Your client clearly did not have the required standing to validly commence the winding up application, as your client knew prior to commencing the proceedings, that my client genuinely disputed the debt, given my client's filing and pursuit of an application to set aside the default judgment in the Magistrates' Court, as per my facsimile to Mr Graham Anstee-Brooks on 24 May 2007, which included Mr Vlahov's Affidavit sworn on 23 May 2007. This is included in Mr Shaw's Affidavit sworn 19 July 2007 and is also included in an Affidavit sworn by myself to be filed later today.
It was imprudent and improper of your client to commence winding up proceedings when he well knew Proused [sic] Pty Ltd had no solvency difficulties, and also to commence such proceedings prior to determination of my client's application to set aside the default judgment. Your client has accordingly incurred otherwise avoidable costs due to its own poor and imprudent decision making. It will accordingly have to bear the burden of such costs itself, as well as it being very likely that it will have to also bear the burden of my client's costs, which are considerable, as I had warned you, but which you appeared to disregard.
Further, you and your client knew on 13 June 2007 that neither Director of Proused [sic] Pty Ltd had received the statutory demand dated 9 May 2007, however despite this you improperly filed the winding up application which was entirely reliant on the statutory demand. Your acknowledgement and acceptance of the Proused [sic] Directors not having received the statutory demand dated 9 May 2007, was confirmed by your service of the winding up application upon both Directors at their respective home addresses, rather than only relying on effecting service at the registered company address.
Additionally, your client unreasonably rejected the cheque payment forwarded on or about 14 April 2007, and most improperly retained the cheque, despite later requests it be returned after your client had rejected it. Your client and your firm well knew that non-payment of the alleged debt had nothing to do with its solvency and your client therefore improperly commenced and pursued the winding up application against my client, in clear abuse of the Court's processes.
Your client has improperly used the winding up application for the purpose of simple debt collection, without making any attempts to enforce the judgment in the jurisdiction in which it was obtained, which would have been far cheaper for your client, and the appropriate course of action to take (only until learning of my client's application to set aside the default judgment of course).
As my client does not intend to appeal the decision of the learned Magistrate not to set aside the default judgment, my client had no option but to pay Smart Transit the respective amount in the default judgment order, which it has now done, as per the undertaking in my email of 17 July 2007.
Significant costs have been incurred by my client due to the Plaintiff's improper use of winding up proceedings, and the plaintiff allegedly being uncontactable due to his departure overseas in the week before the first return dates of the Supreme court matters in which his company is a party. Indeed you informed me in your emails to continue with preparatory work as if the proceedings would continue. This is what we have done and substantial costs have resulted.
Your client's position in the Supreme Court proceedings is embarrassing and entirely unsustainable. It is my view your client's approach is likely to attract judicial criticism, and may also attract indemnity costs being awarded against your client.
Lastly, you and your client are put on notice that neither my client nor I will abide any submissions (oral or written) made on behalf of your client, in the Supreme Court, which do not accurately and properly represent the facts and truth of the matters in issue.