Federal Court of Australia

Cwalina v State of Victoria [2026] FCA 1249

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings are summarily dismissed.

2.    The applicant is to pay the first respondent’s costs on a party/party basis in a lump sum to be assessed by a Registrar of the Court.

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

REASONS FOR JUDGMENT

O’SULLIVAN J

1    The applicant, Mr Piotr Cwalina, commenced proceedings in this matter against the State of Victoria and Andrew James Barnden, acting as trustee of the estate of Zofia Majak.

2    There are two applications before the Court, both of which seek summary dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

3    The first is by the State of Victoria.

4    The originating application seeks a number of orders which concern proceedings brought in the Supreme Court of Victoria: Cwalina v Rose [2023] VSC 721. Richards J had made costs orders against Mr Cwalina in those proceedings.

5    Mr Cwalina applied for leave to appeal from the orders of Richards J, including an order that the costs orders be stayed. On 21 May 2026, the Victorian Court of Appeal refused that application: Cwalina v Rose [2026] VSCA 105.

6    By an interlocutory application filed 15 June 2026 in these proceedings, Mr Cwalina seeks, again amongst a number of other orders, a stay of any steps being taken to recover hearing fees arising out of appeal proceedings brought in the Victorian Court of Appeal.

7    The State of Victoria submits that these proceedings are a collateral attack on orders made by the Victorian Court of Appeal. I accept that submission.

8    On no view does Mr Cwalina have any reasonable prospect of success of prosecuting these proceedings against the State of Victoria, as neither the originating application nor the statement of claim filed by Mr Cwalina pleads any matter capable of giving rise to a cause of action against the State of Victoria.

9    In all the circumstances, there will be an order pursuant to s 31A(2) of the Federal Court of Australia Act that the originating application be summarily dismissed as against the State of Victoria.

10    There will also be an order that Mr Cwalina pay the State of Victoria’s costs on a party/party basis in a lump sum to be assessed by a Registrar of the Court.

11    The second application pursuant to s 31A(2) of the Federal Court of Australia Act is by the second respondent, Mr Barnden, who is the trustee in bankruptcy of the estate of Zofia Majak.

12    The issues underlying this matter have had a long and unfortunate history.

13    Supreme Court of Victoria Action No. S CI 2016 5,260 (VSC Action) was commenced in 2016 by Ms Majak against Mr Cwalina and Mr Alan Rose. Ms Majak and Mr Rose had been in a de facto relationship. Part of the matters raised concerned property interests that came within the jurisdiction of the Family Court of Australia (as it then was).

14    The history of the relationship between Ms Majak, Mr Cwalina and Mr Rose was set out in the judgment of the Victorian Court of Appeal in Cwalina v Rose [2026] VSCA 105 at [8]–[104]. I do not repeat it, save in certain respects.

15    On 18 August 2017, Riordan J made a number of orders in the VSC Action.

16    One such order was dismissing Ms Majak’s claim against Mr Cwalina with no order as to costs because they had settled, whereby Mr Cwalina had agreed to hold 5% of his interest in certain Land on trust for Ms Majak (Cwalina trust). Ms Majak also made claims against Mr Rose in relation to other land.

17    Ms Majak claimed an equitable interest against Mr Rose in the Land as a consequence of the Cwalina trust. By separate order, Riordan J transferred that part of the proceeding (as well as the claims in relation to the other land) to the Family Court of Australia under s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) to be consolidated with proceedings (P) SYC496/2015 in that Court where the claims were heard and determined.

18    That left the counter-claim brought by Mr Rose. Riordan J ordered that the action proceed on the counter-claim as the principal action against Ms Majak and Mr Cwalina.

19    Mr Rose subsequently discontinued his counter-claim against Ms Majak.

20    On 4 March 2022, Ms Majak applied in the VSC Action for leave to be joined to Mr Rose’s claim against Mr Cwalina so that together with Mr Cwalina, she could bring a counter-claim against Mr Rose. That application was dismissed on 1 April 2022.

21    Ms Majak appealed the dismissal of her application to be joined as a party.

22    On 1 December 2022, Mr Barnden was appointed as the trustee in bankruptcy of Ms Majak’s estate and on 22 December 2022 elected to discontinue Ms Majak’s appeal.

23    In the Family Court proceedings, the Court dismissed that part of Ms Majak’s claim in the Supreme Court of Victoria against Mr Rose in which she had alleged an equitable interest in the Land consequent upon the Cwalina Trust and which had been transferred to the Family Court.

24    In his originating application, Mr Cwalina refers to the Family Court proceedings and the VSC Action as the “fragmented proceedings”.

25    The originating application seeks a number of orders against Mr Barnden:

(6)    Declaration that [Mr Cwalina’s] proprietary and indemnity interests arising from the Declaration of Trust have not been finally determined in proceedings from which the liabilities and enforcement consequences relied upon in administration of the estate of Zofia Majak arise.

(7)    An order that [Mr Barnden] provide a full account of:

(a)    funds realised through receivership and administration processes relating to the estate of Zofia Majak, including proceeds exceeding $1 million realised through sale of the Ettalong Beach property by the receiver (appointed by the Family Court of Australia);

(b)    distributions, payments, deductions and liabilities relied upon in administration of the estate of Zofia Majak;

(c)    the basis upon which liabilities affecting [Mr Cwalina] continued to be treated as enforceable notwithstanding those realised assets;

(d)    the legal and administrative basis upon which [Mr Barnden] intervened in proceedings affecting joinder and participation of Zofia Majak; and

(e)    any financial benefit, exposure, recovery or asserted loss arising from the intervention, discontinuance of the appeal or continuation of administration processes relating to the estate of Zofia Majak;

(f)    costs, legal expenses and administration expenses incurred by [Mr Barnden] in connection with:

(i)    intervention in appellate proceedings affecting joinder and participation of Zofia Majak;

(ii)    discontinuance of proceedings affecting [Mr Cwalina’s] proprietary and indemnity interests;

(iii)    administration, enforcement and recovery steps arising from liabilities connected with the fragmented proceedings; and

(iv)    claims asserted against funds realised from sale of Properties co-owned by [Mr Cwalina] and Alan Rose;

(g)    the basis upon which any such costs, expenses or claims were treated as recoverable or properly payable from realised assets connected with the Properties.

(8)    An order that the Second Respondent disclose and produce documents sufficient to identify:

(a)    the basis upon which liabilities arising from the fragmented proceedings continued to be treated as operative despite unresolved proprietary, indemnity and liability issues pleaded in the Statement of Claim;

(b)    the basis upon which intervention and discontinuance of appellate proceedings were considered consistent with administration of the estate of Zofia Majak;

(c)    communications, assessments or considerations relating to [Mr Cwalina’s] asserted indemnity and proprietary interests arising from the Declaration of Trust;

(d)    communications, assessments or considerations relating to the consent orders of 12 February 2020 and the caveat registered by Zofia Majak;

(e)    the basis upon which claims continued to be asserted against realised assets notwithstanding unresolved proprietary and indemnity issues affecting [Mr Cwalina];

(f)    distributions, deductions, payments or claims made or proposed in connection with realised proceeds arising from receivership and administration processes; and

(g)    communications or arrangements concerning continuation of costs assessment, enforcement or administration processes arising from the fragmented proceedings.

(Square brackets provided)

26    Mr Barnden submits there is no reasonable prospect of Mr Cwalina successfully prosecuting the proceedings.

27    There are three issues. First, does Mr Cwalina have standing to pursue these proceedings against Mr Barnden in circumstances where Mr Barnden is the trustee in bankruptcy of the estate of Ms Majak? The declaration of trust to which Mr Cwalina refers in his originating application is the Cwalina trust. That was dealt with by the Family Court of Australia which dismissed the claim by Ms Majak that she had an equitable interest in the Land. That being the case, there is no interest in the Land of any type in Ms Majak’s bankrupt estate such that Mr Cwalina has no interest in Ms Majak’s bankrupt estate.

28    Second, insofar as Mr Cwalina seeks disclosure on the basis upon which Mr Barnden elected not to proceed with the appeal from the decision to dismiss Ms Majak’s application to be joined to the VSC Action, that is a matter for the trustee. Further, there was no application by Mr Cwalina at the relevant time in 2022 in relation to that matter.

29    The third issue is the claim for information about Ms Majak’s bankrupt estate. Mr Barnden submits that the information Mr Cwalina seeks about Ms Majak’s estate can be the subject of a request under provisions of the Bankruptcy Act 1966 (Cth). I accept that is the case.

30    Mr Cwalina submits that if I am inclined to summarily dismiss the claim against Mr Barnden, that he be given leave to amend his pleadings. There is no amendment which can be made which will give rise to a cause of action against Mr Barnden in the circumstances of this matter.

31    It is for these reasons I am satisfied that Mr Cwalina has no reasonable prospect of successfully prosecuting the proceedings such that the claim against Mr Barnden is summarily dismissed.

Associate:

Dated:    26 August 2026