Chang v Chang [2026] VSC 418 (26 June 2026)

Chang v Chang [2026] VSC 418 (26 June 2026) AustLII Search Supreme Court of Victoria Search AustLII ▼ Search Options All databases This database only Full text Titles only Advanced Search… Search term: × Close About Contact Copyright & Usage Privacy Disclaimers Feedback Help Type Cases Jurisdiction Victoria Database Supreme Court of Victoria Year 2026 Citation [2026] VSC 418 All Databases Cases & Legislation Journals & Scholarship Law Reform Treaties Libraries Communities LawCite Australia CTH ACT NSW NT QLD SA TAS VIC WA New Zealand Specific Year Any 2015 Year Range 1970 2015 2015 2015 Apply --> Any Any 2026 --> Any 2015 2014 2013 --> Any 2015 2014 2013 --> Chang v Chang [2026] VSC 418 (26 June 2026) Last Updated: 29 June 2026 IN THE SUPREME COURT OF VICTORIA Not Restricted COMMON LAW DIVISION PROPERTY LIST S ECI 2021 01122 BETWEEN: VICTOR CHANG (otherwise known as SHENGLI CHANG) Plaintiff v HOLLY CHANG (otherwise known as HONG CHANG) Defendant - and – S ECI 2023 00747 BETWEEN: FUAN CHANG Plaintiff v ZI CHEN (JET) GU Defendant AND BETWEEN: ZI CHEN (JET) GU Plaintiff by Counterclaim v FUAN CHANG First Defendant by Counterclaim HOLLY CHANG (otherwise known as HONG CHANG) Second Defendant by Counterclaim - and – S ECI 2025 03682 BETWEEN: HOLLY CHANG (otherwise known as HONG CHANG) Plaintiff v ZI CHEN (JET) GU First Defendant SHENGLI PROPERTY DEVELOPMENTS PTY LTD (ACN 154 772 844) Second Defendant --- JUDGE : Fary AsJ WHERE HELD : Melbourne DATE OF HEARING : 19 June 2026 DATE OF JUDGMENT : 26 June 2026 CASE MAY BE CITED AS : Chang v Chang MEDIUM NEUTRAL CITATION : [2026] VSC 418 --- PRACTICE AND PROCEDURE — Three proceedings — Six applications — Complex procedural history — Self-represented litigants — Tomasevic v Travaglini [2007] VSC 337 ; (2007) 17 VR 100. PRACTICE AND PROCEDURE — Application to dismiss proceeding for want of prosecution — Whether intentional and contumelious default — Whether inordinate and inexcusable delay — Where plaintiff has failed to comply with Court orders – Discretionary considerations — Trial listed in August 2026 — Application refused — Supreme Court (General Civil Procedure) Rules (Vic), r 24.05 — Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863. PRACTICE AND PROCEDURE — Bifurcation of proceeding — Split trial — Appropriate to make orders bifurcating issues raised by plaintiff by counterclaim — Whether claim for mesne profits premature — Claims for mesne profits and damages to be heard separately — Supreme Court (General Civil Procedure) Rules (Vic), r 47.04. BANKRUPTCY — Effect of bankruptcy of plaintiff on proceedings — Effect of bankruptcy of defendant on proceedings — Vesting of property — Standing — Bankruptcy Act 1966 (Cth), ss 58 and 60 — Cummings v Claremont Petroleum NL (1996) 185 CLR 124. PROPERTY LAW — Equitable charge — Potential claim by bankruptcy trustee under s 120 of the Bankruptcy Act 1966 (Cth) — Requirements for a judicial sale pursuant to the inherent jurisdiction of the Court or Property Law Act 1958 (Vic), s 91 — Morris Finance Ltd v Brown [2017] FCAFC 97 ; (2017) 252 FCR 557. --- APPEARANCES : Counsel Solicitors For the Plaintiff in S ECI 2021 01122/The Second Defendant in S ECI 2025 03682 Mr C Banasik Herald Legal The Defendant in S ECI 2021 01122/The Plaintiff in S ECI 2025 03682 in person The Plaintiff in S ECI 2023 00747 in person The Defendant in S ECI 2023 00747 in person The First Defendant in S ECI 2025 03682 in person Mr Joseph Loebenstein as trustee of the property of Holly Chang, a bankrupt Mr A Serong, solicitor Serong Legal Contents HIS HONOUR: Introduction I devoted my whole life to my family. And now my son wanted to kick me out and asked me to back to China. And my grandson wanted to kick me out from the property. I have no idea what mistake I made. I have three children and I love them very much. And my son is in this proceeding with my daughter, and this proceeding has lasted for 10 years ... I suffer. Me and my wife suffer from this proceeding a lot. My wife passed away couple of years ago in the duration of this proceeding. [1] (Fuan Chang, 86 [2] or 88) [3] The applications before me relate to a ‘suite’ of litigation in this Court and other courts over the last decade involving three generations of the Chang family: (a) Fuan [4] Chang, patriarch; (b) Holly Chang, daughter of Fuan, who is an undischarged bankrupt; (c) Victor Chang, son of Fuan and brother of Holly; and (d) Zi Chen ( Jet ) Gu, son of Holly, nephew of Victor and grandson of Fuan. The applications before me relate to three proceedings forming part of that suite: (a) proceeding S ECI 2021 01122, between the plaintiff, Victor, and defendant, Holly, whereby Victor seeks orders in respect of the balance of proceeds of sale of the property at 31 Ormond Esplanade, Elwood ( Ormond Esp Property ) including that they are traceable into the property at 22 Tacoma Street, Park Orchards ( Tacoma St Property ) ( Victor’s Proceeding ); (b) proceeding S ECI 2023 00747, involving: (i) a claim between the plaintiff, Fuan, and the defendant, Jet, whereby Fuan claims that all or a proportion of the property at 29 Howitt Street, South Yarra, Victoria ( Howitt St Property ), registered in the name of Jet, is held by him on trust for him, alternatively, orders setting aside a transfer of the Howitt St Property ( Fuan’s Claim ); and (ii) a counterclaim between the plaintiff by counterclaim, Jet, and the defendants by counterclaim, Fuan and Holly, by which Jet seeks removal of a caveat AW352545C lodged by Fuan on the title to the Howitt St Property, claiming an interest on the basis of an ‘implied, resulting or constructive trust’ ( Fuan’s Caveat ), immediate possession of the property, mesne profits and damages (exemplary and aggravated) ( Jet’s Counterclaim ). ( Fuan’s Proceeding ); and (c) proceeding S ECI 2025 03682, between the plaintiff, Holly, and the defendants, Jet and Shengli Property Developments Pty Ltd, whereby Holly claims that a transfer of the Howitt St Property from Shengli to Jet was done without authority and in breach of trust and seeks various consequential orders ( Holly’s Proceeding ). There are Six Applications before the Court: (a) Two applications in Holly’s Proceeding: (i) an application by Shengli, made by summons dated 25 April 2026, to dismiss the proceeding against Holly, on the basis that the proceeding has been deemed to have been abandoned, pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth) ( Shengli’s 25.4.26 Application ); and (ii) an application by Holly, made by summons dated 8 May 2026, seeking orders, pursuant to ss 58(3)(b) or 60 of the Bankruptcy Act , that she ‘be granted leave to continue or participate in this proceeding notwithstanding bankruptcy’, alternatively that the proceeding be adjourned or stayed pending resolution of various other proceedings, and for a stay or adjournment of proceedings relating to the Howitt St Property (ie Victor’s Proceeding) ( Holly’s 8.5.26 Application ). (b) Two applications in Fuan’s Proceeding: (i) an application by Jet, made by summons dated 18 March 2026, seeking the dismissal of Fuan’s Claim for want of prosecution ( Jet’s 18.3.26 Application ); and (ii) an application by Holly, made by summons dated 8 May 2026 (and filed in Holly’s Proceeding), for orders that ‘insofar as [Jet] presses any possession claim or counterclaim, that claim be adjourned or stayed pending clarification of the trustee in bankruptcy’s position and any asserted estate interest relating to the [Howitt St Property]’ ( Holly’s 8.5.26 Application ). (c) Two applications in Victor’s Proceeding: (i) an application by Victor, made by summons dated 7 May 2026, for orders joining Mr Joseph Loebenstein (Holly’s Trustee in bankruptcy) as a defendant in his capacity as trustee for the bankrupt estate of Holly, for the limited purpose of making directions and associated orders ( Victor’s 7.5.26 Application ); and (ii) an application by Victor, made by summons dated 24 November 2025, for orders for judicial sale of the Tacoma St Property and associated orders ( Victor’s 24.11.25 Application ). Procedural history The following is a greatly abridged procedural history of the three proceedings, as well as other related proceedings, including Holly’s bankruptcy proceedings. On 21 October 2016, Victor commenced proceeding S CI 2016 04282 against Holly by writ and summons seeking injunctive relief concerning the publication of certain confidential information ( Victor’s Earlier Proceeding ). Victor’s Earlier Proceeding gave rise to injunctions and undertakings to the Court, as well as an application to prosecute Holly for contempt of court. On 15 April 2021, Victor commenced Victor’s Proceeding (ie a subsequent proceeding to Victor’s Earlier Proceeding). On 22 October 2022, Holly commenced proceeding S ECI 2022 04357 against Victor, which concerned ‘alleged family trust arrangements said to lie behind the purchase and sale of various properties in Melbourne and Sydney in the period between about 2009 and 2015’ [5] and a claim by Holly for an injunction concerning the Howitt St Property ( Holly’s Earlier Proceeding ). On 27 February 2023, Fuan commenced Fuan’s Proceeding, by which Fuan claimed a beneficial interest in the Howitt St Property. On 4 April 2023, Matthews AsJ made orders that Fuan’s Proceeding, Victor’s Proceeding, and Holly’s Earlier Proceeding, be managed together. In July 2024, orders were made vacating the trial date for Victor’s Proceeding and Holly’s Earlier Proceeding, on the basis that it was not ready for a trial in August 2024. On 4 February 2025, Daly AsJ made orders striking out the defence in Victor’s Proceeding, and giving judgment in default for the plaintiff, Victor, and dismissing Holly’s Earlier Proceeding ( 4.2.25 Orders ). On 20 May 2025 and 2 June 2025, Holly filed summonses seeking to set aside the 4.2.25 Orders. On 18 June 2025, Daly AsJ dismissed Holly’s application to set aside the default judgment in the 4.2.25 Orders. On 2 July 2025, Daly AsJ gave reasons to augment and slightly modify the ruling delivered on 18 June 2025. On 20 June 2025, Holly commenced Holly’s Proceeding. On 21 August 2025, Daly AsJ made orders in Holly’s Proceeding that it and Fuan’s Proceeding be managed and heard together, that Holly’s application to join Victor to Holly’s Proceeding be dismissed, and that various paragraphs of her statement of claim be struck out. On 4 December 2025, Hannon J made orders that Holly’s appeals and applications in respect of Daly AsJ’s orders and reasons made on 2 July 2025 be dismissed. On 19 November 2025, Hannon J gave judgment in relation to an appeal from the orders made by Daly AsJ on various dates in Holly’s Earlier Proceeding and Victor’s Proceeding. [6] On 20 November 2025, Victor presented a creditors petition against Holly to the Federal Court of Australia. On 24 November 2025, Victor filed a summons in Victor’s Proceeding, seeking an order for the sale of the Tacoma St Property (ie Victor’s 24.11.25 Application). On 23 December 2025, Holly filed an application for leave to appeal to the Court of Appeal from the decision of Hannon J made on 19 November 2025. [7] That application was deemed to have been abandoned pursuant to s 60(3) of the Bankruptcy Act in circumstances where the Trustee was given notice of it and did not make an election to prosecute the application. On 22 January 2026, Registrar Ellis of the Federal Court made a Sequestration Order against Holly’s estate under the Bankruptcy Act , on the petition of Victor, and the Official Trustee became trustee of her bankrupt estate. On 24 February 2026, Mr Loebenstein was appointed Holly’s Trustee in bankruptcy. On 20 March 2026, Holly filed an application in the Federal Court seeking that the Sequestration Order be set aside or varied on review ( Review Application ). [8] On 15 April 2026, Holly filed an application in the Federal Court seeking orders that her bankruptcy be annulled ( Annulment Application ). [9] On 7 May 2026, Victor filed Victor’s 7.5.26 Application seeking joinder of the Trustee to Victor’s Proceeding for a limited purpose and for other procedural orders. On 27 May 2026, I adjourned the Six Applications to 19 June 2026. On 5 June 2026, McElwaine J made orders dismissing Holly’s Review Application in respect of the Sequestration Order. [10] On 19 June 2026, I heard the Six Applications. On 26 June 2026, McElwaine J made orders dismissing Holly’s Annulment Application. [11] On 26 June 2026, Hannon J made orders that the summons filed by Victor on 24 November 2025 and further summons filed on 7 May 2026 (ie Victor’s 24.1125 Application and Victor’s 7.5.26 Application) are referred to an Associate Judge for hearing and determination pursuant to r 77.05 of Rules or if required, also pursuant to r 16.1(3) of the Supreme Court (Corporations) Rules 2023 . Holly’s Proceeding Material Holly has filed and relies on the following: (a) originating motion filed 20 June 2025; (b) amended statement of claim filed 26 August 2025; (c) summons filed 8 May 2026; (d) affidavits sworn 8 May 2026, 23 May 2026 and 12 June 2026; and (e) written submissions filed 8 May 2026, 19 May 2026, 23 May 2026 and 12 June 2026. Jet has filed and relies on the following: (a) an affidavit affirmed 4 May 2026; and (b) written submissions dated 15 May 2026. Shengli has filed and relies on the following: (a) affidavits of Victor affirmed 31 March 2026 and 11 June 2026; (b) summons filed 25 April 2026; and (c) written submissions dated 31 March 2026, 22 May 2026 and 28 May 2026. Background Holly and Fuan live in the Howitt St Property. Jet is the registered proprietor. Holly alleges in her amended statement of claim, dated 26 August 2025, that: (a) On 14 December 2011, the Chang Family Trust was established by deed of trust, with Shengli as trustee. (b) ‘Holly was a named beneficiary of the Trust until about 2019, when she was removed without her knowledge or consent’. (c) On 4 March 2014, the Howitt St Property was acquired by Shengli as trustee of the Trust. (d) On or about 5 November 2015, Jet entered into a ‘sham loan’ agreement with Shengli in respect of a stated advance of $3.5 million, in circumstances where no funds were in fact advanced but which was subsequently used to ‘justify the transfer of the [Howitt St] Property to [Jet]’. (e) On 4 May 2022, Shengli transferred the Howitt St Property to Jet, who became the registered proprietor of the property. (f) The transfer was ‘in breach of fiduciary duties owed by the Defendants’. (g) Shengli held the Howitt St Property on a resulting trust, or constructive trust, or common intention constructive trust, for Holly ‘to the extent of a 50% beneficial interest’ because of various matters, including, Holly providing a guarantee of the loan used to acquire the property, ‘contributions of family and trust funds’ to the acquisition of the property, Holly’s status as a beneficiary of the Trust, and the family’s shared ‘common intention’. (h) Jet ‘was not a bona fide purchaser without notice’. (i) The transfer constituted equitable fraud. On 22 January 2026, the Sequestration Order was made and Holly became a bankrupt. On 28 January 2026, [12] Victor wrote to the Australian Financial Security Authority ( AFSA ), on behalf of the Official Trustee, and provided notice of Holly’s Proceeding under s 60(3) of the Bankruptcy Act . On 30 January 2026, Holly wrote to the Court and to the parties, stating that each of Victor’s Proceeding and Holly’s Proceeding remained ‘on foot’. On 10 February 2026, Holly wrote to the Court and to the parties, attaching Daly AsJ’s ruling dated 18 July 2024 made in Fuan’s Proceeding. [13] The email enquired as to whether the continuation or prosecution of the proceedings rested with the trustee. On 12 February 2026, the Official Trustee wrote to the Court and sought an adjournment of the directions hearing listed on 23 February 2026, before Burgess JR, to ‘preserve the bankrupt estate’s legal actions’. On 18 February 2026, Holly wrote to the Court, seeking guidance as to whether the directions hearing should proceed or otherwise be adjourned. [14] On 20 February 2026, the Official Trustee wrote to the Court, and to the parties in Fuan’s Proceeding, to confirm that Holly’s property had vested in her bankrupt estate on 22 January 2026, and to confirm that no decision be made at the upcoming directions hearing in relation to ‘the legal action/property of Holly Chang now vested in her bankrupt estate’. On 23 February 2026, the Court adjourned the directions hearing until 15 April 2026. On 24 February 2026, Mr Loebenstein became the Trustee of Holly’s bankrupt estate. On 16 March 2026, Holly wrote to the Trustee, the Court and the parties, seeking clarification as to the Trustee’s position across the multiple proceedings. On 17 March 2026, the Trustee wrote to Holly, stating that, absent adequate funding, he did not intend to prosecute any of the actions commenced by Holly and would not make an election in respect of them. On 18 March 2026, Holly wrote to the Court, the Trustee and Victor, stating that no election had been made pursuant to s 60(3) of the Bankruptcy Act . She sought directions that she be permitted to continue Holly’s Proceeding in her own name. On 18 March 2026, Holly wrote to the Court and to the parties, contending that there ‘is a real dispute’ in respect of the beneficial ownership of the Tacoma St Property. On 25 March 2026, the Trustee wrote to Holly, stating, among other things, that, in his view, she had no standing to continue proceedings commenced by her insofar as those proceedings concerned assets vested in him as Trustee. On 25 March 2026, Serong Legal, on behalf of the Trustee, wrote to the Court and the parties, advising that the Trustee had made no election and did not intend to file any materials in respect of Fuan’s Proceeding and Holly’s Proceeding. On 26 March 2026, Holly wrote to the Trustee, the Court and to the parties, [15] attaching an affidavit which set out her purported claims, including that she held at least a 50% beneficial interest in relevant assets. On 26 March 2026, Holly wrote to the Court and to the parties, seeking a ‘single consolidated explanation’ of the Trustee’s position across the multiple proceedings. [16] On 27 March 2026, Holly wrote to the Trustee, [17] enquiring as to whether a Magistrates’ Court family violence intervention order fell within the control of the Trustee. Holly’s 8.5.26 Application By Holly’s 8.5.26 Application, she seeks relief, including: (a) Pursuant to ss 58(3)(b) and/or 60 of the Bankruptcy Act , Holly be granted leave to continue or participate in the proceeding, notwithstanding her bankruptcy. (b) Alternatively, the proceeding be adjourned or stayed pending determination of: (i) related bankruptcy proceedings; (ii) related appellate proceedings; and (iii) applications concerning annulment, review, variation and/or setting aside of the sequestration order. (c) Shengli’s 25.4.26 Application be dismissed or otherwise adjourned. (d) Insofar as Jet presses any possession claim or counterclaim, that claim be adjourned or stayed pending clarification of the Trustee’s position on any asserted interest in the Howitt St Property. (e) Holly be granted leave to rely upon: (i) affidavits of Holly Chang sworn 8 May 2026; and (ii) Holly’s written submissions dated 8 May 2026. It was not entirely clear whether Holly seeks to pursue Holly’s 8.5.26 Application in view of her bankruptcy. Some of her oral submissions indicated an acceptance of the effect of the bankruptcy on those proceedings. Nevertheless, I address Holly’s 8.5.26 Application because it has not been withdrawn. Consideration In Holly’s Proceeding, Holly claims that the transfer of the Howitt St Property from Shengli to Jet was done without authority and in breach of trust and seeks various consequential orders. Having regard to the amended statement of claim filed by Holly, it is clear that she alleges an entitlement to a 50% beneficial interest in the Howitt St Property by reason of a constructive or resulting trust. She seeks orders setting aside the transfer of the property from Shengli to Jet, as well as other consequential relief. Sections 58 and 60 of the Bankruptcy Act Holly’s written submissions seek leave, pursuant to ss 58(3)(b) and/or 60 of the Bankruptcy Act , ‘to continue or participate in this proceeding, notwithstanding bankruptcy’. The Supreme Court does not have jurisdiction to make orders under ss 58(3)(b) of the Bankruptcy Act , save where there are ‘special reasons’ to do so. [18] Section 58(3)(b) of the Bankruptcy Act provides that, except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor: (a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or (b) except with the leave of the Court, and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding. Section 58(3)(b) of the Bankruptcy Act has no application to Holly’s Proceeding. Holly is a bankrupt and not a creditor. Holly’s Proceeding is not a proceeding ‘in respect of a provable debt’. It is a proceeding by Holly claiming an interest in property. Section 60(2) of the Bankruptcy Act provides that an action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. Section 60(3) of the Bankruptcy Act provides that if the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. Holly’s Proceeding has the potential to affect her bankrupt estate. Accordingly, there can be no doubt that s 60(2) of the Bankruptcy Act applies to it, [19] such that it was stayed until the trustee makes an election, in writing, to prosecute or discontinue the action. On 28 January 2026, Shengli gave notice to AFSA, on behalf of the Official Trustee, pursuant to s 60(3) of the Bankruptcy Act , requiring the Official Trustee to elect whether to prosecute or discontinue the proceeding. The trustee did not make an election to prosecute Holly’s Proceeding within 28 days after the notice was served. Accordingly, it is deemed abandoned. Holly’s 8.5.26 Application under s 60 of the Bankruptcy Act is misconceived in any event. Section 60 of the Bankruptcy Act does not confer power on a court exercising bankruptcy jurisdiction to give her leave ‘to continue or participate in this proceeding notwithstanding bankruptcy’. Holly’s Proceeding, and the claims in it, can only be prosecuted by a person having an interest in the subject matter, sufficient to confer standing. [20] The only person who might have such an interest is the Trustee. If Holly had the interest in the Howitt St Property that is claimed by her in Holly’s Proceeding, that interest would have vested in the Trustee, pursuant to ss 58 and 116 of the Bankruptcy Act . The consequence of Holly’s bankruptcy is that she does not have standing to prosecute the claims in that proceeding because she does not have a financial interest in the subject matter of the proceeding. [21] Holly’s Application for Adjournment or Stay In the alternative to her application for leave, Holly seeks orders adjourning or staying Holly’s Proceeding pending related bankruptcy proceedings, related appellate proceedings and applications concerning annulment, review, variation and/or the setting aside of the Sequestration Order (ie the Review Application and the Annulment Application). At the time of the hearing of the Six Applications, the only extant application that falls within that comprehensive description is her pending Annulment Application. That application was dismissed this morning. [22] The effect of bankruptcy on Holly’s Proceeding is governed by s 60 of the Bankruptcy Act . The Supreme Court does not have jurisdiction or power to alter the operation of that section. Holly’s application for an adjournment or a stay is really directed to Shengli’s 25.4.26 Application for a dismissal or permanent stay of Holly’s Proceeding. I address that matter separately below. Finally, I do not regard the potential overlap between the issues in Holly’s Proceeding, Fuan’s Proceeding and Victor’s Proceeding as requiring that one, or all, of those proceedings be adjourned or stayed. The effect of Holly’s bankruptcy on each of the proceedings is governed by the provisions of the Bankruptcy Act and rules concerning standing. I have had regard to Holly’s contention that there are risks associated with ‘fragmented determination of the proceedings’ in dealing with each of the Six Applications. Disposition In the premises, I shall dismiss Holly’s 8.5.26 Application made by summons filed on 8 May 2026. There is no reason why costs ought not follow the event (of dismissal of Holly’s 8.5.26 Application). [23] Accordingly, I shall order that Holly pay Shengli’s costs of and incidental to Holly’s 8.5.26 Application, on a standard basis. I reject Holly’s application that such costs should be ordered to be paid out of Holly’s bankrupt estate. I do not have jurisdiction to make orders under the Bankruptcy Act , and in any event, the fact of her bankruptcy or her impecuniosity is not a reason to do so. The costs liability is one that arises after the date of Holly’s bankruptcy and is not captured by s 82 of the Bankruptcy Act . [24] Shengli’s 25.4.26 Application Shengli’s 25.4.26 Application seeks the following orders: (a) Holly’s Proceeding be dismissed, pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) and/or the Court’s inherent jurisdiction. (b) Alternatively, Holly’s Proceeding be permanently stayed. (c) Any application by Holly for leave, permission or direction to continue Holly’s Proceeding after deemed abandonment under s 60(3) of the Bankruptcy Act be dismissed as incompetent and an abuse of process. (d) Holly pay Shengli’s costs of this application, and the proceeding incurred after 22 January 2026, on the standard basis. (e) Such further or other orders as the Court considers appropriate. Consideration As noted above, Holly’s Proceeding is deemed to have been abandoned by reason of Shengli giving the Trustee notice, pursuant to s 60(3) of the Bankruptcy Act , and the Trustee not having made an election to continue the proceeding within 28 days. In Brenner v First Artists’ Management , [25] Byrne J explained the effect of a stay, then of deemed abandonment of a proceeding, pursuant to s 60 of the Bankruptcy Act . His Honour described the effect as being ‘in a state of suspension, liable to be dismissed or struck out under the Rules or by the exercise of the inherent jurisdiction of the court’. The question before me is whether it is appropriate for me to make orders dismissing or permanently staying Holly’s Proceeding, or whether the deemed abandonment by operation of the Bankruptcy Act is sufficient. In reliance on Brenner , Shengli, with the support of Jet, contends that, ‘This proceeding now requires a formal order bringing it to an end’. Rule 23.01(1) of the Rules provides that where a proceeding generally or any claim in a proceeding (a) is scandalous, frivolous or vexatious; or (b) is an abuse of the process of the Court, the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim. Jet and Shengli rely on the decisions in Luck v Secretary of Services Australia [26] and Primelife Corporation Ltd v Bufalo [27] in support of Shengli’s application to dismiss or permanently stay Holly’s Proceeding. In Luck , Ms Luck had appealed against a decision dismissing her appeal from a decision of the Administrative Appeals Tribunal from a decision of the Department of Human Services. A sequestration order was made against Ms Luck’s estate and three years later she was discharged from bankruptcy. One of the issues before the Full Court was the effect of s 60 of the Bankruptcy Act on the continuation of an appeal. The Full Court rejected Ms Luck’s claim that the appeal was ‘in respect of any personal injury or wrong done to the bankrupt’. Consequently, the Full Court held that the appeal was deemed to be abandoned by force of s 60(3) , ‘and it should be summarily dismissed pursuant to s 25(2B) of the FCA Act’. Section 25(2B) of the Federal Court of Australia Act 1975 (Cth) provided, relevantly, a single Judge or a Full Court may ‘give summary judgment’ or ‘make an order that an appeal to the Court be dismissed for want of prosecution’. In Bufalo , Jessup J considered the effect of deemed abandonment of a proceeding, under s 60(3) of the Bankruptcy Act , on the underlying cause of action. His Honour accepted that there was a distinction to be drawn between the proceeding that is deemed to be abandoned and the underlying cause of action. He accepted a submission that it was only the former that was ‘destroyed absolutely’. The deemed abandonment is no bar to the commencement of a fresh proceeding — provided that the person prosecuting that proceeding has the right to bring it. While the deemed abandonment of a proceeding generally involves the ‘destruction’ of Holly’s Proceeding, there are circumstances where it is at least arguable that the effect of that deemed abandonment might be undone, for example where the sequestration order is set aside on appeal or review [28] or on an annulment. [29] The possibility that the Sequestration Order might have been set aside upon a review was a reason why I adjourned Shengli’s 25.4.26 Application to a date after the hearing of Holly’s Review Application in the Federal Court. Holly’s Review Application has now been dismissed. At the time I heard the Six Applications, the Annulment Application was pending. That application, if successful, would have retrospectively deprived s 60(3) of the Bankruptcy Act of its effect, [30] and the deemed abandonment would be taken to be reversed. However, Holly’s Annulment Application was dismissed earlier today. There is a question as to whether dismissal of Holly’s Proceeding is necessary at this point in time. Section 60(3) of the Bankruptcy Act is clear in its terms. Holly’s Proceeding is taken to be abandoned by operation of law. Holly does not presently have standing to take any step in that proceeding. Shengli seeks orders for the dismissal of Holly’s Proceeding because it does not want to continue to have to deal with it. Despite the deemed abandonment, Holly has continued to correspond with Shengli about the proceeding and has filed documents with the Court. Some of those steps would appear to be the product of Holly’s confusion as to the effect of bankruptcy on Holly’s Proceeding. Having regard to Holly’s continued engagement in relation to Holly’s Proceeding, I consider that it is appropriate to make orders disposing of the proceeding so as to prevent her seeking to file further material in it. I am not convinced that r 23.01(1) of the Rules is the appropriate provision under which to make the orders as sought by Shengli. None of the circumstances set out in that rule would appear to have application, save that in a case where the continued prosecution of an abandoned proceeding was done in full knowledge of the consequences of the bankruptcy it would likely constitute an abuse of process or vexatious conduct. In the circumstances of the present case, the appropriate jurisdiction to be exercised is the Court’s inherent jurisdiction. Disposition While there was a challenge to Holly’s bankruptcy pending, I was minded to make orders dismissing Holly’s 8.5.26 Application, with a right to reinstate that application in the event the Sequestration Order were set aside or her bankruptcy were annulled so as to address the complication that arose in Hycenko . However, given that both the Review Application and Annulment Application have been dismissed, it is unnecessary for me to qualify my order in that way. As Shengli has been successful, costs ought to follow the event. I shall order that Holly pay Shengli’s costs of and incidental to Shengli’s 25.4.26 Application, on a standard basis. Such costs order will give rise to a debt that is not provable in the bankruptcy; ie it will be a liability that is not affected by her current bankruptcy. [31] Fuan’s Proceeding Material Fuan has filed and relies on the following: (a) writ filed 27 February 2023; (b) an amended statement of claim filed 9 August 2024; (c) written submissions filed 22 March 2026; (d) affidavits of Holly sworn 30 March 2026, 12 May 2026 and 12 June 2026; and (e) an affidavit sworn 12 June 2026. Jet has filed and relies on the following: (a) summons filed 18 March 2026; (b) affidavit of Julian Gillard sworn 30 April 2025; (c) affidavits affirmed 18 March 2026, 15 May 2026, 22 May 2026 and 29 May 2026; (d) written submissions filed 18 March 2026 and 4 May 2026; and (e) an affidavit of Victor affirmed 20 April 2026. Background On 27 February 2023, Fuan commenced Fuan’s Proceeding. He was initially represented by Aptum Legal. By Fuan’s Claim, Fuan claims that all, or a proportion of, the Howitt St Property registered in the name of Jet is held by him on trust for Fuan, alternatively orders setting aside a transfer of the Howitt St Property. On 18 July 2024, Daly AsJ dismissed Jet’s application for summary judgment in relation to Jet’s Claim and made orders that Fuan have leave to file and serve an amended statement of claim. On 5 September 2024, Jet filed Jet’s Counterlcaim. By Jet’s Counterclaim, Jet seeks ‘immediate possession of the Howitt St Property’, orders for the removal of a caveat, mesne profits, damages, aggravated damages, exemplary damages, and costs, on an indemnity basis, against Fuan and Holly, his grandfather and mother, respectively. On 6 December 2024, Aptum Legal filed a notice of solicitor ceasing to act for Fuan. At some point, Fuan had retained a pro bono solicitor. More recently, Fuan has been self-represented, although he would appear to be receiving some assistance from Holly, a non-lawyer and the second defendant to Jet’s Counterclaim. On 4 February 2025, Daly AsJ made the 4.2.25 Orders listing Fuan’s Proceeding for trial on 2 September 2025, on an estimate of 10 days, in the following terms: By 4.00pm on 28 March 2025 the plaintiff file and serve outlines of evidence for the lay witnesses he intends to call at trial. By 4.00pm on 2 May 2025 the defendant file and serve outlines of evidence for the lay witnesses he intends to call at trial. 3. By 4.00pm on 30 May 2025: (a) the plaintiff and the second defendant by counterclaim file and serve any outlines of evidence in reply to the defendant’s outlines of evidence; (b) the defendant file and serve any expert evidence upon which he intends to rely. The plaintiff and the second defendant by counterclaim file and serve any expert evidence upon which they intend to rely. The proceeding be listed for trial on 2 September 2025 on an estimate of 10 days. The proceeding be listed for further directions on 22 July 2025 at 9.30am in a courtroom to be advised. The date in paragraph 2 of the Order made on 11 December 2024 be extended to 22 July 2025 at 9.30am. 8. The parties’ costs of the hearing today be reserved. There be liberty to apply on 3 business days’ notice to the other parties and the Court. The 4.2.25 Orders noted in ‘Other Matters’ that: [32] The plaintiff is no longer represented by solicitors, and has very limited proficiency in English. However, given that the proceeding has now been on foot for nearly two years, and concerns a property which the defendant is the registered proprietor, further delay should be avoided . Accordingly, directions have been made to enable the trial to proceed in September 2025. On 24 April 2025, Fuan obtained a medical certificate, which provided: I’ve been Mr Fuan Chang’s family doctor for more than ten years. He is suffering multiple chronic medical conditions including severe depression, on medical treatment. The on going family stress has been negatively impact his mental health. He is currently unfit to attend the pending court hearing. I’d appreciate your special consideration. ( 24.4.25 Certificate ) On 5 May 2025, Daly AsJ made orders [33] extending the time for compliance with the 4.2.25 Orders in respect of the filing of outlines of evidence and expert evidence. The Court made further orders, including that Jet have leave to inspect the Howitt St Property, and that Fuan ‘ensure that all areas on the property are accessible and available’ for inspection. The Court recorded in ‘Other Matters’ that ‘If these orders are not complied with, the defendant may bring an application to dismiss the proceeding’ ( 5.5.25 Orders ). On 7 May 2025, Daly AsJ made orders that Fuan and Holly pay Jet’s costs of and incidental to the directions hearing on 5 May 2025, fixed in the sum of $9,807.75. On 10 May 2025, Holly wrote to the Court and Jet’s former solicitor, Mr Julian Gillard , in response to an email from Mr Gillard requesting access to the Howitt St Property and for costs, stating, ‘we do not consent to the proposed inspection of the property at this time ... any claim to mesne profits is premature and without basis’. [34] On 13 May 2025, Holly filed an outline of her evidence. On 5 June 2025, Daly AsJ made orders, including for the filing of any further applications by Holly by counterclaim, and for the filing of further materials sought to be relied upon at trial by the parties. The Court noted in ‘Other Matters’ that: ‘The orders made today are directed at maintaining the trial date of 2 September 2025, and to enable the orderly preparation for trial in circumstances where all parties are, or are likely to be self-represented’ ( 5.6.25 Orders ). On 11 June 2025, Daly AsJ granted leave for Herald Legal to file a notice of ceasing to act for Jet, pursuant to r 20.03 of the Rules. [35] On 25 June 2025, Holly filed a list of witnesses, on behalf of Fuan, to be called at trial, a draft index to a court book and draft index to a supplementary court book, pursuant to the 5.6.25 Orders. On 6 July 2025, Holly filed an affidavit and submissions in support of her application for Fuan’s Proceeding to be heard together with Holly’s Proceeding, pursuant to the 5.6.25 Orders. On 15 July 2025, Daly AsJ extended the time for compliance with order 6 of the 5.6.25 Orders, in respect of the filing of materials intended to be relied upon by the parties at trial, until 29 July 2025. The Court noted that, ‘Progress has been made by the parties in compiling an agreed court book index’. On 25 June 2025, Holly filed: (a) a list of witnesses to be called at trial; (b) a draft index to court book; and (c) a draft index to supplementary court book. On 27 July 2025, Jet filed an expert witness report of Sichen Nie, concerning the question of whether Xiuzhen Ding (Fuan’s wife, who passed away on 28 March 2022) owned in her own name 10 Luxury villas situated in the city of Qingdao in China. On 28 July 2025, Fuan filed a list of witnesses to be called at trial. The list provided the following information: [36] 1. Holly Chang To give evidence regarding: Her role as former director and shareholder of Shengli Investments Pty Ltd; Her interest as a beneficiary of the Chang Family Trust; Her occupation of the property at 29 Howitt Street, South Yarra. 2. Fuan Chang To give evidence regarding: Family contributions to the purchase of 29 Howitt Street; His ongoing residence at the property. 3. Hanna Stalling To give evidence (details to be confirmed). 4. Peter Beyer To give evidence (details to be confirmed). 5. Jennifer Lu — To be confirmed May give evidence regarding the establishment of the Chang Family Trust in 2011 and her role as settlor. The Second Defendant by Counterclaim is attempting to confirm her availability. (Optional) Independent Forensic Accountant or Trust Accountant — Subject to confirmation If retained before trial, to give evidence regarding: Tracing of funds; Use of trust assets; Financial analysis of the alleged $3.5 million loan. On 6 August 2025, Fuan filed a notice of trial. On 20 August 2025, Daly AsJ extended the time for compliance with order 6 of the 5.6.25 Orders, in respect of the filing of a draft index for the supplementary court book, until 26 August 2025. [37] On 21 August 2025, Daly AsJ made orders, subject to compliance with the filing of materials by Holly, that Holly’s Proceeding be managed and heard together with Fuan’s Proceeding. On 26 August 2025, Fuan filed the plaintiff’s supplementary court book index. Given that the index includes page numbers, it would appear to be likely that there is at least one copy of the supplementary court book in existence. On 29 August 2025, the Court wrote to the parties and indicated that the trial fixed for 2 September 2025 would be adjourned ‘to facilitate the completion of any remaining interlocutory steps in [Holly’s Proceeding]’. On 4 September 2025, Hannon J made orders vacating the trial that had been listed on 2 September 2025. On 4 December 2025, Hannon J and Burgess JR made orders provisionally listing Fuan’s Proceeding and Holly’s Proceeding for trial on 10 August 2026, on an estimate of 10 days. The orders noted in ‘Other Matters’ that: [38] The Honourable Justice Hannon advised that in the circumstances presently before the Court, Fuan could not be represented at trial by Holly, who is not a legal practitioner, and that the Court intended to refer him to the Victorian Bar Pro Bono assistance scheme (subject to his consent being sought and obtained). The Court advised parties at the directions hearing that present difficulties with the orderly service of documents as a result of extant intervention orders are of great concern. Although the Court has historically assisted the parties to exchange documents, in light of the present scope of the Chang family proceedings and the significant number of documents filed and other communications with the Court, what was once a temporary solution has become unsustainable. The Court was also informed of further intervention order proceedings in the Magistrates’ Court involving Holly and Jet. The Court invited the parties to consider alternatives to the current practice in order to facilitate the future orderly service of documents. On 14 January 2026, Jet and Shengli filed: (a) a court book index; (b) a chronology; (c) a list of issues; and (d) a trial running sheet. On 22 January 2026, the Sequestration Order was made and Holly became a bankrupt. On 21 February 2026, Fuan sent an email to the Court attaching the 24.4.25 Certificate. On 23 February 2026, Burgess JR conducted a directions hearing and noted the following: [39] The medical certificate provided by Mr Fuan Chang in support of his request for an adjournment is nearly 10 months old. It is not clear which ‘pending hearing’ the medical certificate refers to. In the event Mr Fuan Chang is experiencing mobility issues or difficulties attending Court, there was no evidence explaining why Mr Fuan Chang could not have appeared by video link, and leave to appear by video link was not requested. Mr Fuan Chang is the plaintiff in his proceeding. He has given instructions for this proceeding to be commenced on his behalf, and ought to have been aware he would need to prosecute his claim in person when his solicitors on the record ceased to act on 6 December 2024. So much was confirmed to him again in the 4 December Orders, and Mr Fuan Chang has been aware since that time he would need to make an appearance in person at the hearing on 23 February 2026.In pursuing his claim, going forward Mr Fuan Chang will be required to appear at hearings about his case, in the absence of any legal representation. While the Court has indicated it intends to make a referral for Mr Fuan Chang to receive assistance via the Victorian Bar Pro Bono scheme, Mr Fuan Chang is nonetheless required to continue to appear and participate in hearings about his case until such time as any such legal representation is obtained. Mr Fuan Chang should not expect that the possibility of such representation being obtained through the Pro Bono scheme may alone form a basis for adjournment of any listed hearings, going forward. The defendant, Mr Gu, sought orders at the directions hearing for the plaintiff’s claim to be struck out. The Court informed the defendant that any such application must be brought by way of a summons and supporting affidavit, and the other parties will need notice of the application and an opportunity to be heard in respect of it. A timetable has been set down for that application to be made, as well as for any material to be filed and served by the plaintiff, Mr Fuan Chang, or the estate of Ms Holly Chang (second defendant by counterclaim) in response. The timetable allows sufficient time for any referral to the Pro Bono scheme to be made, and for the necessary processes to be taken in respect of Ms Chang’s bankrupt estate. On 18 March 2026, Jet filed Jet’s 18.3.26 Application. On 31 March 2026, Hannon J and Burgess JR made orders, on the Court’s own motion, directing the Supreme Court of Victoria’s Self-Represented Litigant’s Coordinator to lodge a request with the scheme for assistance to Fuan, as specified in the order. On 15 April 2026, Burgess JR adjourned Jet’s 18.3.26 Application for hearing before me on 27 May 2026, alongside the applications made in Holly’s Proceeding. On 27 May 2026, Jet filed a bundle of documents in support of Jet’s 18.3.26 Application. On 12 June 2026, my Chambers sent an email to the practitioners and parties which, omitting formal parts, provided: We refer to the above matters listed for hearing on Friday, 19 June 2026 at 10:30am. We note that orders have been made for the filing of outlines of evidence in proceeding S ECI 2023 00747 on 4 February 2025, as extended by subsequent orders of this Court. We note that on 28 July 2025, Fuan filed a list of the following persons he intended to call at trial: (1) Holly Chang, (2) Fuan Chang, (3) Hanna Stalling, (4) Peter Beyer, (5) Jennifer Lu, (6) (optional) Forensic Accountant. We note that we have not received any outlines of evidence of those witnesses. The purpose of an outline is to provide notice of the evidence to be given by the witness. An outline of evidence should identify the topics the witness will address, and also outline, in summary form, the evidence that will be given on each topic. On 12 June 2026, Fuan (with the assistance of Holly) sent an email to the Court which, omitting formal parts, provided: [40] The Plaintiff has filed an affidavit sworn by Fuan Chang on 12 June 2026, which is attached. The Second Defendant by Counterclaim, Holly Chang, has also filed an affidavit sworn on 12 June 2026, which is attached. The Plaintiff’s position is that the relevant evidence is contained in the affidavits and documentary exhibits already filed and attached. The Plaintiff does not presently intend to call any additional witnesses, including Jennifer Lu, Peter Beyer, Hanna Stalling or a forensic accountant. The Plaintiff is not able to contact Jennifer Lu directly in any event. The documents relating to her have already been exhibited to Holly Chang’s affidavit. If the Court requires any further information concerning witnesses or trial preparation, the Plaintiff will address those matters at the directions hearing on 19 June 2026. Attached to the email were the following affidavits, which are intended to serve as outlines of the evidence that each of those witnesses intends to give: (a) Fuan’s affidavit sworn 12 June 2026; and (b) Holly’s affidavit sworn 12 June 2026. On 15 June 2026, my Chambers sent an email to the practitioners and parties which, omitting formal parts, provided: Chambers requires a response, and explanation, from the plaintiff [Fuan] as to whether orders 5 and 6 of the Orders of Daly AsJ ( attached ) have been complied with, or if there is any intention to comply with those orders (as extended) prior to the hearing on 19 June 2026. On 15 June 2026, Fuan (with the assistance of Holly) sent an email to the Court which provided: At the relevant time, and throughout these proceedings, I had no ability to read, write or understand English. For many years, I relied entirely upon family members, including my daughter Holly Chang, my son Victor Chang and my grandson Jet Gu, to explain and translate English documents, correspondence and legal matters for me. Before the family dispute concerning 29 Howitt Street, South Yarra, I depended on family members to assist me with all English communications and official documents. Following the breakdown of family relationships and the commencement of legal proceedings between family members, I no longer had the same assistance available to me. Without legal representation and without reliable translation assistance, I did not properly understand the requirements of Orders 5 and 6 or the consequences of non-compliance. There was never any intention on my part to disregard the authority of the Court, breach any Court order, or delay the proceeding. I apologise to the Court for my failure to comply with those orders and will address the matter further at the hearing on 19 June 2026. On 15 June 2026, my Chambers wrote to the parties and requested an indication on whether Fuan intended to allow for inspection of the Howitt St Property prior to the next hearing date. On 15 June 2026, Fuan (with the assistance of Holly) responded: At present, I am not in a position to provide consent for an inspection of the Howitt Street property on my own. For many years, 29 Howitt Street was treated as the family home and matters concerning the property were not decided by me alone. Significant decisions concerning the property were traditionally discussed within the family and made collectively. Given the ongoing disputes between family members concerning the property and related proceedings, I do not consider that I am able to make such a decision unilaterally. Accordingly, I am unable at present to agree to the proposed inspection without further consideration and direction from the Court. I will address this matter further at the hearing on 19 June 2026. Holly’s 8.5.26 Application By Holly’s 8.5.26 Application (filed in Holly’s Proceeding), she seeks the following orders that relate to Fuan’s Proceeding, and in particular Jet’s Counterclaim: [41] Insofar as [Jet] presses any possession claim or counterclaim, that claim be adjourned or stayed pending clarification of the trustee in bankruptcy’s position and any asserted estate interest relating to [the Howitt St Property]. Consideration Fuan’s Claim For reasons given earlier in relation to ‘Holly’s 8.5.26 Application’, in the context of Holly’s Proceeding, it is apparent that Holly’s Proceeding, in which she claims a 50% beneficial interest in the Howitt St Property, is taken to be abandoned, and the Trustee does not otherwise assert an interest in that property. In the premises, I do not consider there to be any merit to Holly’s claim for adjournment or stay of Jet’s Counterclaim pending clarification of the Trustee’s position or bankruptcy challenges. In any event, those challenges have now been dismissed. Jet’s Counterclaim In Jet’s Counterclaim, he seeks orders for the removal of Fuan’s Caveat, immediate possession of the Howitt St Property and mesne profits or damages. Section 58(3) of the Bankruptcy Act provides that, except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor: (a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or (b) except with the leave of the Court, and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding. Burgess JR’s orders, made on 15 April 2026, noted that Jet intended to seek leave, under s 58(3)(b) of the Bankruptcy Act , to proceed with Jet’s Counterclaim against Holly. There is no application before me for leave under s 58(3)(b) of the Bankruptcy Act . As I indicated earlier, that jurisdiction is exclusive to federal courts. [42] Jet’s claim for possession of the Howitt St Property as against Holly is not a claim in respect of a provable debt. Accordingly, it is not affected by s 58(3) of the Bankruptcy Act . Jet may pursue that claim despite Holly’s bankruptcy. [43] For reasons stated earlier, Holly’s bankruptcy has removed the possibility she has any proprietary interest in the subject matter of the proceeding: the Howitt St Property. In Westpac Banking Corporation v Hines , [44] Westpac sought summary judgment against the defendants, and summary orders for possession of property. Matthews JR (as her Honour was then) held that the first defendant, who was a bankrupt, had no standing to defend the proceeding or the summary judgment application. Because Holly is in possession of the Howitt St Property and Jet seeks orders for possession against her, she is a person affected by the relief sought by Jet in Jet’s Counterclaim and has a right to be heard, at least in relation to the form of the possession orders. For example, as a person against whom orders are sought, Holly would have the right to make submissions concerning the timing and practical operation of a possession order. On the other hand, she would have no standing to make submissions to assert an interest that would have vested in the Trustee. Jet’s claim for mesne profits, damages, aggravated and exemplary damages raises different considerations. The dispositive issue is whether that proceeding or claim is ‘in respect of a provable debt’ such that Jet (a creditor) is prevented, by s 58(3) of the Bankruptcy Act , from taking ‘any fresh step’ in the proceeding in relation to it without leave. Jet’s submissions demonstrate an appreciation that there are two periods to consider; namely the Pre Bankruptcy Period and the Post Bankruptcy Period . Section 82(2) of the Bankruptcy Act provides that, subject to div 1 of pt VI , all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy. Section 82(2) of the Bankruptcy Act provides that demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust, are not provable in bankruptcy. For the Pre Bankruptcy Period, the question turns on whether the claims are in respect of a provable debt, and in particular whether they meet the description of ‘Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust’ within the meaning of s 82(2) of the Bankruptcy Act . [45] Jet alleges in Jet’s Counterclaim that, ‘Holly has occupied the Howitt St Property without the consent or agreement of Jet’. [46] Hence, Jet’s claim in respect of the Pre Bankruptcy Period would not appear to be a claim arising by reason of breach of contract or promise. Jet denies ‘Family Discussions or Family Agreement’, as alleged by Holly and Fuan. Similarly, there appear to be no allegations that Jet’s claim in respect of the Pre Bankruptcy Period arises by reason of breach of trust. While Holly’s caveat refers to an allegation of ‘declaration of trust’ made on 14 December 2011, Jet’s claim is predicated upon that claim not succeeding. In the premises, I consider that Jet’s claim in respect of the Pre Bankruptcy Period is likely to be a claim for unliquidated damages arising ‘otherwise than by reason of a contract, promise or breach of trust’ and hence not provable in Holly’s bankruptcy. It is likely that Jet is not prevented from taking any fresh steps in Jet’s Counterclaim in relation to his claim for mesne profits or damages in respect of the Pre Bankruptcy Period. Nevertheless, for reasons given under the next heading, I propose to bifurcate Jet’s Counterclaim insofar as it is a claim for mesne profits or damages as against both Fuan and Holly. Accordingly, it is unnecessary for me to resolve the question of whether Jet is prevented, by s 58(3) of the Bankruptcy Act , from pursuing his claim for mesne profits or damages against Holly for the Pre Bankruptcy Period. For the Post Bankruptcy Period, there is nothing in s 58 of the Bankruptcy Act which prevents Jet from pursuing a claim for mesne profits, damages, aggravated and exemplary damages. [47] The claim was not a debt or liability to which Holly was subject at the date of the bankruptcy, and the circumstances giving rise to the liability (occupation) occurred in the Post Bankruptcy Period. Nevertheless, both the Pre and Post Bankruptcy Period claims for mesne profits and damages will be heard separately. Disposition As indicated earlier, I shall dismiss Holly’s summons filed on 8 May 2026. That includes the relief sought in paragraph 4 concerning Fuan’s Proceeding. While it might be contended that Jet has been successful in resisting Holly’s 8.5.26 Application to the extent that it relates to Fuan’s Proceeding, the issues that were raised by paragraph 4 needed to be clarified in any event. I do not propose to make any costs orders in relation to Holly’s 8.5.26 Application insofar as it concerns Fuan’s Proceeding. I note that Jet has been self-represented and he was already required to attend court to prosecute his own application (Jet’s 18.3.26 Application). Jet’s 18.3.26 Application Fuan’s Proceeding (comprising Fuan’s Claim and Jet’s Counterclaim) is currently listed for trial before Hannon J, commencing on 10 August 2026, on a 10-day estimate. By Jet’s 18.3.26 Application, Jet seeks dismissal of Fuan’s Claim for want of prosecution, alternatively self-executing orders. He does not seek any relief with respect to his own counterclaim (Jet’s Counterclaim) or Fuan’s defence to that. [48] One point to note at the outset is that Jet’s Counterclaim will necessitate him to be involved in a trial covering some of the issues the subject of Fuan’s Claim in any event. Success by Jet in Jet’s 18.3.26 Application will not eliminate the need for a trial. Fuan expressed a concern that if Jet were successful, he would have nowhere to live: [49] I’m 86 years old, if I’m removed from my property, where I am supposed to live on the street? As to the possibility that Fuan would be evicted before trial, Jet said: [50] even if Your Honour does dismiss his claim, the matter still needs to go to trial on my counterclaim and ... I’m undertaking ... to the court to not ... evict him in any way prior to the trial. Legislation and Rules Section 56 of the Civil Procedure Act 2010 (Vic) ( CPA ) provides, relevantly: [51] (1) A court may make any order or give any direction it considers appropriate if the court finds that there has been— (a) a failure to comply with discovery obligations; or (b) a failure to comply with any order or direction of the court in relation to discovery; or (c) conduct intended to delay, frustrate or avoid discovery of discoverable documents. (2) Without limiting subsection (1), a court may make an order or give directions— (a) that proceedings for contempt of court be initiated; (b) adjourning the civil proceeding, with costs of that adjournment to be borne by the person responsible for the need to adjourn the proceeding; (c) in respect of costs in the civil proceeding, including indemnity cost orders against any party or a legal practitioner who is responsible for, or who aids and abets, any conduct referred to in subsection (1); (d) preventing a party from taking any step in the civil proceeding; (e) prohibiting or limiting the use of documents in evidence; (f) in respect of facts taken as established for the purposes of the civil proceeding; (g) awarding compensation for financial or other loss arising out of any conduct referred to in subsection (1); (h) in respect of any adverse inference arising from any conduct referred to in subsection (1); (i) compelling any person to give evidence in connection with any conduct referred to in subsection (1), including by way of affidavit; (j) dismissing any part of the claim or defence of a party who is responsible for any conduct referred to in subsection (1); (k) in relation to the referral to an appropriate disciplinary authority for disciplinary action to be taken against any legal practitioner who is responsible for, or who aids and abets, any conduct referred to in subsection (1). Rule 24.05 of the Rules provides: Inherent jurisdiction Nothing in this Order affects the inherent power of the Court — (a) to dismiss any proceeding for want of prosecution; or (b) to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly. Principles In Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells , [52] the Court of Appeal explained when the court’s power to dismiss a proceeding for want of prosecution may be exercised: The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party. In Pentridge Village Pty Ltd (in liq) (recs and mgrs apptd) v Capital Finance Australia Ltd , [53] the Court of Appeal dismissed an appeal from a decision to dismiss the plaintiffs’ claim for want of prosecution, following a grant of leave to appeal. The first-instance decision was based on the second limb in Bishopsgate , namely that there had been an inordinate and inexcusable delay on the part of the plaintiff, or its lawyers, and that such delay gave rise to a substantial risk it was not possible to have a fair trial or that there was serious prejudice to the defendants. The trial Judge had determined the application by reference to four questions, the first three of which have relevance here: Issue 1 — Has there been a delay attributable to the plaintiffs? Issue 2 — If so, has that delay been inordinate and inexcusable? Issue 3 — If so, has that inordinate and inexcusable delay: (i) given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or (ii) caused, or is likely to cause serious prejudice to the defendant as between the plaintiffs and defendant? In dismissing the appeal, the Court of Appeal emphasised the importance of the CPA in relation to an application for dismissal for want of prosecution: [54] when considering an application for an order dismissing a civil proceeding for want of prosecution, the Court is now obliged to have regard to the efficient conduct of its business, efficient use of its resources, minimising delay, and the timely determination of the proceeding. That is so whether the application is made under Order 24 of the Rules or in the Court’s inherent jurisdiction. The statement in Bishopsgate to the effect that these considerations are not ordinarily relevant can no longer stand in light of the decision of the High Court in Aon , and the Civil Procedure Act . In Hodgson v Amcor , [55] Vickery J considered the factors guiding the Court’s discretion to dismiss or strike out pleadings for non-compliance with orders. He said: All matters relevant to the exercise of the power should be weighed. In different cases, the factors may assume greater or lesser significance. Such factors may include the following considerations, which are examples derived from the case law examined: (a) the effect of the contravening conduct on the just resolution of the real issues in the proceeding in an efficient, timely and cost-effective manner; (b) the extent of any delay caused by the contravening conduct and the prejudice associated with it, and whether the delay was inordinate and inexcusable; (c) whether the history of non-compliance by a party is such as to indicate an unwillingness or inability to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. In determining whether the defaulting party is either subjectively unwilling to cooperate or, for some reason, is unable to do so, the cumulative effect of the party’s defaults may be taken into account; (d) whether the non-compliance is continuing and is continuing to occasion unnecessary delay, expense or other prejudice to the other party (ie. a significant continuing default which continues to impose an unacceptable burden on another party; (e) the prejudice which might reasonably be assumed to follow for the other party arising from the contravening conduct, and that which is shown to have arisen; (f) the extent to which the achievement of efficiency in the conduct of proceedings by other parties in other cases before the Court have been compromised; (g) the veracity and reasonableness of any explanation given for the contravening conduct; (h) whether the default was intentional or the product of contumelious conduct; (i) whether any alternative remedy by way of a lesser, but equally efficient, sanction is available; (j) whether the contravening conduct has rendered it impossible to conduct a fair trial, or would make any judgment in favour of the offending party unsafe, or which would render any further proceedings unsatisfactory and prevent the Court from doing justice, or there is a real risk of any of these things happening; and (k) whether the object of the order which has been contravened is ultimately secured (eg the late production of a document which has been withheld on discovery. Given the gravity and effect of a striking out order, it should only be made in a clear case where the exercise of the discretion properly calls for this to occur and when the sanction ordered is the least that is necessary to achieve the ends of appropriate case management. Further, as observed in Lenijamar the power conferred on the Court must be ‘administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default]’. In Aon Risk Services Australia Limited v Australian National University , [56] a majority of the High Court held that considerations relevant to the Court’s discretion, in relation to a late application to amend a pleading to add a new claim, included the effect of delay on other litigants, the efficient use of court resources, and public confidence in the administration of justice. Intentional and contumelious default The first ground relied upon by Jet is that there has been intentional and contumelious default by Fuan in relation to compliance with orders and in the conduct of Fuan’s Proceeding generally. Fuan’s conduct in relation to the orders made in Fuan’s Proceeding raises a difficult issue for the Court. On the one hand, Fuan has been dilatory in the conduct of the proceeding and is in default of court orders. On the other hand, he is an elderly self‑represented litigant with significant difficulties in conducting litigation. In Daher v Bell , [57] Derham AsJ summarised the principles which guide the hearing and determination of proceedings involving a self-represented litigant: It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law. Procedural fairness is ‘an essential attribute of a court’s procedure’. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant. In the decision of the Court of Appeal in Roberts v Harkness , which was applied in Doughty-Cowell v Kyriazis , the Court made it clear that a litigant must have a reasonable opportunity of presenting his case. What amounts to a reasonable opportunity of presenting a case depends on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision (‘what is at stake’) and the competing demands on the time and resources of the court or tribunal. In assessing Fuan’s conduct, it is necessary to have regard to the following matters: [58] (a) Fuan’s very advanced age (86 or 88 years); (b) Fuan’s education and background: I worked in a big factory in China since age of 18 for more than 40 years. I retired at age of 60. I came to Australia in a year 2001 and have stayed and lived in Australia for 25 years. (c) Fuan does not speak, read or write English; (d) my observation that Fuan has limited understanding of the Court process or the nature of Court orders and the consequence of failure to have regard to them; (e) Fuan’s self-represented status (albeit that he receives some assistance from his daughter, Holly, who is not a lawyer); (f) ‘I’m not in very good health conditions ... and I have a trouble sleeping’. [59] My observation is that the combination of these matters is impairing Fuan’s ability to make ‘effective’ choices in the proceeding, and his ability to prosecute his case. In those circumstances, it is the obligation of the Court to assist Fuan to surmount those problems, while maintaining its position of neutrality. [60] I do not lose sight of the fact that Jet is also a self-represented litigant, but his own background and education would appear to be different to that of his grandfather, and he appears to be better equipped to conduct litigation. Matter 1 Matter 1, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is Fuan’s non-attendance at multiple directions hearings before the Court, including on 4 February 2025, 5 May 2025, [61] 5 June 2025, 15 July 2025, 20 August 2025, 4 December 2025 [62] and 23 February 2026. The six instances of non-attendance at court are: (a) On 5 May 2025, Fuan did not attend a directions hearing before Daly AsJ. Fuan was represented by Peter Beyer, his son-in-law. Orders were made extending the time for compliance with the 4.2.25 Orders in respect of the filing of materials by the parties, for the inspection of the Howitt St Property by Jet, and for costs. (b) On 5 June 2025, Fuan did not attend a directions hearing before Daly AsJ. Orders were made granting leave to Holly to file an amended defence to counterclaim, that Holly’s ‘purported counterclaim’, filed on 7 October 2024, be struck out, and for the facilitation of trial directions. It is unclear whether Holly intended or purported to act on behalf of Fuan at that directions hearing. (c) On 15 July 2025, Fuan did not attend a directions hearing held before Daly AsJ. Orders were made extending the time for compliance with paragraph 6 of the 5.6.25 Orders in respect of filing a draft index for the supplementary court book by each of the parties. While it is unclear, it would appear from material filed by Holly that she purported to appear and make submissions on behalf of Fuan. (d) On 20 August 2025, Fuan did not attend a directions hearing before Daly AsJ. Orders were made to further extend the time for compliance with paragraph 6 of the 5.6.25 Orders. Holly’s appearance form referred to an appearance by her and Fuan at the directions hearing. It is reasonably clear that Holly was purporting to appear on both her own behalf and on behalf of Fuan. [63] (e) On 4 December 2025, Fuan did not attend a directions hearing before Hannon J. Fuan was represented by Holly. [64] Orders were made provisionally listing the proceeding for trial on 10 August 2026 and for the filing of materials sought to be relied upon by the parties at trial. It would appear from the ‘Other Matters’ that Holly sought to appear on behalf of Fuan at the directions hearing, and was told that ‘Fuan could not be represented at trial by Holly’. (f) On 23 February 2026, Fuan did not attend a directions hearing before Burgess JR. Orders were made granting Jet leave to file and serve an application to strike out the proceedings by way of summons, and for the filing of any materials in response by Fuan and Holly. Neither Fuan nor Holly appeared. Fuan personally attended hearings before me on 27 May 2026 and 19 June 2026. He also appeared on his own behalf at the directions hearing on 4 February 2025. I do not consider Fuan’s personal non-attendance at the six directions hearings in Fuan’s Proceeding as constituting intentional and contumelious default. Due allowance must be made for Fuan’s advanced age and his inability to speak, read or write English. It would appear that Fuan is suffering from health issues as well, although the evidence on that topic is both insubstantial and dated. Matter 2 Matter 2, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that Fuan’s non-compliance with the filing of court materials as and when due, pursuant to Court orders, has caused delays in the proceedings. The generalised assertion that Fuan’s non-compliance with the filing of court materials as and when due, pursuant to Court orders, which has caused delays in the proceedings, is unhelpful. I address the identified instances of default in these reasons. To the extent that there are others, it was incumbent upon Jet to identify the default, the delay and the causal connection between them. Matter 3 Matter 3, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is Fuan’s non-compliance with six court orders. The first alleged non-compliance is as follows: Orders of 4 February 2025 — failed to file and serve outlines of lay witness evidence by March 2025 (and by the extended date of 26 May 2025). The circumstances relating to the non-compliance are: (a) On 25 June 2025, Holly filed a list of witnesses, on behalf of Fuan, to be called at trial, a draft index to a court book and draft index to a supplementary court book, pursuant to the 5.6.25 Orders. (b) On 28 July 2025, Fuan filed a list of witnesses to be relied upon at trial. (c) By orders made on 4 December 2025, Hannon J ordered that: By 4.00pm on 13 February 2026, Fuan and Holly each file and serve any further affidavits on which they seek to rely at the trial of the proceeding. (d) On 12 June 2026, Fuan (with the assistance of Holly) sent an email to the Court which, omitting formal parts, set out Fuan’s position with regard to the witnesses that he intends to call at trial. Attached to the email were affidavits of Fuan and Holly, setting out an outline of their evidence. (e) When I asked Fuan why he had not filed witness outlines, he said: [65] MR CHANG: I found this matter very weird, um the other parties are my son and my grandson against me who’s in — who’s already 86 years old um and I mentally stressed, um my wife recently passed away. Fuan would now appear to have filed affidavits of his own evidence and that of the witness (Holly) that he seeks to rely on at trial. While it is regrettable that this did not occur earlier, it does not seem to me that this delay will impede the parties’ ability to conduct a trial in August 2026. The second alleged non-compliance is as follows: Orders of 5 May 2025 — failed to provide inspection access to Howitt Street for the defendant’s expert. The circumstances relating to the non-compliance are: (a) The 4.2.25 Orders required Jet to file and serve any expert affidavits upon which he intended to rely by 4:00 pm on 30 May 2025. (b) The affidavit of Julian Gillard sworn 30 April 2025 sets out a series of request made by Mr Gillard to Fuan and Holly to gain access to the Howitt St Property: 17 March 2025, 21 March 2025, 31 March 2025 and 2 April 2025. (c) On 5 May 2025, Daly AsJ ordered that: (i) Jet have leave to inspect the Howitt St Property, on various terms and conditions, including that Jet’s solicitor at the time, and expert, have leave to inspect the property on a date to be agreed between the parties ‘for the purpose of inspecting the condition of the property for the purposes of the expert preparing a report in respect of the mesne profits claim’ and that during the inspection, the expert be permitted to take such measurements and photographs as considered necessary. [66] (ii) Fuan and Holly ‘must ensure that all areas on the [Howitt St Property] are accessible and available’ for inspection and that by 7 May 2025, they notify Jet of 10 separate days between 12 May 2025 and 2 June 2025 on which Jet may conduct the inspection of the Howitt St Property. [67] (d) Neither Fuan nor Holly notified Jet of the dates the Howitt St Property was available for inspection. (e) On 10 May 2025, Holly sent an email to Jet’s solicitor advising: We do not consent to the proposed inspection of the property at this time... any claim to mesne profits is premature and without basis. (f) Jet says that he has not been able to obtain an expert report concerning mesne profits because of Fuan’s default in compliance with the 5.5.25 Orders. [68] (g) At the hearing on 27 May 2026, I asked Fuan about compliance with the orders concerning inspection of the Howitt St Property. This is what he said: [69] HIS HONOUR: ... another complaint that’s made is that you have not allowed inspection of the Howitt Street property so that Mr Gu’s expert can consider that property. MR CHANG: That’s just not — that’s just one of the excuses. I’ve been this old and I’ve been living in this property for this long time. There’s no reason that I would do any damage to that property. ... MR CHANG: And I painted this house myself, with just — just — yes. Myself on my own. (h) In an email sent to my Chambers, Fuan said that without reliable translation assistance, he did not properly understand the requirements of orders 5 and 6 of the 5.5.25 Orders or the consequence of non-compliance with them. He said that it was: never any intention on my part to disregard the authority of the Court, breach any Court order, or delay the proceeding. (i) At the hearing on 19 June 2026, Fuan said this: [70] MR CHANG: Ah well this happened before, my son ask me to move to a friend’s place and, after a while, when I came back to 29th, I found ah the lock to the door had been changed. And the judgement order asked me to return back to 29. Because I was um — ah because of my age and I have this experiences of being tricked before ah I was concerned that it will happen to me again. (j) I had the following exchange about the matter: [71] HIS HONOUR: The difficulty that this creates is that Jet now says that the proceeding should be dismissed because you’re not complying with a court order. And I can modify the order so as to restrict the person who conducts the inspection to just the expert engaged by Jet. MR CHANG: In that case, I would agree. Having now reviewed the 5.5.25 Orders, I note that inspection is limited to Jet’s solicitor and the expert engaged by him. The orders carefully circumscribe what those persons are allowed to do: ‘take such measurements, photographs or video records as they consider necessary’. The orders do not permit attendance by Jet or Victor, which appears to have been a concern of Fuan. Accordingly, I do not consider that those orders require modification in the manner that I suggested at the hearing on 19 June 2026. There is a disconnect between Fuan’s default and the relief that Jet seeks in Jet’s 18.3.26 Application. Jet seeks access to the Howitt St Property in order to obtain expert evidence as to his claim for mesne profits. While Fuan’s default relates to Jet’s Counterclaim, the relief that Jet seeks is directed to Fuan’s Claim. Striking out Fuan’s Claim will not relieve Jet of the obligation to prove his claim at a trial. A relevant (but not necessarily decisive) consideration is whether there is a less drastic remedy to address Fuan’s default. Given that the default arises in the context of Jet’s Counterclaim, an obvious remedy for failure to comply with an order of the Court would be to strike out Fuan’s defence to that counterclaim, or consistently with the issued-based approach of the Court of Appeal’s decision in British American Tobacco Australia Services Ltd v Cowell , [72] that part of it relating to the quantum of the mesne profits claim. There is a question as to whether Jet’s Counterclaim for mesne profits is premature because it is being sought prior to Jet obtaining possession of the Howitt St Property. In Minister of State for the Interior v RT Co Pty Ltd , [73] the Commonwealth compulsorily acquired land upon which the Rolf building was constructed. There was some delay in the Commonwealth obtaining possession of the basement of that building. The Minister of State for the Interior sued the defendants for mesne profits arising from the occupation of the basement, which was backdated, in the statement of claim, to the date of acquisition of the building. Taylor J dismissed the claim for mesne profits because the plaintiff had not obtained actual possession of the premises before bringing suit. In Richardson v Richardson , [74] Ward CJ in Eq applied RT Co in holding that a claim for mesne profits brought before the plaintiffs had recovered possession of property was premature. In circumstances where a trial on all issues is fixed in August 2026, it is somewhat surprising that Jet has not obtained an expert opinion in support of his mesne profit claim, even making due allowance for Fuan’s default. While not ideal, an expert is likely to have been able to provide an opinion as to market rental, without an inspection of the inside of the property, by making and stating assumptions regarding the property’s condition. The ‘facilitation principle’ allows the Court to adopt a ‘robust’ approach to the assessment of damages and the drawing of inferences where a defendant, by its wrongful conduct, has prevented or impeded a plaintiff from adducing evidence as to its loss. [75] Rule 47.04 of the Rules provides that the Court may order that (a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated; and that (b) different questions be tried at different times or places or by different modes of trial. In Tepko Pty Ltd v Water Board , [76] Kirby and Callinan JJ cautioned that ‘[s]ingle-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question’. In view of RT Co and Richardson , and the fact that Jet does not have evidence to support his claim for mesne profits, I asked Jet whether he would object to orders bifurcating Jet’s Counterclaim so the issue of mesne profits damages, exemplary damages and aggravated damages were heard separately from the main proceeding. Jet did not object to that course, but did not give up his claim for dismissal of Fuan’s Claim for want of prosecution. His written submissions are consistent with this: ‘He presently presses against Ms Chang only the claim for immediate possession’. [77] Having regard to the circumstances set out above, and the requirement of the CPA, I consider that it is appropriate to order that Jet’s claim for mesne profits and damages be heard separately from the trial and determination of Fuan’s Proceeding. If Jet is successful at trial, he will gain possession of the Howitt St Property and thereby have access to it for the purpose of his expert. Another course open to the Court would be to strike out Fuan’s defence to Jet’s Counterclaim, or parts of his defence, pertaining to mesne profits. As such relief was not specifically sought by Jet in his summons filed 18 March 2026, and Fuan is self-represented, I do not consider that it is appropriate to make such an order at this point. The third alleged non-compliance is as follows: Orders of 7 May 2025 — failed to pay fixed costs of $9,807.75. The circumstances relating to the non-compliance are: (a) Fuan has failed to pay the costs fixed on 7 May 2025 in the amount of $9,807.75. (b) The affidavit of Julian Gillard sworn 30 April 2025, that is relied upon by Jet suggests that Fuan is unlikely to have the resources to satisfy a costs order: [78] I am informed by both Jet and Victor that they are unaware of Fuan holding any material assets in his name in Australia. (c) At the hearing on 19 June 2026, I asked Fuan why he had not paid the costs: [79] MR CHANG: Um I don’t have any — I don’t have any money, I don’t have any source of income and I’m living on the pension. ... MR CHANG: I — I have the funds to pay — I still have the funds, and I can pay the $9,800-something, but I have no idea what this is for and do I need to come to court to make this payment, I have no idea. ... MR CHANG: Okay, yeah, I can give that money to him. (d) On the other hand, Victor’s Affidavit sworn 20 April 2026, was to the effect that Holly adduced evidence in her Annulment Application that Fuan had agreed to provide $13,000 towards payment of the debt the subject of the creditor’s petition and in 2024 had made a payment towards a Tesla car driven by Holly. Given that this evidence does not come from Fuan, I do not attribute any significant weight to it in the context of Jet’s 18.3.26 Application. Rule 63.03(2) of the Rules provides that costs which a party is required to pay under any of these Rules or an order of the Court shall, unless the Court otherwise orders, be paid forthwith. Rule 63.03(3) of the Rules provides that where the Court makes an interlocutory order for costs, the Court may then, or thereafter, order that if the party liable to pay the costs fails to do so (a) if that party is the plaintiff, the proceeding shall be stayed or dismissed; (b) if that party is a defendant, the defendant’s defence shall be struck out. In Rozenblit v Vainer , [80] the High Court allowed an appeal from orders staying a proceeding pursuant to r 63.03(3) of the Rules, on the basis of non-payment of a costs order. Kiefel CJ and Bell J held that such orders should not be employed unless they are the only fair way of protecting the interests of the applicant for the orders. Jet’s 18.3.26 Application does not rely on r 63.03(3) of the Rules. Rather, his application to strike out Fuan’s Claim is made on the basis of want of prosecution. Non-payment of this costs order is relied on as an element of his claims of ‘Intentional and contumelious default’ and ‘Inordinate and inexcusable delay’. Given the relatively small amount of the costs order, and the fact that a trial is fixed for hearing in August 2026, I consider that Fuan’s default is not a matter upon which significant weight should be given in the context of Jet’s 18.3.26 Application. Dismissal of Fuan’s Proceeding concerning his place to live and home would be a grossly disproportionate remedy for failure to pay a small costs order. The fourth alleged non-compliance is as follows: Orders of 15 July 2025 — failed to arrange an interpreter or legal representation for trial. The circumstances relating to the alleged non-compliance are: (a) On 15 July 2025, Daly AsJ made orders that the proceeding be listed for further directions on 20 August 2025. There was no appearance by Fuan. The Court noted that: (i) ‘Progress has been made by the parties in compiling an agreed court book index, and directions are made to facilitate the completion of that task’; (ii) ‘[Holly] was informed by the Court that: (A) ‘the plaintiff, who has not attended the recent directions hearings, will need to attend Court for the trial of the proceeding’; (B) ‘the plaintiff will need to arrange for an appropriately qualified interpreter to attend Court for the trial of the proceeding to assist the plaintiff’; and (C) ‘the plaintiff cannot assume that the trial judge will permit him to be represented at the trial of the proceeding by anyone other than a lawyer’. (b) At the hearing on 19 June 2026, I asked Fuan why he had not organised an interpreter for the trial: [81] MR CHANG: It — it’s still early and it’s not August yet, um I don’t know where to or I don’t know how to organise the interpreter or where I should make the booking and — and my — my daughter has been taking me to some places. While the need for Fuan to arrange an interpreter is referred to in Daly AsJ’s orders made on 15 July 2025, there was no order to that effect. [82] Similarly, there was no order requiring Fuan to obtain legal representation — and nor would such an order be made. The right of a self-represented litigant to appear in person is ‘fundamental’. [83] Fuan’s failure to procure an interpreter or obtain legal representation does not constitute ‘intentional and contumelious’ default. Nevertheless, in order to effectively participate [84] in the trial that is listed in August 2026, Fuan will need to make his own arrangements for an interpreter to assist him. It is doubtful that the Court will be in a position to provide Fuan with an interpreter for the trial, as it has for the hearing of the Six Applications. Those arrangements ought to be made forthwith. I will direct Fuan to advise the Court as to the progress in relation to arrangements for an interpreter. The fifth alleged non-compliance is as follows: Orders of 4 December 2025 — failed to file and serve further affidavits and supplementary court book by 13 February 2026. The circumstances relating to the alleged non-compliance are: (a) On 26 August 2025, Fuan filed the plaintiff’s supplementary court book index. (b) On 4 December 2025, Hannon J made orders as follows: (i) ‘By 4.00pm on 13 February 2026, Fuan and Holly file and serve a supplementary court book which includes: (a) all pleadings and affidavits on which they rely; and (b) any additional documents that they seek to tender into evidence at trial or refer to in cross-examination, save that Fuan and Holly should only include documents that have not already been included in Jet and Shengli’s court book’. [85] (c) On 14 January 2026, Jet and Shengli filed a court book index. It would appear that a court book has been prepared. (d) On 12 June 2026, Fuan filed the affidavits of Fuan sworn 12 June 2026 and Holly sworn 12 June 2026, which set out the evidence that he intends to rely on at trial. (e) At the hearing on 19 June 2026, I asked Fuan why he had not filed a supplementary court book: [86] MR CHANG: I — I — I don’t — I don’t understand English, I don’t understand law and how am I supposed to understand what this is and how am I supposed to prepare for it? ... Fuan has now filed the affidavits that he seeks to rely on at trial. While Fuan has prepared a supplementary court book index in August 2025, that will need to be updated in light of the 12 June 2026 affidavits of Fuan and Holly. The court book will need to contain any document that Fuan intends to rely on at trial that is not already in the court book prepared by Jet. I will direct Fuan to advise the Court as to the progress in relation to the filing of a supplementary court book. The sixth alleged non-compliance is as follows: Failed to return the pro bono scheme referral form for 75 days after it was sent. Fuan was under no compulsion to accept pro bono legal assistance. Self‑representation is not only a ‘fundamental’ right, [87] but often a necessity. It would be a perverse outcome if Fuan’s failure to take advantage of pro bono legal assistance, or his failure to do so in a timely manner, founded the dismissal of Fuan’s Claim for want of prosecution. Given that no pro bono representation has been found on the referral, Fuan’s delay, if it occurred, had little consequence. Matter 4 Matter 4, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is Fuan’s non-compliance with costs orders made against him in Fuan’s Proceeding to date. This would appear to be a repetition of the matter that is addressed above in relation to Matter 3. Matter 5 Matter 5, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that any further delay in the trial of the proceeding and resolution of the dispute will cause substantial ‘prejudice to [him] because Fuan and Holly continue to occupy the Howitt St property to [his] detriment’. This would appear to be directed to the possibility of ‘further delay’ of the trial, listed in August 2026. Consideration of this issue is premature. Matter 6 Matter 6, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that the passage of time has ‘made it more difficult to obtain a fair trial of the issues’, as witnesses’ memories ‘will have deteriorated’ and ‘relevant documents are no longer available’ in circumstances where parts of the alleged events in dispute occurred as early as August 2011. These matters have greater relevance to Jet’s claim of ‘Inordinate and inexcusable delay’. Nevertheless, I take them into account in the exercise of my discretion in relation to the allegation of ‘Intentional and contumelious default’, subject to my comments about them, below. Conclusion Ultimately, a balance needs to be struck between the plaintiff and the defendant having regard to the wider interests of justice and to the requirements of the CPA. The question of whether to grant an order for dismissal of a proceeding for want of prosecution depends ‘if the justice of the occasion demands it’. [88] Having regard to all of the circumstances set out above, I am not satisfied that Fuan is guilty of intentional and contumelious default. Further, I do not consider that justice in this case demands dismissal of Fuan’s Claim. The most consequential matter that is outstanding is compliance with orders giving access to the Howitt St Property. I propose to deal with that matter by ordering the bifurcation of Jet’s Counterclaim, and note the potential for Fuan’s defence to Jet’s Counterclaim, or part of it, to be struck out if he does not make that property available for inspection. Inordinate and inexcusable delay Jet contends, in the alternative, that: (a) there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party. Matter 7 Matter 7, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that ‘Two trial dates have been vacated (20 August 2024 and 2 September 2025)’. The relevant background facts are as follows: (a) On 27 February 2023, Fuan commenced Fuan’s Proceeding by filing a writ and statement of claim. (b) On 8 December 2023, Jet filed an application for summary dismissal of Fuan’s Claim. (c) On 14 and 17 May 2024, Daly AsJ heard Jet’s application for summary dismissal of Fuan’s Claim. (d) On 18 July 2024, Daly AsJ dismissed Jet’s application for summary dismissal but struck out Fuan’s original statement of claim and gave Fuan leave to file and serve an amended statement of claim, and made various other interlocutory orders, including an order for mediation by 4 October 2024 and pre-trial directions on 17 October 2024. (e) On 4 February 2025, Daly AsJ made orders listing Fuan’s Proceeding for trial on 2 September 2025, on an estimate of 10 days. (f) In her Judgment handed down on 2 July 2025 (concerning Holly’s application to set aside judgment in relation to Holly’s Earlier Proceeding), Daly AsJ noted that: Victor’s proceeding and Holly’s [Earlier] proceeding were initially set down for trial on 20 August 2024 and were to be jointly heard given that the proceedings involve the same parties. The proceedings were not ready to proceed to trial and the trial date was vacated in July 2024. The Fuan Chang proceeding is now listed for trial on 2 September 2025. (g) The circumstance of the vacation of the trial date of 2 September 2025 are recorded in ‘Other Matters’ of Hannon J’s orders made 4 September 2025: [89] On 21 August 2025, the Honourable Associate Justice Daly made an order in this proceeding S ECI 2025 03682 (2025 Proceeding) that, subject to the plaintiff’s compliance with paragraph 4 (giving leave to the plaintiff to file and serve an amended statement of claim in the form provided for by the order), the 2025 Proceeding be managed and heard together with proceeding S ECI 2023 00747 (2023 Proceeding), which was then fixed for trial commencing on 2 September 2025. On 26 August 2025, the plaintiff filed an amended statement of claim and, on 27 August 2025, each of the first defendant and the second defendant filed a defence to that amended statement of claim. On 29 August 2025, the Court wrote to the parties to indicate that the trial fixed for 2 September 2025 would be adjourned to facilitate the completion of any remaining interlocutory steps in the 2025 Proceeding, and that a directions hearing in each of the 2023 and 2025 Proceedings would be fixed for 13 October 2025 at 10.00am before me. It is intended that Judicial Registrar Burgess will sit with me at the directions hearing, so as to ensure that all extant interlocutory steps and any other applications in the 2023 and 2025 Proceedings and any other related proceeding can be efficiently managed together, in order to better facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute between the parties. Jet’s reference to Fuan’s Proceeding having been listed for trial on 20 August 2024 appears to be a mistaken reference to the listing of Victor’s Proceeding and Holly’s Earlier Proceeding on that date. Fuan’s Proceeding was not listed for trial on 20 August 2024. The vacation of the trial date of 2 September 2025 was ‘to facilitate the completion of any remaining interlocutory steps’ — presumably consequential upon the filing of an amended statement of claim by Fuan on 26 August 2025, in accordance with orders made by Daly AsJ on 21 August 2025. Having regard to the chronology set out above, while there would appear to have been delay attributable to Fuan (occasioned by his need to file an amended statement of claim) (Issue 1), [90] that delay was not ‘inordinate or inexcusable’ (Issue 2). In reaching that conclusion, I have regard to the matters noted above at [ 194 ]. I also note that according to Daly AsJ’s judgment, ‘evidence ... emerged in the course of the hearing of the applications [for summary judgment]’ that rendered the original statement of claim ‘not vi [91] le’. 91 In relation to Issue 3, the delay caused by the vacation of the trial listed for 2 September 2025 is around one year. While it is true that the events the subject of Fuan’s Claim occurred a long time ago, I am not satisfied that the one-year delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or caused, or is likely to cause, serious prejudice to Jet. Jet claims prejudice suffered ‘as a result of Fuan and Holly’s conduct’, which includes the loss of use and occupation of the Howitt St Property, ‘financial carrying costs’, the impact of his plans, and those of his wife, to start a family, and the risk of non-recovery of mesne profits. Each of those points have as their premise, success by Jet in Jet’s Counterclaim. The essential prejudice being asserted here is delay in final relief as opposed to prejudice in the conduct of the proceedings. Fuan refers to ‘Other prejudice’ arising from the fact that the proceeding, which is to be heard in August 2026, refers to events that occurred as long as 15 years ago. He also refers to the fact that ‘Fuan’s wife, Xiuzhen’ [92] (presumably Jet’s grandmother) passed away on 28 March 2022. He says that due to the passage of time, he has ‘lost significant amount of potentially relevant files and data, including emails, bank records and work-related records, both in Australia and overseas’. There is no detailed or cogent evidence about that, but a degree of prejudice may be presumed. [93] The matters relied on by Jet do not appear to be attributable to the delay since 2 September 2025. The matters relied on by Jet would appear to predominantly fall into the category of delay that he would have suffered in any event. [94] Matter 8 Matter 8, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that, ‘ Since 4 February 2025, there has been a complete absence of prosecution by Fuan — no attendance, no compliance’. I address Jet’s allegations of non-attendance and non-compliance above, in relation to the allegation of ‘Intentional and contumelious default’. While there has been some delay attributable to Fuan since 4 February 2025 (Issue 1), I am not satisfied that such delay was ‘inordinate and inexcusable’ (Issue 2). In reaching that conclusion, I have regard to the matters noted above at [ 194 ]. As to Issue 3, I am not satisfied that the one-year delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or caused, or is likely to cause, serious prejudice to Jet. Matter 9 Matter 9, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that ‘Fuan’s solicitors ceased to act on 6 December 2024 and he has since done nothing whatsoever to advance his claim’. Matter 9 would appear to be a repetition of Matter 7. I refer to my comments in relation to Matter 7. Matter 10 Matter 10, that is relied upon by Jet in support of his application for dismissal of Fuan’s Claim, is that, ‘As at the date of this submission, Fuan has not served any outlines of evidence, any further affidavits, or any supplementary court book’. Fuan has now filed the two affidavits that he intends to rely on by way of outline of evidence: namely, Holly’s Affidavit sworn 12 June 2026 and Fuan’s Affidavit sworn 12 June 2026. I accept that Fuan is in default of his obligation to file a supplementary court book, and will need to revise the one that he has apparently prepared to include those two documents. Once again I accept that there has been some delay attributable to Fuan since 4 February 2025 (Issue 1), I am not satisfied that such delay was ‘inordinate and inexcusable’ (Issue 2). In reaching that conclusion, I have regard to the matters noted above at [ 194 ]. As to Issue 3, I am not satisfied that the delay attributable to Matter 10 has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or caused, or is likely to cause, serious prejudice to Jet. Cumulative effect of Matters 7 to 10 For completeness, I have regard to the cumulative effect of Matters 7 to 10, but I am not satisfied that such delay was ‘inordinate and inexcusable’ (Issue 2). Further, I am not satisfied that the cumulative effect of Matters 7 to 10 (to the extent I have accepted them as evidence of delay) has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or caused, or is likely to cause, serious prejudice to Jet. Conclusion Once again, a balance needs to be struck between the plaintiff and the defendant having regard to the wider interests of justice and the requirements of the CPA. The question of whether to grant an order for dismissal of a proceeding for want of prosecution depends ‘if the justice of the occasion demands it’. [95] Having regard to all of the circumstances set out above, I consider that the justice of this case does not demand dismissal of Fuan’s Claim. I am not satisfied that Fuan is guilty of inordinate and inexcusable delay, such as to warrant an order for dismissal for want of prosecution. In reaching that conclusion, I take into account Jet’s concern that he ‘has been shut out from his property since acquiring it on about 4 May 2022 i.e. a period of 3 years’ as at May 2025 which is now 4 years. He has referred to the fact that Holly and Fuan ‘are paying no rent or expenses associated with the ownership of the Howitt St Property’, which includes land tax totalling $69,975, insurance and rates. By contrast, he and his wife are paying rent at around $4,000 per month because of their inability to live at the Howitt St Property. Jet is concerned that even if successful, there is a ‘strong prospect’ that he will be unable to recover his costs, mesne profits and damages from his grandfather. Against these matters, I need to weigh the prospect that Fuan, an 86 or 88 year old, will be rendered homeless, without having his claim heard. For completeness, I reject Jet’s alternative claim for self-executing orders concerning arranging an interpreter and attendance at trial. [96] Those issues are best addressed by the trial Judge in the context of the trial. In relation to the interpreter, if Jet is concerned that absence of an interpreter might prevent the trial from proceeding, one thing that he could do would be to make his own arrangements for a court-approved interpreter to be present for the hearing listed in August 2026, to ensure that Fuan is able to effectively participate in those proceedings. Such an arrangement should be made in consultation with the Chambers of the trial Judge. Disposition In the premises, I shall dismiss Jet’s 18.3.26 Application and make orders bifurcating Jet’s Counterclaim, in the manner that I have set out above. In circumstances where Jet has not been successful in Jet’s 18.3.26 Application, the usual order would be that costs follow the event, namely that Jet should pay Fuan’s costs of and incidental to that application. When I asked Fuan whether he would seek a costs order in the event that he successfully resisted Jet’s application, he said that he would not make a costs application: ‘What I want is a place to live, I don’t want money’. While Fuan has been in default of court orders, I do not consider that such default warrants a departure from the usual rule that costs ought to follow the event. However, because of Fuan’s concession, and the fact that he is self-represented, I shall order that each party bear their own costs of and incidental to Jet’s 18.3.26 Application. Victor’s Proceeding Material Victor has filed and relies on the following: (a) summons dated 7 May 2026; (b) affidavits affirmed 16 April 2026, 11 May 2026, 26 May 2026 and 11 June 2026; and (c) written submission dated 17 April 2026, 20 April 2026, 15 May 2026 and 22 May 2026. Holly has filed and relies on the following: (a) written submissions dated 3 December 2025 and 18 May 2026; and (b) affidavits sworn 30 March 2026 [97] and 8 May 2026. [98] The Trustee has filed and relies on the following: (a) written submissions dated 21 May 2026. Background By his statement of claim filed in Victor’s Proceeding, Victor alleges: (a) In 2010, he and Holly entered into an Agreement in respect of the purchase of the Ormond Esp Property, with terms that the parties would be registered on the title to the property, Holly would hold her interest on trust for Victor, and Holly and their parents would have a right of occupation until the property was sold. (b) The Ormond Esp Property was purchased in accordance with the Agreement and Victor and Holly were registered on the title to the property. (c) In 2015, the Ormond Esp Property was sold and net proceeds of $1,789,866.40 were available at settlement. (d) Victor alleges that he instructed the lawyers acting for him in the conveyance to transfer 50% of the net proceeds to Holly, as a consequence of threats made by her to him and in breach of the Agreement. (e) Victor alleges that the amount of $894,933.20 (being 50% of the net proceeds of sale of the Ormond Esp Property) received by Holly were impressed with a trust in favour of him. (f) Victor alleges that the moneys are traceable into the Tacoma St Property. (g) Separately, Victor also alleges that Holly misappropriated money from him using an appointment as ‘general attorney’ and used some of the moneys to purchase a Mercedes Benz E250. On 4 February 2025, Daly AsJ made orders as follows: Pursuant to s 56(2)(j) of the Civil Procedure Act 2010 (Vic) (‘CPA’), the defendant’s defence be dismissed. Alternatively to paragraph 1 above, pursuant to r 24.02(1)(b) of the Rules, alternatively, r 29.12.1(3)(b) of the Rules, the defendant’s defence be struck out. Pursuant to s 51(c) and/or s 56(2)(j) of the CPA, alternatively, r 21.02 and 21.04 of the Rules, judgment be given against the defendant in the following terms: (a) The Court declares that the defendant breached the fiduciary duties she owed to the plaintiff as trustee of a 50% share in 31 Ormond Esplanade, Elwood, more properly described as lot 1 on PS518183C being volume 10816 of folio 025 (‘Elwood property’) by preventing the release of the proceeds of the sale of the Elwood property to the plaintiff on or about 8 May 2015, and by asserting an entitlement to half of the proceeds of sale together with seeking half of the proceeds of sale be released to her. (b) The Court declares that the defendant held the amount of $894,933.20 received on or about 10 June 2015, being proceeds from the sale the Elwood property, on trust for the plaintiff. (c) The Court declares that the defendant breached the fiduciary duties she owed to the plaintiff as his agent and general attorney by misappropriating amounts totalling $99,037.66 over the period 16 April 2011 to 21 April 2011. (d) The defendant pay the plaintiff equitable compensation in the amount of $993,970.86 comprising: (i) $894,933.20; and (ii) $99,037.66. (e) The defendant pay the plaintiff interest on the aforesaid sums in the amount of $397,588.34 comprising: (i) $357,973.28 on the amount referred to in paragraph 3(d)(i) above; and (ii) $39,615.06 on the amount referred to in paragraph 3(d)(ii) above. (f) The Court declares that the defendant’s property situated at 22 Tacoma Street, Park Orchards in the state of Victoria, more properly described as lot 2 on plan of subdivision 602546X, volume 11083 folio 242, is charged with payment of the amounts referred to in paragraph: (i) 3(b) and 3(d)(i) above; and (ii) 3(e)(i) above. (g) The Court declares that the defendant’s vehicle bearing registration YIE 848 is charged with payment of the amounts referred to in paragraph: (i) 3(c) and 3(d)(ii) above; and (ii) 3(e)(ii) above. The defendant pay the plaintiff’s costs of and incidental to the plaintiff’s application filed on 29 November 2024 on an indemnity basis to be taxed in default of agreement. Subject to paragraph 4 of this Order, the defendant pay the plaintiff’s costs of and incidental to the proceeding on a standard basis to be taxed in default of agreement, subject to the costs orders made in the plaintiff’s favour against the defendant by: (a) paragraph 3 of the Order made on 15 December 2022; (b) paragraph 12 of the Order made on 19 July 2024; and (c) paragraph 7 of the Order made on 12 November 2024. On 24 November 2025, Victor filed Victor’s 24.11.25 Application, seeking judicial sale of the Tacoma St Property. On 22 January 2026, Holly became a bankrupt on the making of the Sequestration Order against her estate under the Bankruptcy Act . Victor’s 24.11.25 Application and Victor’s 7.5.26 Application In Victor’s 24.11.25 Application, he seeks orders as follows: (a) ‘Pursuant to the judgment of Associate Justice Daly dated 4 February 2025 and the equitable charge thereby imposed over [the Tacoma St Property], the charged property be sold’. (b) ‘The Registrar of the Supreme Court (or her nominee) be appointed to execute all documents necessary to effect the sale of the charged property on behalf of [Holly]’. (c) ‘The proceeds of sale of the charged property be applied in the following order: (i) payment of the reasonable costs of sale; (ii) payment to the plaintiff of $1,252,906.48, together with post-judgment interest at 10% per annum from 4 February 2025 until payment; (iii) payment of [Victor’s] costs of and incidental to this application; (iv) the balance (if any) to the defendant’. In Victor’s 7.5.26 Application, he seeks orders as follows: (a) Joseph Loebenstein, in his capacity as trustee of the bankrupt estate of Holly Chang, be added as a defendant or substituted in place of [Holly] to this proceeding, for the limited purpose of determining [Victor’s 24.11.25 Application] pursuant to r 9.09(2) of the Rules, with consequential directions concerning service and appearance; (b) directions concerning the filing of any material in opposition by Joseph Lobenstein; (c) consequential orders facilitating the judicial sale of [the Tacoma St Property], including that Joseph Lobenstein do all things necessary in order to effect the sale of the property. At the hearing before me, Victor sought the following orders: (a) The plaintiff’s summons to join Joseph Loebenstein, in his capacity as trustee of the bankrupt estate of Holly Chang (the Trustee), as a party to the proceeding is withdrawn. (b) The property situated at 22 Tacoma Street, Park Orchards, more particularly described as Lot 2 on Plan of Subdivision 602546X, Volume 11083 Folio 242 (the Property) be sold. (c) The plaintiff has conduct of the sale of the Property. (d) The plaintiff be authorised to appoint a licensed real estate agent and any conveyancer or solicitor necessary to conduct and complete the sale. (e) The real estate agent must conduct the sale using all proper and lawful methods, including advertising as appropriate. The sale may be conducted by public auction or private treaty, as reasonably determined by the real estate agent. (f) The reserve selling price shall be fixed at $850,000. Should the property fail to sell within one month of auction, or within two months of being listed for sale by public treaty, the reserve selling price may be refixed at such lower amount as reasonably determined by the real estate agent from time to time. (g) If Holly Chang, or any other person whose signature is required to complete the sale, fails or refuses to execute any document necessary to give effect to the sale within three business days after written request, the Registrar of the Supreme Court, or such other person as the Court appoints, be authorised to execute all necessary documents on behalf of that person. (h) The gross proceeds of sale be applied first to: (i) the reasonable fees, costs and expenses of sale, including agent commission, advertising, auction, conveyancing, settlement and legal expenses; (ii) any rates, taxes, adjustments and statutory outgoings payable on or before settlement; and (iii) any prior registered mortgage or encumbrance required to be discharged on settlement (not including the charge in favour of the plaintiff). (i) The net proceeds of sale be paid into Court, pending further order. (j) The plaintiff’s costs of and incidental to the summons for judicial sale, and further summons for directions, be reserved. (k) Liberty to apply. Legislation and Rules Section 91 of the Property Law Act 1958 (Vic) provides: (1) Any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative. (2) In any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption, and, notwithstanding that— (a) any other person dissents; or (b) the mortgagee or any person so interested does not appear in the action— and without allowing any time for redemption or for payment of any mortgage money, may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms. (3) But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any defendant, and may give such directions as it thinks fit respecting the costs of the defendants or any of them. (4) In any case within this section the Court may, if it thinks fit, direct a sale without previously determining the priorities of incumbrancers. (5) This section shall apply to actions brought either before or after the commencement of this Act. (6) In this section mortgaged property shall include the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable. (7) For the purposes of this section the Court may, in favour of a purchaser, make a vesting order conveying the mortgaged property, or appoint a person to do so, subject or not to any incumbrance, as the Court thinks fit; or, in the case of an equitable mortgage, may create and vest in the mortgagee a legal estate to enable him to carry out the sale in like manner as if the mortgage had been made by deed by way of legal mortgage. Rule 55.02 of the Rules provides: In any proceeding relating to land, where it is necessary or expedient for the purposes of the proceeding, the Court at any stage of the proceeding— (a) may order that the whole or any part of the land be sold; and (b) may further order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court directs. Principles In Morris Finance Ltd v Brown , [99] the Full Court of the Federal Court explained the nature of an equitable charge and the remedies available to a charge holder: [100] Apart from statutory charges, charges are creatures of equity and enforceable only in equity... An equitable charge usually arises by agreement between the parties under which the property charged is made liable for or is ‘appropriated’ to securing the performance or discharge of the relevant contractual obligation. In relation to the charged property, there is no transfer of title or any possessory interest conferred by an equitable charge, although an order for possession may be a necessary adjunct to an order for sale if the equitable charge is sought to be enforced. Moreover, unlike a mortgage, there is no right or power of foreclosure ... The principal right or remedy of the chargee to enforce its equitable charge is by a judicial order for sale (with an ancillary order for possession) or the appointment of a receiver ... The chargee has no self-help remedy ... but must obtain the assistance of a court of equity to realize or enforce the charge. Usually, upon default a chargee is entitled to an order for sale, although given that an equitable jurisdiction is being invoked there may be discretionary aspects to the exercise of that jurisdiction. We have described a court’s power to order a sale (including any ancillary orders) to enforce an equitable charge as being in the court’s equitable jurisdiction, although such a jurisdiction may be supplemented by the conferral of other statutory powers. Consideration An equitable charge may only be enforced by a judicial order for sale or by an order for the appointment of a receiver to the charged property. Holly’s bankruptcy gives rise to the following issues: (a) What is the effect of Holly’s bankruptcy on her interest in the Tacoma St Property? (b) What is the effect of Holly’s bankruptcy on the claims against her in Victor’s Proceeding? (c) What interest does the Trustee have in the Tacoma St Property? (d) Should the proceeding be adjourned pending the hearing and determination of Holly’s Annulment Application? What is the effect of Holly’s bankruptcy on her interest in the Tacoma St Property? First, pursuant to ss 58 and 116 of the Bankruptcy Act , any interest that Holly had in the Tacoma St Property vested in the Trustee. What is the effect of Holly’s bankruptcy on the claims against her in Victor’s Proceeding? Section 58(3) of the Bankruptcy Act provides that, except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor: (a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or (b) except with the leave of the Court, and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding. Section 58(5) of the Bankruptcy Act provides that nothing in this section affects the right of a secured creditor to realise or otherwise deal with his or her security. The first question is whether the amount claimed by Victor, that is secured by the equitable charge over the Tacoma St Property, is a debt provable in Holly’s bankruptcy. Section 82 of the Bankruptcy Act provides that, subject to div 1 of pt VI , all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy. On 4 February 2025, Daly AsJ made orders that Holly pay to Victor equitable compensation in the amount of $993,970.86, plus interest of $397,588.34. The judgment debt was a debt to which Holly was subject at the date of bankruptcy. Hence, it is provable in Holly’s bankruptcy, in accordance with s 82 of the Bankruptcy Act . The second question is whether Victor is a ‘secured creditor’ within the meaning of s 58(5) of the Bankruptcy Act . The term ‘secured creditor’ is defined, in s 5 , to mean ‘a person holding a mortgage, charge or lien on property of the debtor as a security for a debt due to him or her from the debtor’. By order 3(f), made on 4 February 2025, Daly AsJ declared that the Tacoma St Property was charged with payment of the relevant amounts. Accordingly, Victor is a ‘secured creditor’ of Holly within the meaning of ss 5 and 58 (5) of the Bankruptcy Act . It follows that nothing in s 58 affects the right of Victor to realise or otherwise deal with that security. What interest does the Trustee have in the Tacoma St Property? ‘The title that the trustee enjoys is only as good as that which the bankrupt would have enjoyed if their estate had not [been] sequestrated’. [101] Accordingly, the Trustee took the Tacoma St Property subject to Victor’s equitable charge. The difficulty in the present case is that the Trustee has identified a possible challenge to Victor’s security under s 120 of the Bankruptcy Act . Section 120 provides that a transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if: (a) the transfer took place in the period beginning five years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and (b) the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property. The avoidance of a transfer under s 120 of the Bankruptcy Act would operate from the accrual of the trustee’s title upon the commencement of the bankruptcy. [102] However, as I understand the matter, the Trustee has not yet made a decision whether to pursue a claim under s 120 and does not propose to do so in the near term, while he is without funds and while a challenge to the bankruptcy is pending. A challenge by the trustee to Victor’s equitable charge is not straightforward. The Supreme Court’s declaration concerning Victor’s interest in the Tacoma St Property was an implicit recognition of Victor’s pre-existing equitable interest in the property, which, according to his statement of claim, arose at the time of purchase. [103] If such a challenge were mounted, it would likely be required to be litigated in a federal court. For the purpose of Victor’s applications, I do not need to form any concluded view about these matters, but I take into account the possibility of such a claim in the exercise of my discretion as to adjournment. Should the proceeding be adjourned? The final question is whether Victor’s Proceeding should be adjourned pending the hearing and determination of Holly’s Annulment Application. The status of Holly’s bankruptcy is no longer uncertain because Holly’s challenges to the Sequestration Order and bankruptcy have been dismissed. The question of whether to adjourn Victor’s amended applications requires the Court to weigh the competing rights and interests of Victor, Holly and the Trustee. Victor has an interest in the timely realisation of his claim, being an equitable charge in the Tacoma St Property. He is concerned that his equity is being eroded as a consequence of delay. Holly had an interest in preserving the status quo pending the outcome of her challenges to the bankruptcy, but they have now been resolved against her. The Trustee has an interest in discharging his obligations under the Bankruptcy Act , which, in this case, included not incurring costs that are unnecessary where there is a pending challenge to the bankruptcy. [104] The Trustee also has duties to determine ‘whether the bankrupt has made a transfer of property that is void against the trustee’ and to take ‘appropriate steps to recover property for the benefit of the estate’ coupled with an interest in preserving the assets of the estate and property that might be the subject of a claim by him. [105] It appears to me that a sale of the Tacoma St Property is likely to be required in any event. Victor has an equitable charge over that property, that has been recognised by this Court. It secures an indebtedness that has been outstanding since at least 4 February 2025. Holly took no steps to satisfy that indebtedness prior to her bankruptcy. Even if the Trustee were to claim an interest in the Tacoma St Property under the avoidance provisions of the Bankruptcy Act , the property is likely to be required to be sold. The dismissal of Holly’s Review Application and Annulment Application might have restored Holly’s standing to challenge a sale order, but those applications have now been dismissed. Taking all of these matters into account, I consider that it is appropriate to make orders for an immediate sale of the Tacoma St Property and payment of the proceeds of sale (which would constitute an identifiable substitute form of the property) [106] into Court, pending further orders. Whether the requirements of Order 55 are satisfied The final question is whether the other requirements of ord 55 are satisfied. Order 55.03(1) of the Rules provides that, except for special reason, an order for the sale of land under r 55.02 shall not be made unless notice in writing has been given to every person interested in the land, whether or not a party. The order is required to state that such notice has been given, and if not, the ‘special reasons’ for that. According to the Certificate of Title, [107] there are no encumbrances on the title to the Tacoma St Property. Both Holly and the Trustee are on notice of Victor’s 24.11.25 Application for the sale of the Tacoma St Property and participated in the hearing before me. Victor has adduced evidence of a valuation report, showing the current market value of the Tacoma St Property. I shall use that valuation to set a reserve. Disposition In the premises, I shall make orders for the judicial sale of the Tacoma St Property and payment of the surplus funds into court. I propose to modify Victor’s proposed orders to provide greater safeguards aimed at ensuring that the property is not undersold. I shall otherwise adjourn Victor’s 24.11.25 Application and Victor’s 7.5.26 Application to a date to be fixed after settlement of the sale. As proposed, I shall reserve costs. Disposition In the premises, I shall make orders as follows: Holly’s Proceeding (a) dismissing Holly’s 8.5.26 Application (as it pertains to both Holly’s Proceeding and Fuan’s Proceeding); (b) dismissing Holly’s Proceeding; Fuan’s Proceeding (c) dismissing Jet’s 18.3.26 Application (dismissal for want of prosecution); (d) bifurcating Jet’s Counterclaim so that the claims for mesne profits and damages are heard separately; Victor’s Proceeding (e) making orders on Victor’s 23.11.25 Application and Victor’s 7.5.26 Application for sale of the Tacoma St Property and for payment of the proceeds of sale into court. At the hearing, I gave the parties the opportunity to make submissions in relation to costs. I shall also make the costs orders that I have indicated above. I shall circulate some draft proposed orders in each of the three proceedings and give the parties a short period to make any comments they wish in relation to the form of orders. --- [1] Transcript of hearing on 27 May 2026, pp 47–48. [2] Transcript of hearing on 19 June 2026, p 41. [3] Fuan explained ‘I was actually born in the year 1938, but ... the date of birth on the licence was wrongly put as 1939’: Transcript of hearing on 19 June 2026, p 41. See also Jet’s Affidavit sworn 18 March 2026, [39]. [4] I use first names for convenience without meaning any disrespect. [5] Holly Chang v Victor Chang (Appeals and applications) [2025] VSC 715 [7] (Daly AsJ). [6] Holly Chang v Victor Chang (Appeals and applications) [2025] VSC 715 (Hannon J). [7] S EAPCI 2025 0166. [8] VID 1527/2025. [9] VID 358/2026. [10] Chang v Chang [2026] FCA 707. [11] In the matter of the bankrupt estate of Chang [2026] FCA 814 (McElwaine J). [12] Curiously, the email records the date of the letter as being 28 February 2026 which is presumably a typo. [13] Victor’s Affidavit affirmed 31 March 2026, [11(a)]. [14] Victor’s Affidavit affirmed 31 March 2026, [11(c)]. [15] In Fuan’s Proceeding and Victor’s Proceeding. [16] S ECI 2025 03682, S ECI 2023 00747, S ECI 2021 01122, S ECI 2022 04537 [sic. this would appear to be incorrect] and S EAPCI 2025 0166. [17] The email copied the Court and the parties in Fuan’s Proceeding and Victor’s Proceeding. [18] Bankruptcy Act s 31. Noting s 6(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic); Merrifield Corporation Pty Ltd v FAL Mickleham Pty Ltd (No 1) (2025) 78 VR 428 [22] (Harris J) and Stojanovski v Stojanovski [2018] NSWSC 1967 [40] (Ward CJ in Eq). [19] Owens v Comlaw (No 62) Pty Ltd [2006] VSCA 151 ; (2006) 201 FLR 275 [42] (Ashley JA). [20] Cummings v Claremont Petroleum NL (1996) 185 CLR 124 , 137 (Brennan CJ, Gaudron and McHugh JJ). [21] Cummings 137 (Brennan CJ, Gaudron and McHugh JJ). [22] In the matter of the bankrupt estate of Chang [2026] FCA 814 (McElwaine J). [23] Cole v Challenge Bank Ltd [2002] FCAFC 200 [17]. [24] Foots v Southern Cross Mine Management Pty Ltd (2007) 232 CLR 52 [67] (Gleeson CJ, Gummow, Hayne and Crennan JJ). [25] [1993] VicRp 71 ; [1993] 2 VR 221 , 274–275 (Byrne J). [26] [2022] FCAFC 195 ; (2022) 406 ALR 567 [72] (Farrell, Sarah C Derrington and Raper JJ). [27] (2008) 172 FCR 405 [36] (Jessup J). [28] Cf Hycenko v Badge [2023] VSC 19 [11]–[17] (Niall JA). [29] Theissbacher v MacGregor Garrick & Co [1993] 2 Qd R 223 , 230 (Pincus JA and White J). [30] Theissbacher 230 (Pincus JA and White). [31] Foots (2007) 232 CLR 52 [67] (Gleeson CJ, Gummow, Hayne and Crennan JJ). [32] (Emphasis added). [33] At the hearing of the Summons filed 4 April 2025, at which there was no appearance by Fuan or Holly (as the second defendant by counterclaim). [34] Affidavit of Jet affirmed 18 March 2026, Exhibit ZCG–1, p 18. [35] The Court stated that it had reviewed the affidavit of Mr Gillard affirmed 10 June 2025 and considered it appropriate to make the Order. [36] (Words as written). [37] Jet subsequently filed a draft court book index on 29 July 2025; Fuan filed a supplementary court book index on 26 August 2025. [38] ‘Other Matters’, C and D, of the orders of Hannon J and Burgess JR made 4 December 2025. [39] ‘Other Matters’, J, K and L, of the orders of Burgess JR made 23 February 2026. [40] (Emphasis added). [41] Paragraph 4. [42] Bankruptcy Act s 31. Noting s 6(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic); Merrifield [22] (Harris J) and Stojanovski [40] (Ward CJ in Eq). [43] Cf Laris v Lin (No 2) [2016] NSWSC 560 [50]–[52] (Slattery J). [44] [2020] VSC 715 [29]–[33], [76] (Matthews JR). [45] See Coventry v Charter Pacific Corporation Ltd [2005] HCA 67 ; (2005) 227 CLR 234 [4]–[6], [17]–[21] (Gleeson CJ, Gummow, Hayne and Callinan JJ). [46] Jet’s Counterclaim, [29(b)]. [47] Cf Talacko v Talacko [2013] VSC 712 [73] and [74] (Sloss J); Laris v Lin (No 2) [2016] NSWSC 560 [50]–[52] (Slattery J). [48] Filed 19 September 2024. [49] Transcript of hearing on 19 June 2026, p 45. [50] Transcript of hearing on 19 June 2026, p 47. [51] (Emphasis added). [52] [1999] 3 VR 863 , 872 [25] (Tadgell and Ormiston JJ, Brooking J agreeing at 865 [1]). [53] [2025] VSCA 290 (Kennedy , Orr and Richards JJA). [54] At [84]. [55] [2011] VSC 63 ; (2011) 32 VR 495 [99]–[100] (Vickery J). [56] (2009) 239 CLR 175. [57] [2020] VSC 346 [8]–[9] (Derham AsJ) (footnotes omitted). [58] Transcript of hearing on 27 May 2026, p 47. [59] Transcript of hearing on 19 June 2026, p 41. [60] MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 ; (2015) 238 FCR 158 [113] (Mortimer J). See also Tomasevic v Travaglini [2007] VSC 337 ; (2007) 17 VR 100 [29] (Bell J). [61] The Court recorded in ‘Other Matters’ of the 5.5.25 Orders that Peter Beyer, Fuan’s son-in-law, was given permission to hand the 24.4.25 Certificate on behalf of Fuan, and to address the Court on his behalf. [62] The Court recorded in ‘Other Matters’ of the orders of Hannon J, made 4 December 2025, that Holly provided to the Court a certificate for Fuan from a general practitioner dated 24 April 2025, presumably the same medical certificate (24.4.25 Certificate) handed to the Court on 5 May 2025. [63] See Transcript of hearing on 20 August 2025, p 61 L 13. [64] The Court advised that Fuan could not be represented at trial by Holly, who is not a legal practitioner, and that the Court intended to refer him to the Victorian Bar Pro Bono assistance scheme (subject to his consent being sought and obtained). [65] Transcript of hearing on 19 June 2026, p 43. [66] Order 5 of the 5.5.25 Orders. [67] Order 6 of the 5.5.25 Orders. [68] So as to comply with order 3 of the 4.2.25 Orders. [69] Transcript of hearing on 27 May 2026, p 49. [70] Transcript of hearing on 19 June 2026, p 42. [71] Transcript of hearing on 19 June 2026, pp 42 and 43. [72] [2002] VSCA 197 ; (2002) 7 VR 524 [187] (Phillips, Batt and Buchanan JJA). [73] [1962] HCA 29 ; (1962) 107 CLR 1. [74] [2021] NSWSC 353 [165] and [166] (Ward CJ in Eq). [75] Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 ; (2024) 281 CLR 39 [127]–[168] (Edelman, Steward, Gleeson and Beech-Jones JJ). [76] [2001] HCA 19 ; (2001) 206 CLR 1 , 55 [170] (Kirby and Callinan JJ). [77] Jet’s submissions dated 4 May 2026, [25]. [78] At [30](a). [79] Transcript of hearing on 19 June 2026, pp 43-44. [80] (2018) 262 CLR 478 [14]–[15] (Kiefel CJ and Bell J). [81] Transcript of hearing on 19 June 2026, p 45. [82] As to the court’s discretion in relation to the use of interpreters, see Dairy Farmers Co-operative Milk Co Ltd v Acquilina [1963] HCA 59 ; (1963) 109 CLR 458 and Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75. See also r 44A.07(b). [83] Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 [22] (Mason CJ, Brennan, Deane, Dawson and McHugh JJ). [84] Cf SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 ; (2013) 219 FCR 212 [9] (Allsop CJ). [85] Order 7 of the orders of Hannon J made 4 December 2025. [86] Transcript of hearing on 19 June 2026, p 44. [87] Cachia [22] (Mason CJ, Brennan, Deane, Dawson and McHugh JJ). [88] Masel [1995] VicRp 59 ; [1995] 2 VR 328 , 332 (Brooking, Teague and Hedigan JJ). [89] ‘Other Matters’, A to D, of the orders of Hannon J made 4 September 2025. [90] See Pentridge , above. [91] At [2]. [92] Jet’s Submissions dated 18 March 2026, [38]. [93] Cf Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47 (Warren CJ, Tate and Beach JJA). [94] Cf Pentridge [106]. [95] Masel [1995] VicRp 59 ; [1995] 2 VR 328 , 332 (Brooking, Teague and Hedigan JJ). [96] Transcript of hearing on 19 June 2026, p 47. [97] In proceeding S ECI 2023 00747. [98] In proceeding S ECI 2025 03682. [99] [2017] FCAFC 97 ; (2017) 252 FCR 557. [100] Morris Finance 568 (Beach, Markovic and Moshinsky JJ) (emphasis added, citations omitted). [101] Official Trustee in Bankruptcy v Turner [1999] FCA 129 ; (1999) 94 FCR 512 [15] (O’Loughlin J); see also Turner v Official Trustee in Bankruptcy (1999) 97 FCR 241 ; [1999] FCA 1817 (appeal). [102] Williams v Lloyd [1934] HCA 1 ; (1934) 50 CLR 341 , 374 (Dixon J); Re Trustee of the property of O’Halloran [2002] FCA 1305 [76] (Allsop J) and Woods & Lombe v Ulusoylu (2017) 319 FLR 413 [208] (Judge Kelly). [103] Cf Parsons v McBain [2001] FCA 376 ; (2001) 109 FCR 120 [11]–[12] (Black CJ, Kiefel and Finkelstein JJ). See also Rambaldi v Mullins (No 2) [2016] FCA 977 [436] (Murphy J). [104] Kyriackou v Shield Mercantile Pty Ltd (No 2) [2004] FCA 1338 [42] (Weinberg J). [105] Bankruptcy Act s 19. [106] See Anscor Pty Ltd v Clout (Trustee) [2004] FCAFC 71 [43] (Lindgren J). [107] Victor’s 11.5.26 Affidavit, PDF p 26. Print Print (pretty) Print (eco-friendly) Download RTF format (1.12 MB) Signed PDF/A format Cited By LawCite records NoteUp references NoteUp references Join the discussion Tweet this page Follow @AustLII on Twitter Recent tweets about AustLII --> All Databases Cases & Legislation Journals & Scholarships Treaties Libraries LawCite --> About Copyright & Usage Privacy Disclaimers Help http://www.austlii.edu.au/au/cases/vic/VSC/2026/418.html