Federal Court of Australia

Du Bray & Associates Limited v Du Bray and Associates Pty Ltd (In Liquidation) [2026] FCA 849

ORDERS

THE COURT ORDERS THAT:

1.    The application by Lee Du Bray to dispense with compliance with r 4.01(2) of the Federal Court Rules 2011 (Cth) is refused.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    Mr Lee Francis Du Bray requires an indulgence. In his capacity as the sole director of Du Bray & Associates Ltd (a corporation incorporated in New Zealand) (DBNZ), he caused this proceeding to be commenced without appointing a lawyer contrary to r 4.01(2) of the Federal Court Rules 2011 (Cth). He seeks to continue to represent DBNZ. He may only do so if I am minded dispense with compliance with the Rule. I am not prepared to do so for the following brief reasons.

2    There are principles that have been identified as providing useful guidance to the exercise of the discretion. Justice Hill recently collected them in Ultimate Vision Inventions Pty Ltd v Industry Innovation and Science Australia [2026] FCA 507 at [16]-[21] and illustrated their application in the balance of his Honour’s reasons.

3    This proceeding bears some similarity with the issues that I determined in Bad Wolf Purchasing Pty Ltd (as trustee for the Du Bray Property Trust) v Du Bray and Associates Pty Ltd [2025] FCA 814, where the reference to the Australian corporate respondent in that case (DBA) must not be confused with the applicant in this proceeding. At issue in this proceeding is a claim by DBNZ against the liquidators of DBA that an amount of $353,973.72 that was held on deposit by Wise Australia Pty Ltd in the name of DBA and transferred to the liquidators on or about 28 August 2025, was a chose in action held on express trust for DBNZ and therefore is not property of DBA that may be applied in the liquidation. In Bad Wolf, I decided a similar claim adversely to Bad Wolf in respect of different choses in action brought by it as successor trustee to the Du Bray Property Trust. Reduced to the core contention, DBNZ contends that to avoid the effect of freezing orders made in the High Court of New Zealand, monies due from creditors of DBNZ were directed to be paid into the Wise accounts of DBA as the express secret trustee for DBNZ.

4    The liquidators deny the claim and have foreshadowed an application for security for costs, for orders to stay or dismiss the proceeding and for personal costs orders against Lee Du Bray.

5    Lee Du Bray appeared before me on 26 June 2026 and made submissions in support of the waiver application. In substance, he is a 73-year-old pensioner, with no financial ability to engage legal representation and, in any event, no lawyer will accept his instructions because of the freezing orders. He has a detailed knowledge of the facts relating to the claim and as such can competently marshal the facts and legal arguments. I should note that in his oral and written submissions he has evidenced a relatively good grasp of relevant legal principles, which counts in favour of his application.

6    However, there are other considerations that that are of much more weight in the exercise of my discretion.

7    In his affidavit filed in support of the originating application, Lee Du Bray states that he is the only person involved in the management of DBNZ and is the settlor and the only beneficiary of the Lee Du Bray Trust (of which Bad Wolf is the trustee). DBNZ does not have the financial capacity to obtain legal representation and the funds in issue in this proceeding constitute substantially the assets of the company. He is the person responsible for the secret trust arrangement and has personal knowledge of all the facts in issue. Further, he contends that the factual matrix of the proceeding “is complex and arises from a long history of trans-Tasman litigation spanning over a decade” and, in consequence, “no Australian lawyer could adequately understand the full context of the arrangements between DBNZ” and DBA absent a full understanding of the history of the proceedings without “extensive briefing that DBNZ cannot afford”. He further states that he has conducted business over a period of 25 years and has experience in legal proceedings as a self-represented litigant both in Australia and New Zealand and as such can competently present this case. Finally, if the waiver application fails, DBNZ will not be able to progress this proceeding, which will cause significant injustice to it.

8    A lack of funds is a matter that weighs in favour of permitting Lee Du Bray to represent DBNZ. But, apart from conclusionary statements in his affidavit, he did not provide evidence of the assets and liabilities of DBNZ; for example, a recent statement of financial accounts or bank statements. Nor did he provide evidence of his assets and liabilities or income, accepting that he is the sole person likely to benefit from success of the present application. Whilst it is true that he was made bankrupt on 16 July 2020, upon the application of his former de-facto partner, and discharged on 17 November 2024, of itself that is not evidence of his present lack of means or of any related entity. In Bad Wolf, I accepted evidence that he was funding solicitors and counsel in the Bad Wolf proceeding through a related entity: [58]. It was open to Lee Du Bray in this proceeding to contradict that evidence, but he has not. I am not satisfied that the claimed lack of financial capacity will stultify this proceeding.

9    I accept the submission that this case is of some complexity, which is confirmed by my reasons in Bad Wolf. Whilst Lee Du Bray is knowledgeable about the facts and has experience in the conduct of legal proceedings (which is evident from his history of self-representation in many of his de-facto relationship proceedings), that is insufficient to persuade me that he will be able to present the case objectively by bringing an independence of mind to the resolution of the factual and legal questions. His intimate involvement as the actor responsible for the secret trust counts heavily against permitting him the represent DBNZ.

10    Relatedly, it is highly probable that Lee Du Bray will be a witness in the proceeding. Whilst he says there are business records that can be relied on, it is the absence of direct evidence from the individuals concerned in the invoice payments diversion arrangement that counted heavily against acceptance of the Bad Wolf case: Bad Wolf at [71]-[81]. For Lee Du Bray to be a witness for and the advocate of DBNZ exposes an obvious conflict between his personal interests and the need to present the case objectively and conformably with the overarching purpose at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), which is the fundamental obligation that legal practitioners owe to this Court and where a breach may have disciplinary consequences that do not apply to Lee Du Bray.

11    Whether it was open to DBNZ and DBA to settle an express trust for the purpose circumventing freezing orders made in the High Court of New Zealand raises a legal question of some complexity and where it is obvious that the liquidators are likely to contend that this was a fraudulent arrangement and/or a sham and as such could not have had the legal effect that DBNZ contends for. It should be noted that DBA traded as trustee of the Trust and on its own account and the Wise account in issue however according to the statements attached to the supporting affidavit of Lee Du Bray does not contain the usual notation that DBA held the funds “ATF” the Trust. That will also raise the question of whether Lee Du Bray engaged in a fraudulent scheme. Where there are likely to be serious allegations of that character, I can have no confidence that Lee Du Bray will be able to present the case of DBNZ with the objectivity and independence expected of a legal practitioner.

12    Accordingly, this is not an appropriate case to dispense with r 4.01(2) of the Rules.

Associate:

Dated:    30 June 2026