Stimpson v State of New South Wales

These reasons relate to a notice of motion filed by the defendant - the State of New South Wales - seeking orders summarily dismissing the proceedings or striking out the statement of claim.

The plaintiff, Mr Robbie Stimpson, opposes the motion.

For the reasons that follow, the proceedings must be summarily dismissed.

These proceedings concern a property at Duranbah in New South Wales, [1] which was purchased by Mr Stimpson’s nephew, Mr William Michael Stock, in May 2005.

In his statement of claim filed on 16 April 2025, Mr Stimpson claims to have advanced funds to Mr Stock in June 2002 and June 2004 totalling $116,500 “to finance the purchase of the Duranbah property as a secured creditor”.

Mr Stimpson pleads that, after the Duranbah property was transferred to Mr Stock in May 2005, he made further payments to Mr Stock between June 2005 and November 2007 totalling $360,000. These payments are described in the statement of claim both as advances to Mr Stock “to finance the purchase of the Duranbah property as a secured creditor” and as payments made to Mr Stock for the “sole purpose of … paying off the Duranbah property”.

Mr Stimpson pleads that the total sum of $476,500 that he advanced to Mr Stock was equivalent to 86 per cent of the $550,000 purchase price of the Duranbah property.

Mr Stimpson pleads that he raised most of the funds advanced to Mr Stock by borrowing those funds from third party financial institutions against the security of a property owned by Mr Stimpson at Kingscliff in New South Wales.

Although there are some references in the prolix statement of claim to the Duranbah property having been purchased by Mr Stock and Mr Stimpson jointly but in Mr Stock’s sole name, it is plain from reading the statement of claim as a whole that the substance of Mr Stimpson’s claim is that, he advanced all of the funds to Mr Stock pursuant to a binding oral agreement that he and Mr Stock had entered into by May 2005 to the effect that Mr Stimpson would be a “secured creditor” in respect of the total sums advanced to Mr Stock and/or in respect of a “translated percentage” of the value of the Duranbah property, and that Mr Stock was “obliged to compensate [Mr Stimpson] for the value of the secured interest advanced to [Mr Stock] to finance the purchase of the Duranbah property restitutio in integrum” upon the sale or disposal of the Duranbah property.

Mr Stock was arrested and charged with certain criminal offences in June 2008.

The New South Wales Crime Commission commenced proceedings against Mr Stock in this Court under the Criminal Assets Recovery Act 1990 (NSW) (the recovery proceedings). [2]

In June 2008, s 10 of the Criminal Assets Recovery Act relevantly provided:

Section 12 of the Criminal Assets Recovery Act, as it applied in June 2008, empowered the Court to make various orders ancillary to restraining orders, including in s 12(1)(c1):

On 27 June 2008, this Court made a restraining order in the recovery proceedings under s 10 of the Criminal Assets Recovery Act in respect of all of Mr Stock’s interests in property. The order was made upon the Crime Commission giving the usual undertaking as to damages, which was formally noted by the Court. Insofar as the restraining order applied to the Duranbah property, it permitted the property to be sold at a price agreed by the Crime Commission subject to the net sale proceeds being paid to and held by the Public Trustee pending further order of the Court.

The orders made on 27 June 2008 also included an order pursuant to s 12(1)(c1) of the Criminal Assets Recovery Act requiring Mr Stock to furnish to the Crime Commission within 21 days a statement verified by oath setting out full particulars of the nature and extent of all of his interests in property (including the source of the funds used to acquire each such interest in property) and full particulars of his liabilities (including the name of the person or institution to whom each liability is owed).

On 13 August 2008, Mr Stock swore an affidavit in the recovery proceedings annexing a statement of affairs which he deposed was true and correct to the best of his knowledge and belief, although noting that he had not had any access since 30 June 2008 to business or financial information that had previously been in his possession.

The annexed statement of affairs was in a question and answer form. It listed the Duranbah property as Mr Stock’s most recent residence and included the following information in the section entitled “Property Details – Houses, Flats and Land”:

In answer to question 45, entitled “Other Debts”, Mr Stock listed Mr Michael Stimpson as a person who had loaned him a sum of $475,000 to pay off his mortgage on the Duranbah property, and described that loan from Mr Stimpson as unsecured.

According to Mr Stimpson’s statement of claim filed in the present proceedings, the Crime Commission served orders on him on 30 June 2008 and 15 September 2008 requiring production of his financial records and documents identifying, locating and quantifying any interest of Mr Stimpson in property of Mr Stock. Mr Stimpson claims to have complied with those orders by producing “prima facie source documents that identified the source of the funds advanced to [Mr Stock] and their relevant particulars”.

Mr Stock pleaded guilty to the offences with which he had been charged. In November 2008, he was sentenced to a term of imprisonment.

The Duranbah property was sold in May 2009. Consistently with the restraining orders made in the recovery proceedings on 27 June 2008, the net sale proceeds of $262,432.21 were paid to the Public Trustee pending further order of the Court.

On 21 July 2009, the Court made orders in the recovery proceedings in relation the Crime Commission’s application made on 27 June 2008 for a proceeds assessment order in respect of Mr Stock. A proceeds assessment order is an order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than six years before the making of the application for the order. [3]

The terms of the orders made on 21 July 2009 by consent and without admissions required Mr Stock to pay the sum of $250,000 to the Treasurer. The Court directed that $75,000 of the funds held by the Public Trustee be paid to Mr Stock’s solicitors, and that the balance (representing the remainder of the net sale proceeds of the Duranbah property) be applied in satisfaction of the proceeds assessment order.

Mr Stimpson was not a party to the recovery proceedings in which the restraining order and the proceeds assessment orders were made in respect of Mr Stock. Mr Stimpson did not seek to intervene in or to be heard in those proceedings.

During the period between February and June 2011, Mr Stimpson engaged in correspondence with the Crime Commission concerning his claim to have been a secured creditor of Mr Stock. Mr Stimpson annexed to his statement of claim filed in the present proceedings copies of the Crime Commission’s letters to him during that period, omitting his correspondence to which each of the Crime Commission’s letters responded.

On 17 February 2011, the Crime Commission wrote to Mr Stimpson in the following terms:

The Crime Commission sent a further letter to Mr Stimpson on 4 May 2011 in the following terms:

The Crime Commission sent a further letter to Mr Stimpson on 12 May 2011, which relevantly stated:

I infer that the “two opportunities” referred to in the penultimate paragraph of the Crime Commission’s letter are the opportunities to seek an order of this Court extending the caveats referred to paragraphs 3 and 6 of the letter after Mr Stimpson’s was served with lapsing notices in respect of each caveat.

The Crime Commission sent a further letter to Mr Stimpson on 22 June 2011, which stated:

Mr Stimpson filed a notice of motion in the recovery proceedings in April 2024 seeking to set aside the orders made by this Court on 21 July 2009 on the grounds that those orders were made irregularly, illegally or against good faith, seeking in the further alternative an order that the Court revisit and review those proceedings for “their correctness and/or accuracy”, and seeking in the further alternative orders requiring the State to pay to him an amount representing the loss that he claims to have suffered as a result of the State not accepting Mr Stimpson’s claim to be a secured creditor of Mr Stock at the time of the 21 July 2009 orders.

Mr Stimpson’s motion was dismissed by Dhanji J on 13 December 2024. [4] His Honour held that Mr Stimpson had not established that the Crime Commission had acted in such a manner that the orders made on 21 July 2009 were made irregularly, illegally or against good faith. [5] Dhanji J found that the Crime Commission had evidence in the form of Mr Stock’s affidavit that the debt owed to Mr Stimpson was unsecured. [6] His Honour noted a serious allegation made by Mr Stimpson that solicitors acting for him at the time he was served with the lapsing notice on 23 April 2009 had acted improperly and contrary to his interests in failing to apply to the Court for an extension of Mr Stimpson’s caveat over the Duranbah property. [7] However, his Honour held that the Crime Commission had been entitled to assume that those solicitors were acting properly and it was not for the Crime Commission to inquire as to why Mr Stimpson had allowed the caveat to lapse. [8] His Honour also noted that Mr Stimpson had the opportunity to appear in the recovery proceedings and make his case with respect to his claimed security interest in the Duranbah property and his claimed rights to receive the proceeds of sale of the property in satisfaction of the debt owing to him Mr Stock. His Honour held that it was not for the Crime Commission to inquire as to why Mr Stimpson did not pursue that claim at the time. [9] In short, based on the information available to them at the time, the Crime Commission was entitled to proceed in the manner that it did in the recovery proceedings. [10] His Honour having declined to set aside the 21 July 2009 orders for those reasons, there was no occasion for the Court to reconsider or review the recovery proceedings, and Mr Stimpson’s application for orders for the payment of money in those proceedings which had been finally determined by the 21 July 2009 orders fell away. [11]

In the course of his Honour’s reasons for judgment, Dhanji J stated that the finalisation of the recovery proceedings between the Crime Commission and Mr Stock did not preclude Mr Stimpson from bringing a separate action with respect to his claim. His Honour observed that any such action would need to be supported by evidence, and that it may also be necessary to consider any relevant limitation provision that might apply. [12]

Mr Stimpson commenced the present proceedings by statement of claim filed on 16 April 2025. At [5]-[9] above, I have referred to the oral agreement pleaded by Mr Stimpson as the basis of his claim that he was a secured creditor of Mr Stock in respect of all of the funds advanced to him in connection with the Duranbah property. Mr Stimpson pleads that the Crime Commission’s determination that he was an unsecured creditor of Mr Stock was “contrary to the prima facie evidence” and was erroneous.

Mr Stimpson pleads that:

Mr Stimpson elaborated on these concepts of “assumption” and “attachment” in his written submissions filed in opposition to the State’s motion (emphasis added):

The statement of claim then sets out three “claims” made against the State. It is convenient to refer to them as “claims” although the question whether any of those claims discloses a reasonable cause of action is one of the issues that I must decide in order to determine the State’s motion for summary dismissal or strike out.

The first claim is described as the “Breach of Agreement / Contract Case”. In substance, the statement of claim pleads that, by selling the Duranbah property which is said to have been subject to the “attachments” allegedly “assumed” by the State and by failing to pay any part of the sale proceeds to Mr Stimpson, the State failed to discharge Mr Stock’s obligation to Mr Stimpson to pay him the value of his alleged secured interest in the Duranbah property, and/or caused Mr Stock to breach that obligation owed to Mr Stimpson. It is pleaded that the alleged breach occurred on one of several alternative dates, the latest of which is 21 July 2009. It is pleaded that the alleged breach deprived Mr Stimpson of his significant financial contribution to the purchase of the Duranbah property, caused him to suffer financial disadvantage (being the loss of the $476,500 contribution and/or 86 per cent of the sale price of the Duranbah property), caused ongoing financial loss (as a result of Mr Stimpson’s continuing obligation to service the mortgage over his Kingscliff property securing the loan that he took out in order to advance the $476,500 to Mr Stock), and generated a financial advantage for the State. The relief claimed in the statement of claim includes “damages at equity for breach of agreement/contract” and “compensation at equity for loss suffered”.

The second claim is described as the “Unjust Enrichment and the Criminal Assets Recovery Act 1990 [NSW] Case”. The statement of claim pleads that: [13]

The statement of claim defines the “date of the breach” referred to in paragraph 25 as one of a series of alternative dates including, relevantly, the date of the sale of the Duranbah property on 26 May 2009, and the date of the proceeds assessment order made against Mr Stock on 21 July 2009 (being the latest pleaded “date of the breach”).

The relief claimed by Mr Stimpson includes equitable compensation for loss that he claims to have suffered.

The third claim is described as a “Fraud Case”. It is pleaded in the following terms: [14]

Mr Stimpson claims equitable damages or equitable compensation.

Mr Stimpson claims to bring these proceedings on his own behalf, and as a representative of “the Stimpson Consortium”, which he describes as comprising himself, his partner Cheral Stimpson, and his partner’s son Aydden Stimpson.

Mr Stimpson is not legally represented in these proceedings. He filed two sets of written submissions in relation to the State’s application for summary dismissal or strike out. He appeared for himself at the hearing of the application, and made further oral submissions with the assistance of his son, Mr Mitch Stimpson, who spoke on behalf of his father as and when his father requested him to do so, with the leave of the Court.

The State seeks an order summarily dismissing the plaintiff’s statement of claim pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the basis that no reasonable cause of action is disclosed and the proceedings are statute barred under s 14 of the Limitation Act 1969 (NSW) (Limitation Act) in any event. Alternatively, the State seeks an order striking out the statement of claim pursuant to r 14.28 as disclosing no reasonable cause of action and as having a tendency to cause embarrassment.

Rule 13.4(1) provides:

Rule 14.28 provides:

In order to be summarily dismissed as disclosing no reasonable cause of action, each of Mr Stimpson’s claims, taken at their highest, must be demonstrated to be “manifestly groundless” or “so obviously untenable that it cannot succeed”. If there is an arguable issue to be tried, summary dismissal should be refused. [15]

The High Court has cautioned against limitation questions being decided on an interlocutory basis such as in an application for summary dismissal, except in the clearest of cases. [16] However, as the State submitted, proceedings may be summarily dismissed as disclosing no reasonable cause of action where it is clear from the pleadings, and without reference to any disputed questions of fact, that a statutory limitation period applies to a pleaded cause of action, and that the limitation period has expired. [17]

As the State submitted, the other concepts in rule 13.4(1) overlap with one another and with the principles to be applied in determining whether no reasonable cause of action is disclosed. Proceedings that are “frivolous” within the meaning of s 13.4(1)(a) includes proceedings that a plaintiff has no reasonable prospect of successfully prosecuting because the proceeding is “so obviously untenable that it cannot succeed”. Proceedings will be “vexatious” if they are productive of serious and unjustified trouble or harassment, including where they are an abuse of process. The concept of abuse of process cannot be exhaustively defined, but includes cases in which the Court’s procedures have been invoked for an illegitimate purpose, or are being used in a manner that is unjustifiably oppressive to one of the parties, and cases where the Court’s procedures are being used in a manner that would bring the administration of justice into disrepute. [18]

The same principles apply to an application to strike out a statement of claim as disclosing no reasonable cause of action (r 14.28(1)(a)) or on the grounds of abuse of process (r 14.28(1)(c)). A pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings if it fails to serve the essential function of a pleading by giving the defendant sufficient notice of the case that it must meet. That may be the case, for example, if a statement of claim is unintelligible, ambiguous or imprecise in identifying the material factual allegations on which the plaintiff relies as supporting the pleaded claims, or if it contains allegations that are inconsistent (and not pleaded as alternatives), confusing or irrelevant. [19]

The State relies on s 14 of the Limitation Act 1969 (NSW) in submitting that each of Mr Stimpson’s three claims is clearly statute barred. Mr Stimpson denies this, relying on s 55 of the Limitation Act.

It is convenient to set out those statutory provisions before addressing the substance of these and other submissions on a claim-by-claim basis.

Section 14 of the Limitation Act relevantly provides:

Section 55 of the Limitation Act provides:

The State submits that the Breach of Agreement/Contract Case should be summarily dismissed because the statement of claim discloses no reasonable cause of action in relation to the Breach of Agreement/Contract Case and the asserted cause of action is not maintainable in any event by reason of s 14(1)(a) of the Limitation Act.

Reading the statement of claim as a whole, I accept the State’s submission that the claim sought to be advanced is one for damages for alleged breach of contract by the State (apparently on the basis that the State assumed the obligations of Mr Stock under the alleged oral agreement between Mr Stimpson and Mr Stock when the State sold the Duranbah property), or for damages for the State’s conduct in allegedly causing Mr Stock to breach his obligations to Mr Stimpson under that alleged oral agreement. Mr Stimpson’s submissions did not seek to characterise the claim other than as a claim in contract. Although the statement of claim describes the relief sought as “damages at equity” or “compensation at equity”, the Breach of Agreement/Contract Case as pleaded is not capable of giving rise to a claim for equitable damages or equitable compensation. Damages of breach of contract are a common law remedy. The latest date of the alleged breach of contract pleaded in the statement of claim is 21 July 2009. I accept the State’s submission that the latest date of accrual of the claim sought to be advanced by the Breach of Agreement/Contract Case is therefore 21 July 2009. [20]

As the State submitted, Mr Stimpson does not allege that the State was a party to the alleged oral agreement between Mr Stock and Mr Stimpson, and the statement of claim does not identify any legal basis for Mr Stimpson’s pleaded contentions that:

I therefore accept the State’s submission that the Breach of Agreement/Contract Case discloses no reasonable cause of action.

I accept the State’s further submission that, even assuming that those difficulties were capable of being cured by an amendment - including assuming that the elements of the tort of inducement of breach of contract could be pleaded as a legal basis for the second contention - the claims would not be maintainable by reason of s 14 of the Limitation Act.

As explained above, 21 July 2009 is the latest date on which any cause of action is said to have accrued in respect the Breach of Agreement/Contract Case. It is clear that the six-year limitation period in 14(1)(a) of the Limitation Act expired on 22 July 2015 and the asserted cause of action is not maintainable in these proceedings that were commenced on 16 April 2025, unless the bar has been postponed pursuant to s 55 of the Limitation Act as Mr Stimpson contends.

Section 14(1)(b) of the Limitation Act would have the same effect in respect of any amended pleading of the Breach of Agreement/Contract Case founded on alleged tortious inducement of breach of contract because 21 July 2009 is the date on which Mr Stimpson claims to have suffered actual loss as a consequence of the State allegedly causing Mr Stock to breach his alleged agreement with Mr Stimpson in relation to the Duranbah property.

I now turn to Mr Stimpson’s contention that the bar in s 14 of the Limitation Act was postponed pursuant to ss 55(1) and 55(3) of the Limitation Act.

As the State submitted, s 55(1)(a) is not relevant to the Breach of Agreement/Contract Case because it is founded on contract and alleged breach of contract, and is not founded on alleged fraud or deceit. Neither fraud nor deceit is an element of a cause of action in contract. Nor would they be elements of any amended claim for alleged tortious inducement of breach of contract. [21]

That leaves s 55(1)(b) of the Limitation Act, which applies where the basic facts essential to the plaintiff’s cause of action, or the identity of the defendant as the person against whom such a cause of action lies, have been fraudulently concealed from the plaintiff by the defendant, or by another person for whose concealment the defendant is answerable pursuant to s 55(3). [22] The question that I must determine for the purpose of the State’s motion for summary dismissal is whether Mr Stimpson has any prospect of proving at trial that the Crime Commission or the State fraudulently concealed from him basic facts essential to his Breach of Agreement/Contract Case or the identity of the State as a prospective defendant.

Mr Stimpson submitted that the existence of the Breach of Agreement/Contract Case, or the identity of the State as the person against whom such a cause of action is said to lie, were fraudulently concealed by:

Mr Stimpson submitted that he first discovered that Mr Stock’s affidavit had not been filed with the Court in the recovery proceedings in November 2024, when his application to access the court file in the recovery proceedings for the purpose of reviewing Mr Stock’s affidavit of 13 August 2008 was refused on the ground that no record could be found of any such affidavit having been filed.

Mr Stimpson submitted, and the State acknowledges, that Mr Stock’s affidavit sworn on 13 August 2008 in the recovery proceedings was first provided to Mr Stimpson on 12 September 2025. Mr Stimpson submitted that he had previously relied on the Crime Commission’s correspondence stating that Mr Stock’s affidavit had described him as an unsecured creditor.

Mr Stimpson submitted that, until he first received Mr Stock’s affidavit, he did not know and could not have known or reasonably discovered that:

As the State submitted, the fact that Mr Stock’s 13 August 2008 affidavit was not filed in the recovery proceedings, but was merely furnished to the Crime Commission as required by the orders made by the Court on 27 June 2008, [23] is not a basic fact essential to the Breach of Agreement/Contract Case. Nor would it be a basic fact essential to any repleaded version of that case based on the tort of inducement of breach of contract.

As Mr Stimpson acknowledged at the hearing of the motion, and as is plain from the matters pleaded in his statement of claim and from the terms of his correspondence with the Crime Commission in 2011, he has claimed to be a secured creditor of Mr Stock with rights in respect of the Duranbah property or its sale proceeds from the time that he entered into the alleged oral agreement with Mr Stock in about May 2005, and he has asserted that claim in all of his dealings with the Crime Commission when the recovery proceedings were on foot and in his subsequent correspondence with the Crime Commission in 2011. Self-evidently, the basic facts on which Mr Stimpson now relies as essential to his Breach of Agreement/Contract Case as pleaded in the statement of claim were known to him before he filed that document on 16 April 2025. It follows that those matters were not concealed from him by the non-disclosure of Mr Stock’s affidavit during the period from 13 August 2008 until 12 September 2025. By referring to the non-disclosure of Mr Stock’s affidavit, I do not intend to suggest that the Crime Commission or the State could or should have provided a copy of Mr Stock’s affidavit to Mr Stimpson at an earlier time, in circumstances where Mr Stimpson was not a party to the recovery proceedings and had not applied to be joined as a party or made any claim in the recovery proceedings to the net sale proceeds of the Duranbah property.

Taken at its highest, Mr Stimpson’s fraudulent concealment allegation is one of concealment by the Crime Commission of evidence that might arguably have supported his claim to be a secured creditor of Mr Stock because the answer to question 22 in the statement of affairs annexed to Mr Stock’s affidavit of 13 August 2008 refers to Mr Stimpson (or a Mr Michael Stimpson) as holding a security interest or charge over the Duranbah property, noting that the answer to question 45 in the same document arguably undermines that claim by describing a loan from Mr Stimpson (or a Mr Michael Stimpson) in the sum $475,000 in connection with the Duranbah property as unsecured. Section 55(1)(b) of the Limitation Act is not enlivened by concealment of evidence supporting a claim (and I make no finding that any such concealment occurred in this case), as opposed to concealment of the existence of the claim. [24]

I acknowledge that Mr Stimpson’s submissions emphasised his contention that the Crime Commission or the State acted fraudulently and deceived him by “selective quoting” from Mr Stock’s 13 August 2008 in corresponding with him, and his complaint that the Crime Commission had “decided to push me over a cliff” by determining that he was an unsecured creditor. I acknowledge that Mr Stimpson steadfastly maintains that the Crime Commission’s determination was wrong. It is neither necessary nor appropriate for the Court to make findings about those matters in order to determine the present application. Even if those matters were established, they would not constitute fraudulent concealment of the Breach of Agreement/Contract Case or the proper defendant within the meaning of s 55 of the Limitation Act, for the reasons I have explained above. Moreover, many of Mr Stimpson’s submissions amounted in substance to an attempt to relitigate his application to set aside the recovery orders pursuant to r 36.15 of the UCPR, which was dismissed by Dhanji J on 13 December 2024. [25]

For all of those reasons, Mr Stimpson’s contention that the Breach of Agreement/Contract Case was fraudulently concealed is so obviously untenable that it cannot succeed at trial. It is not necessary to express any view about whether, if the fraudulent concealment contention had been arguable, it would have been reasonably arguable that the State was answerable for any such concealment by the Crime Commission. As the State submitted, at all relevant times the Crime Commission has been a statutory corporation that is a separate legal entity from the State. [26] It is clear from the statement of claim, and without reference to any disputed questions of fact, that a six-year limitation period applies to the Breach of Agreement/Contract Case under s 14 of the Limitation Act (and to any potential amendment of that case, including any amendment pleading tortious inducement of breach of contract), and that the limitation period expired on 22 July 2015, almost 10 years before the present proceedings were commenced. The Breach of Agreement/Contract Case, even if it were repleaded to disclose a reasonable cause of action, would clearly not be maintainable by reason of s 14 of the Limitation Act. The Breach of Agreement/Contract Case should therefore be summarily dismissed.

The Unjust Enrichment and Criminal Assets Recovery Act Case, as pleaded in the terms set out at [39] above, is that the State’s receipt of the sale proceeds of the Duranbah property in accordance with the orders of this Court made under the Criminal Assets Recovery Act in the recovery proceedings on 21 July 2009 is contrary to a “principle of unjust enrichment … that one party should not be unjustly enriched at the expense of another”, that Mr Stimpson has suffered a corresponding loss, and that the State is liable to pay equitable compensation to him in respect of that loss.

As the State submitted, unjust enrichment is not a cause of action or a legal principle capable of direct application. [27]

The State’s submissions implicitly acknowledge that, as matter of substance, the Unjust Enrichment and Criminal Assets Recovery Act Case may be understood as a claim by Mr Stimpson for payment of the Duranbah property sale proceeds to him by the State as money had and received. To the extent that the statement of claim can be understood as identifying a vitiating factor that is said to operate on the State’s receipt of the net sale proceeds of the Duranbah property, it is that the State allegedly received those proceeds in circumstances where Mr Stimpson contends that it was established that those net sale proceeds were wealth that Mr Stock had lawfully acquired. However, the State received those proceeds in accordance with orders made by the Court in the recovery proceedings under s 27 of the Criminal Assets Recovery Act with the consent of Mr Stock. Mr Stimpson has failed in his attempt to have those orders set aside. [28] Any contention that the State’s receipt of the net sale proceeds was vitiated by illegality is untenable in light of those objective facts and could not possibly succeed at trial.

For those reasons, Unjust Enrichment and Criminal Assets Recovery Act Case discloses no reasonable cause of action.

I acknowledge Mr Stimpson’s submissions which sought to impugn the legality of the exercise of the Crime Commission’s powers under the Criminal Assets Recovery Act and the legality of the orders made by this Court in the recovery proceedings on grounds that the Crime Commission allegedly failed to give him certain notices said to have been required under the Criminal Assets Recovery Act before the orders were made. In my opinion, it is an abuse of process for Mr Stimpson to attempt in this way to re-litigate his unsuccessful application to set aside the orders in the recovery proceedings. If he did not receive the various notices referred to in his submissions at the time the recovery proceedings were on foot, that is not a material change in circumstances or new evidence that has emerged since the hearing before Dhanji J in 2024, and there is no other apparent reason why the interests of justice require that he be given a fresh opportunity now to impugn the orders made in the recovery proceedings in July 2009. [29] Mr Stimpson’s written submissions assert that his application made in 2024 was dismissed “not as a result of him not having a case to present regarding whether the Commission acted in a manner such that the orders were obtained irregularly, illegally or against good faith, but because he was taken by surprise, making it difficult to present his case at all.” That assertion cannot be accepted in light of the detailed reasons for judgment of Dhanji J to which I have referred at [31]-[33] above. Those reasons record that, although Mr Stimpson was without legal representation, he had clearly gone to significant effort to present material setting out his case, that he had acted at all times appropriately in conducting the proceedings before, and that he had received assistance from his son in presenting his case to have the 21 July 2009 orders set aside. [30]

Moreover, as the State submitted, a cause of action for money had and received is a cause of action founded on quasi-contract within the meaning of s 14(1)(a) of the Limitation Act. [31] Any such cause of action accrued no later than 21 July 2009, being the latest date on which the State is alleged to have been unjustly enriched by the receipt of the Duranbah property sale proceeds. [32] It is therefore clear, without reference to any disputed questions of fact, that a six-year limitation period applies to the Unjust Enrichment and Criminal Assets Recovery Act Case under s 14(1)(a) of the Limitation Act, and would also apply to any repleaded version of that claim. That limitation period expired on 22 July 2015, almost 10 years before the present proceedings were first commenced, and the claim and any repleaded version of it is no longer maintainable.

Although Mr Stimpson’s arguments relying on s 55 of the Limitation Act did not refer in terms to his Unjust Enrichment and Criminal Assets Recovery Act Case, I understood them to be directed to the Unjust Enrichment and Criminal Assets Recovery Act Case as well as to the Breach of Agreement/Contract Case. I have addressed those arguments at [57]-[75] above. For the reasons there explained, those arguments are untenable.

For those reasons, any argument at trial seeking to maintain the Unjust Enrichment and Criminal Assets Recovery Act Case (or any repleaded version of it) notwithstanding s 14(1)(a) of the Limitation Act would be obviously untenable and could not succeed. The Unjust Enrichment and Criminal Assets Recovery Act Case, which discloses no reasonable cause of action as presently pleaded, should therefore be summarily dismissed.

The Fraud Case is pleaded as a claim for equitable damages or equitable compensation for loss said to have been suffered by Mr Stimpson as a result of the State’s alleged contravention of s 192E of the Crimes Act 1900 (NSW) in obtaining the orders that were made in the recovery proceedings and in receiving the sale proceeds of the Duranbah property pursuant to those orders. [33]

The State submitted that it is not arguable that s 192E of the Crimes Act should be construed in a manner that would make the State liable to prosecution and conviction for the criminal offence of dishonestly obtaining property belonging to another or obtaining a financial advantage or causing financial disadvantage by any deception. The State further submits that any proceedings against it for such an offence would need to be commenced pursuant to the provisions of the Criminal Procedure Act 1986 (NSW).

In response, Mr Stimpson submitted that he “is not necessarily seeking to make the State liable to prosecution and conviction for a criminal offence” and that he is “just pointing out a state of affairs that is so, and which warrants rectification and address”.

I accept Mr Stimpson’s submission that the Fraud Case does not seek to make the State liable to prosecution and conviction for a criminal offence. As I have observed above, the Fraud Case is pleaded as a civil claim for equitable damages or equitable compensation for loss said to have been occasioned by the State’s alleged contravention of s 192E. However, the statement of claim does not fulfill the essential function of a pleading by merely “pointing out a state of affairs” that the plaintiff asserts “warrants rectification and address”. The Fraud Case discloses no recognisable cause of action arising out the conduct alleged against the State which would sound in equitable damages or compensation.

Moreover, as the State submitted, the statement of claim does not identify any factual or legal basis for the allegation that its conduct in seeking and obtaining the orders that were made in the recovery proceedings on 21 July 2009, and receiving the sale proceeds of the Duranbah property pursuant to those orders, involved deception or dishonesty. In dismissing Mr Stimpson’s motion to set aside those orders, Dhanji J found that the Crime Commission was entitled to proceed in the manner that it did in the recovery proceedings. [34] I repeat my observations at [80] above concerning Mr Stimpson’s attempt to re-litigate the question of the legality of the Crime Commission’s exercise of the powers under the Criminal Assets Recovery Act and the legality of the orders made in the recovery proceedings.

For those reasons, the Fraud Case is so obviously untenable that it cannot possibly succeed at trial, and should be summarily dismissed.

In light of that conclusion, I have not found it necessary to address the parties’ competing submissions concerning ss 14 and 55 of the Limitation Act insofar as they apply to the Fraud Case.

I reject the informal application made by Mr Stimpson for leave to amend the statement of claim. That application was made for the first time in oral submissions immediately prior to the conclusion of the hearing of the State’s motion.

Mr Stimpson did not identify the nature or substance of any proposed amendments, and did not articulate how they might arguably disclose a reasonable cause of action in respect of his Breach of Agreement/Contract case, his Unjust Enrichment and Criminal Assets Recovery Act Case, or his Fraud Case. Nor did Mr Stimpson identify, even in general terms, any alternative cause of action that might be the subject of the unspecified amendments. Nor did Mr Stimpson articulate any reasonable argument that the unspecified amendments might bring his Breach of Agreement/Contract case or his Unjust Enrichment and Criminal Assets Recovery Act Case within the limitation period, other than by reiterating his submissions that s 55 of the Limitation Act was engaged. I have rejected those submissions for the reasons explained at [64]-[75] and [82] above.

On the basis of the matters pleaded in the existing statement of claim, and in circumstances where Mr Stimpson has not identified the nature of any proposed amendments despite having had ample opportunity to do so prior to the hearing of the State’s motion, a grant of leave to amend would be futile having regard to the provisions of s 14 of the Limitation Act and the dismissal of Mr Stimpson’s earlier application to set aside the orders made on 21 July 2009 in the recovery proceedings.

The State sought an order that Mr Stimpson pay its costs of the proceedings in the event that the proceedings are summarily dismissed. That order should be made, consistently with the general rule that costs follow the event. [35]

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