Romulus Remus Group Pty Limited v The Official Trustee in Bankruptcy

These proceedings are the latest iteration of an extensive history of litigation since 2006, principally in this court and the Federal Court of Australia, variously brought by the late Gustavo Ferella and his son Angelo Ferella, Nida Ferella (the widow of Gustavo and the mother of Angelo), Riva NSW Pty Ltd (the former trustee of the Cavallino Unit Trust) and Romulus Remus Group Pty Ltd (the current trustee of the Trust) against the Official Trustee in Bankruptcy.

For convenience and with no disrespect intended, I will refer to Gustavo, Angelo and Nida by their given names.

The central dispute relates to the administration of a property in Point Piper (Point Piper Property) upon the bankruptcies of Gustavo and Angelo in October 2005 and the subsequent conduct of the Official Trustee.

Romulus, in its capacity as trustee of the Trust, filed the statement of claim commencing these proceedings (2025 SOC) in which it seeks various forms of declaratory and compensatory relief against the Official Trustee arising from allegations of breach of trust, conspiracy to defraud, slander of title and malice. The thrust of the 2025 SOC centres on the essential complaint by Gustavo and Angelo that by the Official Trustee lodging caveats and making certain alleged representations it caused Provident Capital Limited to decline to refinance borrowings secured over the Point Piper Property.

The issues I must determine are whether I should make orders sought by the Official Trustee that these proceedings be dismissed or stayed or, alternatively, that the 2025 SOC be struck out.

I have determined that:

Riva was registered on 19 April 2005, and the current sole director and secretary is Angelo, who was appointed on 13 June 2020. Nida has previously been a director of Riva, from 19 April 2005 to 24 February 2006 and on 21 February 2013. The daughter of Nida, who is the sister of Angelo, Tiziana Ferella, has also been a previous director of Riva, from 7 February 2006 to 21 February 2013 and from 1 March 2013 to 30 June 2021.

Romulus was registered on 5 February 2024, and the current and sole director of Romulus is Nida. Nida is also a secretary of Romulus alongside Tiziana

Since 20 June 2012, Angelo has held a power of attorney for Nida. This was observed in Ferella v Official Trustee in Bankruptcy [2013] FCA 1319 by Jacobson J at [3]:

Angelo confirmed that he retains the power of attorney for Nida in his affidavit sworn 4 September 2025 in these proceedings, stating at [1]:

The power of attorney made by Nida was in evidence before me. It appointed Angelo to be her attorney, operated immediately and was not subject to any conditions or limitations.

The addresses of Riva, Romulus, Angelo, Nida and Tiziana are all the same.

The facts relevant to this dispute have been explained in great detail in several previous judgments in the determination of related proceedings.

Most recently, the Court of Appeal (Adamson JA, Simpson and Basten AJJA) set out the following concise summary of the central facts in Riva NSW Pty Limited v Official Trustee in Bankruptcy [2023] NSWCA 235 at [4]–[8]:

In short, on 4 March 2022, Kunc J made a vexatious proceedings order against Angelo under s 8(7)(b) of the VP Act to prohibit him from bringing proceedings against the Official Trustee in his own name, Gustavo’s name and Riva’s name (Angelo VP Order). On the same date, Kunc J also made a finding that Riva was also a person within the meaning of s 8(1)(a) of the VP Act because it has frequently instituted or conducted vexatious proceedings (at [113]).

Further events must be added to this summary as outlined below.

The proceedings involving Gustavo, Angelo, Nida, Tiziana, Agusta Pty Ltd, Riva and Romulus against the Official Trustee related to the same dispute as these proceedings and the various judgments which have been delivered are as follows:

In the Kunc J Riva Judgment, it was found that in the proceedings up to and including the 2020 Riva & Ferella Proceedings, Angelo was either a plaintiff or played a substantial role in other proceedings where Gustavo, Nida and Tiziana were plaintiffs (at [55]–[56]).

On 21 June 2024, Romulus commenced proceedings 2024/00229388 in this court against the Official Trustee (2024 Romulus Proceedings) by statement of claim. Romulus did so in its capacity as trustee of the Trust, having replaced Riva as trustee of the Trust on 5 February 2024.

On 16 August 2024, the Official Trustee filed a notice of motion seeking to summarily dismiss the 2024 Romulus Proceedings. The 2024 Romulus Proceedings were then discontinued pursuant to a notice of discontinuance signed on 23 September 2024 in the following terms:

On 6 May 2025, Romulus commenced these proceedings against the Official Trustee by filing the 2025 SOC. The 2025 SOC is verified by an affidavit sworn by Tiziana.

On 20 June 2025, the solicitors for the Official Trustee, MinterEllison, sent a letter to Romulus proposing that the costs payable under the costs order made as part of the terms of the discontinuance of the 2024 Romulus Proceedings be agreed in the amount of $18,000 (inclusive of GST), failing which the Official Trustee may trigger the cost assessment procedure. Romulus has not responded to that letter.

A document which assumed some importance on the application is an email dated 26 March 2009 from Mark Findlay, Director of Bankruptcy Regulation for the Central Region of Insolvency and Trustee Service Australia (ITSA) (the former name of the Australian Financial Security Authority) to Angelo (26 March 2009 Email) in response to an email dated 12 February 2009 from Angelo, which refers to the inspection of the Official Trustee’s file and relevantly states:

Romulus asserts that the 26 March 2009 Email is “new evidence” on which it wishes to rely in these proceedings, contending that it was discovered in December 2021 after it had previously been concealed due to a malware breach.

The Official Trustee contests the assertion that the 26 March 2009 Email is new evidence.

I have dealt with this issue in detail below.

There are strong similarities in the allegations and relief sought by Romulus in these proceedings when compared to certain prior proceedings variously brought by Riva, Angelo, Gustavo and Romulus, being:

To demonstrate this, the Official Trustee produced an aide memoire in the form of a lengthy table covering 31 pages that set out a detailed comparison of the following statements of claim:

Save for the 2024 SOC in the 2024 Romulus Proceedings and the 2025 SOC in these proceedings, each of these statements of claim have been considered in prior judgments. The 2015 SOC was the subject of the Perry J Riva Judgment. The 2018 SOC was the subject of the Pembroke J Riva Judgment. The 2021 SOC was the subject of the Kunc J Riva Judgment. The proposed 2022 ASOC and the proposed 2023 ASOC were the subject of the Slattery J Riva Judgment.

The table in the aide memoire sets out a side-by-side comparison of the statements of claim in each of those proceedings, which exposed the evident similarities between the allegations and the relief which is sought in each of them.

In the Slattery J Riva Judgment at [26], Slattery J summarised the proposed 2023 ASOC in the 2020 Riva Proceedings as follows:

In the Slattery J Riva Judgment at [27], the proposed 2023 ASOC was described as “manifestly embarrassing in multiple ways”, “so obscure in places that no proceeding could be conducted in this Court based on this pleading in a manner consistent with the Court’s objective” and that it was “not a pleading which is capable of amendment, to plead recognisable and maintainable causes of action or claims for relief”.

Further, the defects identified by Slattery J at [32]–[34] remain in the 2025 SOC:

The integrity of the Slattery J Riva Judgment can be added as the target of an indirect challenge by the 2025 SOC, which has been amended to include the following at paragraph 32(d):

Attached as the Annexure to this judgment is a table which compares the changes which occurred between the proposed 2022 ASOC, the proposed 2023 ASOC, the 2024 SOC and the 2025 SOC. Different colours denote the changes as they were made between each version of those statements of claim.

It is useful to consider the similarities and changes between the proposed 2023 ASOC in the 2020 Riva Proceedings and the 2025 SOC because upon a close analysis it becomes clear that the pleading issues and flaws identified in the Slattery J Riva Judgment remain and that the amendments which have occurred only raise yet further pleading issues. Using the paragraph numbers in the proposed 2023 ASOC, those changes appearing in the 2025 SOC are as follows:

Apart from the addition of the new allegations and new relief sought in the 2025 SOC which are outlined above, the allegations and relief sought in the 2024 SOC in the 2024 Romulus Proceedings are substantially the same as the allegations and relief sought in the 2025 SOC. This is demonstrated in the Annexure, where the changes between 2024 SOC and the 2025 SOC are highlighted.

It is abundantly clear that the changes which appear in the 2025 SOC from the 2024 SOC are not material in any way and demonstrate a failure by Romulus to accept the judicial determinations which have come before in multiple proceedings. The complete form of [32] of the 2025 SOC is the grandest example of this flaw:

The 2025 SOC seeks to reagitate several claims and forms of relief which have already been the subject of adverse judicial determination in earlier related proceedings.

Much of the 2025 SOC proceeds on the basis described at [6] of the 2025 SOC:

The contrary position has been determined by this court and others on several occasions: see the Nicholas J Agusta Judgment at [32]. This finding has been characterised by this court as “long-settled”: Kunc J Riva Judgment at [91].

By prayer one in the 2025 SOC, Romulus seeks a declaration that the Official Trustee made “wilful fraudulent representations, carried out in a manner of a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage, engaged in actual fraud”. In effect, this claim was determined in the Perry J Riva Judgment at [67]:

By prayer two in the 2025 SOC, Romulus seeks a declaration that the Official Trustee was “aware that the [Property] was not beneficially held by Gustavo and Angelo, continued to hold out and proceed on the basis that it was beneficially held”. The following findings in the Kunc J Riva Judgment at [89] are particularly pertinent:

By prayer three of the 2025 SOC, Romulus seeks a declaration that the defendant was under an “equitable duty and obligation to Riva to the title to the land in folio identifier 2/389502”. At [38] of the 2025 SOC, Romulus contends that the Official Trustee acted contrary to two duties: the duty to transfer or cause the transfer of the legal title to the land to Riva or its nominee; and the duty not to interfere with dealings with the land on behalf of Riva including the said proposed refinancing of the land with Provident. There is no description in the 2025 SOC as to how these duties are said to arise, they are simply asserted. The findings made in the Perry J Riva Judgment at [59] are applicable here:

In any event, the submission that the Official Trustee owed Riva a nondescript “equitable duty and obligation” does not arise above bare assertion and ignores the fact that the Point Piper Property did not vest in the Official Trustee but rather that it obtained an interest in the proceeds of sale in the form of a lien at the time of the bankruptcy of Angelo and Gustavo.

Prayers four and five of the 2025 SOC seek declarations that the Official Trustee made fraudulent representations, engaged in fraudulent concealment and in conspiracy to defraud. These matters were determined in the Kunc J Riva Judgment at [94] as follows:

By prayer six of the 2025 SOC, Romulus claims damage for conspiracy to defraud. There has been no material amendment to this claim between the 2025 SOC and the 2023 ASOC. The defects in this pleading were identified in the Slattery J Riva Judgment at [31]:

By prayers seven and twelve of the 2025 SOC, Romulus claims damages for slander of title. The following findings in the Kunc J Riva Judgment at [97] are equally applicable here:

By prayers eight of the 2025 SOC, Romulus seeks a declaration that the Official Trustee engaged in malice. This relief is sought on the basis that the Official Trustee was aware from the outset that the statements made asserting the Point Piper Property was beneficially held by Gustavo and Angelo was at all times false. As indicated above, this claim is inconsistent with the conclusion reached in the Nicholas J Agusta Judgment that the Point Piper Property was in fact beneficially held by Gustavo and Angelo at the time of their bankruptcy.

By prayer nine of the 2025 SOC, and in connection with the relief sought above, Romulus contends that the operation of s 55 of the Limitations Act 1969 (NSW) ought to be suspended from 3 March 2006 to December 2021. This claim was determined by in the Slattery J Riva Judgment at [35]:

By prayer ten of the 2025 SOC, Romulus seeks damages for breach of trust. In respect of this relief, the following findings were made in the Kunc J Riva Judgment at [92] and [100]:

By prayers eleven, twelve, thirteen, fourteen and fifteen of the 2025 SOC, Romulus seeks damages for conspiracy to defraud, slander of title, consequential damages and equitable damages and compensation. Given the court’s conclusions in the preceding paragraphs, there is no basis on which to grant this relief.

It is therefore clear that the matters raised in the 2025 SOC are an attempt to relitigate issues which have already been determined in earlier proceedings. The observations in the Kunc J Riva Judgment at [90] are similarly applicable to this case:

Romulus submits that the 26 March 2009 Email makes clear that the petitioning creditor was urging upon the Official Trustee the view that at least the surplus funds were not vested in any trust but remained vested in the natural persons bankrupted. Accordingly, Romulus alleges that the insistence that was being urged by Angelo and Gustavo upon the Official Trustee was that the Point Piper Property had vested in the Trust and that those pleas were ignored. On this basis, Romulus contends that the 26 March 2009 Email is relevant to the assessment of the probability of the sequence of facts which [30] of the 2025 SOC seeks to establish. Further, and to the extent of disagreement, Romulus contends that the ultimate connotation of the 26 March 2009 Email and the bearing it has on the whole of the evidence is a matter for the court to decide, seized of all the facts. For these reasons, Romulus submits that it should be permitted to conduct that case.

The Official Trustee contends that the 26 March 2009 Email does not constitute fresh evidence and advances three arguments in support of its position.

First, the Official Trustee claims that the 26 March 2009 Email is not new and was mentioned in:

The Official Trustee contends that the 26 March 2009 Email is not fresh evidence and has been the subject of previous pleadings as early as 2022.

Secondly, the Official Trustee submits that Romulus has provided no explanation as to the delay in bringing the purportedly new claim in the 2025 SOC in circumstances where the new evidence had been discovered in December 2021.

Thirdly, the Official Trustee submits that the portion of the 26 March 2009 Email relied upon does not substantiate the purported new claim because Mr Findlay does not confirm nor concede that the Point Piper Property was the property of the Trust in the 26 March 2009 Email. Rather, it is contended that Mr Findlay conveyed to Angelo the fact that the petitioning creditor had been pressing the Official Trustee to claim the trust funds from the sale of the Point Piper Property as property in the bankrupt estate. The Official Trustee suggests that these formed part of the following findings made in the Nicholas J Agusta Judgment at [32]:

In reply, Romulus contends that the fact the 26 March 2009 Email was mentioned in the particulars contained in a proposed 2022 SOC does not prevent it from being relied upon as new evidence in the 2025 SOC. On this, Romulus submits that the novelty of [30] of the 2025 SOC can be inferred by the fact that the issues relating to the 26 March 2009 Email have not yet been ventilated at trial as neither the proposed 2022 ASOC nor the proposed 2023 ASOC became the subject at trial because leave was not granted for the proceedings to continue.

In further reply, Romulus submits that the court, in conducting its assessment as to whether [30] of the 2025 SOC has the character contended for by Romulus, should take the allegations in the 2025 SOC at their hypothetical highest in order to assess the viability of the proceedings. However, Romulus suggests that it is not possible for the court to conduct that exercise in the abstract nor at this liminal stage. On this basis, it is argued that the present application is not the sort of interlocutory proceeding in which the court, faced with a factual dispute involving arguments concerning the nuances of the 26 March 2009 Email, will be able to solve and instead it should be permitted to run its course to trial.

In my mind, the 26 March 2009 Email cannot have the import which Romulus seeks to suggest that it does for the following reasons:

During the preparation of this judgment, it came to my attention that ss 13(1)(b), 13(2) and 13(3) of the VP Act may have an automatic operation in circumstances where the person instituting the proceedings is acting in concert with a person who has been declared a vexatious litigant under s 8(7)(b) of the VP Act and has not been granted leave under s 16 of the VP Act.

Consequently, on 4 March 2026 I invited the parties to provide written submissions to my chambers in relation to whether these provisions have any operation in these proceedings and, if so, the consequence of their operation. On 11 March 2026, the parties each provided submissions to my chambers on this issue.

Section 13 of the VP Act provides as follows:

The automatic operation of s 13 was described by Black J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2023] NSWSC 896 at [17]–[19] in the following terms:

The consequences of a third party instituting proceedings in concert with a person declared to be a vexatious litigant without having applied for or having been granted leave to institute proceedings under s 16 was explained in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 by Bell P at [69]–[73]:

The Official Trustee’s submissions on this issue can be summarised as follows:

Of these propositions, the Official Trustee accepted (correctly in my view) that an issue arose as to whether Romulus is acting in concert with Angelo in instituting these proceedings. If so, the Official Trustee says that by operation of s 13 of the VP Act, these proceedings were instituted in contravention of s 13(1)(b) and must be taken to have been dismissed on the expiry of the period 28 days after the proceedings were first instituted: ss 13(2) and 13(3) of the VP Act.

The Official Trustee submits that “acting in concert” will only be established where there is a real understanding, common purpose or a combination or aggregation of those matters, between Angelo and Romulus: Re Boart Longyear Ltd (No 2) (2017) 323 FLR 241; [2017] NSWSC 1105, Black J at [320]. The Official Trustee argues that this extends to informal and unenforceable arrangements, including those in which the parties are free to withdraw from or to act inconsistently notwithstanding their participation in the arrangement: Bateman v Newhaven Part Stud Ltd (2004) 207 ALR 406, Barrett J at [18], citing Bank of Western Australia v Ocean Trawlers (1995) 16 ACSR 501 at 523–525 .

Accordingly, the Official Trustee contends that the words “acting in concert” in s 13 of the VP Act serve the purpose of preventing the commencement or continuance of litigation that circumvents the letter or the spirit of the statutory prohibition presently in effect against Angelo. The Official Trustee points to the following indicia to suggest that Romulus and Angelo were “acting in concert” within the meaning of s 13 of the VP Act:

Romulus makes two submissions on the issue of the application of s 13 of the VP Act.

First, Romulus submits that the terms of the Angelo VP Order have not been infringed by the institution of these proceedings as they were not brought in the name of Angelo, Gustavo or Riva. Romulus asserts that in the Kunc J Decision, Kunc J (at [153]) was careful to point out that he considered the wide form of orders sought by the Official Trustee were not appropriate and rejected the Official Trustee’s submission that an order should be made prohibiting Angelo from “participating in the institution or conduct” of any proceedings against it.

Consequently, Romulus contends that even if it did act in concert with Angelo, that fact could only have a deleterious consequence for Romulus if Angelo were enjoined, by the terms of an order made under s 8 of the VP Act, preventing him from being involved in any proceedings whatsoever regardless by whom they were brought.

Secondly, Romulus argues that the facts do not disclose that Angelo and Romulus are “acting in concert” within the meaning of s 13 of the VP Act. Romulus points to the following matters to support its argument:

I am satisfied that s 13(1)(b) of the VP Act applies to these proceedings and, by virtue of the automatic operation of ss 13(2) and 13(3) of the VP Act, these proceedings were stayed when they were instituted and dismissed 28 days after they were first instituted. Accordingly, these proceedings are taken to be dismissed on 2 June 2025 (28 days after the date the 2025 SOC was filed).

I reject the relevance of the submission by Romulus that because it is not named in the Angelo VP Order, the Angelo VP Order has not been breached if Angelo acted in concert with Romulus. As is made clear by the plain and ordinary meaning of the words “acting in concert”, the effect of s 13(1)(b) of the VP Act is to extend the operation of any order made under s 8(7) of the VP Act to prevent the commencement or continuation of proceedings by a third party, acting in concert with a person named in the order made under s 8(7), without leave of the court. This is regardless of whether that third party is named in the relevant vexatious litigant order.

It is therefore irrelevant that the Angelo VP Order did not expressly name Romulus as a party prevented from instituting or conducting such proceedings. In fact, it would be absurd if that was the case. It would render the operation of s 13(1)(b) effectively otiose and frustrate the provision’s object of preventing the commencement of vexatious proceedings that are instigated by a third party acting in concert with a person who is subject to a vexatious proceedings order without leave of the court. Angelo is prevented by the Angelo VP Order from instituting proceedings without leave of the court, pursuant to the operation of s 13(1)(a) of the VP Act. Any third party acting in concert with Angelo is also prevented from instituting proceedings without leave of the court, pursuant to the operation of s 13(1)(b) of the VP Act.

The crucial question is not whether the Angelo VP Order has been breached but whether the terms of s 13(1)(b) have been engaged.

The issue of whether these proceedings have been automatically stayed and then dismissed pursuant to ss 13(2) and 13(3) of the VP Act depends on whether Romulus is “acting in concert” with Angelo in bringing these proceedings. The following matters in combination strongly establish that Romulus is acting in concert with Angelo in instituting these proceedings:

I reject the arguments raised by Romulus, in which it negates any inference that it was acting in concert with Angelo. In particular:

In my view, Romulus has brought these proceedings “acting in concert” with Angelo. Accordingly, these proceedings were instituted without leave, contrary to s 13(1)(b) of the VP Act. They must be taken to have been stayed when they were instituted and dismissed 28 days after the proceedings were first instituted (being 2 June 2025), pursuant to the automatic operation of ss 13(2) and 13(3) of the VP Act.

In case I am wrong about this conclusion, I have set out below my reasoning in relation to the other issues raised at the hearing in respect of the stay or summary dismissal of these proceedings or striking out of the 2025 SOC on the basis that as a matter of general practice, a trial judge should determine all issues in order to assist the appeal process and obviate the need for a retrial: see Transport for NSW v Hunt Leather Pty Ltd (2024) 115 NSWLR 489; [2024] NSWCA 227, Bell CJ, Leeming and Mitchelmore JJA at [99], cited in Kronenberg v Macaulay [2025] NSWCA 195, Leeming JA at [20] (with whom Mitchelmore and Free JJA agreed); Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37, French CJ, Kiefel, Bell, Keane and Nettle JJ at [113]; Gulic v Boral Transport Ltd [2016] NSWCA 269, Macfarlan JA (with whom Gleeson JA and Garling J agreed) at [7].

The Official Trustee contends that these proceedings should be stayed under r 12.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), relying on the fact that Romulus is liable to pay, and has not yet paid, the Official Trustee’s costs of the 2024 Romulus Proceedings, pursuant to the terms of the notice of discontinuance.

UCPR r 12.4 provides:

The purpose of an order made under r 12.4 of the UCPR was explained by Gleeson JA in Pi v Zhou [2016] NSWCA 148 at [17] as being that it “prevents the injustice to the defendant of being saddled twice with unpaid costs”. This is evident in the terms of the rule which operates during the period between the plaintiff having a liability to pay costs and the payment of those costs.

The meaning of the expression “same or substantially the same cause of action as that on which the former proceedings were commenced” in r 12.4 of the UCPR was considered in CGU Insurance Ltd v Watson (as trustee of the deed of arrangement in respect of Greaves) [2007] NSWCA 301 by Giles JA at [41]:

The Official Trustee submits that these proceedings should be stayed until Romulus pays the Official Trustee’s costs of the 2024 Romulus Proceedings as agreed or assessed. It contends that the requirements for a stay pursuant to r 12.4 of the UCPR are satisfied because the 2024 Romulus Proceedings were discontinued on terms which included an order that Romulus pay the Official Trustee’s costs as agreed or assessed, Romulus has not yet paid those costs and Romulus has commenced these proceedings on the same or substantially the same cause of action as that on which the 2024 Romulus Proceedings were commenced.

As the costs of the 2024 Romulus Proceedings are yet to be agreed or assessed, the Official Trustee contends that neither the terms of the order of discontinuance nor the requirements of r 12.4 of the UCPR mandate that there must be a quantification of the costs to engage the operation of the rule.

In contending that these proceedings seek to agitate the “same or substantially same cause of action” as that in the 2024 Romulus Proceedings, the Official Trustee relied on the table comparing the 2024 SOC in the 2024 Romulus Proceedings and the 2025 SOC in these proceedings. The Official Trustee contends that the differences between the two documents are immaterial and that these proceedings agitate the “same or substantially the same cause of action” as the 2024 Romulus Proceedings.

Romulus accepts that the court’s orders made as a consequence of the notice of discontinuance will subject Romulus to a liability to pay the Official Trustee’s costs of the 2024 Romulus Proceedings, as agreed or assessed. However, Romulus contends that r 12.4 of the UCPR is not yet engaged because its obligation to pay the Official Trustee’s costs does not crystallise unless and until the costs of the 2024 Romulus Proceedings have been agreed or assessed, citing Re Elgar Heights Pty Ltd [1985] VR 657, Brooking J at 663; In the matter of Tetbury Pty Ltd [2017] NSWSC 37, Black J at [29].

Romulus also observes that the terms of the discontinuance do not expressly prohibit these proceedings from being commenced or continued until the payment of the Official Trustee’s costs. It was contended that the Official Trustee’s submission could not succeed unless the court had explicitly ordered that new proceedings not be permitted to be commenced or continued until the payment of costs as agreed or assessed.

Whether r 12.4 of the UCPR requires that the costs of the 2024 Romulus Proceedings be fixed (either by assessment or agreement) before it can be engaged was the subject of significant oral argument at the hearing before me. As observed in Ritchie’s Uniform Civil Procedure NSW (LexisNexis, looseleaf) at [12.4.45]:

The determinative question that arises is whether Romulus is “liable to pay the costs” of the 2024 Romulus Proceedings upon the making of the order or only once those costs have been quantified by assessment or agreement.

Where costs are awarded “as agreed or assessed”, the date at which liability arises will be distinct from the date upon which a costs order is enforceable or “takes effect” within the meaning of r 36.4 of the UCPR, which provides as follows:

A helpful discussion of the nature of a costs order can be found in Riva NSW Pty Ltd v Key Nominees [2023] NSWSC 711 by Meek J at [178]–[184]:

Crucially, the distinction between the date at which a party incurs the “liability” to pay a costs order “as agreed or assessed” and the date at which that costs order becomes enforceable was discussed in Wentworth v Wentworth (1999) 46 NSWLR 300; [1999] NSWSC 317 at 316 per Santow J (emphasis added):

Accordingly, I reject the submission of Romulus that r 12.4 of the UCPR is not engaged unless and until the costs of the 2024 Romulus Proceedings have been agreed or assessed. Although the costs order may not “take effect” until the costs of the 2024 Romulus Proceedings have been agreed or assessed, the terms of r 12.4(a) are concerned only with the anterior question of whether liability to pay those costs has arisen.

In my opinion, to accept the submission of Romulus would put a gloss on the operation of the rule which simply does not exist because the terms of r 12.4(a) are engaged as soon as a plaintiff is liable to pay the costs of another party in relation to proceedings as a consequence of the discontinuance of those proceedings, regardless of the terms of that liability. It is clear that the liability under the costs order arises at the time the costs order is made.

In other words, the operation of the discretion provided by the rule is triggered once Romulus had a liability to pay the costs, not the quantification of those costs. As stated in Pi, the purpose of r 12.4 of the UCPR is to prevent “the injustice to the defendant of being saddled twice with unpaid costs”. It would run contrary to this purpose if Romulus could force the Official Trustee to incur further costs in defending another set of proceedings merely because the quantum of its liability for costs under the terms of the discontinuance is not yet fixed.

This reading of the rule fulfils its protective purpose for the Official Trustee so that the court can consider whether it is appropriate for it not to be vexed twice with the same costs in two or more proceedings which are the same or substantially the same when the costs of the 2024 Romulus Proceedings have not yet been paid. The Official Trustee qualifies for the possible exercise of the discretion if it is appropriate for it to be protected from the moment the discontinuance occurs until the costs of the 2024 Romulus Proceedings are paid, otherwise it will be at a costs jeopardy if Romulus unnecessarily delays agreeing or assessing the costs arising from the discontinuance.

The operation of the rule is not punitive to Romulus because it can avoid the discretion arising by either paying the Official Trustee’s costs before bringing the new proceedings or providing security for the Official Trustee’s costs so that it is not at risk of incurring irrecoverable costs in both sets of proceedings.

I also disagree with the submission made by Romulus that because the terms of the discontinuance did not expressly prohibit proceedings from being commenced or continued until after the payment of the Official Trustee’s costs, r 12.4 has no operation. In my view, r 12.4 does not pay any mind to the terms of the discontinuance. If such a condition existed then r 12.4 would have no work to do and the discretion would never be engaged because the proceedings could not be initiated under the terms of the discontinuance. It is precisely in cases where the discontinuance contains no term preventing further proceedings before costs are paid that the discretion in r 12.4 is intended to operate.

The terms of r 12.4 only require that the plaintiff be “liable to pay the costs of another party”. It does not appear to consider or turn on whether the plaintiff has breached the terms of discontinuance. It appears to only be concerned with whether liability has been incurred or not.

This does not mean that the Romulus’ right to bring proceedings could be frustrated or unduly delayed by virtue of the parties’ inability to reach an agreement on the costs of the 2024 Romulus Proceedings or issues arising from an assessment of those costs. Rather, it must be recalled that an exercise of the power under r 12.4 is discretionary. Accordingly, it is open to this court to refuse to make an order under r 12.4, including where the circumstances fall within the rule: Re Payne (1883) 23 Ch D 288; Martin v Beauchamp (1883) 25 Ch D 12; McCabe v Bank of Ireland (1889) 14 App Cas 413.

For the reasons stated above, it is clear that the allegations and relief sought in the 2025 SOC in these proceedings are substantially the same as the allegations and relief sought in the 2024 SOC in the 2024 Romulus Proceedings.

The discretion to stay these proceedings has been enlivened under r 12.4 of the UCPR. If these proceedings had not been stayed and dismissed by the operation of s 13(1)(b), 13(2) and 13(3) of the VP Act, this is an appropriate case in which I would have exercised my discretion to stay these proceedings until the costs of the 2024 Romulus Proceedings had been paid for the following reasons, which are in addition to those which engaged the operation of r 12.4:

In the alternative, the Official Trustee contends that the proceedings should be permanently stayed, pursuant to s 67 of the CPA. The Official Trustee seeks the permanent stay on the same basis as the application for a summary dismissal and strike out of the 2025 SOC (which I have dealt with below), save for an additional argument regarding the frustration of the Angelo VPA Order.

Section 67 of the CPA provides that:

This provision does not identify any particular criteria as relevant to the exercise of the power, however it covers a variety of circumstances in which the court’s inherent jurisdiction to prevent abuse of its process may be invoked: New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA (with whom Beazley and Hoeben JJA agreed) at [15].

In exercising my discretion under s 67 of the CPA, I must also have regard to the requirements of ss 56 and 57 of the CPA.

The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.

In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.

The Official Trustee contends that this court should exercise its power under s 67 of the CPA and stay the proceedings on four grounds.

First, the Official Trustee contends that the claims made in these proceedings are essentially the same or similar to those made in prior proceedings and that it would be an abuse of the court’s processes to have those matters relitigated in these proceedings.

Secondly, the Official Trustee contends that Angelo is using Romulus and his mother Nida (as the sole director and sole shareholder of Romulus) to circumvent the Angelo VP Order declaring him a vexatious litigant. Accordingly, the Official Trustee maintains that this court should stay the proceedings to prevent an abuse of its processes and to ensure compliance with its substantive orders.

To this effect, the Official Trustee relies on the observations in Ferella v Official Trustee in Bankruptcy [2013] FCA 1319 by Jacobson J at [3] and the statements in Ferella v Official Trustee in Bankruptcy (No 2) [2014] FCA 508 by Gleeson J at [5] and [8], both of which are extracted above.

The Official Trustee submits that I ought to draw an inference that it is Angelo and not Nida who is actively involved in the conduct of these proceedings and, if such an inference is drawn, then it becomes plain that Angelo is using Romulus and Nida to circumvent the Angelo VP Order. This inference is said to be partly on the basis that Romulus provided no explanation as to why Nida did not or could not give evidence.

Thirdly, to the extent that Romulus disagrees with the determination of facts or the application of law as determined by various prior judgments, the Official Trustee contends that the appropriate course is an appeal and not the commencement of new proceedings.

Fourthly, the Official Trustee submits that Romulus makes no new allegations against the Official Trustee that have not already been rehearsed and determined in the prior proceedings.

In response, Romulus’ primary contention is that the 2025 SOC does not simply relitigate settled disputes but rather is supported by fresh evidence in the form of the 26 March 2009 Email.

In response to the Official Trustee’s contention that Angelo is in effect conducting these proceedings and thereby frustrating the Angelo VP Order, Romulus contends that the court should exercise an appropriate measure of restraint in deciding whether it is Angelo and not Nida who is actively involved in the conduct of these proceedings, particularly where it appears that the business of the family has been conducted in a tightly-knit fashion and where a real question arises of disobedience to the court’s orders and the serious consequences entailed by that. Further, Romulus notes that although Nida did not give evidence herself, Angelo gave evidence pursuant to the power of attorney granted to him by Nida.

If these proceedings had not been stayed and dismissed by the operation of ss 13(1)(b), 13(2) and 13(3) of the VP Act, I would have exercised my discretion to permanently stay these proceedings pursuant to s 67 of the CPA for the following reasons.

As stated above, the 2025 SOC attempts to relitigate earlier proceedings which have been determined by this court and others. The amendments that have been made since the proposed 2023 ASOC do not change its basic structure, allegations and relief and instead pursue the previously determined allegations as to the Official Trustee’s purportedly fraudulent conduct with greater fervour. This insistence is demonstrated often by way of only adding the phrase, “carried out in a manner of a wilful material act of deception successfully performed with deliberate intent to knowingly misrepresent to deceive to gain advantage”, to the claims which featured in the proposed 2023 ASOC.

It is inherently an abuse of process to constantly repackage the same or substantially the same allegations with merely cosmetic changes which demonstrate a refusal to accept the judicial determinations on them which has come before. For the reasons expressed above, the 26 March 2009 Email is not “new evidence”. The serial change in the selection of the plaintiff who makes the same allegations does no more than attempt to abuse the process of the court and continually vex the Official Trustee with yet further litigation based on exactly the same dispute.

The permanent stay of these proceedings also meets the overriding purpose in ss 56 and 57 of the CPA to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Constant proceedings on the same dispute concerning issues which have already been determined uses scarce judicial resources and wastes time and costs.

In the further alternative, the Official Trustee seeks an order that the proceedings be summarily dismissed pursuant to r 13.4 of the UCPR or that the 2025 SOC be struck out pursuant to r 14.28 of the UCPR.

The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR, which relevantly provides as follows:

For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, in which it was held by Barwick CJ at 128–129 that:

In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way at [57] (citation omitted):

This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J at [24].

In Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) at [32] elaborated on the General Steel test for summary dismissal as follows:

This assessment is to be made by taking the case of the party bringing the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian (2014) 17 BPR 33,717; [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (unreported, NSWCA, Priestley and Meagher JJA and Wardell AJA, 15 March 1991); Agius v New South Wales [2001] NSWCA 371, Giles JA (with whom Priestley and Powell JJA agreed) at [24].

The Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239, similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

In dealing with an application to summarily dismiss and/or strike out a statement of claim drafted by a self-represented litigant such as this (albeit one who obtained counsel in opposing the application), I must recognise that there is a disadvantage in relation to which I must exercise special care to ensure that there is no viable cause of action in the 2025 SOC which would survive if put in proper form because if it can be done, then I should avoid the summary termination of the proceedings. On this, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P (with whom Hope and Samuels JJA agreed) observed at 536–537:

However, in doing so, I must have regard not only to the litigant in person but also to the position of the other parties and what is required in the interests of justice to prevent the unnecessary expenditure of both public and private resources: Herbert v American Express Australia Limited [2018] FCA 1790, Flick J at [60], citing Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989).

In balancing these competing interests, I am assisted by the decision of Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485, in which her Honour refers to two further decisions: Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 and Knorr v CSIRO (No 3) [2012] VSC 529. The relevance of those decisions was summarised by Muston J in Caroline Chamoun v Gemi Nominees Pty Limited [2025] NSWSC 1300 at [39]–[40]:

In State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81–423 (cited with approval in Haigh v Haddad [2025] NSWCA 28 by Ward P and Adamson JA at [65]), Giles CJ (Comm D) identified the relevant factors for determining whether an attempted re-litigation amounts to an abuse of process in any given case at 64,089:

In the alternative, the Official Trustee contends that the 2025 SOC should be struck out. The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides:

In relation to the power to strike out a pleading, the court must consider the importance of the pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. However, the court does not treat them as rigid boundaries beyond which the parties may never stray.

In Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517 wrote (reading past the gender inappropriate use of “man” from more than 100 years ago):

These themes were emphasised in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296–297, who stated (authorities omitted):

In Banque Commerciale, Brennan J added at 288:

Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings.

These matters were emphasised by Adamson J in Dickens at [36] and [38]–[39]:

The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, Johnson J at [32]–[35], as follows:

In exercising my discretion under r 13.4 and 14.28 of the UCPR, I must also have regard to the requirements of ss 56 and 57 of the CPA of giving effect to the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings, having regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings at a cost affordable by the respective parties.

In addition to the arguments advanced by the Official Trustee contending that these proceedings should be permanently stayed as an abuse of process, the Official Trustee claims that the 2025 SOC ought to be struck out either in its entirety or in part for two reasons.

First, the Official Trustee contends that the claims made in these proceedings are essentially the same or similar to those made in prior proceedings. This submission was in terms identical to that made above in respect of the permanent stay sought under s 67 of the CPA.

Secondly, the Official Trustee contends that it is not pleaded in the 2025 SOC that there was any kind of vesting or transfer of the chose in action in the form of the right to sue to the Official Trustee upon the retirement of Riva as trustee of the Trust on 5 February 2024 and the appointment of Romulus as trustee of the Trust. Relevantly, cl 15(d) of the Deed of Trust provides that:

The Official Trustee contends that there is no evidence that Riva had taken any action to vest the right to sue, or otherwise cause it to be vested, in Romulus as would be required pursuant to cl 15(d) of the Deed of Trust. As part of its argument, the Official Trustee relies on the Nicholas J Agusta Judgment at [32] to suggest that some further act is required beyond mere appointment to vest the chose of action in Romulus. On this basis, it contends that the 2025 SOC is deficient for want of allegations that establish Romulus’ right to sue as the current trustee.

In response to the first of the Official Trustee’s submissions, Romulus places reliance on the factor identified by Ward P and Adamson JA in Haigh v Haddad at [65(e)], namely whether there is “any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings”. Accordingly, akin to the argument made in respect of the stay under s 67 of the CPA, Romulus contends that the 26 March 2009 Email constitutes fresh evidence that is relevant to the probability of the sequence of facts which [30] of the 2025 SOC seeks to establish. Accordingly, Romulus submits that it should be permitted to place such fresh evidence before this court at trial.

In response to the submission that the 2025 SOC is deficient for want of pleadings in respect of the vesting of Riva’s right to sue in Romulus as the new trustee, Romulus ultimately concedes that this a deficiency and seeks an opportunity to correct it.

For the same reasons as I have expressed above in relation to the permanent stay of these proceedings under s 67 of the CPA, these proceedings are an abuse of process in that Romulus is seeking to relitigate the same or substantially the same allegations from earlier proceedings which have been determined by this court and others. For that reason, if these proceedings had not been stayed and dismissed by operation of ss 13(1)(b), 13(2) and 13(3) of the VP Act, I would have exercised my discretion to summarily dismiss them.

If I was wrong about the summary dismissal of the proceedings, then I would have struck out the 2025 SOC in its entirety for the same reasons as had been expressed in the Slattery J Riva Judgment at [26]–[27] and [32]–[34]. In short, as was the case with the proposed 2023 SOC, the 2025 SOC is “not a pleading which is capable of amendment, to plead recognisable and maintainable causes of action or claims for relief”.

As I have also concluded above, the 26 March 2009 Email cannot be regarded as “new evidence” and does not provide a basis on which the allegations in the 2025 SOC can be allowed to proceed to trial.

Finally, Romulus correctly conceded that the 2025 SOC was deficient to the extent that it did not include an allegation related to the vesting of the right to sue in Romulus. It is at least arguable that the vesting took place by virtue of the appointment of Romulus as trustee, notwithstanding the reasoning at [32] of the Nicholas J Agusta Judgment. However, the failure of Romulus to set out the basis on which the alleged right to sue was vested in Romulus is a deficiency in the 2025 SOC, which would have to be corrected if it were allowed to stand.

In conclusion, the proceedings were stayed when they were instituted on 6 May 2025 and dismissed on 2 June 2025 by the operation of ss 13(2) and 13(3) of the VP Act as Romulus has instituted proceedings acting in concert with Angelo without the leave of the court.

If I am wrong in reaching this conclusion, then I would have exercised my discretion:

For the reasons set out above, I make the following orders: