Christian de Robillard v Jeffrey Allen Emery

1. [1]

   SWEENEY J: By Notices of Motion filed 3 November 2025 and 30 October 2025, the First Defendant, Jeffrey Emery, and the Fourth Defendant, Hicksons Hunt & Hunt, each seek orders:

2. [2]

   The motions were heard together. It had been previously ordered that the evidence in the hearing of one motion was to be evidence in the other.

3. [3]

   The background to these proceedings is that in May 2025 proceedings were commenced in the New South Wales Civil and Administrative Tribunal (“NCAT”) on behalf J Emery Investments Pty Ltd, the Registered Proprietor of a unit at Maroubra, against the tenant of the property, Daniel Hawken. Mr Hawken and Mr de Robillard, a former barrister, applied to the Tribunal to permit Mr de Robillard to represent Mr Hawken in the Tribunal proceedings. The Tribunal refused that application and made orders on 1 July 2025 that each party could be represented by an Australian Legal Practitioner. Mr Andrew Rowe, a partner of then law firm Hunt & Hunt, represented J Emery Investments Pty Ltd, the applicant in the Tribunal proceedings.

4. [4]

   Mr Hawken has appealed against that decision to the NCAT Internal Appeal Panel. That appeal is listed for hearing on 17 December 2025.

5. [5]

   The substantive proceedings in the Tribunal were heard on 12 September 2025. Mr Hawken did not appear and Mr de Robillard applied to represent him in the hearing, which the Tribunal refused. After the hearing and while the Tribunal’s decision was reserved, Mr Hawken sought to reopen the proceedings, which the Tribunal refused in its decision given on 23 October 2025. On that date the Tribunal made orders, including an order under the Residential Tenancies Act 2010 (NSW) (“Residential Tenancies Act”), terminating the residential tenancy agreement and ordering Mr Hawken to give vacant possession to the landlord.

6. [6]

   Mr Hawken disputes that the Tribunal had or has jurisdiction to hear the tenancy proceedings, on the ground that the deed of lease was not a lease which came within the Residential Tenancies Act. The Tribunal found that the deed of lease met the requirements of s 13 of the Residential Tenancies Act and that the Tribunal had jurisdiction to determine the proceedings. Mr Hawken has appealed against that decision to the NCAT Internal Appeal Panel. That appeal is still before the Tribunal.

7. [7]

   There have been interlocutory applications in those proceedings, including several applications for stays, which I have not included in the summary of the procedural history.

8. [8]

   The Plaintiffs, Mr de Robillard and Mr Hawken, commenced proceedings in this Court on 11 September 2025, that is, the day before the hearing in the Tribunal of the tenancy matter.

9. [9]

   An Amended Summons was filed on 22 October 2025. It seeks orders quashing and setting aside the Tribunal’s decisions, restraining the Tribunal, and declarations about the Tribunal and particular Tribunal members.

10. [10]

    In respect of the applicants in these motions, the orders sought in the Amended Summons are:

Affidavits relied on

1. [11]

   The Defendants relied on affidavits of Andrew Fraser Rowe of 30 October 2025, 18 November 2025, and 24 November 2025, Jodie Emery of 30 October 2025, Jeffrey Allen Emery of 30 October 2025 and 5 November 2025 and George Rigon of 3 November 2025. They also relied on a title search in relation to the subject property at Maroubra showing the Registered Proprietor as J Emery Investments Pty Ltd.

2. [12]

   Mr Hawken sought to rely on his affidavit of 11 September 2025. The Defendants objected to most of the affidavit but agreed that I could give it what weight was appropriate in dealing with the applications.

The applicable rules

1. [13]

   Rule 13.4 of the UCPR states:

2. [14]

   Rule 14.28 provides:

The First Defendant’s submissions

1. [15]

   Mr Gruzman of counsel for the First Defendant submitted that the First Defendant was not a party to the proceedings in the Tribunal. The applicant in the Tribunal proceedings was J Emery Investments Pty Ltd, the registered owner of the property. Mr Emery and his wife are the directors of J Emery Investments Pty Ltd. Counsel submitted there is no cause of action disclosed against the First Defendant. He submitted that the relief claimed against Mr Emery in the Amended Summons would be ineffective as he is not the sole director of the company which is the Registered Proprietor of the property, or the guiding mind and will of the company. He and his wife are directors and therefore the relief sought against Mr Emery is hopeless and bound to fail. Counsel for the First Defendant accepted that the power to dismiss the claim at the interlocutory stage is only appropriately exercised where a plaintiff’s claim is so clearly deficient or untenable that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [19654] HCA 69 (“General Steel Industries”).

2. [16]

   The First Defendant submitted that the claim against him, instead of J Emery Investments Pty Ltd, when he has never been a party to the Tribunal proceedings, should be dismissed, because it is fundamentally flawed and without merit. He submitted he is not a proper defendant in these proceedings.

3. [17]

   Counsel for the First Defendant also adopted the submissions made on behalf of the Fourth Defendant.

The Fourth Defendant’s submissions

1. [18]

   Mr Neggo SC for the Fourth Defendant also accepted that the General Steel Industries test applies to its application for dismissal. He submitted this is a case where the high threshold for summary dismissal is satisfied.

2. [19]

   Senior Counsel said he had proceeded on the basis that prayer 6 of the Amended Summons should be interpreted as seeking to restrain Hicksons from acting in the Tribunal proceedings for J Emery Investments Pty Ltd. He submitted that that order is untenable in that there is no basis identified for restraining the lawyers from acting in the future.

3. [20]

   He submitted that the relief sought in prayer 9A of the Amended Summons is untenable because the owner of the property, J Emery Investments Pty Ltd, has not been named as a defendant to these proceedings and no injunctive relief is sought against the company; so if the plaintiffs have no basis for an injunction against the Registered Proprietor of the property, which is not a party to these proceedings, there is no basis for an injunction against Hicksons. He submitted that J Emery Investments Pty Ltd, the respondent in both the appeal proceedings in the Tribunal, has not been named as a defendant in these proceedings.

4. [21]

   He submitted that when the Plaintiffs raised an issue in their Summons that the company had not properly retained or authorised any Australian Legal Practitioner to act on its behalf in the Tribunal proceedings, the board of the company resolved to affirm that named solicitors, formerly of Hunt and Hunt and now of Hicksons Hunt and Hunt, are now and were authorised to commence and conduct the tenancy dispute proceedings in the Tribunal. The Plaintiffs have amended their Summons to include a ground that Mr Rowe’s purported retainer was not properly authorised by the company until 30 September 2025 (the date of the board meeting). Senior Counsel submitted there is no basis to restrain Hicksons from acting in the future on the ground of lack of authority.

5. [22]

   Senior Counsel submitted the Plaintiffs’ claims are untenable. He submitted that there are the following elements of abuse of process. The Tribunal has already granted leave, pursuant to s 45 of the Civil and Administrative Tribunal Act 2013 (NSW), for J Emery Investments Pty Ltd to be represented by a legal practitioner in the first instance Tribunal proceedings. That is the subject of an appeal in the Tribunal. Senior Counsel submitted that it is a matter for the Tribunal to decide whether leave should be granted for the company to be represented in either or both of the appeal proceedings.

6. [23]

   Senior Counsel submitted that the order sought to restrain Hicksons from “taking any step” to transfer or encumber the property is an attempt by indirect means to tie the Registered Proprietor’s hands in relation to dealing with the property and as such is a collateral attack on the orders made by the Tribunal on 23 October 2025, which are the subject of appeal to the Appeal Panel, which has, to date, refused to stay those orders.

7. [24]

   Senior Counsel submitted that the orders made by the Tribunal being challenged in the Appeal Panel proceedings, would weigh against relief against the company, if it was joined in these proceedings, on a discretionary basis: Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 per Kirby J at [88]-[92], where his Honour said relief may be denied on discretionary grounds where a more convenient and satisfactory remedy exists.

8. [25]

   Senior Counsel submitted that these proceedings have a harassing element in that the subject matter overlaps with the appeal proceedings in the Tribunal. He relied on the decision of the Court of Appeal in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 in support of his submission that the appeal proceedings in the Tribunal should be allowed to proceed before an application is made to this Court for prerogative writs.

The First Plaintiff’s submissions

1. [26]

   Mr de Robillard submitted that the Plaintiffs have a reasonable cause of action which cannot be said at this stage to be hopeless. He submitted there is reasonable ground to argue that the Tribunal never had jurisdiction because the subject lease was not a lease within the Residential Tenancies Act and therefore the Tribunal had no jurisdiction to make orders about representation. He submitted there were no proceedings before the Tribunal because there was no valid application made.

2. [27]

   He submitted he has standing in these proceedings to protect his reputation.

3. [28]

   He submitted that Mr Emery is relevant because there is an issue about who is the real owner of the property. He submitted that J Emery Investments Pty Ltd is simply a custodian company and therefore could not make the decision to commence the proceedings; it must have been Mr Emery or his wife or both.

4. [29]

   He submitted the Plaintiffs seek to restrain the lawyers to prevent the ownership of the property being “again flipped to someone else”.

The Second Plaintiff’s submissions

1. [30]

   Mr Hawken did not wish to make additional oral submissions. In his written submissions he pressed the submission that the Tribunal had no jurisdiction.

2. [31]

   In his affidavit he challenged the capacity of J Emery Investments Pty Ltd as a property custodian to commence the Tribunal proceedings and thus whether there was a valid application.

Consideration

1. [32]

   Whether or not the Plaintiffs have a reasonable cause of action against the Tribunal, they have not disclosed a reasonable cause of action against the First or Fourth Defendants.

2. [33]

   The First Defendant was not a party to the Tribunal proceedings. He is not the Registered Proprietor of the subject property. He is not the sole director of the Registered Proprietor company. The evidence filed in the application establishes that Mr Emery’s wife, Jodie Emery, the other director of the Registered Proprietor company, took part in the decision-making and instructing of the company’s legal representative in the Tribunal proceedings. Mr Emery is not a proper party to these proceedings.

3. [34]

   These proceedings appear to have an element of an abuse of this Court’s process in respect of Mr Emery and Hicksons Hunt & Hunt, and the timing of the commencement of these proceedings, the day before the Tribunal’s hearing of the substantive proceedings, tends to support that appearance.

4. [35]

   As the Tribunal is empowered by s 45 of its Act to permit a party to proceedings in the Tribunal to be represented by a particular or any individual Australian Legal Practitioner, the order sought against the members and/or employees of Hicksons Hunt and Hunt from representing J Emery Investments Pty Ltd before the Tribunal appears to be an interference with the Tribunal’s ability to control its own proceedings. No conduct has been alleged or demonstrated by Hicksons to justify any of their solicitors being restrained from representing J Emery Investments Pty Ltd before the Tribunal. The order sought restraining the Fourth Defendants from taking any step to transfer or encumber the title of the subject property would be futile as the Registered Proprietor of the property is not a party to the proceedings and could employ another legal practitioner to take such action.

5. [36]

   I am satisfied that no reasonable cause of action is disclosed against the First and Fourth Defendants. They have been improperly joined in these proceedings. The Plaintiffs’ claims against each of the First and Fourth Defendants are so untenable that they should be dismissed pursuant to r 13.4 of the UCPR.

   1. (1)

      Pursuant to r 13.4 of the UCPR I order that the proceedings against the First Defendant and the Fourth Defendant in Proceedings No. 2025/349975 are dismissed.

   2. (2)

      The Plaintiffs are to pay the First Defendant’s and Fourth Defendant’s costs of the proceedings to date.