Federal Court of Australia

Roths v Sergienko [2026] FCA 1360

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), this proceeding (NSD 1344 of 2026) be transferred to the Supreme Court of New South Wales, noting that this proceeding is related to an existing Supreme Court proceeding, being proceeding 2025/00263249.

2.    The costs of this proceeding to date be costs in the cause.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    This proceeding concerns a deed dated 9 April 2018 and registered mortgage AR278908 over 107 Killarney Drive, Killarney Heights, New South Wales. The plaintiff, Oliver Roths, filed an originating process seeking declarations that he was disqualified from managing corporations between 1 September 2014 and 1 September 2019, that he contravened s 206A of the Corporations Act 2001 (Cth) by participating in the negotiation and making of a deed of settlement on behalf of AXL Financial Pty Ltd (in liquidation), and that the first defendant, Sergei Sergienko, was knowingly concerned in or party to that contravention within s 79 of the Corporations Act.

2    The defendants are Mr Sergienko, IWC Industries Pty Ltd, and DK Excavation and Concreting Pty Ltd, respectively the first, second, and third defendants. Neither AXL nor its liquidator, Peter Krejci, is a party to the proceeding.

3    Mr Roths asserts that during the period of negotiations leading to the deed and at the time of the execution of the deed, he was disqualified from managing corporations. He refers to his conviction in about December 2008 for dishonesty offences, which he elsewhere describes as fraud and perjury offences, and his release from custody on or about 1 September 2014. He says that upon his release, he was disqualified from managing corporations for five years, that is, until 1 September 2019. He says that, although he was not a registered shareholder or director of AXL and did not consider himself to be a director or manager of the company, he negotiated on AXL’s behalf and agreed to the terms of the deed with Mr Sergienko. Mr Roths contends that, by taking those steps, he managed AXL while disqualified, contrary to s 206A of the Corporations Act.

4    In his originating process, Mr Roths also sought interlocutory orders pursuant to s 1324(4) of the Corporations Act restraining steps in Supreme Court of New South Wales proceeding 2025/00263249, declarations that the deed and mortgage were void or unenforceable, and a permanent restraint on enforcement of or reliance upon those instruments.

5    On 11 August 2026, Mr Sergienko filed an interlocutory application in this proceeding seeking the early determination of questions concerning the following issues: (1) Mr Roths’ standing; (2) whether the alleged contravention by Mr Roths of s 206A, as contended by Mr Roths himself, could support the relief claimed by Mr Roths against Mr Sergienko; (3) whether AXL is a necessary party to this proceeding; and (4) the overlap between this proceeding and the related Supreme Court proceedings (including the 2025/00263249 proceeding).

6    Mr Sergienko sought consequential orders requiring Mr Roths to identify the provisions, evidence and authorities upon which he relies, and to provide documents obtained in other proceedings that are said to be relevant to the separate questions which Mr Sergienko seeks to have answered as preliminary matters. He sought, in the alternative, summary dismissal, a permanent stay, or the striking out or dismissal of aspects of the pleaded relief concerning AXL and the deed.

7    On 13 August 2026, I ordered Mr Roths to identify his personal interest under s 1324, the legal basis on which the alleged s 206A contravention was said to render the deed or mortgage void or unenforceable, and which claims he sought to advance in respect of his own rights, as opposed to on a derivative basis.

8    On 27 August 2026, at the first case management hearing, I further ordered Mr Roths to identify the declaratory relief pressed, the precise questions said to require determination by this Court, and why the proceeding should not be transferred to the Supreme Court. The defendants were ordered to respond.

9    Following the case management hearing, Mr Roths substantially confined his case. He presses for the declarations in prayers 3 to 5, which raise the questions whether he contravened s 206A in negotiating and making the deed on behalf of AXL at a time when he was disqualified from managing corporations, and whether Mr Sergienko was knowingly involved in that alleged contravention within s 79. Mr Roths also presses prayers 1 and 6, by which he seeks to restrain Mr Sergienko from continuing to enforce the deed and mortgage against him personally. Mr Roths contends that s 1324 empowers the Court to grant that relief. He no longer presses prayers 2, 7, 8 or 9, no longer seeks relief staying or otherwise operating upon Supreme Court proceeding 2025/00263249, and does not seek to “set aside” the decision in Sergienko v AXL Financial Pty Ltd [2021] NSWSC 297 (Hammerschlag J).

10    AXL is not a party to this proceeding. However, because the claims concern a deed of settlement to which AXL is a party and a mortgage granted by AXL over the Killarney Heights property to secure obligations under that deed, AXL and its liquidator, Mr Krejci, appeared potentially to be interested persons or potentially necessary parties. On 13 August 2026, the Court invited Mr Krejci to provide a concise statement of AXL’s preliminary position on joinder, transfer and participation in this proceeding, and to address any other case management matters in respect of which he or AXL asserted an interest in being heard.

11    Mr Krejci responded that, on the limited material available to him, he was unable to express a view on the merits of the allegations, the causes of action or the remedies sought. He explained that AXL had no funds to participate in the proceeding or obtain legal advice and that its creditors were unlikely to fund its participation. He therefore did not seek, or consent, to AXL’s joinder, although he accepted that AXL could be joined if the Court considered that course necessary.

12    The question presently for determination is whether the proceeding should be transferred to the Supreme Court. I raised that question at the case management hearing on 27 August 2026 and ordered the parties to provide short written submissions addressing the relief pressed and whether the proceeding should remain in this Court on the basis that the transfer question would be determined on the papers.

13    For the reasons that follow, I consider that the proceeding should be transferred to the Supreme Court under s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act) and, if necessary, s 1337H(2) of the Corporations Act.

THE PARTIES’ COMPETING POSITIONS

14    The plaintiff opposes transfer and seeks a final hearing in this Court.

15    Mr Sergienko submits that, if the transfer question is determined now, the proceeding should be transferred because of the substantial factual and procedural overlap with the related Supreme Court proceedings. Alternatively, if the proceeding is not transferred, he submits that the threshold questions raised by his interlocutory application should be determined separately before any factual hearing. He seeks consequential orders disposing of, staying, or striking out the proceeding or aspects of the relief claimed, depending on the answers to those questions.

16    IWC Industries and DK Excavation oppose transfer at this stage, but accept that substantial overlap remains and submit that transfer may be reconsidered after the surviving claims are identified.

APPLICABLE PRINCIPLES

17    Both s 5(4) of the Cross-vesting Act and s 1337H(2) of the Corporations Act confer powers to transfer proceedings between courts that are to be exercised in the interests of justice.

18    The two transfer powers are governed by related, but not identical, statutory criteria. Under the Cross-vesting Act, the Court is required to transfer the proceeding if it appears that it is in the interests of justice that the proceeding be determined by another court. The inquiry is directed to identifying the more appropriate forum, without any presumption in favour of the plaintiff’s choice or any requirement that the transferor court be shown to be a clearly inappropriate forum. If the interests of justice dictate that the other court is the more appropriate forum, transfer is mandatory: BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400 at [14]-[15], [25] (Gleeson CJ, McHugh and Heydon JJ), [62]-[63], [69]-[72], [77] (Gummow J).

19    Section 1337H(2) of the Corporations Act, by contrast, confers a discretion to transfer the proceeding if, having regard to the interests of justice, it appears more appropriate that the proceeding be determined by another court having jurisdiction in the matters for determination. The interests of justice are a fundamental element of that discretion, and the discretion cannot properly be exercised contrary to the Court’s evaluation of the interests of justice. The interests of justice are not the only considerations that may be taken into account in a transfer under s 1337H(2). If the interests of justice are neutral or equivocal, the discretion may be exercised by reference to pragmatic considerations bearing upon the appropriateness of transfer, including the convenience of the parties or the courts. The Court must also have regard to the non-exhaustive mandatory considerations in s 1337L, namely the principal place of business of any body corporate concerned, the places where the events the subject of the proceeding occurred, and the other courts having jurisdiction to deal with the proceeding: Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7; 422 ALR 94 at [12], [67]-[74] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).

20    In applying either power, the inquiry is practical and evaluative. The “interests of justice” is an expression to be interpreted broadly. The task is to identify the “natural forum”: Schultz at [15], [18]. Relevant considerations may include the relationship between this proceeding and any proceeding pending in the proposed transferee court; the respective stages of those proceedings; the extent to which the parties and issues overlap; the risk of duplication or inconsistent findings; the places where the parties reside or carry on business; the location and availability of witnesses and documents; the law governing the relevant transactions; convenience, expense and expedition; any specialist experience or procedural facilities that may promote the efficient and economical resolution of the dispute; and the potential for unnecessary demands upon judicial, public, and private resources. The relevant connecting factors are potentially numerous, and their significance depends upon the circumstances of the case. The interests of justice are not confined to the interests of either party and may include broader considerations concerning the administration of justice and access to justice: Schultz at [15]-[21], [25]-[28]; Cmr of Taxation v Residence Riverside Proprietary Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 at [17] (McKerracher J).

CONSIDERATION

21    The factual considerations relevant to the two powers substantially overlap in the circumstances of this case, although the powers themselves are governed by different statutory tests, as explained above, and engage different consequential regimes as to the source of the transferee court’s jurisdiction and the law to be applied following transfer. Those differences are not presently material: the Supreme Court already holds concurrent federal jurisdiction over this matter under s 1337B of the Corporations Act, and Mr Roths’ claims arise wholly under that Act, a law of uniform Commonwealth application, so no question of choice of law arises regardless of which power is engaged. I consider first whether transfer is required under s 5(4) of the Cross-vesting Act. Having concluded that it is, I explain, in the alternative, why I would also exercise the discretionary power of transfer under s 1337H(2) of the Corporations Act, were it necessary to do so.

22    The principal consideration is the substantial factual and practical overlap between this proceeding and the Supreme Court proceeding. Both proceedings concern the deed, mortgage AR278908, the Killarney Heights property, the negotiations and dealings leading to the deed, and the continuing assertion or enforcement of rights said to arise from the deed and mortgage.

23    Mr Sergienko, IWC Industries, and DK Excavation submit that the operative amended statement of claim in the Supreme Court proceeding pleads that Mr Roths was AXL’s controlling mind and shadow director, negotiated the deed for AXL, instructed Derek Ziman to execute it, and acted under alleged duress from Mr Sergienko. Similarly, Mr Roths’ defence in that proceeding raises the negotiation of the deed, instructions to Mr Ziman, alleged duress, and the circumstances in which the deed was entered.

24    The relief sought in the Supreme Court is said to include setting aside the deed and mortgage. Mr Roths has indicated in his submissions that he now confines the scope of the relief he seeks in this proceeding by removing the direct claim that those instruments are void or unenforceable, but the common factual overlap in this proceeding and the proceeding in the Supreme Court remains substantial.

25    The evidence already filed in this proceeding addresses the circumstances pertaining to the negotiation, authority and execution of the deed and the alleged duress attendant thereon. If this proceeding remains in this Court, two courts may be required to hear evidence and make findings about overlapping communications, authority, knowledge, alleged duress, and the legal effect of the same instruments. That course would create duplication, additional expense and a real risk of inconsistent findings.

26    Mr Roths submits that coordinated case management would be sufficient and that the causes of action and plaintiffs differ. I do not accept that coordinated case management would adequately address the duplication arising from the necessity for two courts to determine the common factual controversy. Even if the proceedings were placed on coordinated timetables, each court might still be required to receive evidence and make findings about the negotiation and execution of the same deed, the authority under which Mr Roths acted, the circumstances said to constitute duress and the impact, if any, on resulting enforcement rights. Transfer avoids that duplication by permitting those connected controversies to be managed in one court.

27    Moreover, Mr Roths did not dispute that the claims now pressed could be advanced in the Supreme Court. Rather, he commenced this proceeding because he considered that this Court would determine his claim more quickly and separately from the existing Supreme Court proceeding, which he regarded as complex and making little progress. He said that transfer would cause his claim to “go in the abyss” of proceedings in the Supreme Court which, in his view, were “not going anywhere”. I was informed at the case management hearing that Mr Roths had previously served Mr Sergienko with a notice of motion in the Supreme Court proceeding seeking similar relief, but had not filed that motion. Mr Roths acknowledges that there is no jurisdictional obstacle to him bringing this claim in the Supreme Court. He further acknowledges that he has brought the proceeding in this Court because he is dissatisfied with the course and anticipated pace of the existing proceeding in the Supreme Court. Allowing substantially overlapping controversies to continue in separate courts on that basis would fragment the litigation, duplicate the use of judicial resources and risk bringing the administration of justice into disrepute.

28    Mr Sergienko also identifies a second Supreme Court proceeding, proceeding 2026/00327115, which is said to advance a s 206A theory concerning the same deed and seek restraints affecting him. Mr Roths’ submissions do not address that second proceeding. The materials do not permit findings about the precise scope or procedural status of that proceeding. I therefore place no material weight on that proceeding in determining whether transfer should occur.

29    IWC Industries and DK Excavation submit that transfer is premature until the precise surviving claims are identified. I accept that the pleaded relief requires regularisation, but I do not accept that this prevents transfer. Mr Roths has identified the substantive issues that he wishes to litigate, and the factual connection of those issues with the Supreme Court controversy is sufficiently clear for the forum issue to be determined. Transfer will permit the issues concerning the form and legal basis of the relief to be addressed by the Supreme Court, which is already dealing with the connected controversy, according to its procedures and directions.

30    For the reasons given, I am satisfied that the interests of justice dictate that this proceeding be determined by the Supreme Court, which is the more appropriate forum. Once that appears to the Court, s 5(4) of the Cross-vesting Act imposes a duty to transfer the proceeding; the power is not discretionary, and no question of a separate exercise of discretion arises: Schultz at [14]-[15] (Gleeson CJ, McHugh and Heydon JJ), [62]-[63] (Gummow J). I will accordingly order that this proceeding be transferred to the Supreme Court pursuant to s 5(4) of the Cross-vesting Act.

31    Were it necessary to rely instead on the power of transfer in s 1337H(2) of the Corporations Act, I would reach the same conclusion. Having regard to the non-exhaustive mandatory considerations in s 1337L, I am satisfied of those matters: the body corporate principally concerned is AXL, and the events the subject of the proceeding – the deed, the mortgage and the Killarney Heights property – are connected with New South Wales; and the Supreme Court has jurisdiction to determine the matters raised in the proceeding. Being so satisfied, and having regard more generally to the interests of justice for the reasons already given, I would exercise the discretion conferred by s 1337H(2) to transfer the proceeding to the Supreme Court. Unlike s 5(4) of the Cross-vesting Act, s 1337H(2) confers a discretion rather than a duty: Bogan at [70]-[71] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).

CONCLUSION

32    For these reasons, I will make orders transferring this proceeding to the Supreme Court pursuant to s 5(4) of the Cross-vesting Act. The costs of the proceeding to date will be costs in the cause.

Associate:

Dated:    15 September 2026