FEDERAL COURT OF AUSTRALIA

Yap v Australian Securities and Investments Commission [2009] FCA 831

Held:  The motion for leave be refused.  

Granich & Associates v Yap [2004] FCA 1567

Yap v Granich [2005] FCA 309

Yap v Granich Partners [2008] FCA 1380

CHENG SEE YAP and ARCOLA PTY LTD v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, ANZ BANK, ESANDA FINANCE LTD, CHALLENGE BANK LTD, BANK OF SINGAPORE, COMMONWEALTH BANK, CURTIN UNIVERSITY, GRANICH & ASSOCIATES, BAILIFF (WA) and STATE GOVERNMENT OF WESTERN AUSTRALIA

WAD 74 of 2009

MCKERRACHER J

5 August 2009

PERTH

THE COURT ORDERS THAT:

1.                  The motion for leave be refused. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The first applicant, Mrs Yap has once again applied for leave to issue proceedings.  In Granich & Associates v Yap [2004] FCA 1567, Mrs Yap was declared a vexatious litigant.  The eighth respondent (Granich) has not been required to appear in light of the orders made in that decision. 

2                     There are several more parties to the proposed proceedings on this occasion but notwithstanding this feature, it is nevertheless clear that the proposed cause of action arises out of the same sub-stratum of facts as a similar application brought by Mrs Yap last year.  It was dismissed:  Yap v Granich Partners [2008] FCA 1380.

3                     In the course of that decision I outlined the appropriate approach to take in such applications (at [2]).  I also outlined the extensive history of her dispute and the equally extensive history in this Court (at [3] and [4]).

4                     Once again in this hearing, I have asked Mrs Yap to specifically identify what material it is within the content of her latest two affidavits that is in any sense different from, new or otherwise distinguishable from the material which has previously been examined in this Court including in the course of her application last year.

5                     In response to this query, Mrs Yap has once again relied heavily on the content of her extensive affidavit sworn in previous proceedings in 2007 when she sought leave to issue proceedings.  (That affidavit with annexures comprises some 743 pages).  The fact that in the course of her oral and written submissions she relies so heavily on that material tends to support a conclusion that there is nothing new in the matters of which she now raises complaint.  Those matters have now been ventilated on numerous occasions. 

6                     Specifically in these proceedings, the following claims appear in Mrs Yap’s application which is said to be under subs 601AH(2) of the Corporations Act 2001 (Cth). 

1.         1st Respondent to reinstate Cheshire Securities Pty Ltd ACN 009 264 082 pursuant to J French’s (sic French J’s) order dd (sic dated) 24 April’08.

2.         2nd Respondent to reimburse 2nd Applicant all rents, interest due on 58 58A 58B & 60 2nd Avenue Rossmoyne from 17 Nov.’88 till date of Judgment and the properties to revert back to the owner.

3.         3rd Respondent to reimburse Cheshire Securities Pty Ltd all rents, interest derive (sic derived) from its Student Housing from 17 Nov’88 till date of Judgment and

a)         to pay damages to 1st Applicant for its wrongful sale of her farm Lot 1978 Pinjar W on or about 31 May’91 and the property to revert back to 1st Applicant,

b)         to pay damages to 1st Applicant for the wrongful sale of her home 449 Canning Highway Melville on 5 Nov’93 pursuant to writ of FiFA215/93 issued by M Ellison pursuant to DC1536/89 P Vivante & Co Pty Ltd vs CS Yap which action it funded pursuant to its agreement with Mr P Vivante, the company’s director, to split between themselves the proceeds of the sale after 9th Respondent’s costs were paid which property to revert back to 1st Applicant.

4.         4th Respondent to reimburse 1st Applicant all rents, interest in No.235 Preston Point Rd Bicton consisting of 3 Units pursuant to mortgage D520600 it seized on 25 May’88 till date of Judgment and which property to revert back to 1st Applicant.

5.         5th Respondent to pay Cheshire Securities Pty Ltd damages for discharging its collateral pursuant to mortgage D827686 140 Charles St. W Perth on 23 Feb’89 to stranger in breach of its mortgagee’s duty and the property to revert back to Westpoint Hldgs Pty Ltd ACN 009 308 301.

6.         6th Respondent to reimburse 1st Applicant rents, interest due on No. 254 Preston Rd Bicton it seized on about 25 May’88 pursuant to mortgage D371852 consisting of original house and two Townhouses till date of Judgment.  The property to revert back to 1st Applicant.

7.         7th Respondent to pay Cheshire Securities Pty Ltd damages for its breach in its “Agreement to Lease” executed in Aug ’87 and its servant Mr P Yacopetti, colluded with Mr L Errington of 3rd Respondent, usurped Cheshire’s Stage 1 on 30 Jan’89 thereby 7th Respondent to reinstate Cheshire’s 50-years LEASE.

8.         8th Respondent to pay 1st Applicant damages as the Court sees just for wrongly bankrupting her in FC WG 7047/98 on 10.12.98 for its bill of costs in DC6202/93 CS Yap vs Granich & Asso. where:

a)         it omitted $80,490 Akibilt’s cheques paid plaintiff P Vivante & Co Pty Ltd in Schedule CSY1 of her Aff: sw: 7.7.92 in DC1536/89 P Vivante & Co Pty Ltd vs CS Yap which $80,490 Mallesons SJ,

b)         3rd & 4th Respondents’ solicitors, acting in conflict of interest for 8th Respondent in DC6202/93, concealed from the Court/Trial Judge that proved Mr P Vivante, plaintiff’s director, lied in his evidence thereby 1st Applicant’s bankruptcy ought to be annulled.

9.         9th Respondent to pay 1st Applicant $142, 000 for the sale of her home 449 Canning Highway Melville on 5 Nov’93 pursuant to writ of FiFa215/93 issued by M Ellison pursuant to DC1536/89 in 8. and the property Swan Loc. 73 Lot 6 on Diagram 5694 CT Vol,1590 Folio 117 to revert back to her.

10.       10th Respondent facilitated Cheshire’s “Agreement to Lease” with 7th Respondent executed in Aug’87 for all the 5 stages of development 7th Respondent is in breach of its Agreement thereby 10th Respondent ought to compensate Cheshire as the Court sees just. 

7                     Each of those claims has been previously pursued or alternatively depends upon other claims which have previously been pursued, sometimes on numerous occasions and in all cases those claims have been rejected. 

8                     Notwithstanding that the affidavit has now been supplemented by detailed submissions in chronological sequence, I regret that despite adopting as open a mind as I can, I am unable to identify any new material, new evidence or new or different arguments since the application I last considered in Yap v Granich Partners [2008] FCA 1380.

9                     As in the decision I determined last year, and as in the decision determined by Nicholson J in Yap v Granich [2005] FCA 309, all the evidence relied upon has been available in previous hearings and could have been relied upon in those hearings if it was of any value (see [4]-[10]). 

10                  Once again I note that Mrs Yap has clearly suffered considerably through the unfolding of events in this matter and the Court appreciates her courtesy in the manner in which she comprehensively presents her application.  However, the oppression which would be occasioned on the prospective respondents, the burden to the Court and the inevitable ultimate further disappointment to Mrs Yap unequivocally dictate that leave should not be given.  The issues have previously been ventilated unsuccessfully on numerous occasions. 

11                  Accordingly, the motion for leave must be refused. 

Associate:

Dated:         5 August 2009