Australian Agrivision Pty Ltd v Wolstenholme

(Delivered ex tempore; revised from the transcript)

1. The second respondent seeks a stay of this proceeding pending the determination of another proceeding in the Federal Circuit and Family Court of Australia (Division 1) between the second respondent and his ex-de facto partner. Alternatively, the second respondent seeks an order that this proceeding be struck out (or, I interpose, stayed) as vexatious or an abuse of process.
2. The applicant is Australian Agrivision Pty Ltd. It sues as the assignee of the rights of Capital Bridging Finance Pty Ltd.
3. Agrivision avers that Capital lent more than $5 million to B & T Investment Group (ACT) Pty Ltd (the borrower) under a written loan agreement dated 14 June 2024. It alleges that the first respondent, Ms Wolstenholme, and the second respondent, Mr Anderson, were joint and several guarantors of the borrower's obligations under the loan agreement pursuant to guarantees given by them, also dated 14 June 2024. Ms Wolstenholme is said to have been the sole director of the borrower. Agrivision alleges that the borrower defaulted under the loan agreement entitling it to repayment of the outstanding balance. Some money has been received from the receivers and managers of the borrower's property, leaving the balance to be claimed from the guarantors. The borrower is now in liquidation.
4. Agrivision avers that on or about 8 November 2024, Capital assigned the claims on the guarantees to it. Agrivision thus seeks a judgment against the respondents for the unpaid balance of the total amount advanced under the loan as well as certain costs, expenses and outgoings plus interest.
5. Ms Wolstenholme and Mr Anderson are both litigants in person, which is to say they are not represented in the proceeding by lawyers. Perhaps because of that, their grounds of defence to the claims against them are less than clear. They make vague allegations of misleading and deceptive conduct in relation to the loan and the guarantees and place unparticularised reliance on Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; 162 CLR 549. They do not seem to deny the loan agreement or the guarantees, but raise various reasons why the claim against the borrower and/or them should fail. There is nothing in either of their defences which raises anything in relation to the Family Court proceeding.
6. As grounds for the stay of the present proceeding, Mr Anderson submits that he is a party to "concurrent proceedings" in the Family Court, and that the matters are interconnected involving the same parties and financial dealings. He says that he previously sought to join Agrivision to the Family Court proceeding but that was refused. He has that at the next listing of that matter on 9 April 2025 (ie last week) he would again seek leave to join Agrivision. Mr Anderson told the Court today that there has still been no joinder of Agrivision to the Family Court proceeding but that he intends to pursue such a joinder. It is not presently apparent what the basis for such a joinder might be.
7. Mr Anderson submits that the two proceedings have a substantial overlap in facts and parties, that the Family Court is the more appropriate jurisdiction and that in the absence of a stay of the present proceeding there is the potential for inconsistent outcomes.
8. Mr Anderson also submits that the present proceeding appears to be designed to frustrate or complicate the Family Court proceeding and is being used for strategic or improper purposes, including to exert pressure on him in the Family Court matter.
9. In his affidavit in support of his application, Mr Anderson states that he is a creditor in insolvency investigation proceedings involving the borrower. He says that he is presently unable to properly mount a defence in the proceeding in this Court because his financial affairs are subject to determination in the Family Court proceeding and the insolvency investigation.
10. Drawing on the non-exclusive list of relevant considerations for the application of a stay of one proceeding in favour of another proceeding that is said to be related identified by Lockhart J in Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 at 291 (and adopted in Oswal v Burrup Fertilisers Pty Ltd [2011] FCAFC 117; 85 ACSR 531 at [29] by Mansfield and Foster JJ), I consider the following to be presently relevant considerations:

(1) Is the law's concern to strive against permitting multiplicity of proceedings in relation to similar issues implicated in this case, and if so in what way and to what extent?

(2) What is the nature and extent of the interrelationship between the two proceedings?

(3) What is the nature and extent of the prejudice, if any, if both proceedings proceed in parallel, or if one is stayed rather than the other?

(4) What is the balance of advantages and disadvantages to each party?

1. I accept, as explained by Cheeseman J in Shaw v Official Trustee in Bankruptcy of the Australian Financial Security Authority [2022] FCA 775 at [24], that:

The burden is on the applicant contending for the stay to show that it is just and convenient to interfere with the other party's ordinary rights. The Court will look to the factors that, generally, balance the advantages and disadvantages to each party and to the Court. A stay will be appropriate where there are two separate proceedings between the same parties with related subject matter and where the hearing of one of the proceedings may dispose of the need for the second. Another factor which is relevant for the Court to consider in exercising the discretion to temporarily stay one proceeding until another is determined is the risk of inconsistent findings in the two proceedings in respect of related or overlapping subject matter. The Court may exercise its discretion where the interests of justice would be served by a stay of the proceedings...

(Reference omitted.)

1. I have already sketched the nature of the proceeding in this Court and identified the principal issues. There is little evidence before me as to what the issues are in the Family Court. However, from what has been tendered, it is apparent that it is a proceeding between Mr Anderson and his ex-de facto partner concerning "financial and parenting matters". Mr Anderson states that one of the issues in the Family Court proceeding is what assets there are in the "matrimonial pool". It appears there is some complexity to that proceeding that involves several entities associated with Mr Anderson.
2. It would appear that the only interrelationship between the two matters is that whether or not Mr Anderson has a liability to Agrivision as asserted by Agrivision in the matter in this Court will have a bearing on what assets there are in the "matrimonial pool". That is to say, the present matter may have a significant bearing on the Family Court matter, but not vice versa. I cannot identify any manner in which the Family Court matter may determine any issue, whether of fact or law or mixed fact and law, in the present proceeding. There is no way in which the one proceeding may dispense with the need for the other and there is no appreciable risk of inconsistent findings in the two proceedings. The claim in this proceeding is not brought in the Family Court and Mr Anderson does not (at least at present) bring any claim against Agrivision in the Family Court. The only possible relevance of the Family Court proceeding to the present proceeding is that it may be that once the Family Court proceeding is completed Mr Anderson will have means available to him to better defend the present proceeding. Not only is that an essentially irrelevant consideration in an application for a stay such as the present, but it is entirely speculative both as to outcome and how long it may take for there to be an outcome.
3. In the circumstances, there is no relevant overlap between the two proceedings. Further, it would be unduly prejudicial on Agrivision, as I said, to have to wait the outcome of the Family Court proceeding for being able to pursue its claim. Thus, I consider that the balance of advantages and disadvantages to the parties falls in favour of dismissing the application for a stay of the present proceeding.
4. Insofar as Mr Anderson's case for the present proceeding being an abuse of process is concerned, there is no evidence to support it. There is no evidence before me to support Mr Anderson's generalised allegations as to abuse of process. There is also no evidence before me to support the allegations that this proceeding is in some way being used as leverage in the Family Court proceeding. Mr Anderson points to an email by the solicitor to Capital stating that Capital wished to obtain a judgment on the debt "to potentially use as a threat of bankruptcy". If some question of abuse arises in relation to that, it will arise for consideration on the question of bankruptcy but does not arise at this stage where the current creditor by way of an assignment seeks to progress its proceeding to vindicate what it says is its right to payment. Whether or not its claim is good will be decided in a final hearing in due course, but in the meantime it is entitled to expect that the proceeding will be progressed towards a final hearing with reasonable despatch.
5. Mr Anderson also submits that in the event that I am not in his favour on the stay application, I should adjourn the present application to give him the opportunity to instruct a lawyer to appear for him and to better put the case for a stay. I also refuse that adjournment application. It comes too late and is too speculative. It is not apparent what else might be put forward in support of the application for a stay. I appreciate, of course, that Mr Anderson is in a difficult position having to represent himself but, equally and as explained, Agrivision is entitled to have its proceeding progress in a reasonable manner. The next steps in the proceeding cannot be put off indefinitely in the hope that Mr Anderson may be able to instruct a lawyer.
6. I record that the first respondent, Ms Wolstenholme, has not participated in this interlocutory application, although she does appear before me today and has indicated her support for the application for a stay, but she has not put on any evidence or made any submissions.
7. Mr Anderson's interlocutory application filed 21 February 2025 must be dismissed. There is no reason why the costs should not follow the result. I will make appropriate programming orders to bring this matter to trial as soon as practicable.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.