FEDERAL COURT OF AUSTRALIA

Sammut v Lawrence [2025] FCA 1040

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AO(2)(a) of the Federal Court of Australia Act 1976 (Cth):

(a)    all current proceedings instituted by Mr Lawrence in this Court be stayed; and

(b)    Mr Lawrence be prohibited from continuing any current proceedings in this Court without making an application for leave to continue and obtaining leave.

2.    Pursuant to s 37AO(2)(b) of the Act, Mr Lawrence be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the Act and obtaining leave.

3.    Mr Lawrence’s two applications to set aside two bankruptcy notices issued on 30 April 2024 and 21 October 2024 be dismissed.

4.    Mr Lawrence pay Ms Sammut’s and Mr Ciantar’s costs in both proceedings NSD856 of 2024 and NSD1251 of 2024, as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    These proceedings have a very long and fraught history. Mr Lawrence is a licensed builder. Ten years ago, Ms Sammut and Mr Ciantar (the owners of a property in Forestville who are now in their 90s) entered into an agreement with Mr Lawrence in which he obtained an interest in their Forestville property in exchange for Mr Lawrence agreeing to fund and carry out work required to develop the land. By May 2017, the relationship between the parties had broken down and Ms Sammut and Mr Ciantar made demands of Mr Lawrence that he complete the outstanding works. On 2 September 2017, Ms Sammut and Mr Ciantar served on Mr Lawrence a notice of recission to terminate the contract between the parties. On 7 November 2017, Mr Lawrence commenced proceedings in the Supreme Court of New South Wales, seeking to extend the operation of a caveat he had earlier lodged in 2015, and a declaration that he held a one-third interest in the property. On 26 April 2019, Justice Henry dismissed Mr Lawrence’s proceeding: Lawrence v Ciantar [2019] NSWSC 464 (also referred to as Proceeding A).

2    Mr Lawrence thereafter made not one but two unsuccessful attempts before the NSW Court of Appeal to overturn the primary decision and proceeded to make a failed application for special leave. The tale did not end there. Mr Lawrence thereafter, in many proceedings, disputed the costs arising from both Henry J’s decision and the Court of Appeal proceedings which ultimately led to Ms McLean issuing five bankruptcy notices to Mr Lawrence. Two bankruptcy notices issued on 30 April 2024 (BN269292) (the fourth bankruptcy notice) and 21 October 2024 (BN274106) (the fifth bankruptcy notice), respectively, remain extant and for which Mr Lawrence’s applications to set them aside are disposed of in my decision. There remain numerous other extant adjudications and unpaid costs upon costs judgments.

3    One stark illustration of the Dickensian situation is the chronology of what followed Mr Lawrence’s failed proceedings before Henry J. The costs of that proceeding were assessed as being $251,863.34 with assessor costs of $4,900.00. Mr Lawrence’s review of that costs assessment, an appeal to the NSW Supreme Court of that review and various failed interlocutory applications resulted in a 9% reduction of the judgment debt ($29,324.47). However, by reason of Mr Lawrence’s failures and misconduct in those proceedings, Mr Lawrence was, despite his fractional success, the subject of an adverse costs order of $115,000, which is the subject of the fourth bankruptcy notice. Unfortunately, the accumulation of costs upon costs did not end there. A costs debt of a further $123,022.58 arises from further accumulated failed costs disputes emanating from the same source (which is the subject of the fifth bankruptcy notice). That is, multiple failed or misguided attempts by Mr Lawrence to overturn the first costs order and then the accumulation of subsequent costs orders have led to judgment debts double the initial debt.

4    These reasons concern an application by Ms Sammut and Mr Ciantar that I make a vexatious proceedings order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) which would require Mr Lawrence to be granted leave in order to institute or continue extant proceedings. In addition, Mr Lawrence has brought two applications seeking to extend time for compliance with the requirements of the two extant bankruptcy notices issued on 30 April 2024 and 21 October 2024 respectively, and to set aside the bankruptcy notices on either there being a relevant set-off and/or abuse (with respect to the fourth bankruptcy notice) or as an abuse of process (with respect to the fifth bankruptcy notice). Ms Sammut and Mr Ciantar rely upon 21 sets of proceedings or applications as evidence of Mr Lawrence’s vexation, having either (or both) instituted the proceedings vexatiously, or conducted the proceedings in a manner which is vexatious.

5    There are three primary issues which require resolution: First, whether Mr Lawrence has established that the fourth bankruptcy notice ought be set aside. Secondly, whether Mr Lawrence has established that the fifth bankruptcy notice ought be set aside. Thirdly, whether Mr Lawrence has frequently instituted or conducted vexatious proceedings and whether I should make vexatious proceeding orders.

6    For the reasons which follow, Mr Lawrence has failed to establish that the two bankruptcy notices should be set aside and Ms Sammut and Mr Ciantar have established that Mr Lawrence has frequently instituted or conducted vexatious proceedings and I should make vexatious proceedings orders.

The evidence

Mr Lawrence’s evidence

7    As best as the Court could decipher, Mr Lawrence relied upon the affidavits sworn by him on 1 November 2024, 19 February 2025, 21 February 2025 and 26 May 2025, in support of his application. However, the Court notes that no substantive submission was made in closing by Mr King with reference to any aspect of Mr Lawrence’s evidence.

8    Nonetheless, that evidence is telling in a number of respects. By Mr Lawrence’s affidavit of 1 November 2024 (filed in support of his application to set aside the fifth bankruptcy notice) but ultimately relied upon in each proceeding, Mr Lawrence claims solvency without providing sufficient evidence to prove the same. Mr Lawrence deposes, consistent with the representations made by him to Ms McLean (which were annexed to the affidavit) and by his (then) Counsel five days later at the case management hearing, on 6 November 2024, that he was withdrawing his application to set aside the fourth bankruptcy notice and was in the process of making financial arrangements to pay the amount under that notice. Curiously, in Mr Lawrence’s subsequent affidavit, of 19 February 2025, he deposes a different story, that he had only paid the amount payable in the fourth bankruptcy notice under duress and paid it on a conditional basis. For the reasons set out below, the allegation of duress is not made out.

9    These two aspects of Mr Lawrence’s evidence reveal that his evidence was itself inconsistent and also that he deposes to matters which cannot be accepted as they are not consistent with the contemporaneous circumstances, revealed from the transcript of the case management hearings before the Court.

10    Also telling and unfortunate, is that Mr Lawrence refers, in his 1 November 2024 affidavit, to the fact that “on three occasions, the Court found in my favour”. Whilst Mr Lawrence’s subjective belief is not relevant to the determination of whether proceedings are vexatious, one is able to discern his misguided view. For example, Mr Lawrence refers to the proceedings before Justice Schmidt in which he was successful in reducing the cost debt owed by approximately $29,000. But Mr Lawrence omits reference to the fact that he was required to pay the costs generated from that fight (being in excess of $115,000) (as identified in Lawrence v Sammut (No 5) [2023] NSWSC 1476) caused by the manner in which he conducted himself in the proceedings. Further, Mr Lawrence suggests that he was successful in a proceeding before Justice Goodman, when the matter was resolved by consent. It is unclear how this could be categorised as a success.

11    By his affidavit of 26 May 2025, tendered after Ms McLean’s oral evidence, Mr Lawrence makes a number of allegations as to communications he said he had with Ms McLean prior to and after the issuing of the second bankruptcy notice on 29 October 2021 (BN254572) and as to other alleged events around the first, fourth and fifth bankruptcy notices. For the reasons given below, I do not accept that Mr Lawrence’s subjective intentions are relevant to the determination of whether proceedings are vexatious. Further, as reasoned below, I do not accept that Ms McLean made any threat to Mr Lawrence.

12    Mr King referred to two other affidavits, forming part of Ms Sammut’s and Mr Ciantar’s court book, as being purportedly relied upon but made no submissions as to their relevance to any fact in issue in these proceedings.

13    Mr Lawrence was not required for cross-examination, other than in relation to oral evidence he gave in support of a notice to produce and the fact of having filed and served an affidavit sworn 5 May 2025 that was rejected for tender at hearing.

14    Mr Lawrence tendered two affidavits of Mr David Clyde Gordon sworn on 27 February 2023, and on 13 March 2023. Those affidavits were admitted not as to the truth of the assertions but rather as to what Mr Lawrence says he was told and relied upon in those proceedings. However, again, ultimately, no substantive submission was made by Mr Lawrence with respect to them in his closing submissions.

Ms Sammut and Mr Ciantar’s evidence

15    Ms Sammut and Mr Ciantar relied upon a number of affidavits sworn by their solicitor, Ms McLean on 1 July 2024, 26 November 2024, 28 November 2024 and 8 May 2025.

16    Ms McLean was cross-examined on 23 and 27 May 2025. In closing submissions, Mr King, on behalf of Mr Lawrence, submitted that I should not accept a number of aspects of Ms McLean’s evidence. It was submitted that her evidence was inconsistent, she did not accept specific propositions and was not prepared to answer simple and straightforward questions. Mr King submitted that, by virtue of certain aspects of the cross-examination, in relation to the circumstances surrounding the issuing of the second bankruptcy notice, somehow Ms McLean adopted an impermissible system to seek to “ramp up” and “force” Mr Lawrence to pay the outstanding debt.

17    Ms McLean relied upon five affidavits in this proceeding. The Exhibit “KMC-1” to the first affidavit comprised six folders of material. Ms McLean recounted matters from 2014 to 2025. It is my observation from my review of all of the evidence and from Ms McLean that she is a hard-working solicitor. It appeared that she worked extremely hard and in such a way as to go down every rabbit hole in preparing for matters. Much was made by Mr Lawrence that one costs assessor, Mr Bartos, determined, in one adjudication report (Bartos report), that on several occasions the length of time claimed in one day was excessive and in certain respects billed costs outside the scope of the costs order. However, I note that this was the only occasion where Mr Lawrence was successful in any of his claims disputing costs (and which was not subsequently overturned). I do not accept that any of the allegations made against Ms McLean, said to befall upon her clients, can be made out. I do not accept that she was anything other than a credible, hardworking solicitor. As will be apparent from the evidence with respect to the vexatious proceedings claim, Ms McLean had, by 2021, a long history of dealings with Mr Lawrence that had worn her down and led to her not accepting that Mr Lawrence would do what he said he would do.

18    I do not accept Mr Lawrence has made out any of the alleged inconsistencies in her evidence. I do not accept that, when Ms McLean was not able to answer questions and asked to be shown a document, anything was revealed other than, by virtue of the very long history of dealings with Mr Lawrence, and the long factual backdrop, that it would not be possible for her to remember many of the events being put to her. Further, the documentary trail did not establish many of the factual assumptions Mr King put to Ms McLean. In addition, Mr King’s questioning was often imprecise, where Mr King did not have to hand any of the underlying documents his client purportedly relied upon and where Mr King could not identify in the Court Book any of the references to the documents he was purportedly relying upon (where his client had been provided with both a hard copy and a soft copy of the Court Book). It was my observation that it was justifiable in the circumstances for Ms McLean to be cautious and ask for clarification or to review documents before responding to many of the questions asked.

Mr Lawrence’s applications to set aside two bankruptcy notices

19    I will deal with both of Mr Lawrence’s applications to set aside the two bankruptcy notices first because those proceedings also form part of Ms Sammut’s and Mr Ciantar’s application for vexatious proceedings orders. However, it is important that both of Mr Lawrence’s applications are considered within the very large factual context which precede them and therefore the lengthy historical context which underpins the vexatious proceedings application.

Application to set aside the fourth bankruptcy notice issued 30 April 2024

20    At the case management hearing of 4 November 2024, the then Counsel for Mr Lawrence indicated that he proposed to withdraw his application to set aside the bankruptcy notice issued on 30 April 2024, and to pay the amount demanded. Mr Lawrence also indicated that he proposed to file a further application to set aside the fifth bankruptcy notice issued on 21 October 2024. On 6 November 2024, I then made orders extending time for Mr Lawrence’s compliance with the bankruptcy notice issued 30 April 2024 until 18 November 2024 (in order that he may pay the amount owed) and that Mr Lawrence by 8 November 2024 file any application to set aside the bankruptcy notice issued on 21 October 2024.

21    Mr Lawrence had then made payment of the bankruptcy notice issued 30 April 2024 into the trust account of the legal representatives of Ms Sammut and Mr Ciantar on 18 November 2024. At the case management hearing of 19 November 2024, Mr Lawrence indicated that payment was conditional, although the conditions were unclear, noting his submission that “I’m requiring for the other side to provide me what they’re claiming for” and asking that the money not be released from the trust account. Mr Lawrence’s application as at 19 November 2024 then remained extant, and I asked the parties to be prepared to make submissions at final hearing. Regardless, Mr Lawrence thereafter changed his mind and continued to pursue his application.

22    Mr Lawrence’s application, filed in the FCFCOA on 14 May 2024 (and subsequently transferred to this Court), comprises over 28 paragraphs and numbers six pages in length, but, in short, by the first paragraph seeks relief in the form of setting aside the bankruptcy notice issued 30 April 2024. I did not allow Mr Lawrence’s amended application, which sought to amend his claim to include an allegation of an abuse of process on the part of Ms Sammut and Mr Ciantar. However, it was later submitted on the same day of my ruling, that Mr Lawrence’s unamended application contained at [26] an allegation of an abuse of process. Accordingly, I will proceed on the footing that Mr Lawrence seeks to set aside the fourth bankruptcy notice on the basis that it is an abuse of process or should be set aside on the basis of a counter-claim, set-off or cross demand equal to, or exceeding the amount, owed under s 40(1)(g) of the Bankruptcy Act 1966 (Cth).

Application to set aside the fifth bankruptcy notice issued 21 October 2024

23    With respect to Mr Lawrence’s application to set aside the fifth bankruptcy notice issued on 21 October 2024, I had made orders that the application was to be filed by 8 November 2024, and in any event, the bankruptcy notice specified within 21 days of service on the debtor as the time for compliance, being 12 November 2024, 21 days after service on 22 October 2024: Bankruptcy Act s 41(2A)(a). Mr Lawrence’s application was not accepted for filing by the NSW Federal Court Registry until 18 November 2024. On 8 November 2024 at 2.00pm, Mr Lawrence emailed the Registry attaching an application dated 8 November 2024 seeking, among other relief, an extension of time to file the application and to set aside the bankruptcy notice issued 21 October 2024. On the same day, Registry replied to Mr Lawrence indicating that his application was deficient in not including an affidavit containing the bankruptcy notice and judgment debt. On 10 November 2024, Mr Lawrence then sent to Registry two affidavits, of which one contained the bankruptcy notice. On 14 November 2024, Mr Lawrence again wrote to Registry asking to be advised of the fee in respect of his application. On 18 November 2024, Registry provided Mr Lawrence with the fee, which Mr Lawrence paid. The application was then accepted for filing on that day.

24    Mr Lawrence claims that the fifth bankruptcy notice should be set aside on the basis that it is an abuse. Mr Lawrence’s arguments regarding abuse, with respect to each of the bankruptcy notices, overlap. I will commence by considering the first basis for setting aside the fourth bankruptcy notice, namely set-off, before dealing with the abuse claims with respect to both notices.

Organising principles regarding set-off

25    The organising principles concerning applications to set aside bankruptcy notices under s 40(1)(g) of the Bankruptcy Act are well established. Section 40(1)(g) is given in the following terms:

40  Acts of bankruptcy

(1) A debtor commits an act of bankruptcy in each of the following cases:

…

(g)     if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i)     where the notice was served in Australia—within the time fixed for compliance with the notice; or

(ii)     where the notice was served elsewhere—within the time specified by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

26    As to the existence of a “counter-claim, set-off or cross demand”, the Court conducts an inquiry into whether there exists a “reasonably arguable counterclaim”: Mahommed v Cox [2025] FCA 469 at [22] per Markovic J. It is not necessary that the Court conduct a preliminary trial in respect of the cross-claim, but there should be evidence adduced that satisfies the Court that the debtor has a claim deserving to be finally determined: Glew v Harrowell [2003] FCA 373 per Lindgren J at [11]. It is necessary that the debtor applicant has a prima facie case and that they are advancing a genuine claim: at [9]–[10]. It is a question of weighing up the legal and factual merit of the claim to determine whether the justice of the case demands that the bankruptcy notice be set aside and the claim is ventilated: Guss v Johnstone [2000] HCA 26; 74 ALJR 884 at [39]–[40], citing with approval Latham CJ in Vogwell v Vogwell (1939) 11 ABC 83 at 85. As observed by Lindgren J in Glew v Harrowell at [9]–[10] as follows:

9    There are authorities suggesting that [the debtor applicants] must satisfy me of the following interrelated and sometimes overlapping matters:

•    that they have a ‘prima facie case’, even if they do not adduce evidence which would be admissible on a final hearing making out that case (Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 346 (‘Ebert’) at 350; Re Brink; Ex parte Commercial Banking Company of Sydney Ltd (1980) 44 FLR 135 (‘Brink’) at 141; Gomez v State Bank of NSW Ltd [2002] FCAFC 101 at [17], [18]);

•    that they have ‘a fair chance of success’ or are ‘fairly entitled to litigate’ the claim: Brink at 141; Re Gould; Gould v Day [1999] FCA 1650 at [27], [28]; Re Capsanis; Capsanis v The Owners - Strata Plan 11727 [2000] FCA 1262 at [11]); and

•    that they are advancing a ‘genuine’ or ‘bona fide’ claim (Re Capsanis; Capsanis v The Owners - Strata Plan 11727 [2000] FCA 1262 at [11]).

It may be that the first and second formulations are intended to cover the same ground. In Brink Lockhart J treated (at 141) the reference to a ‘prima facie case’ in Ebert as a reference to ‘a fair chance of success’.

10    In Brink Lockhart J said (at 141) that the Court is not required to ‘undertake a preliminary trial of the counter-claim, set-off or cross demand’. But, clearly, the application of the criteria above requires the Court to make some kind of preliminary assessment, though obviously not to determine the counter-claim, set-off or cross demand finally … ”

27    However, as Lindgren J observed at [11]:

11    Plainly, in order to ‘satisfy’ the Court for the purposes of par 40(1)(g), the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the Court should be satisfied that the debtor has a claim deserving to be finally determined.

Mr Lawrence’s claim of counter-claim, set-off or cross demand with respect to the fourth bankruptcy notice

28    Mr Lawrence made the submission that the fourth bankruptcy notice should be set aside on the basis of a set-off within the meaning of s 40(1)(g) of the Bankruptcy Act on three bases.

29    The first set-off was said to arise of the findings of Manousaridis J in the Federal Circuit Court in Proceeding 7: Lawrence v Sammut [2021] FCCA 1929. It was said that his Honour allowed a debt “at law on a quantum meruit or in equity on a constructive trust basis to accrue in Mr Lawrence’s favour in respect of services he had provided in respect of the development project to the value of some [$]207,000”. The basis of this submission arose out of [73] of the decision, extracted as follows:

73    The first, and most significant, difficulty is that I have found that the material on which Mr Lawrence relies for proving the work he performed as project manager, and the value of the work, is incapable of showing there is any substance to the claim that Mr Lawrence performed the work or that the work has the value Mr Lawrence claims it does. Stated another way, there is no material before me that is reasonably capable of sufficiently disclosing the work Mr Lawrence claims he performed, or the value of that work. Second, although there is material that identifies payments Mr Lawrence made in connection with the Property, and documents that support the making of those payments, the payments do not exceed the amount the bankruptcy notice demands, namely, $262,275.71. I identified in paragraph 48 of these reasons the amounts Mr Lawrence claims he spent, and the documents that could reasonably be taken to support the payment of amounts Mr Lawrence claimed he made. I recorded in bold the payments I found those documents could reasonably be taken to show were made. Those amounts total only $207,146.33. Even with the one year's worth of interest at 9% Mr Lawrence claims ($18,643.17), the total value of his claims would be $225,789.50.

(Emphasis omitted.)

30    Mr King submitted that, Judge Manousaridis did find the existence of a set-off in the amount of $207,146.33, but that did not exceed the amount owing under the notice (his Honour was considering), such that Mr Lawrence could not have been successful. Mr King submitted that the fact that Mr Lawrence was unsuccessful in this respect “does not mean that the issue goes away”. Mr King made no submission identifying any evidence filed in the proceedings as being supportive of this claim save for the findings of fact made by Judge Manousaridis.

31    The second alleged source of set-off was said to be the “[$]53,000” being the “Bartos referee amount”. The Court was unable to decipher what this amount was referrable to with respect to the quantum of costs owed arising out of Proceeding A. The judgment debt arising out of Proceeding A under the first bankruptcy notice issued on 18 February 2021 (BN251796) was in the amount of $262,275.71. Acting Justice Schmidt’s decision resulted in the adoption of the Bartos report as one part of the award of costs, reducing the overall costs owed by Mr Lawrence to $232,951.24 and therefore a total reduction of $29,324.47: Lawrence v Sammut (No 4) [2022] NSWSC 1033 (noting, as it were, her Honour’s findings of misconduct against Mr Lawrence, resulting in further adverse costs orders amounting to $115,000, which form the basis of the fourth bankruptcy notice). No submission was made as to the $29,324.47 having already been taken into account in relation to the fourth bankruptcy notice.

32    The third alleged source of set-off was said to be a deed of loan dated 26 March 2015 between Ms Sammut and Mr Ciantar, and Mr Lawrence. The deed contemplated Mr Lawrence advancing the sum of $435,000.00 under the agreement for the purpose of performing subdivision works upon the property. Mr King referred the Court to cross-examination in Proceeding A, where Mr Lawrence had conceded he had not handed over the $435,000 meant to be advanced under that loan. The submission was made that, despite not having advanced the sum, Mr Lawrence then proceeded on a misapprehension that providing services to that value was sufficient. A completely unclear submission was put that, somehow, Mr Lawrence doing work on the property was referrable to the deed of loan, and therefore a set-off arises. There was no identification, with any specificity, of the value of that work.

33    The deed of loan contained at Recital A the following:

A.    The Lender has at the request of the Borrowers agreed to advance the Principal Sum for the purpose of performance of works upon the property for the benefit of the Borrowers.

34    Clause 1.1 of the deed of loan defined “Principal Sum” as:

1.1    “Principal Sum” means the amount of Four Hundred and Thirty Five Thousand dollars ($435,000.00) to be advanced by the Lender to the Borrowers for the purposes of performing subdivision works upon the property.

35    Clause 3.2 of the deed of loan also provided that:

3.2    The Borrowers further covenant with the Lender that, notwithstanding the date for repayment specified in clause 3.1 may not yet have occurred, the Principal Sum and all other moneys owing pursuant to any term or provision of this Deed will become due and repayable immediately in the event that the Lender serves written notice upon the Borrowers of the occurrence by the Borrowers of an Event of Default

36    Against this, Mr Spencer in substance raised an issue of procedural unfairness: That throughout the life of the proceedings, Mr Lawrence has continually failed to properly identify his claims for set-off and accordingly, has placed Ms Sammut and Mr Ciantar in the invidious position of having limited opportunity to ventilate a proper analysis of the legal barriers to Mr Lawrence’s claims, including estoppel of the kind in issue in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, abuse, quantification of the claim, and defences that would have been available. There is force in Mr Spencer’s submission: Mr Lawrence’s opening written submission (after Mr King was retained), filed in January 2025, purportedly in support of this claim, comprised four generalised paragraphs which provided no basis at all for the claim in set-off. Repeated requests were made during the hearing that Mr King articulate the basis for the claim and it was not given until closing.

37    Mr Spencer also made the submission that there were findings in Proceeding A that Mr Lawrence had not advanced any of the funds under the deed of loan, and that, any submission made by Mr King to the effect that unspecified work undertaken by Mr Lawrence with respect to the proposed development was somehow referrable to the deed of loan, could not sound in a claim for set-off, as it was completely contrary to the plain construction of the deed as a loan agreement which Mr Lawrence did not perform.

38    I do not accept, for the following reasons, that any of the alleged counterclaims, considered afresh, constitute a counterclaim, set-off or cross demand for the purpose of s 40(1)(g) of the Bankruptcy Act. Mr Lawrence’s submissions at hearing were largely incoherent and indecipherable.

39    With respect to the first “source of set-off”, to make good his claim, Mr Lawrence places reliance on findings of fact in earlier decisions between the parties, including, at [73] of the reasons of Manousaridis J in Proceeding 7 as evidence of set-off. It is apparent that Mr Lawrence seeks to rely on a purported finding of fact in another Australian proceeding which is inadmissible under s 91 of the Evidence Act 1995 (Cth). Mr Lawrence made no submission, seeking to rely on or foreshadow any other evidence, as to how he had a prima facie case, or a fair chance of success or was advancing a genuine or bona fide claim.

40    Assuming that the admissibility issue arising from s 91 could be overcome, there was no articulation of how the bare identification by Manousaridis J of amounts that Mr Lawrence claims he spent, and the documents that could reasonably be taken to support the payment of amounts Mr Lawrence claimed he made can be advanced as a set-off. That is, there was no specific articulation of how those amounts were referrable to some claim for money that Ms Sammut and Mr Ciantar owe such that it cannot be taken without more as a set-off.

41    As observed by Hely J in Capsanis, in the matter of Capsanis v Owners – Strata Plan 11727 [2000] FCA 1262 at [11], the mere assertion of the existence of a counter-claim, set-off or cross demand is insufficient. The evidence must contain sufficient details to show the debtor is bona fide, that is that the person has a “prima facie case” (even if they do not adduce evidence which would be admissible in a final hearing making out that case), a “fair chance of success”, or are “fairly entitled to litigate” the claim and that they are advancing a “genuine” or “boda fide” claim. It does not require the undertaking of a preliminary trial of the counter-claim, set-off or cross demand nor proof at the level required at a final hearing, but requires the weighing up of the legal and factual merit of the claims relied upon by the debtor: Guss v Johnstone at [40].

42    Further, I accept Mr Spencer’s submission that Manousaridis J was not considering Mr Lawrence’s evidence and in [73] undertaking an assessment as to whether Mr Lawrence was actually entitled to the $207,146.33. The Judge prefaces his hypothetical, mathematical account from a review of documents, by stating that “there is no material before me that is reasonably capable of sufficiently disclosing the work Mr Lawrence claims he performed, or the value of that work”. As a consequence, all that can be taken of this is that the Judge reviewed documents and came to a mathematical conclusion. Notably, Manousaridis J also observed correctly the likelihood of estoppel arising and preventing the alleged set-off. In addition, no cogent submission was advanced by Mr Lawrence as to how any sum referred to by Manousaridis J related to work done on the building project completed in 2017 nor how such a claim would not be defeated by operation of s 14 of the Limitation Act 1969 (NSW).

43    In addition, for the reasons given below with respect to the third basis, the claim would be tantamount to an abuse because it re-agitates a cause of action proposed and abandoned previously.

44    With respect to the second “source of set-off”, any amount of set-off arising from the adoption of the Bartos report by Schmidt AJ was already taken into account in the fourth bankruptcy notice. The fourth notice makes a specific allowance for the difference between the amount found that grounded the bankruptcy notice that was served and which Mr Lawrence paid and the amount that was ultimately allowed after the Bartos report.

45    With respect to the third “source of set-off”, no cogent submission was made as to how unspecified “work done” by Mr Lawrence (or others), without reference to evidence, without reference to its value, might somehow be attributed to value advanced under a deed of loan, which contemplated Mr Lawrence advancing money, but for which he admitted he did not. There was no money advanced pursuant to the deed of loan. Further, there is no basis on which Mr Lawrence can litigate a claim under the deed of loan, because there are findings that prevent him from doing so, and it would be an abuse for him to do it. In the primary proceedings before Henry J, Lawrence v Ciantar at [218]–[219] her Honour found:

218     Mr Lawrence also accepted that he has not advanced any of the funds said to support the mortgage in his favour (being the $435,000 referred to in the deed of loan).

219    It follows from this and my other findings that Mr Lawrence is not entitled to enforce the transfer of the one-third interest in the Property or any interest by way of the mortgage or deed of loan in respect of the Property. It also follows that the notice of rescission has legal effect and Mr Lawrence is not entitled to specific performance of the contract or to seek damages, and his caveat over the Property should lapse.

46    No cogent submission was made as to how Mr Lawrence can now bring a quantum meruit or any other claim in relation to work that finished in 2016. If there is a set-off, it is not found in any work that was done on this property that came to an end in, at the very latest, early 2017.

47    Mr King’s reliance on the decision of Wren v Mahony [1972] HCA 5; 126 CLR 212 is of no avail. The mere fact that a deed does not require consideration does not of itself establish the existence of a claim sufficient to comprise a counterclaim, set-off or cross demand for the purpose of s 40(1)(g) arising from the deed.

48    Another basis as to why the first and third claims of set-off must be rejected is that they would be tantamount to an abuse given Mr Lawrence had already sought to agitate them in Proceeding A in a proposed further amended summons and then later abandoned. In the proceedings before Henry J, Mr Lawrence sought to rely upon a further amended summons which included at prayer 10A: “In the alternative, an order that the Defendants account to the Plaintiff for the Plaintiff’s contributions to the development of the Property”. Mr Lawrence’s opening submissions in Proceeding A contained the following detail as to the proposed amendment to the relief:

17    The proposed Second Further Amended Summons seeks, in the alternative, a declaration that the Defendants hold the Property on a constructive trust for the Plaintiff to the extent of the Plaintiff's contributions to the development of the Property.

…

20    The proposed amendment would not substantially add to the length or complexity of the hearing. The nature and extent of the Plaintiff's contributions to the Property are already in issue between the parties given the other prayers for relief sought.

21    The Defendants will not suffer undue prejudice as a result of the late amendment. The Defendants have the opportunity to cross-examine the Plaintiff, and to examine their own witnesses, as to the relief sought and the evidence relied upon in support of that prayer.

49    Thereafter, the transcript of the proceeding on 4 February 2019, reveals that Mr Lawrence was proposing to advance a claim for contributions to the development (Mr Kelly was acting for Mr Lawrence):

KELLY:     So long as we’re not at cross purposes, your Honour, all we’re seeking is an account in aid of specific performance. I’m not sure if our position hasn’t been misunderstood.

PEDEN:     Do you ask for the amendment or not?

KELLY:     I do.

PEDEN:     Then I oppose it. Your Honour, in the way that the amendment is framed it is not seeking an account for the plaintiff’s contribution of a set amount. Instead it says, contributions to the development. It is not particularised, and therefore we say we're taken by surprise because we don't know what they're going to be asking for. If your Honour has my instructing solicitor's affidavit—

50    Ultimately, however Mr Lawrence abandoned the amendment.

51    It can be seen that Mr Lawrence was making an argument that he wanted an account of the contributions that he had made to the development. Ms Sammut and Mr Ciantar submitted that the deed of loan dated 26 March 2015, was before the Court in Proceeding A. It was submitted that the deed of loan contemplated money being advanced to Ms Sammut and Mr Ciantar directly. By clause 2 of the deed:

2 2.1     The Lender agrees to advance and the Borrowers agree to take the advance of the Principal Sum, which Principal Sum the parties agree is to be used to pay for subdivision works to be carried out on the Property.

52    Mr Lawrence did not submit, before me, that he had advanced the proposed principle sum of $435,000 as contemplated by the deed nor was there any actual or foreshadowed evidence to this effect. Indeed, as referred to above, Mr Lawrence would be precluded from so doing by reason of his admission, before Henry J in Proceeding A, that he had not advanced any of the funds said to support the mortgage in his favour (being the $435,000) referred to in the deed of loan and was not entitled to a one-third interest in the property or any interest by way of the mortgage or deed of loan in respect of the property: Lawrence v Ciantar at [218]–[219].

Mr Lawrence’s claims of abuse with respect to the fourth and fifth bankruptcy notices

53    Mr Lawrence claimed that both the fourth and fifth bankruptcy notices should be set aside on the basis that they were tantamount to an abuse of process, by putting pressure on Mr Lawrence to pay the debts and to attempt to grab, by the Court’s timetable, an act of bankruptcy, by a purported slip in the Court’s orders which had only extended the time for compliance until the day before the next return.

Organising principles concerning setting aside bankruptcy notices on the basis of abuse

54    The relevant principles may be distilled in the following way:

(a)    Mr Lawrence bears the onus of establishing the purpose of the issue of the bankruptcy notices and whether they were improper: Cavoli v Etl [2007] FCA 1191 at [17]; Royal v Nazloomian, in the matter of Royal [2019] FCA 555 at [31]); Alhalek v Quintiliani trading as Kells Lawyers [2020] FCA 1272 at [67];

(b)    The allegation of an abuse of process is a serious one which cannot be made without a sufficient factual foundation and the party alleging it bears a “heavy onus” of establishing its existence: Nobarani v Mariconte [2021] FCAFC 96 at [32] citing Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529; Prentice v Fewin Pty Ltd, in the matter of Prentice [2017] FCA 490 at [48]–[49]; Royal v Nazloomian at [37];

(c)    Establishing an abuse of process does not require direct evidence of an ulterior purpose and may be established by way of inference drawn from objective facts: Royal v Nazloomian at [37] (Stewart J).

(d)    The time at which to ascertain whether a bankruptcy notice is an abuse of process is the time when it is issued: Nobarani at [33], citing Killoran v Duncan, in the matter of Killoran [1999] FCA 1574 at [13] and Royal v Nazloomian at [30].

(e)    There are no rigid rules nor fixed categories as to the circumstances in which a notice may be set aside for abuse: Clyne v Deputy Commissioner of Taxation (NSW) (No 4) [1982] FCA 166; 42 ALR 703 at 708 (Lockhart J). However, as McHugh J observed in Rogers v R [1994] HCA 42; 181 CLR 251 at 286, they usually fall into one of three categories:

(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.

(f)    Circumstances where a notice has been set aside as an abuse of process have been recognised to include where the notice was not in the terms of judgment and was calculated to perplex the debtor, where the notice was issued for the whole of a judgment debt which had already been partly paid: Re Sterling: Ex parte Esanda Ltd (1980) 44 FLR 125 at 129. In addition, where the notice was issued as part of a systematic abuse of process, founded on fraud: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449.

(g)    The issuing of a bankruptcy notice for the purpose of having the debt paid will not be improper, so long as the creditor intends to invoke the Court’s bankruptcy jurisdiction if it is not: Nobarani at [42]–[43]. As to whether a failure to make a prior demand or to seek to enforce the debit by some other means may contribute to a finding that a bankruptcy notice was issued without any intention of invoking the bankruptcy notice, will not be sufficient as of themselves. It is not a precondition to the issue of a bankruptcy notice that other means of enforcing the debt be exhausted.

(h)    The mere fact that the debtor is solvent is not a ground for the Court to set aside a bankruptcy notice: Re Athans; Ex parte Athans (1991) 29 FCR 302 at 310 per Hill J. As observed by Hespe J in Melestsis v Yeo [2024] FCA 925 at [13]:

Solvency is not a ground for setting aside a bankruptcy notice: Re Athans; Ex parte Athans (1991) 29 FCR 302 at 310 (Hill J). A solvent debtor may commit an act of bankruptcy by failing to comply with a bankruptcy notice served upon him. Solvency becomes relevant when a petition based upon the act of bankruptcy is presented: Bryant v Commonwealth Bank of Australia (1994) 217 ALR 251 at 254. However, knowledge of the debtor's solvency by the creditor at the time the bankruptcy notice is issued may be capable of supporting an inference that the Court's procedures are invoked for an illegitimate purpose: see for example Maxwell-Smith v S & E Hall Pty Ltd (2006) 233 ALR 81 at [49] (Jacobson J).

55    As is evident from the short distillation of principle above, the Full Court in Nobarani gave consideration to one basis upon which Mr Lawrence sought to rely upon as giving rise to abuse, namely, the issuing of the bankruptcy notice (without prior demand or use of other processes) in order to have the debt paid. It is worthwhile therefore setting out in full the Full Court’s instructive observations in this regard, at [41]–[44]:

41     It may have been that the submission was intended to convey the proposition that Mr Nobarani had issued the Bankruptcy Notice to use the threat of the disruption associated with bankruptcy proceedings or the threat of their consequences to pressure Ms Mariconte into paying the debt. In relation to this, Ms Hall for Mr Nobarani submitted that the issuing of a bankruptcy notice to secure the payment of a debt is legitimate if the creditor intends to pursue the bankruptcy process if the debt is not paid. In support, she relied upon the decision of Heerey J in Cavoli v Etl. There it had been found by a Federal Magistrate that the issuing of a bankruptcy notice was an abuse of process because it had been issued solely for the purpose of securing the payment of a debt. That conclusion had been supported by the fact that the creditor had not taken other appropriate action to recover the debt nor even made demand for its payment. The debt on which the creditor had based the notice had been assigned from a third party. The debtor claimed that the notice had been issued by the creditor who knew that he was solvent, and that it had only been issued to cause him stress and vexation and, further, to use the processes of the court as a debt collection mechanism where there were alternative avenues by which recovery might be made. Heerey J found that there was no evidence to support a finding that the sole purpose for the issuing of the bankruptcy notice was securing payment of the debt. The magistrate’s rejection of the creditor’s evidence to the contrary could not found a positive conclusion as to the existence of some other purpose: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121 at 143 [53]; King v Collins [2007] NSWCA 122 at [42]. As to the submission that an improper purpose could be discerned from the creditor’s failure to make an earlier demand, his Honour said (at [18]):

To the extent that the finding was based on an alleged failure to take “appropriate” action or “even make demand”, the notice of assignment to the Debtor demanded payment to then [sic] Creditor, as did the bankruptcy notice itself. In any event, a prior demand is not a statutory precondition for the issue of a valid bankruptcy notice. Before a bankruptcy notice is issued there must be a judgment of a court in favour of a creditor, which is sufficient to put the debtor on notice that he or she is legally obliged to pay the debt claimed.

42     In the course of his reasons, Heerey J accepted that it was not an improper purpose to issue a bankruptcy notice for the purpose of having a debt paid, so long as the creditor intends to invoke the Court’s bankruptcy jurisdiction if it is not: Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 at [43]. His Honour concluded that there was no evidence before him to suggest that the creditor’s purpose in issuing the bankruptcy notice was other than for invoking the bankruptcy jurisdiction if the debt owing were not paid. In those circumstances, there was no basis on which to set the notice aside.

43     There is, with respect, no doubt about the correctness of Heerey J’s observations in Cavoli v Etl. It is not a precondition to the issuing of a bankruptcy notice that a demand for payment be made or that other avenues of recovering the debt are exhausted. Whilst it is common practice and, indeed, it may be prudent practice, to make some form of prior demand, it is not a precondition and nor is the absence of a demand, on its own, a basis for inferring the existence of some improper motive. A precondition for the issuing of a bankruptcy notice is the existence of judgment debt and the obtaining of such a judgment is nearly always sufficient to put the debtor on notice. In the present case, Ms Mariconte had enforced an order for costs against Mr Nobarani for about $121,000 and the High Court later overturned the decisions of the Supreme Court of New South Wales and of the Court of Appeal on the basis of which that costs order had been made. There can be little doubt that she was aware of her liability to Mr Nobarani from the time the Restitution Judgment was made on 18 December 2019. That was some six weeks prior to the issuing of the Bankruptcy Notice.

44     None of this is to deny that, in appropriate circumstances, a failure to make a prior demand or to seek to enforce a debt by some other means may contribute to a finding that a bankruptcy notice was issued without any intention of invoking the bankruptcy process if the debt was not paid, such that a conclusion might be reached that it was issued for an improper purpose: see, for example, the discussions in Royal v Nazloomian and Alhalek v Quintiliani. However, such failures by themselves are not sufficient to support that conclusion and that is especially so where the indebtedness is undisputed and unpaid, and it is not shown that it was objectively apparent to the creditor that the debtor is solvent. Again, it may be prudent in some circumstances for a creditor to probe the solvency of a debtor by making demands or taking other enforcement action. If it transpires at the hearing of any subsequent petition for a sequestration order that the debtor is solvent, then the petition may well be set aside and the creditor may be obliged to meet a substantial costs order: Bankruptcy Act 1966 (Cth) (the Act), s 52(2). However, it is not compulsory for the creditor to make a prior demand or otherwise seek to enforce their debt before having a bankruptcy notice issued or later presenting a petition for a sequestration order. Were it otherwise, it would require the creditor to expend money in the pursuit of a debtor which may be wholly unrecoverable if a sequestration order is made.

The alleged abuse

56    Mr Lawrence advanced the submission that the issue of the fourth and fifth bankruptcy notices were an abuse of process because they were used for an illegitimate purpose to put (unjustifiably oppressive) pressure on Mr Lawrence to pay a costs debt. It was submitted that the abuse fell within the first two categories identified by Gageler J in Walton v ACN 004 410 833 Ltd (in liq) [2022] HCA 3; 275 CLR 508 at [93].

57    It was not until closing oral submissions that the relevant circumstances were identified, said to establish the abuse with respect to both occasions of issuance. First, reliance was placed upon a purported impermissible system adopted by Ms Sammut’s and Mr Ciantar’s instructing solicitor Ms McLean. This purported system involved the speedy preparation of a bill of costs, a costs assessment, a certificate of taxation, then a judgment, to then issue a bankruptcy notice, as the means to recover the debt. Ms McLean rejected the existence of any set procedure. Reliance was placed on various aspects of Ms McLean’s cross-examination. Secondly, reliance was placed on events in November 2024, which posted dated the issuance of the fourth bankruptcy notice by seven months.

Consideration

58    For the following reasons, I reject that Mr Lawrence’s claims as to abuse have been made out.

Mr Lawrence did not establish that he was solvent

59    To the extent (though it was not clear) Mr Lawrence is maintaining his claim of solvency as part of the factual matrix giving rise to abuse, Mr Lawrence failed to put on proper evidence to establish his solvency. This deficiency was drawn to Mr Lawrence’s attention, a notation made in orders made on 9 December 2024, and the same orders made provision for Mr Lawrence to put on any further evidence by 4.00pm on 23 December 2024 regarding solvency which Mr Lawrence did not do. On 20 December 2024, Mr Lawrence wrote to Chambers directly seeking an extension of time, and not until 24 January 2025 did he provide in electronic format to the NSW Registry a bundle of 3308 documents without pagination, index or discernible relevance. At its highest, the evidence revealed that Mr Lawrence owns his own home, but there is no evidence as to its value or whether it is encumbered, nor how quickly that asset could be realised if needed to pay his debts. Mr Lawrence disclosed one bank account with a balance that has now been used to discharge the amount under the fourth bankruptcy notice. Mr Lawrence has not disclosed whether he has any liabilities. Mr Lawrence makes no reference to the amounts due under the fifth bankruptcy notice and the further amounts that will be due when the three extant costs orders are taxed (the amounts claimed exceed $120,000).

60    The indisputable evidence, therefore, despite assertion by Mr Lawrence, does not support a conclusion that Ms Sammut and Mr Ciantar had, at the time of issue of the fourth or the fifth bankruptcy notices, any particular knowledge of his financial circumstances or any collateral purpose.

Mr Lawrence failed to establish the purported impermissible system

61    The allegation of the existence of an impermissible system deployed by Ms McLean as to constitute an abuse is not made out. It may be remembered that the allegation was that, by this impermissible system, pressure was placed on Mr Lawrence to pay the debts, through the issue of bankruptcy notices, rather than rely on the ordinary processes of debt collection.

62    Mr Lawrence submitted that Ms McLean’s oral evidence revealed that she was issuing the bankruptcy notices as a “quick way to get the debt paid” without using the usual steps available. This submission was made on the basis of questioning of Ms McLean as to her “system [between 2021 and 2024] in relation to claiming costs”. Ms McLean was asked whether she was using the bankruptcy notice proceedings to get costs debts paid. No submission was made as to why Ms McLean’s state of mind was relevant and how her state of mind became that of her client creditors. Regardless, to the extent that it was relevant, it was Ms McLean’s evidence that she was trying to circumvent contested litigation. Mr Lawrence submitted that in effect Ms McLean was saying she was trying to use a quick way to get a debt paid. I do not accept this, it is my view that Ms McLean was issuing the bankruptcy notices, under instructions, because Mr Lawrence had demonstrated an unwillingness to pay his debts and his intransigence led Ms Sammut and Mr Ciantar, to duly invoke the bankruptcy jurisdiction as it was only by virtue of that process would he pay. In any event, as evident from the Full Federal Court’s decision in Nobarani referred to above, the issuing of a bankruptcy notice for the purpose of having a debt paid is not improper so long as the creditor intends to invoke the Court’s bankruptcy jurisdiction. I do not accept that the evidence suggests that Ms Sammut’s and Mr Ciantar’s purpose in issuing the notices was other than for invoking the bankruptcy jurisdiction if the debts owing were not paid. The unfortunate history of over a decade long dispute, chronicled below, between Mr Lawrence and Ms Sammut and Mr Ciantar is that Mr Lawrence never simply paid a judgment debt or order after it was issued, nor that he ever paid upon request or demand.

63    Mr Lawrence’s allegation was made by reference to Ms McLean’s purported conduct with respect to the issuing, not of the relevant bankruptcy notices in these proceedings, but the second bankruptcy notice issued on 29 October 2021 (over two and a half years before the issuing of the fourth bankruptcy notice on 30 April 2024). It was submitted that the purpose of the issue of the bankruptcy notice was to put pressure on Mr Lawrence.

64    The line of questioning was premised on Ms McLean’s purported knowledge, before the issuing of the bankruptcy notice on 29 October 2021, that Mr Lawrence intended to challenge the underlying debt. Reference was made to an email sent to her by Mr Lawrence on 23 September 2021, in which he stated, as purportedly previously advised, that “we intend on reviewing the costs assessor’s decision for the Court of Appeal matter”. However, the evidence reveals that a day later Ms McLean replied that she did not understand his email or what it related to.

65    This response, in the circumstances of this case, was entirely understandable. A review of the undisputed chronology of events, dealt with in the vexatious proceeding evidence below, reveals that by this point Mr Lawrence had been unsuccessful in his second attempt before the Court of Appeal to re-agitate his unsuccessful primary claim before Henry J. Mr Lawrence’s special leave application had been refused. Mr Lawrence had paid the amount owing under the first bankruptcy notice in late August 2021. I do not accept that any inference can be drawn, that it could have been known what Mr Lawrence intended when he sent the indecipherable email on 23 September 2021. This was said to be indicative of the type of systematic abuse identified by Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449. No submission could sensibly be made that the circumstances of fraud giving rise to the abuse in that case are in any way analogous to this one.

66    The Court was asked to accept that Ms McLean had said to Mr Lawrence “Pay up or you will end up losing your Hilltop property because we’re going to bankrupt you”. Mr Lawrence first made this allegation in an affidavit sworn on 26 May 2025 (midway through the hearing and after Ms McLean had already been cross-examined). This was in circumstances where Mr Lawrence had already filed numerous affidavits, including affidavits in support of his applications to set aside the bankruptcy notices in 2024 and had made no mention of this serious allegation. Mr King neglected to cross-examine Ms McLean with respect to this allegation. Ms McLean had already given her evidence before an application to put on this evidence had been made. When this omission was drawn to Mr King’s attention, an application was made for Ms McLean to be recalled. I reject this threat is established on the evidence. There is no contemporaneous record of such a threat being made. It is purported to have been made in 2023. There was no evidence to explain why Mr Lawrence had not put on such evidence earlier. I accept Ms McLean is a credible and honest witness and accept her denial.

67    In addition, Mr Lawrence sought to impugn Ms McLean’s credit by reference to her purported failure to answer simple straight forward questions. I reject this submission. Ms McLean was being asked to answer questions with respect to events over a very long period of time and with respect to the very fraught, messy, protracted litigation between her clients and Mr Lawrence. Ms McLean was asked to be taken to documents on certain occasions. It is my view that her testimony cannot be impugned by taking this course on occasion. Indeed, one of the purported occasions said to involve a failure to recall events, involved what was alleged to have transpired at the directions hearing before Jagot J with respect to the second bankruptcy notice in December 2021. Mr King asked Ms McLean to accept that, when she appeared before Jagot J, she had sought to press for the bankruptcy proceeding to continue and only accepted that the notice had to be set aside once Jagot J had drawn the issue of Mr Lawrence’s extant review to her attention. This was not a case, as was submitted by Mr King, of Ms McLean “not recalling her own documents”, but rather Ms McLean denying that that happened. The transcript of the case management hearing reveals that the allegation Mr King put was entirely incorrect and Ms McLean’s evidence (and her denial) was substantiated.

Mr Lawrence failed to establish any alleged abuse of the Court’s processes by reason of conduct in November 2024

68    Mr Lawrence has also failed to establish any alleged abuse of the Court’s processes by reason of the purported failure (or grabbing of a gap in the Court’s orders) of Ms Sammut and Mr Ciantar to consent to the extending of time for him to comply with the notice until the next scheduled case management hearing. Mr Lawrence’s submission is premised on a complete mischaracterisation of the circumstances.

69    As to Mr Lawrence’s submission that the Court’s procedures were unjustifiably oppressive to Mr Lawrence, the argument was made that, on 6 November 2024, the Court made orders in NSD1251 of 2024 in the following terms:

1.     The time for compliance by the applicant with the requirements of Bankruptcy Notice Number 269292 be extended with effect from 4:00pm on 24 September 2024 until 4:00pm on 18 November 2024.

2.     The matter be set down for case management hearing at 9.00am on 19 November 2024

70    The consequence was said to be that Ms Sammut and Mr Ciantar’s legal representative “grabbed at a gap in the court’s orders” by refusing to agree to Mr Lawrence having a further extension of one day, so that he might ventilate his concerns with respect to the bankruptcy notice at the case management hearing that was set down for the following day. This was described as a “ramping up of the pressure” on the part of Ms McLean.

71    However, what in fact occurred, was as follows.

72    By Mr Lawrence’s own affidavit evidence filed 1 November 2024, he deposed to having written on 18 October 2024 to Ms McLean that he intended to withdraw his application to set aside the fourth bankruptcy notice and that he was in the process of making “financial arrangements for the payment of the $91,898 set out in that notice”. His affidavit evidence is given in the following way:

[27]    On 18 October 2024, I sent an email to Ms Karen McLean, entitled “Lawrence”. Annexed and marked “D” is a copy of that email.

[28]    The 18 October 2024 email advised Ms McLean that I intended to withdraw my application to set aside the Fourth Bankruptcy notice.

[29]    The email further advised that I was currently in the process of making financial arrangements for the payment of the $91,898 set out in that notice. I intend to repay the $91,898 either out of the repayment of the Hunting Family Fund loan, or from the ANZ Progress Saver Account.

73    That email was tendered in Court on 6 November 2024, and was, in its terms, an email from Mr Lawrence to Ms McLean, copying in Mr Lawrence’s then Counsel, dated 18 October 2024 at 1.39pm, in which Mr Lawrence wrote:

…

The Fourth Bankruptcy Notice

Please be advised that I shortly intend to withdraw my application to set aside the Fourth Bankruptcy notice dated 13 May 2024, and that I am currently in the process of making financial arrangements for the payment of the amount set out in the notice. As such, I advise you that the incurrence of costs by your client in respect of preparation regarding that notice should cease.

To save cost

(Emphasis in original.)

74    The reason why there was no provision made for the extension of the time to comply with the bankruptcy notice was because Mr Lawrence had said and manifested an intention to pay it. That email was also clear in its terms that Mr Lawrence intended to pay the money owing and withdraw the application.

75    For these reasons both of Mr Lawrence’s applications to set aside the fourth and fifth bankruptcy notices must fail.

The vexatious proceeding application

76    Ms Sammut and Mr Ciantar rely upon 21 sets of proceedings or applications as evidence of Mr Lawrence’s vexation, having either (or both) instituted the proceedings vexatiously, or conducting the proceedings in a manner which is vexatious. The 21 sets of proceedings were listed in a document filed on 17 December 2024 in response to Orders of this Court. However, at hearing, the proceedings were not dealt with in a sequential manner, but in accordance with the history of the proceedings. Accordingly, it is instructive to address the proceedings in the manner in which they were argued.

The history to the proceedings and the claims of vexation

77    The events leading to the fraught proceedings between the parties began over ten years ago in March 2014. Mr Lawrence approached Ms Sammut and Mr Ciantar proposing to enter into a venture whereby he would fund, and complete development works on land owned by them in consideration for ownership of a lot in the once completed development. In the years following, the relationship between the parties broke down, and Ms Sammut and Mr Ciantar formed the view that Mr Lawrence had failed to complete the building works in accordance with their agreement.

78    On 7 November 2017, Mr Lawrence commenced proceedings (Proceeding A) in the NSW Supreme Court seeking, among other relief, a declaration that he held a one-third interest in the land the subject of development, on the basis he agreed to fund the cost of certain works, which were completed. He also relied upon an unregistered mortgage and a charge over the property, and sought an order for specific performance of the bargain.

79    On 26 April 2019, Henry J delivered judgment in that proceeding, holding, among other things, that Mr Lawrence was not entitled to any interest in the property: Lawrence v Ciantar. Her Honour found that the agreement between the parties obliged Mr Lawrence to carry out and complete the development works at the property by himself or under his supervision. Her Honour also found that the agreement is a contract caught by the Home Building Act 1989 (NSW) and, as a result, Mr Lawrence is not entitled to any interest in the property, specific performance of or damages under the agreement and his summons should be dismissed: at [7].

80    This decision is not relied upon by Ms Sammut and Mr Ciantar as evidence of Mr Lawrence engaging in vexatious proceedings. Proceeding A was then appealed by Mr Lawrence to the NSW Court of Appeal: Lawrence v Ciantar [2020] NSWCA 89, of which Bathurst CJ, with whom Meagher and Gleeson JJA agreed, dismissed the appeal with orders that Mr Lawrence pay Ms Sammut and Mr Ciantar’s costs in the proceeding (hereafter Proceeding B). Proceeding B is also not relied upon by Ms Sammut and Mr Ciantar as evidence of Mr Lawrence engaging in vexatious proceedings. They say he was entitled to ventilate his claims at first instance and on appeal, which held merit, and for which he was represented in both proceedings by senior counsel.

81    It is also instructive to set out here Henry J’s findings as to the nature of the contractual bargain between the parties. Mr Lawrence had asserted the existence of a deed of loan, under which Mr Lawrence had agreed to advance $435,000 to Ms Sammut and Mr Ciantar to be used to carry out subdivision works on the property: at [32]. Henry J found at [64](c), that at the hearing date, Mr Lawrence had not advanced the funds under the deed. This was a conclusion which was accepted by Mr Lawrence: at [218]. Although not relied upon for evidence of vexation, Counsel for Ms Sammut and Mr Ciantar sought to make something of Mr Lawrence’s conduct in Proceeding A in answer to his claim for set-off (which they submit is indicative of abuse). Mr Lawrence had proposed to amend his application to include orders that Ms Sammut and Mr Ciantar account to Mr Lawrence for his contributions to the development of the property. Ms Sammut and Mr Ciantar opposed that amendment and sought from Mr Lawrence evidence of specific expenses that he had incurred on the development works, which Mr Lawrence did not respond to. Mr Lawrence at hearing withdrew his proposed amendment.

82    It is the chronology of litigation following Proceeding A and Proceeding B which Ms Sammut and Mr Ciantar rely upon as evidence of Mr Lawrence having instituted vexatious proceedings or where it is said that Mr Lawrence engaged in vexatious conduct. What the unfortunate history reveals, is that despite Mr Lawrence losing in both Proceeding A (the Supreme Court proceedings before Henry J) and then in Proceeding B (the Court of Appeal), Mr Lawrence instituted a further unsuccessful appeal to the Court of Appeal and then special leave to the High Court, there were then disputes about the costs disputes which emanated from all of the proceedings, which then, despite exhausted adjudication, led to the issuance of bankruptcy notices and appeals.

83    Ms Sammut and Mr Ciantar provided a flowchart diagram at hearing which illustrated, chronologically, each costs or bankruptcy proceeding which arose from either Proceeding A or B or was unrelated (for example, in the case of the New South Wales Civil and Administrative Tribunal proceedings) (Exhibit R-10).

The Costs (and Bankruptcy therefrom) Proceedings which stemmed from Proceeding A (Proceedings 3, 4, 5, 15, 19)

84    Following Proceeding A, the costs of that proceeding were determined by a costs assessor and a Certificate of Determination of Manager’s Assessment Costs issued on 14 September 2020 in the amount of $4,900.00 against Mr Lawrence, and a Certificate of Determination of Costs in the amount of $251,863.34. Mr Lawrence then filed an application for a review of the determination on 11 grounds. On 25 January 2021, the review panel affirmed the costs assessor’s determination of 14 September 2020 in respect of the costs for Proceeding A, and issued a Certificate of Determination of Review Panel Costs in the amount of $5,512.37. The review panel in its reasons found none of the 11 grounds were made out, describing difficulty in deciphering Mr Lawrence’s submissions and noting unsolicited correspondence from Mr Lawrence.

Proceedings 3, 4 and 5

85    Following Mr Lawrence’s failed application before the review panel, on 1 March 2021, he filed an appeal of the review panel’s decision in the Supreme Court of NSW (Proceeding 3). On 11 February 2021, Lonergan J made orders by consent that the matter be referred to an independent referee for a report on costs. That report was delivered on 16 August 2021.

86    In the course of Proceeding 3, Mr Lawrence brought two interlocutory applications, which are referred to as Proceeding 4 and Proceeding 5. In Proceeding 4, Mr Lawrence issued notices to produce in October 2021 and February 2022 seeking production of firstly, what appeared to be some kind of insurance associated with the development works, and secondly, a bill of costs associated with Ms McLean’s costs.

87    On 28 March 2022, judgment was delivered in Proceeding 4: Lawrence v Sammut [2022] NSWSC 344, in which Lonergan J set aside notices to produce filed by Mr Lawrence. Proceeding 4 is said to constitute a vexatious proceeding because of Lonergan J’s findings, which included that “[t]here is nothing in the documents sought by the notices to produce that would shed any light on the issues remaining” (at [21]) and that (at [25]):

… the range, relevance or purpose of each of the notices, is frankly almost incomprehensible. To the extent the notices can be understood, there is nothing in the description of the documents sought that has any relevance to the limited issues that remain live before the Court.

88    In Proceeding 5, Lonergan J refused Mr Lawrence’s applications for leave to issue subpoenas to Ms McLean, MWL Financial Group, and Harrison and Gill Chartered Accountants: Lawrence v Sammut (No 2) [2022] NSWSC 390.

89    Thereafter, Acting Justice Schmidt gave judgment on the costs of the appeal: Lawrence v Sammut (No 4) [2022] NSWSC 1033 (Proceeding 3). Her Honour allowed the appeal and made orders that the referee’s report be adopted and that the parties were to confer on costs. However, despite Mr Lawrence succeeding in reducing the costs order made by Henry J in Proceeding A by $29,324.47 (a reduction of 9%: see at [23]), her Honour awarded Ms Sammut and Mr Ciantar their costs because of Mr Lawrence’s (mis)conduct in approach to the litigation which was, at times, not consistent with his obligation to further the just, quick and cheap resolution of the real issues and to comply with court processes (at [33]). The startling result was that Mr Lawrence having obtained a reduction of $29,324.47 in the costs payable of Proceeding A, was found to have, in effect, caused Ms Sammut and Mr Ciantar to expend costs of over $115,000 (for which he was required to pay) and which ultimately form the basis for the amount payable in 2024 in the fourth bankruptcy notice.

Proceeding 15

90    Proceeding 15 concerned an appeal brought by Mr Lawrence seeking to review the decision of Registrar Jones on 10 July 2023 that ordered Mr Lawrence to pay the costs of Proceeding 3 (that is, the costs of Mr Lawrence’s litigating the costs decision in Proceeding A), which was the sum of $115,000. Mr Lawrence was unsuccessful in his appeal from Registrar Jones’ decision, and judgment was delivered by Lonergan J on 30 November 2023: Lawrence v Summit (No 5) [2023] NSWSC 1476 (Proceeding 15). Mr Lawrence’s application was dismissed and he was ordered to also pay Ms Sammut and Mr Ciantar’s costs of Proceeding 15.

Proceeding 19

91    Following the decision of Registrar Jones on 10 July 2023 making orders that Mr Lawrence was to pay Ms Sammut and Mr Ciantar’s costs in the amount of $115,000 and its affirmation in Proceeding 15, on 30 April 2024, the Official Receiver issued a fourth bankruptcy notice in the amount of $91,898.80. The amount reflects the $115,000.00 ordered by Registrar Jones. It also includes interest of $6,223.27. Given that Mr Lawrence had already paid the judgment of Henry J in the amount of $262,272.71 (as will be explained below) before the reduction of $29,324.47 resulting from Schmidt AJ adopting the referee’s report, that $29,324.47 is incorporated as a set-off against the costs incurred in Mr Lawrence appealing the costs of Proceeding A (that is, against the $115,000).

92    Mr Lawrence then lodged an application to set aside the fourth bankruptcy notice (Proceeding 19) on 13 May 2024. By orders of this Court, that proceeding was then transferred from the FCFCOA to this Court. The status of the application as it stood at the time of hearing was peculiar. On 18 November 2024, Mr Lawrence paid the amount demanded by the notice. However, at the case management hearing on 19 November 2024, and since then, the proceedings have been extant and the underlying application pressed at hearing. Mr Lawrence between payment and the time of hearing insisted that Ms McLean keep the funds in her trust account upon conditions unknown.

The Bankruptcy Proceedings arising from Proceeding A (Proceedings 7, 8, 9, 10, 11, 20, 21)

93    As already explained above, Mr Lawrence was ordered to pay Ms Sammut’s and Mr Ciantar’s costs of Proceeding A, and they obtained judgment on 18 February 2021 in the amount of $262,275.71. On the same day, Ms Sammut and Mr Ciantar caused the issue by the Official Receiver of the first bankruptcy notice on Mr Lawrence. This may be explained by the fact that prior to the issuance of the first bankruptcy notice, Mr Lawrence had failed in his actions before the Supreme Court and Court of Appeal and had filed his application for special leave and there had already been a number of costs review proceedings commenced by Mr Lawrence such that it was reasonable to assume that he would not pay the judgment owing. But in any event, as will be revealed below, there was no evidence or argument proffered as to why it could be established that Ms Sammut and Mr Ciantar had not then, or subsequently, properly invoked the bankruptcy jurisdiction.

Proceeding 7

94    On 9 March 2021, Mr Lawrence filed an application to set aside the bankruptcy notice on the basis of a counter-claim, set-off or cross demand within the meaning of ss 40(1)(g) and 41(7) of the Bankruptcy Act. That application was disposed of by Manousaridis J in judgment delivered on 20 August 2021: Lawrence v Sammut [2021] FCCA 1929 (Proceeding 7). His Honour dismissed the application with costs. On 27 August 2021, Mr Lawrence sought, following the dismissal of his application in Proceeding 7, to re-open that proceeding before Judge Manousaridis: Lawrence v Sammut [2021] FedCFamC2G 84 at [4]. That re-opening was dismissed on 3 September 2021: Lawrence v Sammut [2021] FedCFamC2G 84.

Proceeding 11

95    On 30 September 2021, Mr Lawrence then filed an appeal from the decision of Manousaridis J in the Federal Court of Australia (Proceeding 11): Lawrence v Sammut (unreported, NSD 1022 of 2021, Goodman J). The proceeding was ultimately, just prior to the scheduled hearing, dismissed by consent on 17 March 2023. Notably, Mr Lawrence had paid the amount due on the first bankruptcy notice on 25 August 2021 (and before he sought to re-open before Judge Manousaridis) and while his review of the underlying costs was maintained (Proceeding 3 which was not finalised until August 2022).

96    What follows concerns the costs associated with Mr Lawerence’s failed proceeding before Manousaridis J in Proceeding 7. The total costs and disbursements claimed under a bill of costs served to Mr Lawrence was an amount of $64,984.10. On 27 May 2022, a Judicial Registrar of this Court issued an estimate letter in relation to the approximate total of the Certificate of Taxation if the bills were to be taxed. The total estimate was $49,100.00. On 15 June 2022, Mr Lawrence filed a notice of objection to the estimate of costs. On 22 August 2022, the taxation was referred to compulsory mediation which took place on 24 November 2022. Mediation did not resolve the taxation dispute. Mr Lawrence then, on 28 February 2023, lodged a second notice of objection to the bill of costs, which appeared to have been prepared with legal advice.

97    The matter then proceeded to hearing before a Registrar. The Registrar expressed a preliminary view that he was not going to uphold the objections of Mr Lawrence. The Registrar then incorrectly told Mr Lawrence that if he withdrew his objection, there would be no cost consequences.

Proceedings 8 and 9

98    On 26 April 2023, a Registrar made certain orders with respect to the costs dispute associated with Proceeding 7. Those orders included, amongst others, that Ms Sammut and Mr Ciantar’s bill of costs filed on 11 March 2022 not be taxed and, if requested by Ms Sammut and Mr Ciantar, a certificate of taxation be issued for the amount of $49,100.00 (Proceeding 8).

99    Proceeding 9 was an application for review brought by Ms Sammut and Mr Ciantar against the decision of the Registrar in Proceeding 8. Ms Sammut and Mr Ciantar, relying on affidavit evidence of Ms McLean, submitted that the matter then proceeded to a review before Manousaridis J, which took five days. There are no reasons for the review, but on 23 November 2023, his Honour made orders setting aside orders of the Registrar (in Proceeding 8), ordering that the bill of costs proceed to taxation, and that the costs of the application for review be costs in the taxation.

Proceeding 10

100    As a consequence of Manousaridis J’s orders, the matter then went back to the Registrar for determination. Based on the undisputed evidence of Ms McLean, the taxation process was set down for a number of days. Then, on 11 October 2024, the taxed costs were determined to be $49,515.72 (for the costs of Proceeding 7, the first bankruptcy proceeding), exceeding the Registrar’s $49,100 estimate. Then, the Registrar taxed the costs of the taxation process as at $46,298.48. Finally, the costs of the application for review of the Registrar’s decision were agreed in the amount of $27,000 (down from $47,378.25). The Court was directed to correspondence between Ms McLean and Mr Lawrence, in which Mr Lawrence accepted an offer of $27,000 as proposed by Ms McLean. The certificate issued on 11 October 2024 certifying each of those three sets of costs resulted in a total Certificate of Taxation issued for $122,814.20.

101    Thereafter, Mr Lawrence wrote to the Registrar agitating these costs which then lead to a further hearing. The Court was also directed to a transcript of that hearing on 21 October 2024, in which Mr Lawrence agreed to pay the costs of Proceeding 7 (that is, the $49,100) and the agreed costs of the review of Registrar’s Segal decision before Manousaridis J, but Mr Lawrence did not agree to pay the costs of the taxation process.

Proceedings 20 and 21

102    Proceeding 20 is Mr Lawrence’s application to set aside the fifth bankruptcy notice. The fifth bankruptcy notice was issued on 21 October 2024. The debt which underlies the fifth bankruptcy notice is the Certificate of Taxation issued by the Registrar on 11 October 2024 (of Proceeding 10), which, together with further costs (as outlined above), amounted to $123,022.58. What is apparent however, is that despite Mr Lawrence agreeing to pay two of the three amounts owing on 21 October 2024 when he was before the Registrar, by his application to set aside the fifth bankruptcy notice, he had reneged on that position and was now effectively disputing all amounts.

103    On 8 November 2024, Mr Lawrence filed an application for review of the 11 October 2024 Certificate of Taxation (Proceeding 10) which is identified as Proceeding 21, despite having agreed to pay the majority of the debt before the Registrar on 21 October 2024. Similarly, as with respect to Proceeding 20, by virtue of this application agitating all three sets of costs, Mr Lawrence again repudiates on his agreement with respect to two of them.

The Proceedings arising from Proceeding B (Proceedings 1, 2, 6, 12, 14)

Proceedings 1 and 2

104    On 27 May 2020, Mr Lawrence filed an application to reopen Proceeding B. The NSW Court of Appeal dismissed that application with costs: Lawrence v Sammut (No 2) [2020] NSWCA 186 (Proceeding 1). Mr Lawrence then applied for special leave to appeal Proceeding 1, and Proceedings A and B: Lawrence v Ciantar [2021] HCASL 35 (Proceeding 2). The High Court in dismissing the application stated that there was “no reason to doubt the correctness of each decision of the Court of Appeal” (at [2]).

Proceedings 6 and 12

105    By application filed 15 November 2021, Mr Lawrence then sought to set aside the second bankruptcy notice on the basis of a counter-claim, set-off or cross demand (which arose from costs judgment debts arising from Proceeding B) (Proceeding 12). On 2 December 2021, Jagot J dismissed Ms Sammut’s and Mr Ciantar’s application, not by reason of any submission or ground advanced by Mr Lawrence, but rather in response to a submission of Ms McLean that because Mr Lawrence had launched separate review proceedings of the underlying costs, this proceeding could not proceed. That is, in the meantime, Mr Lawrence had also filed a review to a review panel of the cost assessor’s assessment of costs. That application was filed on 24 September 2021 (Proceeding 6). The effect of making that application was an automatic stay of the second bankruptcy notice by virtue of s 86 of the Legal Profession Uniform Law Application Act 2014 (NSW).

106    Mr Lawrence’s application to review the costs’ assessor determination of the costs of Proceeding B was then dealt with by the review panel. His application failed. On 24 January 2022, the review panel issued a Certificate of Determination of Review affirming the costs assessor’s determination and a Certificate of Determination of Review Panel Costs of $4,890.60.

Proceeding 14

107    On 18 March 2022, Ms Sammut and Mr Ciantar obtained judgment in the sum of $58,513.15, comprising the Certificate of Determination of Costs issued by the costs assessor on 20 August 2021 and the Certificate of Determination of Manager’s Assessment Costs of the same day, as well as the Certificate of Determination of Review Panel Costs, all of which were the costs accrued in respect of Proceeding B, and challenges to the costs thereof. On 21 March 2022, the Official Receiver issued a third bankruptcy notice (BN255765).

108    On 19 April 2022, Mr Lawrence made an application to set aside the third bankruptcy notice on the basis of a counter-claim (Proceeding 14). Mr Lawrence’s application comprised 40 paragraphs, making a number of unintelligible claims, including an “offset [of] $1,153,535.90”, another set-off based on the decision of Manousaridis J, references to subpoenaing Ms McLean, reference to restitution, allegations that Ms McLean was breaching the Solicitors’ Rules, what appears to be a description of the legislative history of Solicitors’ Rules, and bare references to earlier decisions between the parties.

109    Curiously, after filing his application but before hearing, on 14 December 2022, Mr Lawrence paid $58,513.15, that is, the amount the subject of the third bankruptcy notice, into Ms Sammut’s and Mr Ciantar’s solicitor’s trust account: Lawrence v Sammut, in the matter of Lawrence [2023] FCA 1170 at [7] per Goodman J (Proceeding 14). By reason of Mr Lawrence having paid the amount, Ms Sammut and Mr Ciantar then sought an order for the dismissal of the proceedings. Mr Twyford, the solicitor who appeared for Mr Lawrence, informed the Court that Mr Lawrence did not oppose such an order but wanted to be heard on the question of costs, and Goodman J ordered the proceedings be dismissed save as to the question of costs and a timetable for the filing of submissions. His Honour then gave judgment on 3 October 2023, ordering that Mr Lawrence was to pay Ms Sammut and Mr Ciantar’s costs in the proceedings and for the question of the quantum of lump-sum costs be referred to a Registrar of this Court for any further directions which may be considered necessary and for determination.

Proceedings in Tribunals (Proceeding 13, 16, 17, 18)

110    Ms Sammut and Mr Ciantar also rely on Mr Lawrence’s initiation of and conduct in two proceedings in the NCAT and an adjudication application brought under the Building and Construction Industry Security of Payment Act 1999 (NSW).

Proceeding 13

111    Proceeding 13 concerned an adjudication application brought by Mr Lawrence with respect to an alleged payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW). On 26 October 2021, Mr Lawrence made an adjudication application to Adjudicate Today under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Proceeding 13). The application sought payment claims purportedly issued on 28 September 2021 for an amount of $1,176,694.36 with respect to a contract “12 Nov 2014 – May 21”. The adjudication application was dismissed by the adjudicator on 11 November 2021. The adjudicator found that the dispute had already been dealt with by Henry J in Proceeding A. The adjudicator in dismissing the application found that the whole of the fees associated with the adjudication should be borne by Mr Lawrence.

Proceeding 16

112    On 25 October 2023, Mr Lawrence brought proceedings before the NCAT seeking an order for payment of the amount of $484,347, purportedly on the basis that the funds claimed were for works done which came to an end in 2016 (Proceeding 16).

113    On 26 April 2024, Mr Lawrence’s application was dismissed. In a lengthy notation attached to those orders, Senior Member G Ellis SC, found that the Tribunal did not have jurisdiction to deal with Mr Lawrence’s claims and they were out of time. At [27], the Tribunal found that it was “satisfied that the applicant’s claim in these proceedings has no tenable basis in fact or law and that his application was lacking in substance.” Then, the Tribunal ordered that Mr Lawrence pay the costs for the reasons articulated at [28]:

As to the question of whether those circumstances warrant an order for costs, the Tribunal is satisfied that an order for costs should be made as the applicant was warned, shortly after he lodged his application, that the Tribunal did not have jurisdiction to consider this claim, but he chose to proceed with it despite the warning so provided.

Proceeding 17

114    Undeterred by his recent experience before NCAT, on 15 May 2024, Mr Lawrence again made an application to NCAT seeking to set aside the orders made against him in Proceeding 16 by Senior Member Ellis SC (Proceeding 17). On 4 July 2024, NCAT made orders dismissing this application. The presiding Senior Member noted the application was brought out of time and argued procedural fairness which was not a matter “apposite to a set aside application under the [NCAT] Regulation”.

Proceeding 18

115    On 11 September 2024, Mr Lawrence filed an appeal from the decision made by NCAT on 4 July 2024 (immediately above), but also on the face of Mr Lawrence’s application, the decision on 26 April 2024 from Proceedings 16 (Proceeding 18). Since hearing, the matter was dismissed: Lawrence v Ciantar (No 2) [2025] NSWCATAP 139.

Organising Principles

116    Section 37AO of the Act is given in the following terms:

37AO  Making vexatious proceedings orders

(1)     This section applies if the Court is satisfied:

(a)     a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)     a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)     The Court may make any or all of the following orders:

(a)     an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)     an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)     any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)     The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)     the Attorney-General of the Commonwealth or of a State or Territory;

 (b)     the Chief Executive Officer;

(c)      a person against whom another person has instituted or conducted a vexatious proceeding;

 (d)     a person who has a sufficient interest in the matter.

(4)     The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)     An order made under paragraph (2)(a) or (b) is a final order.

(6)     For the purposes of subsection (1), the Court may have regard to:

(a)     proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)     orders made by any Australian court or tribunal; and

(c)      the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

117    The purpose of the statutory power is not to punish the litigant for past misdeeds but to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless, repetitious actions: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] per Beazley P, Emmett JA, Sackville AJA. As observed by the Full Court, in Fuller v Toms [2015] FCAFC 91; 234 FCR 535 at [31] per Besanko, Logan and McKerracher JJ:

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

118    The Full Court in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100, in considering the terms of s 37AO(1)(a), identified the four cumulative conditions necessary to engage its operation are that the person has: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; and (4) in Australian courts and tribunals.

119    The test for determining the third element is objective. It requires the moving applicant to persuade the Court that the subject litigant has frequently instituted or conducted vexatious proceedings. Such a determination involves mixed questions of fact and law and reaching a view as to the character of the proceeding rather than determining any fact that might have been in issue in the proceeding: Ogbonna v CTI Logistics Ltd (No 6) [2022] FCA 615 at [23]. Whether or not the litigant’s actions qualify as vexatious is assessed independently of the litigant’s subjective motivations or purposes: Cull v Singh [2024] FCA 258 at [24].

120    A “vexatious proceeding” is defined in an inclusive way in s 37AM(1) as follows:

vexatious proceeding includes:

 (a)     a proceeding that is an abuse of the process of a court or tribunal; and

 (b)     a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)     a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)     a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

121    Relevantly, the section does not so limit consideration when making vexatious litigant proceedings orders to the institution of proceedings, but includes the filing of interlocutory processes, taking steps in a proceeding and making applications before a proceeding can be commenced. This is so given the broad definition of “institute” in s 37AM(1)(a) and (d):

(1) In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)     for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)     for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c)     for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d)     for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

122    Furthermore, a vexatious proceeding, includes a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose, as identified by the fourth circumstance in s 37AM(1)(d).

123    The word “frequently” in s 37AO, has its ordinary meaning, referring to Garrett v Commissioner of Taxation [2015] FCA 117 at [8] per Pagone J:

The word “frequently” has its ordinary meaning and is not given a specific statutory meaning for the purposes of s 37AO(1) (the former O 21, r 1 of the Federal Court Rules had imposed the higher threshold of the need to establish that vexatious proceedings had been conducted “habitually, persistently and without reasonable grounds”).

124    In Garrett (at [8]), Pagone J referred to with approval Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449. Ms Sammut and Mr Ciantar rely on [114] in HWY:

In short, there being no numerical threshold prescribed by Part VAAA itself, the question of whether an applicant has “frequently” instituted or conducted vexatious proceedings for the purposes of s 37AO must be answered in the circumstances of the particular case.

125    Both Garrett and HWY were cited with approval in Fuller v Toms [2015] FCAFC 91 at [33] (per Besanko, Logan and McKerracher JJ).

126    There is a relationship between the overarching purpose obligations in s 37M and the vexatious proceedings before the Court, as referred to by the Full Court in Storry at [7]:

7    The importance of s 37M(3) of the FCA Act in the work of the Court cannot be overstated. It requires judges of the Court to interpret and apply any power conferred by the civil practice and procedure provisions in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: see also s 37M(1). A fundamental aspect of doing more than paying lip service to these case management objectives is taking the necessary steps to ensure that the whole of the Court's business is managed efficiently. The aim of the overarching purpose provisions is undermined if the Court is passive and refrains from taking active steps to prevent the abuse of the Court's processes when such abuses become manifest. This involves judges taking a proactive role, where appropriate, in identifying circumstances where the processes of the Court are being repeatedly or frequently abused by a pattern of apparently vexatious proceedings.

Mr Lawrence’s submissions

127    It was very difficult to decipher Mr Lawrence’s submissions, which were often incomprehensible, often made by lengthy reference to begone authorities of high principle, without consideration of more recent authority nor application to the specific facts and circumstances of this case.

128    Notably, Mr King made a number of submissions as to matters of principle which must be rejected. Mr King submitted that s 91 of the Evidence Act impeded the capacity of this Court to take into account the orders and reasons of the purported vexatious proceedings relied upon by Ms Sammut and Mr Ciantar. That submission is rejected.

129    Despite Mr King making lengthy oral submissions, and reference to numerous authorities from other courts, his submissions were largely misconceived as he omitted (until filing a note after the hearing) to refer to the recent Full Court authority in Storry at [19]–[21], and in particular its endorsement of the detailed reasoning of Wheelahan J in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30. At [21], the Full Court in Storry stated:

21     Although it was not in dispute before us, it is appropriate to record that we agree with the views expressed by Wheelahan J in Fokas (at [41]-[66]) that the Court's evaluation as to whether the section is engaged is framed by s 37AO(6), which expressly authorises the Court to have regard to: other proceedings; orders made in other proceedings; and the conduct of those proceedings, and that s 91 of the Evidence Act 1995 (Cth) (which provides that evidence of the decision, or of a finding of fact in another proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding) is not infringed by relying on orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (and hence whether s 37AO(1) is engaged). In short, this is because the judgments and orders are not relied upon to prove a fact in issue in those other proceedings but rather (as s 37AO(6) authorises) to show the outcome of the proceedings, and the course they had taken, and to record the person's conduct in those proceedings for the statutory purpose of characterisation.

(Emphasis added.)

130    Contrary to Mr King’s submission, as observed above by reference to previous authority, Mr Lawrence’s subjective intention as to the institution of or conduct in proceedings is irrelevant. Mr King also submitted that because Ms Sammut and Mr Ciantar did not give evidence in the proceedings as to their subjective feelings of being harassed or annoyed, a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference should be drawn. The submission misapprehends the nature of the Court’s inquiry. It does not need to be established that the moving party felt harassed or annoyed by the vexatious proceeding.

131    Mr King made some unclear, generalised submissions as to the effect of Mr Lawrence making costs applications under ss 83 to 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and that he was entitled to make those applications. This submission, arose from a consistent misguided theme, the mere fact of a right to institute a proceeding, does not make a person immune from a vexatious proceedings order.

132    It was further submitted that if a vexatious proceedings order is made in this case, as asked and provided for, it sets a precedent which would be, a severe curtailment of citizens’ rights in relation to approaching the Court, and allows or encourages a creditor to run up costs debts, serve bankruptcy notices to put pressure on the person against whom the costs debts have been ordered, and thereby to increase the risk and pressure on debtors contrary to the purposes of the Bankruptcy Act. This submission is of course no answer to the reality that, whilst there is an additional step (the granting of leave) which is not insignificant, the order does not impede the institution of meritorious claims.

133    Mr King sought to limit the evidence of vexation and in particular the forums from which such vexatious proceeding orders can be made by submitting: (a) proceedings in the former Federal Circuit Court of Australia could not be included because it is no longer a Court; (b) that the NCAT is not a “tribunal of a State” within the meaning of s 37AM(1); (c) that the claim could not include proceedings that were not instituted at the time the application for the orders was made; (d) matters which were not resolved could not be included; and (e) to the extent the application included an adjudication application brought under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Proceeding 13), an Australian court or tribunal did not include a privately funded review authority. Whilst difficult to work out, it seemed that a like submission was also directed at a proceeding that involved costs adjudication (Proceeding 14). For the reasons set out below, each of these allegations is rejected (where relevant).

134    However, as the first purported limitation, I pause here to note the oddity of this submission that the former Federal Circuit Court of Australia is not an Australian court in the context of Mr Lawrence’s reliance, for the purposes of establishing set-off, on a decision of Manousaridis J. According to the logic of this submission, the factual findings made by this “non-existent” Court (despite the obvious difficulties with any reliance on those findings, as I have described above) has force for the purposes of set-off, but not for identifying any vexatious conduct within the proceeding.

135    In any event, Mr King’s submission must be rejected as his construction is clearly wrong on the face of the clear language of the provisions and by force of existing authority of this Court. The Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8(2) is given in the following terms:

8  Federal Circuit and Family Court of Australia

 …

(2)     The federal court known immediately before the commencement day as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2).

Note: The Parliament may create federal courts under Chapter III of the Constitution.

136    The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act 2021 (Cth) provides at sch 5 s 18(a) in its terms that:

18  Things done by, or in relation to, the Federal Circuit Court of Australia or Judges of the Court

To avoid doubt, the repeal of the Federal Circuit Court of Australia Act 1999, and any other amendment made by this Act, does not affect the validity of anything done, before the commencement day, by or in relation to:

(a) the Federal Circuit Court of Australia; or

…

137    It is clear that these provisions are intended to operate to preserve the effect of orders and decisions of the former Federal Circuit Court of Australia, and where that Court continues its existence in a different emanation as the FCFCOA (Division 2). The same was found by Feutrill J in Ogbonna, in the matter of Ogbonna [2023] FCA 1334 at [60]:

60    Nonetheless, I accept the proposed respondents' submission that the effect of s 8(2) of the FCFCOA Act and s 18 of Sch 5 of the FCFCOA Act Transitional Provisions is that a judgment or order of a judge of the Federal Circuit Court made before 1 September 2021 operates as a judgment or order of the FCAFCOA (Div 2) after 1 September 2021. The Federal Circuit Court continued after 1 September 2021 as the FCFCOA (Div 2). The repeal of the FCCA Act had no effect on the validity of anything done before 1 September 2021 in relation to the Federal Circuit Court, including judgments or orders of that court. Therefore, s 213 of the FCFCOA Act and r 25.11 of the FCFCOA (Div 2) Rules must apply to judgments or orders of the Federal Circuit Court made before 1 September 2021 as judgments or orders of the FCFCOA (Div 2).

138    Mr King, on behalf of Mr Lawrence, continually asserted that a person who regularly invokes the jurisdiction of a court has a prima facie right to insist upon its exercise. So much may be asserted but is not a complete answer and shield to such proceedings.

139    Mr King further submitted that in none of the proceedings have Ms Sammut and Mr Ciantar sought or obtained any order for indemnity costs, which is another touchstone of vexatious conduct. The fact of indemnity costs being made will be relevant but is not determinative of vexation. As will be evident from the NSW Supreme Court’s decision in Lawrence v Sammut (No 4) [2022] NSWSC 1033 following the decision in Proceeding 3, the Supreme Court departed from the usual order that costs follow the event and ordered that Mr Lawrence pay Ms Sammut’s and Mr Ciantar’s costs based on his misconduct in conducting the proceeding.

140    After hearing, Mr King sought leave to put on a further submission concerning, a recent decision of this Court in Ezekiel-Hart v Council of the Law Society (ACT) [2025] FCA 551 per Needham J. Mr King advanced the submission that in that decision, 45 matters were alleged, which “contrasts with this case in which 21 matters are listed”. The submission was undeveloped but appeared to be that somehow, the smaller number of proceedings between the parties counts against Mr Lawrence being the subject of a s 37AO declaration. Further, it was submitted that unresolved matters were “not in the frame”, including costs assessments or adjudication. It was also said that in these proceedings, “the applicants are private, frequent litigators with a personal axe to grind”. No support was given to this baseless argument. Mr King advanced an argument, that unlike Ezekiel-Hart, Ms Sammut and Mr Ciantar were, by proposed Order 3 (in the originating application of Ms Sammut and Mr Ciantar in NSD856 of 2024), seeking that this Court make orders regarding a matter in another court. However, this submission was misconceived. The parade has moved on. That proposed order was directed to the (then) proceeding number for Mr Lawrence’s application to set aside the fourth bankruptcy notice. At that time, that matter was before the FCFCOA as it had not been transferred as yet. This submission goes nowhere. Ms Sammut and Mr Ciantar are no longer moving on that order, it has fallen away given that proceeding was transferred to this Court (by consent).

141    It was further submitted by Mr King, by mere pinpoint reference to [47], and without substantive supporting analysis of Ezekiel-Hart, that, compared to that decision, in these proceedings, none of the actions have been “instituted” vexatiously, which limits their case.

142    Mr King submitted that all the proceedings in Ezekiel-Hart derive from a deluded fixation of the litigant with events surrounding his failed legal practice sourced to 2008 which has led him to make continuous scandalous allegations against staff and lawyers acting for a public body with significant public duties, all unsuccessfully so, and in which he has twice before been declared vexatious by other courts. Mr King submitted that is distinguishable from Mr Lawrence’s circumstances, in which he was said to have been “courteous to all including Court staff, and the Applicants’ lawyers; acting defensively and on reasonable grounds, he has lost and won cases, including on excessive costs orders against him”.

143    Mr King repeated the submission that no evidence was proffered personally by Ms Sammut and Mr Ciantar as to how his proceedings have vexed them, and made a bare reference to Jones v Dunkel and Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [64].

Disposition

144    This Court may make a vexatious proceedings order where the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals: s 37AO. Much of Mr Lawrence’s submission was directed to his right to institute proceedings. The mere existence of a right to institute, does not mean that a person is immune from the making of an order. Further Mr Lawrence’s submissions did not engage, at all, in any meaningful way with the second circumstance in which such an order can be made, namely, the frequent conduct of vexatious proceedings. As will be revealed from a consideration of certain of the proceedings below, Mr Lawrence’s conduct can be characterised as vexatious. The Court’s determination of whether s 37AO(1) is engaged may include, as s 37AO(6) contemplates, having regard to proceedings instituted or conducted in any Australian court or tribunal, orders made in any such forums and “the person’s overall conduct in proceedings” conducted in any of those forums.

145    Mr Lawrence made numerous submissions as to why the various proceedings could not be “vexatious proceedings”. Mr Lawrence submitted that account could not be taken of any claimed vexation arising from those proceedings that were unresolved (namely Proceedings 19, 20, 21, 10, 14 but also Proceedings 16 and 18 in the NCAT), that they also could not include those in NCAT (because of the claim that NCAT was not an “Australian tribunal”) (16 and 18) nor could account be taken of proceedings which were instituted after Ms Sammut and Mr Ciantar commenced their application for vexatious proceeding orders (and therefore, Mr Lawrence’s applications to set aside the fourth and fifth bankruptcy notices could not be included).

146    Mr King, on behalf of Mr Lawrence, made no persuasive submission by reference to the text of Pt VAAA nor by reference to any authority supportive of these purported limitations on the Court’s powers under the Part. I reject them. The terms “institute” and “vexatious proceeding” are of very broad import and include the conduct within proceedings. Such proceedings need not be “resolved” or finalised in order for the Court to form a view as to whether the alleged conduct falls within the definition of “vexatious proceeding”. No cogent submission was made as to why NCAT was not a “tribunal of… a State” within the meaning of s 37AM(1). I do not accept that the Court is not able to take into account proceedings instituted after the application for the vexatious proceeding orders was made. There is nothing within the legislative scheme that imposes such a limit, save for ensuring that the person, who is to be the subject of such an order, has been given an opportunity to be heard (s 37AO(4)). In this case, Mr Lawrence was provided with a list of all proceedings relied upon by Ms Sammut and Mr Ciantar well in advance of the hearing and provided with an opportunity to put on further evidence and submissions (after receipt of it) which included the fourth and fifth bankruptcy notice applications.

147    Further, Mr King, on behalf of Mr Lawrence, submitted that account could not be taken of proceedings in the former Federal Circuit Court because it is no longer a Court. For the reasons already given, this submission is entirely misconceived and must be rejected.

148    However, it is my view, that even if one were to limit the vexatious proceedings to those identified by Mr King on behalf of Mr Lawrence as permitted to be in the mix, I am satisfied that the threshold of Mr Lawrence frequently instituting or conducting vexatious proceedings has been established and the circumstances warrant me making of an order under s 37AO. I am so satisfied because of the reasons set out below concerning the Supreme Court proceedings coupled with or in isolation from the identified Federal Court proceedings (even not including Proceedings 19 and 20).

149    I consider that the following proceedings, which Mr Lawrence has instituted or conducted, are to be characterised as vexatious proceedings.

Supreme Court proceedings 1, 3, 4, 5 and 15

Proceeding 1

150    It may be recalled that before Proceeding 1, Mr Lawrence had been unsuccessful in Proceeding A and then unsuccessful before the Court of Appeal in Proceeding B.

151    Mr Lawrence’s application, in Proceeding 1, was to reopen Proceeding B. The NSW Court of Appeal dismissed that application with costs: Lawrence v Sammut (No 2) [2020] NSWCA 186. The Court described Mr Lawrence’s submissions as “lengthy” (at [5]) and that, by his first ground of appeal, he was plainly “re-agitating the arguments already considered by the Court”: at [8]. At [9], the Court said:

9    Here, it is plain that this is what Mr Lawrence is now seeking to do. Mr Lawrence was ably represented by experienced senior counsel on the appeal and there is no suggestion of inadequacy in the manner in which his counsel argued the appeal in the first place. No basis has been shown now to permit Mr Lawrence a second attempt to persuade the Court that his appeal should be allowed. To do so would be inconsistent with the principle of finality of litigation and outside the scope of UCPR, r 36.16.

152    Mr Lawrence sought, through Mr King, to avoid the proceedings being characterised as vexatious by reference Mr Lawrence’s subjective belief (without evidence) because of a “right or legitimate interest in applying to re-open the decision in question on the basis of misapprehension of the facts” and that the mere fact “he was unsuccessful does not mean that no legitimate juridical advantage was being sought, nor that his action was vexatious.” I do not accept that this is a true characterisation of the proceedings. It was not only that Mr Lawrence was unsuccessful but that when considering the relevant context, this was Mr Lawrence’s second attempt to re-agitate unsuccessful arguments. Mr Lawrence also made reference to the decision of “NSW Bar Association v Smith”, but without providing a full citation nor pinpoint, nor directing the Court as to how the decision or any aspect of it specifically supports his argument other than, “[s]uch applications have often been successful including in the Court of Appeal”. The submission is rejected.

153    Further, the Court of Appeal stated that “[t]he voluminous submissions of Mr Lawrence do not otherwise identify the relevance for the appeal” of certain matters (at [13]). Mr Lawrence made various additional allegations that Ms McLean breached the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), which the Court of Appeal described as “misconceived”: at [15].

Proceedings 3,4 and 5

154    As adverted to above, after Mr Lawrence’s failed application before the review panel, on 1 March 2021, he filed an appeal of the review panel’s decision in the Supreme Court of NSW (Proceeding 3). Thereafter, Lonergan J made orders by consent that the matter be referred to an independent referee for a report on costs. That was delivered on 16 August 2021.

155    In the course of that proceeding, Mr Lawrence brought two interlocutory applications (Proceedings 4 and 5). In Proceeding 4, Mr Lawrence issued notices to produce in October 2021 and February 2022 with respect to insurance associated with the development works and a bill of costs associated with Ms McLean’s costs.

156    On 28 March 2022, Lonergan J set aside the notices to produce in Proceeding 4: Lawrence v Sammut [2022] NSWSC 344. Justice Lonergan’s findings included that “[t]here is nothing in the documents sought by the notices to produce that would shed any light on the issues remaining” (at [21]) and that (at [25]):

… the range, relevance or purpose of each of the notices, is frankly almost incomprehensible. To the extent the notices can be understood, there is nothing in the description of the documents sought that has any relevance to the limited issues that remain live before the Court.

157    In Proceeding 5, Lonergan J set aside Mr Lawrence’s applications for leave to issue subpoenas on Ms McLean, MWL Financial Group, and Harrison and Gill Chartered Accountants: Lawrence v Sammut (No 2) [2022] NSWSC 390. Mr Lawrence made a generalised submission that the notices to produce were “dismissed on the conventional ground of insufficient relevance at that stage of the proceeding” and where Mr Lawrence was unrepresented. I reject the submission, it mischaracterises the full circumstances described in the decision.

158    Lonergan J found that the problems with the subpoenas are of the same kind as the notices to produce, namely, they call for irrelevant material: at [3], noting that “[t]he text of the affidavit does not contain any submission or explanation as to the relevance of the documents sought by the three proposed subpoenas”: at [12]. Her Honour found that Mr Lawrence’s written submissions were “incomprehensible” and “reflect a fixation on issues long ago dealt with and determined, and possibly an intention to obtain and use certain documents to reopen proceedings in the Federal Court”: at [13]. Her Honour accordingly dismissed the application with costs.

159    A submission was sought to be made as to Mr Lawrence’s vexation based on affidavit evidence of his former solicitor Mr Hedges who purportedly advised Mr Lawrence that his notices to procedure and subpoena were hopeless. I rejected the tender of that affidavit, and no reliance can be placed on it.

160    After the referee delivered his report, and Lonergan J delivered judgment in Proceedings 4 and 5, what followed was Schmidt AJ’s determination in Proceeding 3 of Mr Lawrence’s appeal against the review panel’s decision: Lawrence v Sammut [2022] NSWSC 657. On 24 May 2022, her Honour allowed the appeal and made orders that the referee’s report be adopted and that the parties were to confer on costs. Whilst much was made of Mr Lawrence’s purported victory, it was pyrrhic.

161    Following this decision, Schmidt AJ gave judgment on the costs of the appeal: Lawrence v Sammut (No 4) [2022] NSWSC 1033 (Proceeding 3). Despite Mr Lawrence’s apparent success, her Honour considered the issue of whether Mr Lawrence’s conduct disentitled him from the usual order and warranted a costs order being made in favour of Ms Sammut and Mr Ciantar (at [7]). Schimdt AJ concluded after considering Mr Lawrence’s course of conduct, that he is not entitled to a costs order in his favour, despite his success on appeal (at [43]), satisfying herself that Mr Lawrence engaged in misconduct (at [67]). Her Honour ordered that Mr Lawrence must pay Ms Sammut and Mr Ciantar’s costs in the proceedings. In the result, the costs pursuant to orders of Henry J in Proceeding A of $262,275.71 were reduced to $232,951.24 in accordance with the report, resulting in a total reduction of $29,324.47.

162    Her Honour found that Mr Lawrence should pay the costs of the review because he only achieved a 9% reduction in the costs from the referee’s report compared to the costs as assessed by the assessor: at [23].

163    Her Honour found that much of Mr Lawrence’s submissions “were difficult to follow and aspects of them were clearly irrelevant to the determination of the orders now to be made”: at [20]. Her Honour found that Mr Lawrence’s approach to the litigation, notwithstanding being self-represented at times, was not consistent with his obligation to further the just, quick and cheap resolution of the real issues and to comply with court processes (at [33]). Her Honour also found that Mr Lawrence caused the proceedings to be “unnecessarily protracted and costs unnecessarily incurred, before he finally urged the adoption of the referee's conclusions”. Her Honour also drew attention to Mr Lawrence having filed affidavits “many of them of no relevance to what remains to be determined”: at [54]. Given the quantum in dispute, no explanation was proffered by Mr Lawrence as to why proceedings were not brought in the District Court (at [38]). Further, Schmidt AJ observed (at [50]):

In March 2022 they successfully obtained orders setting aside notices to produce served while Mr Lawrence was self-represented: Lawrence v Sammut [2022] NSWSC 344. Lonergan J found the range, relevance and purpose of the notices incomprehensible, at a time when he was not advancing the adoption of the referee's report. There is again no reason why he should not bear the resulting costs.

164    Ultimately, her Honour found that Mr Lawrence’s conduct amounted to misconduct, causing unnecessary costs, and filing irrelevant material (at [60]–[61]). In the result, he was ordered to pay the Ms Sammut’s and Mr Ciantar’s costs of Proceeding 3. For Mr Lawrence to submit that he “succeeded in this case”, when he was ordered to pay costs, is indicative of his blindness to the vexation. As referred above, the nature of his misconduct led to the unusual result.

165    Therefore, notwithstanding having received a reduction of $29,324.47 in the costs payable of Proceeding A, Mr Lawrence was ordered to pay the costs of Proceeding 3, which by judgment of Registrar Jones on 19 July 2023, was ordered to be the sum of $115,000.

Proceeding 15

166    Proceeding 15 concerns an appeal brought by Mr Lawrence in the Supreme Court against the decision of Registrar Jones on 10 July 2023 that ordered Mr Lawrence to pay the costs of Proceeding 3 (that is, the costs of Mr Lawrence’s litigating the costs decision in Proceeding A), which was the sum of $115,000. Mr Lawrence failed in this appeal and judgment was delivered by Lonergan J on 30 November 2023: Lawrence v Summit (No 5) [2023] NSWSC 1476.

167    Her Honour referred the fact that the amended notice of motion sought other “obtuse and irrelevant relief” (at [1]), that Mr Lawrence’s arguments were “difficult to follow and consisted of non-sequiturs, arid complaints about the form of the documents and complaints based on an apparent misunderstanding of the decisions of Schmidt AJ” (at [15]). At [17], her Honour stated:

Mr Lawrence submitted that he should not have to pay the costs of the whole of the proceedings. I interpolate that Mr Lawrence appears not to understand or refuses to accept the effect of Schmidt AJ’s findings at [52], [53] and [67] to [70] of Lawrence v Sammut (No 4) [2022] NSWSC 1033 and the orders that she made. Her Honour made specific findings that Mr Lawrence’s conduct of the proceedings should be classed as misconduct that caused the costs of the proceedings to be increased. Her Honour concluded at [70] that Mr Lawrence must bear all of the costs of the proceedings. The “proceedings” involved a dispute about adoption of a referee’s report about costs to be paid by him for previous proceedings in the Equity Division. Schmidt AJ’s findings and orders are clearly stated and explained in her judgment and are not the subject of any appeal.

168    It is evident from her Honour’s reasons that Ms Sammut and Mr Ciantar were put to the cost of preparing the Court Book because Mr Lawrence failed to file any of the relevant material, putting on them a burden (and costs) that ought to be borne by Mr Lawrence.

169    Further, at [20]-[21], her Honour stated:

20    Given that Mr Lawrence had failed to file any relevant material, and to ensure that there was no further unnecessary delay, I requested the defendants' solicitor to provide to Chambers the evidence tendered before the Registrar so that I could carry out a review.

21    There is no doubt that Mr Lawrence should have filed with this notice of motion Mr Gordon's affidavits or at least prior to the hearing on 23 October 2023. He failed to do so. Mr Lawrence also should have properly articulated in the notice of motion and submissions this basis for the application for review. He did not. These failures meant that argument could not proceed and the Court and defendants' counsel and solicitors' time on 23 October 2023 was entirely wasted.

170    The reasons reveal that Mr Lawrence had requested a review, but not filed any of the material that he said should be examined in relation to the review. Then, at [32], her Honour determined that his application for review should fail and he must pay the defendant’s costs. Mr King only made a short submission, in passing, with respect to this proceeding on the basis that there was some true or legitimate issue in the proceeding. I reject this submission.

Proceeding 2

171    After Mr Lawrence’s two failed attempts to reagitate his claims before the Court of Appeal, he made an application for special leave to the High Court with respect to both of those decisions. The special leave application was eighteen pages in length, does not apparently grapple with the basal requirements of a special leave application and is largely incomprehensible.

Federal Court proceedings 11, 12, 14, 19 and 20

Proceeding 11

172    Proceeding 11 concerns Mr Lawrence’s appeal to this Court from the decision of Manousaridis J: NSD 1022 of 2021, Goodman J. The notice of appeal was filed on 30 September 2021. The underlying dispute concerned a purported set-off with respect to the amount at issue in the first bankruptcy notice. However, inexplicably, over a month before filing the notice of appeal, Mr Lawrence paid the amount due in the first bankruptcy notice. In addition, at the time Mr Lawrence paid the amount owing (from Proceeding A of $262,275.71), Mr Lawrence was still agitating the substantive costs of Proceeding A (Proceeding 3 which was not finalised until August 2022) and at the same time, Mr Lawrence was bringing a challenge to the bankruptcy petition itself. Then, on 17 March 2023, some 18 months after filing, the proceeding was dismissed by consent.

Proceeding 12

173    Proceeding 12 concerns Mr Lawrence’s application, filed 8 November 2021, to set aside the second bankruptcy notice on the basis of a counter-claim, set-off or cross demand. In support of that application, Mr Lawrence relied upon an affidavit where he made many of the same claims as those asserted in his appeal from Judge Manousaridis’ decision.

174    The underlying costs debt arose from the costs of Proceeding B, namely a Certificate of Determination of Costs being issued on 20 August 2021 in the amount of $49,651.55 and a Certificate of Determination of Manager’s Assessment Costs is also issued on 1 September 2021 in the amount of $3,971.00. On 22 October 2021, Ms Sammut and Mr Ciantar obtained a judgment debt in the total amount of $53,622.55. This judgment debt formed the basis of a second bankruptcy notice issued on 29 October 2021.

175    After the issuing of the second bankruptcy notice, Mr Lawrence filed an application for review. As I found above, I do not accept that Mr Lawrence had explained his intention of filing an application for review before Ms McLean took steps for the issuance of the bankruptcy notice. I do not accept Mr Lawrence’s evidence that he served the application for review of a determination of a costs assessor’s assessment of costs. That application was filed on 24 September 2021. What transpired thereafter is that when the application for bankruptcy came before Jagot J, Ms McLean informed Jagot J of the fact of Mr Lawrence subsequently filing an application for review, and therefore procedurally Ms McLean’s clients’ application could not proceed and was dismissed.

176    Whilst on first blush, this may suggest, that Mr Lawrence’s application to set aside the second bankruptcy notice had legitimacy, the following matters are notable and give rise to the vexation: First, Mr Lawrence’s application to set aside the bankruptcy notice was not made on this procedural ground. Secondly, whilst the application to set aside the bankruptcy notice was made after the application to review one of the underlying Costs Assessor’s costs determination, no reference was made to it in the application. Thirdly, the dismissal of the bankruptcy notice, then led to Ms Sammut and Mr Ciantar having to file the third bankruptcy notice (Proceeding 14 below). Fourthly, ultimately Mr Lawrence’s application for review was unsuccessful and only led to further costs, as detailed below. The review panel in this respect referred to the voluminous incomprehensible grounds and material filed in support of the review by Mr Lawrence that increased substantially the cost of the review process (addressed in Proceeding 6).

Proceeding 14

177    As just adverted to, after Mr Lawrence had not paid the debt owing from the second bankruptcy notice, Mr Lawrence’s review of the costs assessor’s determination failed. Indeed, the Review Panel observed, in its reasons delivered 24 January 2022, that Mr Lawrence had filed an enormous volume of material, his review comprised 23 grounds, of which the vast majority were described as not being valid grounds of objection, and where this conduct was also described by the review panel as considerably increasing the cost of the review.

178    The Supreme Court has the power under s 74(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) to refer “for assessment costs payable under an order made by the court”. The assessment is required under s 75(1)(a) to be made in accordance with the terms of the order, and where the assessment regime does not limit the power of the Court to determine in any particular case the amount of costs payable: s 79(a). Application may be made by a party for a review panel to be constituted to review the decision of the costs assessor in accordance with the requirements of the Act. The Supreme Court by virtue of s 89(2) has “all the functions of the review panel” and may hear an appeal against a decision of the review panel: s 89(1).

179    Mr King made a generalised oral submission (namely one sentence) that a “costs assessment” is not a proceeding under Pt VAAA. No reference was made to the legislative scheme nor any authority to support this submission. Here, reliance was placed on the Review Panel’s adjudication as it formed part of the costs of the failed Court of Appeal proceedings. I do not accept that account cannot be taken of conduct during the review proceedings: It was conduct that formed part of the proceedings in the Supreme Court.

180    As a consequence, on 18 March 2022, Ms Sammut and Mr Ciantar obtained judgment in the sum of $58,513.15, comprising the Certificate of Determination of Costs issued by the costs assessor on 20 August 2021 and the Certificate of Determination of Manager’s Assessment Costs of the same day, as well as the Certificate of Determination of Review Panel Costs, all of which being the costs accrued in respect of Proceeding B, and challenges to the costs thereof. On 21 March 2022, the Official Receiver issued a third bankruptcy notice for the amount of the judgment, being $58,513.15 for these costs.

181    In any event, even if I were wrong to take into account Mr Lawrence’s conduct as part of the review process which preceded Proceeding 14, I am satisfied that this proceeding itself ought be characterised as vexatious. Proceeding 14 comprised Mr Lawrence’s attempt to set aside this third bankruptcy notice. It was filed on 19 April 2022. Mr Lawrence sought to set aside this notice on the basis of set-off and counter-claim. Mr Lawrence’s application comprised 40 paragraphs, making a number of unintelligible claims, including an “offset [of] $1,153,535.90”, another set-off based on the decision of Manousaridis J, references to subpoenaing Ms McLean, reference to restitution, allegations that Ms McLean was breaching the Solicitors’ Rules, what appears to be a description of the legislative history of Solicitors’ Rules, and bare references to earlier decisions between the parties.

182    After filing his application but before hearing, on 14 December 2022, without any prior indication of what he proposed to do so, Mr Lawrence paid the subject amount into Ms McLean’s trust account: Lawrence v Sammut, in the matter of Lawrence [2023] FCA 1170 at [7] per Goodman J. Ms Sammut and Mr Ciantar then sought an order for the dismissal of the proceedings. Mr Twyford, appeared for Mr Lawrence, on 9 March 2023, and informed the Court that Mr Lawrence did not oppose such an order but wanted to be heard on the question of costs, and Goodman J ordered the proceedings dismissed save as to the question of costs. On 3 October 2023, Goodman J ordered Mr Lawrence to pay Ms Sammut and Mr Ciantar’s costs in the proceedings and for the question of the quantum of lump-sum costs be referred to a Registrar of this Court for any further directions which may be considered necessary and for determination.

183    At [26] of Lawrence v Sammut, in the matter of Lawrence [2023] FCA 1170, Goodman J made the following observation:

… this proceeding has already been wasteful of the respondents’ time and costs. A taxation process would likely generate more costs and further delay, particularly in circumstances where on this application the applicant has put before the Court voluminous materials irrelevant to the issues to be decided. Finally, Registrars of this Court are well-placed to determine the sum of a lump-sum costs award because of their regular work in that area.

Proceedings 19 and 20

184    Proceedings 19 and 20 concern Mr Lawrence’s applications to set aside the fourth and fifth bankruptcy notices. My findings above with respect to both failed applications are relied upon for the purpose of these proceedings. Even if I were wrong to characterise them as vexatious proceedings, I would maintain the view that the other proceedings already identified are vexatious and I would be satisfied upon the basis of those proceedings that my discretion should be exercised in making the orders.

185    It is my view that Proceedings 19 and 20 can be characterised as vexatious proceedings by either their institution or Mr Lawrence’s conduct during their ventilation.

186    The above findings reveal that by the claimed set-off (forming part of the application to set aside the fourth bankruptcy notice) Mr Lawrence continues to attempt to re-agitate failed claims or dispute findings of fact in Proceeding A (which was the subject of two successive failed applications before the Court of Appeal and for leave before the High Court). The vexation is further facilitated by paying the claimed amount under the notice but refusing to discharge the debt by insisting that the amount is held in trust. The findings also reveal that there was no basis for the claimed abuse said to underpin either application.

187    I do not accept Mr King’s argument that, in effect, a person has a right to contest bankruptcy proceedings, and that to make such an order, in the circumstances, would constitute a severe curtailment of citizens’ rights in relation to approaching the Court. Mr Lawrence’s conduct must be assessed on a continuum. I do not accept that Ms Sammut and Mr Ciantar ran up costs debts and served bankruptcy notices to put pressure on Mr Lawrence for the reasons already given above.

188    In any event, Mr Lawrence’s conducting of both applications was vexatious. Mr Lawrence repeatedly failed to serve processes, evidence and submissions upon Ms Sammut and Mr Ciantar in those proceedings. Rather, Mr Lawrence repeatedly gave the Registry or my Chambers documents without serving them. When Mr Lawrence purported to file (while represented by Mr King) further documentary evidence, approximately a month after he was required to do so, he did so by USB, which contained over 3,000 unindexed, unpaginated documents on 24 January 2025, and which required the Court to manually consolidate and paginate them and then provide them to Ms Sammut and Mr Ciantar.

189    Mr Lawrence’s application to set aside the fourth bankruptcy notice was largely incomprehensible. Mr Lawrence represented to Ms McLean, to the Court (through his Counsel), and in sworn evidence that he intended to pay the underlying judgment debt and to withdraw the proceedings. Mr Lawrence then changed his mind but paid the debt. Mr Lawrence did not identify in his application, written opening submissions nor oral opening submissions with any precision what the claim for set-off was. It was not until closing that any semblance of a submission was made.

190    Numerous sets of orders were made asking Mr Lawrence to identify from Ms Sammut’s and Mr Ciantar’s Court Book and the over 3,000-page bundle, what evidence he sought to rely on with respect to each application (including the vexatious proceeding orders). On 11 February 2025, Mr Lawrence provided an incomprehensible document headed “Documents Bundle of Mr Lawrence”, that purported to effectively identify all of his some 3,000 pages of material that he had filed on 24 January 2025. Mr Lawrence repeatedly failed to comply with this request (despite being represented) and when he approached Registry on 12 March 2025, he delivered by hand a bundle of documents of 104 pages in length that appeared to comprise:

(a)    a list of affidavits that Mr Lawrence relied upon in respect of the vexatious litigant proceedings, fourth and fifth bankruptcy notice set aside applications (apparently responsive to Order 4 of the Orders of Justice Raper dated 24 February 2025 that Mr Lawrence was to identify all affidavits relied upon in support of each application);

(b)    a document which appears to contain a summary description with accompanying page references of all of the documents contained in Mr Lawrence’s Court Book of 24 January 2025; and

(c)    various documents with no discernible purpose and not responsive to any Orders of the Court.

191    It was articulated at hearing on 22 May 2025 that my Chambers had on 13 March 2025, informed Mr Lawrence with Mr King copied, that the Court was very concerned at the voluminous material identified, and where there was no discernible purpose to the material.

192    It was my observation that Mr Lawrence, and through his Counsel, repeatedly engaged in conduct not conducive with what is expected in this Court and inconsistent with his obligations, and that of his legal representative under s 37M of the Act. Mr Lawrence repeatedly failed to comply with the Court’s orders to file his evidence on time and to assist the Court in understanding the basis for his applications to set aside the bankruptcy notice and opposition to the vexatious proceedings order. Mr Lawrence repeatedly failed to articulate with the required clarity what the basis for his applications to set aside each of the bankruptcy notices were and what, of the voluminous evidence he filed or the Court Book, he intended to rely on. It is my view that his conduct, with respect to each proceeding separately and in combination, was in furtherance of an abuse of the Court’s processes with respect to each of the proceedings that were before me.

NCAT proceedings

193    It is not necessary to the disposition of this application to give consideration to Mr Lawrence’s initiation and conduct of proceedings in the NCAT. However, it is my view that, had it been necessary to do so, I would have found that Proceedings 13 and 16 were vexatious proceedings. In Proceeding 16, Mr Lawrence was ordered to pay Ms Sammut and Mr Ciantar’s costs (a departure to the ordinary rule of each party pays its own costs: Civil and Administrative Tribunal Act 2013 (NSW) s 60(1)), as the presiding Senior Member in making the finding that Mr Lawrence’s claim “has no tenable basis in fact or law and that his application was lacking in substance”: at [27] also noted that Mr Lawrence had been warned shortly after lodging his application that the “Tribunal did not have jurisdiction to consider this claim, but he chose to proceed with it despite the warning so provided”: at [28] (Emphasis added).

Conclusion

194    Mr Lawrence has instituted or conducted the following proceedings which, I find, are to be characterised as vexatious for the purposes of s 37AO of the Federal Court Act: Proceedings 1, 3, 4, 5 and 15 (in the Supreme Court), Proceeding 2 (in the High Court) and Proceedings 11, 12, 14, 19 and 20 (in the Federal Court). I would exercise my discretion and make the orders even if Proceedings 19 and 20 were not included. I am of the view that Mr Lawrence’s conduct, in the vexatious proceedings, is also a furtherance of the abuse of process.

195    The above disposition reveals that Mr Lawrence frequently instituted or conducted vexatious proceedings. This is revealed, amongst other factors, from the orders and reasons in the identified proceedings above. Those reasons and orders are not relied upon to prove a fact in issue in those proceedings but, as s 37AO(6) expressly authorises, and as s 91 of the Evidence Act permits, they illustrate the course taken and the outcome which may be relied upon in order to determine whether the proceedings are vexatious: Fokas at [66].

196    They reveal that Mr Lawrence has failed to accept the finality of litigation and continues to re-agitate failed claims, reflective of an unfortunate fixation. By this failure, Mr Lawrence has repeatedly relied upon voluminous, incomprehensible submissions and materials and brought misconceived costly interlocutory disputes. This pattern is exposed by the unfortunate, labyrinthine consequences of Mr Lawrence’s failed first instance proceedings before Henry J (Proceeding A), where the costs upon costs of failed reviews, interlocutory proceedings and appeals led to costs almost doubling the initial judgment debt. The proceedings reveal that, notwithstanding being unrepresented or even when represented, Mr Lawrence does not conduct proceedings in a manner consistent with the obligation to further a just, quick and cheap resolution of the issues. The same was illustrated by the proceedings that emanated from Proceeding B.

197    Mr Lawrence’s vexation was illustrated by his conduct precipitating the orders and reasons given in Proceedings 14 and 19. Mr Lawrence would not pay the judgment debts, then after a bankruptcy notice issued, Mr Lawrence would bring an application to set aside the notice. Mr Lawrence would then pay the debt at a later date to facilitate the vexation which allows him to continue simultaneously maintaining the challenge to the debt (by the re-agitation of failed claims) which he would be otherwise prevented from by an act of bankruptcy.

198    Mr Lawrence repeatedly attempts to file voluminous documents, and seeks interlocutory relief, including the issue of notices to produce that are oppressive and largely indecipherable. The same occurred in the proceedings before me. Mr Lawrence files submissions that are often beyond comprehension. Mr Lawrence does not comply with Court orders and in both bankruptcy proceedings (and the vexatious proceedings) before me repeatedly failed to serve on Ms Sammut and Mr Ciantar evidence or documents.

199    For these reasons, I am satisfied that Mr Lawrence frequently institutes or conducts vexatious proceedings in Australian courts or tribunals. I am also satisfied that the Court should make vexatious proceedings orders. I accept that such orders inhibit Mr Lawrence’s ability to institute proceedings, to maintain extant proceedings and institute any appeal without leave. It is my view that such orders are necessary to give finality to the dispute between Mr Lawrence and Ms Sammut and Mr Ciantar concerning the Forestville property but also as to what appeared to be Mr Lawrence’s alleged grievance or fixation as against Ms McLean. Such an order is necessary not only to protect Mr Lawrence from himself but also to protect Court resources so that they are available to other litigants.

Associate:

Dated:    29 August 2025