Federal Court of Australia

Sandbar Developments (NT) Pty Ltd v Hall [2026] FCA 1536

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    This is an interlocutory application by the corporate applicant for leave to be represented in the proceedings by its General Manager, Mr Phillip Hoare. The sole issue on the application is whether the Court should exercise its discretion under r 1.34 of the Federal Court Rules 2011 (Cth) to dispense with the obligation imposed by FCR 4.01(2), which provides that “[a] corporation must not proceed in the Court other than by a lawyer.”

2    The respondents oppose the application.

3    It is for the reasons which follow that the application is dismissed.

Background

4    The background to this application may be stated briefly by reference to the applicant’s statement of claim filed 29 June 2026. No defences have been filed.

5    The applicant is a corporation carrying on business as a building contractor in the Northern Territory. Ms Kalotina Tsikouris is the sole director and shareholder of the applicant and is the spouse of Mr Hoare.

6    In order to carry out residential building work in the Northern Territory, a building contractor must obtain a fidelity certificate for that work: Building Act 1993 (NT) s 54AC. The fidelity certificates are issued by an approved fidelity fund of which there is only one in the Northern Territory.

7    The fidelity fund is administered pursuant to a Trust Deed executed on 20 December 2012, the Trustees of which were, during varying periods, the first to eighth respondents respectively.

8    The fidelity fund was administered by the eighth respondent pursuant to a management contract with the Trustees.

9    Regulation 37 of the Building (RBI and Fidelity Fund Schemes) Regulations 2012 (NT) provides that the Trust Deed of the approved fund must contain a provision that fidelity certificates may be issued to a builder only in relation to residential building work in a declared consumer protection area and only if the builder has paid the required contribution.

10    Building contractors in the Northern Territory carrying out residential building work may apply for an annual cover from the fidelity fund.

11    Since on or about 25 January 2023, the Trustees did not issue fidelity certificates to the applicant with the result that the applicant was unable to perform residential building work in the Northern Territory.

12    By its statement of claim, the applicant alleges the following causes of action against the respondents:

(a)    Misleading and deceptive conduct by silence or omission contrary to the provisions of ss 18 and 21 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth);

(b)    In the alternative to the claim at (a) above, misleading or deceptive conduct in relation to a financial product or financial service contrary to s 1041H of the Corporations Act 2001 (Cth);

(c)    Unconscionable conduct contrary to s 21 of the ACL;

(d)    In the alternative to the claim at (c) above, unconscionable conduct in connection with financial services, contrary to s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth);

(e)    breach of the Trust Deed and regulations made under the Building Regulations; and

(f)    injurious falsehood.

13    As a consequence of those causes of action, the applicant claims losses in the sum of $5.8 million as at 30 July 2025 and continuing.

14    Mr Hoare was granted leave to represent the applicant on the hearing of this application.

Documents read

15    In support of its application, the applicant reads the affidavits of Mr Hoare affirmed on 16 July 2026 but filed on 24 July 2026 (first Hoare affidavit) and affirmed and filed on 3 September 2026 (second Hoare affidavit).

16    The respondents read the affidavit of Mr Tristan John Riley sworn and filed on 20 August 2026.

Principles

17    The Court has a discretion under FCR 1.34 to dispense with compliance with any of the Federal Court Rules.

18    In order for the Court to dispense with compliance under FCR 4.01(2), it is necessary for the company to demonstrate “sufficient reason” as why it should be permitted to be represented other than by a lawyer considering all the “relevant considerations”: Francis (Trustee) v Oculus Accounting Pty Ltd [2021] FCA 448 at [39] (Derrington J) and the authorities cited therein.

19    The guiding principle is whether it is in the interests of justice that the company be permitted to be represented by someone other than a lawyer: Francis at [41]-[42] (Derrington J) citing Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 at [83] (Stein J with whom Mason P and Sheller JA agreed).

20    Whereas FCR 1.34 provides the Court with an unfettered discretion, nonetheless the authorities identify a non-exhaustive list of considerations that may be relevant to the question of whether the discretionary power should be exercised to dispense with compliance under FCR 4.01(2). They include:

(1)    the financial capacity of the company and those standing behind it, and whether a lack of financial capacity inhibits a company from obtaining legal representation;

(2)    the factual complexities of the case and the capacity of the proposed representative to conduct it effectively, having regard to their skills, training, qualifications and experience;

(3)    the overarching purpose of the civil practice and procedure provisions specified in s 37M of the Federal Court of Australia Act 1976 (Cth) and the effect on the achievement of that purpose if the company proceeds with or without legal representation;

(4)    the ability of the proposed representative to exercise the objectivity expected of a legal practitioner, and whether the lack of available disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;

(5)    the manner in which the case has progressed to date and the manner in which it may progress without the party having legal representation; and

(6)    whether the person seeking to represent the company is likely to be a principal witness at trial, particularly if their credit may be in issue, noting that the presentation and management of litigation may be practically unworkable without the assistance of solicitors and counsel where the representative is also the principal witness: Francis at [45] and the authorities cited therein.

See Francis at [44]-[46] (Derrington J) referring to Basetec Services Pty Ltd v CPB Contractors Pty Ltd (formerly Leighton Contractors Pty Ltd) [2017] FCA 510 at [8] (White J) and the authorities cited therein.

21    Whereas the impecuniosity of the company is a relevant consideration, when taken by itself, that is not sufficient. It is also necessary to consider the financial capacity of those standing behind the company to fund its representation in the litigation, and “[i]t is unlikely to be in the interests of justice to grant the indulgence sought where those who stand to benefit from it being granted can, themselves, afford to fund the company’s representation in the litigation”: Francis at [47] (Derrington J) citing Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] (French J).

Parties’ submissions and consideration

22    In its written submissions filed in support of the application, which were signed by Mr Hoare, the applicant clarified that it did not seek leave to be represented by Mr Hoare at large, but rather, for the interlocutory and pre-trial stages of the proceeding with its position at trial to be revisited when the “shape of the evidence” is known.

23    As a preliminary matter, in the applicant’s written submissions, the applicant proffers the following undertakings:

(a)    Mr Hoare will copy the respondents’ solicitors on all correspondence with the Court;

(b)    The applicant will comply strictly with all orders and timetables;

(c)    The applicant will obtain legal advice on any question of law arising for determination; and

(d)    Leave will be reviewable on the application of any party, or of the Court’s own motion.

24    The Court notes those undertakings but in all the circumstances, little turns on them.

25    I address the various principles identified in the authorities below.

Financial capacity of the applicant and those standing behind it

26    Mr Hoare deposes that the company is not trading and is impecunious. He deposes that the company’s impecuniosity is a consequence of the actions of the respondents.

27    The applicant submits that its incapacity is documented and independently certified. Mr Hoare deposes to the applicant entering into a small business restructuring under Part 5.3B of the Corporations Act on or about 10 February 2026.

28    That restructuring concluded on 17 April 2026 after a small business restructuring plan dated 23 March 2026 was accepted by a majority of the applicant’s creditors.

29    Mr Hoare did not annex the restructuring plan to either of his affidavits. The restructuring plan was, however, annexed to Mr Riley’s affidavit.

30    The restructuring plan reveals the applicant had trade creditor liabilities of approximately $684,468 with trading losses of $531,624 incurred in the 2023 to 2025 financial years and that suppliers had refused to extend credit terms. Further, the restructuring plan reveals that apart from its dispute with the fidelity fund, the applicant had bad debts arising from three separate projects as a consequence of property owners failing to make progress payments. Still further, Mr Hoare proposed to make a personal contribution of $230,000 in partial satisfaction of the applicant’s liabilities, and the restructuring practitioner had recorded that ‘The Hoare Family Superannuation Fund’ had forgiven a debt of $33,246 and would have no claim against the applicant if the restructuring plan was accepted.

31    Whereas Mr Hoare deposes as to the applicant entering into the restructuring plan, he did not:

(a)    annex a copy of the restructuring plan to either of his affidavits;

(b)    reveal that Ms Tsiroukis is his spouse;

(c)    annex any of the applicant’s financial statements to either of his affidavits; nor

(d)    annex any of his or Ms Tsiroukis’ financial information.

32    The failure to address the matters set out in [31] above is significant. In particular, the failure to provide any financial information is all the more significant in circumstances where in March 2026, the Supreme Court of the Northern Territory refused a similar application for Mr Hoare to represent the company in that Court: Sandbar Developments (NT) Pty Ltd v Leben Leadwort Court Pty Ltd & Anor [2026] NTSC 24.

33    In refusing the application in Sandbar, the Supreme Court of the Northern Territory observed: at [11] that information concerning the applicant’s company structure, financial position, ability to pay and retain staff and other information was either vague or completely lacking.

34    As at March 2026, Mr Hoare must have known, at the least, that information of the type identified by the Supreme Court of the Northern Territory was required on an application such as this, yet it was not provided.

35    I note that although the restructuring plan recorded that the applicant proposed to keep trading, that has not occurred.

36    The respondents submit that there is material uncertainty concerning the financial position of the applicant, and that the highest Mr Hoare’s evidence rises is the bare allegation that as a result of the matters about which complaint is made in the statement of claim, the applicant has been unable to trade and as a consequence cannot afford legal representation.

37    The respondents submit further that there is no evidence to establish the current financial position of the applicant, Mr Hoare or Ms Tsiroukis. Nor is there any evidence that it is unable to fund legal representation either itself or by Ms Tsiroukis, who as sole shareholder of the applicant, stands to benefit personally from the recovery of any damages.

38    On that point, the respondents submit it is significant that Ms Tsiroukis did not file any affidavit in support of this application.

39    Still further, the respondents refer to Mr Hoare’s statement in the first Hoare affidavit: at [23] that the applicant “is not able to retain solicitors to conduct this proceeding on an ongoing basis”, which raises the issue of an ability to fund at least part of the proceedings. That is made all the more significant by the applicant announcing in its written submissions that it sought leave for Mr Hoare to represent it for “interlocutory and pre-trial stages, with the position at trial to be revisited when the shape of the evidence is known”, and that one of the proferred undertakings is that “the Applicant will obtain legal advice on any question of law arising for determination”.

40    I accept the respondents’ submissions.

41    The vagueness of the very limited financial information provided by the applicant and the open-ended nature of the submission about revisiting the question of representation when “the shape of the evidence is known” is unsatisfactory and has the consequence that any consideration of the extent to which the applicant is able to fund the proceedings amounts to little more than speculation.

42    In accepting the respondents’ submissions, I note that at the end of the applicant’s oral reply submissions, Mr Hoare requested the opportunity to provide to the Court the yet to be prepared financial statements for the applicant for the financial year ending 30 June 2026.

43    I refused that request on the basis that an application such as this is not an iterative process. It is incumbent on the applicant to place before the Court all the evidence upon which it relies in support of its application. The applicant chose to bring its application at the time it did. It is not open to the applicant now to try and address the shortfalls in its evidence once confronted with those shortfalls.

44    Further, to allow the ongoing provision of evidence in answer to submissions made by the opposing party is, in the circumstances of this application, inimical to the overarching purpose of the civil practice and procedure provisions specified in s 37M of the FCA Act.

The manner in which the case has progressed and the manner in which it may progress without the applicant having legal representation

45    The applicant submits that the respondents have previously consented to Mr Hoare acting for the applicant in this litigation.

46    That arose in the context of an application for pre-action discovery being heard before a Registrar of the Court. That is a very different circumstance from that which is now being considered by the Court. I do not accept that any prior consent by the respondents in relation to an application for pre-action discovery is a proper basis upon which to grant leave for the applicant to be represented in these proceedings by someone who is not a legal practitioner.

The factual complexities of the case and the capacity of the proposed representative to conduct it effectively, having regard to their skills, training, qualifications and experience

47    The applicant submits that because of his involvement in the pre-action discovery process, Mr Hoare has demonstrated an understanding of the Court’s processes.

48    I do not accept that submission. As I have noted above, a pre-action discovery process is very different from representing an applicant in complex, commercial litigation such as this.

49    On that point, the respondents submit that these proceedings reveal a factually and legally complex matter, involving multiple respondents.

50    I accept that submission, which is evident from the statement of claim filed by the applicant.

51    In any case before the Court (and in particular, commercial cases) interlocutory steps can have a significant impact on the conduct of a trial. A number of the interlocutory steps involve the application of skill, training and experience. An example of this is the preparation of witness affidavits.

52    Mr Hoare is not legally qualified and, taking the above example at [48] (which is one of many potential examples), not only will the preparation of his witness statement as the principal witness for the applicant be of critical importance, if it is not prepared by a skilled and legally qualified person, it is likely that significant time and costs will be incurred arguing about objections and the admissibility of that evidence.

53    It is in that context that the authorities observe that where the person who is proposed to represent the company is likely to be a principal witness at trial, the presentation and management of litigation may be practically unworkable without the assistance of solicitors and counsel. That is particularly so if their credit is in issue: Francis at [45] (Derrington J) and the authorities cited therein.

54    I do not yet know if Mr Hoare’s credit will be an issue but one cannot rule out that possibility. In any event, even assuming that Mr Hoare’s credibility is not in issue, the assistance of solicitors and counsel is essential to manage this litigation, through to and at trial.

The overarching purpose of the civil practice and procedure provisions specified in s 37M of the FCA Act

55    The personal interest that Mr Hoare undoubtedly has in this matter, together with both his lack of training and accountability that covers the conduct of legal practitioners representing parties before the Court, assumes significance in light of the overarching purpose prescribed by s 37M of the FCA Act: Basetec at [8(c)] (White J) and the authorities cited therein.

56    I do not consider that the overarching purpose would be advanced by a grant of leave and in my view it is neither appropriate or consistent with s 37M of the FCA Act for Mr Hoare, or for that matter, any person who is not a lawyer, to represent the applicant in these proceedings.

The ability of the proposed representative to exercise the objectivity expected of a legal practitioner

57    The respondents submit that Mr Hoare does not have the requisite degree of objectivity that a lawyer acting for the applicant would have.

58    I accept that submission. The fact that Mr Hoare, at least through his wife, Ms Tsiroukis, stands to benefit from any award of damages, raises significant concerns about the requirement for objectivity in representing the applicant, particularly in circumstances where Mr Hoare is the applicant’s principal witness.

59    Further, on his evidence, Mr Hoare advanced $230,000 towards the payment of creditors as part of the small business restructuring, such that he has a direct interest in the outcome of any trial.

The applicant is the moving party

60    The applicant is the moving party and not a respondent. To the extent the authorities provide for some latitude in circumstances where a corporate applicant is a respondent, that is not the case here.

Conclusion

61    In view of the matters I have set out above, in the exercise of the Court’s discretion, it is not appropriate to grant leave to permit the applicant to be represented in these proceedings by Mr Hoare or for that matter, any person who is not a lawyer.

62    The application is dismissed.

Associate:

Dated:    16 October 2026

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