A.C.N. 627 087 030 Pty Ltd v Poche

1. [1]

   WARD P: This is an application brought in the referrals list by notice of motion filed 30 October 2025 by Adam Poche (the applicant), who is the respondent in judicial review proceedings commenced in this Court by the respondent on the motion, an entity named ACN 627 087 030 Pty Limited, to which I will refer as YBL2. The notice of motion seeks an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), alternatively, in the Court’s inherent jurisdiction, dismissing these proceedings as an abuse of process. In the alternative, an order is sought pursuant to r 12.7 of the UCPR, alternatively in the Court’s inherent jurisdiction, that these proceedings be dismissed for want of prosecution. An order for costs is sought and, further, an order is sought that Mr Farshad Amirbeaggi (a solicitor who was formerly the sole director of YBL2) be jointly and severally liable for the respondent’s costs in these proceedings.

2. [2]

   The background to this application is an ongoing dispute between the parties relating to costs that were incurred by Mr Poche when represented by YBL2. Broadly, by way of background, Mr Poche sought an assessment of the costs in relation to the proceedings in which Mr Amirbeaggi’s firm, YBL2, had acted for him. The result of the costs assessment process was to reduce the amount payable to YBL2 by a sum of $98,000. The effect of that, because Mr Poche had already paid that amount, was that a statutory debt arose from a date in about 7 May 2021 in that amount in favour of Mr Poche. YBL2 has litigated in relation to that debt seemingly ever since.

3. [3]

   YBL2 sought to have the costs assessment decision reviewed and was unsuccessful in that challenge. YBL2 then brought an appeal to the District Court in relation to the outcome of the review and was again unsuccessful. YBL2 then brought an application for judicial review of that District Court decision in this Court, and that application was dismissed.

4. [4]

   Proceedings were then back in the District Court, and a costs order was made against YBL2. Mr Poche sought that the costs order be made on a gross sum basis. The matter came before Gibson DCJ in the District Court in August and September 2024. Her Honour referred out to an independent costs assessor the quantification, on both an indemnity basis and the ordinary basis, of the costs of the proceedings, and subsequently adopted that report, and made orders for YBL2 to pay Mr Poche’s costs assessed on a gross sum basis in the amount of $216,372.20 (that is the figure noted by Kirk JA in his ex tempore judgment on 7 April 2025 (ACN 627 087 030 Pty Limited v Poche [2025] NSWCA 66 (ACN 627 087 030 Pty Limited v Poche) at [3]), to which I will refer in due course).

5. [5]

   YBL2 then filed a summons on 6 December 2024 in this Court seeking judicial review of the decision made by Gibson DCJ on 19 November 2024 as to the gross sum costs. That summons identified two grounds of review.

6. [6]

   The first was that the primary judge fell into error of law on the face of the record and/or jurisdictional error by failing to disqualify herself from determining whether the referee’s report ought be adopted (because the hypothetical fair-minded lay observer might reasonably apprehend that the Court might not have brought an impartial and unprejudiced mind to the resolution of the issues). That ground was supplemented by particulars, including, in particular (a), that a fair-minded lay observer might have apprehended that the primary judge may have decided the case other than on its legal and factual merits because, first, the primary judge was the subject of an extant judicial complaint by the plaintiff to the proceedings regarding her conduct in the proceedings, and, second, the primary judge’s associate had, in a communication with the referee sent prior to the adoption hearing without notice to, but copying, the parties to the proceedings, stated that “her Honour is pretty impressed with your report”.

7. [7]

   The second ground identified in the judicial review summons was that her Honour fell into error of law on the face of the record and/or jurisdictional error, by misconstruing, misapprehending or misapplying the law under s 176 of the Legal Profession Uniform Law Application Act 2014 (NSW), and by failing to take into account proportionality of costs incurred by the defendant in the proceeding in determining the sum of costs to be awarded, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW).

8. [8]

   What then followed was a motion by YBL2 seeking a stay of the orders made by Gibson DCJ, that motion being filed on 26 February 2025; and a motion filed by Mr Poche on 11 March 2025 seeking security for costs. Those motions came before Kirk JA for hearing in the referrals list on 7 April 2025.

9. [9]

   His Honour in his ex tempore reasons in relation to those motions noted that a stay of Gibson DCJ’s orders had been ordered in the District Court by Dicker SC DCJ on two occasions, expiring on 3 March 2025 (ACN 627 087 030 Pty Limited v Poche at [6]). His Honour considered it clear that the balance of convenience, taking into account the risk of prejudice, favoured Mr Poche in relation to the application for a stay. His Honour made various observations as to what he considered to be YBL2’s relatively limited prospects of success in the judicial review proceedings, and said (see [15]) that it was clear in his view that the interests of justice militated against the grant of a stay. The application for a stay was refused.

10. [10]

    His Honour then turned to the security for costs motion and, for reasons that I do not need here to recount, determined that an order for security for costs should be granted, and that it was appropriate to take a broadbrush to the assessment of those costs. Having regard to the costs estimates provided by the solicitor for Mr Poche, his Honour was of the view that an appropriate allowance for security for costs was $30,000. His Honour ordered that the applicant provide within 15 days security in the sum of $30,000 for the respondent’s costs by payment of that amount into court (at [29]). That was on 7 April 2025.

11. [11]

    In his Honour’s ex tempore reasons, his Honour also referred to an order sought by Mr Poche that the summons be dismissed as incompetent in circumstances where the ground of review concerned an interlocutory decision of the District Court and where there had not been an application for leave to appeal, but his Honour did not need to deal with that (at [30]-[32]). His Honour also noted that there was a complaint that YBL2 had not filed the documents required by r 51.45 of the UCPR. His Honour stayed the application for judicial review until security was provided in accordance with order (2) that was made on that occasion.

12. [12]

    What transpired thereafter was that YBL2 failed to comply with the order to make payment for security for costs by 22 April 2025. On 28 April 2025, YBL2 was placed into voluntary administration. Prior to entry of YBL2 into voluntary administration on 28 April 2025, but after the order for the provision of security for costs made by Kirk JA on 7 April 2025, Mr Farshad Amirbeaggi, who was the sole director of YBL2, was replaced as director by Mr Paul Hatcliff, who I infer, (by reference to a preliminary list of Creditors emailed by the deed administrators to Mr Poche’s solicitors on 7 May 2005) is associated with the entity Hatcliff Corporate Advisory, a creditor of YBL2, but nothing turns on this.

13. [13]

    After 28 April 2025, on 23 May 2025, Mr Amirbeaggi, who was and remains the sole shareholder of YBL2, put to the administrators a proposal that the company execute a deed of company arrangement. The proposed terms of the deed of company arrangement included that the deed fund was to comprise all funds held in the administration bank account, together with the greater of “by, on or before 24 months of the DoCA, the receipt of proceeds, net of litigation costs of those proceedings, of any recovery made in the following litigation...” (cl 2.2.1).

14. [14]

    The proceedings there referred to included, at cl 2.2.1.3 of the proposal:

15. [15]

    On 23 June 2025, a document headed “Deed of Company Arrangement” was executed as a deed by Mr Farshad Amirbeaggi as “deed proponent”, and by the nominated deed administrators, Domenic Calabrett and Grahame Ward, as well as by YBL2 (by this time named Cost Assessment Dispute Pty Ltd (Administrators Appointed) ACN 627 087 030). That deed of company arrangement (DOCA) provided in recital H that, subject to the terms of the DOCA, the DOCA binds all creditors of the company in accordance with s 444D of the Corporations Act 2001 (Cth) and binds the company and its officers and members in accordance with s 444G of the Corporations Act.

16. [16]

    The DOCA also recited, at E, that it would have the effect of maximising the prospect of the company continuing in existence, and assisting the unsecured creditors of the company to achieve a better and more certain return than they would in a winding up. (I interpose to note that the company, YBL2, has not traded for some time. There have since been two new incorporated legal practices associated with Mr Amirbeaggi.)

17. [17]

    Mr Amirbeaggi does not dispute that the DOCA was executed on 23 June 2025 (see [13] of his affidavit affirmed 7 November 2025), although the DOCA itself does not bear an execution date.

18. [18]

    It appears that the solicitors by then acting in the judicial review proceedings took the view that the entry into voluntary administration of the company effected a statutory stay of the judicial review proceedings, because they notified the Registrar of this Court to that effect on or about 12 May 2025, and the Registrar made orders in chambers, the first of which noted that pursuant to s 440D of the Corporations Act the proceedings were stayed. On that occasion, the Registrar vacated both the directions that had been set down for the judicial review proceedings on 14 May 2025 and the hearing that had been set down for 20 May 2025, listing the matter for further directions on 28 May 2025 and granting liberty to restore on three days’ notice.

19. [19]

    Both parties accept that s 440D of the Corporations Act did not in fact impose a statutory stay on the judicial review proceedings brought by YBL2. I raise this because the suggestion that there was a statutory stay, and the order making the notation that I have referred to above, were referred to in the course of submissions on the present application by YBL2 as explaining why it should not be held that there had been a want of due despatch in relation to the judicial review proceedings.

20. [20]

    The position as at 12 April 2025 was that there was a stay pending payment into court of the amount of $30,000 by way of security. The Registrar had noted that there was a stay pursuant to s 440D of the Corporations Act which both parties now accept was incorrect, and that is where the proceedings remained at that point.

21. [21]

    Relevantly, the DOCA contained the following definitions in cl 1.1:

22. [22]

    The effect of the DOCA was, upon execution of the deed, to return control of YBL2 to its director, Mr Hatcliff (see cll 6(b) and 21.1 of the DOCA). Clause 9.1 of the DOCA deals with Deed Fund contributions and cl 9.2, Cash Contribution:

23. [23]

    Mr Amirbeaggi, in his affidavit affirmed 7 November 2025, deposes at [15] that, pursuant to cl 9.1(b)(i)(C) of the DOCA, YBL2 undertook to prosecute the judicial review proceedings for the benefit of creditors. In fact, cl 9.1(b)(i)(C), as set out above, provides that the Deed Fund will comprise the greater of “either, and in the alternative” the receipt of proceeds net of litigation costs of any recovery made in litigation, being judicial review of the decision of Gibson DCJ in the District Court (that is the decision in relation to the gross sum costs order proceedings).

24. [24]

    Clause 9.11 provides:

25. [25]

    Clause 11, headed, “Moratorium and Release” contains cll 11.1 and 11.2 which provide:

26. [26]

    Mr Amirbeaggi has deposed in his affidavit that, at directions hearings in September and October 2025, YBL2 sought the following orders:

27. [27]

    Senior Counsel for YBL2 who candidly described the suggestion that there was a statutory stay as ham-fisted and, similarly, the DOCA as exhibiting ham-fisted confusion, submits that YBL2 has sought to prosecute the judicial review proceedings with due despatch insofar as it has sought to have the stay lifted by reference to the execution of the DOCA on 28 April 2025. However, it remains the case that there has been no payment into court of the security for costs, which was the condition of the original and only operative stay in relation to the proceedings.

28. [28]

    It is against this background that Mr Poche has sought the orders indicated above in his notice of motion. His Counsel frankly concedes that Mr Poche is simply seeking to extricate himself from the morass of litigation that has followed from the costs assessment process in relation to the $98,000 statutory debt owing by YBL2 to him.

29. [29]

    Turning to the two bases on which the dismissal of the judicial review proceedings is sought, they are as follows.

30. [30]

    First, that the continuation of the proceedings is an abuse of process. Mr Poche submits that the continuation of these proceedings is an abuse of process which will bring the administration of justice into disrepute because, on a proper interpretation of the DOCA, the costs award of the District Court has been admitted by the applicant and the sum compromised by the DOCA. Mr Rogers, appearing for Mr Poche has cited the principles in relation to the interpretation of a deed of company arrangement, discussed by Black J in Academy Construction & Development Pty Ltd (subject to Deed of Company Arrangement) [2024] NSWSC 808, at [97]-[98]:

31. [31]

    Mr Poche submits that the costs award has now been compromised by its terms because he is now bound to accept a pari passu distribution from the Deed Fund in lieu of the costs award, and he refers to s 444H of the Corporations Act as supporting that construction of the DOCA. It is accepted by Mr Poche that the DOCA refers to an adjudication process in cl 10.2, but Mr Poche submits that that is relevant to the calculation of distributions to “Creditors”, as defined in the DOCA, and that in the circumstances the costs award is compromised by cl 9.2, whether or not any adjudication process has taken place. It is submitted that, if that be wrong, and to the extent that cl 9.2 has not compromised the debt, cl 10.2 of the DOCA has extinguished it. Clause 10.2 provides:

32. [32]

    Mr Poche in his submissions refers to examples of cases where courts have determined there to be an abuse of process, including:

33. [33]

    It is noted that the courts have expressed a greater willingness to intervene on the grounds of abuse of process where the litigation is satellite litigation, Mr Poche there citing Huang v Attapallil [2017] NSWCA 181 at [6] (White J) and Huang v Attapallil (No 2) [2017] NSWSC 1382 at [166]-[172] (Garling J). It is submitted that the judicial review application has no utility and that the only conclusion that can reasonably be drawn is that the proceedings were instituted to delay payment to the respondent while the applicant sought to strategise as to what steps it would take to avoid payment, and that having achieved that end, the only reason for continuation of the proceedings is to vex Mr Poche, YBL2’s former client.

34. [34]

    It is submitted that the suggestion that the judicial review proceedings will contribute to any deed fund for ultimate distribution is a commercial nonsense.

35. [35]

    Addressing those submissions orally, Senior Counsel for YBL2 accepts that there is no challenge to the underlying costs order that was the subject of the gross sum assessment determination, but submits that what is left open to YBL2 under the terms of the DOCA is an application to determine the quantum of the reduction of the debt owing to Mr Poche pursuant to that underlying cost order. It is submitted that the DOCA should be construed such that reference to the judicial review proceedings is not a reference to an attempt to recover money for the benefit of Creditors, it is an attempt to reduce a claim.

36. [36]

    It is submitted (for YBL2) that what is contemplated by the DOCA in the provisions to which I have referred already, is that there is a claim for judicial review, a process by which that claim will be determined outside the DOCA, and that is the amount that would then be admitted in the liquidation. Clause 2.2.1.3 in that regard is said to be wrong, and is said not to have been intended to work in the way in which it is expressed. The submission is that the DOCA preserves the judicial review proceedings in order to permit the judicial review proceedings which, if successful, may result in a reduction of the amount owing to Mr Poche.

37. [37]

    There is no dispute by YBL2 that the DOCA binds Mr Poche, but it is submitted by YBL2 that the general moratorium provision applies to the judicial review proceeding, and that that those clauses would have no meaningful operation were Mr Poche’s construction of that clause to be correct (T 19.35). It is submitted that, to give that part of the DOCA some effect, it should be interpreted as if it were agreed that these proceedings would be continued and determined and that any benefit to the company from a reduction of the amount of Mr Poche’s debt would be of benefit to the company.

38. [38]

    It is submitted for YBL2 that nothing prevents the parties in the DOCA providing a process by which the amounts of claims may be determined outside of the DOCA, and, insofar as it be accepted that there may be now uncertainty as to the operation of the DOCA, it is submitted that any such uncertainty could be clarified by a resolution of the Creditors who have the ability to vary the DOCA pursuant to cl 15.3 at the instigation of the Administrators, and that, as I understand it, YBL2 would seek the opportunity of rectifying the DOCA in order to say that it had that effect, in order to permit the judicial review proceedings to be continued.

39. [39]

    In reply submissions, the suggestion that there was utility in the judicial review proceedings progressing was again rejected by Counsel for Mr Poche, who referred to the objects in s 435A of the Corporations Act, the objects of Pt 5.3A being to maximise the chances of the company, or as much as possible of its business, continuing its existence (which is not realistic in circumstances where it has now not traded for some time and appears to have been replaced by other incorporated legal practices) or, if it is not possible for the company or its business to continue, to result in a better return for the company’s creditors and members than would result from an immediate winding up of the company.

40. [40]

    Mr Poche submits that those objectives are not satisfied by the interpretation of the DOCA that is put forward by YBL2. Mr Poche accepts that cl 10.2 envisages an adjudication process, but says that is an adjudication process by the Deed Administrators, and it is submitted that it is an unrealistic and uncommercial interpretation of the DOCA to say that it envisages, for one portion of an admitted debt that has been compromised, a lengthy process in relation to the determination of the quantum of that debt which will be relevant only to inter-creditor determinations and will not make any relevant or material difference.

41. [41]

    The Deed Administrator’s List of Creditors identifies the creditors as follows:

42. [42]

    There are some $2 million worth of creditors, of which unsecured related party creditors make up $1.287 million odd (see Deed Administrators’ Second Report to Creditors), and the lion’s share of that roughly $1.3 million is a debt in favour of the current solicitors on the record in these proceedings. The submission that is made for Mr Poche is that ultimately there is no reasonable view that can be formed that these judicial review proceedings are or will be of benefit to creditors generally, and it is submitted that the continuation of the proceedings funded by Mr Amirbeaggi is more likely to jeopardise the return to creditors in light of the expenditure of funds that would be involved.

43. [43]

    In my opinion, there is an abuse of process in the continuation of these proceedings. The disproportionality of the dispute defies belief. The original dispute was over a $98,000 statutory debt owing to Mr Poche. From the material before me it would appear that the costs that have been incurred by YBL2 in seeking to overturn or challenge that debt are in the order of some $180,000, and it is quite clear from the discussion in the course of submissions that there is no realistic end to the litigation in the sense that what is contemplated, if the judicial review proceedings are successful, is that the matter will be remitted to the District Court for yet another hearing in relation to the costs. If there is a decision not to make a gross sum costs order, there will then follow a costs assessment process from which one might assume there are likely to be continuing objections and appeals. It is simply disproportionate, and satellite litigation in the extreme, for the judicial review proceedings to continue in circumstances where the underlying debt has been admitted (sic; compromised). Mr Poche is bound to accept a pari passu distribution of whatever, if anything, may ultimately turn out to comprise the Deed Fund.

44. [44]

    While there is a sense in which it can be said that there is utility in the judicial review proceedings (insofar as they will, if conducted to the conclusion of the proceedings, result in, or potentially result in, a different determination of the amount of the gross sum costs order), I do not accept that the continuation of the proceedings is anything other than an abuse of process.

Want of due despatch

1. [45]

   The second ground on which Mr Poche seeks a dismissal of the proceedings is for want of due despatch. I do not propose to say very much about this because it is unnecessary in view of the conclusion I have reached on the first issue. I note that, in submissions, Mr Poche has noted that the summons is (and as has been observed by Kirk JA to be (see ACN 627 087 030 Pty Limited v Poche at [4])) in parts defective, and that, where a valid right of appeal would lie, the Court would be unlikely to exercise any power of judicial review (Mr Poche citing Re Heerey; Ex Parte Heinrich [2001] HCA 74; (2001) 185 ALR 106 at 109 (Kirby J), and BHNF Fong v Weller [2024] NSWCA 46 at [26]-[30] (Kirk JA)).

2. [46]

   Mr Poche in support of his application for the proceedings to be dismissed for want of due despatch points to the following procedural chronology: the fact that in defiance of the requirement by r 51.45 of the UCPR YBL2 has failed to file the requisite documents; that YBL2 was granted leave on 3 February 2025 to file an amended summons by 17 February 2025, which it did not do; that YBL2 was ordered on 19 February 2025 to comply with its obligations under r 51.45 by 31 March 2025, which it failed to do; that YBL2 was ordered to file its submissions on its application for a stay of the costs awarded by 21 March 2025, which it failed to do (in part, resulting in the adjournment of the hearing of that application on 24 March 2025); that YBL2 was ordered on 7 April 2025 to file an amended summons explaining the basis of its claim by 17 April 2025, which it failed to do, and was directed to comply with r 51.45 by the same date, which it again failed to do.

3. [47]

   It is also noted, as I have previously referred to, that YBL2 was ordered to pay security for the respondent’s costs into court by 22 April 2025 and failed to do so. The proceedings having been stayed on 7 April 2025, Mr Poche notes that, subsequent to entering into voluntary administration, YBL2 has not proactively sought to move the case forward in any meaningful manner (although I note that Senior Counsel for YBL2 points to steps taken by YBL2 to have the stay lifted and for orders for payment into court).

4. [48]

   I interpose to note that the orders proposed by YBL2 in September and October 2025 in relation to the provision of security were framed as follows:

5. [49]

   That seems to make the order for payment of security conditional on the filing of an amended summons by that date, which is not what the order for security originally provided. But I note that, in submissions before the Court, Senior Counsel for YBL2 informed the Court that he had instructions that his client would be in a position to comply with any order which might be made for provision of security for costs within a very short timeframe from today.

6. [50]

   Mr Poche has submitted that the deficient nature of the application, and the dilatory manner in which YBL2 has advanced the application, affords ample ground for dismissal for want of prosecution, noting the factors to be considered in that regard as outlined by Simpson J, as her Honour then was, in Hoser v Hartcher [1999] NSWSC 527 at [19]-[30]:

7. [51]

   In responding to the second basis on which the application for dismissal of the proceedings is brought, it is submitted for YBL2 that it cannot be said that there has been a deliberate flouting of orders or a deliberate failure to conduct the proceedings with due despatch, rather, that YBL2 appears to have been labouring under a misapprehension that there was a statutory stay of the proceedings, and that ham-fisted efforts to regularise the matter overcomplicated things. It is submitted that the criticism of the circumstances in which the YBL2 solicitor suggested that there was a statutory stay is not such that it impacts on an assessment of YBL2’s due despatch of the proceedings, and that this is simply someone attempting to progress the matter, albeit on a mistaken basis.

8. [52]

   As indicated, it is not necessary to deal with this. Were the application to dismiss the proceedings have solely been brought on the basis of a failure to prosecute without due despatch I would not have acceded to the application.

Conclusion

1. [53]

   Accordingly, I will dismiss the judicial review proceedings pursuant to r 13.4 of the UCPR and in the Court’s inherent jurisdiction as an abuse of process.

Costs

1. [54]

   That leaves the question of costs. There is no reason why costs should not follow the event, and there will be an order that the respondent to the motion pay the applicant’s costs of the motion.

2. [55]

   The applicant has sought its costs of the proceedings as a whole. In Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Ex parte Lai Qin), McHugh J stated at 624-625 in relation to the exercise of the discretion to award costs where there has been no hearing on the merits:

3. [56]

   Having regard to the principles outlined in Ex parte Lai Qin, there will be no order as to costs of the proceedings as a whole (other than the extant order in relation to the security for costs application).

4. [57]

   The final issue is the application for a third-party costs order against Mr Amirbeaggi. In submissions, Mr Poche cites Knight v FPC Special Assets Ltd (1992) 174 CLR 178 at 188 (Mason CJ and Deane J), and 202 (Dawson J); [1992] HCA 28, and refers to the factors that are considered in determining whether a third party should be ordered to pay the costs. Mr Poche submits that Mr Amirbeaggi is the moving party; that he was the only party who stood to gain by the commencement of the proceedings; and that the costs have been incurred on his account alone and facilitated by his effective funding of the litigation through direct payments and by his newly incorporated legal practice. It is noted that he was the deed proponent, albeit not defined as such in the DOCA, and it is submitted that he is the architect of the continuation of the proceedings.

5. [58]

   In respect of the power of the Court to order costs to be borne by a non-party, Mr Poche also refers to FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 at [209] (Basten JA); Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd (No 2) [2024] NSWSC 1210 at [21] (Rees J); Bischof v Adams [1992] 2 VR 198 at 204-205; Kebaro Pty Ltd v Saunders [2003] FCAFC 5 at [70]; and Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757 at 765; (1992) 6 NZCLC 67,873.

6. [59]

   I note in this regard that the overriding consideration, when making a third-party costs order, is whether it is in the interests of justice to make the order (see Brand2Content t/as Franchise Works v Dalby [2019] NSWCA 16 at [12]-[13] (Simpson AJA)). In the present case there is no doubt that Mr Amirbeaggi has been involved to an extensive degree in relation to the proceedings in the sense that he has been associated with each of the incorporated law practices, but particularly YBL2, and that he was so involved up until he resigned as a director shortly after the order was made for payment for security for costs.

7. [60]

   As to the benefit that he would receive from the outcome of the judicial review proceedings, he is the sole shareholder of YBL2 and a benefit to that company may well be thought to flow through ultimately to him. But I note that the mere fact that a person may benefit from litigation does not, without more, justify an order of an award of costs.

8. [61]

   It is also relevant that Mr Amirbeaggi appears to have effectively funded the proceedings and that he proposed the DOCA by which Mr Poche’s debt was compromised.

9. [62]

   In circumstances where YBL2 is unlikely to be in a position to recompense Mr Poche for the costs incurred in the bringing of this application, and there is force in my opinion to the conclusion that Mr Poche has been vexed by the ongoing litigation in relation to costs orders over many years which I infer has been at the instruction of Mr Amirbeaggi, then I consider it is appropriate that there be a non-party costs order made against Mr Amirbeaggi.

10. [63]

    It was submitted for Mr Amirbeaggi that he is a solicitor and the fact that he has been involved in the matter throughout is not of itself a basis for the making of a third-party costs order but it seems to me that in circumstances where related entities, being the incorporated legal practices with which he is associated, have been involved and stand to benefit as creditors of the company, he is going beyond merely being a solicitor acting for a party in the proceedings. The interests of justice in this case, in circumstances where it seems highly unlikely that Mr Poche will recover anything of his original $98,000 statutory debt, let alone the subsequent costs, are such that such an order is appropriate.

Orders

1. [64]

   Accordingly, I make the following orders:

   1. (1)

      Dismiss the proceedings as an abuse of process pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) alternatively in the Court’s inherent jurisdiction.

   2. (2)

      The respondent to the Notice of Motion pay the applicant’s costs of the motion.

   3. (3)

      Mr Farshad Amirbeaggi be jointly and severally liable for the applicant’s costs of the motion.

   4. (4)

      Liberty to the applicant to apply to Ward P’s Associate within 14 days by notice of motion if a gross sums costs order is sought.