Gemma Constantinidis v Maxwell William Prentice in his capacity as trustee for the Estate of George Constantinidis

In June 2003 the plaintiff and George Constantinidis were married. Without any disrespect, I shall refer to George Constantinidis as “George”. In 2011 the plaintiff and George separated.

In the meantime, relevant properties owned by them were as follows:

On 4 March 2014 a sequestration order was made against George’s estate. Maxwell William Prentice, was appointed trustee. Mr Prentice worked at a firm called BPS Recovery, a trading name for himself, David Henry Sampson, Mitchel Warren Ball and Sampson Prentice Ball.

On 19 May 2015 Judge Manousaridis, in the Federal Circuit Court of Australia, made orders giving possession of the matrimonial home to the trustee: Prentice v Constantinidis (No 3) [2015] FCCA 1438 (the Possession Judgment). That property was sold on 7 November 2015 for $1.3 million. After payment to the secured creditor, Westpac Banking Corporation, the trustee received $250,543.05 for the payment of his costs and expenses.

On 25 August 2015 the plaintiff commenced family law proceedings in the Federal Circuit Court of Australia (“the Family Law Proceedings”). She named both George and the trustee as respondents. She amended her application a number of times On 2 December 2016 the Court ordered that ASPECT was to be joined as a respondent.

The plaintiff thereafter filed a number of Applications in a Case in the Family Law proceedings. One of these was filed on 6 November 2015, and sought an order that the trustee be restrained from selling the matrimonial home. However, the matrimonial home had been sold. Accordingly, the plaintiff amended her application to seek an order that the trustee be restrained from dealing with the proceeds of sale of the matrimonial home.

On 19 May 2016 Judge Altobelli made orders granting leave to the trustee to apply the net proceeds of the matrimonial home (with the exception of $25,000) to his legal and professional costs, and giving leave to the plaintiff to seek an order for access to the remaining $25,000 for her legal costs for continuing the Family Law proceedings.

On 21 July 2016 Judge Altobelli ordered that the plaintiff could access the $25,000 to pay for her legal costs.

On 8 February 2017, in a further interim application, the plaintiff sought some 19 orders as follows:

On 10 February 2017 the plaintiff filed another interim application seeking 25 orders, including that the trustee return any payment received in relation to the Family Law proceedings and return it to a trust fund to form part of the matrimonial pool, an order for the removal of the trustee’s lawyers, and that those lawyers return any payment received “to the trust account of the Court”.

On 22 February 2018 Judge Altobelli gave judgment in the Family Law Proceedings: Callas v Callas [2018] FCCA 4 (“the Family Law Judgment”) (“Callas” was the name allocated to the judgment to anonymise the parties to the marriage). Judge Altobelli noted that the plaintiff conceded that George purchased the matrimonial home before their marriage, but that she made a financial contribution towards its conservation and/or improvement. His Honour assessed George’s contribution to the property to be 60% and the plaintiff’s to be 40%.

His Honour found that the ASPECT property (at Bryant St Rockdale) should form part of the matrimonial pool, and he made a declaration that that property was an asset of the plaintiff. His Honour found that the plaintiff and George contributed equally to the OEB property, and it was ordered to be transferred to the trustee. The parties were otherwise to retain their existing interests in the property of the marriage. His Honour held that there was no reason that the trustee or any other third party should have to return anything to the matrimonial pool relating to the matrimonial property.

The result was that the plaintiff was awarded 50% of the matrimonial pool. That consisted of the following:

In reaching his decision, Judge Altobelli determined all the matters raised by the plaintiff’s interim applications referred to at [6], [9] and [10] above.

On 15 May 2018 Judge Altobelli made a costs order against the plaintiff in favour of the trustee in a fixed sum of $62,772.50 for the trustee’s disbursements for counsel’s fees, and an order that the plaintiff pay the trustee’s costs of the Family Law proceedings on an indemnity basis.

On 1 November 2018, ASPECT by its liquidator filed an application in the Family Law proceedings seeking an order that the declaration made by Judge Altobelli on 22 February 2018 that the ASPECT Property be treated as an asset of the plaintiff be vacated.

On 15 March 2019 the plaintiff filed six applications in the Family Law proceedings seeking a large number of orders that, in effect, sought to challenge all of the findings made by Judge Altobelli (“the 2019 Family Law Applications”). This was in circumstances where the plaintiff had appealed against Judge Altobelli’s orders but, by her failure to take required procedural steps, had had her appeal dismissed. An application by the plaintiff to reinstate the appeal was refused: Constantinidis v Constantinidis [2018] Fam CAFC 124.

Judge Altobelli recused himself from dealing further with the proceedings because of the adverse credit findings he had made against the plaintiff. The proceedings were thereafter dealt with by Judge Smith.

On 12 September 2019 Judge Smith made orders that the trustee was entitled to sell the OEB property, the liquidator of ASPECT was permitted to sell the ASPECT Property, and the net proceeds of each sale were to be placed into the trust accounts of the lawyers for each, pending the determination of the plaintiff’s 2019 Family Law Applications.

On 30 July 2020 the Trustee sold the OEB property, and $275,046.64 was paid into the trust account of the Trustee’s lawyers.

All of the plaintiff’s 2019 Family Law Applications were dismissed by Judge Smith in a judgment given on 28 February 2022: Constantinidis v Constantinidis [2022] FedCFamC2F 203 (“the ASPECT Judgment”). His Honour also authorised the amount held in the trustee’s solicitors’ trust account to be paid to the trustee for distribution in accordance with the Bankruptcy Act 1966 (Cth), and for the Liquidator of ASPECT to receive the money paid into his solicitor’s trust account out of the proceeds of the sale of the ASPECT property.

No party has appealed against those orders.

In the meantime, on 23 July 2019 the Official Receiver issued a bankruptcy notice in favour of the trustee against the plaintiff. The bankruptcy notice was in respect of costs ordered by Judge Altobelli against the plaintiff in the Family Law proceedings. In the course of an application to set aside the bankruptcy notice (“the Plaintiff’s Bankruptcy proceedings”) the plaintiff said that she had a counter claim based on a number of matters which, as will be seen, coincide with the claims made in the present statement of claim.

On 24 June 2022, Judge Manousaridis delivered judgment in the Plaintiff’s Bankruptcy proceedings. His Honour dismissed the plaintiff’s applicationt: Constantinidis v Prentice as Trustee of the Bankrupt Estate of Constantinidis [2022] FedCFamC2G 503 (“the Plaintiff’s Bankruptcy Judgment”).

On 1 April 2022 the plaintiff commenced these proceedings by filing a statement of claim. She initially named only Mr Prentice and the four persons trading as BPS Recovery.

On 29 April 2022 she filed an amended statement of claim where the defendants were as follows:

I shall refer to the first to fourth defendants as the “Prentice defendants”, and to the 13th to 15th defendants as the “Solicitor defendants”.

The plaintiff by a notice of motion filed 10 June 2022 seeks default judgment against each of the defendants with damages to be assessed. In the case of the Prentice defendants and the Solicitor defendants, the basis for default judgment is that no defence by those defendants has been filed. In the case of the fifth and seventh defendants the basis appears to be that no defences were filed until 30 June 2022, in circumstances where the plaintiff claims to have served the amended statement of claim on them on 3 May 2022.

By notice of motion filed 29 June 2022 the Prentice defendants and the Solicitor defendants seek that the claims against them be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in the alternative that pars 1-90 and 109-117 of the amended statement of claim be struck out pursuant to r 14.28 of the UCPR, and that a notice to produce dated 20 June 2022 issued by the plaintiff be set aside.

By an amended notice of motion filed 7 September 2022 the fifth and seventh defendants seek an order that the proceedings against them be summarily dismissed, in the alternative that pars 42, 90 – 96, 99, 100, 102 and 103 of the amended statement of claim be struck out, and that two notices to produce, one undated and one dated 1 September 2022, served by the plaintiff be set aside.

The quantified damages in the amended statement of claim referable to the Prentice defendants total $7,226,000.00. However, there are a series of other heads of damages where the amount is “to be advised”. In addition, punitive damages are claimed for a number of heads of damage. The quantified damages claimed against the fifth and seventh defendants total $15,000.00, but punitive damages are also claimed. The only claim made against the 13th and 14th defendants is punitive damages, and the claim against the 15th defendant is for $12,500.00.

I shall return later in this judgment to set out the claims against the Prentice defendants because of the length of them.

The claim against the fifth defendant (although it is pleaded as against the sixth and seventh defendants, seemingly in error) is that the fifth defendant acted as a real estate intermediary and unlawfully received commission from the sale of the matrimonial home, that she acted on behalf of the Prentice defendants contrary to the Bankruptcy Act 1966 (Cth), and that she unlawfully contracted a third party for the sale of the matrimonial home.

The pleading against the seventh defendant is that he unlawfully received commission contrary to the Bankruptcy Act, and unlawfully accepted a contract from the fifth and sixth defendants to sell the property and thereby unlawfully received a commission.

The claim against the 13th defendant is that, as a solicitor engaged by the first to fourth defendants, she failed in her duty of care to advise the Sheriff to stop the eviction from the matrimonial home and causing a trespass to the plaintiff’s property.

The claim against the 14th defendant is that, as a solicitor engaged by the first to fourth defendants, she failed in her duty of care to advise her clients that the plaintiff as an estranged spouse had certain guaranteed rights to property, and failed to stop her clients from selling the property.

The claim against the 15th defendant is that, as a firm of solicitors, it charged $12,500.00 to prepare a contract of sale and perform the settlement of the sale of the home when other solicitors were charging much less to do so.

On 20 June 2022 the plaintiff issued a notice to produce addressed to the Prentice defendants which said this:

On 1 September 2022 the plaintiff served an unsigned notice to produce addressed to the fifth, sixth, seventh and eighth defendants which said this:

The plaintiff also served another undated notice to produce in similar terms.

In accordance with directions made by the Registrar, all parties to the motions including the plaintiff had filed written submissions.

When the hearing commenced on 30 November 2022 the plaintiff appeared unrepresented. I asked the plaintiff if she understood that the Court was to hear her notice of motion for default judgment and the two notices of motion filed by some of the defendants for summary dismissal of the claim. The plaintiff said that she objected to the motions being heard on grounds which were contained within a notice of motion she had filed on 24 November 2022. When that motion was filed the Court provided a return date of 8 February 2023. It was not before me for hearing.

The plaintiff then said:

At that point the plaintiff commenced to walk out of the courtroom. I enquired if she was coming back and she replied:

I briefly discussed some procedural matters with Mr Golledge SC for the Prentice defendants and the Solicitor defendants, and Ms Perry for the fifth and seventh defendants. I then took a short adjournment.

I subsequently received from Reporting Services Branch a brief transcript of what occurred in my absence as follows:

When I returned to Court (by that stage not having the transcript from Reporting Services Branch), I had noted in the transcript that the plaintiff had not returned to Court, and that I had asked my staff to convey to her that if she did not return to Court the matter would proceed in her absence. I indicated that although I could dismiss her notice of motion for non-appearance, I thought what I would do in this judgment was to consider in substance her notice of motion. The hearing then proceeded without the plaintiff being present.

In an affidavit sworn 6 June 2022 the plaintiff said that she served the first and second defendants with the initial statement of claim by emailing copies of it to Mr Prentice, Mr Sampson, and two of the solicitors from Polczynski Robinson. She said that she subsequently served them with the amended statement of claim by emailing them also. All of the other defendants were said to have been served by email.

Rule 10.20 UCPR relevantly provides:

Rule 3.7 of the UCPR provides:

Rule 16.2 of the Uniform Civil Procedure Rules 2005 (NSW) defines “in default” for the purposes of the Rules. That rule provides:

Neither the statement of claim nor the amended statement of claim was personally served. In respect of the third to 16th defendants, the amended statement of claim was an originating process. There is no evidence that any of the defendants agreed to accept service by email. A party is not required to file a defence unless they have been properly served with the originating process. No party had been properly served.

No doubt, because the amended statement of claim had come to the attention of the Prentice defendants and the Solicitor defendants, they appeared when the matter was listed before the Registrar on 25 May 2022. The Registrar directed that the defendants were to file and serve any notice of motion seeking to strike out the proceedings or for summary dismissal by 22 June 2022. In the circumstances, there was no obligation on those defendants to file a defence. The proceedings were being case-managed, and no defence was required to be filed.

Rule 14.3 UCPR requires a defence to be filed withing 28 days after service. The fifth and seventh defendants filed notices of appearance on 29 June 2022. They did not need to do so. They filed defences the following day. Where a party voluntarily appears, although not properly served with process, time begins to run from when they submit to the Court. Where defences were filed within one day of their appearance, the fifth and seventh defendants were never in default. In any event, since they have filed defences, if they had been in default, they would no longer be in default: r 16.2(2)(c).

As far as the remaining defendants are concerned, in respect of all those that are legal persons, none has been properly served in accordance with the UCPR and, in that way, none is in default.

The plaintiff’s notice of motion for default judgment is without merit and should be dismissed.

The defendants collectively rely on a number of legal bases to justify obtaining summary dismissal of the plaintiff’s claims. However, a significant basis arises from the litigation in which the plaintiff has been involved concerning the bankruptcy of George, the plaintiff’s Family Law proceedings and the Plaintiff’s Bankruptcy Proceedings. Some legal principles should be identified.

In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 the joint judgment of Gleeson CJ, McHugh, Gummow & Hayne JJ said at [36]:

As far as issue estoppel is concerned, in Ramsay v Pigram (1968) 118 CLR 271 at 276 Barwick CJ said:

In Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 the High Court set out principles concerning res judicata, issue estoppel, making particular reference to Ramsay, Anshun estoppel and abuse of process as follows:

As far as Anshun estoppel is concerned, in Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44, the joint judgment of French CJ, Kiefel, Keane and Nettle JJ said:

Even if there is no issue estoppel, and the matter cannot be brought within the principles with which Anshun estoppel is concerned, an abuse of process might be demonstrated from the principle identified in Reichel v McGrath (1889) 14 App Cas 665, and approved in Walton v Gardiner (1993) 177 CLR 378, where the joint judgment of Mason CJ, Deane and Dawson JJ said (at 393):

The circumstances of when an abuse occurs appears in the judgment of McColl JA (Giles and Campbell JJA agreeing) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231:

The case pleaded against the fifth and seventh defendants is as follows:

The fifth and seventh defendants are licensed real estate agents. The fifth defendant was a listing agent for the matrimonial property by reason an agency agreement with the trustee in bankruptcy. The seventh defendant was a conjunction agent in relation to this sale.

As a result of the Possession judgment of Judge Manousaridis of 19 May 2015 and the further orders made by his Honour on 19 May 2016, which provided for the possession and sale of the property by the trustee and the disbursement of the net proceeds after payment to Westpac, and as a result of the Family Law judgment of Judge Altobelli of 22 February 2018, it is clear that the plaintiff had no interest in the matrimonial home.

In any event, when the plaintiff sought to set aside the bankruptcy notice served on her, one of the counter-claims she sought to bring against the trustee who served the bankruptcy notice was a claim for damage to the matrimonial property.

In the course of his judgment of 24 June 2022 dealing with those counter-claims (Constantinidis v Prentice as Trustee of the Bankrupt Estate of Constantinidis [2022] FedCFamC2G 503 (“the Plaintiff’s Bankruptcy Judgment”), Judge Manousaridis said at [141]:

There is no basis for the assertions in the statement of claim that the fifth and seventh defendants acted unlawfully as real estate agents, nor that they unlawfully received commission as a result of the sale of the matrimonial home. The fifth and seventh defendants owed no duty at law or in equity to the plaintiff.

The cases pleaded against the fifth and seventh defendants are hopeless and cannot possibly succeed. In the circumstances, the fifth and seventh defendants are entitled to an order that the proceedings against them be summarily dismissed. It follows, that notices to produce issued by the plaintiff in those proceedings must be set aside.

The evidence discloses that there are no companies by the names of the sixth and eighth defendants. In any event, the case pleaded against the sixth and eighth defendants is identical to that pleaded against the fifth and seventh defendants. In the circumstances, the claims against the sixth and eighth defendants should be summarily dismissed.

What purports to be the pleading against the Prentice defendants extends to some 90 paragraphs. Rather than set out those paragraphs and unnecessarily lengthen this judgment, I will set out the claims made:

The Prentice defendants and the Solicitor defendants seek summary dismissal of the plaintiff’s claim on the basis that the matters now raised for determination in the plaintiff’s amended statement of claim have either already been determined in other proceedings, or are so closely related to matters dealt with in other proceedings that it was unreasonable for the plaintiff not to have raised them in those earlier proceedings; that is, by reliance on either issue estoppel or Anshun estoppel. The matter is put alternatively that the present proceedings are an abuse of process, and/or that no reasonable cause of action is disclosed.

I will first deal with the claims against the Prentice defendants.

In the Family Law Proceedings the plaintiff claimed in her application of 8 February 2017:

This claim was dismissed in the Family Law judgment at [185] where Judge Altobelli said that the plaintiff’s claim for add-backs was not accepted.

In the 2019 Family Law Applications the plaintiff sought that the trustee be held liable as a result of failing to secure adequate building insurance on the matrimonial home. Judge Smith in the ASPECT Judgment dismissed this claim: see at [156] and [158].

In addition, in the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged against the trustee:

Judge Manousaridis said of this claim at [141] of the Plaintiff’s Bankruptcy Judgment:

It was determined by Judge Manousaridis on 19 May 2015 in the Possession Judgment that the trustee was entitled to possession of the matrimonial home. On 19 May 2016 his Honour made orders entitling the trustee to all of the remaining proceeds except for the $25,000.00 payable to the plaintiff.

In the Family Law Proceedings, the plaintiff challenged the trustee’s entitlement to the sale proceeds of the matrimonial property on a number of occasions. The claims were dismissed. In Callas v Callas [2016] FCCA 1247 Judge Altobelli said at [23]:

In the 2019 Family Law Applications, the plaintiff sought an order that the trustee be held liable for the disposal of the matrimonial home. The application was rejected by Judge Smith in the ASPECT Judgment at [205], [207], [214] and [216].

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged:

In the Plaintiff’s Bankruptcy Judgment, Judge Manourasidis said at [142]:

In the 2019 Family Law Applications, the plaintiff alleged collusive behaviour between the trustee and Westpac Banking Corporation which was said to have led to the “diminishment” of the matrimonial pool of assets. The claim was rejected by Judge Smith in the ASPECT Judgment at [199] and [201].

In the Plaintiff’s Bankruptcy proceedings, the plaintiff alleged:

In the Plaintiff’s Bankruptcy Judgment, Judge Manousaridis said at [143]:

The plaintiff appeared in the proceedings where orders were made in relation to the matrimonial home and the time by which vacant possession had to be given: see Prentice v Constantinidis (No 3) at [7] and [17].

Further, that claim was heard and dismissed adversely to the plaintiff in the Family Law Judgment by Judge Altobelli in Callas v Callas [2018] FCCA 4:

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged:

In the Plaintiff’s Bankruptcy Judgment, Judge Manousaridis said at [144]:

I have already made reference to what Judge Altobelli said in the Family Law Judgment at [202]-[203] (see [89] above).

In the 2019 Family Law Applications, the plaintiff sought four orders in relation to the loss and damage of her personal property from the matrimonial home. All of these claims were rejected by Judge Smith in the ASPECT Judgment at [144] to [155].

Pursuant to Judge Manousaridis’s orders of 19 May 2015, the trustee was entitled to take possession of the matrimonial home and remove and dispose of all chattels and goods within the property which had not vested in the trustee. Under the orders, George was to remove from the matrimonial home by 2 June 2015 all vehicles, rubbish and chattels which had not vested in the trustee. In the event that he failed to do so, the trustee was empowered to remove and dispose of those objects as he saw fit.

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged:

In the Plaintiff’s Bankruptcy Judgment, Judge Manousaridis said at [145]:

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged:

In the Plaintiff’s Bankruptcy Judgment, Judge Manousaridis said at [146]:

In the 2019 Family Law Applications, the plaintiff sought an order for the trustee to be financially responsible for having caused her to be denied access to the public auction of the matrimonial home. This claim was rejected by Judge Smith in the ASPECT Judgment at [62] and [164].

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged:

In the Plaintiff’s Bankruptcy Judgment, Judge Manousaridis said at [147]:

In the 2019 Family Law Applications, the plaintiff sought costs orders against the trustee for having sabotaged the mediation. The claims were rejected by Judge Smith in the ASPECT Judgment at [174] to [179].

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged that the trustee sabotaged a mediation in October 2016: see the judgment of Judge Manousaridis at [40]. His Honour held at [148] that the claim had no substance and that it was unsupported by any particulars that could conceivably support an allegation of sabotage.

The allegation was also raised in an Application in a Case filed by the plaintiff on 8 February 2017 in the Family Law Proceedings. The claim was dismissed. It was not a surprise that the claim was rejected and dismissed because the unreasonable conduct of a party at a mediation cannot give rise to a cause of action against the party.

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff claimed ongoing costs following the mediation of $700,000.00, said to have been incurred by the trustee in continuing with the litigation in the Family Law Proceedings: see the Plaintiff’s Bankruptcy Judgment at [73]. Judge Manousaridis held at [149]:

Further, a party does not have a cause of action against another party because subsequent costs were incurred following the failure of a mediation. A party might be entitled to indemnity costs for some of those costs if appropriate steps are taken such as making a formal Offer of Compromise under the UCPR or by serving a Calderbank offer.

These claims are all connected with the sale of the matrimonial home. Any loss which the plaintiff has suffered (and which is not identified) flows from the orders of the Federal Circuit Court that gave possession of the matrimonial home to the trustee and directed how the proceeds of sale were to be dealt with. The trustee acted in accordance with the orders of the Court. The plaintiff does not have any cause of action in respect of these claims.

If the plaintiff had any rights in respect of the orders, it would have been a right of appeal. However, as indicated earlier at [17], the plaintiff lost her right of appeal and was unsuccessful in having it reinstated.

In any event, in the 2019 Family Law Applications, the plaintiff sought a number of orders imposing liability on the trustee for the loss of her right to the matrimonial home and to derive income from it. All of these claims were rejected by Judge Smith in the ASPECT Judgment at [202] to [213].

In the 2019 Family Law Applications, the plaintiff sought an order that the trustee was financially responsible for having caused the auction of the home “with malicious intent” to the plaintiff. This claim was rejected by Judge Smith in the ASPECT Judgment at [165] to ]167].

In the Plaintiff’s Bankruptcy Proceedings, the plaintiff alleged that the trustee had malicious intent towards her: see at [79] of the Plaintiff’s Bankruptcy Judgment. Judge Manousaridis held that the claim had no substance and that no particulars or evidence were provided that was capable of supporting such an allegation: see at [150].

In any event, no cause of action is disclosed.

The plaintiff alleges that the false submission was made in May 2016 to the Federal Circuit Court. This was the hearing where the plaintiff was seeking access to the $25,000 retained from the sale of the matrimonial home.

In the 2019 Family Law Applications, the plaintiff claimed:

This claim was also made in the Plaintiff’s Bankruptcy Proceedings: see at [80]. Judge Manousaridis held at [151] that the claim had no substance, and that the applicant did not identify the submissions the trustee made which were said to be false.

In any event, if a party wishes to take some issue with submissions that are made and which produce an adverse result, the party would need either to seek that the judgment be set aside based on fraud, or to appeal against the judgment. No such application or appeal was brought by the applicant.

In the 2019 Family Law Applications, the plaintiff sought orders for funds for legal representation by her. These claims were rejected by Judge Smith in the ASPECT Judgment at [180] to [186].

Both of these claims were made in the Plaintiff’s Bankruptcy Proceedings: see at [81] and [82] of the Plaintiff’s Bankruptcy Judgment.

Judge Manousaridis said at [152]:

Further, it is difficult to conceive what possible cause of action the plaintiff has against the trustee in relation to these complaints.

The plaintiff first raised this matter in the Family Law Proceedings. Judge Altobelli said at [76]:

In the 2019 Family Law Applications, the plaintiff sought an order that the trustee be held responsible for malicious intent to harm her by way of selling the OEB property and putting a caveat on it. This was, in effect, a re-agitation of what had been twice determined against the plaintiff. This claim was rejected by Judge Smith in the ASPECT Judgment at [220] to [222].

In any event, on 10 March 2020 Judge Smith made the following order:

This claim was also made in the Plaintiff’s Bankruptcy Proceedings: see at [83] of the Plaintiff’s Bankruptcy Judgment. Judge Manousaridis held at [153] that the claim had no substance.

In the first place, this claim appears from the pleading in the amended statement of claim at par 81 to repeat claims B, C, D, E, W, Y and Z.

The same claim was made in the Plaintiff’s Bankruptcy Proceedings although it was expressed as the trustee having “maliciously and with intent financially raped the applicant” rather that “harmed” the applicant. Both terms are similarly imprecise and, in substance, the same claim was being made: see the Plaintiff’s Bankruptcy Judgment at [84].

Judge Manousaridis held at [154] that this claim was based on the other claims on which the applicant relied. His Honour said that given that he had found the other claims did not have substance, neither did this claim. The same observations can be made here.

Claim AC alleges that on 22 February 2018 Judge Altobelli ordered that the parties file within 21 days an application for costs, but that the trustee filed his application eight days after that time.

Claim AD alleges that the trustee’s application had never been filed with the registry and was therefore fraudulent.

These matters were raised in the Plaintiff’s Bankruptcy Proceedings. Judge Manousaridis said in the Plaintiff’s Bankruptcy Judgment:

In any event, this is an issue which could only be raised by an application to Judge Altobelli or by an appeal against his costs order. They are procedural irregularities. It provides no basis for any claim or cause of action against the trustee.

To the extent that the claims and issues were determined by Judge Altobelli in the Family Law Judgment or by Judge Smith in the ASPECT Judgment, issue estoppel prevents the claims from now being brought either against the trustee. To the extent that the other Prentice defendants do not get the benefit of an issue estoppel, the position is entirely governed by the extended estoppel referred to in Reichel, ABC v Haines and Habib v Radio 2UE. The issues were decided adversely to the plaintiff. Whether the matter is characterised as extended estoppel or as abuse of process the outcome is the same; the plaintiff may not raise these matters in the present proceedings.

It is also clear that all of the claims raised against the Prentice Defendants have been raised, dealt with and dismissed by Judge Manousaridis in the Plaintiff’s Bankruptcy Proceedings. The plaintiff had raised these claims as a counter-claim, in order to set aside the bankruptcy notice served on her.

In Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 the High Court said (at 350):

In Goss v Johnstone [2000] HCA 26; (2000) 74 ALJR 884 the High Court said at [39]:

The determinations by Judge Manousaridis were not final determinations of the issue raised by the claims. What his Honour effectively determined was that the plaintiff did not show a prima facie case on any of the matters put forward. It cannot be said, therefore, that there is an issue estoppel arising from the Plaintiff’s Bankruptcy Judgment. However, where the plaintiff could not even establish a prima facie case in respect of the claims, nor show that her claims were proper and reasonable to litigate, it constitutes an abuse of process for the plaintiff now to attempt to relitigate them in the present proceedings. All of the claims made in the present proceedings were before Judge Manousaridis in the Plaintiff’s Bankruptcy Proceedings.

No cause of action is, in any event, available in respect of claims O, P, Q, W, X, Y, Z, AB, AC and AD.

Claims A, B, C, D, E, F, G, H, I, J, K, l, M, N, R, S, T, U, V and AA all derive from the orders of the Federal Circuit Court adjusting property right under the Family Law Act 1975 (Cth) or authorising actions on behalf of the trustee in George’s bankruptcy. This is chiefly because, as a result of the judgments, the plaintiff had no right to the matrimonial home.

The claims pleaded against the Prentice Defendants are either hopeless and cannot possibly succeed, or the plaintiff is prevented from making those claims by reason of issue estoppel. Alternatively, the claims constitute an abuse of process.

The claim against these defendants is as follows:

The Solicitor Defendants acted for the trustee. They did not act for the plaintiff and they owed her no duty of care. Ordinarily, solicitors do not owe a duty of care to persons who are not their clients: Hill v Van Erp (1997) 188 CLR 159 at 167 and 187. The exceptions are limited, and where there is contentious litigation, a solicitor for one party does not owe a duty to the other party, not the least reason for which is that it would conflict with the solicitor’s duty to his or her own client: see also Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [53].

No basis is shown in the evidence or pleading to justify any attempt to prevent the Sheriff from executing the writ of possession. An order had been made for possession in favour of the trustee. The sheriff was entitled to aid the trustee in effecting that order.

The 13th and 14th defendants did not owe the duties of care alleged in pars 109 to 113 of the amended statement of claim.

As to the claim against the 15th defendant, the fact that other solicitors were charging lower fees (if proved) does not give rise to a cause of action against this defendant. In any event, this was a claim made by the plaintiff in the Family Law Proceedings. Judge Altobelli said at [181]:

The case as pleaded as against the Solicitor Defendants is hopeless, and should be dismissed.

Since the claims against the Prentice Defendants and the Solicitor Defendants will be dismissed, the notice to produce served on those parties will be set aside.

I have already made reference to the fact that the 6th and 8th defendants are not legal persons in that there are no companies incorporated by those names. The proceedings against them must be dismissed.

Nobody is identified as being the 9th or 11th defendants. The proceedings must be dismissed against them.

The 12th defendant is said to be “AAA Recycling”. If that entity is a business name, r 7.19 requires the person who owns the business name to be sued in their own name and not under any business name. If “AAA Recycling” is in fact a corporation, it will need to be correctly named.

It does not appear that the plaintiff has taken any steps to serve the tenth defendant with the amended statement of claim. The proceedings have been on foot against that defendant for almost 10 months. Rule 12.7 UCPR enables the Court to dismiss proceedings if they are not prosecuted with due despatch.

After making the other orders I have indicated will be made, the plaintiff will be given a short adjournment to enable her to decide what she intends to do about the 10th and 12th defendants.

For the above reasons, I make the following orders: