It was submitted on behalf of the creditor that such a procedure did not accord with the legislation and therefore that no application in conformity with s.459G had been made within the period allowed by that provision
12 Santow J distinguished Help Desk on the basis that each demand there related to a different debt owed by the one company to a different person, whereas in Femley itself there was one debt, albeit a single debt for which the three companies were jointly and severally liable. The view of Santow J as to the way in which s.459G applied to the case before him was as follows:
"Put shortly, there is nothing in those provisions which prevent a composite application operating as intended in relation to a joint alleged debt, even if there be a separate statutory demand for each alleged joint debtor, so long as the application is expressed so it can be read distributively, along with the accompanying affidavit."
13 Santow J also said:
"Here, where the debt in question is a joint debt, rendered such by s9 of the Partnership Act 1892 (NSW) (as affected by s97 of the Supreme Court Act 1970 (NSW)), I can find nothing in s459G(1) or s459G(2) which would preclude such a composite application being made on behalf of each of the joint debtors in sufficient conformity therewith, provided the application is expressed so as to be capable of being read distributively as applicable to the relevant statutory demand applicable to the relevant Plaintiff. I am satisfied that it can and should be so read; further, that s467A directs that any irregularity or defect in expression be ignored in reaching that conclusion. S459G does impose a strict time requirement on the filing of an application. That presupposes only that there is an application meeting the general description in s459G(1) for s459G(1) does not lay down any detailed mandatory description as to content. This application does meet that general description, allowing as regards its formal expression similar latitude as applies to affidavits in support. The mandatory directive in s467A can be called in aid to disregard any irregularity or defect that does not rise to the level where the application is no longer 'under' Pt5.4, in circumstances where, as here, no substantial injustice results."
14 The third case, Calquid, concerned two statutory demands, each issued by the same creditor and addressed to the same company, although in respect of separate debts arising out of the same building contract but for different parts of the overall works. Santow J held that a single summons and supporting affidavit did not constitute an application conforming with s.459G in respect of the two statutory demands. His Honour saw the reasoning in Help Desk as applicable, particularly since the two demands had been served on different days.
15 In the present case, the plaintiffs say that, because of clause 1.2(j) of the deed, the debt created by clause 7.4 (assuming any debt is so created) is a joint and several debt of the kind with which Santow J dealt in Femley. The defendant's contention is that this is too simplistic an approach and that clause 7.4 really concerns a compromise between Davey and Sterling alone, with the "Sterling Group" cast in the role of indemnifiers or guarantors rather than parties to a sole obligation that is joint and several.
16 On this, I prefer the submissions of the plaintiffs. The parties who, according to clause 7.4, "agree to compromise" are "Sterling and the Sterling Group", the means of compromise being "by the following payments", being, clearly enough, payments that all of them agree to make so that clause 1.2(j) is brought into operation. I therefore accept that the obligation in question, to the extent that it exists, is of a joint and several character, so that the reasoning in Femley is in that respect applicable and the circumstances are distinguishable from those in both Help Desk and Calquid.
17 The crucial question, it seems to me, is whether the proceeding is constituted in such a way that, in conformity with s.459G, each of the nine plaintiffs is the applicant for an order setting aside the statutory demand served on that plaintiff. It is, of course, clear as a matter of general principle that, in a proceeding in which there are several plaintiffs, each may pursue some independent claim of its own. Considerations of efficiency often cause a number of such claims to be brought under the umbrella of a single proceeding pursuant to Part 8 rule 2 of the Supreme Court Rules or to be effectively consolidated by orders that several proceedings be heard together with evidence in each being evidence in the others. In the present case, it is necessary to find that the single originating process, in the words of Santow J in Femley, "is expressed so it can be read distributively, along with the accompanying affidavit" and "is expressed so as to be capable of being read distributively as applicable to the relevant statutory demand applicable to the relevant plaintiff".
18 There is no doubt, on the face of the originating process, that a separate and distinct order is sought in relation to each statutory demand. Each such order is fully and separately set out against its own identifying number. To that extent, the pleading is capable of being read distributively in the manner referred to by Santow J. There are, however, nine claimants for each order, being the company named in the statutory demand to which the order refers and having standing accordingly to seek an order setting the demand aside, plus eight other companies none of which has any standing to make that particular claim. It is therefore necessary to consider whether the presence, in each case, of the other eight and the omnibus nature of the claims of the nine ("the Plaintiffs claim orders that") mean that the originating process is not, in relation to any of the nine companies, an application by the particular company "for an order setting aside the statutory demand served on the company".
19 There can be no doubt that Isaco Pty Limited has applied to the court for an order setting aside the statutory demand served on Isaco Pty Limited. The fact that eight other companies are also included in the group of nine that together seek that order concerning Isaco Pty Limited does not detract from the fact that the application is made by Isaco Pty Limited. The other eight, lacking standing, may simply be ignored. And the same analysis holds good, of course, in relation to the other eight orders.
20 The fact that eight of the nine plaintiffs are, in relation to each of orders 1 to 9, incompetent applicants yet apply along with the sole competent applicant seems to me to be a defect or irregularity of the kind contemplated by s.467A, with the result that it does not represent grounds for dismissal of the application. On general principles, the court would be minded to allow amendment of the originating process so as to make one of the plaintiffs only the applicant for whichever of orders 1 to 9 referred to it, such amendment relating back, in the normal way, to the date of the original pleading. However, as Young J observed in Help Desk, the strictures of s.459G, considered in the light of David Grant, may displace the operation of some procedural rules. Part 20 of the Supreme Court Rules must be regarded as potentially affected by any such displacement and, as the question of amendment has not been argued (and on the view I have taken, does not need to be), I say no more about it
21 It is sufficient to record, at this point, the conclusion that the originating process filed on 1 October 2003, upon its proper construction, includes: