Consideration
52 The joint judgment in UBS begins by acknowledging (at [1]) that there are "varied circumstances" in which the use of the court's processes will amount to an abuse. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. I understand the defendants to be contending for both of these conditions, whether together or independently.
53 Their Honours (at [7]) adopted a statement of Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31 to the effect that determination of whether there is an abuse of process requires the court to make:
a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.
54 It is important to draw from this passage that there is no checklist of requirements, or a mechanical test, that can be applied. It is "a broad, merits-based judgment" that is required, which takes into account "the public and private interests involved". Attention must be focused on whether, "in all the circumstances", there is an abuse of process of the court by a party "seeking to raise before it the issue which could have been raised before".
55 There are important respects in which the facts in UBS distinguish it from the present case. First, in UBS, unlike in the present case, the underlying factual circumstances had previously been to trial and determined. Certain of the plaintiffs had discontinued, but one plaintiff, which as with the other plaintiffs was under the common control of Mr Tyne, continued to final determination. It was in that context, that the Court held (at [52]) that although "[w]here discontinuance of proceedings brings the proceedings to an end, the later commencement of fresh proceedings may work no unfairness to the defendant", that was not the case there because the proceedings were prosecuted to a final determination by a plaintiff controlled by Mr Tyne. That was relevant to the earlier observation (at [45]) that "there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose".
56 It is also in that context that it was held (at [58]) that UBS was oppressed by the subsequent proceedings - not only arising from the significant delay in the resolution of the dispute and the inevitability of increased costs, but "at its core is the vexation of being required to deal again with claims that should have been resolved in the [earlier] proceedings".
57 Similarly, it was in that context that it was held (at [58]) that "on the final determination of the [earlier] proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end". The present case is quite different. The dismissal of the Supreme Court proceeding did not mean that there was a final determination, and the circumstances of the consent orders being made did not lead, and could not reasonably have led, to an understanding that the dispute between the company and the defendants was at an end.
58 Secondly, in UBS it was found (at [55]) that Mr Tyne perceived a forensic advantage to the Tyne-related parties in holding back one of the party's claim. That led to duplication of resources and increased costs, and delayed the resolution of the dispute between the Tyne-related parties and UBS. That was not so in the present case. There is no suggestion that the plaintiffs had or perceive themselves to have a forensic advantage by discontinuing proceedings and later starting again.
59 I turn now to deal with the defendants' particular submissions.
60 First, as I have indicated, the first proceeding was not prosecuted to finality. Indeed, the defendants were not called upon to file a defence, let alone put on evidence, prepare for trial, and conduct a trial. In those circumstances, I do not consider them to be particularly "vexed" by having to answer different claims, albeit arising out of the same substratum of facts and the same commercial relationship, in a later fresh proceeding.
61 Secondly, I do not consider the period of time from the dismissal of the first proceeding to the commencement of the second proceeding, being nearly three years, to be unreasonable. The subsequent proceeding was brought within the period of three years allowed by s 588FF(3)(a)(i) of the Corporations Act, and Mr Hancock has explained why the first proceeding was discontinued and why the later proceeding was then commenced. It is true, as the defendants contend, that that explanation is bare in that it lacks detail, but I do not regard it to be improbable and I do not see any basis to reject it. Further, I do not see any basis to draw the inference from the lack of detail that the plaintiffs had some forensic advantage in discontinuing the first proceeding and then later commencing a fresh proceeding. The defendants have not identified what that advantage might be.
62 It must be borne in mind that although underlying both proceedings is essentially the same substratum of facts and the same commercial relationship, the second proceeding pleads causes of action that were not pleaded in the first proceeding. It is correct, as the defendants submit, that all of those causes of action with the exception of the mortgagee in possession claim could have been pleaded in the first proceeding by amendment, but the process of seeking amendment might itself have led to disputes and the consumption of time and costs.
63 Thirdly, not only, as I have identified, is the present case not one where claims were prosecuted to finality in the first proceeding, but there is no evidence that the defendants arranged their affairs in any particular way because of the dismissal of the first proceeding. The defendants point to their having taken possession of units 305 and 503 and selling them as an example of them having arranged their affairs after the dismissal of this proceeding, but there is nothing to suggest that those events would not have occurred in exactly the same way if that proceeding had not been dismissed.
64 With regard to the submission that I should conclude that Mr Hancock expressed the view that the merits of the claims were poor, I do not regard that to be a fair reading of the evidence. In any event, in the absence of any detrimental reliance on such a representation, it does not seem to me to be able to be contended that it caused the defendants any prejudice. In the absence of prejudice, they were not "vexed". Simply put, even if Mr Hancock had expressed the view at that early time that he regarded the merits of the claims to be poor, and he later changed his mind after having received some funding which enabled him to investigate and then prosecute claims against the defendants, that cannot without more cause relevant prejudice or oppression.
65 With regard to the 6 April 2017 telephone call, even if Mr Hancock had told Mr Cook that he had no intention of commencing proceedings against the defendants, in the absence of any reliance by the defendants on that statement it cannot bind Mr Hancock.
66 I am accordingly not satisfied that the proceeding in this Court is an abuse of process on the basis of being unjustifiably oppressive of the defendants.
67 Finally, I do not regard the conduct of the proceedings (i.e. in the Supreme Court and in this Court) by the plaintiffs to bring the administration of justice into disrepute. The narrative is a fairly straightforward one. Claims were instituted in the Supreme Court by a development company against its lenders, the defendants. Before that proceeding had developed much beyond being commenced and transferred to New South Wales, the development company went into administration, having the effect of staying the proceeding, and then into liquidation. A liquidator is appointed. He is unfunded and cannot form a proper view of the merits of the claims, and in any event does not have funds to pursue the claims. He accordingly agrees to have them dismissed, but expressly disagrees with the suggestion that that should be on the basis that the claims can never be brought again. Nearly three years later, after having received funding which enabled him to consider the claims and reformulate them, he brings them again, duly reformulated, in this Court.
68 There is nothing in that narrative which in my view would cause a reasonable lay observer to regard the administration of justice in a poor light by the second proceeding being allowed to continue. Moreover, leaving aside the present application to have the second proceeding stayed, which has been brought by the defendants, there has been little if any duplication of the use of public resources arising from the second proceeding being brought; the second proceeding does not reflect poorly on the timely and efficient administration of justice.
69 In all the circumstances, I am not satisfied that there is any abuse of process and the application for the permanent stay of the proceeding must be dismissed.