Roths v Sergienko

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 September 2026
• Neutral Citation: [2026] FCA 1360
• Date: 15 September 2026

Federal Court of Australia

Roths v Sergienko [2026] FCA 1360

ORDERS

NSD 1344 of 2026
BETWEEN:	OLIVER ROTHS Plaintiff
AND:	SERGEI SERGIENKO First Defendant IWC INDUSTRIES PTY LTD Second Defendant DK EXCAVATION AND CONCRETING PTY LTD Third Defendant

order made by:	CHEESEMAN J
DATE OF ORDER:	15 September 2026

THE COURT ORDERS THAT:

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

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

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

THE PARTIES’ COMPETING POSITIONS

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

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