In the matter of Mantis International Pty Ltd [2019] NSWSC 165

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Mantis International Pty Ltd [2019] NSWSC 165 Hearing dates: 18 February 2019 Decision date: 18 February 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: The proceedings be dismissed. Catchwords: CORPORATIONS – Deregistration – Orders sought in relation to deregistered company.

PRACTICE AND PROCEDURE – Failure to comply with directions of the court – whether court should dismiss proceedings under Civil Procedure Act 2005 (NSW) s 61 – where multiple extensions of time to comply with directions granted to plaintiff– where plaintiff has failed on multiple occasions to comply with directions Legislation Cited: Civil Procedure Act 2005 (NSW) s 61 Category: Principal judgment Parties: Russell Talisin (Plaintiff) Representation: Counsel:

Solicitors: R Talisin (Plaintiff) (self-represented) File Number(s): 2018/50692

Judgment – ex tempore (revised 20 february 2019) 1. The Applicant, Mr Russell Talisin, originally sought a range of orders in this application which related to a deregistered company, Mantis International Pty Ltd ("Mantis") which was said to have held property on trust, which vested in the Australian Securities and Investments Commission ("ASIC") on the deregistration of Mantis. 2. The matters were listed before Brereton J nearly a year ago, on 26 February 2018, when his Honour made orders to seek to put the matter on a proper basis including an order that Mr Talisin file and serve an Amended Originating Process by 16 April 2018 naming specified defendants, including ASIC, and seeking only specified relief, supported by affidavit evidence that would allow the matter to be determined. His Honour's orders were clear and constructive and should have allowed Mr Talisin to identify what would be required to progress the matter to a determination. Mr Talisin did not comply with those orders by 16 April 2018, or indeed, in the nearly twelve months that have passed since the proceedings commenced. 3. On 16 April 2018, Mr Talisin instead filed an Interlocutory Process which sought substantial relief, none of which was permitted by Brereton J's order, and did not seek the only relief which was likely to assist him, as set out in Brereton J's orders. On 16 April 2018, I delivered judgment which referred to the history of the matter to that point; indicated that I would further extend the time for compliance with the orders by Brereton J; and noted that, even by that time, it was difficult to see how this application could proceed to a successful conclusion if Mr Talisin could not or would not comply with the orders. I also noted the particular difficulties which appeared to arise from the number of persons against which Mr Talisin wished to commence proceedings; difficulty in determining where they were located and whether they were deceased, although those matters could have been addressed had Mr Talisin been prepared to comply with the orders made by Brereton J so as to bring a more focused application. I also drew Mr Talisin's attention to a range of legal assistance that might be open to him, although he has since referred to having obtained assistance from a patent attorney in Queensland, to which I will refer below. On that date, I further extended the time for Mr Talisin to comply with Brereton J's orders to 21 May 2018 and relisted the matter on 4 June 2018. 4. I vacated that hearing on 4 June 2018 on Mr Talisin's request, while he sought pro bono legal assistance, and relisted the matter in August 2018. On 6 August 2018, I further extended the time for compliance with orders 1 and 2 made by Brereton J on 26 February 2018 to 3 September 2018 and again extended the time for compliance with order 3 for a further period to 24 September 2018. I relisted the matter for hearing, then, on 8 October 2018. Prior to the hearing on 8 October 2018, Mr Talisin sent a number of emails to my Associate referring to various matters, including his dealings with ASIC. On 8 October 2018, I again extended the time for compliance with Brereton J's orders to 18 October 2018, and made an order that no further evidence was to be relied on if not filed in compliance with those orders by that date. I then listed the matter for further directions on 22 October 2018. 5. On 22 October 2018, I delivered a further judgment and extended the time for compliance with the orders made by Brereton J to 11 February 2019, and made a further order that no evidence was to be relied on if not filed in compliance with those orders by that date. That order was, of course, an extension of the earlier order which had had similar effect. In my judgment dated 22 October 2018, I addressed the various matters which had occurred on that day, and noted that the steps which Mr Talisin then contemplated did not appear to include compliance with the orders which Brereton J had made in February 2018. I also dealt with an application by Mr Talisin to file a further Interlocutory Process seeking a range of relief, which I did not permit. In my judgment of the same date, I noted that the history of non-compliance in the matter to that time may reflect difficulties with Mr Talisin's financial capacity, his health, his lack of access to legal advice and his wish to pursue proceedings of a much wider scale than those contemplated by the orders made by Brereton J. 6. At that time, Mr Talisin foreshadowed the possibility that funds may be released to him by ASIC, which may allow him to obtain legal assistance. Mr Talisin has today indicated, from the bar table, that substantial funds have in fact been released to him by ASIC, and he has disbursed a portion of those funds in several ways, to which I will refer below. At the hearing on 22 October 2018, Mr Talisin also accepted (as he recognised today) that a failure to comply with those orders after a further extension might cause the Court to draw the inference that they would never be complied with, given the time that would have passed. I observed in my judgment of that date that: "It seems to me that, in the circumstances, and notwithstanding the long delay that these proceedings have involved, and the cost to the community of providing the Court's services on multiple occasions when directions are not complied with, I should extend the time for Mr Talisin to comply with the directions once more. I should emphasise that that cost to the community is real...having said that, on the basis that Mr Talisin accepts that this extension may now be the final extension, and that further non-compliance with the orders made by Brereton J may have the result of dismissal of the proceedings, then I will once more extend the time, so as to ensure Mr Talisin has had a full opportunity to comply with those directions." 1. The directions made by Brereton J have once more not been complied with, in the nearly four months that have passed since 22 October 2018. In the period immediately prior to the hearing today, my Associate received an email from Mr Talisin referring to proceedings in the Federal Court, and to events in the United States, and annexing correspondence which appears to be directed to a US instrumentality. On 17 February 2019, by a further email to my Associate, Mr Talisin referred to his dealings with the United States, and the steps that he was then taking to prevent a potential fraud in the United States. He also referred to significant health difficulties, including over-work, migraine attacks and other matters. I have regard to those matters and to the personal hardship which they may impose upon Mr Talisin. 2. Recognising that the difficulties to which Mr Talisin refers from the bar table are obviously matters of real significance for him, and recognising also that he has put a number of other matters in submissions, including the steps which he has taken to purchase a school in the United States; the steps which he has taken to purchase an electronic microscope in the United States; his dealings with a patent attorney, who now appears to have left his practice or gone on sabbatical in circumstances which appear to have given rise to suspicion on Mr Talisin's part; his dealings with a former business partner, which have also given rise to suspicion on Mr Talisin's part; and Mr Talisin's belief that he is addressing some of the difficulties that he has faced, it seems to me that the history of this matter can leave the Court with no confidence that any further extension of time will bring Mr Talisin any closer to compliance with directions that have now been in place, and not complied with, for nearly a year. 3. I am satisfied that the proceedings should now be dismissed. First, that order should be made under s 61 of the Civil Procedure Act 2005 (NSW) where Mr Talisin has failed, over an extended period, to comply with the orders made by Brereton J in February 2018 and there is no basis to think that he can or will comply with them given any further adjournment. I have regard to the obligation on the Court, and the parties, to bring about the just, quick and cheap resolution of the real issues in the proceedings in that regard, but it seems to me that that objective will not be promoted by continuing to adjourn these proceedings, where directions are not complied with, and where Mr Talisin is unable to focus the application on the matters identified by Brereton J which would allow it any prospect of success. 4. Second, it seems to me that the proceedings should be dismissed on the merits, where the Court has now twice made guillotine orders in respect of evidence which have not been complied with; and the evidence before the Court does not provide any basis to establish the nature of the relevant funds; how the property has been dealt with; that the company would be solvent if reinstated; or that a liquidator has consented to appointment if the company were to be reinstated in liquidation. No basis is established for the order for reinstatement that is sought, on the evidence as it stands, and no basis is established to extend the time to permit further evidence, given the history to which I have referred. 5. For these reasons, I order that the proceedings be dismissed.