FEDERAL COURT OF AUSTRALIA

Garrett v Make Wine Pty Ltd [2015] FCA 593

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal is dismissed.

2.    The applicant is to pay the respondents’ costs of and incidental to his application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant has sought leave to appeal from the decision and orders of Mortimer J pronounced on 21 November 2014 in proceeding VID248/2014. Her Honour gave judgment in favour of the respondents on the principal ground that the proceeding was an abuse of process. She also made orders against the applicant pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA). Each of the orders made were interlocutory. Before proceeding further, I should note that on 26 February 2015, Pagone J made a vexatious litigant order against the applicant pursuant to s 37AO of the FCA. It was in a broader form than that made by her Honour.

2    In my opinion, leave to appeal should be refused.

3    The hearing before me proceeded on 13 March 2015 with the applicant relying upon voluminous material and diffuse grounds of asserted error said to have been made by her Honour.

4    On 4 May 2015, the applicant sought leave to bring an application to re-open the hearing before me and to adduce new evidence that he said arose by virtue of “admissions” made by one of the respondents in another proceeding. I refused that application. There were no such “admissions”. Further, even if there were, their admission as evidence in the proceedings before me would not have been capable of establishing that her Honour had made any error in her determination.

5    The principles governing the grant of leave to appeal from an interlocutory judgment are not in doubt and were identified in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor) at 398 to 399. The applicable two tiered test is whether:

(a)    in all the circumstances the decision below was attended with sufficient doubt such as to warrant its reconsideration; and

(b)    substantial injustice would result to the applicant if leave were refused supposing the decision to be wrong.

6    The applicant’s proposed amended draft notice of appeal contained 23 grounds of appeal (numbered 3 to 26) raising diffuse and disjointed asserted errors. Most were misconceived. Further, most did not concentrate upon the specific foundation relied upon by her Honour to justify her orders. It is not productive to set them out in the body of these reasons; for convenience, I have set them out in a schedule. I will deal later with a yet further amended draft notice containing 51 grounds of appeal.

7    It is convenient to deal first with the first limb of the leave to appeal test, that is, whether her Honour’s decision was attended with sufficient doubt such as to warrant a grant of leave. In my view, which I will expand upon in a moment, it is not attended with such doubt. Accordingly that is sufficient to dispose of the application for leave to appeal.

8    But in any event, in terms of her Honour’s order under s 37AO, even if that order was attended with sufficient doubt, in my view no substantial prejudice or injustice would result to the applicant if leave were refused assuming her Honour’s decision to be wrong. There is a broader vexatious litigant order applying to the applicant in any event by reason of Pagone J’s orders referred to above that remains in place.

9    Before proceeding further, it is appropriate to set out the background to the proceeding below and the matters her Honour was required to deal with. I have gratefully drawn on her Honour’s meticulous and careful summary.

Background

10    During the 1980s and 1990s the applicant was a well-known Australian winemaker. The proceeding before her Honour concerned the ongoing consequences for the applicant of a decision he made in 2000, as part of the settlement of litigation in South Australia, to divest himself of many of his winemaking interests, including his interests in trade marks.

11    In the proceeding before her Honour, the applicant made a wide range of claims against the three respondents, especially against the third respondent, Treasury Wine Estates Vintners Ltd (TWEV). In broad terms, those claims concern a Deed of Settlement made between him and TWEV (when it was called Mildara Blass) and a number of other parties in July 2000 (2000 Deed). All of his claims involved either allegations of payments he says he was entitled to under the Deed, breaches of other entitlements he says were given to him under the 2000 Deed or allegations about dealing in and use of trade marks and other intellectual property assigned by the applicant to TWEV under the Deed. His battle with the third respondent (in its current and previous corporate iterations) has been drawn out and predates the 2000 Deed. His claims against the first respondent, Make Wine Pty Ltd (Make Wine), and the second respondent, Vok Beverages Pty Ltd (Vok) are new, but derive from assignments of intellectual property to them by TWEV. That intellectual property has formed part of the subject matter of protracted disputes between the applicant and TWEV.

12    The respondents applied before her Honour under r 26.01 of the Federal Court Rules 2011 (Cth) for the proceeding to be dismissed summarily, or permanently stayed, on a number of grounds; no reliance was placed on s 31A of the FCA. They also applied for orders under s 37AO of the FCA seeking to declare the applicant a vexatious litigant and requiring him to seek and obtain leave to commence any further proceedings against them in this Court.

13    Her Honour dismissed the proceeding as an abuse of process. But she declined to dismiss the proceeding by way of summary judgment on the merits of the applicant’s legal and factual arguments. Her Honour did, however, uphold some of the respondents’ arguments on standing and Anshun estoppel. Her conclusions on those matters, and on abuse of process, resulted in her Honour dismissing the proceeding. Her Honour also made orders under s 37AO against the applicant.

14    Her Honour gave the following summary of the facts on the material before her. The applicant entered the winemaking industry in the early 1980s. He developed a company called “The Wine Company”, through which he made a wide range of wine and which by 1989 had a turnover of $12 million, with an annual crush of 6,500 tonnes. He created and registered the business name of “Andrew Garrett Wines” in the mid-1980s, and developed a stylised signature of his name which became regularly used on wine labels. He registered trade marks from the early 1990s which involved his signature. During the same period there was an expansion of the business through the introduction of investors.

15    The introduction of outside investors caused difficulties for the applicant’s personal involvement in the now extensive winemaking business of The Wine Company and the Andrew Garrett labels. By agreement, the applicant left The Wine Company in May 1993, and by early 1994 had embarked on a new venture in winemaking with Tatachilla Winery Pty Ltd, although his involvement appears to have been as an employee. A winery was purchased, new wines produced and there was an attempt by the applicant to register new trade marks, which was rejected because of similarity with the stylised signature still owned by The Wine Company.

16    In the second half of 1994 The Wine Company sought to sell the Andrew Garrett Wine brands. The applicant competed with Mildara Blass for the purchase of those interests. It appears at the same time that his relationship with those who controlled Tatachilla began to deteriorate. Instead of continuing to compete with Mildara Blass, he sought to negotiate an arrangement with Mildara Blass so that he could again be involved in the production of wines under the Andrew Garrett label. These negotiations were not successful. In January 1995 The Wine Company sold the business of Andrew Garrett Wines to Mildara Blass. Further, Tatachilla also assigned its interests in what the applicant described as “the Garrett Family Licence” to Mildara Blass. The applicant’s evidence before her Honour disclosed that, where it was necessary, he and his wife consented to various assignments as part of these transactions.

17    The applicant retained an interest in a winery property in South Australia called “McLarens on the Lake”, and there appears from the evidence to have been some ongoing disputes with Mildara Blass about the use by the applicant of his name, and perhaps of signatures, in advertisements and perhaps also on labels. The applicant deposed to continuing to pursue his own path in the winemaking business after the sale to Mildara Blass. He made criticism of the way Mildara Blass managed the Andrew Garrett Wines business after purchasing it from The Wine Company.

18    It was Mr Garrett’s dissatisfaction with the sale to Mildara Blass, the collapse of his business relationship with Tatachilla, and the consequences of these events, which resulted in him issuing proceedings in the Supreme Court of South Australia in November 1996. The proceeding included contractual claims and claims in relation to intellectual property over the Andrew Garrett name, marks and signature marks.

19    In 2000, the 1996 South Australian Supreme Court proceedings were settled. The 2000 Deed was signed. It is this document which formed the basis of almost all of the applicant’s claims in the proceedings before her Honour, and which formed the basis of his claims in other proceedings. The parties to the 2000 Deed relevantly included the applicant and his then wife Avril Garrett in their personal capacities, the applicant and his then wife as trustees of the Andrew Garrett Family Trust, and Mildara Blass, being the then corporate name of TWEV.

20    In September 2004 the applicant was declared bankrupt on the application of the Deputy Commissioner of Taxation. On the applicant’s evidence the debt was said to relate at least in part to failure to pay GST liability imposed as a consequence of payments pursuant to the 2000 Deed.

21    In Universal Holidays Pty Ltd v Tseng [2008] FCA 1011, Lander J described the course of the bankruptcy in the following terms:

On 24 September 2004 a sequestration order was made against the estate of Mr Andrew Garrett and Mr Peter Macks was appointed his trustee in bankruptcy. Mr Garrett remains a bankrupt. His trustee objected to his discharge in October 2007 and, on 18 December 2007, the period of his bankruptcy was confirmed as being until 23 November 2012, being eight years from the date on which Mr Garrett filed his Statement of Affairs.

22    The evidence filed in the proceeding before her Honour suggested that different dates may have applied. The applicant became a discharged bankrupt on 21 April 2009.

23    Peter Macks was appointed as the applicant’s trustee in bankruptcy. Mr Macks’ performance as trustee has also become the source of various allegations in different proceedings by the applicant, including proceedings in this Court. Stephen James Duncan, who was appointed trustee of the bankrupt estate of the applicant’s former wife, Averil Garrett, has also been a respondent in proceedings at the suit of the applicant. In addition to the proceedings in the Victorian Registry of this Court, there have been at least two proceedings in the South Australian Registry and one in the Western Australian Registry of this Court.

24    In approximately March 2009, the applicant, Mr Macks and Mr Duncan entered into a deed of settlement (the Macks Deed) resolving and compromising all the claims made against them by the applicant. The Macks Deed was in evidence on the r 26.01 application. During the hearing before her Honour, the applicant handed up a version with at least two signed counterparts. One of the recitals to that Deed described the subject matter of the Deed as “the dispute … in respect of the right to receive payments from the Royalty Stream held in the Litigants’ Fund and payments from future payments made by FWE on the terms recorded in this agreement”.

25    “FWE” was defined in the Macks Deed as the entity originally known as Mildara Blass Ltd, which changed its name to Beringer Blass Wine Estates Ltd and then to Foster’s Wine Estates Ltd. It is now Treasury Wines Estates Vintners Ltd. The “Royalty Stream” was defined in the Macks Deed as the 10-year quarterly payments the parties to the 2000 Deed agreed were payable to the applicant and his then wife in their personal capacities and as trustees for the Andrew Garrett Family Trust. The “Litigant’s Fund” was defined in the Macks Deed as the fund held by the Federal Court into which FWE (as it then was) paid the Royalty Stream payments pending the resolution of the dispute as to whom they were payable.

Summary judgment grounds

26    The respondents sought summary judgment in respect of all the applicant’s claims against them. Her Honour refused to grant summary judgment on the basis of any lack of legal or factual merit of the various claims, putting to one side the question of standing. However, she summarily dismissed the proceeding on the principal ground that it was an abuse of process.

27    The respondents also put separate submissions that the applicant had no standing in relation to several of his causes of action. They submitted that all but one of the causes of action relied upon by him had vested in his trustee in bankruptcy from at least the date of the sequestration order applying to the applicant on 24 September 2004. They submitted that, even after the applicant’s discharge from his bankruptcy, those causes of action remained vested in his trustee. The respondents conceded, however, that the cause of action concerning cl 15 of the 2000 Deed accrued after the applicant’s discharge from bankruptcy. There was no issue about his standing in relation to that claim. The applicant maintained that his discharge from bankruptcy revived his ability to bring claims of the kind he now makes.

28    Her Honour held at [88]:

However, because of the other bases on which the respondents put their r 26.01 application, I have concluded some of the respondents’ contentions on standing and estoppel should succeed and that their abuse of process arguments should be accepted. In that sense, Mr Garrett has no reasonable prospects of successfully prosecuting his claims in this proceeding, not because of any independent assessment by this Court of the legal and factual merits of the claims, but rather because of the existence of those other factors.

29    On the specific question of lack of standing, her Honour held at [99], [100], [102] to [108] the following:

99    There could be no controversy over Mr Garrett’s standing in relation to any of these claims but for his bankruptcy.

100    On the effect of his bankruptcy, the respondents relied on the case of Samootin v Shea [2010] NSWCA 371. On this issue the lead judgment was given by Campbell JA, with Beazley and Hodgson JJA agreeing.

102    The Court found Mrs Samootin lacked standing to bring the application for leave to appeal. It noted that the property which vested in a trustee in bankruptcy at bankruptcy included choses in action, relying on Daemar v Industrial Commission of NSW (No 2) (1990) 22 NSWLR 178 at 184-185 per Kirby P, with whom Clarke and Meagher JJA agreed. That proposition is well established: see also Re Bankrupt Estate of Cirillo; Ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576 at 583 per Branson J; see also Samootin v Official Trustee in Bankruptcy (No 2) [2012] FCA 316 at [19] per Katzmann J.

103    The Court of Appeal also found (at [95]) that discharge of a bankrupt from bankruptcy does not cause any assets that have vested in the Official Trustee to revert to the bankrupt. Campbell JA further found (at [99]):

Similarly, if an asset that the bankrupt owned at the time of the bankruptcy but that was thought to be worthless is shown, after the bankrupt has been discharged, to have some value, that asset remains vested in the Official Trustee, and if the Official Trustee is of the view that that value is worth realising, it is only the Official Trustee who has the power to realise that value.

104    I respectfully agree with the reasoning of Campbell JA at [92]-[100], and consider that it applies to Mr Garrett’s circumstances.

105    Campbell JA referred to Cummings v Claremont Petroleum NL (1996) 185 CLR 124, which in my respectful opinion is also relevant to the matters in issue on this application. At 136, Brennan CJ, Gaudron and McHugh JJ held that:

… a bankrupt has no right to bring or prosecute proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy.

106    The Court also held, at 138, that

A bankrupt’s contingent interest in a surplus does not give him an interest which would allow him to sue to enforce proprietary rights….

107    Mr Garrett’s causes of action in relation to alleged breaches of the 2000 Deed, and any interests he had to be paid, or rights he had available for exercise, under that Deed which could have resulted in additional funds being available for creditors vested in his trustee in bankruptcy. Having been divested of that property on bankruptcy, he does not reacquire it after his discharge and is not able to issue proceedings in relation to the 2000 Deed.

108    There may, as the respondents conceded, be some doubt whether these principles apply to the cause of action in relation to cl 15 of the 2000 Deed, which did not and could not have arisen until after Mr Garrett’s discharge from bankruptcy. Whether one potential cause of action under the 2000 Deed could survive the bankruptcy and be available to Mr Garrett is not, in my opinion, immediately obvious. To so conclude may be inconsistent with the approach taken in Samootin [2010] NSWCA 371 and the authorities there referred to. However I do not need to decide this because in my opinion any claim by Mr Garrett in relation to cl 15 of the 2000 Deed is precluded for reasons of abuse of process.

30    On the specific question of the respondents’ arguments concerning res judicata, issue estoppel and Anshun estoppel, her Honour was not prepared to accept the respondents’ arguments as justifying summary dismissal, subject to one exception. At [135] her Honour held:

Accordingly, the only claims which could be said to be the subject of Anshun estoppel are the claims to payments under the 2000 Deed, based on a construction of cl 9 in particular, as against the third respondent only. The first two respondents have not been parties to any previous proceedings and no estoppels could be raised in relation to Mr Garrett’s claims against them. I accept the respondents’ submissions to that limited extent.

31    The principal basis for her Honour’s orders summarily dismissing the proceeding was the abuse of process ground. At [146] to [148] and [152] her Honour held:

146    Improper purpose aside, it is the ground of abuse of process which, in my opinion, is fatal to all of Mr Garrett’s claims in this proceeding. My conclusions on this ground are also important to my conclusions on the respondents’ application for an order under s 37AO of the Federal Court Act.

147    A litigant’s unwillingness to accept findings in earlier litigation may be indicative of later claims constituting an abuse of process: Liao v New South Wales [2014] NSWCA 71 at [169] per Barrett JA (with whom Beazley P agreed). There were features of the Court of Appeal’s decision in Liao which were substantially different from those in the present proceeding: notably, that the litigant against whom the abuse of process allegation was made was a defendant in the first proceeding rather than a plaintiff. At [191], the Court of Appeal noted there was a “significant difference between, on the one hand, a plaintiff who, in later proceedings asserts, by way of either attack or defence, a case that the plaintiff has unsuccessfully pursued on an earlier occasion and, on the other, a defendant who initiates nothing, fails to withstand a particular attack and is later subjected to the same attack by a new claimant.” In the latter circumstance, the Court of Appeal concluded a court would be slower to reach a conclusion of abuse of process.

148    Mr Garrett’s circumstances fit within the first category, which the Court of Appeal in Liao clearly identified as within the concept of abuse of process. As I set out at [195] below, a feature of litigation commenced by Mr Garrett has been his unwillingness to accept findings made against his claims.

152    In my opinion, it is clear that Mr Garrett has engaged in substantial re-litigation of issues, having been unsuccessful to date in obtaining the outcome he desired from other proceedings. I have already referred in detail to the litigation in the Supreme Court of South Australia before Layton J and Anderson J. It is necessary now to refer in more detail to the litigation by Mr Garrett in this Court. I note also that Layton J referred to a number of cases in the Federal Magistrates’ Court, which her Honour took into account in making a vexatious litigant order against Mr Garrett.

32    Her Honour then carefully addressed (at [153] to [187]) various proceedings reflected in the following decisions:

    Garrett v Westpac Banking Corporation [2007] FCA 439

    Garrett v Foster’s Wine Estates Ltd [2007] FCA 253

    Garrett v Rann [2007] FCA 528

    Garrett v National Australia Bank [2007] FCA 530

    Garrett v Westpac Banking Corporation [2007] FCA 525

    Garrett v Bransbury [2007] FCA 529

    Garrett v Macks [2006] FCA 601

    Re Garrett as Trustee for the Garrett Family Trust [2009] FCA 252

    Garrett v Australian Trade Commission [2014] FCA 575

    Garrett v Deputy Commissioner of Taxation [2014] FCA 576

33    Her Honour then analysed the conduct of the applicant in those proceedings. Her Honour did not purport to be exhaustive either of the proceedings that the applicant had instituted or his conduct therein.

34    Her Honour then proceeded to set out a description of the applicant’s inappropriate conduct and behaviour in the proceedings before her (see at [188] to [192]).

35    Her Honour then reached the following conclusions at [193], [194], [196] to [198] and [201]:

193    Taking the previous proceedings brought by Mr Garrett into account, together with the conduct to which I have referred at [188] to [192] above, certain features emerge. There is considerable repetition of the same or similar allegations by Mr Garrett in different proceedings, sometimes directly, sometimes indirectly. He engages in a practice of naming large numbers of respondents while not making clear allegations against them all. He often seeks to join additional respondents. He engages in a practice of repeatedly naming the same respondents. The allegations he makes as the basis for claims in proceedings have been found by the judges who have dealt with his proceedings generally to be unintelligible, prolix and often inflammatory. The reported decisions record that he frequently fails to comply with court directions intended to have him clarify and regularise his claims.

194    Mr Garrett engages in the practice of bringing proceedings in various “capacities” but this practice is, in my opinion, in reality an attempt to distinguish proceedings where the subject matter is materially indistinguishable from previous proceedings. Mr Garrett is prone to making collateral attacks on findings made, or conclusions reached, by courts in other proceedings. He has issued proceedings in different registries of this Court, and in different courts, even though the subject matter overlaps with matters already dismissed or decided against him in other registries and courts. The reported decisions disclose that he often refuses to acknowledge deficiencies in the way the claims are made, and refuses to rectify deficiencies when they are identified to him. He displays no insight into the deficiencies or lack of legal merit of his claims. More than once, he has made inappropriate and inflammatory allegations without any disclosed factual foundation for them.

196    I consider that Mr Garrett has continued many of those features in the proceeding before me. First, the subject matter of the proceeding is once again the 2000 Deed, which has featured, directly or indirectly, in many previous proceedings brought by Mr Garrett. Likewise, the disputes over ownership of wine labels and trade marks have been raised in other proceedings.

197    There is no doubt that what Mr Garrett seeks to do in this proceeding is to revisit yet again the bargain struck by the 2000 Deed, and his complaints about the performance of that bargain. It should not be overlooked that the 2000 Deed itself was a compromise of proceedings brought by Mr Garrett in No 2244 of 1996 in the Supreme Court of South Australia. He appears never to have accepted the terms of that compromise as binding upon him in any realistic sense.

198    The consequences of the performance (or alleged non-performance) of the parties’ obligations under the 2000 Deed have been worked out in many of the subsequent proceedings brought by Mr Garrett. The interpleader proceedings transferred from the Victorian Supreme Court to the South Australian Registry of the Federal Court and which became SAD 5 of 2006 concerned payments under the 2000 Deed.

201    The subject matter of these proceedings — the 2000 Deed and its consequences — has been directly or indirectly the subject now of several proceedings brought by Mr Garrett. Since Mr Garrett seems incapable of exercising any self-discipline in relation to drawing a line under his wholly unsuccessful attempts to litigate his complaints about the 2000 Deed and its consequences, the Court must take action itself to prevent any further abuse of its processes by Mr Garrett.

36    Her Honour elaborated further at [202] to [205] and then concluded at [206]:

For those reasons in my opinion the proceedings should stand dismissed in their entirety as an abuse of the processes of this Court. As I have found at [135] and [107] above, Mr Garrett is also estopped from making some claims in this proceeding and lacks standing to make others.

37    Her Honour then proceeded to deal with the application under s 37AO and concluded that such an order was appropriate (see [207] to [218]). The foundation for that order was largely based upon the foundation used to justify the summary dismissal based upon abuse of process.

Whether decision attended with sufficient doubt

38    First, as to the principles that her Honour applied on the abuse of process question, there is no doubt that her Honour applied the correct principles. Neither the applicant’s proposed grounds of appeal or his submissions identified any specific error of principle. I did consider the question as to the independent operation for dismissal based upon the ground of abuse of process in circumstances where her Honour had not found an improper or collateral purpose, had not found any res judicata or issue estoppel and had not found that the applicant’s claims were devoid of legal and factual merit (apart from lack of standing). But I am satisfied that it was open to her Honour, as a matter of principle, to so conclude. To the extent that the applicant has raised any ground of appeal asserting otherwise, it fails. In any event, the applicant also lacked standing to pursue most of his causes of action in any event.

39    Second, a similar point can be made as to the principles that her Honour applied on the standing question. She applied the correct principles. I will elaborate on this aspect later given that the applicant developed a misconceived argument concerning various provisions of the Bankruptcy Act 1966 (Cth) (the Act). Likewise, her Honour applied the correct principles concerning the making of the s 37AO order.

40    Third, in relation to her Honour’s exercise of discretion, the applicant has not identified any arguable error of the type discussed in House v The King (1936) 55 CLR 499 at 504 and 505.

41    Fourth, the applicant’s submissions before me had the hallmark of a re-run of the arguments put to and rejected by her Honour, rather than seeking to establish any specific error made by her Honour.

42    Fifth, the applicant has sought to put before me other material that was not before her Honour, including relying upon other material that he put before me in separate proceedings (Garrett v Macks [2015] FCA 254 and Garrett v Duncan [2015] FCA 255). I have considered that material. It goes nowhere in establishing specific error. In any event, I very much doubt that it would be received under s 27 of the FCA if leave were granted. There is no good reason why most of that material was not placed before her Honour. Further, I also note her Honour’s observations at [18] to [20] of her reasons where, apparently, the applicant chose only to rely upon some of the exhibits and annexures to his affidavits before her. In any event I have now considered all of the material that the applicant would like taken into account on his present application. In my view it does not establish any error on the part of her Honour.

43    It is appropriate to now turn to the proposed grounds of appeal. But before going through each one (as set out in the schedule to these reasons), it is useful to first distil some general themes that the applicant emphasised before me in written and oral submissions.

(a)    Standing

44    The applicant has attacked her Honour’s findings in [104] to [107] as to his lack of standing, by reason of his bankruptcy in 2004, to make claims arising out of alleged breaches of cll 9.1, 9.2 and 17.3 of the 2000 Deed. The applicant has also sought to show that he was never in fact indebted to the ATO, and as a result, the ATO could not and should not have obtained a sequestration order against him relying on those invalid debts. That latter submission is misconceived. Even if the true facts and circumstances are as the applicant would have it, that would not counter the applicant’s lack of standing. Until the bankruptcy was set aside or annulled, he would still lack standing. Further, many of the facts contended for by the applicant may be relevant in any proceeding he might bring to set aside or annul his bankruptcy, but they have little relevance in the present context. Further, the applicant’s former trustee in bankruptcy and the petitioning creditor (ie the ATO) were not parties to the proceeding before her Honour. Accordingly, her Honour was entitled (and required) to proceed on the basis of the valid sequestration of the applicant’s estate, albeit that the applicant has now been discharged therefrom.

45    Further, and assuming the sequestration order to have been validly made, the applicant submits that he has standing to bring claims arising out of alleged breaches by the respondents of cll 9.2 and 17.3 of the 2000 Deed because of the operation of s 129AA of the Act.

46    Section 129AA of the Act provides:

129AA Time limit for realising property

(1)    This section applies only to:

(a)    property (other than cash) that was disclosed in the bankrupt’s statement of affairs; and

(b)    after acquired property (other than cash) that the bankrupt discloses in writing to the trustee within 14 days after the bankrupt becomes aware that the property devolved on, or was acquired by, the bankrupt.

In this subsection, cash includes amounts standing to the credit of a bank account or similar account.

(2)    If any such property is still vested in the trustee immediately before the revesting time, then it becomes vested in the bankrupt at the revesting time by force of this section.

(3)    Initially, the revesting time for property is:

(a)    for property disclosed in the statement of affairs—the beginning of the day that is the sixth anniversary of the day on which the bankrupt is discharged from the bankruptcy; and

(b)    for after acquired property that is disclosed before the bankrupt is discharged from the bankruptcy—the beginning of the day that is the sixth anniversary of the day on which the bankrupt is discharged; and

(c)    for after acquired property that is disclosed after the bankrupt is discharged from the bankruptcy—the beginning of the day that is the sixth anniversary of the day on which the bankrupt disclosed the property to the trustee.

(4)    If the trustee, before the current revesting time, gives the bankrupt a written notice (an extension notice) stating that a later revesting time applies to particular property, then that later time becomes the revesting time for that property.

(5)    There is no limit on the number of extension notices that the trustee may give (either generally or in relation to particular property).

(6)    The time specified in an extension notice must be either:

(a)    a specified time that is not more than 3 years after the current revesting time; or

(b)    a time that is reckoned by reference to a specified event (for example, the death of a life tenant), but is not more than 3 years after the happening of that event.

(7)    Any property that becomes vested in the bankrupt under this section thereupon ceases to be subject to section 127.

47    The applicant’s submissions do not justify the grant of leave to appeal on this aspect for at least the following reasons.

48    First, on the applicant’s own submissions, if s 129AA of the Act operated to revest in him rights in respect of breaches of cll 9.2 and 17.3 of the 2000 Deed, such revestment would not occur until 22 April 2015 (see [10.13.2.8] of the applicant’s submissions before me). Consequently, at the time the applicant commenced the proceeding before her Honour, at the time of the hearing before her on 5 August 2014 and at the time her Honour gave judgment in the proceeding on 21 November 2014, the relevant rights had not revested in the applicant. He did not then have standing. But now that we are beyond 22 April 2015, it is appropriate to address the following further arguments that dispose of the point other than on the temporal aspect.

49    Second, the applicant has not even now established that s 129AA of the Act applies to the breaches of cll 9.2 and 17.3 of the 2000 Deed. He has not established that those rights were disclosed in his statement of affairs or were after acquired property which were disclosed in writing to his trustee within 14 days after he became aware that the property devolved on, or was acquired by, him.

50    Third, the applicant did not rely on s 129AA in the hearing before her Honour or refer to s 129AA in the context of a potential later trigger. Further, and as a consequence, he did not adduce evidence at the hearing that those rights were relevantly disclosed in his statement of affairs or were after acquired property which were disclosed in writing to his trustee within 14 days after he became aware that the property devolved on, or was acquired by, him. The applicant only made a more general and untenable point to her Honour that as he had been discharged from his bankruptcy, every asset now re-vested in himself.

51    Fourth, even if the applicant’s standing arguments had merit, which they do not, the applicant still has to contend with her Honour’s dismissal based upon the abuse of process ground.

(b)    General

52    A number of the grounds of appeal asserted by the applicant appear to rest on the premise that her Honour ought not to have relied on many of the previous decisions in which he was involved and in which findings were made against him. It is said that her Honour was in error in not holding that the relevant decisions (see at [171] to [178], [200] and [201]) of each of Layton J, Anderson J and Gilmour J were variously “unsustainable and should be set aside” or that they had “fallen into error”.

53    It was not open to her Honour to disregard those decisions. She was entitled to rely on those decisions in reaching her conclusions based upon abuse of process and that the applicant was a vexatious litigant for the purposes of considering an order under s 37AO of the FCA. Further, even if the applicant was entitled to mount a collateral challenge to such decisions, the material before her Honour did not provide any basis for such a successful or even reasonably arguable challenge.

54    None of those grounds of appeal lead to the conclusion that her Honour’s decision is attended by sufficient doubt such as to warrant it being reconsidered.

(c)    Costs

55    The applicant submits that her Honour was in error in awarding costs in favour of the respondents. He asserts that the respondents' genuine steps statement was not filed in accordance with s 7 of the Civil Dispute Resolution Act 2011 (Cth) and that her Honour made the costs orders without reviewing the statement. The applicant has not identified how the respondents' genuine steps statement is said to be non-compliant. Further, the applicant did not take issue with the respondents' genuine steps statement at the hearing before her Honour. But in any event, given that the dismissal was based upon abuse of process, it is difficult to see how the costs order against the applicant ought not to have been made.

(d)    Specific Grounds

56    It is appropriate to now deal with each of the proposed grounds as set out in the schedule. Adopting the numbering used by the applicant for the proposed grounds of appeal, the following can be said.

57    Grounds 3, 8 and 10 are nebulous and disclose no identified specific error.

58    Grounds 4, 5 and 15 are stated to be “no evidence” grounds. They are not made out. There was more than ample evidence before her Honour to sustain each of her findings. Indeed her Honour was quite restrained in her summary of the applicant’s conduct in the multitudinous and repetitious proceedings that the applicant had initiated concerning the 2000 Deed and its aftermath.

59    Ground 6 is misconceived. The assertion is that the 2000 Deed should have been re-written by her Honour. The ground simply fails to address the basis upon which her Honour dismissed the proceeding. Ground 7 is similarly misconceived. Again it does not address the basis upon which her Honour dismissed the proceeding.

60    Ground 9 is also misconceived and fails to address the basis upon which her Honour dismissed the proceeding.

61    Ground 11 is misconceived. It seems to suggest that because her Honour did not justify dismissal on a res judicata or issue estoppel basis that her Honour could not dismiss the proceeding on the other bases used by her Honour. That is an untenable proposition.

62    Grounds 12 and 24 deal with her Honour’s finding on the question of standing. I have dealt with this earlier.

63    Ground 13 on costs goes nowhere. I have partly dealt with this earlier. Having dismissed the proceeding and made the s 37AO order, her Honour’s exercise of discretion and decision on costs was perhaps inevitable. In any event, no error in the exercise of her discretion has been demonstrated. Moreover, clearly her Honour had the requisite power to make the order she made.

64    Ground 16 is misconceived. Her Honour clearly had jurisdiction to make the orders that she made. Moreover, it was the applicant who invoked the Court’s jurisdiction in bringing the proceeding.

65    Ground 17 is untenable. There was more than an adequate basis for her Honour to dismiss the proceeding on the material before her.

66    Ground 18 seems to raise a procedural fairness question, but it is too nebulous on its face to be meaningful. Perhaps it relates to ground 19 and the suggestion that her Honour did not permit the applicant the opportunity to put forward such material that he wanted to put before her Honour. The assertion is spurious. Her Honour went out of her way to provide the applicant with the opportunity to put forward such material as he would have wished. Her reasons at [17] to [20] demonstrate as much. I have now been provided with a chronology that the applicant asserts he wanted to put before her Honour. It goes nowhere. Much of it is tendentious and not sourced to evidence. In any event, if it had been before her Honour it would in all likelihood have had the tendency to fortify her Honour’s abuse of process determination. The applicant also accepted before me that he had not applied for any adjournment before her Honour to put forward any further material.

67    Ground 20 goes nowhere. No arguable legal error has been identified let alone established. Ground 21 and its reference to Re Wakim; Ex Parte McNally (1999) 198 CLR 511 is misconceived. Her Honour had and exercised the necessary powers of dismissal and under s 37AO. She neither lacked any relevant power nor did she wrongly refrain from exercising a power that ought to have been exercised.

68    Ground 22 contains a miscellany of issues in relation to the exercise by her Honour of the power to dismiss the proceeding as an abuse of process. It is said that “it was open” to her Honour to do certain things. I disagree. In any event that does not establish any error in the exercise of discretion. It is said that “it was possible that…” another judge may have fallen into error. I disagree with the premise, but even if established it does not show that her Honour’s exercise of discretion miscarried. Then it is said that the trustees in bankruptcy had no standing in other proceedings. But that was not established. Generally, I have looked at each point in ground 22. No foundation for any of these points was established before her Honour.

69    Ground 23 seems to amount to an assertion that her Honour erred by not finding that Justice Lander erred. The ground lacks substance. First, it was not appropriate for her Honour to sit in judgment on Lander J’s decision. Moreover, there was no material before her Honour to establish any reasonable argument that his decision was somehow in error.

70    Ground 25 is misconceived. The making of the applications per se referred to in that ground do not provide any foundation to establish arguable error by her Honour. Indeed the further proliferation of such applications fortifies rather than diminishes the force of her Honour’s abuse of process determination.

71    Ground 26 is misconceived. It does not go to the summary dismissal question; query in any event whether her Honour had the relevant powers on some of the matters raised.

(e)    Further draft notice of appeal

72    Finally, I should note one other matter. On 11 March 2015, two days before the hearing, the applicant sought leave to rely on yet a further amended draft notice of appeal. I informed the applicant that I would address this further amended draft notice in my reasons. This further draft contained 51 grounds of appeal rather than just the 23 grounds that I have just dealt with. It is not productive to set out in detail in these reasons what the applicant has described as “grounds of appeal”. Many of these 51 grounds merely repeated one or more of the 23 grounds that I have just disposed of. However, the latest draft had several “new” grounds being grounds numbered 3, 4, 18 to 34 and 37 to 42. Each of these grounds are also hopeless. Grounds 3, 4, 21, 22, 23, 24, 27 to 32, 34, 37 to 39 and 41 do not identify specific error; they are diffuse and use “catch all” type language. Moreover, many of them seem wrongly cast into the framework of purporting to identify some sort of jurisdictional error made by her Honour. In relation to the other additional grounds, the following may be noted. Ground 18 is not made out on the evidence before her Honour. There is no basis for impugning the identified Deed. Ground 19 is nonsensical. Ground 20 asserts that the petitioning creditor’s debt did not exist. That was bare assertion. Moreover, that was not a matter for her Honour to investigate. In any event, it was not made out on the evidence before her Honour. Ground 25 is not made good on any material. The allegation of fraud was quite improper. Ground 26 is misconceived. Her Honour was not placed to make any finding on the annulment question. Ground 33 is misconceived. Moreover, it does not address the basis for her Honour’s abuse of process finding. Ground 40 is not made good. Her Honour considered all the material placed before her. Ground 42 is misconceived.

73    In my view, none of these additional grounds demonstrate any reasonably arguable error on the part of her Honour.

COnclusion

74    None of the proposed grounds of appeal identify any reasonably arguable error made by her Honour, let alone of a type that satisfies the first limb of Decor. None justify a grant of leave to appeal.

75    Further, none of the applicant’s criticisms as to the course of the proceedings before her Honour have any substance. Her Honour applied her customary fairness and dealt comprehensively with all arguments that were then raised before her. The applicant developed before me some new themes, but these points also lacked substance.

76    Finally, on the challenge to the s 37AO order, not only does the applicant fail on the first limb but the applicant has also failed to satisfy the second limb of Decor for the additional reason that I referred to at the outset.

77    The application for leave to appeal must be dismissed with costs.

Associate:

Dated:    17 June 2015

Schedule

Grounds of appeal

3.    Whether it was “reasonable” for her Honour to make the order as a matter of law in the making of the Judgment and delivery of Her Honour’s Reasons in failing to consider and make findings in respect to the factual and legal merits of the Applicant’s case against the Respondents.

4.    Her Honour erred as a matter of law, exercise of discretion and finding of fact on the ground that there is no evidence that this proceeding is vexatious within the meaning of s37AO of the Federal Court of Australia Act 1976 (Cth).

5.    If the Court had the Power Her Honour erred as a matter of law, exercise of discretion and finding of fact on the ground that there is no evidence that the subject material of these proceedings have been commenced persistently or habitually with the intention to harass or annoy.

6.    If the Court had the Power, Her Honour erred as a matter of law, exercise of discretion and finding of fact on the ground that the terms of the Deed of Settlement dated 26th May 2000 at clause 9.1 and 9.2 ought to be rewritten to properly reflect the intention of the parties.

7.    If the Court had the Power Her Honour erred as a matter of law, exercise of discretion and finding of fact on the ground that the Applicant is entitled to Judgment Debts pursuant to the Right of Indemnity expressed in clause 17.3 of the Deed of Settlement and make orders that the Third Respondent pay those amounts of judgment debt.

8.    If the Court had the Power, Her Honour was bound as a matter of law and interpretation of principals of Procedural Fairness and Natural Justice to consider all of the evidence adduced in the proceeding, as well as that to be adduced from Discovery, as a matter of law pursuant to the provisions of the Federal Court Act and the Federal Court Rules prior to making the Judgment.

9.    If the Court had the Power, Her Honour erred as a matter of law , exercise of discretion and finding of fact in failing to consider any evidence at all as to how the First Respondent came into possession of the Trademarks the subject of this proceeding and whether the terms of that agreement were the same as the terms offered under Clause 15 of the Deed.

10.    Her Honour erred as a matter of law, exercise of discretion and finding of fact in failing to consider any evidence at all as to the historical, equitable and contractual relationships between the Respondents.

11.     The Question arises if the Court had the Power to make the Findings Her Honour made and whether Her Honour fell into error in the exercise of that Power and discretion when Her Honour had made the finding that the Application should not have been dismissed on the grounds that the claims were not hopeless as provided for under r131, r1.32, r26.01 and that as Her Honor found that the issues of Res Judicata and Issue Estoppel did not serve the Respondents the proceeding should not be dismissed on any grounds.

12.     The Question arises if the Court had the Power to make the Findings Her Honour made and whether Her Honour fell into error in the exercise of that Power and discretion when Her Honour had made the finding that the Application should not have been dismissed on the grounds that the claims were not hopeless as provided for under r131, r1.32, r26.01 and that as Her Honour found that the issue of Anshun’s Estoppel applied to a limited extent in circumstances where the rights under clause 9 had been assigned to the Trustee of my Bankrupt Estate, and

a.    the standing in respect to clause 9 vested with that Trustee from the 10th March 2009, and

b.    The Applicant does not know and cannot say whether the issue has been agitated as between the Third Respondent and the Trustee, and

c.    As a consequence of the finalization of the administration of my estate the right to agitate that issue automatically revests in the Applicant on the Revesting Date by Force of s129AA of the Bankruptcy Act 1966 (Cth), and

d.    It was just and convenient for the Court to order and abridgment of time between the date of commencement of these proceedings and the Automatic Revesting Date in the absence of the Trustee.

13.    The Question arises whether the Court had the Power to make orders for Costs and whether Her Honour correctly exercised That Power and Discretion to make orders for costs in circumstances where the Respondents’ Genuine Steps Statement filed in the proceeding does not comply with s7 of the Civil Disputes Resolution Act 2011 (Cth) (“the CDRA”)

14.    The Question arises whether Her Honour correctly exercised the Court’s Discretion in making orders under s37AO of the Federal Court of Australia Act without making findings on the Merits as they evolved in changing circumstances from time to time and in particular post 7th October 2008.

15.    The Question also arises whether in the exercise of Power and the Court’s Discretion there was no evidence for Honour to make the Findings made.

16.    The Question arises whether the Court had jurisdiction in circumstances where the Respondents and the Two Trustees in Bankruptcy had obtained property by deception under s3A of the Crimes Act 1914 (Cth) and s137 of the Criminal Code 1995 (Cth) as a criminal matter.

17.    The further Ground of Appeal being that it was not Open to make the findings of Abuse of Process and Anshun’s Estoppel and had the law been properly applied then the Outcome would have been different.

18.    The Question arises whether Her Honour fell into error and was not procedurally fair and failed to apply the principals of Natural Justice in all of the circumstances.

19.    The Question arises whether Her Honour made findings in circumstances where Her Honour did not provide the Applicant to address the issue of timing and the Chronology of Events at the Hearing.

20.    The Question arises whether there is an absence of the applicable authorities in Her Honour’s Decision on the proper application of the Law.

21.    The Question arises whether Her Honour erred in the exercise of discretion to exercise all of the Powers of the Federal Court as referred to in Re Wakin available to ensure complete justice.

22.    The Question arises whether the Court had the Power to make the determination that the proceeding was an abuse of process at paragraph 146 of Her Honour’s Reasons and if the court did have the power did the court fall into error in the exercise of Her Honour’s Discretion to exercise that power on the grounds that;

a.    All proceedings referred to at paragraphs 146 to 187 were heard in circumstances referred to at paragraph 10.4,and

b.    It was open to Her Honour to form a view that in the event that Trespass was proved against the Trustees in Bankruptcy then the central conclusions of lack of standing by me flowing from the vexatious litigant judgments of Layton and Anderson were unsustainable and should be set aside, and

c.    It was open to Her Honour to exercise the Discretion of the Court and conclude that from the evidence before Her Honour was that as from the 7th October 2008 the Judgment Debt no longer existed on the RBA as a consequence of the corrections entered by the ATO that the Trustees in Bankruptcy should not have been appointed (as the Debt the subject of the Judgment Debt given in Default and the Bankruptcy Notice issued by the ATO did not exist) and that the Bankruptcies should be annulled, and

d.    That it was possible that His Honour Gilmore J may have fallen into error in Re Garrett as Trustee for the Garrett Family Trust in failing to exercise the Court’s discretion to note that the Judgment Debt No Longer existed as was evidenced before His Honour and that it was likely that the Trustees had Trespassed on the Bankrupt Estates in which circumstances then annulment of Bankruptcy ought to have followed, and

e.    That in the circumstances described above then the Trustees in Bankruptcy had No Standing in either SAD 5 of 2006 Or SAD 29 of 2005 and consequently the questions that was the subject of the reasons of Lander J in Tseng and Garrett v Macks would never have been ventilated in the absence of a Contradictor.

23.    Whether to Court had the Power Her Honour erred in the exercise of discretion and ought to have found that His Honour Lander J fell into error;

a.    Adjudicating an Appeal as the Full Court from his own reasons given in Tseng and by making the determination in Garrett v Macks as a matter of procedural fairness and natural justice, and

b.     In circumstances where His Honour failed to admit new evidence in the hearing of Garrett v Macks that did not exist at the time of the hearing that was the subject of Tseng as the Court Below being the corrections to the RBA on the 6th & 7th October 2008 and that His Honour was on Judicial Notice on by force of the Evidence Act 1995 (Cth) that the alleged debt that was the subject of the Appointment of the Trustees as the Respondents and Contradictors in SAD 5 of 2006 and the Plaintiffs in SAD 29 of 2005 did not exist, and

c.    Failed to exercise r131 and r1.32 of the Federal Court Rules and make an order setting aside the Judgment Debt by going behind the Judgment Debt, the Bankruptcy Notice and Creditors Petition brought by the Deputy Commissioner of Taxation in accordance with the findings of the High Court Wren V Mahony , and

d.    Failed to find an absence of contradictors in Garrett v Macks and Tseng,

and

e.    Failed as a matter of as a matter of procedural fairness and natural justice to an unrepresented party to admit that New Evidence.

24.    The Question arises whether Her Honour was on Judicial Notice pursuant to the provisions of the Evidence Act 1995 (Cth) in respect to s129AA of the Bankruptcy Act 1966 (Cth) (“s129AA”) relating to the Automatic Revesting of Property in the Bankrupt and in circumstances where Her Honour fell into error in the failure to exercise her discretion under r131 and r1.32 of the Federal Court Rules to engage the provisions of the Bankruptcy Act that;

a.    The evidence before Her Honour was that the respondent in VID 425/730 of 2014, Mr. Stephen Duncan (“Duncan”) as Trustee of the Estate SA 2112 of 2014;

i.    Was appointed in respect to a Judgment Debt that did not exist, and

ii.    Held a Statement to Affairs executed by my ex-wife that set out that she owed no money to any person, and

iii.    Had failed to go behind the Judgment Debt in accordance with the findings of the High Court in Wren v Mahony, and

iv.    Failed to conclude in his investigations that the alleged Debt was Prima Facie Evidence as appearing on the Running Balance Account of the Andrew Garrett Family Trust (“the AGFT”) that was a direct result of the conduct of the Third Respondent mistakenly issuing Recipient Generated Invoices (RGI’s) in respect to payments that were not a Taxable Supply for the purposes of the A New Tax System (Goods and Services) Tax Act 1999 (Cth) (“the GST Act”) and was an action that remains the subject of the indemnity at clause 17.3 of the Deed, and

v.    Failed to conclude in his investigations that the Third Respondent was not legally entitled to issue RGIs in accordance with “GSTR 2000_10 - Goods and services tax_ recipient created tax invoices”, and

vi.    Failed to conclude in his investigations that the issuing of those RGIs misled my staff into completing activity Statements that were not correct, and

vii.    had finalized his administration on the 7th February 2013 and that any assets of that Estate accruing from the date of finalization automatically revested in my ex-wife on the revesting dated being the 23rd December 2013 by force of s129AA of the Bankruptcy Act 1966 (Cth),

viii.    Was party to and vicariously liable for the conduct of Macks in his administration of my estate that mirrors that described in SASC 165 of 2012 and SASC 189 of 2014 evidenced in SAD 29 of 2005 and SAD 5 of 2006, and

ix.    Was party to a Deed of Settlement dated 10th March 2009 (“the SAD 5 Deed”) that was entered into on a basis that was NOT “Bona Fide” and should be set aside in accordance with the findings of this learned court in Kattern v Malhem, and

x.    Failed to make application under s153A of the Bankruptcy Act to annul my ex-wife’s Bankruptcy, and

xi.    Had paid himself and his lawyers 100% of the Estate’s share of the proceeds from the SAD 5 Deed in respect to Fees and Disbursements which action lacked proportionality, and

xii.    Trespassed on my ex-wife’s Estate from the date of His Appointment

b.    The evidence before Her Honour was that the Respondent in VID 304/732 of 2014, Mr. Peter Macks (“Macks”) as Trustee of the Estate SA 1590 of 2014;

i.    Was appointed in respect to a Judgment Debt that did not exist, and

ii.    Held a Statement to Affairs executed by me dated 16th November 2004 that set out that I owed no money to any person, and

iii.    Had failed to go behind the Judgment Debt in accordance with the findings of the High Court in Wren V Mahony

iv.    Failed to conclude in his investigations that the alleged Debt was Prima Facie Evidence as appearing on the Running Balance Account of the Andrew Garrett Family Trust (“the AGFT”) that was a direct result of the conduct of the Third Respondent mistakenly issuing RGIs in respect to payments that were not a Taxable Supply for the purposes of the GST Act and was an action that remains the subject of the indemnity at clause 17.3 of the Deed, and

v.     Failed to conclude in his investigations that the Third Respondent was not legally entitled to issue RGIs in accordance with “GSTR 2000_10 - Goods and services tax_ recipient created tax invoices”, and

vi.     Failed to conclude in his investigations that the issuing of those RGIs misled my staff into completing activity Statements that were not correct, and

vii.     Objected to my Discharge in Bankruptcy in accordance with operation of Law at the end of three years on the 25th September 2013 for an improper purpose which was an abuse of process, and

viii.     had finalized his administration on the 17th May 2011 and that any assets of that Estate accruing from the date of finalization until the revesting date and thereafter automatically revested in me by operation of s129AA from the 22nd April 2015 including any moneys outstanding under Clause 9.2 of the Deed,

ix.     Was party to and vicariously liable for the conduct of Duncan like that described in SASC 165 of 2012 and SASC 189 of 2014 that was in evidence in SAD 29 of 2005 and SAD 5 of 2006, and

x.     Was party to the SAD 5 Deed that was entered into on a basis that was NOT “Bona Fide” and should be set aside in accordance with the findings of this learned court in Kattern v Malhem, and

xi.     Failed to make application under s153A of the Bankruptcy Act to annul my ex-wife’s Bankruptcy, and

xii.     Had paid himself and his lawyers 100% of the Estate’s share of the proceeds from the SAD 5 Deed in respect to Fees and Disbursements which action lacked proportionality, and

xiii.     Trespassed on my Estate from the date of His Appointment

25.     The Question arises whether it was reasonable for Her Honour to make the findings made on the 21st November 2015 in all of the circumstances including in circumstances where Her Honour was “On Notice” of applications in VID 248 and VID 304 of 2014 to;

a.    Set aside the Default Judgment in accordance with the Findings of Wren v Mahony, and

b.    Set aside the Deed of Settlement dated 10 March 2009 in accordance with the findings of Katter v Melhem, and

c.    That the Sequestration order made against the Applicant was the Direct result of the actions of the Respondent

26.     The Question arises whether the Court had the Power and if it did have the Power did Her Honour correctly exercise the Court’s discretion in failing to bring a Contempt of Court motion in respect to the failure of the Third Respondent to comply with the Orders of the Supreme Court of Victoria in VICSC – 2014 – 7323 and the Federal Court of Australia in SAD 5 of 2006 to pay the moneys due under Clause 9.1(b) AND Clause 9.2 of the Deed into court.