Caroline Chamoun v Gemi Nominees Pty Limited

1. [1]

   Before me today are three notices of motion: two filed by the first plaintiff and one by the first and fourth defendant.

2. [2]

   When the matter was called, the first plaintiff, Ms Caroline Chamoun, appeared in person. Mr McGirr, of counsel, appeared for the defendants. There was no appearance by or on behalf of the second plaintiff, Mr Jack Chamoun.

3. [3]

   Mr Chamoun is Ms Chamoun’s husband. Ms Chamoun sought leave to appear on his behalf. She is not a lawyer and the matter has some complexity. Mr McGirr indicated that the defendants would take no point relating to the absence of the second plaintiff insofar as the relief being sought in the various Notices of Motion is concerned. In those circumstances, I refused leave to Ms Chamoun to represent her husband.

4. [4]

   In summary, the parties’ Notices of Motion seek the following:

   1. (1)

      the plaintiffs seek an injunction to prevent the registration of a transfer of title to a property at xxx Phillips Street, Cabarita;

   2. (2)

      the plaintiffs seek leave to issue a number of subpoenas in connection with the substantive proceedings; and

   3. (3)

      the first and fourth defendants seek orders that the proceedings be summarily dismissed or, alternatively, that the plaintiffs’ Statement of Claim be struck out.

5. [5]

   At the commencement of the hearing this morning, Ms Chamoun sought leave to file in court a “Further Amended Statement of Claim”, which was said by her to better articulate the claims she and her husband wish to make in the proceedings. No objection was taken to the filing of that document, and I granted leave to Ms Chamoun to file it in Court to ensure that debate regarding the proposed summary dismissal of the proceedings or striking out of the pleadings could take place by reference to the case which the plaintiffs now seek to advance.

6. [6]

   I will refer to the most recently filed version of the pleadings as the Further Amended Statement of Claim, being the title that document bears (although I note that it would appear to be the first amendment made to the Statement of Claim originally filed by the plaintiffs).

7. [7]

   Before turning to the precise relief being sought by the parties in their respective Notices of Motion, I will set out briefly some background material to identify the context in which those applications are made.

8. [8]

   The dispute at the heart of the proceedings has a long history and originates in an agreement between the first defendant, Gemi Nominees Pty Ltd, the plaintiffs, and a company associated with the plaintiffs called Croydon Automotive Repairs Pty Limited. Pursuant to that agreement, Gemi Nominees agreed to advance a loan to Croydon Automotive Repairs. The plaintiffs were named as guarantors and each agreed that the loan advanced by Gemi Nominees under the agreement was to be secured over properties they jointly owned at Cabarita and Croydon.

9. [9]

   The security held by Gemi Nominees took the form of a second-ranking mortgage over each of the Croydon and Cabarita properties. First-ranking mortgages over each property were held by the National Australia Bank; they secured a significant advance of funds which had been made by that organisation.

10. [10]

    Moneys advanced by Gemi Nominees under the agreement were due to be repaid by 24 December 2021. They were not repaid by that date and – other than to the extent that recoveries have been made through the realisation of security – those moneys, and a substantial amount of interest which has since accrued, remain unpaid.

11. [11]

    The history of this dispute was comprehensively described by Faulkner J in a judgment delivered by his Honour on 31 July 2024: Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926. The same history is repeated in the extensive body of evidence which has been placed before me for the purposes of determining the three notices of motion. In the interests of brevity, I will adopt and incorporate by reference the summary of that history provided by Faulkner J in his reasons for judgment.

12. [12]

    The proceedings before his Honour were commenced on 19 September 2022 and ultimately resulted in orders which, relevantly, granted possession of the Croydon and Cabarita properties to Gemi Nominees.

13. [13]

    On 12 November 2024, Writs of Possession were issued to Gemi Nominees in relation to those properties. Those writs were executed by the New South Wales Sheriff on 14 January 2025 and possession of both properties was handed over to Gemi Nominees.

14. [14]

    On 14 January 2025, an urgent application was made to Ball J sitting as Duty Judge. On that occasion, Ms Chamoun appeared and sought an order that the Writs of Possession issued in respect of both the Cabarita and Croydon properties be stayed until 5pm on 17 January 2025. For reasons disclosed in his Honour's brief ex tempore judgment, Ms Chamoun’s application was dismissed: Gemi Nominees Pty Ltd v Chamoun (No 2) (Supreme Court (NSW), Ball J, 14 January 2025, unrep).

15. [15]

    Evidence adduced through an affidavit sworn on 28 November 2025 by Michael James Cooper (a director of Gemi Nominees) indicates that on 7 February 2025 agents, Horwood Nolan, were appointed to market the Cabarita property for sale.

16. [16]

    The Cabarita property was listed for auction on 12 April 2025. Ms Chamoun takes issue with the way in which the Cabarita property was marketed. I infer that she believes that the way in which the property was marketed and ultimately sold has in some way resulted in a sale price being achieved which fell short of that which was possible in the circumstances. Ms Chamoun referred to offers by the plaintiffs to purchase the Cabarita property themselves, which were not accepted. It is not clear on the evidence how that purchase might have been funded had any of those offers been accepted, given the circumstances, but that is probably not a matter I need to be concerned with on this occasion.

17. [17]

    It is uncontroversial that, on 12 April 2025, Gemi Nominees entered into a contract to sell the Cabarita property for $9,900,000. The purchasers were named as Rocco Vallelonga and Maria Christina Vallelonga. It would appear from the material placed before me today that the Cabarita property had been passed in at an auction conducted on that date. Following the auction, negotiations between Gemi Nominees and the ultimate purchasers of the Cabarita property continued and resulted in an agreement for sale, at the agreed sale price and subject to a settlement time frame of six months.

18. [18]

    In May 2025, Gemi Nominees appointed Savills to act as its agent to market the Croydon property (a commercial premises located on Parramatta Road at Croydon). The Croydon property was marketed on an expression of interest basis. On 26 June 2025, Gemi Nominees entered into a contract for the sale of the Croydon property for $3,650,000, with a settlement time frame of 52 days. The identity of the purchaser of the Croydon property is immaterial for present purposes.

19. [19]

    On 22 August 2022, Norton Rose Fulbright, the solicitors then acting for the National Australia Bank, provided a payout figure in respect of the moneys secured by the Croydon property of $12,239,338.88. Settlement of the sale of the Croydon property occurred on 1 September 2025. After relevant adjustments were made, the sale proceeds were paid to the National Australia Bank in partial discharge of the debts secured by its first-ranking mortgage over that property.

20. [20]

    On 10 October 2025, Norton Rose Fulbright provided a further “indicative” payout figure with respect to the remaining portion of the debt secured by the National Australia Bank’s first-ranking mortgage over the Cabarita property. The payout figure provided was $8,990,759.94.

21. [21]

    Settlement of the sale of the Cabarita property occurred on 16 October 2025. Of the sale proceeds received, $8,999,273.73 (which I infer was the then total sum owing to the National Australia Bank and secured by its mortgage) was forwarded to that organisation. The balance of the sale proceeds, after all relevant adjustments had been made (being $436,966.83), were applied by Gemi Nominees towards the moneys owed under the agreement and secured by its second-ranking mortgage over the Cabarita property.

22. [22]

    As at 28 November 2025, being the date on which Mr Cooper swore his affidavit, the sum of $4,207,943.03 (exclusive of all unpaid enforcement costs and expenses) remained owing to Gemi Nominees under the loan agreement.

23. [23]

    Upon the settlement of the sale of the Cabarita property, a transfer was executed by Gemi Nominees and the purchasers of that property. That document was lodged with New South Wales Land Registry Services for registration and assigned a dealing number. New South Wales Land Registry Services has raised a requisition in relation to the transfer and other documents associated with the sale of the Cabarita property. The evidence does not disclose what that requisition relates to. For present purposes, it is relevant only to note that, as a result of the requisition raised, the transfer has not formally been registered and the register still records the Cabarita property as being owned by the plaintiffs as joint tenants.

The first and fourth defendants’ Notice of Motion dated 28 November 2025

1. [24]

   Given the nature of the relief being sought by the parties in their respective applications, it is convenient to start by dealing with the application made by Gemi Nominees and the fourth defendant in their Notice of Motion dated 28 November 2025. Through this application, they seek an order that the proceedings be summarily dismissed or, in the alternative, that what is now the Further Amended Statement of Claim be struck out. Two broad propositions are advanced in support of the claim for summary dismissal.

2. [25]

   First, it is said that substantial aspects of the claim being made by the plaintiffs in the proceedings raise issues which could and should reasonably have been raised in the proceedings before Faulkner J. In that sense, it is said that the plaintiff's attempt to re-agitate – or even agitate for the first time – these claims in the current proceedings amounts to an abuse of process which ought not be permitted of the kind discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 (“Anshun”).

3. [26]

   Secondly, it is said that when one explores the factual substratum of the plaintiffs’ allegations, the claims being put are, in essence, wholly speculative and enjoy no real prospect of success.

4. [27]

   My attention has been drawn to the useful summary of the principles relating to summary dismissal by McGrath J in Kyle Anthony v State of New South Wales [2025] NSWSC 1322 (“Kyle Anthony”) at [7]-[17], which I gratefully adopt.

5. [28]

   The defendants say that, based on either of the two arguments they advance, the claims made by the plaintiffs in the proceedings are hopeless. Even if not hopeless, it is said that the claims are nevertheless “fanciful” in the sense referred to by Hammerschlag J in support of the decision to summarily dismiss the proceedings in Paul Ernest Simmons -v- Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455, noting at [59]:

6. [29]

   In relation to the first of the defendants’ arguments, I note that the reasons of Faulkner J in Gemi Nominees Pty Ltd v Chamoun [2024] NSWSC 926 expressly contemplated (at [140]) the possibility that further claims might be brought by the plaintiffs over and above the possession dispute then being addressed by his Honour. In dismissing a cross-claim filed by the plaintiffs in those earlier proceedings, his Honour made clear that he did not intend to prevent them from bringing fresh proceedings in the future (if so advised). This leaves open the possibility that the principle flowing from cases like Anshun may not, of itself, prevent the plaintiffs from bringing at least a money claim in the current proceedings.

7. [30]

   Turning to the defendants’ second argument, they have, quite properly, sought to identify from the current pleadings and the evidence what they understand to be the essential allegations being made by the plaintiffs in the proceedings; I will refer to these as the “core allegations”. It is notable that, having received the defendants’ written submissions, the plaintiffs have now propounded the Further Amended Statement of Claim and in it adopted, in large part, the defendants’ characterisation of the core allegations. In my view, this reflects the fair, and appropriately generous, way in which the defendants have interpreted the material put forward by the plaintiffs to date.

8. [31]

   Evidence has been adduced by Gemi Nominees and the fourth defendant which, it is said, refutes in a fundamental way the factual underpinning of the core allegations.

9. [32]

   The real challenge I face in assessing either of the defendants’ arguments lies in the fact that both, necessarily, turn on the actual case that is to be advanced by the plaintiffs in the proceedings. That case is not well articulated in the Further Amended Statement of Claim. In fact, I would go further and say that I am comfortably satisfied that the Further Amended Statement of Claim, in its current form, discloses no reasonable cause of action or other case appropriate to the nature of the pleading in the sense contemplated by r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

10. [33]

    Without wishing to downplay what would appear to be the significant force in much of what has been said by the defendants in answer to the core allegations, I do not think, at this stage, it is appropriate for me to descend into the factual controversy for the purposes of determining whether there is any viable case that the plaintiffs could advance. Without doing so, I am unable to exclude the possibility that the plaintiffs have such a case.

11. [34]

    Having said this, for reasons that I will come to shortly, what would appear (at least at a prima facie level) to be the very significant factual and legal difficulties confronted by what I understand to be the plaintiffs’ case are relevant in the context of the present application for summary dismissal.

12. [35]

    In Wentworth v Rogers (No 5) [1986] 6 NSWLR 534, Kirby P, confronted with a claim brought by a litigant in person, observed (at 536-7) that:

13. [36]

    This issue was revisited by McGrath J in Kyle Anthony at [19]. After noting the observations of Kirby P, his Honour went on to observe, correctly in my view, that regard must be had not only to the litigant in person, but also to the position of the other parties and what is required in the interests of justice to prevent the unnecessary expenditure of both public and private resources: citing Herbert v American Express Australia Limited [2018] FCA 1790 per Flick J at [60].

14. [37]

    A real question arises as to how these competing interests should be balanced in the context of the present case.

15. [38]

    In approaching this question, I have been assisted by the decision of Adamson J in Dickens v State of New South Wales (No 3) [2018] NSWSC 485, in which her Honour refers to two further decisions: Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 (“Karam”) and Knorr v CSIRO (No 3) [2012] VSC 529 (“Knorr”).

16. [39]

    In Knorr, Beach J accepted that giving an unrepresented plaintiff a further opportunity to plead their case would not result in compliance with basic and fundamental rules of pleading or with law. Rather, his Honour concluded that it would result in the delivery of a further lengthy and impenetrable document upon which no trial could reasonably or fairly be conducted, and on that basis, his Honour dismissed the proceedings.

17. [40]

    In Karam, it was explained (at [36]) that “a self-represented litigant cannot be allowed forever to stand behind the shield of their own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the Court’s already limited resources.” It was observed that there must come a point at which a self-represented litigant must be required to take responsibility for their choices.

18. [41]

    Similar considerations loom large in the present case.

19. [42]

    Whilst the current proceedings are relatively fresh – having only been commenced on 24 October 2025 – in reality, they reflect the continuation of a dispute which has been on foot between the parties and in this Court since September 2022. The overriding principles in s 56 of the Civil Procedure Act 2005 (NSW) demand that this dispute be brought quickly to a head, and in a way that does not place an unreasonable burden on the finite resources of the parties or the Court.

20. [43]

    I have concluded that the most appropriate course is not to accede to the application for summary dismissal of the proceedings. However, as I have already observed, the Further Amended Statement of Claim discloses no reasonable cause of action and does not articulate with sufficient clarity the claim, if any, that the plaintiffs may wish to bring against the defendants (or any one of them) arising out of the circumstances in which the Cabarita property came to be sold; it must be struck out.

21. [44]

    I propose to grant leave to the plaintiffs to make one further attempt at properly articulating their claims (should they choose to do) qualified by a guillotine order, which will bring the proceedings permanently to an end if they do not take up that opportunity in a timely manner.

The plaintiffs’ Notice of Motion dated 27 October 2025

1. [45]

   The application is supported by an affidavit sworn by the first plaintiff on 27 October 2025, which, in turn, exhibits the proposed subpoenas. It is said by the defendants that each of the proposed subpoenas amounts to “a fishing expedition”.

2. [46]

   In the absence of any clear articulation of the claim being made by the plaintiffs, it is not possible to determine what legitimate forensic purpose, if any, is to be served by the proposed subpoenas.

3. [47]

   For this reason and given the orders I propose to make regarding the plaintiff’s’ Further Amended Statement of Claim, it is not appropriate to grant leave to the plaintiff to issue the proposed subpoenas. Of course, should the proceedings progress in a way that identifies with sufficient clarity a claim being made by the plaintiffs, it will be open to them to revisit the question of any subpoenas that might properly be issued, including to the parties identified in their 27 October 2025 Notice of Motion.

4. [48]

   Beyond that, I will observe only that the documents sought in any such subpoena would likely need to be identified with far greater specificity than is presently proposed and also be more clearly aligned with an issue actually in dispute between the parties, having regard to the principles discussed in cases such as Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 and Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [13] and [14].

The plaintiffs’ Notice of Motion dated 30 October 2025

1. [49]

   That brings me finally to the plaintiffs’ notice of motion dated 30 October 2025. In that application, the plaintiffs seek the following relief:

2. [50]

   Orders 1 and 4 are clearly matters which, at least theoretically, amount to interlocutory relief. Orders 2 and 3 are clearly more in the nature of final relief. It is not appropriate to entertain an application for that final relief at an interlocutory stage in the proceedings.

3. [51]

   Insofar as the relief sought in orders 1 and 4 is concerned, neither is clearly aligned to any relief actually sought by the plaintiffs in the proceedings. At best, what remains after the decision of Faulkner J might be a claim for damages of some type. This much was accepted by Ms Chamoun. That fact, and the fact that the relief sought in orders 1 and 4 would effectively be futile (having regard to the fact that the sale of the Cabarita property has now completed), lead me to the view that it is not appropriate to grant that relief.

4. [52]

   More importantly, the relief being sought in orders 1 and 4, would, if granted, directly affect the interests of the purchasers of the Cabarita property who, as I have already noted, upon the settlement of that sale paid a very substantial amount of money to Gemi Nominees and the National Australia Bank.

5. [53]

   No attempt has been made to enable the purchasers to be heard on this application. In fact, I am told that they have not even been made aware that this application is being made. For that reason alone, it is not appropriate to grant relief of the type being sought in orders 1 and 4.

Next Steps

1. [54]

   I have asked Ms Chamoun how long she might require to prepare a proper pleading of any claim that she might wish to bring. I made very clear to her that I am not suggesting that she should bring a claim or that there is, necessarily, any claim properly available to her. I recommended that she give careful consideration to how to proceed and, if possible, obtain legal advice.

2. [55]

   She initially indicated to me that two weeks would be sufficient to enable her to prepare a further pleading. Having regard to the close proximity of the holiday season and my view Ms Charmoun requires sufficient time for careful reflection and a proper opportunity to obtain legal advice, I am minded to give her a longer period and require that any further pleading the plaintiffs may wish to propound be filed by no later than 13 February 2026. I raised this time frame with Ms Chamoun and I was advised that this would provide more than ample time for her to take such steps as she may wish to take in that regard.

Orders

1. [56]

   Accordingly, and for the reasons I have given, I make the following orders:

   1. (1)

      The plaintiffs’ notice of motion dated 27 October 2025 is dismissed.

   2. (2)

      The plaintiffs’ notice of motion dated 30 October 2025 is dismissed.

   3. (3)

      Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules, the whole of the plaintiffs’ Further Amended Statement of Claim dated 24 October 2025 is struck out.

   4. (4)

      I grant leave to the plaintiffs to file any further amended statement of claim by no later than 13 February 2026.

   5. (5)

      If the plaintiffs do not file any further amended statement of claim by 13 February 2026, the proceedings will be dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules.

   6. (6)

      If the proceedings are dismissed pursuant to order 5, I grant liberty to the parties to approach my chambers and provide written submissions of no more than three pages each addressing any residual question that may arise as to the costs of the proceedings.

   7. (7)

      The first and fourth defendants' notice of motion dated 28 November 2025 is otherwise dismissed.

   8. (8)

      I order that the first plaintiff pay the defendants’ costs of:

   9. (9)

      I confirm the listing of this matter before the Registrar on 18 February 2026.

   10. (10)

       If the proceedings are dismissed pursuant to order 5, the listing on 18 February 2026 will be vacated.