GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 2)

The plaintiffs, who I will call the “Lenders”, advanced an amount in excess of $24 million to the first defendant, who I will call the “Borrower”. The Borrower is now in liquidation.

Part of the security obtained by the Lenders from the Borrower was a guarantee from the third defendant, F & L Violi Pty Ltd (“FLV”) and what appeared to be mortgages over properties owned by FLV in Strathfield and Griffith.

Those mortgages were purportedly signed on behalf of FLV by its sole director and shareholder, the fourth defendant, Mr Frank Violi.

FLV and Mr Violi contend that the signature on the mortgages purporting to be that of Mr Violi is not, in truth, Mr Violi’s signature.

FLV’s registered office is at the offices of its accountant, Peter W Jess and Associates Pty Ltd trading as “PJA Accountants” in Essendon in Melbourne. The principal of PJA Accountants is Mr Peter Jess.

On 6 September 2022 the Lenders caused a subpoena to be served on PJA Accountants seeking production of copies of any document “addressed from the NSW Land Registry” with respect to 16 identified dealings, being caveats or mortgages registered on either the Strathfield or the Griffith property.

On or about the same day, the Lenders caused a subpoena to be issued to the NSW Land Registry Services seeking copies of the same documents.

By Notice of Motion filed on 12 December 2022, the Lenders seek an order under s 68 of the Civil Procedure Act 2005 (NSW) that Mr Jess “attend court to be examined in relation to his compliance” with the subpoena.

Mr Jess, on behalf of PJA Accountants, has made three responses to the subpoena served on PJA Accountants.

First, on 27 September 2022, Mr Jess wrote to the Court, referring to the subpoena, and stated:

On 10 October 2022, Land Registry Services produced to the Court, in response to the subpoena served on it, copies of eight “Notices of Caveat” that it had sent FLV, including four such notices that had been sent to FLV at the offices of PJA Accountants. Those four notices were in respect of:

On 26 October 2022, the solicitors for the Lenders sent the solicitors acting for FLV and Mr Violi, Polczynski Robinson, a copy of the subpoena issued on behalf of the Lenders to Land Registry Services.

Later that day, Polczynski Robinson logged in to the Court’s Online Registry and downloaded the documents produced to the Court by Land Registry Services in response to the subpoenas served on it.

The solicitor dealing with the matter at Polczynski Robinson was Ms Karina Carter.

Ms Carter noted that four of the documents produced by Land Registry Services were the four Notices of Caveat that Land Registry Services delivered to FLV at the offices of PJA Accountants.

Ms Carter described what happened next in a letter that she wrote to the Lenders’ solicitors on 7 February 2023:

Polczynski Robinson were not, on 1 November 2022, acting for Mr Jess. There is no evidence that Polczynski Robinson informed the Lenders’ solicitors, or Land Registry Services, of the steps described in Ms Carter’s letter of 7 February 2023.

On 8 November 2022, a week after evidently receiving Polczynski Robinson’s letter of 1 November 2022, Mr Jess made his second response to the subpoena. Mr Jess wrote to the Court:

Mr Jess did not refer in this letter to the communication he had evidently received from Polczynski Robinson.

Mr Jess attached to his letter of 8 November 2022 a Schedule of Documents in the following form:

The attached “correspondence to Frank Violi dated 4 November 2021” was a copy of an email from Mr Jess to Mr Violi of 4 November 2021 which stated:

The copy of Mr Jess’s email to Mr Violi appears to have been created by Ms Carter.

The “attached letters” were the Notices of Caveat sent to FLV at the offices of PJA Accountants dated 30 October 2021 in respect of dealings AR566111 and AR566112.

The documents numbered 2 and 3 in the Schedule of Documents were those two Notices of Caveat and appear to be the documents that were attached to Mr Jess’s email to Mr Violi of 4 November 2021.

The document numbered 4 in the Schedule of Documents appears to be the copy of the Notice of Caveat in respect of dealing AP935728 in the form produced by Land Registry Services to the Court on 10 October 2022.

On 7 February 2023, Mr Jess made his third response to the subpoena when he sent a further letter to the Court in the following terms:

There is no evidence before me as to what prompted Mr Jess to write that letter. In the letter, Mr Jess confirms that the copy of his 4 November 2021 email to Mr Violi was “not … located by my office” but “had been provided to me by Frank Violi’s solicitors” and that the Notice of Caveat regarding dealing AP935728 was “not a copy of the Caveat Notice that had been located by my office” and that Mr Jess had not been able to locate that “Caveat Notice in my firm’s records”.

At the hearing of the Lenders’ Notice of Motion, Ms Carter appeared for FLV and Mr Violi, and also for Mr Jess. Ms Carter did not seek to make any submissions on the motion.

Mr Jess has made three communications to the Court in the course of his response to the subpoena. There appears to be a tension between the statements made by Mr Jess in those three communications. I am persuaded that in those circumstances I should make an order to the effect sought by the Lenders.

There will be limits on the nature of the examination of Mr Jess:

I order that: