Pamboris v Christopher Damien Darin in his capacity as liquidator of Portman Securities Pty Ltd (in liquidation)

1. [1]

   On 13 November 2025, Black J gave judgment against the appellant, Mario Pamboris (and also against Westwood Capital Pty Ltd (Westwood) and Athenee Mortgages Pty Ltd (Athenee Mortgages)), in a claim brought by the respondents, Christopher Damien Darin in his capacity as liquidator of Portman Securities Pty Ltd (in liquidation) (liquidator) and Portman Securities Pty Ltd (in liquidation) (company), and dismissed a cross-claim by Westwood: In the matter of Portman Securities Pty Ltd (in liq) [2025] NSWSC 1338. On 25 November 2025 his Honour made orders, including that Mr Pamboris pay the company $3,225,297.81 plus pre-judgment interest of $380,939.01, that Mr Pamboris and Westwood pay the company $5,000,000 plus pre-judgment interest of $590,548.58 (and that that liability be joint and several), that mortgages granted by Mr Pamboris to Athenee Mortgages over properties on Brown Street, Paddington (Paddington Property) and Livingstone Road, Marrickville (Marrickville Property) were void pursuant to s 37A of the Conveyancing Act 1919 (NSW) and that Athenee Mortgages provide a discharge of those mortgages within 21 days of the orders. Mr Pamboris and Westwood were to pay the liquidator and company’s costs of the proceedings.

2. [2]

   Both Mr Pamboris and Westwood have filed notices of appeal against those orders. The appeal is listed for hearing on 26 to 28 May 2026 with a time estimate of three, or two plus, days.

3. [3]

   By notice of motion filed 26 March 2026 the liquidator and the company seek an order that Mr Pamboris provide security for their costs of the appeal in the amount of $97,989.60 (incl GST), by way of payment into Court within 7 days, and that the proceedings be stayed unless and until that security is provided. In an affidavit sworn on 26 March 2026 and read on the motion, Danielle Funston, the solicitor on the record for the liquidator and the company, says that this is her estimate of the costs of the appeal which will be recoverable on assessment (reducing some items to reflect that Mr Pamboris and Westwood’s appeals will be heard together).

4. [4]

   By consent, on 10 April 2026 I ordered that Westwood provide security for the costs of its appeal in the sum of $60,000.

5. [5]

   An affidavit of Danielle Pettit affirmed 13 April 2026 was read on the motion. This discloses that on 27 March 2026 the motion and Ms Funston’s affidavit (together with exhibit DF-1) were served by email on Mr Hunt, then the solicitor on the record for Mr Pamboris (and identified as Mr Pamboris’ solicitor in the notice of appeal). On 30 March 2026 Ms Pettit sent an email to Mr Hunt, informing him that the motion had been listed before the Court of Appeal Registrar at 9:00am on 13 April 2026. On 31 March 2026 Ms Pettit sent a further email to Mr Hunt, attaching orders directing that the parties file and serve evidence and submissions on the motion by midday on 10 April 2026 and listing the motion for hearing on 13 April 2026. On 6 April 2026 Mr Hunt filed a notice of ceasing to act, stating that a notice of intention to file that notice was served on Mr Pamboris on 29 March 2026. That notice had the last known address of Mr Pamboris as the Paddington Property and also included two last known email addresses of Mr Pamboris. On 10 April 2026 Ms Pettit sent the liquidator and company’s written submissions to Mr Pamboris at the two email addresses in the notice of ceasing to act (and also at two further email addresses). That email stated that the motion was listed for hearing before me at 10:15am on 13 April 2026. An electronic read-receipt indicated that the email from Ms Pettit to Mr Pamboris was read on 10 April 2026 at 12:49pm (Canberra time).

6. [6]

   Mr Pamboris has not responded to any of the correspondence set out above, nor has he filed any evidence or submissions on the motion. In circumstances where the correspondence was sent to Mr Hunt before the notice of ceasing to act was filed, I am satisfied that Mr Pamboris was aware of the motion, the evidence and submissions, and the hearing of the motion on 13 April 2026.

7. [7]

   At the commencement of the hearing on 13 April 2026 my associate called the matter three times outside the Court. Mr Pamboris did not appear, whether by himself or by legal representative. Given the matters set out above, I proceeded to hear the motion in his absence.

8. [8]

   For the reasons set out below, security for costs should be ordered in the sum of $50,000 and the proceedings stayed unless that security is provided by way of payment into the Court by 5:00pm on 28 April 2026. Freezing orders made by consent against Mr Pamboris on 4 June 2025 (freezing orders) should be varied to enable this to happen.

Background

1. [9]

   In summary, the liquidator and company’s claims, upheld by the primary judge, arise from a contract entered into by the company to purchase a property at Punchbowl (Property) from Westwood, which the primary judge found was purchased at a substantial overvalue, and from a separate transaction that Mr Pamboris entered into with Waldron Projects Pty Ltd (Waldron).

2. [10]

   At all relevant times Mr Pamboris was the sole director of both the company and Waldron. Bill Gertos was the director of Westwood. Mr Gertos’ wife, Susan Polias, was the director and sole shareholder of Athenee Mortgages and had been a director of several companies with Mr Gertos. Mr Gertos had employed Mr Pamboris until 2001 at an accounting practice William J Gertos & Co. Mr Pamboris was also contracted (through one of his companies) by Westwood to work on a development application for the Property.

3. [11]

   Between December 2018 and December 2019 Mr Pamboris caused the company to pay $3,225,297.01 to Waldron. The company was not obliged to make those payments. Some of that money was used by Waldron to fund the costs of developing the Property and some of it was paid to Ms Polias. The primary judge found that Mr Pamboris breached his general law and statutory duties under ss 180 and 181 of the Corporations Act 2001 (Cth) in causing the company to make these payments and that the company was entitled to recover the amount of those payments against Mr Pamboris.

4. [12]

   On 27 December 2019 Westwood entered into a contract to purchase the Property for $26,000,000 from the Croatian Club Ltd. Following a Deed of Variation, that purchase settled in August 2021.

5. [13]

   On or about 26 March 2020 the company entered into a contract to purchase the Property from Westwood for $100,000,000. Under the contract, the company was required to, and did, pay a deposit of $5,000,000 to Westwood on 25 March 2020. The company was required to, but did not, pay a further tranche of deposit, in the sum of $5,000,000, by 30 September 2020. On 8 October 2020 Westwood terminated the contract on account of that breach. At the time it entered into the contract the company did not have sufficient funds to pay either this second tranche of the deposit or its liability for stamp duty under the contract and had no realistic basis to expect it could complete the purchase. The primary judge found that Mr Pamboris breached his general law and statutory duties in causing the company to enter into the contract and that the liquidator and the company were entitled to recover $5,000,000 compensation on this account (reflecting the sum paid on 25 March 2020).

6. [14]

   The primary judge also found that the contract was an uncommercial transaction within the meaning of s 588FB, and an insolvent transaction under s 588FC, of the Corporations Act and that it caused the company to become insolvent. His Honour found that the transaction was voidable under s 588FE(3) and directed, under s 588FF(1)(a), that Mr Pamboris pay the company $5,000,000. His Honour also directed Westwood to pay the liquidator $5,000,000, made an order under s 588FF releasing and discharging any debt owed by the company to Westwood and dismissed Westwood’s cross-claim against the company for the balance of the deposit owing under the contract to purchase the Property.

7. [15]

   On 12 May 2025 Nixon J set the proceedings down for a hearing of five days commencing on 4 November 2025. The next day, 13 May 2025, Athenee Mortgages lodged mortgages over real property owned by Mr Pamboris, including over the Paddington and Marrickville Properties, described as being to secure the amount of $5,000,000 in favour of Athenee Mortgages. The primary judge found that Mr Pamboris’ grant of those mortgages to Athenee Mortgages should be declared void pursuant to s 37A of the Conveyancing Act and that the correspondence that supported the mortgages was “plainly false, at least in part”. His Honour found that the transaction was entered into to prevent the Paddington and Marrickville Properties from being available to the liquidator and the company and other creditors, or to deter creditors from realising those properties and/or to reduce the amount available to creditors of Mr Pamboris.

8. [16]

   As already noted, on 4 June 2025, by consent, the freezing orders were made in respect of the assets of Mr Pamboris.

Mr Pamboris’ notice of appeal

1. [17]

   On 13 February 2026, Mr Pamboris filed a notice of appeal from the whole of the primary judgment, raising the following grounds of appeal:

2. [18]

   Several observations should be made about these grounds of appeal.

3. [19]

   First, Mr Pamboris was represented at the hearing before the primary judge by Mr Akinyemi, a solicitor. The application to vacate the hearing date was filed on the Friday before the Tuesday when the hearing was listed to commence, when the date for hearing had been known since 12 May 2025. The application was supported by an affidavit of Mr Hunt, Mr Pamboris’ solicitor, which stated that Mr Pamboris had told Mr Hunt that he was not in a state to appear by reason of his physical and mental health. Mr Akinyemi accepted before the primary judge that Mr Pamboris had been ordered on four occasions to file evidence, and had not done so. It was also apparent that Mr Pamboris was abroad at the date of the hearing and had been abroad since at least 10 October 2025. In these circumstances, it is apparent that there are significant hurdles standing in the way of grounds one to three succeeding.

4. [20]

   Second, grounds four and five effectively challenge, in a largely unfocussed way, the entirety of the primary judge’s findings, both of fact and of breach, as to Mr Pamboris having breached his duties as a director in causing the company to enter into the contract to purchase the Property. To the extent that these grounds require that this Court uphold challenges of finding of fact made by the primary judge, who observed Mr Gertos being cross-examined, they face some material hurdles.

5. [21]

   Third, grounds six and seven seek to identify error in the primary judge dismissing Mr Pamboris’ cross-claim, when he did not make a cross-claim in the proceedings before the primary judge.

6. [22]

   Fourth, grounds eight and nine effectively challenge, again in a largely unfocussed way, the entirety of the primary judge’s findings, both of fact and of characterisation, under ss 588FB and 588FC of the Corporations Act and s 37A of the Conveyancing Act. Again, these grounds face some material hurdles.

7. [23]

   Fifth, the grounds of appeal in effect thus challenge the entirety of the primary judge’s findings adverse to Mr Pamboris.

Relevant principles

1. [24]

   Under Uniform Civil Procedure Rules 2005 (NSW), r 51.50 such security as the Court thinks fit may be ordered against an individual “in special circumstances”. The proper approach to ordering security under r 51.50 was summarised by Basten JA (Ipp JA and Hoeben J agreeing) in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18]:

2. [25]

   The existence of special circumstances is a necessary, but not necessarily sufficient, condition. Matters relied upon as special circumstances are likely also to weigh in favour of the residual discretion: Brown v King [2022] NSWCA 75 at [8]-[10] (Kirk JA).

3. [26]

   As regards appeals, in Dye v Commonwealth Securities Limited [2012] FCA 992 at [28], Emmett J said:

Should an order for security for costs be made

1. [27]

   I am satisfied that there are special circumstances and that I should exercise my discretion to make an order for security for costs against Mr Pamboris, in favour of the liquidator and the company, having regard to the following matters.

2. [28]

   First, I am satisfied that there is a real prospect that assets will not be available to satisfy any costs liability of Mr Pamboris, in favour of the liquidator and the company, if the appeal does not succeed. In an affidavit sworn by Mr Pamboris on 24 June 2025, in compliance with the freezing orders, he set out that he had assets comprising real property valued at $5,940,000 and cash and savings amounting, in total, to $6,853. At that time he estimated that his liabilities, including the $5,000,000 mortgage over the Paddington Property and the Marrickville Property, were $5,879,500.

3. [29]

   Since that date, Mr Pamboris has become subject to the orders of the primary judge, which include a judgment against him for $9,196,785.40 plus costs. There is no evidence before me as to whether or not Westwood has funds to meet its liability of $5,590,548.58 (which liability is joint and several with that of Mr Pamboris). Post-judgment interest of $270,763.44 had accrued on Mr Pamboris’ judgment debt as at 16 March 2026, and interest is accruing at the rate of approximately $68,000 per month.

4. [30]

   On 15 December 2025, the day before the primary judge ordered that the mortgages over the Paddington and Marrickville Properties in favour of Athenee Mortgages had to be discharged, a company called Athenee Securities Australia Pty Ltd (Athenee Securities) lodged mortgages over the Paddington and Marrickville Properties. Ms Polias is the sole director, secretary and shareholder of both of these companies. It should also be noted that the primary judge observed that a letter of offer dated 31 January 2025 from Athenee Mortgages, which was not incorporated until 25 March 2025, described Athenee Mortgages as “a division of Athenee Securities” and was signed by Ms Polias. His Honour found that this correspondence was plainly false.

5. [31]

   The position thus appears to be that, at present, there are mortgages of $5 million over the Paddington and Marrickville Properties. Whilst it may be that that mortgage can be set aside, that will require further expenditure by the liquidator and the company.

6. [32]

   Ms Funston in her affidavit has had recourse to searches on www.domain.com.au and estimates that Mr Pamboris’ assets may now be worth $7,840,000.

7. [33]

   Putting these matters together, it appears that (irrespective of whether the mortgage is ultimately found to be invalid) Mr Pamboris’ net asset position is such that it is unlikely that he will be able to meet any liability that he may have to pay the costs of the appeal unless he is successful in overturning the orders of Black J, at least in part, as he has insufficient funds to meet both his judgment debt (including interest thereon) and those costs. There is thus a real risk that any costs liability in favour of the liquidator and the company will remain unmet if an order for security is not made.

8. [34]

   Second, the granting of the mortgages referred to at [30] above suggests that Mr Pamboris has taken steps to put his assets out of the reach of creditors, including the liquidator and the company.

9. [35]

   Third, as already discussed, the grounds of appeal face material hurdles.

10. [36]

    Fourth, the grounds of appeal are broad ranging, effectively challenging the entirety of the primary judge’s findings against Mr Pamboris. As to the relevance of the scope of an appeal, in Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 Ward JA held that (at [27]-[28]):

11. [37]

    Fifth, Mr Pamboris appears to be in the Philippines and it is not clear when, or if, he will return. This may lead to difficulties in enforcing any liability to pay costs.

12. [38]

    A further factor that I have taken into account in determining whether I should exercise my discretion to order security is that Mr Pamboris has not led any evidence suggesting that there is any risk that an order for security will stultify the appeal.

What amount should be ordered to be paid as security for costs

1. [39]

   As already observed, the motion seeks an order that the sum of $97,989.60 (incl GST) be paid into Court as security for costs. That application was supported by a schedule of the actual and anticipated costs of the appeal, and by the opinion of Ms Funston, set out in her affidavit, that this is her estimate of the liquidator and company’s costs of the proceedings. I am not satisfied that that sum should be ordered. Rather, I consider that a sum of $50,000 should be ordered. I indicated my provisional view to this effect at the hearing and counsel for the liquidator and the company indicated that she did not have instructions to make any submissions against that sum being ordered.

2. [40]

   In these circumstances, there is no need to say anything more than that I am satisfied that the liquidator and company’s costs of the appeal are likely to exceed $50,000 and that that is the appropriate sum to be paid into Court as security.

Conclusion

1. [41]

   It is appropriate that some variation is made to the freezing orders to enable payment into Court of the amount ordered as security. Accordingly, my orders are:

   1. (1)

      The appellant to provide security for the first and second respondent’s costs in these proceedings in the amount of $50,000.00, by way of payment into Court by 5.00pm on 28 April 2026 (Security).

   2. (2)

      The proceedings be stayed unless and until the Security is provided.

   3. (3)

      The freezing orders made by the Court against the appellant, Mr Pamboris, in proceeding 2024/00211886 on 4 June 2025 (as extended on 25 November 2025) be varied such that the exceptions in paragraph 10 to the orders be supplemented by adding a further sub-paragraph (e), so that order 10 reads: “This order does not prohibit you from: … (e) paying, or otherwise taking steps to provide out of your assets, security for the costs of the First and Second Plaintiffs (being the First and Second Respondents in proceeding 2025/00479386) in proceeding 2025/00479386, in the sum of $50,000.00”.

   4. (4)

      The appellant pay the first and second respondent’s costs of the notice of motion filed 26 March 2026.