Tatlers.com.au Pty Limited v Davis

CATCHWORDS : CORPORATIONS - winding up - statutory demand - demand based on judgment debt - order for payment of judgment debt by instalments made after service of demand - whether execution of judgment debt stayed - whether "some other reason" to set aside statutory demand

Civil Procedure Act 2005. ss.102, 107 LEGISLATION CITED : Corporations Act 2001 (Cth), Part 5.4, ss.459G, 459H, 459J(1)(a), 459J(1)(b), Uniform Civil Procedure Rules 2005, rules 37.3,

Cempro Pty Limited v Dennis M Brown Pty Limited (1994) 13 ACSR 628 Detail Rock Tools Pty Limited v Kleenkut Pty Limited [2003] NSWSC 643 Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 19 ACSR 125 KC Parksafe (Vic) Pty Limited v Dallbrook Pty Limited (1998) 87 FCR 509 CASES CITED : Meehan v Glazier Holdings Pty Limited (2005) 53 ACSR 229 Moutere Pty Ltd v Deputy Commissioner of Taxation (2000) 34 ACSR 533 Portrait Express (Sales) Pty Limited v Kodak Australasia Pty Limited (1996) 20 ACSR 294 Re Softex Industries Pty Ltd (2001) 187 ALR 448 Scope Data Systems Pty Limited v BDO Nelson Parkhill (2003) 199 ALR 56

PARTIES : Tatlers.com.au Pty Limited - Plaintiff Davis Davis - Defendant

COUNSEL : Mr M.K. Condon - Plaintiff Mr E.A.J. Hyde - Defendant

SOLICITORS : Sage - Plaintiff Malcolm Johns & Company - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

4380/06 TATLERS.COM.AU PTY LIMITED v DAVIS DAVIS JUDGMENT 1 The plaintiff makes application under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant. The claim is based on s.459J(1)(b) of the Act and the proposition that there is "some other reason why the demand should be set aside", that is, some reason other than genuine dispute or offsetting claim within s.459H and defect productive of substantial injustice within s.459J(1)(a). 2 The statutory demand is dated 31 July 2006 and refers to a debt of $55,000 described in its schedule as follows: "Balance of a judgment debt owed pursuant to orders of the Supreme Court of New South Wales made 5 May 2006 entered 8 May 2006 in matter number 5298 of 2005." 3 Certain orders were made in proceedings 5298 of 2005 by the Chief Judge in Equity on 5 May 2006. They included an order that verdict and judgment be entered for the present defendant in the sum of $75,000 and an order that execution of the judgment be stayed for twenty-eight days. There were two defendants in those proceedings, being the present plaintiff and a natural person. Judgment in the sum of $75,000 was entered against both. 4 On 13 June 2006, a registrar of the court made, upon an application filed on 1 June 2006, an instalment order with respect to the amount owing pursuant to the judgment. The order was made under rule 37.3 of the Uniform Civil Procedure Rules 2005. It related to the whole of the judgment sum of $75,000 and directed payment by monthly instalments of $10,000, commencing on 30 June 2006. 5 The judgment debtors failed to comply with the instalment order in respect of the sum of $10,000 due on 30 June 2006. They attempted to comply and believed they had complied by making a payment of $10,000 on that date at the Supreme Court Registry, for which a receipt was issued. However, the court later returned the $10,000 with a letter explaining that instalments were to be paid direct to the judgment creditor. 6 On 28 July 2006, the solicitors for the judgment debtors sent a cheque for $20,000 to the solicitors for the judgment creditor, explaining the situation that had arisen in relation to the first instalment and stating that the $20,000 cheque represented the first two payments under the instalment order. 7 On 26 June 2006 the present defendant had filed a notice of motion by way of objection seeking to have the first instalment order rescinded. That application came before the registrar on 31 July and it was determined that failure to pay the first instalment to the judgment creditor had produced the result that under the rules the first instalment order had ceased to have effect. This decision was obviously based on rule 37.7. 8 On 11 August 2006, the registrar made another instalment order under rule 37.3. Application for that had been made on 2 August 2006. The new order was expressed to relate to a judgment debt of $75,000 and to require payment by monthly instalments of $10,000, with the first instalment to be paid on 31 August 2006. In the meantime, however, the statutory demand had been served on or about 1 August 2006. 9 The present defendant, as judgment creditor, made an objection to the second instalment order on 24 August 2006. That objection was heard on 29 September 2006 and the registrar's decision was reserved. There has not yet been any decision on that objection. 10 In summary, therefore, the position at the time of issue and service of the statutory demand on 1 August 2006 was that $20,000 of the total judgment debt had been paid and no instalment order was in force but, by the time the originating process was filed, the position had changed to the extent that a new instalment payment order was in force. That latter position continues to prevail today, subject to the possibility that the outcome of the objection that was heard by the registrar on 28 September 2006 may result in a future rescission of the instalment order. 11 The particular sequence of events raises a question of timing relevant to s.459J(1)(b), that is, whether the "other reason why the demand should be set aside" upon which a s.459G applicant relies must be seen to have existed when the statutory demand was served or whether regard is to be had to the position that exists when the court comes to consider the s.459G application. The defendant says that the first approach is the correct one. I do not accept that proposition. Section 459J(1)(b) is a provision that underwrites the statutory purposes reflected in Part 5.4 as a whole. It was recognised as such by the Court of Appeal in Meehan v Glazier Holdings Pty Limited (2005) 53 ACSR 229 where there was express approval of the observation to that effect by Bryson J in Portrait Express (Sales) Pty Limited v Kodak Australasia Pty Limited (1996) 20 ACSR 294. 12 When s.459J(1)(b) is invoked, the court is called upon to decide what will best serve the statutory purpose at the time it considers the question. The court should therefore approach the matter in the light of circumstances prevailing at that time rather than by merely paying attention to some historical snapshot. The question for decision in the present proceeding is whether, having regard to the statutory purpose of providing a means for the creation of a statutory presumption of insolvency by reason of the non-payment of a single debt, the circumstances now prevailing in relation to the particular debt in question are such that the court should allow the presumption to arise or prevent its arising. 13 The Court of Appeal emphasised in the Meehan case that this is not some kind of intuitive exercise based on vague notions of fairness. In a case such as the present, the task is to be undertaken on the footing that a statutory demand should be allowed to create a presumption of insolvency if circumstances can be seen to be such that non-payment of the particular single debt within the prescribed period was unjustified. If there was some sound basis for failure to pay, distinct from genuine dispute as to the amount or existence of the debt or the existence of an offsetting claim, then the situation is one in which the policy of the legislation will be subverted if the presumption of insolvency is allowed to arise. 14 I was referred to a number of cases which tend to support the proposition that events after service of the statutory demand may be relied upon in pursuing a s.459G application based on s.459J(1)(b). In Cempro Pty Limited v Dennis M Brown Pty Limited (1994) 13 ACSR 628, for example, Von Doussa J was influenced in a context involving s.459J(1)(b) by the fact that eleven statutory demands associated with the statutory demand in question had been withdrawn whereas the twelfth had not; and this was in circumstances where all had been served on the same day, so that withdrawal of the eleven occurred after service of the twelfth. In Meehan's case, Young CJ in Eq, in his short concurring judgment, gave as a hypothetical example of circumstances within s.459J(1)(b) those where "the alleged creditor has made a statement or representations relating to the statutory demand which have reasonably induced a change of the alleged debtor's position." This, obviously enough, refers to matters arising after service of the demand. 15 The third case is KC Parksafe (Vic) Pty Limited v Dallbrook Pty Limited (1998) 87 FCR 509, which I mention only because of the possibility recognised there by Finkelstein J at page 515 that a creditor's failure to accept an offer to pay on terms may in a particular case be a reason for setting aside a demand under s.459J(1)(b). 16 The last case to be mentioned is of particular relevance to the present circumstances. It is the decision of Master Macready in Detail Rock Tools Pty Limited v Kleenkut Pty Limited [2003] NSWSC 643. That case, like this, involved a situation where a judgment debtor had obtained an order for payment by instalments. The order in that case was an order made by the Local Court in respect of a Local Court judgment. Under the Local Court (Civil Claims) Rules 1998, the order, while in force, operated as a stay of enforcement of the judgment. The order was made after service of the statutory demand. After deciding that the existence of a stay represented "some other reason" within s.459J(1)(b), Master Macready made particular observations at paragraph 10 of his judgment: "Although the stay was not in force at the time of the issue of the demand, it did come into effect within twenty-one days after the date of issue. I do not see why that would make any difference. It is apparent the application was made promptly and only a month after the judgment. It was no doubt done as a response to the service of the demand. That does not detract from the clear legislative provision which allows applicants to pay debts by instalments. For those reasons I would propose to set aside the demand but I will briefly refer to the other matters." 17 In the present case, a very important consideration is whether, as a result of the making and continuing subsistence of the second instalment order (that is, the order made on 11 August 2006), execution of the judgment which is the source of the judgment debt is stayed. The plaintiff argues this it is, the defendant that it is not. It is necessary at this point to refer to the relevant provisions. Section 107 of the Civil Procedure Act 2005 is as follows: " Deferred payment and payment by instalments

(1) A court in which judgment has been entered may, subject to and in accordance with the uniform rules, make an order allowing for: (a) payment of the judgment debt within such time as is specified in the order, or (b) payment of the judgment debt by instalments, payable in such amounts and at such times as are specified in the order. Note . Such an order may be varied or rescinded pursuant to section 43 (2) of the Interpretation Act 1987 . The circumstances in which such an order may be varied or rescinded, and the procedure for varying or rescinding such an order, may be dealt with by the uniform rules .

(2) Subject to section 119, execution of a judgment for the payment of money is stayed while the judgment is the subject of an order in force under this section.

(3) If the uniform rules so provide, the functions conferred on a Local Court by this section in relation to a judgment debt may be exercised by any Local Court, whether or not the Local Court in which the judgment was given. 18 Section 102 designates an order referred to in s.107(1) an "instalment order". 19 It is also necessary to quote in full rule 37 of the Uniform Civil Procedure Rules, since that is the main provision of the rules "subject to and in accordance with" which the jurisdiction created by s.107 is exercisable: " 37.1 Instalment order made pursuant to agreement between judgment creditor and judgment debtor (cf DCR Part 31A, rule 2; LCR Part 27, rule 2)

(1) A judgment creditor and judgment debtor may enter into an agreement (an instalment agreement ): (a) specifying the amount agreed by them to be owing under the judgment debt, and (b) specifying by what instalments, payable at what times, that amount is to be paid.

(2) An instalment agreement may be entered into whether or not an instalment order is already in force in respect of the judgment debt.

(3) An instalment agreement may be entered into on behalf of a judgment creditor or judgment debtor by his or her solicitor or barrister.

(4) An instalment agreement has no effect for the purposes of this rule unless the signature of each person executing it (other than a solicitor or barrister) is witnessed by a registrar or other officer of the court or by a solicitor or barrister.

(5) As soon as practicable after an instalment agreement is filed, the court must make an instalment order that gives effect to the agreement.

37.2 Application for instalment order by judgment debtor (cf DCR Part 31A, rule 2; LCR Part 27, rule 2)

(1) A judgment debtor may apply to the court for an instalment order with respect to the amount owing under the judgment debt.

(2) Such an application: (a) may be made whether or not some other instalment order is in force in relation to the judgment debt, and (b) must be supported by an affidavit as to the judgment debtor's financial circumstances, and (c) must be dealt with as soon as practicable after it is made.

(3) An application under this rule: (a) except as provided by paragraph (b), is to be dealt with by the registrar under rule 37.3, or (b) if it is made during a hearing before the court, is to be dealt with by the court under rule 37.4.

(4) Notice of motion of an application under this rule does not have to be filed or served if the application is made during the hearing at which the judgment debtor is being examined pursuant to an order for examination.

(5) An application under this rule may be made not only to the court in which judgment was entered but also, in the case of a judgment entered in a Local Court, to any other Local Court by which an examination is being conducted as referred to in rule 38.5 (2).

(1) The registrar may deal with an application for an instalment order: (a) by making an instalment order in relation to the amount owing under the judgment debt, or (b) by making an order refusing the application.

(2) As soon as practicable after making an instalment order under this rule, the registrar: (a) must give notice of the order to the judgment creditor and the judgment debtor, and (b) must also give to the judgment creditor a copy of the affidavit referred to in rule 37.2 (2) (b).

(3) Either party may file an objection to an order made under subrule (1) (a) or (b) at any time within 14 days after the order is made.

37.4 Instalment order made by court (cf DCR Part 31A, rule 2; LCR Part 27, rule 2)

(1) This rule applies if the court is dealing with: (a) an application for an instalment order pursuant to rule 37.2 (3) (b), or (b) an objection against an order made under rule 37.3 (1) (a) or (b).

(2) On receiving the application or objection, the court: (a) must set the matter down for hearing, and (b) must give notice of the time, date and place of the hearing to the judgment creditor and the judgment debtor, and (c) if it has not already been done, must also give to the judgment creditor a copy of the affidavit referred to in rule 37.2 (2) (b).

(3) The court may determine an application for an instalment order, or an objection against an order refusing such an application: (a) by making an instalment order in relation to the amount owing under the judgment debt, or (b) by dismissing the application.

(4) The court may determine an objection against the making of an instalment order: (a) by varying or rescinding the instalment order, or (b) by dismissing the objection.

(5) As soon as practicable after making its determination, the court must give notice of the determination, and (if it makes or varies an instalment order) of the terms of the order or the order as varied, to the judgment creditor and the judgment debtor.

37.5 Stay of execution pending determination of application for instalment order

(1) Execution of the judgment to which an application for an instalment order relates is stayed: (a) from the time the application is made until the time the application is determined, and (b) if the application is refused by an order under rule 37.3 (1) (b) and an objection against the order is filed under rule 37.3 (3), from the time the objection is filed until the time the objection is determined.

(2) Subrule (1) does not apply if the applicant has previously made an application under this rule with respect to the same judgment debt. Note. See also section 107 (2) of the Civil Procedure Act 2005 which provides for stay of execution of the judgment while an instalment order is in force.

37.6 Variation or rescission of instalment order on proof of improvement in judgment debtor's financial circumstances (cf DCR Part 31A, rule 3; LCR Part 27, rule 3)

(1) A judgment creditor may apply to the court for the variation or rescission of an instalment order.

(2) Such an application must be supported by an affidavit as to the judgment debtor's financial circumstances, indicating the extent to which they appear to have improved since the instalment order was made.

(3) On receiving the application, the registrar: (a) must set the matter down for hearing, and (b) must give notice of the time, date and place of the hearing to the judgment creditor and the judgment debtor.

(4) The court may determine the application: (a) by varying or rescinding the instalment order to which it relates, or (b) by dismissing the application.

(5) As soon as practicable after making its determination, the court must give notice of the determination and, if it varies the instalment order, of the terms of the order as varied: (a) to the judgment creditor and the judgment debtor, and (b) if the determination relates to an instalment order to which a garnishee order is subject, to the garnishee.

37.7 Effect of instalment order on judgment debt (cf DCR Part 31A, rule 3; LCR Part 27, rule 3) Subject to any agreement referred to in rule 37.1, an instalment order ceases to have effect if the judgment debtor fails to comply with the order." 20 The plaintiff contends, and I accept, that the general thrust of these provisions is such that, in cases dealt with by a registrar (as this one was), the judgment creditor's application for an instalment order is advanced and dealt with on an ex parte basis, with notice of any instalment order made being given to the judgment creditor after the event, accompanied by the affidavit on which the judgment debtor relied in pursuing the application for the order. This is the effect of rule 37.3(2). It is then open to the judgment creditor to act under rule 37.3(3) to "file an objection to" the instalment order. Such an objection must be dealt with under rule 37.4, a rule which deals alike with three different kinds of processes, namely, an application for an instalment order under rule 37.2(3)(b) (that is, an application made otherwise than to the registrar under rule 37.3), an objection against refusal of an instalment order and an objection against the making of an instalment order. 21 A stay of execution of the relevant judgment may arise from one of two sources. The first is rule 37.5(1). The second is s.107. It is here that the reasoning advanced by the respective parties diverges. Mr Hyde of counsel, who appeared for the defendant, submitted that, because of rule 37.5, no stay of execution is currently in force in this case. Mr Condon, counsel for the plaintiff, submits that a stay of execution is in operation by force of s.107. 22 As I understand Mr Hyde's submission, rule 37.5(1) is to be regarded as imposing (and rule 37.5(2) is accordingly to be regarded as denying, in a case to which it refers), a stay of execution which commences when the application for an instalment order is made and continues until determination of not only that application but also all related applications, including any application in the nature of an objection to the making of the instalment order. On that basis, it is submitted, the existence of the defendant's objection in respect of the second instalment order, which objection is still undetermined, would produce a stay under rule 37.5(1) which continued in operation today, were it not for rule 37.5(2) which, because of the previous instalment order (which, as the registrar held on 31 July 2006, ceased to have effect pursuant to rule 37.7 before the making of the current instalment order), causes any such stay to be displaced. Mr Condon submits that a stay of execution is in force under s.107, that nothing in the rules changes that and that that is the end of the matter. 23 I accept Mr Condon's submissions in this respect. The reading of rule 37.5 for which I understand Mr Hyde to contend gives a strained and unnatural meaning to the word "application" where it secondly appears in rule 37.5(1)(a). On his approach, that word refers to any application capable of being "determined" in the manner contemplated by rule 37.4, including an application by way of objection to the making of the order. That cannot be the correct reading. The part of rule 37.5(1) appearing before the start of paragraph (a) refers to a particular kind of application, that is, an application for an instalment order. When paragraph (a) then refers on two occasions to "the application", it is therefore clearly referring to an application for an instalment order, not an application in the nature of an objection or any other kind of application. As things stand, therefore, no period of the kind referred to in paragraph (a) is now current. Every relevant application for an instalment order has been determined. 24 There is accordingly no question of the situation existing today being one in which a stay would have arisen under rule 37.5(1) but has been forestalled by rule 37.5(2). Rather, the situation is one in which the second instalment order is in force, subject to the possibility that the pending decision of the registrar may result in an order rescinding it. That being so, section 107(2) operates and a stay of execution of the judgment must be recognised by force of that section. 25 I return, therefore, to the s.459J(1)(b) question, which is to be considered by reference to the reality that the defendant is, as things now stand, precluded by statute from proceeding to execute the judgment from which the judgment debt arises. That circumstance brings to the fore the considerations discussed in Scope Data Systems Pty Limited v BDO Nelson Parkhill (2003) 199 ALR 56. A stay of execution of a judgment does not deprive the judgment debt of its character and quality as a debt; it merely denies the judgment creditor access to the means of proceeding to execution of the judgment. Service under Part 5.4 of the Corporations Act of a statutory demand based on a judgment debt is not a means of executing the relevant judgment. The stay therefore does not operate in any direct way to preclude resort to or continuation of the statutory demand process. The real question is one of analogy, that is, whether a creditor who is precluded from proceeding to execute his or her judgment should nevertheless be allowed to use it as a basis for causing to arise a statutory presumption of insolvency which may be asserted in winding up proceedings, thereby affecting where the onus of proof in those winding up proceedings is to be taken to lie. 26 In the Scope Data case, I considered some of the earlier decisions about s.459J(1)(b), notably Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 19 ACSR 125, Moutere Pty Ltd v Deputy Commissioner of Taxation (2000) 34 ACSR 533 and Re Softex Industries Pty Ltd (2001) 187 ALR 448: "[22] The nature of the jurisdiction created by s 459J(1)(b) was referred to by the Full Federal Court in Hoare Bros Pty Ltd v DCT (1996) 135 ALR 677 at 691; 19 ACSR 125 at 139. The breadth of the jurisdiction was confirmed by the court: Whatever view is taken of the relationship between s 459J(1)(a) and (b), the court has a discretion in a case which does not involve a defect in the demand to set aside the demand, if some appropriate reason is shown. The discretion may be exercised in favour of a company, even without a showing that substantial injustice would otherwise be caused … The court considered it `unwise to attempt to mark out the limits of the jurisdiction conferred by s 459J(1)(b)'. [23] An example of circumstances in which the court may exercise the power given by s 459J(1)(b) was given by Austin J in Moutere Pty Ltd v DCT (2000) 34 ACSR 533 at 543 [54]-[55]: The policy underlying s 459H is that the statutory demand procedure should not be used to coerce a person to pay a disputed amount. A statutory demand is not an instrument of debt collection. By analogy, the commissioner should not use the statutory demand procedure to apply coercive pressure to a taxpayer who genuinely objects to the commissioner's decision. To do so would be to take unfair advantage of those provisions of the taxation legislation (such as ss 14ZZM and 14ZZR of the TAA) which say that an amount owing in consequence of the commissioner's decision is recoverable, notwithstanding that an objection has been lodged against the decision.If the commissioner decides not to await the outcome of the objection, the proper course will often be for him to take proceedings for recovery of the debt rather than to summon up the spectre of liquidation by issuing a statutory demand. If the court forms the view that the commissioner has acted oppressively or unfairly by issuing a statutory demand in such circumstances, the appropriate course is for the court to set the demand aside under s 459J(1)(b). By doing so the court does not deny that the debt is recoverable although an objection has been made, but it thereby insists that the statutory demand procedure should not be used to apply pressure for payment of an amount which might ultimately be found not to be payable.

[24] Reference may also be made to the decision of Mullins J in Re Softex Industries Pty Ltd (2001) 187 ALR 448 which concerned a statutory demand which included a sum on account of disputed tax in respect of which there had been a hearing before the Administrative Appeals Tribunal. The tribunal's decision was reserved. Her Honour said 'it was oppressive for the respondent to serve a statutory demand incorporating that disputed sum'. On that basis, the statutory demand was set aside." 27 I then referred to the particular significance, in the s.459J(1)(b) context, of a stay of execution of a judgment where the statutory demand is based on a judgment debt:

" [25] If, in the present case, a stay of execution of the Local Court orders is in force by operation of s 107 of the Justices Act, reliance upon the statutory demand to produce a statutory presumption of insolvency as a basis for seeking a winding-up order will entail for the plaintiff consequences of a serious and adverse kind. The defendant, as a judgment creditor to whom the remedy of execution upon the judgment is expressly denied pending determination of the appeal to this court, will nevertheless be permitted to rely on the judgment as a basis for bringing to bear the pressure for payment and threat of serious and adverse consequences inherent in a statutory demand and a winding-up petition, notwithstanding the legislative policy that precludes direct resort to execution. That legislative policy would thereby be circumvented.

[26] If parliament sees fit to provide that, where a certain type of appeal is initiated in respect of a judgment debt, the judgment creditor is not to be allowed to exercise ordinary judgment creditor remedies by proceeding to execute the judgment, it would, in my view, be inconsistent with the position parliament has striven to create if the judgment creditor could nevertheless proceed with impunity to initiate winding-up proceedings on the basis of the mere existence (even though technically not subject to 'genuine dispute') of that judgment debt. Such a course would, in my view, be oppressive in the sense referred to by Austin J in Moutere and by Mullins J in Softex . The circumstances would therefore warrant an order under s 459J(1)(b) setting aside the statutory demand, even though the initiation of action towards winding up was not technically within the black letter operation of s 107 of the Justices Act: cf Australian Cherry Exports Ltd v Commonwealth Bank of Australia (1996) 39 NSWLR 337." 28 I am of the opinion that the present case attracts the operation of the principles set out at paragraphs 25 and 26 of Scope Data and that the stay of execution presently in operation by virtue of s.107(2) of the Civil Procedure Act provides, in terms of s.459J(1)(b) of the Corporations Act, "some other reason" why the statutory demand should be set aside. There will be an order accordingly. 29 I would add one thing. I have said that, in approaching a s.459J(1)(b) matter, the court should have regard to circumstances as they exist when the question regarding the existence of "some other reason" is before it, and that the court is not confined to some historical snapshot. It follows that, if the present defendant should ultimately be successful in its objection to the instalment order and that order is rescinded, a new set of circumstances would appropriately be examined upon any future application for an order setting aside any renewed statutory demand based on the judgment debt. 30 I order pursuant to s.459J(1)(b) of the Corporations Act that the statutory demand dated 31 July 2006 served by the defendant on the plaintiff be set aside.

[Counsel addressed on costs] 31 I order that the defendant pay the plaintiff's costs of the proceedings.

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