Standard Commodities Pty Ltd v Societe Socinter department Centragel [2005] NSWSC 493 | Case summary

5869/04 - STANDARD COMMODITIES PTY LIMITED v SOCIÉTÉ SOCINTER DÉPARTMENT CENTRAGEL JUDGMENT 1 In these proceedings, the plaintiff applied under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand dated 8 October 2004 served on it by the defendant in respect of a debt of $113,998.40 said to be the equivalent in Australian currency of a sum in Euros awarded in favour of the defendant and against the plaintiff by a French court (Tribunal de Commerce de Paris) by judgment pronounced on 7 May 2003, plus interest and costs. 2 On 8 April 2005, I made an order that, for the reasons I then published, the statutory demand be set aside: see Standard Commodities Pty Ltd v Société Socinter department Centragel [2005] NSWSC 294. I held that the plaintiff had been successful on one of the grounds it advanced but unsuccessful on the others. To be more precise, I decided that (a) the accompanying affidavit under s.459E(3) did not fail to comply with rule 5.2(b) of the Supreme Court (Corporations) Rules 1999; and (b) the statutory demand was not defective by reason that it did not relate to a debt payable in Australia; and (c) the statutory demand was not defective because of the absence of an address for payment in Australia; and (d) there existed no "genuine dispute" within s.459H(1)(a); but (e) paragraphs 6 and 7 of the s.459E(3) affidavit did not comply with the requirements of Form 7 in that, responding to the requirements arising from paragraphs 4 and 5 of that form, they related no more than what the deponent had been told by another person (the defendant's French lawyers) without any indication that that person had obtained the information from the creditor (ie, the defendant); and that, in line with the decisions in B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1994) 15 ACSR 433, L M & W J Taylor Pty Ltd v Armour Timber & Trading Pty Ltd (1996) 19 ACSR 231, Hamilhall Pty Ltd v A J Phillips Pty Ltd (1994) 15 ACSR 247 and Delta Beta Pty Ltd v Vissers (1996) 20 ACSR 583, that shortcoming in the affidavit represented "some other reason" for setting aside the statutory demand under s.459J(1)(b). 3 The essence of the decision was thus that, although the debt in question was quite capable of grounding a statutory demand, the irregularity or defect affecting the affidavit was such as to require the setting aside of the particular statutory demand based on that debt. 4 An order that the defendant pay the plaintiff's costs of the proceedings was also made on 8 April 2005. 5 After the order setting aside the statutory demand and the order for costs had been made but before they had been entered, the defendant, applied, by notice of motion filed on 12 April 2005, for an order setting aside both such orders. Written submissions on the notice of motion were provided by both parties. The defendant's submissions were handed up when the notice of motion was before the court on 9 May 2005 and were supplemented on 13 May 2005 in accordance with directions I made on 9 May 2005. At that time I also directed that the plaintiff furnish written submissions with seven days. These were received on 16 May 2005, on which day I also heard oral argument. Further written submissions on behalf of the defendant were delivered on 25 May 2005. 6 The defendant's application is based on Part 40 rule 9 of the Supreme Court Rules and the proposition, in general terms, that the orders of 8 April 2005 were erroneous, had been made without any proper opportunity for the defendant to be heard on material matters and should never have been made. The situation is thus one in which a first instance judge who has delivered judgment and pronounced orders is asked to reverse his decision by withdrawing those orders and acceding to submissions directed towards the making of contrary orders. 7 In a passage later quoted or referred to with approval in Fattouh v Neffati [2002] NSWSC 1231, Spotless Services Australia Ltd v Wookey (2003) IR 58, Town & Country Property Management Systems Pty Ltd v Kaltoum [2003] NSWSC 813, Gate Gourmet Australia Pty Ltd v Gate Gourmet Holding AG [2004] NSWSC 761, M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd [2004] NSWSC 780, Brew v Followment Transport Pty Ltd [2005] QSC 30 and Gilsan (International) Pty Ltd v Optus Network Pty Ltd (No 2) [2005] NSWSC 38, I described, in Wentworth v Rogers [2002] NSWSC 921, the circumstances in which a judge at first instance might properly take the "exceptional step" of re-opening a decision already completed by the making of orders. After referring to the distillation of principle by Santow J in Wentworth v Wentworth [1999] NSWSC 638 and the need, in line with High Court authority, for "extremely rare" or "quite exceptional" circumstances, I said (at paragraph [9]): "It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513: 'I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps - but not necessarily - where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga's application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits.'" 8 It is with this guiding principle in mind that I approach the plaintiff's application based on Part 40 rule 9, noting that my decision of 8 April 2005 with respect to the statutory demand is, in the words used in Wentworth v Rogers (above), that of "a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal)". 9 I begin with the order that the statutory demand be set aside which order, as I have said, proceeded from a finding that non-conformity of the s.459E(3) affidavit with the requirements imposed through paragraphs 4 and 5 of Form 7 amounted, in terms of s.459J(1)(b), to "some other reason" for setting aside the statutory demand. 10 The defendant advances what seem to me to be, in general terms, four distinct arguments or groups of arguments. The first and principal contention is that the basis on which the plaintiff succeeded (related to the content of paragraphs 6 and 7 of the s.459E(3) affidavit) was not raised by the plaintiff or argued. The plaintiff's first response is to refer to passages in its written submissions handed up at the hearing which point out that the affidavit was sworn on information and belief by a solicitor with no direct knowledge of the facts who deposed solely to what he had been told by the defendant's French lawyers. The plaintiff also refers to a note delivered to me after the hearing by arrangement between the respective counsel. It was there pointed out by counsel for the plaintiff that the deponent's "knowledge of the matters are those instructions [i.e. instructions of the French lawyers] as shown by paragraphs 6 and 7 of his affidavit". The note also said: "Indeed, the very reason for having the affidavit is subverted if a solicitor in Australia can swear it on information and belief about facts he himself has no direct knowledge and about which on the evidence the plaintiff was unaware."

The note from counsel for the plaintiff from which I have just quoted was delivered on 23 March 2005 (the hearing took place on 18 March 2005). A similar supplementary note from counsel for the defendant was delivered on 24 March 2005 but, in submissions received on 25 May 2005, he said that the arrangement under which the two notes were provided was for a limited purpose which would be overstepped if the note from the plaintiff's counsel were used for the purpose to which the plaintiff now seeks to put it. 11 The defendant's second contention is that there was a misapprehension by all - court and counsel - as to the law, the main point being that the decision of McLelland CJ in Eq in B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (above) and other cases to which I referred were concerned with requirements of rules not corresponding in any material way with the requirements arising from paragraphs 4 and 5 of Form 7, with the result that reliance on the approach in B & M Quality Constructions (at paragraph [12] of the judgment) and on other cases that had, on the view I took, proceeded on the same or a similar basis (paragraph [13] of the judgment) was an error that the court should now recognise and correct. The defendant places particular reliance, in this connection, on the decision of Hayne J in AZED Developments Pty Ltd v Frederick & Co Ltd (1994) 14 ACSR 54 where the requirement in s.459E(3) that the accompanying affidavit "verify" that the debt is due and payable by the company was seen as requiring "formal affirmation", without any need that the affidavit "prove or demonstrate by good evidence or otherwise substantiate" - a conclusion which, it is said, is also borne out by the directions in paragraphs 4 and 5 of Form 7. The plaintiff's response on this second contention is twofold: first, that AZED Developments speaks of what is not required rather than defining any minimum requirement or precise content of the applicable requirement; and, second, that there are cases decided on the existing rules saying that it is insufficient for a creditor to serve an affidavit in support of a statutory demand that does less than is required by the form. The particular cases mentioned are Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd (2002) 20 ACLC 726 and Rivercorp Pty Ltd v Casement [2004] NSWSC 280. 12 The third point made by the defendant is that the case attracts s.1322 because the identified shortcoming in the s.459E(3) affidavit is a "procedural irregularity" for the purposes of that section. 13 The defendant's fourth and final point proceeds on a particular view of what was said in paragraph [15] of the judgment. I quote from the submissions of counsel for the defendant: "At paragraph 15 of the reasons the Court held that a creditor or a person with direct knowledge of the debt including a solicitor whose knowledge is sourced to the creditor may swear the affidavit accompanying the demand." 14 In my opinion, none of the contentions advanced by the defendant is such as to satisfy the test of obvious error or obvious misapprehension (leading to obvious miscarriage) which I consider to be applicable upon re-opening applications of this kind. The first contention has attracted, in reply, submissions on behalf of the plaintiff pointing to matters put forward in accordance with the procedure followed at and after the hearing which may, upon full examination, show that the defendant's contention is without merit. As to the defendant's second contention, the plaintiff's response shows, clearly enough, that the proposition underlying the defendant's assertion of common misapprehension would not necessarily be made out upon full investigation. As to the third contention based on s.1322, there is a plausible case to be made, in my opinion, that the irregularity or defect went to substance not merely procedure or form; added to which the point was not canvassed in the proceedings. In relation to the fourth contention, I am bound to say that the description in submissions of the court's holding at paragraph [15] of the judgment might well not be found, upon examination, to be accurate. 15 I have deliberately refrained from making firm findings on any of the matters referred to in the preceding paragraph - beyond the finding, which I have explicitly stated, that none of them can be said to exhibit the qualities of obvious error or obvious misapprehension (leading to obvious miscarriage) that justifies resort to the re-opening jurisdiction. All of the matters are such that further exploration and assessment of them here would amount to my embarking, as a first instance judge, upon the consideration of what really amounts to an appeal against my own decision - a course which, having regard in particular to the observation of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513 (quoted in the extract from my judgment in Wentworth v Rogers above), would be quite unacceptably in conflict with principles about the finality of judicial decision making. It makes no difference that the orders have not been entered. While that circumstance may be relevant to the particular aspect of the court's jurisdiction referred to in Part 40 rule 9 of the Supreme Court Rules, it does not in any way detract from the established principle (also recognised in the rules) that an order of the court takes effect upon its being pronounced by the judge: see, for example, Part 40 rule 3. 16 I decline to re-open my decision of non-compliance in respect of the s.459E(3) affidavit and of the existence of "some other reason" in terms of s.459J(1)(b). I also decline to withdraw the order that the statutory demand be set aside. 17 It remains to consider, in this connection, one final matter, namely, any relevance that s.459F(2) has in the circumstances of this case. This is a matter I raised on 9 May 2005 when the defendant's notice of motion was first before the court. The question is, in essence, whether the s.459G application dealt with by my judgment and orders of 8 April 2005 is properly regarded as "finally determined or otherwise disposed of" as referred to in s.459F(a)(ii). Submissions have, in accordance with directions, been made on that issue but, upon reflection and in light of my decision not to re-open or to withdraw the order setting aside the statutory demand, I do not consider it appropriate to say anything by way of what really amounts to explanation of, or further decision about, the order setting aside the statutory demand which has already been pronounced and is not to be withdrawn. That order should stand without further explanation or elaboration. Should there be any need to ascertain the status or effect of the order, the matter should be progressed by some new and appropriate application. 18 I turn now to the costs order made on 8 April 2005 and the contention of the defendant that I should review and reverse the decision that the defendant pay the whole of the costs of the plaintiff. In this instance, the jurisdiction to review and set aside the order already made is, in my opinion, enlivened, given that I heard no argument on costs and, having found for the plaintiff on the substantive claim, merely followed the usual course of making the standard order that costs follow the event in conformity with Part 52A rule 11 of the Supreme Court Rules. 19 The defendant's contention in relation to costs is that the plaintiff succeeded only on one of the bases on which it argued that the statutory demand should be set aside and, even if that substantive order stands (as I have decided it should), the costs order should be varied. The situation is seen by the defendant as one in which the plaintiff failed on several issues argued and succeeded only on one, with the result that there should not be an order that the defendant pay the whole of the plaintiff's costs. 20 It is pertinent, in this connection, to quote from the judgment of Hamilton J in Madden v Connell [2001] NSWSC 1051 concerning the general rule that costs should follow the event: "This rule will be departed from only for good reason. In general terms, the fact that the moving party obtains only some of the relief originally sought does not detract from the proposition that the event is in the moving party's favour, albeit it fails on other issues. There is a rule, however, that, where there are quite discrete issues and the time taken on each at the hearing can be identified or realistically estimated, then the costs may flow in opposite ways according to the different events and an order may be made which will encompass those opposing flows: see generally Supreme Court Rules 1970 Pt 52 r 11; Hughes v Western Australian Cricket Association (1986) ATPR 40-748; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported; Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported; and my own decisions in Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313; JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432; Ell v Cisera [2000] NSWSC 961; and Cumming v Sands [2001] NSWSC 507." 21 Also apposite are the following observations of Toohey J in Hughes v Western Australian Cricket Association (1986) ATPR 40-748: "1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey [1920] 2 KB 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar [1893] 1 QB 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at 12." 22 I refer also to what was said by Gummow, French and Hill JJ in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261: "Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation. His Honour's determination that in this case there should be no order as to costs was explicitly based upon his rough assessment of the time occupied at trial by the various issues in dispute. No reason for overturning the exercise of that discretion has been demonstrated and the court is satisfied that the appeal fails on this ground also." 23 Also instructive is the following comment by Hodgson CJ in Eq in Permanent Trustee Aust Ltd v FAI General Insurance Co Ltd (unreported, NSWSC, 3 June 1998): "… I am not dealing here with a situation where there are separate claims for different relief, such as two claims by a plaintiff for different relief, or a claim by a plaintiff and a cross-claim by a defendant. In those cases, it is generally fairly clear that the overall winner will get the general costs of the action, but will be liable to pay costs to the extent that they were increased by the separate claim on which he or she was unsuccessful." 24 There is some question whether the "overall winner" should suffer an order for costs in respect of the issue on which success was not achieved unless that issue was raised and pursued unreasonably. In Mok v Minister for Immigration (No 2) (1993) 47 FCR 81, Keely J said: "In my opinion the court's power to order a successful applicant to pay the costs in respect of an issue raised by the applicant, on which the applicant has failed, ought to be exercised only where the Court, on a consideration of all the circumstances, has concluded that the raising of that issue by the applicant was so unreasonable that it is fair and just to make the order." 25 In Rosniak v Government Insurance Office (1997) 41 NSWLR 608, however, Mason P (with whom Clarke AJA agreed), referring to this statement in Mok, said that "no such principle exists in the sense of a fixed proposition of law". His Honour continued: "In a proper case, and this was one, the party that is successful overall may be ordered to pay the costs of a discrete issue." 26 The Court of Appeal's later treatment of the same issue in Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 77 contains no suggestion that the qualification suggested in Mok should be applied and I do not regard the comments of Stein JA (with whom Davies AJA agreed) in Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Coy Pty Ltd (2001) 53 NSWLR 626 about what was said by Hodgson CJ in Eq as supporting any such qualification. 27 The plaintiff says that no apportionment by reference to issues is warranted in this case. It contends that inclusion of the arguments on which the plaintiff lost did not substantially increase the time involved in the case and that the mere arguments were properly available and properly advanced. Furthermore, the points about the foreign judgment involved largely issues of law and did not require additional evidence. The plaintiff also points to the fact that the defendant's evidence was filed late (effectively two days before the trial). Overall, the plaintiff says, its pressing of the arguments on which it was unsuccessful did not materially increase costs. 28 There is, in my view, merit in the position the defendant takes with respect to costs. The hearing (and, therefore, the preparation) involved two distinct aspects - one concerning the adequacy and regularity of the s.459E(3) affidavit (as to which there were several different points) and the other as to the status of the French judgment and the question whether there was a genuine dispute as to existence or amount of the debt. It is not practicable to be precise in allocating proportions of time to the two elements but, particularly in light of the fact that much of the evidence adduced by the defendant on the second matter proved unnecessary to the determination of the genuine dispute question, it would, in my view, be appropriate to view them as being of equal weight. 29 I consider it appropriate to approach the matter of costs on that basis and without any attempt at further subdivision or dissection. The plaintiff should therefore be regarded as having been successful as to one half of the case and the defendant should be regarded as likewise having been successful as to one half of the case. The costs order should reflect this. 30 In the result, therefore, I make orders as follows: 1. Order that the order of 8 April 2005 that the defendant pay the plaintiff's costs of the proceedings be set aside. 2. Order instead that the defendant pay one half of the plaintiff's costs of the proceedings and the plaintiff pay one half of the defendant's costs of the proceedings. 3. Order that the defendant's notice of motion filed on 12 April 2005 be otherwise dismissed. 4. Direct that any party wishing to make submissions with respect to any order for costs that should be made in respect of the defendant's notice of motion filed on 12 April 2005 forward those submissions in writing to my Associate within fourteen days. **********

Standard Commodities Pty Ltd v Societe Socinter department Centragel

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