patakas, which was to stay these proceedings until the determination of a stay application of a judicial opinion given by Stevenson J in July 2022, which was before Macfarlan JA the New South Wales Court of Appeal (“the Court of Appeal”) that morning. The husband supported the application, while the liquidator, the wife, and AR Pty Ltd and Mr AS opposed the application.
I refused the stay application and delivered ex tempore Reasons for Judgment at 10.41am.[10]
[10] Scott & Munayallan (No 8) [2023] FedCFamC1F 105 (Henderson J).
I then excused Mr Patakas. The husband informed me he sought to be excused to attend the hearing before Macfarlan JA, despite him not being a party to the appeal.[11]
[11] Exhibit CC 1.
I did not excuse the husband and informed him these proceedings would continue in his absence and that I intended to deal with his Application in a Proceeding seeking damages and breach of contract against AR Pty Ltd and Mr AS, and Mr Phong, which I would determine regardless if he was present. Despite this, the husband left the Court at 10.51am, having informed the Court he only required Mr AB and Mr BA for cross-examination.
In the husband’s absence, I heard his Application in a Proceeding, dismissed it, and delivered ex tempore Reasons for Judgment at 10.55am.[12]
[12] Scott & Munayallan (No 9) [2023] FedCFamC1F 106 (Henderson J).
The substantive hearing commenced at 11.04am.
I granted leave to the liquidator to rely upon two affidavits filed out of time, as they informed the Court on matters that had occurred since December 2022. Given the amount of activity in other courts, it was important these affidavits be admitted into evidence. The wife informed me that she relied upon the material in her Court Book from the December 2021 judgment (“the wife’s Court Book”).
The Court was informed that the proceedings before the Court of Appeal had been heard. The matter was adjourned at 12.03pm. The husband returned at 12.30pm. I directed the husband to enter into a bond before a judicial registrar, as he had been ordered to do by Christie J by 7 January 2022 and had never done so. The matter was adjourned at 12.32pm to allow this to occur.
The matter resumed at 12.57pm. I informed the husband that his Application in a Proceeding against AR Pty Ltd, Mr AS, and Mr Phong was dismissed with costs. The husband made an application to adjourn the proceedings to the following day, which was refused. The matter was adjourned for lunch at 1.13pm.
The matter resumed at 2.31pm. Counsel for the liquidator informed the Court that the stay application before the Court of Appeal had been dismissed with costs.At 3.04pm, Mr AB entered the virtual witness box. The husband commenced his cross-examination of Mr AB at 3.06pm, and after many disallowable questions, finished at 3.23pm. The matter was adjourned at 4.00pm.
21 February 2023
On 21 February 2023, the hearing commenced at 9.46am. The husband did not appear and sought to appear via Microsoft Teams. Leave to do so was refused, as the orders of 17 November 2022 were clear that any party who sought to be heard was to attend Court in-person.[13]
[13] Scott & Munayallan (No 7) [2022] FedCFamC1F 944 (Henderson J).
The Court attempted to contact the husband by telephone, but this was unsuccessful. Cross‑examination of Mr AB by the wife commenced at 10.18am, in the husband’s absence.
The husband was permitted to listen to the wife’s cross-examination via Microsoft Teams, but he was told that if he wished to cross-examine Mr AB, he must physically attend the Court.
The wife continued her cross-examination until the matter adjourned at 11.28am. The matter resumed at 12.41pm, and the husband arrived at Court at 12.52pm. The matter was adjourned for lunch at 1.04pm.
When the matter resumed at 2.25pm, the husband sought to appear on behalf of P Pty Ltd. I refused this application.
The husband then sought to appear on behalf of his mother, Ms Scott. I refused this application, as Mr K Scott had been appointed the litigation guardian for Ms Scott.[14]
[14] Scott & Munayallan (No 7) [2022] FedCFamC1F 944.
The husband commenced his further cross-examination of Mr AB at 2.43pm, and ended at 4.24pm.
22 February 2023
On 22 February 2023, the hearing commenced at 10.06am. Mr BA was called to give evidence, with the wife commencing cross-examination at 10.11am.
At one point when Mr BA withdrew from the witness box, the husband made an application to cross-examine counsel for the liquidator, Mr Rose. I refused this application.
The wife continued her cross-examination until 11.10am, when the husband commenced his cross-examination of Mr BA.
As with Mr AB, the husband asked many disallowable questions to Mr BA. Aside from two short periods where I allowed the wife to ask further questions at 11.25am, and 12.01pm, the husband finished his cross-examination of Mr BA at 12.10pm. The husband later made an application for further cross-examination of Mr AB. I refused that application.
The husband sought to further cross-examine Mr BA, who was still at Court. I granted this application and Mr BA was recalled at 12.49pm, and the husband continued his cross‑examination until 1.04pm.
The husband sought to file a Reply. I refused him leave. The matter was then adjourned for lunch at 1.06pm.
When the matter resumed at 2.18pm, counsel for the liquidator began his submissions. I then heard from the wife only in respect of matters involving the liquidator and the Supreme Court proceedings, and the husband elected to file written submissions. The liquidator made submissions in reply to the wife, and the matter was adjourned at 4.58pm, with the liquidator excused from further attendance.
23 February 2023
On 23 February 2023, the hearing commenced at 10.30am, with only the wife in attendance at Court. As on 21 February 2023, the husband emailed the Court seeking to appear via Microsoft Teams. With the wife’s consent, and in the interests of finalising the hearing, I granted leave to the husband to appear via Microsoft Teams.
When the matter resumed at 11.27am, the husband appeared via Microsoft Teams, and I heard from both him and the wife on the division of the matrimonial asset in various iterations of the value of the pool, given the add backs sought by the wife. I also dealt with issues raised by the wife in relation to the father not complying with parenting orders in respect of the children’s passports and an error in the final parenting orders made. Despite the husband’s objection, I varied the orders to reflect the intention of the Court and give effect to those Reasons for Judgment.
The husband made two oral applications to re-open the parenting proceedings, and I refused both applications. The husband also sought a stay of the orders of 22 April 2022, and I refused the application. The hearing was adjourned at 12.30pm.
THE PARTIES’ POSITIONS
The liquidator’s position
The liquidator ultimately sought the following orders contained in his Application in a Proceeding filed 17 August 2022:
1.Pursuant to section 90-15 (1) of Schedule 2 (IPS) to Corporations Act 2001 (Cth), [Mr AB] (Liquidator) in his capacity as liquidator of [I Pty Ltd] (in liquidation) would be justified, and would otherwise be acting reasonably, in rejecting in full (that is, to nil) the formal proofs of debt or claims purporting to have been submitted by:
a. [Ms Scott] dated 22 March 2022;
b. [Ms L] dated 22 March 2022;
c. [P Pty Ltd] dated 23 March 2022;
d. [Mr K Scott] dated 23 March 2022;
e. [Mr Matten] dated 23 March 2022; and
f. [DD Pty Ltd] dated 23 March 2022.
2.Pursuant to s 60-10 of the IPS, the Court determines the remuneration of the Liquidator.
3.Pursuant to section 90-15(2) of the IPS, that the Liquidator would be justified, and would otherwise be acting reasonably, in paying the funds held in the account titled “[I Pty Ltd Liquidation] account 2” (representing the funds previously held by the court in Supreme Court of NSW proceedings no 2015/325044) (the Fund) as follows and in the following order:
a.to [Ms Munayallan] in accordance with clause 4.3 of the deed of settlement marked Confidential Annexure A to the Liquidator’s affidavit of 8 April 2022;
b.in payment of the Liquidator’s approved remuneration and his expenses; and c. to the creditors of [I Pty Ltd] as determined by the Court.
c.To the creditors of [I Pty Ltd] as determined by the Court.
In relation to the Phongs, they have been paid monies pursuant to the Deed of Settlement and no order was sought in that regard;
4.Pursuant to section 488 of the Corporations Act 2001 (Cth), and section 90‑15(2) of the IPS, special leave be granted to the Liquidator to distribute the proceeds of sale of the real property located at [F Street], [Suburb MM] NSW ([Suburb MM Property]), being a surplus asset in the winding up of [I Pty Ltd], in specie or otherwise, as follows:
a.subject to any application being filed by any interested party within 21 days, including [Ms Munayallan], claiming an interest to that surplus, to [Mr K Scott], the sole member of [I Pty Ltd] according to the records maintained by ASIC; or
b.in the event such an application referred to in Order 4(a) is filed within 21 days, to be held by the Liquidator pending further order of the Court.
And also as directed by the Court;
5.Pursuant to section 488(2) of the Corporations Act 2001 (Cth), and section 90‑15(2) of the IPS, special leave be granted to the Liquidator to distribute, and the Liquidator would be justified in distributing, the balance of the Fund after payment of the amounts referred to in Order 4 as follows:
a.subject to any application being filed by any interested party within 21 days, including [Ms Munayallan], claiming an interest to that surplus, to [Mr K Scott], the sole member of [I Pty Ltd] according to the records maintained by ASIC; or
b.in the event such an application referred to in Order 5(a) is filed within 21 days, to be held by the Liquidator pending further order of the Court; or
Order 6 was not pressed;
7.Dispense with the requirements under reg 5.6.71(1) of the Corporations Regulations 2001 (Cth).
Order 8 was not pressed;
And in his Application in a Proceeding filed 29 November 2022:
9.[Mr Scott] pay to the Liquidator, in his capacity as liquidator of [I Pty Ltd], and [I Pty Ltd], their costs incurred on or after 1 February 2022 until 25 November 2022, of and incidental to:
a. these proceedings;
b.Supreme Court of New South Wales proceedings […], […] and […] (transferred to this Court);
c.proceedings involving;
i. [Mr Scott];
ii. [Ms Scott];
iii. [Mr Matten];
iv. [Ms L];
v. [Ms AH];
vi. [CC Pty Ltd];
vii. [DD Pty Ltd];
viii. [P Pty Ltd];
10.Each of the entities and or persons named in prayer [9](c) above be restrained from commencing or continuing in this Court any proceedings against either [I Pty Ltd] and or the Liquidator (other than by a claim in the nature of a defence, cross-claim or cross-summons) which arises from the same or similar facts as these proceedings without the leave of a Judge of this Court, unless and until the costs ordered in order 1 above have been paid in full.
11.[Mr Scott] pay the Liquidator and [I Pty Ltd] their costs, on the indemnity basis, incurred on or after 26 November 2022 until the conclusion of the 4 day hearing scheduled to commence 21 February 2023, of and incidental to:
a. these proceedings;
b.NSWSC proceedings […], […] and […] transferred to this Court;
c.to the extent necessary, any applications filed in those proceedings referred to in (a) and (b) by any one or more the entities and or persons named in order 9(c) above.
12.The Liquidator and [I Pty Ltd] have leave, within 14 days of the date of these orders, to serve any further evidence and submissions on the costs of these proceedings, including any application for a gross sum costs order in respect of the costs referred to in order 11.
The liquidator sought remuneration in the sum of $815,800.40, and together with paid legal costs of $1,185,505.49, is a total of $2 million.[15] There were two errors in this calculation, which are dealt with later.[16]
[15] See below at [368], [388].
[16] See below at [387].
The liquidator sought orders pursuant to section 106B of the Act to set aside various transactions, to aid in finalising the existing proceedings between the parties, and importantly, to minimise future litigation by other parties.
The liquidator sought I make findings that the persons involved in the proceedings, aside from the wife, the Phongs, AR Pty Ltd, and Mr AS, are the privies of the husband.
Further, the liquidator sought findings that companies named and involved in this litigation – the Scott group – are alter egos of the husband.
The liquidator confirmed that he plays a “neutral” role and he will abide by orders of this Court in relation to payment of the surplus consequent on the finalisation of the winding up of I Pty Ltd and the JJ Trust.
On 11 July 2022, Stevenson J gave a judicial opinion that the liquidator would be justified and acting reasonably to treat the Suburb MM property, the ASX shares, and the CBA funds, as being beneficially owned by I Pty Ltd given his opinion that the fixed unit trust deed and all other purported trust deeds were but a sham. Further, that if the liquidator could establish I Pty Ltd’s entitlement to the Fund, the liquidator would be justified and acting reasonably to treat the Fund as being beneficially owned by I Pty Ltd as well. This opinion was unsuccessfully appealed by Mr Matten and others. It is clear that this is a primary issue requiring my determination.
In determining the orders sought by the liquidator, the following issues arose:
(1)Rejection of various proofs of debt, which the wife supported this position;
(2)Whether certain transactions in relation to I Pty Ltd should be set aside pursuant to section 106B of the Act, which the wife supported this position;
(3)The enforcement of the Deed of Settlement entered into between the liquidator, the wife, and the Phongs,[17] which the wife supported. I note the Phongs have been paid their entitlement;
[17] Munayallan & Scott (No 6) [2022] FedCFamC1F 345.
(4)The quantum of remuneration to be paid to the liquidator, which both the wife and the husband disputed as to quantum and I note only the wife’s cross-examination of Mr AB and her submissions assisted me in this regard;
(5)An assessment of whether the legal fees charged to and paid by the liquidator, on an effective indemnity basis, are reasonable and otherwise proper, which both the wife and the husband disputed and I note only the wife’s cross-examination of Mr BA and her submissions assisted me in this regard;
(6)Who should be liable for the liquidator’s legal costs, if anyone;
(7)Whether various individuals are privies of the husband and various corporate entities are the husband’s alter egos, and the wife supported the liquidator’s position;
(8)Whether I add back to the matrimonial pool the following which has disappeared, or has been or will be paid from the Fund and the Trust assets:
(a)A sum of $1.3 million that was removed from an account in the name of DD Pty Ltd held with the CBA account ending …98 by the husband, Mr Matten, and Ms HH on 10 June 2021,[18] the whereabouts of which are unknown;
(b)The costs orders and interest paid to the Phongs from the Fund pursuant to multiple costs orders and the Deed of Settlement totalling $808,986.14;
(c)The costs order paid to the Registrar General from the Fund in the sum of $5,000;
(d)The liquidator’s remuneration;
(e)The liquidator’s legal costs; and
(f)The costs of the proposed rectification works to the Suburb MM property, which the liquidator submits are necessary to comply with council by-laws, so as to allow its sale by him, which are assessed in the sum of $73,700, which both the wife and the husband opposed saying it was unnecessary;
(9)Determining the matrimonial pool for division; and
(10)The percentage entitlement of the wife and the husband to the matrimonial pool.
[18] 2021 Exhibit W15.
I said the following in the December 2021 judgment in relation to the $1.3 million that was removed from the account in the name of DD Pty Ltd:
135 …
…
(c)From exhibit 15 it is clear that the husband caused $1.3 million to be moved out of the [DD Pty Ltd] account held at the CBA in June 2021, using both [Ms HH] who was named a director of the company for some 8 to 9 days according to ASIC documents and then [Mr Matten] who remains a director. The Commonwealth Bank would not permit the husband to withdraw these funds initially as [Mr Scott] had an old ASIC form naming [Ms HH] as a director and the bank refused to permit the withdrawal. [Mr Scott] returned with documents confirming the directorship and he and [Mr Matten] returned to the bank the following day and withdrew $1.3 million from the [DD Pty Ltd] account.
(d)[Ms HH] had also written to the Bank confirming [Mr Scott] had full authority to operate the account as set out in Wife’s Exhibit 20 a most unusual privilege for a person who has nothing to do with a company which has over $1.3 million in its account.
(e)It was evident from a perusal of the bank documents produced under subpoena and marked Exhibit 15 that the husband was the moving party in this transaction. The wife believes this money was transferred to an account in [Ms Scott’s] name but is unsure as [Ms Scott] did not produce documents sought under subpoena and did not attend the hearing to be cross examined.[19]
(As per the original)
[19] Munayallan & Scott (No 5) [2021] FedCFamC1F 284 at [135(c)–(e)].
It is apparent that the $1.3 million removed from the bank account held in the name of DD Pty Ltd in June 2021, and the wife’s argument that given the extraordinary costs incurred, the husband’s conduct, directly and through his privies and alter egos, in conducting litigation in this Court, the Supreme Court, the Court of Appeal, and the Federal Court, amounts to a wastage of matrimonial assets, in the Kowaliw sense,[20] and has significantly diminished the matrimonial pool, from approximately $4 million in 2016, to initially thought at best thought to be $500,000, but for reasons that follow may be approaching $1 million.
[20] Kowaliw and Kowaliw (1981) FLC 91-092 (Baker J).
The wife’s position
The wife sought a reduction in the liquidator’s remuneration and legal fees paid to his legal representatives. The thrust of her argument was five-fold:
(1)There was duplication of fees charged by the liquidator and his firm, and those fees charged by the liquidator’s legal representatives;
(2)The work charged for smaller amounts of time (e.g. 10 minutes) are inappropriate as no substantial work can be done during this time;
(3)The liquidator ought to have made an application for security for costs in respect of the multitude of applications brought by the husband, Mr Matten, CC Pty Ltd, et al in the Supreme Court in an endeavour to minimise ongoing litigation;
(4)There were outstanding costs orders made against the husband, Mr Matten, CC Pty Ltd, et al and the liquidator should have pursued and enforced these costs orders to increase the matrimonial pool; and
(5)Generally, the remuneration sought and legal fees charged were excessive, alluding to an incentive for the liquidator and his legal representatives to charge excessively so they are paid more.
In regard to the division of the net matrimonial pool, the wife submitted a division on the following permutations:
(1)If the pool was approximately $500,000, she receive 100 per cent;
(2)If the pool was approximately $1,800,000 – the amount if the $1.3 million removed from DD Pty Ltd was added back – she receives 80 per cent and the husband receives the balance; and
(3)If the pool was approximately $4,000,000 – the amount, if in addition to (2), the liquidator’s remuneration and legal fees are added back – she receive 70 per cent and the husband receives the balance.
In relation to the wife’s submission that the liquidator and his legal representatives had an incentive to charged excessively, this is a submission I reject. I accept the matter was speculative initially. However, the wife conceded the litigation had been ongoing since 2014, and that many applications and documents had been filed in multiple courts since the liquidator’s appointment. This required the liquidator to go to extraordinary lengths to uphold his obligations, including obtaining a warrant for possession of the Suburb MM property, as the husband refused to give possession and hand over relevant books in relation to I Pty Ltd.
The wife also sought that the Suburb MM property not be sold. Such a position cannot be maintained where liquidation of this asset, as will be revealed later, is necessary.
The husband’s position
The husband sought the following orders:
(1)Pursuant to section 482 of the Corporations Act, that the winding up of I Pty Ltd be:
(a)Stayed pending the outcome of the proceedings before Lee J in the Federal Court; or
(b)Terminated with immediate effect;
(2)The liquidator’s remuneration and legal costs be reduced by 95 per cent, or alternatively, that the liquidator’s remuneration and costs be “clawed back” to 3 February 2022, agreeing with the submissions made by the wife on this issue;
(3)Neither the $1.3 million transferred by him, Mr Matten, and Ms HH from DD Pty Ltd nor any of the add backs sought by the wife, including the liquidator’s remuneration and paid legal fees, be added back to the matrimonial pool; and
(4)The final division of the net matrimonial pool be as follows:
(a)If the total was approximately $500,000, he receive 60 per cent and the wife the balance; and
(b)If the total was approximately $1,800,000 or more, he receive 100 percent and the wife nothing in circumstances where the husband would “get the money back to [Mr K Scott] and [Ms Scott]”;
The husband ultimately submitted that any surplus should be given to him to enable him to pay the “real” creditors of I Pty Ltd, who he asserts are primarily Ms Scott and Mr K Scott.
This submission fits neatly with and supports the liquidator’s privies argument and the finding of Berman J in this Court that I Pty Ltd is the alter ego of the husband.[21]
[21] Munayallan & Scott [2019] FamCA 549 at [51] (Berman J).
Apart from the multiple applications made during the hearing as detailed earlier, the husband sought to rely on a multitude of documents by way of tenders, which were in the main rejected.
In relation to the rectification works at the Suburb MM property,[22] the liquidator relied upon an email from the Council, which was clear that there are existing non-compliant works, namely a mezzanine floor that must be rectified.
[22] Exhibit L10.
The husband and the wife disagreed with this stating that an order was made in the Land and Environment Court of New South Wales (“the Land and Environment Court”) dismissing the Council’s claim in that regard.
This order from the Land and Environment Court, namely by Duggan J, was from mid-2021, and was of an interim nature. Yet, the email tendered by the liquidator from the Council is from late 2022. I accept the most current evidence as being the correct position.
The husband asserted that the Federal Court sits on appeal in respect of decisions made in the Supreme Court. Further, the husband asserted that because the Federal Court and this Court are “sister courts”, material filed in one Court could be accessed by the other Court. Despite the husband being told these two propositions were incorrect, he disagreed to the end.
The files of the Supreme Court proceedings transferred to this Court were available for inspection by all parties prior and during the hearing. My Associates opened the courtroom early on two occasions to allow the husband to inspect the files to find the documents, affidavits, tender bundles, orders, and judgments, that he asserted were relevant.
The husband did not avail himself of this opportunity, preferring to tell the Court that as I had the file, I could locate what he wanted me to read, and that the documents he was referring to were “nothing new” to the liquidator.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For the wife, as provided the wife’s Court Book and detailed in her Case Outline:
(a)Case Outline filed 26 September 2021;
(b)Further Amended Initiating Application filed 25 March 2021;
(c)Application in a Case filed 12 March 2020;[23]
[23] The date the Application in a Case was sealed on was 20 March 2020.
(d)Financial Statement filed 25 March 2021;
(e)Affidavit of Ms Munayallan (with annexures) filed 18 August 2021;[24]
[24] The date the affidavit was signed was 17 August 2021.
(f)A tender bundle of documents in relation to the substantive proceedings; and
(g)A tender bundle of documents in relation to the vexatious litigant proceedings.
(2)For the wife at the present hearing, she relied upon her documents as contained in her Court Book.
(3)For the husband as provided in the December 2021 judgment:
(a)Response filed 28 August 2020;
(b)Financial Statement filed 19 June 2021;[25]
[25] The date provided in the header of the Financial Statement is 9 March 2021.
(c)Affidavit of Mr Scott (with annexures) filed 11 August 2021;[26] and
[26] The date the affidavit was affirmed on was 6 August 2021.
(d)Affidavit of Mr Scott (with annexures) filed 24 September 2021 at 4.40pm.[27]
[27] The date the affidavit was affirmed was 11 November 2020, and “updated” on 13 September 2021.
(4)For the husband at the present hearing, I gave him leave to rely upon:
(a)Affidavit of Mr Scott (with annexures) filed 15 November 2022,[28] which after the liquidator’s objections were accepted, contained only the affidavit cover page, the affidavit attestation, some parts of paragraphs 1, 2, and 3(b), and the annexures referred to in paragraph 3(b); and
[28] Curiously, on the Court e-filing system, this affidavit has purportedly been filed on behalf of the wife.
(b)Written submissions sent to the Court on 23 March 2023.
(5)For the liquidator at the present hearing, some contained in his Court Book (“the liquidator’s Court Book”):[29]
[29] The orders of 17 November 2022 provided that all parties were to notify the liquidator of the documents they sought to rely upon for the hearing. Only the Phongs notified the liquidator of the documents they sought to rely upon, which were contained in the Liquidator’s Court Book p.2157–2190.
(a)Case Outline filed 14 February 2023;
(b)Application in a Proceeding filed 17 August 2022;
(c)Application in a Proceeding filed 29 November 2022;
(d)Affidavit of Mr AB (with annexures) filed 8 April 2022;
(e)Affidavit of Mr AB (with annexures) filed 17 August 2022;
(f)Affidavit of Mr BA (with annexures) filed 17 August 2022;
(g)Affidavit of Mr AB (with annexures) filed 9 December 2022;
(h)Affidavit of Mr BA (with annexures) filed 9 December 2022;
(i)Affidavit of Mr AB (with annexures) filed 14 February 2023;
(j)Affidavit of Mr BR (with annexures) filed 14 February 2023; and
(k)Written submissions in reply to the husband’s submissions, which were filed 20 April 2023;
And on 22 February 2023, I granted leave to the liquidator to file and serve an updating affidavit in relation to further costs incurred by no later than 4.00pm on 22 March 2023, and the following affidavits were filed:
(l)Affidavit of Mr AB (with annexures) filed 22 March 2023; and
(m)Affidavit of Mr BA (with annexures) filed 23 March 2023.
Documents tendered and marked as exhibits were as follows:
(1)For the wife as provided in the December 2021 judgment:
(a)A bundle of documents produced under subpoena from LL Medical Centre regarding the husband (2021 Exhibit W1);
(b)A bundle of documents produced under subpoena from EE Hospital regarding the husband (2021 Exhibit W2);
(c)A bundle of documents from the wife’s legal representatives in relation to personal service of subpoenas and notification of adjourned dates and court listings to Ms HH, Mr L, Ms L, Mr Matten, and Ms Scott (2021 Exhibit W3);
(d)CBA document titled ‘The Home Loan/Investment Home Loan Application’ (2021 Exhibit W4);
(e)Australian Securities and Investments Commission (“ASIC”) document titled ‘Notification as to the holding of office in a company’ for KK Business signed by Ms Scott and date stamped 5 June 2013 (2021 Exhibit W5);
(f)Letter from V Lawyers to the wife’s legal representatives dated 23 September 2021 outlining the amounts of money that are held in the Supreme Court of New South Wales (2021 Exhibit W6);
(g)Reasons for Judgment of Berman J dated 2 August 2019 (non-anonymised form) (2021 Exhibit W7);[30]
[30] Munayallan & Scott [2019] FamCA 549.
(h)Reasons for Judgment of Pembroke J dated 26 April 2017 (2021 Exhibit W8);
(i)Reasons for Judgment of Aldridge J dated 23 July 2021 (anonymised form) (2021 Exhibit W9);[31]
[31] Scott & Munayallan [2021] FamCAFC 133 (Aldridge J).
(j)Subpoena issued by the wife to TT Bank (2021 Exhibit W10);
(k)Orders of a Senior Registrar dated 30 March 2021 (2021 Exhibit W11);
(l)A bundle of documents containing the following (2021 Exhibit W12):
(i)Index titled ‘Cost Orders: Costs orders owing to the wife by the husband’;
(ii)Orders of Aldridge J dated 7 November 2019;
(iii)Orders of Aldridge J dated 16 December 2019; and
(iv)Orders of Berman J dated 23 October 2019;
(m)A web printout from the Commonwealth Courts Portal containing a list of applications filed by the husband in file number SYC59/2010 (2021 Exhibit W13);
(n)The decision of Pencious & Searle (2021 Exhibit W14);[32]
[32] (2017) FLC 93-805 (Bryant CJ, Ryan and Aldridge JJ).
(o)A bundle of documents produced under subpoena from the CBA in relation to DD Pty Ltd and CC Pty Ltd (2021 Exhibit W15);
(p)A bundle of documents produced under subpoena from TT Bank (2021 Exhibit W16);
(q)A balance sheet provided by the wife dated 27 September 2021 (2021 Exhibit W17);
(r)ASIC document titled ‘Change to company details’ for I Pty Ltd signed by Ms Scott and date stamped 1 March 2018 (2021 Exhibit W18);
(s)A bundle of email correspondence from Ms HH and the husband with the CBA allowing the husband to access funds in those accounts (2021 Exhibit W19);
(t)A bundle of email correspondence from the wife’s legal representatives to Ms HH from to 24 September 2021 to 11 October 2021 (2021 Exhibit W20);
(u)A bundle of letter email correspondence from the wife’s legal representatives to Mr Matten from 22 September 2021 to 11 October 2021, including a letter from the wife’s legal representatives to Mr Matten dated 22 September 2021 (2021 Exhibit W21);
(v)Text message received by the wife from the husband dated 9 January 2021 (2021 Exhibit W22);
(w)ASIC document titled ‘Historical Company Extract for CC Pty Ltd’ dated 13 October 2021 (2021 Exhibit W23);
(x)A bundle of email correspondence between the Court, the wife’s legal representatives and the husband from 5 August 2021 to 13 October 2021 (2021 Exhibit W24);
(y)Written submissions for the wife in relation to parenting and property (2021 Exhibit W25);
(z)Written submissions for the wife in relation to her vexatious litigant application against the husband (2021 Exhibit W26); and
(aa)Reasons for Judgment of Slattery J dated 29 March 2018 (2021 Exhibit W27).
(2)For the wife at the present hearing:
(a)Orders of Berman J dated 23 October 2019 (Exhibit W1); and
(b)Consent Orders between the wife and Mills Oakley Lawyers (Exhibit W2).
(3)For the husband at the present hearing:
(a)Email from the husband dated 20 February 2023, including a screenshot of a list of documents seeking to rely upon (Exhibit H1);
(b)Written submissions of the husband emailed to the Court on 21 February 2023 (Exhibit H2);
(c)Emails from the husband to the Court from 20 February 2023 to 21 February 2023 (Exhibit H3);
(d)A bundle of emails between Mr Matten and Mr BC from Revenue NSW dated July 2022 with subject line ‘RE: Duties Notice of Assessment’ (Exhibit H4);
(e)A bundle of documents (Exhibit H5) containing:
(i)Reasons for Judgment of Pembroke J dated 26 April 2017;
(ii)ASIC Current and Historical Company Extract dated 5 May 2014;
(iii)ASIC Current and Historical Company Extract dated 19 November 2014; and
(iv)Company Statement dated 25 June 2014; and
(f)Original bank statements of I Pty Ltd and a list of books and records of I Pty Ltd recovered by the liquidator on 19 July 2022 (Exhibit H6);
I have also had regard to the following, which was sent by the husband on 23 March 2023 with his written submissions, which at the hearing the husband foreshadowed providing these documents:
(g)A Summons filed 18 December 2020 in the Land and Environment Court, naming AY Council as the applicant, and I Pty Ltd and ‘The Owners – Strata Plan No. …’ as the first and second respondents respectively;
(h)A transcript of proceedings before Duggan J in the Land and Environment Court in July 2021; and
(i)Orders made by Duggan J in July 2021 in the Land and Environment Court;
(4)For the liquidator at the present hearing:
(a)A one-page submission regarding CC Pty Ltd’s stay application (Exhibit L1);
(b)A one-page double-sided submission regarding the liquidator’s notice to parties listed in the liquidator’s August application, as well as to (Exhibit L2);
(c)An updated list of creditors of I Pty Ltd dated 13 February 2023 (Exhibit L3);
(d)Reasons for Judgment of Macfarlan JA dated 20 February 2023 (Exhibit L4);
(e)Reasons for Judgment of a Judge dated 9 January 2023 (Exhibit L5);
(f)List of objections to the affidavit of the husband affirmed on 15 November 2022 (Exhibit L6);
(g)Email from Mr BE to the Court dated 20 February 2023 attaching the list of objections to the affidavit of the husband affirmed on 15 November 2022 (Exhibit L7);
(h)A bundle of emails from 23 April 2022 to 2 December 2022 regarding service of the liquidator’s applications to reject proofs of debt served by various parties (Exhibit L8);
(i)ASIC search titled “Change to company details” with barcode … (Exhibit L9);
(j)Defence filed by the wife in the proceedings with file number … in August 2021 (Exhibit L9A); and
(k)A bundle of emails between the liquidator and an officer from AY Council from 20 July 2022 to 5 September 2022 with subject line ‘I Pty Ltd (in liquidation)’ (Exhibit L10), confirming the Council still considered there were unauthorised additions and works at the Suburb MM property.
(5)For CC Pty Ltd at the present hearing:
(a)Amended Notice of Motion and Amended Draft Notice of Appeal with case number … with CC Pty Ltd listed as the appellant/applicant (Exhibit CC 1).
(6)For the Court at the present hearing:
(a)Orders of Henderson J dated 17 November 2022 (Exhibit C1); and
(b)Reasons for Judgment of Berman J dated 2 August 2019 (Exhibit C2).[33]
EXTENSIVE CHRONOLOGY
[33] Munayallan & Scott [2019] FamCA 549.
Chronology and litigation in the Family Law proceedings
It is clear upon reading rule 36.16 that the husband’s Notice of Motion, and as amended, was doomed from the outset, as the relief sought was to set aside the orders of Sackar J made on 22 April 2022, was filed some 24 days out of time, and that Amended Notice of Motion is now finalised and dismissed.
Interlocutory Process filed by CC Pty Ltd on 30 March 2022 in the Trust proceedings
The husband submitted that there remained this Interlocutory Process. CC Pty Ltd did not attend Court to prosecute that application and I will dismiss it for want of prosecution.
Interlocutory Process filed by the liquidator on 11 February 2022 in the Trust proceedings
On 11 February 2022, Black J made orders ex parte for the Registrar General be restrained from registering an unregistered transfer in relation to the Suburb MM property dated 21 February 2021 and lodged by Mr Matten on 30 September 2021 until 4.00pm on 21 February 2022. This injunction was extended until further order on 21 February 2022.
Mr Matten did not attend Court to run any argument that the injunction should not continue and nor did any other party on behalf of CC Pty Ltd so attend.
I will not disturb the injunction made by Black J on 21 February 2022.
I have set the transfer aside as fraudulent and granted the liquidator and/or the wife to approach a registrar of this Court to sign all documents to effect a withdrawal of the transfer.
I will grant leave to the liquidator to provide a copy of these orders to the Registrar General.
THE HUSBAND’S CONDUCT AND FUTURE LITIGATION
When the husband realised all of his arguments and manoeuvrings were futile and that the hearing would proceed on the third day, he sought leave to appear on behalf of P Pty Ltd; a company of which he is sole director and shareholder and had filed a proof of debt against the Fund with no supporting documents.
I refused this leave on multiple grounds, primarily that companies are required to be represented by a legal representative,[298] which is extended to any creditor, contributory or officer of a corporation.[299] Further, the matter was listed for hearing on 17 November 2022 and the husband knew that any party who proposed to present evidence at the hearing was to file documents in accordance with the trial directions and attend Court in-person.[300]
[298] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.09.
[299] Federal Court (Corporations) Rules 2000 (Cth) r 2.13(1)(a). See also Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.18 for the application of the Federal Court (Corporations) Rules 2000 (Cth).
[300] Scott & Munayallan (No 7) [2022] FedCFamC1F 944.
The husband was perhaps unaware that if I accepted the proof of debt lodged by P Pty Ltd, any monies received could be regarded as property in the Family Law proceedings for division. His success in such a claim may not have further depleted the matrimonial pool.
The husband sought to appear via Microsoft Teams each subsequent day after the first day, asserting that I had granted leave or that he was exhausted.
The husband tried every tactic he could think of to delay finalisation of the matter rather than putting in effort into presenting a cogent and coherent case, and setting out his position in relation to this tumultuous and voluminous litigation that he has been solely responsible for continuing and where in some instances he had a position to put before the Court.
Such was his focus on delay that he never expected the matter to reach this stage.
This conduct is a continuation of the husband’s endeavours to frustrate finalisation of proceedings in this Court, the Supreme Court, and the Federal Court. Echoing the words of the liquidator, is a continuation of his attempts to deplete the matrimonial pool and frustrate the legitimate demands of the wife’s entitlement to that pool by running up legal costs with futile arguments and time-wasting behaviours, and this is likely to continue.
An unfortunate element with this litigation and the involvement of the husband’s privies is that a significant amount of litigation has been attempted to occur via email.
While in today’s age it is the norm for correspondence between parties to occur via email, my Chambers, along with the chambers of judges in other courts, have been inundated with emails, seeking to initiate, agitate, and re-agitate a multiplicity of applications, motions, and appeals, both on a formal and informal basis.
While not all email correspondence regarding this hearing was before the Court, some of it was tendered as exhibits, and it is clear from various annexures to Mr AB’s affidavits that this form of litigation has gone on for some time.
The Court is concerned to minimise the liquidator incurring further unnecessary costs caused by the husband, and his privies and alter egos in this regard. Further, the Court is concerned that the husband will, either himself or through his privies and alter egos, continue to re-agitate issues by filing applications.
For example, Mr AT, Mr Hatem, Ms AH, or Ms L have not appeared before me in this matter either in-person or via Microsoft Teams, nor did Mr Matten appear for the final hearing.
The liquidator provided notice to those who submitted proofs of debt that they would be seeking approval from the Court to reject certain proofs of debt, and no one attended the hearing other than CC Pty Ltd, Mr Matten, and Mr Hatem via Mr Patakas, seeking a stay on the first day of the hearing, and they did not pursue their substantive applications before the Court.
The Court is concerned that even after these Reasons for Judgment are delivered, litigation will continue, and continue without the person initiating the application being the person they are purporting to be, and the husband continuing his impersonation of others and their corporate entities.
In the event further litigation continues by the husband, whether himself, his privies or his alter egos, all future applications are to be listed before me, or in my absence, a Justice of the Federal Circuit and Family Court of Australia (Division 1), and not before a registrar. This matter needs management and control by one Judge to minimise waste of the Court’s time and resources, and the financial and emotional costs to those involved as well.
There are outstanding costs orders in respect of the husband, Mr Matten, and CC Pty Ltd, and other parties, persons and entities named in these proceedings which have not been quantified or pursued, and which the liquidator sought I base a decision upon preventing those parties so named continuing with proceedings in this Court, as sought in his Application in a Proceeding filed 29 November 2022.
There are significant difficulties with this application as follows.
I have made an order that the husband be personally liable for the legal costs incurred by the liquidator on an indemnity basis. There is no basis to restrain all parties whose proofs of debt I have rejected and Ms AH from continuing proceedings until this costs order is satisfied. Compliance with that order is the husband’s obligation now and not others.
I would not make an order restraining proceedings continuing on the basis that unspecified costs orders, which have not be quantified or pursued, have not been satisfied by the party against whom the order was made. Had the liquidator quantified these multiple, unspecified costs orders made frequently in the Supreme Court, I may have been able, with that evidence, to have exercised my discretion. However, that is not the state of the evidence.
The Court’s overarching purpose is contained in section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and minimising costs looms large:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
…
The Court’s power to impose, in effect, an injunction on proceedings progressing arises from its inherent jurisdiction upon a finding that proceedings are an abuse of process.[301]
[301] Williams v Spautz (1992) 174 CLR 509 at 518 (Mason CJ, Dawson, Toohey, and McHugh JJ), cited in Hearne & Hearne (2015) 53 Fam LR 454 at [116] (Austin J in minority), Klearchos & Klearchos [2021] FamCA 375 at [33] (Altobelli J).
In Norton & Locke,[302] the Full Court of the Family Court of Australia (as it was then known) said this on the Court’s jurisdiction generally:
43… This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice …” (Mr BH v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612 at 638; 71 ALR 457 at 475 (Jackson)). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect[…] its function as a court”.[303]
(As per the original)
[302] (2013) FLC 93-567 (Bryant CJ, Murphy and Benjamin JJ).
[303] (2013) FLC 93-567 at [43].
Further, in Amery & Kedrina,[304] the Full Court of the Family Court of Australia said this on the Court’s jurisdiction with respect to a permanent stay:
[304] (2021) FLC 94-023 (Ainslie-Wallace, Ryan and Tree JJ).
100In Tomlinson [v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; 323 ALR 1; 89 ALJR 750; [2015] HCA 28], the plurality of the High Court said of the relationship between the doctrines of estoppel and abuse of process:
24.… the doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25.Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
(Footnotes omitted)
101A permanent stay may be ordered regardless of the merits of the proposed proceedings [Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; 227 ALR 425; 45 MVR 288; [2006] HCA 27 at [63]].
102Further, in Johnson v Gore Wood [& Co (a firm) [2002] 2 AC 1], Lord Bingham at 31 referred to abuse of process in bringing successive proceedings, the “underlying public interest” of finality in litigation and the “current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole”.[305]
(As per the original with footnotes inserted)
[305] (2021) FLC 94-023 at [100]–[102].
I will stay the continuation of proceeding of any application filed by the husband, pending satisfaction of the following costs orders outstanding against him:
(1)The costs to be paid to the liquidator in the sum of $1,113,721;
(2)The $62,275.50 ordered to be paid by the husband to the wife on 21 December 2021;
(3)The $8,946.44 ordered to be paid by the husband to the wife on 1 April 2022; and
(4)The $2,500 ordered to be paid by the husband to the Phongs on 14 October 2022 by Black J in the Phong proceedings.
OUTSTANDING CAUSES OF ACTION IN THE FAMILY LAW PROCEEDINGS
On 26 October 2022, CC Pty Ltd filed an Application in a Proceeding, seeking, inter alia, the termination or a permanent stay of the winding up of I Pty Ltd.
CC Pty Ltd did not prosecute this application and I dismiss it for want of prosecution.
On 17 November 2022, an Application in a Proceeding was filed (or attempted to be filed) under I Pty Ltd, with the application stating it was filed on behalf of CC Pty Ltd and Ms Scott, and prepared by Mr Matten, seeking, inter alia, some orders made on 29 September 2021 be set aside.
CC Pty Ltd and/or Ms Scott did not prosecute this application and I will dismiss it for want of prosecution.
Finally, some applications appear to not have been dealt with or partly dealt with, as listed in Schedule B. I will make orders to dismiss any outstanding application for want of prosecution. As a matter of clarity, I will formally dismiss all outstanding applications in this Court.
CONCLUSION
This matter has been a sad story of a man that cannot accept any decision of any Court or judicial officer that determines against him. It is sad because despite admitting that there has been “mistake after mistake”, he continues with pointless, expensive, time-consuming litigation that has no merit and seeks to re-agitate issues that have been determined by misrepresenting facts and decisions to other judicial officers. It is sad because had the husband carried through with the sale of the Suburb E property with the Phongs, this litigation would never have occurred. It is sad because had the husband satisfied the debt owed to the Phongs, the winding up of I Pty Ltd and receivership of the JJ Trust would never have occurred. It is sad because at the end of the day, no one has benefited from this litigation.
The Court has a duty, in exercising jurisdiction under Part VIII of the Act, to finally determine the financial relationships between the parties “as far as practicable”.[306] I have carried out this duty, however, given the history of this matter and the conduct of the husband it may not be the finale.
[306] Family Law Act 1975 (Cth) s 81.
I make the declarations and orders as set out in the forefront of these Reasons for Judgment.
I certify that the preceding seven hundred and twenty-one (721) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 11 August 2023
SCHEDULE OF PARTIES
SYC 59 of 2010 Respondents
Fourth Respondent:
CC PTY LTD
Fifth Respondent:
MR K SCOTT AS LITIGATION GUARDIAN FOR MS SCOTT
Sixth Respondent:
AQ REAL ESTATE AND AR PTY LTD
Seventh Respondent:
MR PHONG AND MS PHONG
SCHEDULE A – PUBLISHED JUDGMENTS INVOLVING THE HUSBAND, HIS PRIVIES, AND HIS ALTER EGOS
Judgments published by the Family Court of Australia and at first instance in the Federal Circuit and Family Court of Australia (Division 1)
15 January 2018 – Munayallan & Scott [2018] FamCA 115 – Loughnan J
18 December 2018 – Munayallan & Scott and Ors [2018] FamCA 1153 – Loughnan J
2 August 2019 – Munayallan & Scott [2019] FamCA 549 – Berman J
15 August 2019 – Munayallan & Scott (No 2) [2019] FamCA 676 – Berman J
10 July 2020 – Munayallan & Scott [2020] FamCA 1141 – Henderson J
26 February 2021 – Scott & Munayallan [2021] FamCA 79 – Henderson J
21 April 2021 – Scott & Munayallan (No 2) [2021] FamCA 184 – Henderson J
13 August 2021 – Scott & Munayallan (No 3) [2021] FamCA 617 – Henderson J
29 September 2021 – Scott & Munayallan (No 2) [2021] FedCFamC1F 112 – Henderson J
6 October 2021 – Scott & Munayallan [2021] FedCFamC1F 104 – Henderson J
8 October 2021 – Scott & Munayallan (No 3) [2021] FedCFamC1F 121 – Henderson J
10 December 2021 – Munayallan & Scott (No 4) [2021] FedCFamC1F 277 – Christie J
21 December 2021 – Munayallan & Scott (No 5) [2021] FedCFamC1F 284 – Henderson J
12 April 2022 – Munayallan & Scott (No 6) [2022] FedCFamC1F 345 – Henderson J
17 November 2022 – Scott & Munayallan (No 7) [2022] FedCFamC1F 944 – Henderson J
20 February 2023 – Scott & Munayallan (No 8) [2023] FedCFamC1F 105 – Henderson J
20 February 2023 – Scott & Munayallan (No 9) [2023] FedCFamC1F 106 – Henderson J
20 July 2023 – Scott & Munayallan (No 10) [2023] FedCFamC1F 600 – Henderson J
20 July 2023 – Scott & Munayallan (No 11) [2023] FedCFamC1F 601 – Henderson J
Judgments published by the Full Court of the Family Court of Australia and the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1)
16 December 2019 – Scott & Munayallan [2019] FamCAFC 246 – Aldridge J
16 December 2019 – I Pty Ltd & Phong [2019] FamCAFC 247 – Aldridge J
25 June 2020 – Phong & Scott [2020] FamCAFC 156 – Aldridge J
23 July 2021 – Scott & Munayallan [2021] FamCAFC 133 – Aldridge J
1 April 2022 – Scott & Munayallan [2022] FedCFamC1A 44 – Austin, Tree and Schonell JJ
Judgments published by the Federal Court of Australia
Omitted to comply with s 121 of the Family Law Act 1975 (Cth).
Judgments published by the Supreme Court of New South Wales
Omitted to comply with s 121 of the Family Law Act 1975 (Cth).
Judgments published by the New South Wales Court of Appeal
Omitted to comply with s 121 of the Family Law Act 1975 (Cth).
Judgments published by other courts
25 February 2021 – Scott v Munayallan [2021] HCASL 30 – Bell and Gageler JJ (High Court of Australia)
Omitted to comply with s 121 of the Family Law Act 1975 (Cth).
SCHEDULE B – THE FAMILY LAW PROCEEDINGS PRODCEDURAL DETAILS
Applications filed by the husband and his privies since 30 April 2014
Application in a Case filed 26 July 2018:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 3 August 2018:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 7 August 2018:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Expedition, machinery provisions for dealing with Suburb E property proceeds, pay out “equity holders” by preference list, join I Pty Ltd, P Pty Ltd, Mr A Scott, Ms Scott, and the Phongs to the proceedings
·Amended on 24 August 2018: added order for transfer of Suburb E property be set aside, and in the alternate, the machinery provisions for dealing with the Suburb E property proceeds
·Further Amended on 14 May 2019: orders as above, and for the Phong proceedings and the Supreme Court of New South Wales proceedings … be transferred to the Family Court of Australia, and interest accrue on the “principle amount” owning to I Pty Ltd
·Outcome: Dismissed by Berman J on 18 June 2019
Application in a Case filed 31 August 2018:
·Filing party: Ms Scott
·Outcome: Voided
Application in a Case filed 31 August 2018:
·Filing party: Ms Scott, noting the application is filed on behalf of Mr Matten
·Applicants: I Pty Ltd and Ms Scott
·Orders sought: A declaration that I Pty Ltd had “equity and an charge interest” in the Suburb E property after September 2005, which operates in priority to other claims, the Phongs hold the Suburb E property on trust for I Pty Ltd, the transfer of the Suburb E property be set aside, other orders relating to the Suburb E property, or in the alternate, I Pty Ltd receive the Funds, which such proceeds are subject of “equity and charge” for I Pty Ltd, which operates in priority to other claims
·Outcome: Dismissed by Berman J on 18 June 2019
Application in a Case filed 28 August 2019:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 30 August 2019:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Stay of orders of Berman J made on 15 August 2019
·Outcome: Dismissed by Berman J on 17 October 2019
Application in a Case filed 31 August 2019:
·Filing party: Ms Scott, noting the application is filed on behalf of Mr Matten
·Applicant: I Pty Ltd
·Orders sought: Stay of orders of Berman J made on 2 August 2019, recusal of Berman J, costs of hearing on 17–18 June 2019 be paid by the Phongs
·Outcome: Dismissed by Henderson J on 2 April 2020
Application in a Case filed 17 September 2019:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Urgent listing, short service, “apply” the Contravention Application filed 17 September 2019, orders to spend time with the children, vary orders of Berman J made on 15 August 2019, recusal of Berman J
·Outcome: Dismissed by a Senior Registrar on 13 November 2019
Contravention Application filed 17 September 2019:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Alleged contraventions: Order 3(a) of orders made by Berman J on 15 August 2019, occurring on 11–12 September 2019 and 28–29 September 2019
·Outcome: Dismissed by a Senior Registrar on 13 November 2019
Application in a Case filed 20 September 2019:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review of orders of a Senior Registrar made on 18 September 2019 (refusal of urgent listing), to grant orders from Application in a Case filed 17 September 2019
·Outcome: Granted by Loughnan J on 27 September 2019
Application in a Case filed 18 December 2019:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Urgent listing, short service, “apply” Contravention Application filed 18 December 2019, other directions from orders of Berman J made on 15 August 2019
·Outcome: Joined and converted into Contravention Application filed 18 December 2019, dismissed by Christie J on 10 December 2021
Application in a Case filed 6 January 2020:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 8 January 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Urgent listing, matter be heard ex parte, recovery order, children live with the father until further orders, injunctions from taking the children outside of Australia
·Outcome: Dismissed by a Senior Registrar on 15 January 2020
Application in a Case filed 4 February 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review of orders of a Registrar made on 30 June 2020, children live with father until further orders
·Outcome: Dismissed by Henderson J on 2 April 2020
Notice Disputing Itemised Costs Account filed 3 March 2020:
·Filing party: Mr Scott
·Disputors: Mr Matten on behalf of I Pty Ltd and Mr Scott
·Notice disputing: Costs sought by the Phongs to be assessed as ordered by Berman J on 23 October 2019
·Outcome: Orders made by a Registrar on 3 September 2020 assessing the Phongs costs in the sum of $61,816
Application in a Case filed 10 July 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Urgent listing, dispense with service, stay of orders of Henderson J made on 9 July 2020, orders in relation to whom the children live with
·Outcome: Stay dismissed and injunction ordered on mother by Henderson J on 10 July 2020
Application in a Case filed 25 August 2020:
·Filing party: Ms Scott
·Applicants: Ms Scott, Mr Matten and I Pty Ltd
·Orders sought: Stay of orders made by Berman J on 2 August 2019, recusal of Berman J, costs of hearing on 17–18 June 2019 be paid by Phongs (see Application in a Case filed 31 August 2019)
·Outcome: Dismissed by Henderson J on 26 January 2021
Application in a Case filed 28 August 2020:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 11 September 2020:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 16 September 2020:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 20 September 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review and stay orders of a Registrar made on 3 September 2020, to be dealt with ex parte
·Outcome: Review granted by Henderson J on 19 February 2021
Application in a Case filed 21 September 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Same orders as sought in the Application in a Case filed by I Pty Ltd on 31 August 2019, and vary the orders of Berman J made on 23 October 2019
·Outcome: Dismissed by Henderson J on 26 February 2021
Application in a Case filed 11 November 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: See Application in a Case filed 28 August 2020
·Outcome: Dismissed by a Senior Registrar on 12 November 2020
Application in a Case filed 24 April 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review and discharge some orders of a Senior Registrar made on 30 March 2021, urgent listing, reinstate injunction regarding wife’s former partner, transfer of proceedings
·Amended on 12 June 2021: transfer of proceedings order requests transfer be to the Parramatta Registry
·Outcome: Transfer application dismissed by Henderson J on 26 July 2021
Application in a Case filed 16 June 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Recusal of Henderson J, discharge of some orders of Henderson J made on 9 July 2020, 10 July 2020 and 17 February 2021, vary some orders of 17 February 2021, transfer of proceedings to the Parramatta Registry
·Outcome: Transfer application dismissed by Henderson J on 26 July 2021, recusal application dismissed by Henderson J on 13 August 2021
Application in a Case filed 28 July 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Recusal of Henderson J, discharge of some orders of Henderson J made on 9 July 2020 and 17 February 2021, transfer to the Federal Circuit Court of Australia, Sydney Registry
·Amended on 2 August 2021: orders as above, stay of proceedings until finalisation of proceedings in the Supreme Court of New South Wales and the New South Wales Court of Appeal, costs certificate for the wife
·Outcome: Recusal application and stay application dismissed by Henderson J on 13 August 2021
Application in a Case filed 29 July 2021:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 1 August 2021:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 4 August 2021:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Case filed 4 August 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review and stay orders of a Registrar made on 23 July 2021, suppression of information contained in material produced under subpoena
·Outcome: Not yet finalised
Application in a Proceeding filed 20 September 2021:
·Filing party: Mr Scott
·Outcome: Voided
Review Application filed 20 September 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review orders of a Senior Judicial Registrar made on 20 September 2021, suppression of information contained in material produced under subpoena, application to be dealt with by a Judge
·Outcome: Dismissed by Henderson J on 27 September 2021
Review Application filed 23 September 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Review orders of a Senior Judicial Registrar made on 20 September 2021 and 22 September 2021, suppression of information contained in material produced under subpoena, application to be dealt with by a Judge
·Outcome: Dismissed by Henderson J on 27 September 2021
Application in a Proceeding filed 24 September 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Stay of some orders of Henderson J made on 13 August 2021
·Outcome: Dismissed by Henderson J on 8 October 2021
Application in a Proceeding filed 18 December 2021:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Proceeding filed 21 December 2021:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Proceeding filed 21 December 2021:
·Filing party: Mr Scott
·Outcome: Voided
Application in a Proceeding filed 27 April 2022:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Leave to institute proceedings, set aside orders of Henderson J made on 21 December 2021, some orders of Henderson J made on 29 September 2021 6 October 2021, application not to come before Henderson J, reinstate injunction against wife’s former partner, orders to spend time with the children
·Outcome: Leave refused by Altobelli J on 27 April 2022
Application in a Proceeding filed 26 October 2022:
·Filing party: CC Pty Ltd
·Applicants: Mr Hatem and I Pty Ltd
·Orders sought: Winding up of I Pty Ltd be terminate, control of I Pty Ltd revert back to the director, the Funds be placed in the trust account of the solicitor for CC Pty Ltd, a creditors meeting occur and a Deed of Company Arrangement be signed, appointment of liquidator of I Pty Ltd be terminated, declaration that CC Pty Ltd is the trustee for I Pty Ltd after 30 March 2021, which includes the Funds, the Suburb MM property, the CBA funds and the ASX shares
·Outcome: Not yet finalised
Application in a Proceeding filed 31 October 2022:
·Filing party: I Pty Ltd, noting the application is filed on behalf of Mr Matten
·Outcome: Voided
Application in a Proceeding filed 17 November 2022:
·Filing party: I Pty Ltd, noting the application is filed on behalf of Mr Matten
·Applicants: CC Pty Ltd and Ms ScottScott
·Orders sought: Set aside some orders of Henderson J made on 29 September 2021, removal of parties listed in the Application in a Proceedings
·Outcome: Not yet finalised
Application in a Proceeding filed 30 December 2022:
·Filing party: Ms Scott, noting the application is filed on behalf of Mr Scott
·Outcome: Voided
Application in a Proceeding filed 10 January 2023:
·Filing party: Ms Scott
·Outcome: Voided
Application in a Proceeding filed 20 January 2023:
·Filing party: Ms Scott
·Applicants: Ms Scott and Mr Scott
·Orders sought: Mr AS and AR Pty Ltd pay the husband $2.3 million in damages with interest, the Phongs pay the husband $700,000 in damages with interest, any costs orders made against the husband in the Supreme Court of New South Wales proceedings … be set aside and costs paid back
·Outcome: Dismissed by Henderson J on 20 February 2023 and costs to be paid to Mr AS and AR Pty Ltd in the sum of $7,000.00 within 28 days
Application in a Proceeding filed 19 February 2023:
·Filing party: I Pty Ltd, noting the application is filed on behalf of Mr Matten
·Applicants: CC Pty Ltd and “creditors” (which include Ms Scott and Mr Scott)
·Orders sought: Stay of proceedings pending New South Wales Court of Appeal proceedings …, stay of orders of Henderson J made on 12 April 2022
·Outcome: Dismissed by Henderson J on 20 February 2023
Appeals filed by the husband and his privies since 30 April 2014
Notice of Appeal filed 30 August 2019:
·Filing party: Mr Scott
·Appellant: Mr Scott
·Orders sought: Set aside orders of Berman J made on 15 August 2019
·Outcome: Appeal deemed abandoned
Notice of Appeal filed 30 August 2019:
·Filing party: I Pty Ltd
·Appellants: I Pty Ltd, Ms Scott and Mr Matten
·Orders sought: Set aside orders of Berman J made on 2 August 2019
·Outcome: Voided (non-payment of filing fees)
Application in an Appeal filed 9 October 2019:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Reinstate Notice of Appeal filed 30 August 2019
·Outcome: Dismissed by Aldridge J on 16 December 2019 with costs in the sum of $3,200
Application in an Appeal filed 21 October 2019:
·Filing party: I Pty Ltd
·Applicant: Ms Scott and I Pty Ltd
·Orders sought: Reinstate Notice of Appeal filed 30 August 2019
·Outcome: Dismissed by Aldridge J on 16 December 2019 with costs in the sum of $3,300
Notice of Appeal filed 19 November 2019:
·Filing party: Mr Scott
·Appellant: Mr Scott
·Orders sought: Set aside orders of Berman J made on 23 October 2019
·Outcome: Appeal deemed abandoned
Application in an Appeal filed 17 April 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Reinstate Notice of Appeal filed 19 November 2019
·Outcome: Notice of Discontinuance filed
Application in an Appeal filed 23 June 2020:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Adjournment of appeal hearing for costs sought by the Phongs
·Outcome: Dismissed by Aldridge J on 25 June 2020 with costs in the sum of $4,700
Application in an Appeal filed 25 January 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Extension of time to file a Notice of Appeal for the orders of Henderson J made on 9 July 2020
·Outcome: Notice of Discontinuance filed
Application in an Appeal filed 25 January 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Extension of time to file a Notice of Appeal for the orders of Henderson J made on 10 July 2020
·Outcome: Notice of Discontinuance filed
Notice of Appeal filed 25 March 2021:
·Filing party: Mr Scott
·Appellant: Mr Scott
·Orders sought: Set aside Order 2 of the orders of Henderson J made on 26 February 2021
·Outcome: Appeal deemed abandoned
Application in an Appeal filed 16 June 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Extension of time to file a Notice of Appeal for the orders of Henderson J made on 10 July 2020
·Outcome: Heard with the other Application in an Appeal filed 16 June 2021, dismissed by Aldridge J on 23 July 2021 with costs in the sum of $1,022.67
Application in an Appeal filed 16 June 2021:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Extension of time to file a Notice of Appeal for the orders of Henderson J made on 9 July 2020
·Outcome: Heard with the other Application in an Appeal filed 16 June 2021, dismissed by Aldridge J on 23 July 2021 with costs in the sum of $1,022.67
Notice of Appeal filed 8 September 2021:
·Filing party: Mr Scott
·Appellant: Mr Scott
·Orders sought: Set aside orders of Henderson J made on 13 August 2021
·Outcome: Leave to appeal refused by Austin, Tree and Schonell JJ on 1 April 2022 with costs in the sum of $8,946.44
Notice of Appeal filed 26 October 2021:
·Filing party: Mr Scott
·Appellant: Mr Scott
·Orders sought: Set aside Orders 3, 13, 14, 16, 18, 19 of Henderson J made on 29 September 2021
·Outcome: Appeal deemed abandoned
Notice of Appeal filed 3 November 2021:
·Filing party: Mr Scott
·Appellant: Mr Scott
·Orders sought: Set aside Orders 1 and 3 of Henderson J made on 6 October 2021
·Outcome: Appeal deemed abandoned
Application in an Appeal filed 7 February 2022:
·Filing party: Mr Scott
·Applicant: Mr Scott
·Orders sought: Extension of time to file a Notice of Appeal for the orders of Henderson J made on 21 December 2021
·Outcome: Dismissed by an Appeals Registrar on 9 March 2022 with costs in the sum of $1,200
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