Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238

Supreme Court New South Wales

Medium Neutral Citation: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238 Hearing dates: 5 March 2020 Decision date: 19 March 2020 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Stay of dismissal of proceedings is dissolved Catchwords: PRACTICE AND PROCEDURE – dismissal of proceedings brought by a company – where Court previously refused leave for the company's director to bring the proceedings and dismissed the proceedings but ordered stay of the dismissal pending a solicitor coming onto the record – where solicitor came onto the record but promptly ceased to act – HELD – stay of dismissal dissolved Cases Cited: Nauer v Batterham [2020] NSWSC 240 Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831 Category: Principal judgment Parties: Finsec Pty Limited as Trustee of the Batterham Retirement Fund – Plaintiff Marcel Andre Nauer – Defendant Representation: Counsel: P.J. Batterham – Plaintiff, Self-Represented J.R. Clarke S.C. – Defendant

Solicitors: Esplins Solicitors – Defendant File Number(s): 2019/340500

Judgment 1. HIS HONOUR: On 28 November 2019, I refused Mr Peter James Batterham (Batterham) leave to commence (or continue) proceedings brought by his company (Finsec) against the defendant (Nauer). I dismissed the proceedings but stayed the dismissal to allow a solicitor to come onto the record for Finsec by 6 February 2020. I ordered that if a solicitor did come onto the record for Finsec, the stay of the dismissal would continue until further order: Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831 (the first judgment). This judgment should be read in conjunction with the first judgment. The same definitions are used. 2. The matter came before me on 7 February 2020, at which time a solicitor, Mr Thomas Howard, appeared for Finsec. A Notice of Appointment of Solicitor had been filed the day before. Mr Howard sought an adjournment, which I gave. 3. However, on 19 February 2020, Mr Howard filed Notice of Intention of Ceasing to Act, and on 28 February 2020 Mr Howard ceased to act. There is no longer a solicitor on the record for Finsec. In the circumstances, it is appropriate that the stay of the dismissal be dissolved and I so order. I record that Batterham submitted that he should be given a further chance to arrange legal representation. The ends of justice will not be served by permitting this. The principal proceedings, for reasons which appear in my judgment in Nauer v Batterham [2020] NSWSC 240 to be delivered immediately after this judgment are an abuse of process and they have no reasonable prospects of success. 4. Additionally, Batterham and his entities owe Nauer significant amounts of money in respect of unsatisfied costs orders and there is no prospect of satisfaction ever occurring. 5. The stay of the dismissal of the proceedings is dissolved with the consequence that the proceedings stand dismissed.