Purcell v Guo & Ors

The plaintiff, Ms Purcell, commenced these proceedings by a statement of claim filed in the Common Law Division of this Court. The current iteration of her claim is contained in the amended statement of claim filed on 19 August 2025 which is found at Tab D of the Court Book prepared for today's hearing.

The subject matter of this dispute is principally a home unit located at Neutral Bay (the property) which has been sold to the first defendant, Mr Guo. It is now accepted that Mr Guo is the registered proprietor of the property or, at least, Ms Purcell has admitted that his name appears on title as the registered proprietor.

The second defendant, Mr Zheng, is the real estate agent who, on instructions from Ms Purcell’s trustee in bankruptcy, marketed the property arranging for it to be sold by auction. Mr Guo was the successful highest bidder.

The third defendant, Mr Joshua Taylor, is the liquidator duly appointed by this Court of two companies in which Ms Purcell had an interest, but principally Jaridel Pty Limited (Jaridel) of which Ms Purcell has, at various times, been an officer and shareholder. Jaridel was or is the trustee of the Purcell Family Trust to which I will make further reference in the course of these reasons. Jaridel was also the registered proprietor of the property prior to the sale to Mr Guo.

The fourth defendant is a Mr Gavin who, at some time, was the occupant of another home unit in the same strata complex. Jaridel was also the registered proprietor of that unit and Mr Gavin, a tenant. I am told from the bar table that Mr Gavin has been served with the statement of claim, and Ms Purcell also told me from the bar table that he had vacated the premises. I rather thought she was implying that she did not know his current whereabouts. It seems clear that he has had no notice of these applications or of the hearing today. For abundant caution, I asked the court officer, in accordance with longstanding practice, to have Mr Gavin's name called outside the court three times, but there was no appearance in response. I determined to proceed with the applications which I will shortly come to in his absence because the applications in no way adversely affect his interests, such as they may be, in these proceedings.

The three applications before me today are as follows:

The third defendant is represented by Mr Gibson, solicitor, who appeared on the hearing before me, also seeks a gross sum costs order if he is successful on his application. I will defer consideration of that prayer for relief until the motions seeking dismissal and strike-out have been determined.

It is very important to put into context the nature of the dispute that Ms Purcell seeks to agitate by reference to the affidavit of Brett Richard Geoffrey Harrison sworn on 1 October 2025, contained at Tab K of the Court Book (“CB”), and the documents exhibited to his affidavit (referred to as Exhibit BH-1) at Tab L. From Ms Purcell's position, as she has maintained, the facts deposed to by Mr Harrison are highly controversial.

Having said and acknowledged that, upon consideration of Mr Harrison’s evidence and Mr Gibson’s submissions in respect of it (and from Mr Guo briefly), I am satisfied on the balance of probabilities that the facts deposed to by Mr Harrison are true. His affidavit was read without objection, and he was not cross-examined as to its contents, although, as I have said, Ms Purcell made clear that she disputed the accuracy of the facts to which he deposed. Having regard to the consideration that the principle and important facts to which he deposes are supported by the documents contained in Exhibit BH-1, the authenticity of which has not been called into question, I am comfortably satisfied, that his evidence is reliable and, as I have said, the facts to which he deposes are true. As will be abundantly clear from my recitation of the factual findings which I am making, they effectively provide a complete, reliable and satisfactory answer to the claim made by Ms Purcell in her amended statement of claim.

There cannot be any doubt whatsoever that the pleading contained in the amended statement of claim falls a very long way short of the minimum requirements of Pt 14 of the UCPR. And with no disrespect, notwithstanding the consideration that Ms Purcell has apparently had the benefit of a legal education, the essence of the case which she wishes to advance is one of fraudulent conspiracy or collusion involving: Mr Harrison, who is not named as a defendant to these proceedings; Mr Guo, the purchaser of the property at auction; Mr Zheng, the real estate agent engaged to market the property; Mr Taylor, who is the court-appointed liquidator of the former registered proprietor; and possibly Mr Gavin. Although no more than suspicion is put forward as the basis for Mr Gavin being sued in these proceedings. In essence, Ms Purcell's case is that by that unlawful conspiracy, she was deprived of her beneficial interest in the property, and it was sold at auction to Mr Guo. She wishes to taint Mr Guo with knowledge of the conspiracy and participation in it, apparently.

Additionally, before me today, and as she has made clear in other documents, she states that wishes to join the Commonwealth Bank of Australia, the current mortgagee of the property, to these proceedings alleging that it too is a party to this conspiracy by which she was deprived of her property.

I repeat that on any basis, and it is unnecessary to set the pleading out in full because its shortcomings are so obvious, the pleading advanced by Ms Purcell is entirely inadequate to raise such a serious allegation. For that reason alone, I am of the view that the amended statement of claim must be struck out as being defective and non-compliant with the UCPR. It seems to me that, even though it is only a short document, it fails to plead a single material fact. Rather, it consists of no more than a series of conclusory statements putting forward the case which I have referred to and summarised.

I think that it should also be said that the document is one which very obviously meets the technical definition of "scandalous" for the purpose of the rules of pleading. It is scandalous for a number of reasons, including, in my view, the fact that there is no discernible basis in fact for the case that she wishes to propound – a topic I will come back to. But it is also scandalous because gratuitously, and without basis, as Mr Guo very properly pointed out to me in his submission, Ms Purcell allows herself to indulge in racist slur of Mr Guo and allege against him matters entirely irrelevant, of no possible relevance whatsoever, to the case which she wishes to advance; especially by suggesting that Mr Guo is involved in unlawful activity at the behest of, or in collaboration with, the Communist Party of China. The pleading is a complete abuse of process in my opinion as it has sought to use the processes of this Court to propound a most egregious defamation against Mr Guo, and those matters cannot be permitted to stand.

Mr Guo, without any doubt, advanced his short submissions about these matters with a great deal of dignity in the circumstances, a matter which should be recorded in this judgment. There is no call whatsoever for those scandalous averments to be advanced in any court document, and certainly not as a sideswipe in a document by which an entirely unrelated case was inadequately sought to be advanced. For those reasons, I will strike out the statement of claim.

I turn then to the question of whether the proceedings should be dismissed.

Naturally, when a statement of claim is struck out for non-compliance with the rules relating to pleadings, the question which arises is whether the plaintiff should be given an opportunity to replead the case properly. This is not such a case because I am satisfied that, principally from the evidence of Mr Harrison, there is simply no basis in fact upon which the case, which I have summarised, could possibly, in good conscience, be propounded in this Court.

Mr Harrison is Ms Purcell's trustee in bankruptcy. She remains an undischarged bankrupt. She disputes that. As the point has been made, and as I have said in argument, any right to advance litigation in respect of any right, title or interest that Ms Purcell might once have had in the property is vested in her trustee in bankruptcy, Mr Harrison, upon the making of the sequestration order by force of the provisions of ss 58(1) and 116(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act): The title that Ms Purcell once had, which was an equitable interest in the land, was vested in Mr Harrison upon the making of the bankruptcy order.

The order in bankruptcy was originally made by Registrar Morgan of the Federal Circuit and Family Court of Australia (Division 2)(“FCFCA”), a court of bankruptcy for the purpose of the Bankruptcy Act, on 4 April 2024. The date of the act of bankruptcy founding the cause of action was 26 September 2023, and the court noted Mr Harrison's consent to act as trustee of the bankrupt estate under s 156A of the Bankruptcy Act. I have before me, as p 1 of Exhibit BH-1, a document which contains a seal of the Federal Circuit and Family Court of Australia authenticating those orders.

Page 3 of Exhibit BH-1 is the certificate of appointment of Mr Harrison as trustee, pursuant to the sequestration order in respect of the estate of Ms Purcell. That appointment as sole trustee appears over the signature of the official receiver, of which I take judicial notice.

I note, in passing, the contents of p 5 of Exhibit BH, being a letter from Ms Purcell of 26 May 2025 disputing the validity of the sequestration order. She challenged that order, by way of review, in the FCFCA. The review was heard and considered by his Honour Judge Street SC on 6 December 2024. Judge Street affirmed the sequestration and costs orders made by the Registrar and noted the appointment of Mr Harrison as trustee.

There is no doubt that Ms Purcell, and I repeat, had an interest in the property, the subject of these proceedings. It formed part of the property, the subject of a family deed creating the Purcell Family Trust, appointing Jaridel as trustee and conferring powers of distribution on Jaridel in that capacity. That deed is at Exhibit BH-1, commencing at p 8. According to its terms, the deed was executed on 28 May 1981.

On 4 November 2010, pursuant to the powers conferred upon it under the deed, the directors of Jaridel, by resolution, distributed certain real property, being various units in the strata complex, including the property. It is quite clear from its terms that by that resolution Ms Purcell, inter alia, acquired her interest in the property; although it is also apparent from the evidence before me, particularly the evidence of Mr Harrison, that she never called for a transfer of the legal title to her at any time prior to the making of the sequestration order.

It is also important to point out that orders for the winding-up of Jaridel were made in this Court by my colleague Black J, and Mr Taylor, the third defendant, was duly appointed liquidator. Although Mr Taylor’s due appointment is likewise a matter that Ms Purcell contests on spurious legal grounds, of a type often associated with the sovereign citizen movement. I am satisfied, from the material before me, that Mr Taylor was lawfully appointed by order of this Court. From the unreported judgment of Justice Black of 5 February 2024, forming part of Exhibit JDM-1 (at CBTab J), it is clear that the order for winding-up was made prior to the commencement of the 2024 law term. From the ASIC search also forming part of Exhibit JDM-1, it appears that the application for winding-up was filed on or about 6 October 2023.

I return to the evidence of Mr Harrison. After some consideration of the appropriate means of giving effect to the provisions of ss 58 and 116 of the Bankruptcy Act vesting the title that Ms Purcell otherwise formerly had as in equity under the trust while Jaridel was in liquidation, Mr Taylor as liquidator and Mr Harrison, entered into a Deed of Agreement. Under that Deed, subject to adjustments in relation to costs and the like, the property was to be put up for sale by auction with Mr Zheng as the agent, and the net proceeds of sale were to be payable to Mr Harrison in his capacity as trustee. This procedure, which was apparently acceptable to the Commissioner for Stamp Duties, was determined after advice was taken from the Commissioner that a direct transfer under the family trust from Jaridel to the trustee in bankruptcy, prior to marketing the property, would attract ad valorem stamp duty. It was the understanding of Mr Harrison, and Mr Taylor for that matter, that if the sale to Mr Guo occurred as a sale by the direction of Mr Harrison, in whom the beneficial interest in the land was vested by force of law, there would be no stamp duty payable by the trustee in bankruptcy. Although obviously in due course the successful purchaser would be liable for stamp duty in the usual way.

Mr Zheng was appointed on 11 April 2025 and the property was duly marketed for sale by auction. The auction was undertaken on 10 May 2025 and, as I have already said, on the fall of the auctioneer's hammer, a contract of sale between Mr Guo and Jaridel, at the direction of the trustee, came into effect. All of this, in my judgment, was entirely lawful and conformed with regular procedure for the trustee in bankruptcy to realise the value of the assets of Ms Purcell vested in him, as I have said, by the force of federal law. That, in my opinion, is sufficient to demonstrate that the idea there was some conspiracy and that Ms Purcell was unlawfully deprived of the property in the home unit has no possible basis in fact that could be the subject of a repleading. It seems to me that each of the defendants are entitled to an order for summary dismissal.

I have borne in mind that the court is always slow to make such an order and to deprive a person in Ms Purcell's position of the ordinary right of a citizen to proceed to trial in the normal way and to have his or her rights determined at a full hearing. It is sufficient, as Black J did in his decision of February 2024, to refer to Agar v Hyde [2000] 201 CLR 552; [2000] HCA 41 at [57] where the plurality of the High Court observed:

I am well satisfied, to the requisite high degree of certainty, for the reasons that I have given, that the ultimate outcome of these proceedings, if they were allowed to proceed to trial in the ordinary way, is that Ms Purcell would lose and each of the defendants would be entitled to judgment in his favour. In those circumstances I am satisfied that, as Mr Gibson has argued, that the case is an appropriate one for making an order of summary dismissal under rule 13.4 of the Uniform Civil Procedure Rules.

I am also satisfied, for what it is worth, that given the provisions of s 116(1) s 116(b) of the Bankruptcy Act, Ms Purcell had no title to bring these proceedings. Section 116(1)(b) is in the following terms:

That provision, of course, follows from the provisions of s 58(1) of the Bankruptcy Act by which a bankrupt’s property is vested in the trustee, and it follows that the proceedings, at the suit of Ms Purcell in respect of the property, were entirely incompetent and, for that additional reason, had I not been persuaded in relation to the other matters that I have determined, it would have been inevitable that I should order a permanent stay of the proceedings.

I wish to make clear that the orders I will go on to pronounce in respect of the principal dispute today amounts to success on each of the three motions identified at the start of my reasons, but the same orders are effective to dispose of each of those motions without me pronouncing the orders separately in respect of each motion. To the extent to which it may matter, that will be my intent in the formulation of orders I will go on to adopt at the conclusion of this judgment. A statement of claim can only be struck out once and proceedings can only be dismissed once.

Having decided the issues pertaining to the principal dispute, Mr Gibson has applied for a gross sum costs order, and he has dealt with this matter at pars [13]-[17] of his, may I say, helpful written submissions.

The Court is empowered, under the provisions of s 98 of the Civil Procedure Act 2005 (NSW), to make gross sum costs orders in appropriate circumstances to avoid the necessity for engagement with the assessment process, which is often time-consuming and costly. As Mr Gibson points out, by the familiar authorities which he has cited, in Harrison v Schipp (2002) 54 NSWLR 738 at [22], Giles JA indicated the restraint which should be brought to bear in exercising the statutory power. His Honour was of the view that "[it] should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available" (at [22]). I observe that judges are not cost assessors and often are remote in time from legal practice. They will not always be in a good position to make their own assessment of costs.

As Mr Gibson points out, in Hamod v New South Wales [2011] NSWCA 375 at [183] and [820], Beazley JA (as Her Excellency then was) indicated the relevant factors included the desirability of avoiding the expense, delay and aggravation likely to be involved in contested cost assessments; and in Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA at [66], Emmett AJA held that a gross sum costs order was appropriate because "nothing will be achieved by the assessment of costs other than possible delay and the incurring of further costs".

It is obvious that Ms Purcell feels strongly about the matters the subject of these proceedings. It seems very likely to me that, were I to make the usual order for costs on the ordinary basis, an assessment would be required and that would involve unnecessary delay and expense in the circumstances. Those circumstances include the consideration that, in my judgment, the costs claimed in respect of the proceedings are relatively modest and that the costs of preparing a bill for assessment and of the assessment process would, to my mind, be disproportionate. It is also the case that making an order for lump sum costs will bring finality to these proceedings at an appropriate, early time.

Before I turn to the matter of assessment of those costs, I will make an order for costs in favour of the first and second defendants, they are both self-represented. Their entitlement to costs will be strictly limited but they should have an order, to the extent to which they may have an entitlement.

Turning then to the question of the amount of costs, I have the benefit of Mr Maloney's affidavit affirmed on 29 September 2025, where he has set out the rates for legal work in his practice, commencing at par [45]. I am not so remote from legal practice or from matters of legal costs to be unable to say that the rates quoted for himself and Mr Gibson are entirely reasonable. I have had regard to the invoice issued to his client, annexed to the affidavit at p 92 of the exhibit, and I am satisfied that the time and effort put into defending the proceedings and bringing the application for summary dismissal are both reasonable and appropriate. The total time involved, up until final preparation for hearing, appears to have been ten hours, which falls a long way short of any suggestion of over-servicing or over-working the case. I regard that time and effort as also appropriate. I accept that the amount of the invoice of $5,654 is also appropriate.

Looking at the additional estimated claim for legal costs in relation to preparation for hearing, including in connection with the preparation of written submissions, an amount of $3,130 is claimed. From his affidavit, Mr Maloney expected to spend one hour of his own time, as instructor, as it were, for preparation for the hearing, and that Mr Gibson would be engaged for four and a half hours, including the two-hour estimate set aside for the actual conduct of the hearing. The written submissions are included in that estimate, and they are appropriately succinct but are also clearly the product of a careful review of the pertinent material and the relevant legal principles. I am satisfied that that estimate, as Mr Gibson said, is at the modest end of the range.

The total then claimed is $8,784 plus disbursements in the sum of $766, being the filing fee on the motion. No other disbursements are claimed, although doubtless some could have been conjured up.

Mr Maloney accepts that it is the usual practice of the Court to discount the fees due on a solicitor and client basis to have regard to, first, the usual discount that will reflect costs on the ordinary basis and, secondly, the advantages of obtaining an order in a certain sum now, rather than at some future date, after the assessment process has been undertaken.

Mr Maloney says the discount is effectively 25 to 30 per cent. I accept that is a reasonable estimate of the discount. Sometimes the Court should be parsimonious, and I am going to allow the lesser of the two figures of $6,148.

I make the following orders, as I have detailed above, with respect to my findings on the principal dispute and the issue of the gross sum costs order: