In the matter of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363)

On 27 January 2022, this Court made orders in proceeding 2021/303982 winding up ENA Development Pty Ltd (ACN 105 235 363) (ENA Development) in insolvency and appointing Mr Peter Krejci as its liquidator (the winding up proceedings). By further order of this Court made on 3 February 2022, Mr Krejci was appointed as receiver of the assets of the ENA Development Trust (the Trust) pursuant to s 67 of the Supreme Court Act 1970 (NSW). Although Mr Krejci holds these separate appointments, I will generally refer to him in these reasons as the Liquidator.

The Liquidator and ENA Development are the first and second plaintiffs (respectively) in these proceedings brought under the Vexatious Proceedings Act 2008 (NSW).

The first defendant, Mr Robert Sebie, was the sole director, secretary, and shareholder of ENA Development when it was incorporated on 24 June 2003. According to a Form 484 lodged with the Australian Securities and Investments Commission (ASIC) on 5 March 2018—and apparently dated 19 November 2007—Mr Sebie was removed as a director, secretary, and shareholder of ENA Development with effect from 25 June 2003, one day after its incorporation. According to that Form 484, Mr Sebie was replaced by Ms Rose Sebie as the sole director and shareholder and Ms Raymonda Gayed become the sole shareholder of ENA Development, with effect from 25 June 2003. Ms Rose Sebie is Mr Sebie’s mother. Ms Gayed is Mr Sebie’s sister. According to ASIC’s register, Ms Rose Sebie is currently the sole director and secretary of ENA Development, with Mr Mazen Zraika and Mr Ronald Jemmott listed as alternate directors. Ms Gayed owns 99.6 per cent of the issued shares in ENA Development. The remaining shares are owned by Mr Jemmott and Mr Zraika.

Mr Jemmott is the second defendant in these proceedings. In addition to being an alternate director and minority shareholder of ENA Development, Mr Jemmott is the sole director and sole shareholder of each of the third defendant—One T Development Pty Ltd (One T Development)—and the fifth defendant—Enterprise INT Pty Ltd (Enterprise INT). According to ASIC’s register, Mr Jemmott does not own his shares in One T Development beneficially.

The fourth defendant in these proceedings is Enterprise ICT Pty Ltd (Enterprise ICT). Mr Sebie has been the sole director of that company since 19 August 2022. Prior to that date, the directors were Ms Gayed (from the company’s incorporation on 7 May 2014 until 19 August 2014) and Mr Richard Sebie (from 19 August 2014 until 18 August 2022). Ms Gayed is the sole shareholder. Mr Richard Sebie and Mr Robert Sebie are brothers. References to Mr Sebie in these reasons for judgment are references to Mr Robert Sebie.

The plaintiffs contend that various proceedings and interlocutory applications instituted and conducted by the defendants in this Court, in the Federal Court of Australia, and in the Federal Circuit and Family Court of Australia in the period since May 2022—all of which related to, or were connected with, the winding up of ENA Development—are vexatious proceedings within the meaning of the Vexatious Proceedings Act.

The plaintiffs seek the following orders against each of the five defendants: [1]

By notice of motion filed on 26 April 2023, Mr Sebie seeks an order striking out the present proceedings as an abuse of process. The principal basis of that application is Mr Sebie’s contention that the plaintiffs are seeking in these proceedings the same relief that they sought in an application that has already been heard in proceedings in the Federal Circuit and Family Court of Australia.

The proceedings were heard over five days during the period from 24 April to 5 May 2023. Mr Rose of counsel appeared for the plaintiffs. Mr Sebie represented himself but failed to attend court at various times during the hearing. There was no appearance on behalf of the other defendants. Evidence adduced by the plaintiffs established that each of the defendants had been served in accordance with orders made on 3 April 2023.

The balance of these reasons for judgment is structured as follows:

The following summary is drawn from the evidence adduced by the plaintiffs and by Mr Sebie at the hearing before me that was conducted over five days during the period from 24 April to 5 May 2023.

From 2015, Mr Sebie, ENA Development, Mr Any Vuong Duc Pham, and Mrs Thi Huong Giang Pham were parties to proceedings in this Court in relation to disputes arising from the sale of a property at 11 Tutt Crescent, Chiswick, in New South Wales (the Chiswick property).

The following summary of the evidence concerning the proceedings relating to the Chiswick property is drawn from the Liquidator’s affidavit affirmed on 22 March 2023 and read in the present proceedings, findings made in judgments of the Court in earlier proceedings referred to in the Liquidator’s affidavit, and documents exhibited to the Liquidator’s affidavit. The summary is limited to those matters that are relevant to my assessment of the evidence relating to Mr Sebie’s application made in one of those earlier proceedings on 30 May 2022. That application, which was dismissed on 14 October 2022, is one of the proceedings that the plaintiffs contend was a vexatious proceeding.

Mr Sebie purchased the Chiswick property in September 2005.

On 29 October 2014, Mr Sebie entered into a contract for the sale of the Chiswick property to Mr and Mrs Pham for $2,200,000.00. The date fixed for settlement came, and went, and Mr Sebie failed to comply with a notice to complete issued by Mr and Mrs Pham. In February 2015, Mr and Mrs Pham lodged a caveat on the title to the Chiswick property and commenced proceedings 2015/325044 against Mr Sebie for specific performance of the contract for sale (the Chiswick specific performance proceedings). [2]

On 15 May 2015, ENA Development commenced proceedings 2015/145498 against Mr Sebie seeking possession of the Chiswick property, claiming to have a security interest in the Chiswick property (the Chiswick possession proceedings). [3]

Mr Sebie claimed to have served a lapsing notice on Mr and Mrs Pham with respect to their caveat on 19 June 2015. That claim was ultimately rejected by Pembroke J in his Honour’s judgment referred to at [22] below. Pembroke J found that Mr Sebie had made a false statutory declaration on 23 June 2015 relating to service of the lapsing notice, and that he had compounded that dishonesty by swearing several affidavits in the Chiswick possession proceedings repeating the false claim that he had served the lapsing notice. [4]

On 6 July 2015, ENA Development obtained judgment by consent for possession of the Chiswick property in the Chiswick possession proceedings. Mr and Mrs Pham were not a party to those proceedings. [5]

Approximately two weeks after that judgment was entered in favour of ENA Development, a document described as a deed of arrangement between ENA Development and Enterprise ICT was created and signed by Ms Rose Sebie as a director of ENA Development and by Mr Richard Sebie as a director of Enterprise ICT. That document provided that ENA Development would transfer the Chiswick property to Enterprise ICT, with no moneys to be exchanged for the transfer due to the shareholders of the two companies being identical. The document stated that ENA Development had obtained possession of the property as full and final settlement for a loan. ENA Development had lodged a caveat against the Chiswick property in February 2014 claiming an interest in the land by reason of an unsecured loan made to Mr Sebie to fund his purchase of the Chiswick property. However, in correspondence with Mr and Mrs Pham concerning his delay in completing the contracts for sale of land during January and February 2015, Mr Sebie had contended that the loan from ENA Development was secured over the Chiswick property. [6]

On 20 July 2015, Mr Sebie signed a transfer of the Chiswick property to Enterprise ICT. [7]

Mr and Mrs Pham then lodged a second caveat over the Chiswick property. A lapsing notice with respect to that second caveat was served on Mr Pham on 23 October 2015, resulting in the commencement of further proceedings by Mr and Mrs Pham to extend the operation of that caveat. Those proceedings were consolidated with the Chiswick specific performance proceedings. [8]

The consolidated Chiswick specific performance proceedings were heard and determined by Pembroke J in April 2017. His Honour held that Mr and Mrs Pham had an equitable interest in the Chiswick property as the purchasers under the contract for sale dated 29 October 2014, and that their interest had not been defeated by Mr Sebie’s transfer of the Chiswick property to Enterprise ICT, which was fraudulent within the meaning of ss 42 and 43 of the Real Property Act 1900 (NSW). His Honour held that the registration of the transfer to Enterprise ICT should be set aside, and that Mr and Mrs Pham were entitled to an order for specific performance of the contract dated 29 October 2014. [9]

An appeal by Enterprise ICT and Mr Sebie was dismissed on 15 August 2018. [10] In the meantime, the Chiswick property had been transferred to Mr and Mrs Pham, and the sale proceeds had been paid into court in May 2018. ENA Development claimed to have a charge over the sale proceeds to secure the repayment of a loan allegedly made to Mr Sebie when he first purchased the Chiswick property in September 2005, together with a further sum that ENA Development claimed to have paid to the Commonwealth Bank of Australia in July 2015 to discharge that bank’s registered first mortgage over the Chiswick property. The discharge of that registered first mortgage had occurred at the time of Mr Sebie’s transfer of the Chiswick property to Enterprise ICT, which Pembroke J had found to be fraudulent as referred to above.

The judgment of Pembroke J and the appeal did not determine a cross-claim that ENA Development had filed in the Chiswick specific performance proceedings against Mr Sebie (as the first cross-defendant), Mr and Mrs Pham (as the second and third cross-defendants), and Mr Sebie’s former wife (as the fourth cross-defendant). The final iteration of that cross-claim was a Further Amended Cross-Claim filed on 6 August 2021. The cross-claim sought a declaration to the effect that ENA Development had a charge over the Chiswick property sale proceeds and various other declarations.

Shortly after his appointment on 27 January 2022, the Liquidator came into possession of a Defence to the Further Amended Cross-Claim. That Defence, which appears on the face of it to have been signed by Mr Sebie and which was ostensibly prepared in his name, was dated 24 August 2021. It contained admissions to allegations to the following effect in the Further Amended Cross-Claim:

The only allegation in ENA Development’s Further Amended Cross-Claim that Mr Sebie denied or did not admit was a statement that his former wife had been added as a party to the cross-claim as a consequence of an assertion by her legal representative that she was a proper party to the cross-claim.

Following his appointment on 27 January 2022, the Liquidator caused ENA Development to enter into a deed of settlement with each of Mr and Mrs Pham and Mr Sebie’s former wife resolving the remaining issues in the Chiswick specific performance proceedings. The Liquidator has given evidence in the present proceedings that he did not involve Mr Sebie in the negotiation of the terms of that deed—and did not seek to include Mr Sebie as a party to that deed—because Mr Sebie appeared to support ENA Development’s claim to be entitled to the Fund.

At a directions hearing in the Chiswick specific performance proceedings on 22 April 2022, Mr and Mrs Pham were represented by Mr Zipser of counsel, ENA Development (then in liquidation) was represented by Mr Rose of counsel, and each of Mr Sebie and his former wife appeared in person. The transcript records that Mr Rose informed Sackar J that the parties, save for Mr Sebie, had agreed to resolve ENA Development’s cross-claim on the terms of orders that had been sent to his Honour’s Associate. Mr Rose continued:

That led to the following exchange between his Honour and Mr Sebie:

Sackar J then made the orders that had been agreed as between ENA Development, Mr and Mrs Pham, and Mr Sebie’s former wife, in circumstances where his Honour had been informed that Mr Sebie had admitted all of the allegations in ENA Development’s cross-claim, where his Honour had invited Mr Sebie to inform him if that was not correct, and where Mr Sebie had not disputed the correctness of what Mr Rose had told his Honour about Mr Sebie’s admissions. Those orders were in the following terms:

Immediately after making those orders, during that same directions hearing on 22 April 2022, Sackar J indicted that the matter would be stood over to 29 April 2022 for the Court to be informed on that occasion what was to be done about Mr Sebie’s position. It was then that Mr Sebie disputed—for the first time during that directions hearing—that he had made the admissions or filed a defence to the cross-claim. His Honour indicated that the matter would be stood over to 29 April 2022 on the basis that ENA Development would send Mr Sebie a copy of the defence that it understood he had filed to its cross-claim, and in order to give Mr Sebie time to check his records.

Prior to the conclusion of the directions hearing, Mr Rose informed the Court that Mr Sebie’s defence containing the admissions had been included in a court book that had been provided to the chambers of Sackar J prior to a hearing before his Honour in the Chiswick specific performance proceedings commencing on 6 December 2021, prior to the winding up of ENA Development. The evidence adduced by the Liquidator in these proceedings includes the transcript of Mr Sebie’s cross-examination during that hearing on 10 December 2021. Mr Sebie gave evidence under cross-examination to the effect that he borrowed approximately $1,400,000.00 from ENA Development to fund his purchase of the Chiswick property in September 2005, that he signed a loan agreement with ENA Development recording the terms of that loan on 15 September 2005 on the same day that he purchased the Chiswick property, that he had no doubt that he was required to repay the loan to ENA Development, and that it was his understanding that ENA Development would be able to sell the Chiswick property if he were unable to repay the loan.

The inclusion of Mr Sebie’s signed defence in the court book, together with Mr Sebie’s evidence in cross-examination which is broadly consistent with the admissions in his defence, appear to have formed the basis of the Liquidator’s assumption at the directions hearing on 22 April 2022 that Mr Sebie’s defence had been filed. Sackar J noted during the directions hearing on 22 April 2022 that, if Mr Sebie had not filed any defence to the cross-claim, he would be out of time to do so without leave.

There is no evidence before the Court in the present proceedings about what occurred at the further directions hearing in the Chiswick specific performance proceedings on 29 April 2022.

On 30 May 2022, Mr Sebie filed a notice of motion in the Chiswick specific performance proceedings seeking the following orders:

As referred to at [74]-[79] below, that notice of motion was subsequently amended by Mr Sebie on 15 August 2022, and was ultimately dismissed by Black J on 14 October 2022.

ENA Development is the registered proprietor of Lot 36 in Strata Plan 74598 in Homebush, New South Wales (the Homebush property).

On 3 February 2022, the Liquidator commenced proceedings 2022/32115 in this Court seeking an order appointing him as receiver of the assets of the Trust the Trust proceedings).

On 9 May 2022, the Liquidator filed an interlocutory process in the Trust proceedings seeking orders pursuant to s 90-15(1) of Schedule 2 to the Corporations Act 2001 (Cth) (the Insolvency Practice Schedule (Corporations)), or alternatively under s 63 of the Trustee Act 1925 (NSW), that he would be justified in treating the following assets as assets to which ENA Development is beneficially entitled:

That interlocutory process was heard by Stevenson J on 14 and15 June 2022. One T Development was the second defendant in the Trust proceedings and acted as contradictor to the Liquidator’s application.

Mr Jemmott gave evidence on behalf of One T Development during that hearing. In the course of his reasons for judgment published on 11 July 2022, Stevenson J made the following observations about Mr Jemmott’s evidence: [12]

Stevenson J also stated: [13]

In relation to the Homebush property, Stevenson J referred to the Liquidator’s evidence that he had applied to be appointed as receiver of the assets of the Trust on the basis of the limited books and records available to him, and the limited investigations that he had undertaken at that early stage of his appointment as Liquidator, which led him to believe that ENA Development was the trustee of the “ENA Development Trust” and that it held the Homebush property “on trust for the ENA Trust”. [14]

On the basis of the more extensive evidence that subsequently emerged, which was adduced at the hearing before his Honour, Stevenson J rejected One T Development’s contentions that the Homebush property was held as an asset of one of two trusts—referred to as the “Fixed Trust” and the “Concessional Trust”. His Honour accepted the Liquidator’s submission that there was no reliable basis upon which it was possible to conclude that the Homebush property was held on any trust. His Honour advised the Liquidator that he would be justified, and would be acting reasonably, in treating the Homebush property as being beneficially owned by ENA Development. [15]

Stevenson J did not find it necessary to determine One T Development’s claim to have been appointed as the trustee of one or both of the Fixed Trust and the Concessional Trust. The Liquidator’s application for advice concerned whether he would be justified in treating the relevant assets as being owned by ENA Development beneficially. The application did not call for any determination as to whether those assets—assuming that they were not owned by ENA Development beneficially—were owned by ENA Development as the trustee of either, or both, of the Fixed Trust and the Concessional Trust. Nor did the Liquidator’s application call for the Court to determine whether One T Development was now the trustee of either, or both, of those trusts. [16]

In relation to the Fund, Stevenson J observed that ENA Development had not yet established its entitlement to the Fund, referring to a recent judgment of the New South Wales Court of Appeal in which Bell P (as the Chief Justice then was) and Basten JA had described ENA Development’s claim to the Fund as “murky and unresolved”. [17] Stevenson J considered that he was not in a position to make any finding as to whether the Liquidator would be able to establish that ENA Development is entitled to the Fund, and that any advice given in relation to ENA Development’s beneficial entitlement to the Fund could only be given on the assumption that the Liquidator will, in due course, establish such an entitlement. [18]

Stevenson J made the orders sought by the Liquidator and referred to above at [39] in respect of the Homebush property, the shares and securities, and the monies held in the Commonwealth Bank of Australia Account. In relation to the Fund, Stevenson J made an order that the Liquidator would be justified, and would be acting reasonably, in treating the Fund as an asset to which ENA Development is beneficially entitled on the assumption referred to above that the Liquidator is able to establish ENA Development’s entitlement to the Fund in due course. [19]

As referred to at [98] and [137]-[142] below, One T Development appealed from those orders. That appeal was heard on 20 April 2023 and the judgment of the Court of Appeal was reserved as at the date of publication of these reasons.

On 7 August 2022, an amended notice of motion was filed in the Trust proceedings on behalf of One T Development, Ms Cheryl Ansah, Enterprise INT, Enterprise ICT, Mr Jemmott, Ms Gayed, and “ENA Development Trust – Trust Beneficiaries (Richard Sebie, Rose Sebie)” (the 7 August 2022 applicants). The amended notice of motion sought, inter alia, the following relief against the Liquidator:

On 10 August 2022, the Liquidator’s solicitors wrote to Kazi & Associates, who were the solicitors on record for the 7 August 2022 applicants, setting out reasons why they contended that the motion would be dismissed, including that:

On 10 August 2022, the Court made orders dismissing the motion with no order as to costs, by consent of the Liquidator and all of the 7 August 2022 applicants on the motion.

On 12 August 2022, the solicitor acting for the 7 August 2022 applicants sent an email to the Associate to Black J attaching a further notice of motion in the Trust proceedings seeking on behalf of the same applicants the same relief against the Liquidator that had been sought in the 7 August 2022 amended notice of motion. The solicitor requested that the motion be included in the Corporations List on the forthcoming Monday, 15 August 2022.

The Associate to Black J replied in the following terms:

The 12 August 2022 notice of motion was never filed. However, on the evening of 14 August 2022, the applicants’ solicitor sent a further email to the Associate to Black J and the Associate to the Chief Judge in Equity attaching “by way of service” an interlocutory process that had been filed earlier that day. The email was copied to the solicitors acting for the Liquidator, who was again named as the respondent to the application. The applicants’ solicitor did not attach to the email any evidence on which the applicants proposed to rely in support of the interlocutory process. Nor did the email refer to any such evidence. As identified in an email from the Associate to Black J to the parties on the morning of 15 August 2022, that interlocutory process sought substantially the same relief as had been sought in both the notice of motion dated 7 August 2022 and the unfiled notice of motion dated 12 August 2022, although the claims for relief had been re-ordered and restructured in the latter.

On 15 August 2022, Black J made an order striking the interlocutory process from the file. His Honour revoked that order later that morning and noted that the applicants sought to proceed with the claims for relief in prayers 1 and 5 of the interlocutory process, which were to be heard and determined at 2:00pm that day. His Honour granted leave to the applicants to discontinue the interlocutory process (save for prayers 1 and 5), on the undertaking given by each of the applicants by their counsel not to bring a further application, interlocutory process, or notice of motion in or substantially in the form of paragraphs 2 to 4 and 6 to 11 of the interlocutory process filed on 14 August 2022 (the 15 August 2022 undertaking).

The claims to which the 15 August 2022 undertaking applied were in the following terms (errors in original):

The claims for relief in prayers 1 and 5 of the interlocutory process filed on 14 August 2022 were claims for an order terminating the winding up of ENA Development pursuant to s 482 of the Corporations Act on the basis that it had sufficient funds to pay creditors and the Liquidators, and for an order requiring the Liquidator and his solicitor (Mr O’Neill of ERA Legal) to return documents, files, computer hard drives, and other goods and chattels seized during the execution of the search warrant.

The applicants to the 14 August 2022 interlocutory process ultimately sought to discontinue their claims in prayers 1 and 5 on 15 August 2022, and Black J granted them leave to do so. The evidence adduced in the present proceedings does not disclose the events or circumstances that caused the applicants to change course and discontinue those claims, rather than having them heard and determined on the afternoon of 15 August 2022 as had been arranged earlier that morning. Black J also made an order requiring the applicants to pay the Liquidator’s costs of that interlocutory process on an indemnity basis. Those costs have not yet been paid.

The solicitor who had filed the 7 August 2022 and 14 August 2022 notices of motion on behalf of One T and the other named applicants wrote to the Associate to Black J on 17 August 2022 seeking leave to file a notice of ceasing to act. The proposed notice of ceasing to act provided Mr Sebie’s email address as the last known email address for One T and the named applicants. [20]

On 19 August 2022, Mr Jemmott commenced proceedings NSD662/2022 in the Federal Court of Australia seeking:

The plaintiffs refer to these proceedings as the First Jemmott Federal Court proceedings, and I will adopt the same convention.

Prayers 1 to 4, and prayer 6, of the originating process in the First Jemmott Federal Court proceedings sought substantially the same relief as prayers 1 to 3, and prayers 7 and 9, of the interlocutory process filed in the Trust proceedings on 14 August 2022 by One T Development, Mr Jemmott, and others. [21] Mr Jemmott’s claims for relief in prayers 3, 4, and 6 of the originating process filed in the Federal Court of Australia breached the 15 August 2022 undertaking given to this Court. [22]

On 25 August 2022, Mr Jemmott filed an interlocutory process in the First Jemmott Federal Court proceedings seeking, inter alia, an order for the urgent listing of his application that the winding up of ENA Development be terminated or stayed indefinitely. A mere ten days earlier, Mr Jemmott had sought and been granted leave to discontinue a claim for the same relief in the Trust proceedings in this Court. [23]

On 7 September 2022, Mr Jemmott sent an email to the Associate to Markovic J in the Federal Court of Australia attaching an unfiled amended interlocutory process seeking, in addition or in the alternative to an urgent listing of his application for the winding up of ENA Development:

Mr Jemmott’s email also attached an affidavit of Mr Robert Sebie, in which Mr Sebie stated that Mr Krejci should not have accepted his appointment as liquidator of ENA Development because he had a conflict of interest. Mr Sebie described four matters that he claimed gave rise to the alleged conflict:

I note that all of these matters allegedly occurred between three and twelve years before Mr Krejci was appointed as the liquidator of ENA Development on 27 January 2022. Mr Sebie’s affidavit concluded (emphasis, and errors, in original):

I note that:

The final sentence of Mr Sebie’s 7 September 2022 affidavit referred to above—“[t]his Winding Up application issued by the plaintiffs is premature and should not have occurred”—is difficult to understand, as Mr Jemmott was the only plaintiff in the First Jemmott Federal Court proceedings for which Mr Sebie’s affidavit was affirmed. However, I infer that Mr Sebie was making the same contentions that he repeatedly sought to advance during the hearing of the present proceedings before me, namely that:

If and to the extent that ENA Development shared or adopted Mr Sebie’s contentions referred to above, it was incumbent upon ENA Development to raise them in an application properly made to set aside the statutory demand issued by Mr and Mrs Pham, or otherwise in defending the winding up application. The winding up proceedings had been heard and determined by Black J on 27 January 2022. His Honour’s reasons for judgment include the following observations concerning ENA Development’s conduct of those proceedings, referring to various submissions made by Mr Dobbs of counsel who appeared for ENA Development: [29]

It is plain from his Honour’s reasons for judgment that ENA Development failed to adduce any evidence in the winding up proceedings that was capable of supporting the contentions referred to at [68] above, which Mr Sebie sought to advance approximately eight months later in his affidavit affirmed on 7 September 2022 in the First Jemmott Federal Court proceedings. Those same contentions were subsequently propounded by Mr Sebie in proceedings that he commenced in the Federal Court of Australia on 26 October 2022, [30] and at the hearing of the present proceedings before me.

The First Jemmott Federal Court Proceedings were listed for case management hearings in the Federal Court on 8 and 15 September 2022. Mr Sebie sought to appear by audio visual link and to be heard at the 15 September 2022 case management hearing.

On 21 September 2022, the Federal Court made orders on the application of the Liquidator transferring the First Jemmott Federal Court proceedings to this Court. The reasons for judgment of Halley J record that Mr Jemmott, who was represented by a solicitor at the hearing of the transfer application, did not adduce any evidence or make any submissions in opposition to the transfer application. [31] In determining that it was in the interests of justice that the proceedings be transferred to this Court, Halley J compared the relief sought in the interlocutory process filed by Mr Jemmott and others in the Trust proceedings in this Court on 14 August 2022 with the relief sought in the originating process filed in the First Jemmott Federal Court proceedings. His Honour said (emphasis in original): [32]

After the transfer of the First Jemmott Federal Court proceedings to this Court, Mr Jemmott’s application for the relief set out in the originating process was listed for hearing before Black J on 21 October 2022. Mr Jemmott did not appear on that occasion. The proceedings were dismissed as an abuse of process and Mr Jemmott was ordered to pay the costs of the Liquidator and ENA Development forthwith on an indemnity basis.

As referred to at [35] and [36] above, Mr Sebie’s motion filed on 30 May 2022—for orders staying or setting aside the judgment entered on 22 April 2022 in favour of ENA Development on its cross-claim in the Chiswick specific performance proceedings, and for orders requiring Mr Pham and the Liquidator to transfer the Fund to him—was amended by an amended notice of motion filed on 15 August 2022.

In addition to the relief sought in the notice of motion filed on 30 May 2022, the amended notice of motion sought an order staying the operation of any orders made in the Trust proceedings relating to the proceeds of sale of the Chiswick property, pending the hearing of the motion. It will be recalled that the only order made in the Trust proceedings on 11 July 2022 concerning the proceeds of sale of the Chiswick property was an order that the Liquidator would be justified, and would be acting reasonably, in treating those proceeds as an asset to which ENA Development is beneficially entitled on the assumption above that the Liquidator was able to establish ENA Development’s entitlement to the Fund in due course. [33]

Mr Sebie’s amended notice of motion was listed for hearing before Black J on 14 October 2022, together with an application by the Liquidator for orders transferring the Chiswick specific performance proceedings to the Federal Circuit and Family Court of Australia.

The reasons for judgment delivered by Black J ex tempore at the conclusion of that hearing on 14 October 2022 record that the Court had made orders on 26 September 2022 for the filing and service of evidence and submissions in respect of Mr Sebie’s amended notice of motion. Black J made the following observations: [34]

Black J then recorded that, though Mr Sebie did not seek to proceed with his motion, he resisted its dismissal on the basis that the proceedings were to be transferred to the Federal Circuit and Family Court of Australia. His Honour noted that the transfer application had been listed for hearing on 14 October 2022 on the basis that it would be heard and determined only after Mr Sebie’s amended notice of motion filed on 15 August 2022 had been determined and that, even after being reminded of that position and being offered an adjournment to allow further time to prepare for the hearing, counsel for Mr Sebie had confirmed after taking instructions that Mr Sebie did not wish to press his motion notwithstanding that he continued to oppose the motion being dismissed with costs.

Black J considered that there was no basis on which this Court would, or should, leave it to the Federal Circuit and Family Court of Australia to determine whether orders made by this Court should be set aside. His Honour recorded that a very substantial amount of evidence had been served in relation to Mr Sebie’s motion, including a court book prepared by Mr Sebie and several affidavits of Mr Sebie, such that the motion was ready to be heard had Mr Sebie not declined to proceed. His Honour acknowledged that Mr Sebie’s solicitor and counsel had only recently been instructed, and that they had not taken up an adjournment offered to them that would have allowed them time to familiarise themselves with the material, to take instructions, and to prepare for a hearing of the motion on the merits. His Honour dismissed Mr Sebie’s motion and ordered him to pay the Liquidator’s costs of the motion as agreed or assessed and Mr Pham’s costs of the motion fixed in the sum of $2,500.00 inclusive of GST.

Black J also made orders transferring the Chiswick specific performance proceedings to the Federal Circuit and Family Court of Australia. The ex tempore judgment of Black J records that the transfer order was made in circumstances where there were proceedings on foot in the Federal Circuit Court of Australia between Mr Sebie and his former wife, who contended that ENA Development was his alter ego and that the assets of ENA Development (which were held by the Liquidator) formed part of the pool of marital assets (the family law proceedings). [35] The Liquidator contended that the Chiswick specific performance proceedings had been wholly resolved, whilst Mr Sebie contended that the cross-claim filed against him in those proceedings had not been determined. The Liquidator applied for the proceedings to be transferred to the Federal Circuit and Family Court of Australia on the basis that, if any further application could properly be made in those proceedings, it should be determined in that Court.

On 31 August 2022, Mr Sebie filed a notice of motion in the Trust proceedings, which was subsequently amended on 26 September 2022.

The amended notice of motion sought the following relief:

That application was listed for hearing before Black J on 21 October 2022. Mr Sebie, who represented himself at that hearing, did not press for the relief in prayers 2, 4, and 5 referred to above, but did press the balance of the claims for relief. Black J made orders on that day dismissing the motion and requiring Mr Sebie to pay the Liquidator’s costs forthwith, in an amount to be agreed or assessed. His Honour gave reasons ex tempore, which were later published. [36]

In relation to Mr Sebie’s claim in prayer 1 of the amended notice of motion for an order joining him as a party to the Trust proceedings, Black J observed (with reference to authority) that a person ought to be joined as a party to proceedings if their legal rights are directly affected by the orders sought, but not otherwise. [37] His Honour then stated: [38]

Black J observed that prayer 3 of the amended notice of motion did not identify the specific orders that Mr Sebie sought to set aside. His Honour described the manner in which Mr Sebie had presented his case for the order sought in prayer 3: [39]

Black J then identified the following orders that emerged from Mr Sebie’s submissions as the orders that he sought to set aside:

In relation to the substance of Mr Sebie’s application to set aside the winding up order, Black J noted that a similar application had previously been made and abandoned by other persons associated with ENA, on the basis that ENA had a substantial asset to its name, being the Homebush property. [43] His Honour recorded Mr Sebie’s submission that the Homebush property could readily be realised to repay the petitioning creditor who had sought and obtained the winding up order in January 2022. Black J rejected Mr Sebie’s application because any application by Mr Sebie to terminate the winding up of ENA Development would need to be made under s 482 of the Corporations Act (if indeed Mr Sebie had standing to make such an application) and would need to be supported by evidence of ENA’s cash flow solvency. [44] His Honour stated: [45]

In relation to Mr Sebie’s application to set aside the appointment of the Liquidator as receiver of the assets of the Trust, Black J said: [46]

In relation to Mr Sebie’s application to set aside the judicial advice given by Stevenson J—that the Liquidator would be justified in treating the Homebush property as beneficially owned by ENA Development—Black J said: [47]

Black J continued, as regards Mr Sebie’s claim in prayer 3 of the amended notice of motion: [48]

Black J dismissed Mr Sebie’s application in prayers 6 and 7 of the amended notice of motion for an order requiring the Liquidator to return all items taken from the Homebush property in the execution of a search warrant authorised by this Court, and that the Liquidator and his solicitors be restrained from keeping copies of those items, because Mr Sebie had not adduced any evidence to establish that the search warrant had not been properly executed. [49]

In relation to Mr Sebie’s application in prayer 8 of the amended notice of motion for a declaration that the Liquidator has a conflict of interest in performing his duties as liquidator of ENA Development, Black J stated: [50]

In the same reasons for judgment, Black J addressed the Liquidator’s application for an order for possession of the Homebush property, made by interlocutory process filed in the Trust proceedings on 12 September 2022. That interlocutory process had been amended on 19 October 2022 to seek an additional order under s 74MA of the Real Property Act 1900 (NSW) for the withdrawal of a caveat that Mr Sebie had lodged on the title to the Homebush property on or about 14 October 2022. Black J made an order on 21 October 2022 for possession in favour of the Liquidator and granted leave to the Liquidator to issue a writ of possession to enforce that order. [51]

The Liquidator’s application under s 74MA of the Real Property Act was stood over to be heard on 24 October 2022. Mr Sebie represented himself at that hearing before Black J, which lasted for approximately three hours. Mr Sebie’s caveat claimed an interest in the Homebush property under a constructive trust on the basis that he claimed to have contributed to the purchase price of the property in 2013. Mr Sebie also claimed an interest under a lease dated 1 November 2019. At the conclusion of the hearing, his Honour made the order sought by the Liquidator under s 74MA requiring Mr Sebie to withdraw the caveat and a further order empowering the Registrar in Equity to act in place of Mr Sebie if he failed to comply with the order and to do all things necessary to ensure that the caveat be withdrawn.

On 11 November 2022, the Court issued a writ of possession for the Homebush property on the application of the Liquidator. On the same day, One T Development lodged a caveat on the title to the Homebush property claiming “an equitable interest in the land pursuant to a transfer signed on 03/02/2022”.

As referred to at [73] above, the First Jemmott Federal Court proceedings which had been transferred to this Court on 21 September 2022 were also listed for hearing before Black J on 21 October 2022. It will be recalled that the relief sought in the First Jemmott Federal Court proceedings included an order under s 482 of the Corporations Act terminating the winding up of ENA Development. [52] Mr Jemmott did not appear when the matter was called for hearing on 21 October 2022. Black J dismissed the proceedings as an abuse of process.

On 21 October 2022, Black J also heard and determined the Liquidator’s application to transfer the Trust proceedings to the Federal Circuit and Family Court of Australia. His Honour was satisfied that there was plainly an overlap between the issues in the Trust proceedings, to the extent that they remained on foot, and the issues in the family law proceedings, and that questions concerning any reallocation of assets between Mr Sebie and his former wife should be determined in the family law proceedings. His Honour ordered that the Trust proceedings be transferred to the Federal Circuit and Family Court of Australia, save for the Liquidator’s application for an order under s 74MA of the Real Property Act for the removal of Mr Sebie’s caveat against the Homebush property, which was determined on 24 October 2022 as referred to above. [53]

On 25 October 2022, One T Development commenced proceeding 2022/223074 in the Court of Appeal seeking leave to appeal from the winding up order made in respect of ENA Development on 27 January 2022, the orders made by Stevenson J in the Trust Proceedings on 11 July 2022, and the orders made by Black J on 21 October 2022 granting the Liquidator possession of the Homebush property and leave to issue a writ of possession to enforce that order. It is convenient to refer to those proceedings as the 2022 appeal proceedings.

As referred to at [137]-[142] below, One T Development abandoned its application for leave to appeal from the winding up order on 8 February 2022. Leave was granted to the extent that it was required in respect of the remaining appeal grounds, and the appeal was heard on 20 April 2023.

On 26 October 2022, an application was filed by Mr Mazen Zraika54 in the family law proceedings. In the present proceedings, the plaintiffs tendered an extract from the Commonwealth Courts Portal relating to the family law proceedings, in which the application is described as having been filed by One T Development. However, the application form filed with the Federal Circuit and Family Court of Australia names Mr Zraika as the applicant and appears to bear his signature. There is no evidence that Mr Zraika held any office with One T Development. The evidence does not support a finding that the applicant was the entity recorded in the portal, rather than Mr Zraika who was named in the application form as filed. The application sought the following relief (errors in original): [54]

I note that prayers 1, 2, and 9 above seek substantially the same relief as:

In relation to prayer 3 above, it will be recalled that Kazi & Associates were the solicitors who had filed the 7 August 2022 and 14 August 2022 notices of motion on behalf of One T Development and the other named applicants in the Trust proceedings. [57]

In relation to prayers 4 to 7 above, the evidence adduced at the hearing before me did not identify any deed of company arrangement that had been proposed to the creditors of ENA Development as at 26 October 2010. No person held the office of “Deed Administrator” referred to in prayer 5(a). The company was under the control of the Liquidator. On the face of it, prayer 6(b) sought an order requiring the company to execute a deed of arrangement irrespective of the outcome of the meeting of creditors proposed in prayer 5(a).

As referred to at [143]-[154] below, that application was listed for hearing, together with other applications, in the Federal Circuit and Family Court of Australia, for five days commencing on 20 February 2023. One T Development did not appear at that hearing, except to apply for an adjournment. There is no evidence about whether Mr Zraika appeared at that hearing.

On 26 October 2022, an originating process was filed in the Federal Court of Australia naming Ms Rose Sebie and Mr Sebie as the first and second plaintiffs, and ENA Development and the Liquidator as the first and second defendants. The filing of that originating process commenced proceeding NSD912/2022 in that Court (the Sebie Federal Court proceedings).

The originating process sought the following relief (errors in original):

I note that the relief sought in the originating process is substantially the same as the relief sought in the First Jemmott Federal Court proceedings, save that Mr Jemmott’s claim for an order that the winding up of ENA Development be terminated upon payment of the petitioning creditor’s debt and upon certain other creditors entering into deeds of deferral or release, was replaced with Mr Sebie’s claim for the orders in prayer 3 above relating to an unidentified deed of company arrangement. [58]

On 16 November 2022, Registrar Segal made the following orders in the Sebie Federal Court proceedings:

On 6 December 2022, Mr Sebie filed an interlocutory process in the Sebie Federal Court proceedings seeking a stay of the orders made by Registrar Segal on 16 November 2022 and a review of those orders, as well as leave to file and serve an amended originating process. By the proposed amended originating process, Mr Sebie sought to introduce a new claim for relief in the following terms (errors in original):

That proposed new claim refers to the orders made in the Chiswick specific performance proceedings on 1 April 2021, which I have referred to at [67]-[68] above.

The Federal Court of Australia has not yet heard the abovementioned interlocutory process, including the application for leave to amend. At a directions hearing before Lee J on 13 February 2023, orders were made for the filing and service of any amended version of that interlocutory process after the final determination of the family law proceedings.

On 22 December 2022, Mr Jemmott, Enterprise INT, and One T Development filed a notice of motion in the Trust proceedings seeking the following relief (errors in original): [59]

In the proceedings before me, the plaintiffs refer to this notice of motion as the stay motion, notwithstanding that it also included a claim for declaratory relief. I shall adopt the same terminology in these reasons.

The statement of claim referred to in prayer 3 of the stay motion included the following pleadings:

On 3 January 2023, Mr Sebie notified the Liquidator’s solicitors and the Associate to the Common Law Duty Judge that he sought to be joined to the notice of motion and to have the stay motion heard on 5 or 6 January 2023.

The stay motion was heard by Ierace J on 6 January 2023. His Honour gave an ex tempore judgment that afternoon dismissing Mr Sebie’s application to be joined to the motion and dismissing the stay motion. [60] His Honour listed the matter on 31 January 2023 for the purpose of determining the costs of the motion. His Honour determined the costs of the motion on 28 February 2023, ordering Mr Jemmott and Mr Sebie to pay those costs on an indemnity basis in the fixed sum of $27,899. His Honour’s reasons for judgment in relation to costs recorded that “[a]lthough Mr Sebie had not ultimately been granted leave to appear at the hearing [of the stay motion] on 6 January 2023, he served voluminous evidence and made detailed submissions, taking up much of the day of hearing time”. [61]

At approximately 5:00pm on 5 January 2023, Mr Sebie sent a lengthy email to Goodman J of the Federal Court of Australia requesting an urgent hearing of the application for a stay and/or review of the orders made on 16 November 2022 dismissing Mr Sebie’s application for an order terminating the winding up of ENA Development, referred to at [105]-[111] above. Mr Sebie’s email relevantly stated (emphasis added; errors in original):

After Ierace J had delivered judgment on the afternoon of 6 January 2023 dismissing the stay motion, Mr Sebie instigated an urgent hearing before Goodman J of his application for an order under s 482 of the Corporations Act staying the winding up of ENA Development pending Mr Sebie’s application for review of Registrar Segal’s order made on 16 November 2022 refusing to terminate the winding up of that company. That urgent hearing occurred during the late afternoon and evening of 6 January 2023, with further written submissions being provided by both Mr Sebie and by the respondents to the application over the weekend of 7 and 8 January 2023. Goodman J delivered judgment on 9 January 2023 dismissing Mr Sebie’s application on the basis that he was neither a creditor nor a contributory of ENA Development, and therefore lacked standing to make the application under s 482. [62] His Honour continued (emphasis in original): [63]

His Honour ordered Mr Sebie to pay the respondents’ costs of the application.

The writ of possession issued on the application of the Liquidator in respect of the Homebush property was executed on 9 January 2023. The Liquidator is now in possession of that property.

At approximately 5:12am on 10 January 2023, Mr Jemmott sent an email to the Associate to Leeming JA attaching what was described as “the sealed first instance, Notice of Motion and the amended Notice of Motion” (sic) and pressing for an urgent hearing of the claims in prayers 2 and 3 of the motion.

Mr Jemmott had not been given leave to send any communication to his Honour’s chambers concerning this proposed application. On the contrary, the Registrar of the Court of Appeal had declined a request made by Mr Jemmott on 22 December 2022 to list a foreshadowed application for a stay of the possession order in respect of the Homebush property for urgent hearing during the Court vacation.

Mr Jemmott’s unauthorised communication concerning the proposed application failed to inform the Associate to Leeming JA that the stay motion had already been heard and dismissed by Ierace J on 6 January 2023, [64] and that a further application by Mr Sebie had been heard and dismissed by Goodman J in the Federal Court of Australia on 9 January 2023 on the basis that, inter alia, the application was “in substance a second attempt to obtain a stay of the writ of possession, albeit by a different means”. [65]

The Registrar replied to Mr Jemmott’s unauthorised communications on 13 January 2023, reiterating the determination that the Registrar had previously conveyed to Mr Jemmott that the proposed motion was not ready to be referred to a Judge of Appeal. This was followed by Mr Jemmott’s separate communications with the chambers of both the Common Law Duty Judge and the Equity Duty Judge attempting to re-list the stay motion, and also by a series of further communications between the Registrar and Mr Jemmott in which the Registrar identified numerous shortcomings with the material submitted by Mr Jemmott for the purpose of the proposed motion. Mr Jemmott failed to address those shortcomings.

During the period between 16 January and 21 January 2023, Mr Jemmott sent emails to the Associates to the Common Law Duty Judge and the Equity Duty Judge in this Court seeking to re-list the stay motion that had been dismissed by Ierace J on 6 January 2023.

On 16 January 2023, Mr Jemmott sent an email to the Associate to Yehia J (who was then the Common Law Duty Judge) seeking to list the notice of motion filed on 22 December 2022 for hearing of the claims for relief that had not been determined by Ierace J—being the claims for a declaration that One T is the legal owner of the property, as well as an order “to complete the transfer of the Homebush Property into the name of One T Development Pty Ltd”. [66] Her Honour’s Associate replied promptly, advising Mr Jemmott to approach the Supreme Court Duty Registrar in the first instance. The Registrar apparently directed Mr Jemmott to the Associate to the Equity Duty Judge, Meek J. On 18 January 2023, his Honour listed the matter for mention at 10:00am the following day.

Following the mention on 19 November 2023, Meek J made a formal notation that there was no application on which the applicants presently sought to proceed. Mr Jemmott then sent an amended notice of motion by email to the Associate to Richmond J, who was the Equity Duty Judge for the week commencing 23 January 2023. Richmond J arranged for the matter to be listed before Ierace J on 31 January 2023, noting that the principal relief sought in the amended notice of motion was a variation of the relief that had been sought in the stay motion, along with other relief that was, on its face, inconsistent with the orders made by Ierace J on 6 January 2023. Mr Sebie was copied to Mr Jemmott’s emails sent to the Associates to Justices Yehia, Meek and Richmond.

As referred to at [116] above, the Trust proceedings had already been listed before Ierace J on 31 January 2023 for the purpose of determining the costs of the stay motion. His Honour’s reasons for judgment delivered following that hearing refer to Mr Jemmott’s approach to the Equity Duty Judge seeking to have the amended notice of motion listed for hearing. His Honour stated, in view of the apparent overlap between the claims for relief in the amended notice of motion, and of the claims for relief that had been determined on 6 January 2023, that the amended notice of motion had been listed for hearing at the same time as the costs applications in respect of the stay motion. Ierace J recorded that Mr Carbone had appeared for Mr Jemmott, and that Mr Sebie had sought leave to appear for One T Development in relation to the amended notice of motion. Mr Jemmott had applied on 31 January 2023 to adjourn the hearing of the amended notice of motion until 14 February 2023, and Mr Sebie had supported that application on the basis that proceedings in other courts during the intervening period might eliminate the need for the motion to proceed on 14 February 2023. The adjournment application was refused, and Mr Carbone then withdrew his application for leave to file the amended notice of motion. [67]

On 23 January 2023, Mr Jemmott commenced proceeding NSD52/2023 in the Federal Court of Australia against Mr Krejci in his capacity as Liquidator of ENA Development (the Second Jemmott Federal Court proceedings). Mr Jemmott claimed the following relief in the originating process (errors in original):

I note that those claims for relief are in near-identical terms to the claims for relief in Mr Sebie’s originating process filed in the Sebie Federal Court proceedings on 26 October 2022, incorporating the amendment proposed by Mr Sebie on 6 December 2022. [68]

Mr Jemmott failed to appear at a case management hearing in the Second Jemmott Federal Court proceedings on 27 January 2023. In the proceedings before me, the Liquidator has given evidence on information and belief from Mr Chase Berry that Mr Sebie attempted to appear on Mr Jemmott’s behalf.

At the next case management hearing on 2 February 2023, Mr Carbone, solicitor, appeared for Mr Jemmott. In the proceedings before me, the Liquidator has given evidence on information and belief from Mr Chase Berry that Mr Sebie also sought—and was refused—leave to appear at that case management hearing.

On 8 February 2023, the Second Jemmott Federal Court proceedings were listed for the hearing of an application by the Liquidator for the proceedings to be either dismissed or transferred to the Federal Circuit and Family Court of Australia. Mr Ardino, an employed solicitor of Sydney Law Practice, appeared for Mr Jemmott on that occasion. In the proceedings before me, the Liquidator has given evidence on information and belief from Mr Chase Berry that Mr Jemmott and Mr Sebie were both present in court, and that Mr Ardino “appeared to take the majority of his instructions from Mr Sebie”. The transcript of that hearing records that Mr Sebie attempted to interject during an exchange between Markovic J and the solicitor appearing for Mr Jemmott about the relevance of allegations made in an affidavit on which Mr Jemmott sought to rely to the effect that the Liquidator had a conflict of interest that he had failed to disclose to the Court. [69]

At the conclusion of the hearing on 8 February 2023, Markovic J made orders dismissing the Second Jemmott Federal Court proceedings and ordering Mr Jemmott to pay the Liquidator’s costs on an indemnity basis in the fixed sum of $14,542.20. Her Honour informed the parties that she had come to that decision because she was “more than satisfied” on the basis of the evidence adduced before her that the proceedings were an abuse of process. The parties indicated that they did not require formal reasons, and her Honour gave the following reasons ex tempore: [70]

On 27 March 2023, Mr El-Masri sent an email to Mr Quinlan of ERA Legal stating that an appeal had been filed against the orders made by Markovic J on 8 February 2023 and that “the appeal application” would be served shortly. It will be recalled that Mr Jemmott gave evidence during the hearing of the Trust proceedings before Stevenson J in June 2022 that Mr El-Masri was an accountant who had participated in the preparation of Mr Jemmott’s affidavits relied on by One T Development in acting as contradictor to the Liquidator’s application for judicial advice. [71] There was no evidence adduced at the hearing of the present proceedings that Mr Jemmott had or has in fact filed any appeal or application for leave to appeal from the orders made in the Second Jemmott Federal Court proceedings.

The plaintiffs’ submissions refer to further proceedings commenced by Mr Jemmott and One T Development in the Real Property List of the Equity Division of this Court on 1 February 2023 (the Real Property List proceedings). The parties did not adduce any evidence relating to those proceedings.

As referred to at [98] above, One T Development commenced the 2022 appeal proceedings on 25 October 2022 by filing a summons seeking leave to appeal from the winding up order made in respect of ENA Development on 27 January 2022, the orders made by Stevenson J in the Trust Proceedings on 11 July 2022, and the orders made by Black J on 21 October 2022 granting the Liquidator possession of the Homebush property and leave to issue a writ of possession to enforce that order.

One T Development’s application for leave to appeal was heard on 8 February 2023. It appears from the transcript of that hearing that One T Development abandoned its proposed appeal from the winding up order, counsel for the Liquidator and ENA Development conceded that One T Development was entitled to appeal as of right from the order for possession of the Homebush property such that leave was not required in respect of that aspect of the appeal, and the Court granted leave to appeal from the judicial advice orders made on 11 July 2022.

One T Development is the sole appellant in the 2022 appeal proceedings. An application by Mr Sebie to be joined as a party to those proceedings was refused.

On 17 February 2023, One T Development filed a notice of motion in those appeal proceedings for a stay of the orders made by Stevenson J that the Liquidator would be justified, and would otherwise be acting reasonably, in treating both the Homebush property and the securities and monies referred to in those orders as assets to which ENA Development is beneficially entitled. [72] That application was heard by Macfarlan JA on 20 February 2023. The Liquidator has given evidence on information and belief from Mr Chase Berry that Mr Jemmott was not present in court during that hearing and that Mr Sebie was present in court and “appeared to give Mr Carbone instructions”. Mr Carbone of Sydney Law Practice was, by that time, the solicitor on the record for One T Development in the 2022 appeal proceedings.

It is convenient to set out almost the entirety of Macfarlan JA’s succinct reasons for dismissing One T Development’s application for a stay of the orders that are the subject of the appeal: [73]

Following the grant of expedition, the 2022 appeal proceedings were heard on 20 April 2023. Judgment in those proceedings remained reserved as at the date of publication of these reasons.

As referred to above, the hearing of the family law proceedings commenced on 20 February 2023, including:

At the time that it was filed on 29 November 2022, the Liquidator’s application referred to immediately above included in prayer 2 an application for an order that each of Mr Sebie, Ms Rose Sebie, Mr Jemmott, Ms Gayed, Ms Cheryl Ansah, One T Development, Enterprise INT, and Enterprise ICT:

In his affidavit affirmed on 21 April 2023, Mr O’Neill gave evidence that Mr Evangelos Patakas, solicitor, appeared for One T Development at the commencement of the hearing on 20 February 2023 and applied for the hearing to be adjourned. That application followed emails sent by Mr El-Masri to the Associate to Henderson J in the Federal Circuit and Family Court of Australia on 17 and 19 February 2023 requesting an adjournment of the hearing on the basis that the hearing would “clash” with the hearing in the Court of Appeal of One T Development’s application filed on 17 February 2023 in the 2022 appeal proceedings. [74]

On the morning of 20 February, Mr Sebie wrote to the Associate to Henderson J stating (errors in original):

Mr Sebie was not a party to the 2022 appeal proceedings and was not a party to the motion filed by One T Development that had been listed for hearing in the Court of Appeal on 20 February 2023. [75]

Mr O’Neill gave evidence that Henderson J refused One T Development’s application for an adjournment on 20 February 2023, and that Mr Patakas then left the hearing, notwithstanding that the refusal of the adjournment application meant that the application filed by Mr Zraika on 26 October 2022 remained listed for hearing.

In his affidavit affirmed on 28 April 2023, Mr O’Neill gave evidence that he was in attendance during most of the first three days of the hearing before Henderson J held between 20 and 22 February 2023. Mr O’Neill deposed that he instructed Mr Rose on the evening of 20 February 2023 not to press prayer 2 of the Liquidator’s application filed on 29 November 2022, referred to at [144] above. Mr O’Neill also deposed that he recalled Mr Rose informing Henderson J during the morning session of the hearing on 21 February 2023 that the “vexatious litigant relief” was not pressed because it did not appear to Mr Rose that the Federal Circuit and Family Court of Australia had jurisdiction to make the kind of order sought in prayer 2. According to Mr O’Neill, Henderson J responded to the effect that her Honour thought that what had fallen from Mr Rose was correct. Mr O’Neill also deposed to having reviewed notes prepared by his colleague, Mr Quinlan, during the hearing on 21 February 2023, and that those notes recorded that the “vexations application” (sic) was withdrawn and that Mr Sebie had not attended the hearing on that day until approximately 1:00pm.

Mr O’Neill’s affidavit affirmed on 28 April 2023 was read by the plaintiffs after Mr Sebie sent an email to my Associate (without leave) during the course of the hearing before me accusing Mr Rose of having made a false statement and having misled the Court by stating on the second day of the hearing before me that the Liquidator had abandoned prayer 2 of his application referred to above during the hearing before Henderson J.

Mr Sebie was later permitted to read his own affidavit affirmed on 1 May 2023, in which he denied that the Liquidator had withdrawn prayer 2 of his application on the basis that (errors in original):

Mr Sebie’s evidence that he did not hear any application by Mr Rose to withdraw part of the Liquidator’s application does not grapple with the substance of Mr O’Neill’s evidence that Mr Rose informed Henderson J that the relevant application was not pressed (as opposed to making an application to withdraw certain prayers for relief), and the fact that this occurred during the morning session of the hearing on 21 February 2023 at which time, according to Mr O’Neill’s evidence, Mr Sebie was not present in court. It is not clear from Mr Sebie’s evidence whether he says that he attended the hearing for the whole of the day, or only part of the day, on 21 February 2023.

During the proceedings before me, Mr Sebie issued repeated demands for the plaintiffs to tender the transcript of the hearing before Henderson J. Ultimately, I made an order that one of those demands be treated as a notice issued by Mr Sebie to the plaintiffs pursuant to UCPR r 34.1 to produce to the Court any copy of that transcript in the plaintiffs’ possession, custody, or control. Counsel for the plaintiffs responded to that notice by informing the Court that there was nothing to produce because the plaintiffs had not ordered a copy of that transcript.

In his affidavit affirmed on 21 April 2023, Mr O’Neill gave evidence that the Federal Circuit and Family Court hearing concluded on 24 February 2023, and that Henderson J reserved judgment in respect of the Liquidator’s applications referred to above. It was not clear to Mr O’Neill what became of the application filed on 26 October 2022.

On 11 April 2023, Mr Robert Sebie, Mr Jemmott and One T Development commenced proceeding 2023/115895 in the Court of Appeal seeking leave to appeal from:

It is convenient to refer to these proceedings as the 2023 appeal proceedings.

On Monday, 17 April 2023, Mr Jemmott and Mr Sebie filed a notice of motion in the 2022 appeal proceedings seeking various orders, including an order that the 2022 appeal proceedings “be joint or run concurrently with” the 2023 appeal proceedings.

It will be recalled that the 2022 appeal proceedings were listed for final hearing on Thursday, 20 April 2023. That hearing proceeded as a hearing of the 2022 appeal proceedings only. Mr Jemmott and Mr Sebie’s notice of motion was returnable before the Court of Appeal Registrar at 9:15am on 24 April 2023. The Registrar declined to refer the motion to a Judge of Appeal for hearing on that occasion. Both that motion, and the application for leave to appeal in the 2023 appeal proceedings, are yet to be heard and determined.

The plaintiffs do not contend in these proceedings that the 2022 appeal proceedings or the 2023 appeal proceedings are vexatious proceedings within the meaning of s 6 of the Vexatious Proceedings Act.

As referred to at [142] above, the 2022 appeal proceedings were heard on 20 April 2023. The judgment of the Court of Appeal is reserved as at the date of publishing of these reasons.

The plaintiffs’ applications for vexatious proceedings orders were originally made by interlocutory process filed on 23 March 2023 in the Trust proceedings. Each of the defendants to the present proceedings were respondents to that interlocutory process.

On 27 March 2023, Black J made orders in the Trust proceedings for substituted service of the interlocutory process and supporting evidence on the defendants, and listed the interlocutory process for directions on 29 March 2023.

On 29 March 2023, Black J made directions for the preparation of the interlocutory process for hearing commencing on 24 April 2023 and continuing on 26-28 April 2023 as required. Those directions included:

His Honour also made the following notation:

At the hearing before me, the plaintiffs read an affidavit of Mr Edmund Quinlan affirmed on 28 March 2023, an affidavit of Mr William Pattinson affirmed on 29 March 2023, and an affidavit of Mr Blake O’Neill affirmed on 21 April 2023, which established that each of the defendants had been served in accordance with the substituted service orders made on 27 March 2023 with:

At the directions hearing in the Trust proceedings on 3 April 2023, Mr Chase Berry, solicitor, appeared for the applicants to the interlocutory process and Mr Sebie represented himself by telephone. There was no appearance by or on behalf of any other respondent. The transcript of the directions hearing records that:

At the conclusion of the directions hearing on 3 April 2023, Black J made orders to the following effect:

At the hearing before me, the plaintiffs read a further affidavit of Mr Quinlan affirmed on 5 May 2023 which established compliance on 4 April 2023 with the substituted service orders made on 4 April 2023.

I acknowledge that the plaintiffs’ evidence concerning service identified emails received by the plaintiffs’ solicitors in response to the emails sent to Mr Jemmott in compliance with the substituted service orders, which indicated that the plaintiffs’ emails had not been delivered to Mr Jemmott. In the case of Mr Jemmott’s @ena.com.au email address, the response stated: “[t]he address is invalid”. In the case of Mr Jemmott’s Gmail address, the response stated: “[t]his email account is closed”. However, the plaintiffs also adduced evidence of emails sent from, and received by, one of those email addresses in the course of correspondence between Mr Jemmott and the Registrar of the Court of Appeal in the period after 13 April 2023 in relation to the 2022 and 2023 appeal proceedings. In one of those emails to the Registrar, Mr Jemmott states the position of himself and One T Development in relation to a procedural issue in the 2022 appeal proceedings. One T Development is the sole appellant in the 2022 appeal proceedings and, according to ASIC’s register, Mr Jemmott is the sole director and shareholder of One T Development. Mr Carbone, to whom the plaintiffs sent documents by way of substituted service on Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT in accordance the substituted service orders made on 27 March 2023 and 3 April 2023, is the solicitor on the record for One T Development in the 2022 appeal proceedings. I infer that Mr Carbone provided those documents to each of Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT promptly after receiving them, as it would be most improper for a solicitor not to do so.

On 11 April 2023, Mr Sebie sent an email to my Associate in substantially the same terms as the email that he had sent to the Associate to Black J on 3 April 2023 that had been marked as MFI-1 during the directions hearing on 3 April 2023. Mr Sebie’s email to my Associate requested that the matter be listed for a short hearing that week and attached an unfiled notice of motion dated 6 April 2023 seeking the following relief (errors in original):

I caused my Associate to reply to Mr Sebie’s email later that day informing him that the matter would not be listed that week as Mr Sebie had not filed a notice of appearance in the proceedings as required by the orders made by Black J on 3 April 2023, and had not filed an interlocutory process in respect of any of the applications described in either his email or in the attached unfiled notice of motion. At my direction, my Associate’s response added that, even if Mr Sebie had filed a notice of appearance and filed and served an interlocutory process, his application to strike out the proceedings on the grounds of alleged abuse of process would not be listed for hearing before 24 April 2023 for the reasons explained by Black J at the directions hearing on 3 April 2023. To assist Mr Sebie, a copy of the transcript of the directions hearing and the orders made on 3 April 2023 were attached to my Associate’s email, together with a link to the information published on the Court’s website for persons representing themselves in civil proceedings.

Mr Sebie did not file any notice of appearance, interlocutory application or any other document, and no further correspondence was received from him, prior to the commencement of the hearing on 24 April 2023. Nor did not any other defendant file a notice of appearance or take any other step in the present proceedings.

Section 8(3) of the Vexatious Proceedings Act provides that this Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. It is therefore appropriate that I set out in some detail what occurred at the hearing that commenced on 24 April 2023.

When the matter was called for hearing at 10:00am on 24 April 2023, Mr Rose of counsel announced his appearance for the plaintiffs. There was no appearance for the defendants, including when the matter was called outside the court. Mr Rose informed the court that he was instructed that Mr Sebie was appearing before the Court of Appeal Registrar at that time in relation to his motion in the 2022 appeal proceedings referred to at [157]-[158] above. I determined that the hearing should proceed on the basis that the plaintiffs would adduce evidence establishing that the defendants had been served in accordance with the orders made by Black J on 27 March and 3 April 2023. [77] Notwithstanding the order made by Black J on 3 April 2023 and my Associate’s communication with Mr Sebie on 11 April 2023 concerning notices of appearance, [78] neither Mr Sebie nor any other defendant had filed a notice of appearance. Mr Sebie was well aware that the hearing was listed to commence on 24 April 2023 and had not sought to communicate with my Associate requesting that the commencement time be delayed to accommodate his intention to appear before the Court of Appeal Registrar that morning.

The plaintiffs proceeded to read and tender the following evidence:

Mr Sebie then arrived in the court room and sought to make an informal oral application to adjourn the hearing for a period of two weeks. I declined to entertain any such application, or to hear him in the proceedings at all, unless and until he had filed a notice of appearance. I stood the matter down for a short period to allow Mr Sebie time to file a notice of appearance in the Registry if he wished to be heard.

When the hearing resumed after the short adjournment, Mr Sebie had filed a notice of appearance in the Registry. Mr Sebie thereby gave notice that he would appear for himself in the proceedings. He did not seek leave to appear for any other defendant.

I identified for Mr Sebie’s benefit the evidence that had been read and tendered by the plaintiffs before he had arrived at court, by reference to the two-volume court book containing that evidence. The plaintiffs’ solicitors provided a copy of that court book to Mr Sebie for his reference.

Mr Sebie was then permitted to make his informal application for an adjournment of the hearing for a period of two weeks. Mr Sebie’s extensive oral submissions in support of that application included many statements about the reasons why he said that he required further time to prepare for the hearing, but those reasons were not the subject of any evidence save for three documents that Mr Sebie tendered to prove the nature and extent of work that he submitted he had been doing in relation to the 2022 and 2023 appeal proceedings, rather than preparing for the hearing of these proceedings. Counsel for the plaintiffs made brief submissions opposing the adjournment. The hearing of the application occupied approximately one hour, concluding shortly before 1:00pm. I reserved my decision until after the luncheon adjournment.

When the hearing resumed in the afternoon, I informed the parties that I had determined to dismiss Mr Sebie’s adjournment application and that I would give reasons for that decision immediately. Mr Sebie interjected to inform the Court that, having decided over lunch that he wished to withdraw his adjournment application, that he wished now to apply instead for an order transferring the proceedings to the Federal Circuit and Family Court of Australia. In circumstances where I had already announced my decision to dismiss the adjournment application, I proceeded to give my reasons for that decision ex tempore. A copy of those reasons, as subsequently revised from the transcript and thereafter provided to the parties, is Annexure A to these reasons for judgment.

Mr Sebie then reiterated that he wished to make an application for the proceedings to be transferred to the Federal Circuit and Family Court of Australia and for the Liquidator and his solicitor to pay Mr Sebie’s costs of these proceedings on an indemnity basis and, “failing that”, for the proceedings to be struck out as an abuse of process. Having been invited to make submissions as to why he should be permitted to make those applications informally, Mr Sebie frequently ventured instead into submissions about the substance of his proposed applications. In particular, Mr Sebie pressed for the proceedings to be transferred to the Federal Circuit and Family Court of Australia because the Trust proceedings had been transferred there and “every single transcript, every bit of volume, every bit of documentation, every bit of evidence that we need to refer to is sitting in that court.” I reminded Mr Sebie that the orders made by Black J for the preparation of this matter for hearing had been designed to ensure that all of the evidence required for these proceedings was before this Court, and that his Honour had specifically reminded the parties that it was their responsibility to obtain copies from the files held by the Federal Circuit and Family Court of Australia of any material they wished to rely upon as evidence in these proceedings.

Mr Sebie also asserted that Black J had told him that he would be entitled to make his application to have the proceedings struck out or dismissed as an abuse of process during the hearing before me. Mr Sebie pressed me to permit that application to be made informally, and for me to determine that application in advance of determining any other issues in these proceedings on the basis that, according to Mr Sebie, the application would only take “no more than 20 minutes”.

I declined to permit Mr Sebie to disrupt the course of the final hearing by making serial informal applications. I reminded Mr Sebie that Black J had directed that any application to strike out the proceedings as an abuse of process must be made by interlocutory process filed and served in the proper manner. I informed Mr Sebie that, if he wished to seek leave to make applications of the kind he had now outlined, he would need to file an interlocutory process and pay the applicable filing fee in the Registry.

I then informed Mr Sebie that the plaintiffs would resume reading and tendering their evidence. Mr Sebie responded by asking if I would mind if he left Court early to attend to the filing of his applications and a supporting affidavit. I informed Mr Sebie that I did not excuse him for appearing during the afternoon and that, if he chose to absent himself from the hearing, it would continue in his absence, and he would not have an opportunity of being heard if he had any objections to the evidence to be read and tendered by the plaintiffs in that time.

Mr Sebie left the court room at 3:02pm and did not return for the balance of the day. During the course of the afternoon, the plaintiffs read Mr Quinlan’s affidavit affirmed on 28 March 2023, made submissions concerning the substance of the evidence relating to service, informed the Court of a proposed application for leave to amend the originating process that they intended to make at a time when Mr Sebie was present, made submissions (with reference to the evidence) about the relationships between the defendants to the proceedings, and made submissions addressing the legal principles that apply to the determination of applications for vexatious proceedings orders under s 8 of the Vexatious Proceedings Act.

At the conclusion of that first day of the hearing, I made a direction that the Court provide the transcript of that afternoon’s hearing (when received) to Mr Sebie. In accordance with that direction, my Associate forwarded the transcript to the parties as soon as practicable after it was available. Mr Sebie was therefore able to inform himself of what had occurred during the period in which he had chosen to absent himself from the hearing. By reason of the public holiday falling on ANZAC Day, the hearing was adjourned until 10:00am on Wednesday, 26 April 2023.

In summary, most of the first day of the hearing was lost to:

At 3:57pm on 25 April 2023, Mr Sebie sent a long email to my Associate stating, amongst other things, that he would not be able to attend the hearing on 26 April 2023 because he could not risk failing to attend other proceedings that were listed in the Local Court on that day. An extract from a court list that was pasted into Mr Sebie’s email recorded that the matter of R v Robert Sebie was listed at 9:30am in the Local Court on 26 April 2023. The nature of the listing was described as “Annulment Applications”.

Mr Sebie’s email came to the attention of my Associate, who in turn brought it to my attention, shortly before 9:00am on 26 April 2023. At my direction, my Associate sent an email to the parties at 9:15am stating that I regarded Mr Sebie’s email as an application to adjourn the hearing of these proceedings today and advising that the hearing would be adjourned until 2:00pm.

The start of the hearing in the afternoon was delayed until approximately 2:24pm because Mr Sebie sent a further email to my Associate very shortly before 2:00pm seeking leave to appear by audio visual link. I granted him leave to do so for that afternoon only. I did so in circumstances where it was clear that Mr Sebie had returned to his home or office following the Local Court hearing and was not in the vicinity of the Law Courts Building, such that the only other alternatives were either to proceed with the hearing in Mr Sebie’s absence, or to delay the commencement of the hearing even further while Mr Sebie travelled to the Law Courts Building. The leave for Mr Sebie to appear by audio visual link was limited to the afternoon of 26 April 2023 and was granted on the express basis that he was required to appear in person for the remainder of the hearing. During the course of the hearing on afternoon of 26 April 2023, I emphasised to Mr Sebie that I would not entertain any further applications for adjournments by email, and that any future applications for adjournments for any reason would need to be made in the proper way and supported by evidence.

A further email sent by Mr Sebie to my Associate shortly before 2:00pm on 26 April 2023 attached a notice of motion filed by Mr Sebie earlier that day claiming the following relief (errors in original):

The email also attached an undated affidavit of Mr Sebie of 17 paragraphs which exhibited a bundle of documents of 34 pages. I will refer to the affidavit as the 17-paragraph affidavit.

The prayers for relief in the notice of motion indicated that Mr Sebie had changed his position articulated on the afternoon on 24 April 2023, in that his principal application appeared to be for the relief set out in prayers 1, 2, and 3 of his notice of motion, and his application to transfer these proceedings to the Federal Circuit and Family Court of Australia appeared to be pressed only in the event that the Court did not grant the relief in prayers 1, 2, and 3 of the notice of motion.

At the commencement of the hearing at approximately 2:24pm on 26 April 2023, I acknowledged receipt of Mr Sebie’s notice of motion filed on 26 April 2023 and asked him to clarify the applications that he now wished to make. Mr Sebie stated that he wished to apply for the orders in prayers 1, 2, and 3 of his notice of motion and, if those applications failed, he would then wish to move on prayer 6 of his notice of motion seeking an order transferring these proceedings to the Federal Circuit and Family Court of Australia. I then sought to identify what (if any) evidence Mr Sebie wished to rely on in support of his notice of motion, assuming that he was permitted to move on the motion during the final hearing. Mr Sebie then changed his position concerning the notice of motion, requesting that he “reserve” prayer 1 and move first on prayers 2 and 3, together with prayer 6. Mr Sebie indicated that he only wished to move on prayer 1 if he did not succeed in respect of prayers 2, 3 and/or 6. I reminded Mr Sebie that his application in prayer 2 of the notice of motion to strike out the proceedings as an abuse of process would not be heard separately and determined in advance of other issues in the proceedings, but that it would be considered at the same time as the plaintiffs’ claims and the evidence as a whole.

Mr Sebie then changed his position again and said that he wished to press all of the claims for relief in his notice of motion, being prayers 1 to 7. I invited submissions from Mr Sebie as to whether he should be permitted to move on those prayers, given that the inevitable consequence would be to delay the hearing of the plaintiffs’ claims for relief and that there was no evidence of any satisfactory reason why Mr Sebie had not advanced his application for pro bono legal assistance or otherwise applied for any of the other relief set out in prayers 3 to 7 of his notice motion prior to the commencement of the hearing. Mr Sebie referred me to the same submissions that he had made in support of his unsuccessful adjournment application on Monday, 24 April 2023.

I declined to permit Mr Sebie to move, during the final hearing of the plaintiff’s claims, on his applications for the relief in prayers 1 to 7 of his notice of motion filed on 26 April 2023, save that I reserved the question of whether Mr Sebie should be permitted to move on prayer 2 of that notice of motion. The substance of that application to strike out the proceedings as an abuse of process had been foreshadowed at the directions hearing before Black J on 3 April 2023 and it seemed to me that the plaintiffs may be in a position to meet that application during the course of the final hearing, depending on the nature and scope of any evidence that Mr Sebie wished to seek leave to adduce in respect of prayer 2. My reasons for declining to permit Mr Sebie to move on prayer 1, and prayers 3 to 7, of his notice of motion during the final hearing were that Mr Sebie was well aware from the directions made by Black J on 3 April 2023 that he was required to file a notice of appearance before taking any further step in the proceedings, and that any applications he wished to make would need to be made by interlocutory process filed and served in accordance with the Uniform Civil Procedure Rules and accompanied by supporting evidence. Mr Sebie had been reminded of those requirements by the email that I caused my Associate to send to him on 11 April 2023. There was no evidence of any reasonable excuse for Mr Sebie’s failure to file a notice of appearance prior to the first day of the hearing, nor for his failure to take any steps to file and serve an interlocutory process or notice of motion or any supporting evidence in respect of his applications prior to 26 April 2023. Mr Sebie emphasised that his 17-paragraph affidavit was not the whole of his supporting evidence. He described in very general terms some further evidence on which he would wish to rely in support of the applications. He did not have that evidence to hand and complained that much of it was (according to Mr Sebie) in files that were now with the Federal Circuit and Family Court of Australia as a result of the transfer of the Trust proceedings to that court. In short, Mr Sebie had simply failed to prepare the applications and supporting evidence. The explanations put forward in his submissions for his lack of preparation were the same as his explanations for his failure to prepare for the hearing of the plaintiffs’ claims. Those explanations were unsatisfactory for the reasons identified in my ex tempore judgment given on 24 April 2023 dismissing Mr Sebie’s application to adjourn the hearing for two weeks. [79]

The reading of the plaintiff’s evidence then resumed. The plaintiff read the affidavit of Mr Nicholas Chase Berry affirmed on 24 April 2023, after Mr Sebie indicated that he disagreed with the substance of parts of the affidavit but did not identify any objections to the admissibility of the affidavit.

The plaintiff tendered a bundle of documents and transcripts relating to Court of Appeal proceedings 2022/22307, with no objection being taken by Mr Sebie.

The plaintiff then sought leave to file an amended originating process that had been provided to Mr Sebie that morning. Mr Sebie objected to the short notice. I deferred consideration of the plaintiff’s amendment application.

Mr Sebie then indicated that he wished to read and tender evidence. Mr Sebie was granted leave to file his 17-paragraph affidavit in court, and that affidavit was read after I ruled on objections. During the course of his submissions responding to the plaintiffs’ objections, Mr Sebie frequently launched into speeches about the substance of his contention that the proceedings are an abuse of process, his complaint that other evidence that he wished to rely on was in the files held by the Federal Circuit and Family Court of Australia, and his contention that these proceedings should be transferred to that court. The 34-page exhibit to the 17-paragraph affidavit was admitted into evidence without objection.

Mr Sebie then identified various affidavits and documents that he wished to read and tender in these proceedings, which he said were contained with the file for the Trust proceedings that had been transferred to the Federal Circuit and Family Court of Australia. Mr Sebie did not have copies of the affidavits and documents to provide to this Court in support of his application for leave to rely on them in these proceedings. Leave was required because Mr Sebie had not served those affidavits and documents on the plaintiffs in accordance with the orders made by Black J on 29 March and 3 April 2023. Counsel for the plaintiffs sought a direction that Mr Sebie serve electronic copies of those materials by 8:00pm that evening, and I made a direction to that effect. Counsel for the plaintiffs foreshadowed a global objection to Mr Sebie’s application for leave to rely on the material that he had identified and made preliminary submissions in support of that objection. In the course of those submissions, counsel drew Mr Sebie’s attention to the Court’s ability in determining proceedings under the Vexatious Proceedings Act to have regard to the manner in which the defence has been conducted in those very proceedings. [80] To this end, counsel for the plaintiffs put Mr Sebie on notice that he would be making a submission in closing about Mr Sebie’s conduct during the hearing over the preceding two days. Finally, counsel for the plaintiffs foreshadowed specific objections to each of the affidavits Mr Sebie had indicated that he would seek to read, in the event that the plaintiffs’ global objection was not upheld.

Shortly before the conclusion of the hearing on 26 April 2023 at about 4:30pm, Mr Sebie made complaints about the difficulty of attending this hearing when he claimed to be required elsewhere to confer with legal representatives acting for him in other proceedings that were due to be heard on Monday, 1 May 2023. I declined to entertain a further application for an adjournment on that basis, in circumstances where Mr Sebie had known for some weeks that the hearing of these proceedings was to commence on 24 April, the hearing would have likely concluded by the afternoon of 26 April but for Mr Sebie’s conduct and absences from the hearing, and there was no legitimate reason why his legal representatives in the other proceedings could not arrange to meet with him outside of court hours if they were informed that he was representing himself at the hearing in these proceedings under the Vexatious Proceedings Act.

The commencement of the hearing on 27 April 2023 was delayed until 10:45am due to Mr Sebie’s failure to appear and last-minute request by email to appear by audio visual link, which was refused in circumstances where he was not unable to attend court and it had been made clear to him the previous day that he must appear in person. Even at the delayed start time of 10:45am, Mr Sebie was not present in the court room and did not arrive until 11:09am.

During the evening of 26 April and the early hours of 27 April, Mr Sebie had sent emails attaching numerous affidavits and other material that he sought leave to read and tender in these proceedings. Counsel for the plaintiffs had reduced the plaintiffs’ objections to that material, including the global objection foreshadowed the previous day, to writing. I heard Mr Sebie’s oral submissions in response to the global objection. I then dismissed Mr Sebie’s application for leave to rely on the material listed in and attached to his emails sent overnight and gave reasons ex tempore. A copy of my reasons is Annexure B to these reasons for judgment.

Mr Sebie then sought to press his application for these proceedings to be dismissed as an abuse of process, this being the application in prayer 2 of his notice of motion filed on 26 April 2023. Counsel for the plaintiffs indicated that they were in a position to respond to that application immediately, whereupon Mr Sebie said that he would want to take legal advice in relation to his application and sought to re-agitate the application in prayer 1 of his notice of motion for pro bono legal assistance. Consistently with my decision on 26 April 2023, I declined to entertain Mr Sebie’s application for pro bono legal assistance on the third day of a final hearing that had been listed for up to four days, in which very little progress had been made in relation to the substantive issues by reason of both Mr Sebie’s absences from the court room and his series of applications. In the circumstances, I indicated that I would continue hearing the evidence concerning the plaintiffs’ claims and would permit Mr Sebie to address his claim that the proceedings are an abuse of process the following day, once he had had time to prepare his submissions. I declined to entertain an application for leave to rely on extensive evidence in support of prayer 2 of his notice motion which he purported to call upon the plaintiffs and/or the Court to procure for him from various files.

Returning to the plaintiffs’ case, I made an order granting leave to the plaintiffs to amend their originating process by incorporating some, but not all, of the amendments marked up on the proposed amended originating process which they had handed up during the hearing the previous afternoon. The amendments in respect of which leave was granted added a claim for orders pursuant to s 8(7)(a) of the Vexatious Proceedings Act that the following proceedings be stayed:

My reasons for granting leave to amend, over the objection of Mr Sebie, were that the amendments arose out of recent developments and were necessary amendments to be made for the purpose of determining the real questions raised by the proceedings, [81] being whether the defendants (including Mr Jemmott) had frequently instituted or conducted vexatious proceedings in Australia and, if so, whether the Court should exercise its discretionary power to make a vexatious proceedings order against any of the defendants. Mr Sebie would not be prejudiced by the amendments being permitted during the course of the hearing because he had had informed the Court earlier during the hearing that he had no intention of commencing any further proceedings relating to the winding up of ENA Development. I considered that the dictates of justice favoured the plaintiffs being granted leave to amend to introduce those two additional claims under s 8(7)(a) of the Vexatious Proceedings Act, and that this was the course most consistent with the overriding purpose facilitating the just, quick, and cheap resolution of the real issues in the proceedings. [82]

Mr Sebie stated that he was treating the amended originating process as a new application, and that he would seek to adduce evidence in relation to that new application. I informed Mr Sebie that it was not a new application, but an amendment of narrow scope brought about by the recent commencement of a further proceeding, and that the amendment did not open the gates for either party to serve and rely on further evidence generally.

After tendering three documents to which the plaintiffs did not object, Mr Sebie spent the afternoon of 27 April cross-examining Mr Chase Berry and the Liquidator. The cross-examination sought to focus primarily on the substance of Mr Sebie’s contentions about the ownership of the Homebush property, whether ENA Development should have been wound up in insolvency, whether the Liquidator had a conflict of interest and whether ENA Development is now solvent. That is to say, Mr Sebie sought to use his cross-examination of witnesses in these proceedings as a further platform to propound the arguments that he and the other defendants had sought to make on multiple previous occasions in the Trust proceedings in this Court and in the three proceedings in the Federal Court of Australia referred to in Section II above. The plaintiffs objected to the majority of Mr Sebie’s questions on the grounds of relevance and, in some instances, on additional grounds. Those objections were upheld in almost every instance. Mr Sebie inappropriately purported to ignore objections, by either demanding in response to the objection that the plaintiffs’ counsel allow him to continue, or by immediately pressing the witness to answer the question to which objection had been taken before I had ruled on the objection. This conduct occurred repeatedly during the course of the afternoon, despite the process being explained to Mr Sebie on several occasions. Mr Sebie frequently argued with my rulings and, on two occasions, protested that “this is ridiculous”.

At the conclusion of the third day of the hearing on 27 April, I rejected a further application made by Mr Sebie to adjourn the hearing until a day during the following week to accommodate the other commitments that he claimed to have. My reasons for rejecting that application were delivered ex tempore. A copy of those reasons is Annexure C to these reasons for judgment.

The commencement of the fourth day of the hearing on 28 April was again delayed by Mr Sebie’s failure to appear in person, by a very late request to appear by audio visual link, and by his failure to join the hearing promptly once an audio visual link established for him to connect to the court room.

Once Mr Sebie joined the hearing, he was permitted to read an affidavit that he had affirmed in the Trust proceedings on 7 September 2022 subject to an order limiting its use to evidence of Mr Sebie’s contention put to Mr Krejci in cross-examination the previous day that the plaintiffs had included an incomplete copy of that affidavit in the court book which they prepared for these proceedings.

Mr Sebie also tendered two documents that he wished to rely on in support of his application to strike out or dismiss these proceedings as an abuse of process, these being an index for a court book prepared in the Federal Circuit and Family Court of Australia proceedings and written submissions prepared by ENA Development and the Liquidator in those proceedings. I again declined Mr Sebie’s invitation to search for other documents that he described in general terms within a 3,500-page court book, for which he offered to provide an electronic Dropbox link. I reiterated to Mr Sebie that it was his responsibility to extract from that court book any documents that he wished to seek leave to tender. I also declined to permit Mr Sebie to tender the whole of that 3,500-page court book in circumstances where he did not contend that the whole of the court book was relevant to these proceedings. I declined to permit Mr Sebie to read his one-page unsworn affidavit dated 27 April 2023, but indicated that I would allow him to apply to read that affidavit during the course of the day if and when he was able to have it sworn.

The plaintiffs then read a short affidavit of Mr O’Neill affirmed on 28 April 2023 in response to the evidence that Mr Sebie had tendered in relation to his application to strike out or dismiss these proceedings as an abuse of process. I allowed the affidavit to be read, rejecting Mr Sebie’s objection that the affidavit was “false hearsay”.

Mr Sebie then indicated that he wished to respond to Mr O’Neill’s affidavit by tendering the transcript of the Federal Circuit and Family Court of Australia proceedings on 21 February 2023 in order to establish that, contrary to Mr O’Neill’s evidence, the Liquidator had not withdrawn part of his application during that hearing. Mr Sebie said: “I’ve read the transcript and I can’t see anywhere that it’s been rejected, your Honour”. Mr Sebie was not then in a position to provide a copy of that transcript that he sought to tender, and I indicated that I would permit him to seek to tender that transcript later in the day when he was in a position to provide a copy. Rather than seeking to tender that transcript, Mr Sebie repeatedly called on the plaintiffs to do so. At this time, it was my understanding that Mr Sebie had a copy of the relevant transcript, which he had said that he had read. Mr Sebie also indicated that he wished to adduce affidavit evidence in response to Mr O’Neill’s affidavit of 28 April 2023 and complained that the plaintiffs had served that affidavit late. I reminded Mr Sebie that the timing of the plaintiffs’ service and reading of Mr O’Neill’s affidavit had been dictated by the very late stage during the hearing at which Mr Sebie had adduced any evidence in support of his contention that the proceedings are an abuse of process. I indicated to Mr Sebie that, if and when he had an affidavit that he wished to read in response to Mr O’Neill’s affidavit affirmed on 28 April 2023, I would permit him to apply to read that affidavit, and that I would deal with any such application on its merits at the time that it was made.

The plaintiffs then commenced their closing submissions. Having considered an issue I had raised earlier that morning about the level of detail that was required in closing submissions in order for Mr Sebie to have a proper opportunity to make responsive submissions addressing the substance of the plaintiffs’ case, the plaintiffs proposed to make oral closing submissions in relation to some matters of principle and to supplement those oral submissions with a written schedule summarising their contentions in relation to each defendant for each proceeding relied on as against that defendant as a vexatious proceeding, and providing references to the evidence relied on in support of their contentions. The plaintiffs proposed for the hearing then to be adjourned for a few days to permit Mr Sebie to make written closing submissions (if he chose to do so) and listed for a further hearing thereafter for Mr Sebie to make oral closing submissions and for any submissions by the plaintiffs in reply. I acceded to that course, having formed the view earlier that day that the plaintiffs’ existing written submissions together with such oral submissions as they would be able to make in the limited hearing time remaining on 28 April may not address their case in an appropriate level of detail, and that Mr Sebie might not have a fair opportunity to process, and to make a full oral reply to, those submissions in that limited remaining time. Mr Sebie agreed to that course. 5 May was set as the date for the hearing to resume for the purpose of his oral closing submissions, after he confirmed that this date was suitable to him. Immediately after I made directions giving effect to those arrangements, Mr Sebie sought to move again on prayer 1 of his notice of motion filed on 26 April 2023 and asked me to make an order in terms of prayer 1 in chambers. I declined to permit Mr Sebie to re-agitate that application.

The plaintiffs’ oral closing submissions occupied the remainder of the morning, save for an application made by Mr Sebie to read an affidavit of Mr Jemmott made on 9 September 2022 in other proceedings. That affidavit had previously been included in the 1,300 pages of material that Mr Sebie had sought leave to read and tender on the morning of 27 April. I had rejected that application for the reasons explained in my ex tempore judgment delivered that morning. [83] I rejected Mr Sebie’s application made on the fifth day of the hearing, after the plaintiffs had moved into closing submissions, to read that affidavit in circumstances where no explanation was proffered for the lateness of that application and, to the extent that Mr Sebie relied on the same explanations that I had rejected in that earlier judgment, those explanations remained unsatisfactory. On 27 April, the plaintiffs had indicated extensive objections to parts of that affidavit if Mr Sebie were granted leave to read it. Given the time that had been taken to hear Mr Sebie’s submissions about the plaintiffs’ objections to the 17-paragraph affidavit, I formed the view that significant time would have been required on the afternoon of 28 April to hear his responses to the plaintiffs’ objections to Mr Jemmott’s affidavit, and that this would have interfered with the plaintiffs’ ability to comply with the directions I had made a short time earlier concerning the parties’ closing submissions.

The plaintiffs’ written closing submissions were filed and served at 5:42pm on 28 April 2023, in accordance with the directions made earlier that day.

Shortly before the hearing was due to resume at 2:00pm on 5 May 2023, Mr Sebie sent an email to my Associate at approximately 1:07pm seeking further time to complete written submissions and attaching a document that he described as “submission which are half completed and a mess” (sic).

When the hearing resumed on 5 May 2023, Mr Sebie applied for leave to read a further affidavit that he had affirmed on 1 May 2023. Parts of the affidavit addressed matters in respect of which I had earlier expressly reserved Mr Sebie’s right to make an application to adduce evidence at a later stage during the hearing, once he had gathered or prepared the relevant evidence. Parts of the affidavit related to other matters. I allowed the whole of the affidavit to be read, save for those parts that were inadmissible on relevance, hearsay, and other grounds.

I then addressed an email that Mr Sebie had sent to my Associate on the afternoon of 4 May 2023 in which he had stated that he did not have the transcript of the family law proceedings on 21 February 2023 and reiterated his position that the plaintiffs should tender that transcript. I made an order that this be treated as a notice issued by Mr Sebie to the plaintiffs pursuant to UCPR r 34.1 to produce to the Court any copy of that transcript in the plaintiffs’ possession, custody, or control. The plaintiffs’ response to that notice was that there was nothing to produce because they had not ordered a copy of that transcript.

I then informed Mr Sebie that I had not yet read the document sent to my Associate by email at 1.07pm on 5 May 2023 described as his “submissions which are half completed and a mess”, but that I would read it if he asked me to do so. Mr Sebie responded that he wanted to finalise his written submissions on the basis that there would be no need for oral submissions thereafter. Mr Sebie sought and was granted further time to prepare his written closing submissions on that basis, with the consent of the plaintiffs. Directions were made for Mr Sebie’s written closing submissions to be filed and served by 5:00pm on 9 May 2023, and for any submissions in reply to be filed and served by the plaintiffs by 5:00pm on 11 May 2023.

The hearing was then adjourned until 3:45pm on 5 May 2023 in order for the plaintiffs to prepare and serve on Mr Sebie a short affidavit supplementing their evidence of service on those defendants who had not appeared at the hearing. I informed Mr Sebie that he was excused from appearing at 3:45pm if, after reviewing the plaintiffs’ proposed affidavit, he did not wish to object to the plaintiffs’ application for leave to read it and did not wish to object to the admissibility of the affidavit. When the hearing resumed at approximately 3:50pm, Mr Sebie did not appear. I granted leave to the plaintiffs to read Mr Quinlan’s supplementary affidavit affirmed on 5 May 2023. That concluded the hearing, subject to the parties’ service of written submissions in accordance with the directions referred to above at [222].

On 7 May 2023, Mr Sebie sent an email to my Associate stating that he had been unable to dial back into the hearing after the short adjournment on the afternoon of 5 May 2023, and that he objected to Mr Quinlan’s affidavit affirmed on 5 May 2023 because it should have been served by the plaintiffs prior to 15 April 2023. In circumstances where Mr Quinlan’s affidavit is relevant only for the purpose of proving service of all relevant materials on those defendants who did not appear in the proceedings, I decline to revisit my decision made on 5 May 2023 to grant leave to the plaintiffs to read that affidavit.

Mr Sebie failed to file and serve his written closing submissions by 5:00pm on 9 May 2023. At 8:35am on 10 May 2023, my Associate sent an email to the parties at my direction referring to Mr Sebie’s non-compliance with the directions for submissions and listing the matter for directions at 12:00pm that day. Mr Sebie failed to appear at 12:00pm, and, after the matter had been called outside the court room, the matter was stood down until 12:25pm while further attempts were made by both my Associate and by the solicitors for the plaintiffs to contact Mr Sebie. The email communication from my Associate to Mr Sebie invited him to appear by telephone if he was unable to appear in person. Mr Sebie did not respond to those communications and did not appear, either in person or by telephone, when the directions hearing resumed at 12:25pm and the matter was again called outside the court room. I made a direction further extending the time for Mr Sebie’s written submissions to 5:00pm on 10 May 2023. I noted that, if Mr Sebie failed to provide his written submissions by that time, the proceedings would be determined on the basis of the plaintiffs’ submissions and Mr Sebie’s incomplete written submissions that he had sent to my Associate by email at approximately 1:07pm on 5 May 2023. Those directions were sent by my Associate to Mr Sebie by email promptly after the conclusion of the directions hearing at approximately 12:30pm.

At 6:49am on 11 May 2023, Mr Sebie sent an email to my Associate indicating that he had “just realised the below email was not sent on 09/05/2023, it was sitting in my drafts section.” The text of the ‘below email’ to which Mr Sebie referred was apparently pasted into the bottom of Mr Sebie’s 6:49am correspondence in the following terms (errors in original; emphasis added):

I have therefore taken Mr Sebie’s written submission received on 5 May into account in determining these proceedings. In circumstances where Mr Sebie was entitled to file and serve a revised, complete version of his submissions in accordance with the directions made on 5 and 10 May, I first looked at Mr Sebie’s 5 May submission after receiving his email on 11 May 2023. That document includes the following statement (errors in original):

I refer to the detailed account above of the manner in which these proceedings have been conducted and reject the submission that Mr Sebie has been denied procedural fairness.

During the hearing, Mr Sebie did not hesitate to make applications that he thought it was in his interests to make. Indeed, he did so repeatedly. Mr Sebie made no application at any stage that I recuse myself on the grounds of alleged bias. His submission concerning alleged bias was made only in the written document sent to my Associate on 5 May immediately before the commencement of the last session of the hearing. The submission is a bare assertion of bias or pre-determination. Mr Sebie has failed to articulate the basis for his contention that I might not bring an impartial and unprejudiced mind to the resolution of the issues in these proceedings. I reject the submission.

I have read and considered all of Mr Sebie’s submissions, but I have not found it necessary to refer to them extensively in these reasons. The submissions referred to a great deal of material that was not tendered in evidence in these proceedings. I have not taken that material into account. The submissions were directed principally to Mr Sebie’s contentions about the merits of the claims for relief that have been made and dismissed on multiple occasions in the proceedings referred to in Section II above. Mr Sebie failed to direct himself to the question whether those proceedings were vexatious, which is the central issue for determination in the present proceedings.

Section 7 of the Vexatious Proceedings Act expressly preserves any inherent jurisdiction or powers of the Court to restrict vexatious proceedings. However, the plaintiffs expressly abandoned any reliance on the Court’s inherent jurisdiction during their closing submissions on 28 April 2023. My consideration of the legislation and principles applicable to the plaintiffs’ claims is therefore confined to the Vexatious Proceedings Act and the well-established principles concerning the construction and operation of that Act.

Section 8 of the Vexatious Proceedings Act relevantly provides:

Section 4 of the Act defines “proceedings” as including any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, and “any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way”.

Section 6 of the Act defines “vexatious proceedings” as including:

As will be seen below, the plaintiffs in these proceedings are persons against whom the allegedly vexatious proceedings have been commenced by one or more of the defendants. The plaintiffs therefore have standing to apply for the vexatious proceedings orders sought in these proceedings under s 8(4) of the Act.

The Court must undertake the following four-step process in determining whether to make a vexatious proceedings order against the defendants: [84]

Once each allegedly vexatious proceeding as been identified in the first step, the second step requires the Court to consider each such proceeding individually and to determine whether it satisfies the statutory definition of “vexatious proceedings” set out at [234] above. [85] As Basten JA observed in Viavattene v Attorney-General (NSW), the definition is not expressed to be exclusive, but it would be “rare for a court to treat proceedings as vexatious proceedings unless they could fairly be characterised as falling under one of the descriptions in s 6”. [86] His Honour also emphasised that those descriptions are not be construed as “independent and self-contained categories”. Indeed, most proceedings that could be described in the terms of paragraphs (b) to (d) of s 6 would constitute an abuse of process for the purpose of paragraph (a). [87]

As Kiefel CJ, Bell and Keane JJ stated in UBS AG v Tyne as Trustee of the Argot Trust: [88]

The making of a claim, or raising of an issue, which was made or raised and determined in an earlier proceeding may constitute an abuse of process where the second proceeding is prosecuted by a different plaintiff than the first proceeding. The courts have recognised that the designation of the plaintiff to the second proceeding may mask the reality of the situation. The question is whether the second plaintiff’s conduct in instituting the second proceeding is so unreasonable, or the continuation of the second proceeding would be so unjustifiably oppressive to the defendant, as to bring the administration of justice into disrepute. [89]

Proceedings can be an abuse of the process of a court or tribunal irrespective of whether the person instituting or conducting them intends to abuse that court or tribunal’s process. [90]

In undertaking the second step under the Vexatious Proceedings Act, the Court must form its own judgment about each allegedly vexatious proceeding. In doing so, it may take into account the findings and views expressed by the judicial officers who resolved each of those proceedings. A finding in the earlier proceedings that they were an abuse of process or that they were instituted without reasonable grounds is not, of itself, determinative for the purpose of the plaintiffs’ application under the Vexatious Proceedings Act. However, very persuasive material will ordinarily be required to depart from any such finding made in the earlier proceedings, since the court that heard and decided those proceedings will have been best placed to determine whether they were an abuse or were instituted without reasonable grounds. [91]

The question raised by the third step is whether each defendant has “frequently” instituted or conducted vexatious proceedings in Australia, or has instituted or conducted vexatious proceedings in Australia acting in concert with one or more of the other defendants who has frequently instituted such proceedings. In this context, “frequently” is “a relatively low threshold” for the reasons explained by Leeming JA in Potier v Attorney General in and for the State of New South Wales: [92]

If the Court is satisfied after undertaking the first three steps referred to above that it has power to make a vexatious proceedings order against the defendant, then the fourth step calls for an exercise of the discretion whether to make an order and, if so, on what terms. The considerations relevant to the exercise of that discretion are unconfined, but relevant factors include the serious consequences of such an order for the defendant and the protective purpose which the order serves. As the Court of Appeal said in Teoh v Hunters Hill Council (No 8) (citations omitted): [93]

In determining whether a vexatious proceedings order will serve the purpose of the statutory power, it is relevant to consider whether the defendant displays insight into their conduct in earlier proceedings that have been found to be vexatious within the meaning of the Vexatious Proceedings Act. As Perram J said in Official Trustee v Bankruptcy v Gargan (No 2): [94]

Section 8(7) of the Vexatious Proceedings Act, which has been extracted at [232] above, confers on this Court wide power to make orders against a defendant, including staying proceedings already instituted in New South Wales, prohibiting the defendant from instituting proceedings in New South Wales, or any other order that the Court considers appropriate in relation to the defendant.

As referred to in the introduction to these reasons at paragraphs [6]-[7], the orders sought by the plaintiffs in the present case include an order staying any proceeding commenced by or on behalf of any one or more of the defendants on or after 27 April 2023 relating to or in any way connected with the winding up of ENA Development. In the circumstances of the present case, an order in such terms would apply to proceedings that had already been commenced at the time of the order, but which were not the subject of evidence adduced by the plaintiffs in support of their application under the Vexatious Proceedings Act and which were therefore not the subject of any determination by the Court in these proceedings that they were vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

Contrary to the plaintiffs’ submissions, the making of an such an order would be erroneous for at least two reasons. First, it would contravene s 8(3) of the Vexatious Proceedings Act because the defendants would have no opportunity of being heard in relation to whether those proceedings were vexatious such that they ought to be stayed. Second, it would be contrary to the protective purpose for which the power is conferred to make an order staying proceedings that were commenced prior to the making of the order, without determining that those proceedings are vexatious.

In the cases cited by the plaintiffs in support of their contention that the Court has power to order a “blanket” stay of proceedings, the proceedings that would be covered by the “blanket” stay had been identified and considered during the hearing of the application under the Vexatious Proceedings Act and the court had had an opportunity to exclude particular proceedings from the operation of that stay, where appropriate. That is not so in the present case, and the plaintiffs’ formulation of the proposed “blanket” stay in terms that would apply only to proceedings relating to or connected with the winding up of ENA Development does not ameliorate the two fundamental problems identified immediately above.

The substance of Mr Sebie’s contention that these proceedings are an abuse of process, [95] as gleaned from speeches that he made at various times during the hearing and from his written submissions, may be summarised as follows.

Mr Sebie submits that the plaintiffs should not commence any further proceedings in this Court relating to the winding up of ENA Development in circumstances where this Court has transferred the whole of the Trust proceedings to the Federal Circuit and Family Court of Australia. Mr Sebie characterises the plaintiffs’ institution of the present proceedings, allegedly without informing the Federal Circuit and Family Court of Australia of their intention to do so, as going “behind” that court.

Mr Sebie submits that the four-day hearing that commenced on 20 February 2023 in the Federal Circuit and Family Court of Australia “concluded matters associated with ending the liquidation of ENA Development Pty Ltd” and that all that is left for the parties to do is to await the judgment of that court. Mr Sebie submits that the present proceedings therefore involve the Liquidator incurring unnecessary costs. Mr Sebie subsequently contradicted his submission that the Federal Circuit and Family Court of Australia proceedings have been concluded, with judgment reserved, by referring to an application to reopen those proceedings. Mr Sebie did not identify the precise nature of the application or the moving party.

Mr Sebie submits that the orders sought by the plaintiffs in the present proceedings are almost identical to prayer 2 of the Liquidator’s application filed in the Federal Circuit and Family Court of Australia on 29 November 2022, which is extracted at [144] above. As referred to at [145]-[153] above, Mr Sebie disputes the plaintiffs’ evidence that prayer 2 of that application was not pressed at the hearing on 20-24 February 2023, and maintains that the Federal Circuit and Family Court of Australia has heard and reserved judgment in respect of prayer 2. Mr Sebie’s submissions mentioned issue estoppel, res judicata, the vexation and oppression that results from claims proceeding in parallel in different jurisdictions, and the risk of inconsistent orders being made by the Federal Circuit and Family Court of Australia and by this Court.

Mr Sebie further submits that all orders and judgments on which the plaintiffs rely in support of their application under the Vexatious Proceedings Act are presently under appeal in the Court of Appeal or under review by the Federal Court of Australia or the Federal Circuit and Family Court of Australia. Mr Sebie submits that the Liquidator is endeavouring to deny him natural justice by preventing him from having a court determine the ownership of the assets, which I assume refers to the Fund, the Homebush property, and the other assets that were the subject of the application determined by Stevenson J in the Trust proceedings on 11 July 2022.

The plaintiffs submit that the Federal Circuit and Family Court of Australia does not have jurisdiction to make the orders sought in these proceedings under the Vexatious Proceedings Act and that it has never been asked to make such orders. The order sought in prayer 2 of the Liquidator’s application filed on 29 November 2022—to stay proceedings pending payment of a gross sum costs order that was sought in the same application—is of a very different kind to the orders sought in the present proceedings, which would continue to operate even if the defendants pay all costs payable under outstanding costs orders. The plaintiffs submit that Mr Sebie’s contention that the present proceedings are an abuse of process fails for that reason alone.

Referring to the evidence that I have summarised at [145]-[153] above, the plaintiffs further submit that prayer 2 of the Liquidator’s application filed on 29 November 2022 was not pressed in any event.

I reject Mr Sebie’s contention that the present proceedings are an abuse of process by the plaintiffs for the following reasons.

First, I accept the plaintiffs’ submission that prayer 2 of the application filed on 29 November 2022 sought relief of a different and more limited kind from that sought in the present proceedings under the Vexatious Proceedings Act.

Second, I accept the plaintiffs’ evidence summarised at [145]-[153] above that that prayer 2 of the Liquidator’s application filed on 29 November 2022 was not pressed at the hearing before the Federal Circuit and Family Court of Australia. As I have said at [152] above, it is unclear from Mr Sebie’s affidavit that responded to the plaintiffs’ evidence whether he was present at that part of the hearing when the plaintiffs say the court was informed that prayer 2 was not pressed. Moreover, Mr Sebie’s evidence is directed to whether he heard an application being made while he was present at the hearing to withdraw prayer 2. The plaintiffs’ evidence is that counsel simply informed the court that the Liquidator did not press prayer 2.

Third, I reject Mr Sebie’s submission that the plaintiffs should have made any application under the Vexatious Proceedings Act in the Federal Circuit and Family Court of Australia, rather than in this Court. The Federal Circuit and Family Court of Australia does not have jurisdiction under that Act and is not an “authorised court” upon which that Act confers power to make vexatious proceedings orders. In my opinion, it is doubtful that s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) would have the effect of conferring the status of an “authorised court” under the Vexatious Proceedings Act upon the Federal Circuit and Family Court of Australia, even if this Court were to transfer the present proceedings to the Federal Circuit and Family Court of Australia pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). There is no case for the proceedings to be transferred, in any event. By reason of the nature of the jurisdiction invoked by the plaintiffs, this Court is the more appropriate forum for the determination of the present proceedings.

Fourth, for all of the reasons above, the plaintiffs are not conducting parallel proceedings in different jurisdictions claiming the same relief, and no risk of inconsistent findings arises. The doctrines of issue estoppel and res judicata have no relevant application to the circumstances.

Fifth, I reject Mr Sebie’s submission that the Liquidator has commenced the present proceedings in order to deny natural justice to him. The terms of the orders sought by the plaintiffs in the present proceedings do not preclude the appellants in the 2022 and 2023 appeal proceedings from prosecuting those appeals to judgment. Indeed, the Court of Appeal has already heard the 2022 appeal, and judgment is reserved.

Finally, for all of the reasons explained below, I am satisfied that the present proceedings are bona fide, reasonably arguable claims. As will become apparent, the plaintiffs have established a proper basis for most, albeit not all, of the relief sought under the Vexatious Proceedings Act.

The plaintiffs contend that the following proceedings were vexatious within the meaning of s 6 of the Vexatious Proceedings Act:

The evidence concerning Mr Sebie’s notice of motion filed on 30 May 2022, and amended on 15 August 2022, seeking an order that the orders made by Sackar J in the Chiswick specific performance proceedings on 22 April 2022 be “stayed and set aside”, is summarised at [25]-[36] and [74]-[80] above.

The motion was a proceeding within the meaning of s 4 of the Vexatious Proceedings Act that was instituted and conducted by Mr Sebie. The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of the motion.

Order 1 of the orders made on 22 April 2022 in the Chiswick specific performance proceedings was for the entry of judgment in favour of ENA Development on its cross-claim. That order was procured by ENA Development informing the Court that all parties, save for Mr Sebie, consented to the orders sought. ENA Development did not draw to the attention of the Court that order 2 discontinued ENA Development’s cross-claim against all of the cross-defendants other than Mr Sebie, and that order 1 therefore operated only against Mr Sebie. It appears from the transcript of the hearing on 22 April 2022 that the Court made the orders sought by ENA Development, with the consent of the other cross-defendants, on the mistaken understanding that Mr Sebie’s position was somehow preserved and would be addressed at a further hearing on 29 April 2022. It appears from that transcript that counsel for ENA Development was affected by the same misunderstanding during the short hearing. The evidence before the Court in these proceedings does not disclose what occurred at the further hearing on 29 April 2022 or in the period leading up to the filing of the notice of motion on 30 May 2022.

Contrary to the plaintiffs’ submissions, I do not consider that Mr Sebie’s institution of proceedings seeking to set aside a judgment that operated only against him, and which had been entered solely on the basis that the other parties to the Chiswick specific performance proceedings consented to that judgment, was an abuse of the process of the Court. The Court’s power to set aside the irregularly obtained judgment lay in UCPR r 36.15(1) rather than r 36.16 referred to in Mr Sebie’s notice of motion, but that does not justify the institution of that motion being characterised as an abuse of process. As Simpson AJA observed in Zepinic, “[s]election by an unrepresented litigant of an inappropriate vehicle for seeking relief does not, of itself, make the proceeding vexatious”. [96] Mr Sebie did not have legal representation in relation to the notice of motion when it was filed.

For the same reasons, I do not consider that the motion can fairly be said to have been instituted without reasonable ground, notwithstanding that the evidence adduced in the present proceedings suggests that ENA Development would have been entitled to judgment on its cross-claim against Mr Sebie on the basis of the admissions contained in his signed defence.

However, I accept the plaintiffs’ submissions that the motion was conducted in a way that caused detriment to them. As Black J recorded in his ex tempore judgment referred to at [76]-[79] above, [97] Mr Sebie prepared a court book and served several affidavits in relation to the hearing on 14 October 2022. The plaintiffs incurred costs in preparing for and appearing at that hearing, only for Mr Sebie to decline to proceed with the motion. Mr Sebie was offered a short adjournment of the hearing of the motion to enable his newly instructed solicitor and counsel to prepare for the hearing. If Mr Sebie had taken up that offer, the plaintiffs’ work in preparing for the hearing would not have been wasted. However, Mr Sebie declined an adjournment and declined to press the motion, yet opposed the motion being dismissed. Mr Sebie’s contention that the motion should be deferred to be determined by the Federal Circuit and Family Court of Australia after the Chiswick specific performance proceedings were transferred to that court was devoid of merit, as Black J held. [98]

I find that, from the time at which Mr Sebie served evidence relating to the motion up to and including the hearing on 14 October 2022 at which Mr Sebie declined to press the motion, the motion was conducted in a way that caused unreasonable detriment to the plaintiffs by causing them to incur costs for the hearing which were then wasted due to Mr Sebie’s inexplicable conduct in declining to press his motion at that hearing. In the absence of any explanation for that conduct, I infer that, by at least 14 October 2022, Mr Sebie did not seriously intend to prosecute his motion to hearing, notwithstanding the evidence with which he had burdened the plaintiffs. For that reason, the motion was a vexatious proceeding within the meaning of s 6(1)(d) of the Vexatious Proceedings Act. I note that Mr Sebie was ordered to pay the costs of the motion as agreed or assessed, and that the Liquidator has given evidence in these proceedings that those costs are yet to be recovered.

The evidence relating to the amended notice of motion filed in the Trust proceedings on 7 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others is summarised at [49]-[51] and [59] above.

The motion was a proceeding instituted by Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT, which was dismissed three days after it was filed on 10 August 2022.

As referred to at [59] above, the applicants’ solicitor filed a notice of ceasing to act on or about 17 August 2022 which specified Mr Sebie’s email address as the last known email address for the applicants. I accept the plaintiffs’ submission that this gives rise to an inference that Mr Sebie was the person providing instructions to that solicitor in relation to the motion, and the subsequent iteration of it filed on 14 August 2022.

That inference is strengthened by the absence of any evidence to the contrary from Mr Sebie in these proceedings, and by the overall course of conduct of the defendants that emerges from evidence summarised in Section II of these reasons. That is a course whereby each defendant has instituted proceedings in connection with the winding up of ENA Development at different times from 7 August 2022 onwards, either alone or together with some of the other defendants, and where some or all of the relief sought in each of those proceedings is substantially the same as the relief sought in other proceedings, including other proceedings that were instituted by different defendants or groups of defendants. The gravamen of Mr Sebie’s claims for relief in his notice of motion filed in the Trust proceedings on 31 August 2022 (as amended on 26 September 2022) was a claim for orders setting aside the order winding up ENA Development, the order appointing the Liquidator as receiver of the Trust assets, and the judicial advice given on 11 July 2022 that the Liquidator would be justified in treating the Homebush property as beneficially owned by ENA Development. [99] That same relief, in substance, was claimed by Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT in the 7 August 2022 notice of motion and was claimed by them again in the 14 August 2022 interlocutory process [100] and by Mr Jemmott in the First Jemmott Federal Court proceedings. [101] The Sebie Federal Court proceedings commenced on 26 October 2022 sought essentially the same relief as the First Jemmott Federal Court proceedings. [102] The notice of motion filed in the Trust proceedings on 22 December 2022 by Mr Jemmott, One T Development, and Enterprise INT sought a declaration that One T Development was the legal owner of the Homebush property and an order for the completion of a transfer of that property to One T Development. [103] Mr Sebie’s email sent to Goodman J on 5 January 2023 was written in terms that included him in the description of the moving parties on that notice of motion even though he was not named as one of the applicants. [104] The Second Jemmott Federal Court proceedings sought the same relief as Mr Sebie sought in the Sebie Federal Court proceedings. [105]

For the reasons explained at [273]-[274] above, I find that Mr Sebie acted in concert with Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT in the filing of the amended notice of motion in the Trust proceedings on 7 August 2022.

I record for completeness that I reject the plaintiffs’ submissions concerning the following two further matters that they relied on as supporting a finding that Mr Sebie acted in concert with those other defendants in the filing of the 7 August 2022 motion.

The Liquidator gave evidence that he has formed the view that Mr Sebie was in control of email accounts in the name of Mr Jemmott, based on screenshots taken from an unidentified computer during a search of the Homebush property when executing a warrant issued under s 530C of the Corporations Act and information provided to the Liquidator by a person engaged to provide information technology assistance during that search. As Mr Sebie submitted, the assistant was not called to give evidence in these proceedings, and there is no basis for inferring that the screenshots shown to the Liquidator were taken from a computer used by Mr Sebie. The Liquidator’s evidence does not rise above the level of bare assertion. The screenshots to which the Liquidator refers were exhibited to his affidavit affirmed on 22 March 2023 and do not, by themselves, support his assertion. I do not consider that the assertion supports a finding on the balance of probabilities that Mr Sebie controlled email accounts in Mr Jemmott’s name.

Section 8(2)(a) of the Vexatious Proceedings Act permits the Court to have regard to proceedings instituted or conducted in any Australian court or tribunal for the purpose of determining, as required by s 8(1), whether the defendant has frequently instituted or conducted vexatious proceedings in Australia, or has instituted or conducted such proceedings in Australia acting in concert with other persons who have done so frequently or who are subject to a vexatious proceedings order. Section 8(2)(c) permits the Court to have regard, for the same purpose, to a finding of fact made by an Australian court of tribunal “hearing such proceedings”. In my opinion, the words “such proceedings” refer to those proceedings that the Court is permitted by s 8(2)(a) to take into account—that is, proceedings that are allegedly vexatious and which are therefore relevant to the Court’s determination about whether the requirements of s 8(1) are satisfied. I do not read s 8(2)(c) as permitting the Court to have regard to findings of fact made in other proceedings generally. Contrary to the plaintiffs’ submissions, the Court is not permitted to have regard to findings about the relationship between Mr Sebie, ENA Development, One T Development, Enterprise INT, and Enterprise ICT made by the Federal Circuit and Family Court of Australia on 29 September 2021 in that court’s reasons for judgment concerning an application that the plaintiffs in the present proceedings do not rely on as a vexatious proceeding. Those findings are not otherwise admissible in the present proceedings. [106]

I now turn to the question whether the motion instituted by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others in the Trust proceedings on 7 August 2022, with Mr Sebie acting in concert with them, was a vexatious proceeding.

The plaintiffs submit that the motion was vexatious for the reasons identified in a letter dated 10 August 2022 from the Liquidator’s solicitors to Kazi & Associates, who were the solicitors on the record for Mr Jemmott and the other applicants on the motion. [107] I infer from the fact that the notice of motion was dismissed by consent later that day that the applicants accepted that the points made in that letter had substance, and that the motion was not reasonably arguable. [108] Those points included that there was no evidence supporting the application for a stay of the winding up order made in respect of ENA Development. That aspect of the motion was manifestly hopeless without, at the very least, evidence that notice of the application had been served on all creditors and contributories, and evidence that ENA Development was solvent and likely to remain solvent if the winding up was terminated. [109] For those reasons, I accept the plaintiffs’ submission that the motion was instituted without reasonable grounds and I find that the motion was a relevantly vexatious proceeding.

The evidence relating to the notice of motion foreshadowed in an email sent to the Associate to Black J on 12 August 2022 by the solicitors acting for Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT in the Trust proceedings is summarised at [52]-[54] above.

Contrary to the plaintiffs’ submissions, neither the correspondence with the Associate to Black J nor the unfiled notice of motion was a proceeding. [110] The question whether they were vexatious does not arise.

The evidence relating to the interlocutory process filed in the Trust proceedings on 14 August 2022 by Mr Jemmott, One T Development, Enterprise INT, Enterprise ICT, and others is summarised at [54]-[59] above.

As stated at [54] above, that interlocutory process sought substantially the same relief that had been sought in the notice of motion that the same applicants had filed in the Trust proceedings on 7 August 2022. For the reasons explained at [273]-[274] above, I find that Mr Sebie acted in concert with Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT in the filing of the interlocutory process in the Trust proceedings on 14 August 2022.

For the reasons explained at [277]-[278] above, I reject the plaintiffs’ submissions concerning the two further matters that they relied on as supporting a finding that Mr Sebie acted in concert with Mr Jemmott, One T Development, Enterprise INT, and Enterprise ICT.

Contrary to the plaintiffs’ submissions, it does not follow from the dismissal of the 7 August 2022 motion by consent that the 14 August 2022 interlocutory process claiming substantially the same relief was necessarily an abuse of process. [111]

The plaintiffs relied on the matters identified in the 10 August 2022 letter as demonstrating that the interlocutory process was vexatious. [112] It is improbable that, in the four days since the dismissal of their earlier application on 10 August 2022, the applicants had addressed the manifest evidentiary deficiencies that affected that earlier application. The email from the applicants’ solicitor serving the interlocutory process made no reference to evidence. [113] . At the hearing on 15 August 2022, the applicants’ claims in prayers 1 and 5 were marked for hearing at 2:00pm that day and the applicants were granted leave to discontinue their remaining claims for relief on the terms of the 15 August 2022 undertaking. The claims in prayers 1 and 5 were claims for an order terminating the winding up of ENA Development pursuant to s 482 of the Corporations Act on the basis that it had sufficient funds to pay creditors and the Liquidators, and for an order requiring the Liquidator and his solicitor (Mr O’Neill of ERA Legal) to return documents, files, computer hard drives, and other goods and chattels seized during the execution of the search warrant. A further order made later on 15 August 2022 granted leave to the applicants to discontinue those claims. The evidence does not disclose the events or circumstances that resulted in the applicants changing course in relation to prayers 1 and 5 but, given that this was the applicants’ second application to stay or terminate the winding up of ENA Development and to secure the return of materials seized during the execution of the search warrant, I infer that the applicants had again failed to adduce the necessary evidence to support those applications and wished to avoid having the claims dismissed for a second time. Black J ordered the applicants to pay the plaintiffs’ costs on an indemnity basis.

For those reasons, I find that the interlocutory process filed on 14 August 2022 was instituted without reasonable ground and was therefore a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act.

The evidence concerning the First Jemmott Federal Court proceedings is summarised at [60]-[73] and [96] above.

Those proceedings were instituted and conducted by Mr Jemmott. On the basis of the evidence of Mr Sebie’s submissions made in support of Mr Jemmott’s claims in his affidavit affirmed on 7 September 2022, [114] and the evidence that Mr Sebie sought to appear by audio visual link and to be heard at the case management hearing in the proceedings on 15 September 2022, [115] I find that Mr Sebie acted in concert with Mr Jemmott in relation to the institution and conduct of the First Jemmott Federal Court proceedings. The course of conduct to which I have referred at [274] above provides further support for that finding.

For completeness, I reject for the reasons explained at [277]-[278] above the plaintiffs’ submissions concerning the two further matters that they relied on as supporting a finding that Mr Sebie acted in concert with Mr Jemmott.

The plaintiffs submit, and I accept, that the First Jemmott Federal Court proceedings were an abuse of process because the inclusion of the claims for relief in prayers 3, 4, and 6 of the originating process breached the 15 August 2022 undertaking given by Mr Jemmott and others to this Court. [116]

I would have held that the Jemmott Federal Court proceedings were an abuse of process even if Mr Jemmott had not given the 15 August 2022 undertaking to this Court. Mr Jemmott instituted claims in the Federal Court that were substantially the same as claims which he had previously instituted on two occasions in the Trust proceedings in this Court only for those claims to be dismissed by consent or discontinued in this Court. There is no evidence of any material change in circumstances between those outcomes in this Court on 10 August and 15 August 2022 and the commencement of the proceedings in the Federal Court on 19 August 2022. Mr Jemmott’s use of the Federal Court’s procedures in this manner occasioned unjustifiable oppression to the plaintiffs in these proceedings, who were unnecessarily required to expend time and incur costs in dealing with the claims for a third time. That is the very kind of conduct that serves to bring the administration of justice into disrepute. The plaintiffs were put to the trouble of applying to have the proceedings transferred to this Court, which application Mr Jemmott did not oppose, and to prepare for and appear at the hearing of the proceedings in this Court, at which Mr Jemmott did not appear. [117] The evidence does not disclose any explanation for Mr Jemmott’s failure to appear at that hearing. His failure to appear, together with his consent to the dismissal of the 7 August 2022 motion and his discontinuance of the 14 August 2022 interlocutory process in the Trust proceedings, gives rise to an overwhelming inference that the First Jemmott Federal Court proceedings were instituted to harass or annoy, or to cause delay or detriment to, the plaintiffs. In short, there is no evidence in these proceedings that persuades me to depart from Black J’s determination on 21 October 2022 that the First Jemmott Federal Court proceedings were an abuse of process. [118]

I find that the First Jemmott Federal Court proceedings were vexatious proceedings within the meaning of s 6 of the Vexatious Proceedings Act for the reasons explained at [292] and [293] above. It is not necessary to address the various additional bases on which the plaintiffs submitted that those proceedings were vexatious.

The evidence concerning the notice of motion filed by Mr Sebie in the Trust proceedings on 31 August 2022, as amended on 26 September 2022, is summarised at [81]-[95] above.

The motion was a proceeding instituted and conducted by Mr Sebie. The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of the motion.

The plaintiffs submit, and I accept, that the motion was an abuse of the process of this Court because it sought substantially the same relief as that which had been claimed by Mr Jemmott, One T Developments, Enterprise INT, and Enterprise ICT—with Mr Sebie acting in concert with them—in the 7 August 2022 notice of motion and in the 14 August 2022 interlocutory process. I would add to this that substantially the same relief had also been sought by Mr Jemmott, with Mr Sebie acting in concert with him, in the First Jemmott Federal Court proceedings. [119] In the absence of any evidence of any material change in circumstances since 15 August 2022, Mr Sebie’s use of this Court’s procedures to propound such claims for a fourth time, and concurrently with the First Jemmott Federal Court proceedings, occasioned unjustifiable oppression to the plaintiffs in the present proceedings, who were unnecessarily required to expend time and incur costs in dealing with the claims for a fourth time. In addition, the concurrent proceedings gave rise to a risk of inconsistent findings. Mr Sebie’s conduct in instituting the motion in all the circumstances is the kind of conduct that brings the administration of justice into disrepute.

I accept the plaintiffs’ submission that, by reason of the matters referred to at [297] above, the motion was conducted in a way that harassed, or caused unreasonable annoyance, delay, or detriment to, the plaintiffs—the detriment being the costs incurred. I also accept the plaintiff’s submission that this annoyance and detriment was compounded by the manner in which Mr Sebie conducted the hearing of the motion, as referred to in Black J’s reasons for judgment extracted at [85] above. [120]

For the reasons explained at [297]-[298] above, I find that the notice of motion filed by Mr Sebie in the Trust proceedings on 31 August 2022, as amended on 26 September 2022, was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act. I address the following additional matters relied on by the plaintiffs for completeness only.

The first matter is the plaintiffs’ submission that Mr Sebie’s claim in the motion for an order joining him as a defendant to the Trust proceedings was without merit, for the reasons identified by Black J. [121] I accept that submission, but I do not consider that this, by itself, would have warranted the motion being characterised as a vexatious proceeding. [122]

As identified by Black J in his reasons for judgment referred to at [87] above, Mr Sebie’s claim for an order setting aside the winding up order was an inappropriate vehicle by which to seek to bring the liquidation of ENA Development to an end. The appropriate vehicle would have been an application to terminate the winding up under s 482 of the Corporations Act. In addition, Mr Sebie’s claim for a declaration that the Liquidator had a conflict of interest was futile in circumstances where it was not accompanied by a claim under the Insolvency Practice Schedule (Corporations) to remove the Liquidator, as Black J identified in his reasons for judgment extracted at [92] above. [123] In circumstances where Mr Sebie did not have legal representation in respect of the 31 August 2022 motion, I do not consider that his attempts to prosecute those claims by inappropriate means would have warranted the characterisation of the motion as a vexatious proceeding. I reject the plaintiffs’ submissions to the contrary. [124]

However, Mr Sebie’s 31 August 2002 motion suffered from the further problem that any application designed to bring the winding up of ENA Development to an end was manifestly hopeless without evidence that the company was solvent and likely to remain solvent. [125] The absence of such evidence in support of his 31 August 2022 motion seeking to set aside the winding up order meant that his claim for that relief was, objectively, without reasonable ground. [126]

The evidence concerning the application filed in the family law proceedings on 26 October 2022 is summarised at [100]-[104] and [143]-[148] above.

The plaintiffs’ submissions that this application was a vexatious proceeding assume that the application was instituted and conducted by One T Development. The evidence referred to at [100] above does not prove that assumption on the balance of probabilities. Mr Zraika is not a defendant to the present proceedings. Nor is he a person with whom Mr Sebie is alleged to have acted in concert in relation to the commencement or conduct of any proceeding. It is therefore not necessary to consider this application further.

The evidence concerning the Sebie Federal Court proceedings is summarised at [105]-[111] above.

The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of the Sebie Federal Court proceedings.

I accept the plaintiffs’ submission that the Sebie Federal Court proceedings were an abuse of process because the originating process sought:

The evidence adduced in the present proceedings does not disclose any material change in circumstances since 15 August 2022, including since 21 October 2022 when this Court had dismissed the transferred First Jemmott Federal Court proceedings as an abuse of process and had also dismissed Mr Sebie’s 31 August 2022 motion in the Trust proceedings. Mr Sebie’s use of this Court’s procedures to propound substantially the same claims for a fifth time, only days after the third and fourth iterations of those claims had been dismissed, occasioned unjustifiable oppression to the plaintiffs in the present proceedings, who were unnecessarily required to expend time and incur costs in dealing with the claims for a fourth time. Mr Sebie’s conduct brings the administration of justice into disrepute.

I also accept the plaintiffs’ submission that the Sebie Federal Court proceedings were commenced without reasonable ground, at least in so far as Mr Sebie sought orders for the termination or stay of the winding up of ENA Development under s 482 of the Corporations Act. In the course of determining Mr Sebie’s urgent application in the Sebie Federal Court proceedings on 9 January 2023, Goodman J found that Mr Sebie is neither a creditor nor a contributory of ENA Development and therefore lacks standing to apply for those orders under s 482. [127]

For those reasons, I find that the Sebie Federal Court proceedings were vexatious proceedings within the meaning of s 6 of the Vexatious Proceedings Act.

The evidence concerning the stay motion is summarised at [112]-[128] above. The proceeding was a notice of motion filed by Mr Jemmott, Enterprise INT, and One T Development in the Trust proceedings on 22 December 2022. The stay motion was heard and determined by Ierace J and heard on 6 January 2023, save for the question of costs which his Honour determined at a later time.

On the basis of Mr Sebie’s email sent to Goodman J on 5 January 2023 and extracted at [117] above, I find that Mr Sebie acted in concert with Mr Jemmott, Enterprise INT, and One T Development in the institution and conduct of that motion.

I accept the plaintiffs’ submission that the stay motion was an abuse of process. As a matter of substance and reality, paragraph 5 of the notice of motion, and prayers 5 to 11 of the statement of claim referred to in paragraph 3 of the notice of motion, [128] relitigate:

For those reasons, I find that the stay motion was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act. It is not necessary to address the various additional matters relied on by the plaintiffs as supporting that finding.

The evidence concerning Mr Sebie’s application made in the Sebie Federal Court proceedings on 6 January 2023, immediately after the dismissal of the stay motion in the Trust proceedings, is summarised at [117]-[119] above.

The plaintiffs do not submit that any of the other defendants acted in concert with Mr Sebie in relation to his institution and conduct of that application.

The application sought an urgent review of Registrar Segal’s dismissal of Mr Sebie’s application under s 482 of the Corporations Act for a termination or stay of the winding up of ENA Development. The application was dismissed by Goodman J on 9 January 2023.

I find that the application was an abuse of process and was commenced without reasonable ground for the same reasons explained at [307]-[309] above in relation to the Sebie Federal Court proceedings. I therefore find that the application was a vexatious proceeding within the meaning of s 6 of the Vexatious Proceedings Act.

The evidence concerning Mr Jemmott’s email communications with the chambers of the Common Law Duty Judge and Equity Duty Judge during January 2023 seeking to relist the stay motion is summarised at [125]-[128] above.

Contrary to the plaintiffs’ submissions, these communications were not proceedings. [133] The question whether they were vexatious does not arise.

The evidence concerning the Second Jemmott Federal Court proceedings is summarised at [128]-[134] above.

On the basis of the overall course of conduct referred to at [274] above, and of Mr Sebie’s attempted interjection during the hearing of the proceedings before Markovic J on 8 February 2023 referred to at [133] above, I find that Mr Sebie acted in concert with Mr Jemmott in the institution and conduct of the Second Jemmott Federal Court proceedings. I reject Mr Sebie’s submission that he was merely a witness in those proceedings.

In making the finding immediately above, I have paid no regard to the Liquidator’s evidence concerning observations made by Mr Chase Berry at the hearings on 27 January, 2 February, and 8 February 2023. [134] As Mr Sebie submitted, Mr Chase Berry gave evidence in these proceedings which omitted any reference to the matters described by the Liquidator second hand and in very general terms. In the circumstances, that aspect of the Liquidator’s evidence carries no weight.

The Second Jemmott Federal Court proceedings sought the same relief as Mr Sebie had sought in the Sebie Federal Court proceedings. [135] I find that the Second Jemmott Federal Court proceedings were an abuse of process and were commenced without reasonable grounds for the same reasons explained at [307]-[309] above in relation to the Sebie Federal Court proceedings. I note that Markovic J independently came to the same conclusion for the same reasons. [136]

The evidence concerning the application made by One T Development in the 2022 appeal proceedings on 17 February 2023 for a stay of orders made by Stevenson J in the Trust proceedings has been summarised at [140]-[141] above.

As the plaintiffs submitted, Mr Sebie appeared at the hearing of the application in the Court of Appeal rather than appearing in person at the hearing of the family law proceedings on 20 February 2023. [137] I infer from this that Mr Sebie regarded the application in the 2022 appeal proceedings as more important to him than the family law proceedings with his former wife. On that basis, I find that Mr Sebie acted in concert with One T Development in instituting and conducting the application.

In making the finding immediately above, I have paid no regard to the Liquidator’s evidence concerning observations made by Mr Chase Berry at the hearing on 20 February 2023. [138] That aspect of the Liquidator’s evidence carries no weight for the same reasons explained at [323] above in relation to similar evidence concerning an earlier hearing.

The reasons for judgment of Macfarlan JA refer to the unexplained delay in making the application. [139] The reasons for that delay stand in stark contrast to the urgency with which the applicant brought the application on for hearing one business day after it was filed. I accept the plaintiffs’ submission that those matters give rise to an inference that the application was conducted in a way that harassed or caused unreasonable annoyance and detriment to the Liquidator, in that the unexpected filing and hearing of the application must necessarily have interfered with the Liquidator’s orderly conduct of the hearing in the family law proceedings that commenced on the same day as the hearing of the application. On the basis of that inference, I find that the application was a vexatious proceeding within the meaning of s 6(d) of the Vexatious Proceedings Act.

I have found in Section VII above, Mr Sebie has instituted and conducted the following vexatious proceedings in Australia:

The second, third, and fourth proceedings referred to above were all instituted within a period of approximately four months and, as explained in Section VII above, sought substantially the same relief. I consider that this meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act. [140]

In addition, I have found in Section VII above that Mr Sebie has acted in concert with the other defendants in instituting and conducting the following additional vexatious proceedings in Australia:

For the reasons explained below, each of those other defendants has frequently instituted or conducted vexatious proceedings in Australia.

I am therefore satisfied that Mr Sebie has frequently instituted or conducted vexatious proceedings in Australia, and has also instituted or conducted vexatious proceedings in Australia acting in concert with the other defendants (who themselves have instituted or conducted such proceedings frequently). The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Mr Sebie.

I have found in Section VII above that Mr Jemmott has instituted and conducted the following vexatious proceedings in Australia:

The First Jemmott Federal Court proceedings and Second Jemmott Federal Court proceedings were commenced within a period of approximately five months. The Second Jemmott Federal Court proceeding was commenced only three months after the First Jemmott Federal Court proceeding was dismissed as an abuse of process. I consider that this meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act in circumstances where, [141] as explained in Section VII above, the First and Second Jemmott Federal Court proceedings sought substantially the same relief, and that same relief had also been sought during the same five month period in separate Federal Court proceedings commenced by Mr Sebie, who acted in concert with Mr Jemmott in relation to Mr Jemmott’s two Federal Court proceedings. [142]

I am therefore satisfied that Mr Jemmott has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Mr Jemmott.

I have found in Section VII above that One T Development has instituted and conducted the following vexatious proceedings in Australia:

These three proceedings were commenced within a period of approximately six months. I have found in Section VII above that Mr Sebie acted in concert with One T Development in relation to the institution and conduct of those proceedings. Each of those proceedings formed part of the course of conduct referred to at [274] above, which included the relitigation of previous claims in the stay motion, as referred to at [313] above. In those circumstances, I consider that One T Development’s institution of the three vexatious proceedings referred to above during the period from 7 August 2022 to 17 February 2023 meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act.

I am therefore satisfied that One T Development has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to One T Development.

I have found in Section VII above that Enterprise ICT has instituted and conducted the following vexatious proceedings in Australia:

In my opinion, the commencement of those two proceedings, each without reasonable ground, within one week of one another and in the context of the overall course of conduct referred to at [274] and [313] above, meets the “relatively low threshold” of “frequently” in s 8(1)(a) of the Vexatious Proceedings Act.

I am therefore satisfied that Enterprise ICT has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Enterprise ICT.

I have found in Section VII above that Enterprise INT has instituted and conducted the following vexatious proceedings in Australia:

My observations and findings above in relation to Enterprise ICT apply equally to Enterprise INT, and all the more so given its role in the stay motion.

I am therefore satisfied that Enterprise INT has frequently instituted or conducted vexatious proceedings in Australia. The Court has power under s 8(1) of the Vexatious Proceedings Act to make a vexatious proceedings order in relation to Enterprise INT.

A vexatious proceedings order restricting the defendants’ access to the courts is a very serious matter, and is not to be made lightly. However, I consider that each of the defendants, by their role in the repetitious suits that I have found to be vexatious proceedings, has harassed and caused unreasonable detriment to the plaintiffs and has burdened publicly funded court resources in a manner that calls for the plaintiffs and the courts to be protected from the continuation of that conduct.

I do not accept Mr Sebie’s submission that there will be no further repetitive suits because all outstanding matters relating to the winding up of ENA Development were included in the hearings before the Federal Circuit and Family Court of Australia in February 2023. There is every likelihood Mr Sebie and some or all of the other defendants will commence further proceedings if the Federal Circuit and Family Court of Australia determines any of those matters adversely to them. The history set out in Section II of these reasons demonstrates that the dismissal of the defendants’ claims in one proceeding has not constrained them from commencing fresh proceedings making the same claims.

The manner in which Mr Sebie defended the present proceedings gives me no cause to believe that this risk has diminished over time. Mr Sebie displayed no insight into his past conduct, and demonstrated his propensity to ignore decisions that he does not like and his firm belief that he is entitled to run claims that he believes are meritorious, irrespective of whether a court has already dismissed those claims. Mr Sebie’s conduct demonstrates his refusal to accept that the question whether a claim or application has merit is to be determined objectively by the court hearing that claim or application, on the basis of the evidence adduced at that hearing. Mr Sebie’s subjective views, however strongly held, do not do not entitle him to start over again on each occasion that a court determines a claim in a manner that is unfavourable to him. [143]

I am therefore satisfied that it is appropriate to exercise the discretion to make the order sought by the plaintiffs pursuant to s 8(7)(b) of the Vexatious Proceedings Act that the defendants (by themselves, or by their servants or agents) be prohibited from instituting any proceedings in New South Wales, or filing any application, interlocutory process, or notice of motion in any existing proceedings in New South Wales, either in their own name or in the name of any other person against:

That order makes it clear that it applies to the institution of proceedings in New South Wales by the defendants, including whether they institute proceedings in the name of another person or entity. I do not consider that it is necessary or appropriate to make the plaintiffs’ proposed notation to the effect that a defendant is to be taken to do something in the name of another person or entity in specified circumstances. Whether proceedings commenced in the name of another are, in truth, proceedings instituted by one or more of the defendants, is a question of fact that should be determined on a case by case basis if and when such cases arise.

In circumstances where the summons for leave to appeal has been filed by Mr Sebie, Mr Jemmott and One T Development in the 2023 appeal proceedings but is yet to be heard, and the plaintiffs do not seek an order staying the 2023 appeal proceedings, I consider that there should be an exception to the order referred to above for any notice of appeal filed in the 2023 appeal proceedings by the applicants for leave to appeal strictly in accordance with any order of the Court of Appeal granting leave to appeal.

In my opinion, the protective purpose of the power in s 8 of the Vexatious Proceedings Act would not be served by an order staying the Real Property List proceedings in the absence of any evidence about those proceedings and without any finding having been made that those proceedings are vexatious. [144] Mr Sebie’s submission to that effect has force, for the reasons explained at [247] above. I decline to make the order sought by the plaintiffs staying the Real Property List proceedings.

The plaintiffs’ application for a “blanket” stay of any proceedings commenced after 27 April 2023 is refused for the reasons already explained at [246]-[248] above.

Mr Sebie’s application in prayer 2 of his notice of motion filed on 26 April 2023 for an order staying the present proceedings as an abuse of process is dismissed for the reasons explained in Section V above. As explained in Section III above, Mr Sebie was not permitted to move on the other prayers in that notice of motion during the course of the hearing. That motion will be formally disposed of by an order dismissing it.

For all of the foregoing reasons, the orders of the Court are:

I will hear the parties in relation to costs.