It follows that a person filing an originating process embodying an application for an order under s.445D, s.445G or 600A must be a creditor when the filing is made. As the decision of Nicholas J has established, Mr Hoath did not have the status of creditor of Comcen at that time. What, then, was the effect of his afterwards becoming a creditor of Comcen through the assignment from Classic (assuming that he did), so far as maintaining the application supposedly initiated by the originating process previously filed?
13 There is no equivalent, in any of these statutory contexts, of s.465B applying to an application for a winding up order. That section allows the court to substitute for the original applicant "a person or persons who might otherwise have so applied for the company to be wound up". In the absence of this provision the original applicant would be the only person capable of pursuing the application and if, by the time it came to be heard, he or she was no longer a creditor, the application would be dismissed.
14 The matter of trafficking in pending winding up applications (and the debts underlying them) was first considered in Re Paris Skating Rink Company (1877) LR 5 ChD 959. As was explained more than a century later in Perak Pioneer Ltd v Petroliam Nasional Bhd [1986] AC 849, the true ground of objection to such a transaction in the Paris Skating Rink case was that the assignee had taken an assignment of the petitioner's debt for an ulterior motive during the pendency of the proceedings. The assignee was a minority shareholder in circumstances where the majority sought to resist the winding up. He took the assignment to put himself in a stronger position to force liquidation. That was the ulterior motive. The Privy Council, in Perak Pioneer, described as accurate a contemporary comment in the Solicitor's Journal that the underlying principle was that "a petition founded on a debt purchased pendente lite for the very purpose of acquiring the right to petition is not sustainable".
15 In the present case, each originating process can now be seen to have been filed by a person without standing to make the relevant application. Each was, at the time of filing, liable to be dismissed or struck out because doomed to failure. Each was, in the sense, an abuse of process. It makes no difference, in my opinion, that Mr Hoath may later have become a creditor and thereby acquired the standing that he should have had to ground his applications in the first place. This is because of the class or group of creditors that each provision clearly has in contemplation.
16 Sections 445D, 445G and 600A, unlike the provisions allowing any creditor at any time to seek winding up, are concerned with creditors in a particular context and for particular purposes. Sections 445D and 445G enable a creditor to seek the intervention of the court in a way that causes a deed of company arrangement to become inoperative. Section 600A, as it applies in relation to a deed of company arrangement, enables a creditor to seek the intervention of the court to vary the outcome of a resolution of creditors where, among other things, it has produced a particular type of adverse effect upon the interests of "the creditors as a whole", "that class of creditors as a whole" or "the creditors who voted against the proposed resolution".
17 The effect and operation of a deed of company arrangement, as it relates to the company's creditors, are as specified in s.444D. By s.444D(1) (which operates subject to qualifications and exceptions in ss.444D(2) and 444D(3)), such a deed "binds all creditors of the company", so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i). Creditors having claims satisfying that temporal specification are thus affected by the deed, as are the respective claims satisfying that temporal specification. One of those temporal requirements, it seems to me, is that the person concerned had, at the time the deed of company arrangement became binding, a claim that had arisen on or before the relevantly specified day. The effect of the statutory provisions is that creditors within that class are, in respect of those claims, entitled to the benefits and subject to the detriments created by the deed.
18 In the case of s.600A and its focus on the interests of creditors, it is in my view plain that the section is concerned with persons who were creditors when the resolution was passed. The section is concerned with circumstances pertaining at and in relation to the meeting and the passing of the resolution and thus has in contemplation the creditor constituency as it existed at that time.
19 Because he had no relevant debt or claim when the resolution was passed and the deed was executed, Mr Hoath was never within the class of creditors contemplated by any of these sections. Any status as creditor that may have accrued to him by reason of the document of 4 August 2004 cannot be regarded as somehow having "fed" or retrospectively validated his applications invalidly and improperly brought by means of the originating processes filed by him in the two proceedings. He was not, at inception, and has not become, a member of the class capable of pursuing an application to the court under any of the sections in question. His applications are therefore an abuse of process.
20 This makes it unnecessary to come to any conclusion on the effectiveness of the purported assignment of debt in favour of Mr Hoath. The result I have stated applies even if it was effective to make him, on and from 4 August 2004, a "creditor" of Comcen in respect of part of the debt of Classic Electrical Service Pty Ltd upon which the deed of company arrangement had already operated.
21 In both proceedings 1756/03 and 3626/03, there will be an order that the statement of claim be dismissed pursuant to Part 13 rule 5 of the Supreme Court Rules.
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