One T Development Pty Ltd v Peter Krejci in his capacity as liquidator of ENA Development Pty Ltd

1. [1]

   THE COURT: Pursuant to leave granted on 8 February 2023 by this Court differently constituted, One T Development Pty Ltd appeals from orders made in the Corporations List in the nature of directions to the liquidator, Mr Peter Krejci, of the second respondent, ENA Development Pty Ltd. Those orders were made following a contested hearing occupying two days on 14 and 15 June 2022, during which One T appeared by solicitor (not the solicitor presently retained). When the solicitor arrived (late) on the first day, he explained that he had only been instructed in the previous 24 hours, in light of which directions were made for the provision of written submissions over the ensuing three weeks.

2. [2]

   The orders from which the appeal has been brought were framed as follows:

3. [3]

   There are three grounds of appeal. The first and principal ground is that the primary judge erred in determining that the liquidator was justified in dealing with the property as property to which the company was entitled beneficially

4. [4]

   The second ground is a failure to have regard to certain evidence. The third is that, having ruled that evidence of a particular conversation was admitted on a limited basis, his Honour then used that evidence contrary to the ruling.

5. [5]

   For the reasons that follow, the appeal must be dismissed.

Background

1. [6]

   In light of pending proceedings between the parties, which contain allegations of serious fraud (and are one reason why this appeal was expedited), it is best to be as brief as possible in describing the background to the dispute.

2. [7]

   According to ASIC records summarised by the primary judge, Mr Robert Sebie was the original sole director of ENA, but later his mother was recorded as its sole director, in a document lodged with ASIC only in 2017 stating that she had been the sole director since incorporation on 24 June 2003. ASIC records also showed that Mr Ronald St Clair Jemmott was appointed an alternate director in September 2018, and was a director for periods in 2021. Counsel for the liquidator cross-examined Mr Jemmott, who gave evidence that he was a director of ENA and One T. Mr Robert Sebie did not give evidence before the primary judge.

3. [8]

   Some documents suggested that ENA had formerly been the trustee of two trusts. One T claimed now to be the trustee of those trusts. The property specified in the orders which are the subject of the appeal is held, as we understand it, in the name of ENA. The Court was told, without opposition, that the pending litigation concerned the title to the land and shares identified in paragraphs (a) and (b) of the orders (it may have extended also to the relatively small amount of money, but in what follows we shall for concision simply refer to the land and shares). If the land and shares were held on one of the trusts of which ENA was formerly, and One T is presently, the trustee, then the former trustee will prima facie be obliged to transfer the property to the new trustee. Doing so will not of itself disentitle the former trustee from its entitlement to have recourse to trust property in support of its right of indemnity: Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550; [2008] NSWSC 1344 at [21]; Primary Securities Ltd v Willmott Forests Ltd (mgrs and recs apptd) (in liq) (2016) 50 VR 752; [2016] VSCA 309 at [1] and [53].

4. [9]

   The liquidator faced a position where the company documents contained deeds of trust and minutes of meetings which suggested that the company held assets on trust. However, there was also reason to suggest that those documents did not reflect the true position. In particular, there is a trust deed purporting to be the “Unit Trust – Fixed Deed” establishing the “ENA Development Trust” dated 1 September 2009. The primary judge recorded at [28] that Mr Robert Sebie’s brother Richard was said to be the sole unit holder of that trust. The deed was stamped in the amount of $200. There are a number of peculiarities about that stamping.

   1. (1)

      One is that it is found on the fifth page of the deed, rather than the front page.

   2. (2)

      A second is that the amount of duty at that time was $500.

   3. (3)

      A third is an email exchange from May 2022 to which the primary judge referred at [35]-[37]:

5. [10]

   It is not necessary, and in light of the pending litigation inappropriate, to deal with all of the matters casting doubt on the documents, or on the other matters considered by the primary judge. The matters referred to above were the central matters to which the parties’ submissions in this Court were directed.

6. [11]

   The liquidator faced the position that there was determined opposition to any claim that the property was beneficially owned by ENA. As much was clear from the way in which One T intervened in the application, seeking to tender many hundreds of pages of material, including lengthy affidavits made by Mr Jemmott. We shall deal below with the steps taken in the appeal in this Court. In addition, there was a separate application to set aside the orders made by the primary judge on 21 October 2022 (while the application for leave to appeal was pending in this Court) in In the matter of ENA Developments Pty Ltd (in liq) [2022] NSWSC 1478. More recently, orders have been made by a judge in the Equity Division pursuant to the Vexatious Proceedings Act 2008 (NSW) directed to Mr Robert Sebie and Mr Jemmott: In the matter of ENA Development Pty Ltd (in liq) (ACN 105 235 363) [2023] NSWSC 503. The present appeal was expressly excluded from the operation of those orders.

7. [12]

   The primary judge delivered a substantial judgment on 11 July 2022, shortly after the receipt of further written submissions: In the matter of ENA Development Pty Ltd (in liq) [2022] NSWSC 919. His Honour addressed the evidence bearing upon the company’s ownership of each of the assets the subject of the directions sought by the liquidator. Most of this need not be summarised.

8. [13]

   The primary judge said at [29] that he had “grave doubts as to the genuineness of” the deed of trust. His Honour continued:

9. [14]

   If the trust was created in 2015, that has important consequences for the beneficial ownership of the assets the subject of the order and for company documents pre-dating 2015 purporting to record the assets being held on trust. These are explained in the reasons of the primary judge, especially at [70], [82] and [112]. As noted above, it is inappropriate to express any views on those matters in light of the pending proceedings.

10. [15]

    Mr Rogers of counsel, who appeared for the appellant in this Court but not before the primary judge, very candidly did not dispute that there was a proper basis for there to be doubt about the authenticity of the documents. Early in his submissions, he accepted that:

11. [16]

    It will be sufficient for the purposes of resolving this appeal to proceed on that uncontested basis. So that there may be no doubt about it, these reasons do not expressly or by implication determine whether documents have been brought into existence with a view to supporting a claim that some of the property owned by the company is held on one or more trusts created in 2009.

12. [17]

    No such finding was made by the primary judge. Indeed, Mr Rogers did not suggest that any such finding had been made. His main point was that whilesoever there was some basis for concluding that the documents were authentic, it was wrong for the primary judge to have made the orders in favour of the liquidator. It was put thus:

13. [18]

    Separately, and relating to ground 2, the appellant pointed to an invoice dated 1 September 2009 in the amount of $450 (plus GST) for “Trust Deed ENA” to which the primary judge did not refer which tended to support the bringing into existence of a deed of trust in September 2009. There was also evidence (in the form of a printout of an “ABN Lookup” page purporting to be of a register maintained by the Commonwealth) that the “ENA Trust” was trading from at least 22 August 2013 and that Revenue NSW accepted that one trust was stamped on 4 September 2009 (in the form of an email from an officer of Revenue NSW).

14. [19]

    There followed this exchange:

15. [20]

    The reference to “p 1505” was to a pagination on the document which was different from the pagination of the white folder and had the appearance of a pagination in a court book used at trial. The question about whether that document was in evidence or the subject of submissions reflected the absence at that stage of the transcript and the written submissions. The reference to “Petar” was a reference to the passage in the joint judgment in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120]:

16. [21]

    The transcript of the hearing before the primary judge was made available during the hearing of this appeal, and it quickly revealed that much of the affidavit material that had been included in the white folder as if it had been read before the primary judge had in fact been ruled inadmissible. Indeed, much of the first half of the first day of the hearing before the primary judge was occupied with rulings on the voluminous evidence which had been sought to be tendered by One T.

17. [22]

    After the luncheon adjournment there was the following exchange:

18. [23]

    At the conclusion of the hearing, directions were made for the rapid production of a white folder which included the material which it should properly have included in order to resolve the appeal (the originating process, the oral and written submissions, and the evidence insofar as it was relevant to the arguments, marked so as to indicate the parts which had been ruled inadmissible). The Court was told, an opportunity having been given to confirm its practicality, that this would take a day. In the interests of transparency and in light of what occurred subsequently, it is appropriate to record precisely what occurred:

19. [24]

    It is to be borne in mind that:

    1. (1)

       the appeal was expedited in light of the other litigation;

    2. (2)

       the task was entirely mechanical – the transcript made it plain what evidence had been ruled admissible and what had been rejected;

    3. (3)

       the task did not call for instructions from the client;

    4. (4)

       one of the grounds of appeal turned upon an evidentiary ruling said to have been made, although the ruling itself was not in the white folder;

    5. (5)

       the white folder provided by the appellant in advance of the hearing of its appeal did not contain the originating process, nor the orders from which the appeal was to be brought, but it did contain a series of other judgments, and hundreds of pages of emails and affidavits, many post-dating the judgment and, of those which did not, none of the paragraphs which were rejected by the primary judge, or admitted on a limited basis, was marked, and

    6. (6)

       finally, this was an appeal from a discretionary decision where, if House v The King error were established, One T was asking this Court to re-exercise a discretion, and thus it was necessary for the Court to have the evidence said to be relevant to its exercise.

20. [25]

    In short, it should have been obvious to the lawyers acting for One T that the white folder supplied after the grant of leave, which it may be inferred had not been prepared by them, was woefully inadequate.

21. [26]

    More than four weeks later, on 22 May 2023, and after two directions hearings before the Registrar, five volumes of new white folders were provided. We shall not recount the emails received during that time concerning the delay in performing the administrative task. The five volumes comprise slightly more than 2,000 pages. The “index” of half a page is of decidedly limited assistance. The new folders include affidavits and emails which post-dated the hearing, which are sought to be adduced by way of fresh evidence pursuant to a motion filed on 25 October 2022, of which no mention had been made in the appellant’s oral submissions or written submissions supplied prior to the hearing. The new folders also include an affidavit which was not read before the primary judge, on the basis that “Evidence should have been read by Stevenson J due to the application in front of Stevenson J was interlocutory and did not require cross examination”. Of the affidavits which were in fact read before the primary judge none is marked up to describe what was ruled inadmissible. Various pages are missing from those which have been included. There has ensued a response from the respondents identifying what they say are the difficulties with the white folders, and (on 29 May 2023) a further reply from One T, including further submissions for which no leave was given.

22. [27]

    It would serve no purpose to speculate why this position has been reached. It is quite clear, however, that a great deal of ill-directed efforts have been made which have led to delay without achieving the essentially administrative and straightforward task, which falls upon the appellant, of preparing appeal books. We shall return to this when dealing with costs.

The nature of the orders made by the primary judge

1. [28]

   The starting point is the juristic nature of the orders made by the primary judge. Nothing has been determined in this litigation as to the title to the land and shares.

2. [29]

   The liquidator is in dispute with persons who were formerly involved in the ownership and management of ENA. Further, the liquidator is required to make decisions and take action based on information and materials which may well turn out to be incomplete. That is scarcely an uncommon situation.

3. [30]

   Companies legislation has long conferred power upon courts to give directions to liquidators. Previously, s 479(3) of the Corporations Act 2001 (Cth) had simply provided:

4. [31]

   That power, and its earlier equivalents, was construed as being subject to important restrictions. As much is clear from the decision of McLelland J in Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679-680 explaining the scope of the power:

5. [32]

   However, since 2017 (in the circumstances described in In the matter of Glengrant Civil Pty Ltd (in liq) [2017] NSWSC 843 at [12]-[30]), s 90-15 of Schedule 2 to the Corporations Act (being the Insolvency Practice Schedule (Corporations)) has made the following much more elaborate provision:

6. [33]

   It is plain that the current form of the conferral of power is broader than its predecessor. The restriction noted by McLelland J concerning determining rights and liabilities cannot survive the express power in subsection (3)(a). The former power, framed in terms of authorising the liquidator to “apply to the Court for directions in relation to any particular matter arising under the winding up”, has been expanded so as to include, specifically, “an order determining any question arising in the external administration of the company”. There is no reason not to read the new grant of power broadly, nor is there any reason to prevent “any” from bearing its ordinary meaning. After all, it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”: Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54, and, in the context of the Corporations Act, see Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 at [17] and Glenfyne International Holding Ltd v Glenfyne Farms International AU Pty Ltd (in liq) (2019) 101 NSWLR 358; [2019] NSWCA 304 at [61]. The basic question posed by statute is whether the order relates to the external administration of the company.

7. [34]

   Those principles are apparent in decisions on the new provision. The position was described by Gleeson JA, sitting in the Corporations List, in In the matter of Hawden Property Group Pty Ltd (in liq) [2018] NSWSC 481; 125 ACSR 355 at [6]-[8] as follows:

8. [35]

   There is no reason to doubt that the current form of the power extends to the determination of substantive rights, although that could only occur, as Gleeson JA observed, with necessary and proper parties being given an opportunity to be heard, and (it might be added) joined.

9. [36]

   However, the orders from which this appeal has been brought do not determine any title to property. They merely confirm that, in advance of a determination of beneficial title to property in the company’s name, the liquidator would be justified in proceeding on the basis that the property was owned beneficially by the company and is available for the benefit of creditors. They are to that extent unusual, insofar as there will have been a hearing as to whether the liquidator would be justified in proceeding on a basis, and also a hearing which will determine finally whether that basis is correct. However, the nature of the opposition taken to the liquidator explains the course which has been taken.

10. [37]

    A somewhat comparable position arose in Bastion v Gideon Investments [2000] NSWSC 939; 35 ACSR 466. The incomplete records of the company suggested, but fell far short from establishing, that it was the trustee of a trust; if so, then some of the company’s creditors had proprietary rights in relation to some assets held at law by the company. The liquidator applied under s 479(3) for orders that he would be justified in recognising the existence of an express trust and recognising certain persons as beneficiaries of that trust (see at [40]). Austin J made those orders, saying at [48]-[49]:

11. [38]

    Another case where a liquidator has been given a direction that the liquidator would be justified in treating assets as held on trust may be seen in In the matter of Montpac Pty Ltd (in liq) and Global Network Link Pty Ltd (in liq) [2020] NSWSC 1237; 149 ACSR 138 at [12]-[20], to which the primary judge referred. Significantly, the power extends to cases where there is a lively contest as to whether or not the assets are held on trust. Sometimes it will be possible and appropriate for the liquidator to let the competing claimants take primary carriage of resolving the disputed ownership of assets. For example, if incomplete corporate records suggest the same assets are held under separate trusts, each in favour of a different beneficiary, there will be good reason for the liquidator to take a neutral role (a more complicated example of this may be seen in In re MF Global Australia Ltd (in liq) [2012] NSWSC 994; 267 FLR 27 at [2]). However, there may also be cases where it is appropriate for the liquidator to assume primary carriage of a dispute over the beneficial ownership of company assets. The possibility that the liquidator’s view although properly founded might turn out to be wrong and the certainty that substantial costs will be incurred will, in an appropriate case, favour the exercise of the power to give some protection to a liquidator.

12. [39]

    In the present case, the issue is not so much whether all reasonable inquiries have been made by a liquidator faced with incomplete or unsatisfactory corporate records (as was the case in Bastion v Gideon Investments) but whether there is a proper basis for the liquidator to proceed on the basis that the trust was not created in 2009. But it is not disputed (subject to grounds 2 and 3 which are addressed below) that the primary judge was, in light of the material before his Honour, entitled to be sceptical of the authenticity of the deed of trust.

13. [40]

    The effect of the orders is limited. They do not determine title to any property. Instead, they provide qualified comfort to the liquidator in the event that it turns out that he is wrong to proceed on the basis that the assets are assets held beneficially by the company being wound up. Ultimately, Mr Rogers accepted that the orders had only two consequences adverse to One T (or any other person): they tended to stand in the way of any interlocutory relief restraining a sale or dealing with the property by the liquidator, and they tended to prevent any costs order being sought personally against the liquidator if it turned out the property was not beneficially that of the company, insofar as the liquidator could point to the orders to justify the reasonableness of his conduct.

14. [41]

    This Court was not taken to any evidence suggesting the likelihood of a dealing, still less some dealing with irreversible consequences in the event that it turned out that the property was not beneficially owned by the company. Thus the only practical consequence of the orders was the possibility that, in the event that it is determined that the property is not beneficially owned by the company, it could not be said that the liquidator had behaved without a proper foundation, always assuming there had been a candid disclosure of all relevant matters by him to the court when the application was heard.

15. [42]

    That is to say, all that has been determined is that the liquidator would be justified and acting reasonably to proceed on the basis that certain assets owned in law by the company in liquidation were owned by it beneficially. The principal purpose for that order is, it may be inferred, the other litigation in which questions of title will be determined, to which the company is a necessary party and in respect of which the liquidator will have to determine his stance.

16. [43]

    The appellant submitted that the primary judge should not have drawn the inference that there were grave doubts that the trust deed had not been created in 2009. However, that submission cannot be reconciled with the proper and candid acknowledgement that there was a proper basis in the evidence for his Honour to have the doubts he did.

17. [44]

    The appellant also submitted that his Honour should not have expressed those doubts in circumstances where there were disputed facts and the Court was not being asked to make a binding declaration as to beneficial ownership. However, the doubts were an inherent element of the reasons for concluding that the liquidator would be justified in proceeding on the basis that the company owned the assets beneficially, and in the somewhat unusual circumstances of this dispute there was no error in making orders with the limited effect described above in order to provide protection to the liquidator. The consequence of those orders is that, if the liquidator fails and the property is found not to be beneficially owned by the company, he will not be able to be criticised for improperly making groundless and unwarranted allegations of serious fraud, unless it be shown that there had been material nondisclosure at the time the orders were made.

18. [45]

    Contrary to the appellant’s submission, there was nothing wrong – still less any appellable error in the exercise of a discretion – in the primary judge giving the directions in the present case. Nothing that we have seen in the conduct of this litigation suggests that there was anything inappropriate in taking that course; to the contrary, everything we have seen and read about the conduct of this proceeding, and this appeal, confirms that it could not be said to have involved appellable error to grant relief.

Remaining grounds

1. [46]

   Ground 2 was that the primary judge erred in “failing to have regard to evidence that the beneficial interest in the property resided other than in [ENA Development]”. This was articulated as his Honour having failed to have taken into account two documents which appear to have been pages 1064 and 1505 of the voluminous court book supplied to him. It is now plain that reference was made to at least one of those documents in written submissions supplied after the hearing to the primary judge. To be fair to his Honour, it should be added that there was nothing like the prominence given to this document in this Court, and the written submissions ranged widely over many matters not properly before his Honour.

2. [47]

   While it is true that both the “ABN Lookup” document and the receipt from the accountancy firm are relevant to the issue whether ENA held the land and shares prior to 2015, they are of no great weight. The former suggests that an ABN number was obtained for the purposes of registration for GST on 22 August 2013. That is not especially probative one way or the other in relation to the matter as to which the primary judge had grave concerns, namely, whether the trust deed was brought into existence in 2015 or 2009. The other suggests a trust deed was brought into existence around 1 September 2009, and to that extent supports the case One T wishes to advance. However, it falls well short of explaining why the wrong amount of stamp duty appears on an unusual page of the deed of trust on which One T relies and the contemporaneous emails summarised above.

3. [48]

   In short, those documents do not materially detract from the appropriateness of the exercise of discretion by the primary judge.

4. [49]

   In submissions supplied after the hearing, by Mr Mohammad El-Masri, who purported to write “On behalf of Ronald Jemmott and One T Development Pty Ltd”, attention was directed to the documents dated 27 January 2015 to which the primary judge had referred, and which were part of his foundation for doubting the date on which the deed had been brought into existence. It was put, by reference to extracts of what were said to be attachments to the email, that in fact the “Cleardocs” email was received on 30 January 2017, not 27 January 2015. It is true that in the documents provided to this Court, Mr Florian’s email refers to an establishment kit dated 27 January 2015 provided by Cleardocs and an invoice of the same date (Amended White Folder, vol 3 p 1119) while a copy of what appears to be a part of the document attached to the email bears the date 30 January 2017 (pp 1119 and 1120 of the same volume). This Court cannot resolve the discrepancy, nor would it be appropriate to do so. The material does not persuade us that there was any error in the judge forming the doubts that he did as to the authenticity of the documents or in making the orders from which One T appeals. We shall return to the submissions supplied after the hearing below.

5. [50]

   Ground 3 maintained that there was error in “ruling that certain evidence as to a conversation should be admitted only as to the fact that something was said but then treating the evidence as probative of the matters said to have occurred in the conversation”. This ground was not elaborated in the written submissions supplied before the hearing of the appeal. The ruling was made in the transcript, but the transcript had not been supplied in the white folder. Counsel was asked, after he concluded his submissions, whether the ground was pressed. Thereafter, counsel articulated a concise submission supporting this ground.

6. [51]

   The ground was directed to the following parts of the reasons of the primary judge at [31]-[34]:

7. [52]

   This ground is not made out. The evidence which was admitted on a limited basis was not used improperly. But in any event, the contemporaneous documents – the trust deed with an unusually placed stamp in the wrong amount, and the seemingly contemporaneous email disclosing that the trust deed was created in 2015 – sufficed, in the present case, to warrant the making of the directions.

Conclusion and orders

1. [53]

   For those reasons, the appeal must be dismissed. The notice of motion to adduce further evidence, which was not addressed in oral or written submissions supplied prior to the hearing, will also be dismissed.

2. [54]

   The grant of leave to appeal carries with it important responsibilities upon the appellant and the lawyers retained by it. Ordinarily, when appeals are propounded by litigants who have retained lawyers, those responsibilities are discharged without complaint. In this case, that did not occur.

3. [55]

   In circumstances where an applicant for leave has sought and obtained leave to appeal and is legally represented, the primary responsibility rests upon the appellant’s lawyers to prepare the matter so that the appeal can be heard and determined efficiently and fairly. That involves primary responsibility for the preparation of the appeal books and, to the extent necessary, updating or replacing the written submissions so that they are addressed to the merit of the appeal.

4. [56]

   Based on the material presently available to the Court, it is impossible to resist the conclusion that the respondents have been put to needless expense by the conduct of the appellant in failing to perform an elementary and essentially administrative task, which should have been undertaken prior to the hearing of the appeal. The appellant’s abject failure in this regard has also led to delay in the determination of this expedited appeal.

5. [57]

   Our present view is that the appellant should pay the respondents’ costs of the appeal, with such costs as have been incurred after the hearing of the appeal to be paid on an indemnity basis. In the event that the appellant wishes to be heard against such order, application may be made by motion within the time specified by r 36.16 of the Uniform Civil Procedure Rules.

6. [58]

   There is one final point. On the evening before the hearing, and the morning before the hearing, a notice of motion, submissions and affidavits were supplied purportedly by One T directly to the Court. We accept that One T’s counsel and solicitor had no knowledge of this. A company has no right to appear in the Supreme Court. One T appears through its solicitor and counsel retained by that solicitor. The same thing is recorded in the transcript as having occurred before the primary judge. The same thing is recorded in the transcript as having occurred before this Court, differently constituted, when the application for leave to appeal was heard. It should not be necessary to say so, but it is quite wrong for a represented party to communicate with the Court other than by the legal practitioners who appear for it or by the counsel they have retained.

7. [59]

   This practice continued after judgment was reserved in the appeal. We have referred above to a 16 page submission supplied under cover of an email from Mr El-Masri on 12 May 2023. Mr Carbone from Sydney Law Practice remains on the record for One T. Further, leave was not granted to supply further submissions of the nature received by the Court (and as to which the respondents have not been heard). Although ordinarily we would simply disregard those submissions, in the unusual circumstances of this appeal we have considered them, and addressed the point made concerning the Cleardocs documents. But once again, it is necessary to say that the time for submissions is the hearing, and it is quite wrong after judgment is reserved to advance further submissions without leave. The submissions also attach a letter seeking a wide suite of orders, which go well beyond the scope of the appeal. Out of an abundance of caution, that application will be dismissed. The Court also received an affidavit made by Mr Jemmott on 24 April 2023, which made an application to adduce fresh evidence in the form of emails from September 2021 and July 2022 between himself and the Office of State Revenue. They were plainly available at trial, and special grounds required by s 75A(8) of the Supreme Court Act 1970 (NSW) have not been established.

8. [60]

   Mr Robert Sebie sought during the hearing of the appeal to make oral submissions on the notice of motion received on the eve of the hearing. That motion was not before the Court but instead, as was stated at the time his application to be heard was rejected, was listed for directions before the Registrar on 24 April 2023.

9. [61]

   The Court makes the following orders: