White v Overland [2011] NSWSC 576 | Case summary

Application to Extend Time pursuant to s 459R 18On the hearing of the applications on 30 May 2011 the plaintiff's counsel acknowledged that she and the plaintiff's solicitor had overlooked the requirement in s 459R(1) that an application that a company be wound up in insolvency be determined within six months. I was surprised to be informed that the defendant's legal advisers had not overlooked that requirement. The second defendant's solicitor, Mr Zraika, and subsequently his counsel, Mr Ginges, made it clear that they understood that had the last proposed consent orders been made and the matter stood over to 6 June 2011, then the proceedings would have been automatically dismissed pursuant to s 459R after 1 June 2011. They made it clear that the defendant proposed to submit that the plaintiff's interlocutory process would then also have to be dismissed because the proceedings would no longer be on foot. Mr Zraika submitted that the defendant was under no obligation to alert the plaintiff to the pitfall of s 459R of which the plaintiff's legal advisers were evidently oblivious. 19I disagree. The ambush approach to litigation is discredited. It should be rejected by any solicitor or barrister. It is inconsistent with the duties of parties and their legal representatives under s 56 of the Civil Procedure Act 2005 to ensure the just, quick and cheap resolution of the real issues in proceedings. The real issue on the Originating Process is whether the first defendant is insolvent. The second defendant and his legal advisors, as much as the plaintiff and his legal advisors, have a duty to co-operate in seeing that that issue is resolved as quickly and as cheaply as it properly can be, consistent with its being resolved justly. That issue would not be resolved at all if s 459R were allowed to apply with no attention having been given as to whether an extension of time should be ordered under s 459R(2). 20In White v Overland [2001] FCA 1333 Allsop J (as his Honour then was) said (at [4]): " However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. ... Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. ... Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. ... " (emphasis in original) 21This was approved by the Court of Appeal in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 where the ambush approach to litigation was condemned. The court noted that it was common in equity and commercial litigation that counsel volunteer to each other what points will be argued (at [27] and [29]). In Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Ltd [2008] NSWCA 243 Allsop P said (at [160]): " ... it cannot be emphasised too strongly that it is the responsibility of the parties, through their legal representatives, to exercise a degree of co-operation to express the issues for trial before and during the trial. Such co-operation can now be taken as an essential aspect of modern civil procedure in the running of any civil litigation, including hard-fought commercial cases. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4], expressly approved in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 (Heydon JA, with whom Mason P and Young CJ in Eq agreed); Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 at [59]-[60] (Ipp JA, with whom Sheller and Hodgson JJA agreed); Sutton v Erect Safe Scaffolding (Aust) Pty Ltd [2006] NSWCA 265 at [4] (Bryson JA with whom Basten JA agreed); and Hooker v Gilling [2007] NSWCA 99 at [52] (McColl JA, with whom Ipp and Basten JJA agreed)." 22In Ewen Stewart & Associates Pty Ltd v Blue Mountains Virtual Air Helitours Pty Ltd (No. 2) [2011] NSWSC 113 a director of a company that had been served with a statutory demand made it clear to a solicitor for the person serving the demand that he assumed that the demand had been served on a particular day when the solicitor knew it had been served some days earlier. I was critical of the solicitor's failure to correct the director's misapprehension. I observed that litigation is not a game in which parties or their legal advisors should keep their cards close to their chest to achieve a tactical advantage (at [21]). This was critical to my decision to exercise a discretion that I found was available under s 459S to permit the company to oppose the winding-up application on a ground that could have been relied upon for the purposes of an application to set aside the statutory demand. 23In the present case the second defendant and his legal advisors went beyond merely staying silent in the hope that the plaintiff would fall into the trap of s 459R. The second defendant consented to orders that provided for the future fixing of a hearing date for the plaintiff's interlocutory process in the expectation that before the time arrived for fixing a date to hear that interlocutory process the proceeding would have been dismissed by force of statute. They did not alert the plaintiff or the judge who was asked to make the consent order that this would be the result. Even if an ambush approach to litigation could otherwise be condoned, consenting to an order in those terms could not. That is not acceptable conduct. 24Nor is it acceptable that the plaintiff's legal advisors should have failed to acquaint themselves with the requirements of s 459R. 25Had the proceeding been dismissed by virtue of s 459R it would have been open to the plaintiff to have instituted a fresh application to wind up the first defendant in insolvency. Nothing would have been achieved for the defendants by their allowing the time to have expired without alerting the plaintiff to the consequences. It was submitted for the defendants that in that event the plaintiff would have been ordered to pay the costs of the proceedings, and an order would have been sought that no fresh proceeding be brought until the costs were paid. It is unnecessary to express a concluded view on what costs order would have been made. But it would be wrong to assume that the plaintiff would necessarily have been ordered to pay the costs. Depending upon the view that the judge hearing the application took as to the conduct of both parties and their legal advisors the burden of costs might well have not fallen on the plaintiff, but on the parties' legal advisors. 26I have reserved questions of costs arising out of the applications heard on 30 May 2011 until after the determination of the other issues in the proceedings. At that time I may consider whether the costs should be borne wholly or partly not only by the plaintiff and the second defendant, but by their respective legal advisors. 27The first issue is whether there are special circumstances that justify an extension of the period within which the application to wind up the first defendant in insolvency is to be determined. If there are such special circumstances, there remains a question as to whether the court in its discretion should grant an extension. In Expile Pty Ltd v Jabb's Excavations Pty Ltd [2002] NSWSC 851; (2002) 194 ALR 138, Hamilton J said (at [5]-[6]) that there should be no exhaustive attempt to define or list the matters which may fall within the rubric of special circumstances and that the word " special " is used in contradistinction to " ordinary " or " common ". His Honour emphasised that merely because special circumstances exist that justify an extension does not mean that the discretion under s 459R(2) need be exercised. 28In the present case there are circumstances that are not ordinary or common, but special, which justify an extension. 29To obtain an order for the winding-up of the first defendant in insolvency, the plaintiff must establish insolvency at the date of the hearing and at the date of the filing of the application (see Ann Street Mezzanine Pty Ltd (in liq) v Beck [2009] FCA 333; (2009) 27 ACLC 485 at [9]-[12]). It is clear from the affidavits filed that the plaintiff ceased any active involvement in the affairs of the first defendant in October 2010. He sought production of documents including financial records of the first defendant. The second defendant had concerns about allowing the plaintiff unfettered access to the books and records of the first defendant, notwithstanding that the plaintiff is a director of the first defendant. That is because the second defendant maintains that the plaintiff has commenced work for a competitor. Rather than simply seeking an order from the court at any of the directions hearings for the production of the first defendant's financial records, the parties' solicitors spent considerable time, and no doubt costs, in debating their respective clients' position in correspondence. It appears that the plaintiff served a notice to produce on 11 February 2011, although the notice was not itself put into evidence before me. The second defendant objected to the notice. Again, the grounds of objection were not before me. There was extended wrangling about the plaintiff's entitlement to inspect documents. It was not until 11 May 2011 that the plaintiff was provided with a USB stick that included financial records up-to-date to 29 April 2011. There should have been no delay in the provision of up-to-date financial information relating to the affairs of the first defendant. 30It is true that the plaintiff's legal advisors were at fault. The plaintiff's solicitor preferred advancing his client's case by correspondence rather than taking active steps in the litigation to obtain an order from the court for the production of necessary documents. Much of the correspondence in evidence on the applications before me is to be deplored. But the fact that legal advisors should have taken more effective steps to obtain necessary evidence does not mean that the circumstances are otherwise than special, that is, not common or ordinary. 31I also think that the delay in the plaintiff's obtaining such financial information justifies an extension of time. The plaintiff is entitled to a reasonable period in which to consider the effect of the financial information now provided and if necessary to obtain the assistance of an accountant or other qualified person. Section 459R expresses a public interest in the prompt resolution of applications for winding up in insolvency. In Expile Pty Ltd v Jabb's Excavations Pty Ltd , Hamilton J summarised a number of those reasons as follows (at [9]): " ... There are various good reasons for this policy and I do not purport to be exhaustive. They include winding up applications not being dealt with on material which is stale. They include situations where a company may be trading or engaging in transactions whilst it is insolvent, which should not be protracted. And they include companies, which are not insolvent, not having the commercial cloud caused by the existence of winding up proceedings hanging over their heads for a long time. ... " 32Undoubtedly it is undesirable that the company have the application that it be wound up in insolvency hanging over its head for a long time. However, for the reasons which follow, even if the application that the company be wound up in insolvency was automatically dismissed as a consequence of my refusing the application to extend time under s 459R(2), there would remain an application that the company be wound up on other grounds. Moreover, there would be nothing to prevent the plaintiff bringing a fresh application that the company be wound up in insolvency. There is a risk that the company will continue to incur debts that will not be met if the company is insolvent, but the risks to persons dealing with the company if it is insolvent will not be ameliorated by the automatic dismissal of the application that the company be wound up in insolvency. Because any winding-up by the court will commence on the making of a winding-up order and not from the date of filing of the originating process (s 513A(e)) persons dealing with the company are not at risk of receiving dispositions of property of the company that would be void if s 468 applied. 33There are further special circumstances justifying an extension of time under s 459R(2). The delay is partly attributable to the parties' preparing material relevant to the plaintiff's proposed interlocutory process that is also material to the plaintiff's proposed amended claim seeking winding-up orders on the alternative grounds of oppression under s 461(1)(e) and (f). The interlocutory process and the proposed additional grounds for seeking a winding-up order raised additional matters of preparation that are out of the ordinary. For the reasons which follow, they were not matters improperly raised in the context of an application to wind up the company in insolvency. These matters also justified an extension of time under s 459R(2).

Proposed amendment to originating process 34Counsel for the second defendant submitted that the claim to wind up the first defendant in insolvency could not properly be joined with a claim that it be wound up on other grounds. He referred to the decision of McLelland J (as his Honour then was) in Re National Computer Systems and Services Ltd (1991) 9 ACLC 1361 where his Honour said (at 1363): " It would rarely if ever be appropriate for a creditor's application for the winding-up of a company (which is of the nature of an order in rem ) on the ground of insolvency to be joined with a claim for relief of some other kind made by either of the parties. Such an application has particular public aspects which render it desirable that it be kept separate from the course of other, private, litigation. ... The applicant creditor is considered as representing the whole class of creditors to which it belongs ... Furthermore, it is in the public interest that an application to wind-up a company on the ground of insolvency, once filed, be determined without avoidable delay, particularly if the company is continuing to trade, in order to reduce as far as possible (a) the period during which debts may be incurred which may not be paid, (b) the period of uncertainty as to the validity of transactions with the company which may be open to challenge under, for example, ss 468 or 565 of the Corporations Law , (c) the period of uncertainty as to whether other parties will be able to commence or proceed with proceedings against the company (see s471(2) of the Corporations Law ), and (d) the risk that assets which would otherwise be available to creditors might become unavailable ... " 35It was submitted for the second defendant that a claim that the first defendant should be wound up on one of the grounds in s 461 of the Corporations Act was not a claim for relief of the same kind as the claim that the first defendant be wound up in insolvency. Hence, it was submitted that it was inappropriate to allow the proposed amendment to the originating process. Further, the delays in the preparation of the case attributable to pursuit of the proposed additional grounds for winding up provided no proper reason for extending the time for determination of the application to wind up the first defendant in insolvency. 36In Re National Computer and Services Limited , McLelland J was not dealing with the question of whether an application for winding up in insolvency was a claim for relief of a different kind than an application for winding up on other grounds. There the defendant company sought to have the winding-up proceeding transferred to the Federal Court to be heard in conjunction with or after a claim brought by the defendant in the Federal Court for damages against the plaintiff for alleged misleading or deceptive conduct. 37It is true that Parts 5.4 and 5.4A of the Corporations Act contain different provisions dealing with applications for winding up in insolvency and applications for winding up by the court on other grounds. There are different rules concerning an applicant's standing to bring an application. There is no counterpart in Part 5.4A to s 459R. However, these differences do not mean that an application for winding up cannot be brought both on the ground that the defendant company is insolvent and in reliance on a ground under s 461 (or pursuant to another provision such as s 233). This must follow from s 459B. That section provides that where, on an application under ss 234, 462 or 464, the court is satisfied that the company is insolvent the court may order that the company be wound up in insolvency. If the court, on an application under s 462, can order that the company be wound up in insolvency, it must be open to an applicant to claim that the company should be wound up both on a ground in s 461 and on the ground that the company is insolvent. An example of such an application that is the converse to the present case is Melbase Corporation Pty Limited v Segenhoe Limited (1995) 13 ACLC 823. There the applicant in the Federal Court had filed a winding-up application relying on the grounds in s 461(e), (f) and (k). It applied for leave to amend the application to apply also under s 459P(2) to have the respondent wound up in insolvency. Lindgren J granted the application. 38I conclude that it is open to an applicant to proceed under both Part 5.4 and Part 5.4A. 39The plaintiff has standing to apply for a winding-up pursuant to s 462 on a ground provided for by s 461 as he is a contributory of the first defendant. His evidence, if accepted, provides an arguable ground for winding-up under s 461(1)(e) or (f). It is desirable that all aspects of the controversy be determined in the one proceeding. For these reasons I gave leave to the plaintiff to file the amended originating process as sought in his solicitor's affidavit. 40The amended originating process for which leave was sought did not seek to rely upon the just and equitable ground in s 461(1)(k). This may have been a deliberate choice. On the other hand, I cannot exclude the possibility that just as the plaintiff's legal advisors proceeded in ignorance of s 459R, they may not have given any real consideration to s 461(1)(k). It would be undesirable for the plaintiff at the hearing to contend that even if insolvency and oppression were not established, the company should be wound up on just and equitable grounds. If that contention is to be made, the defendant should be alerted to it before they are required to complete their evidence. The second defendant may have grounds on which to resist an application for leave for the plaintiff to further amend the originating process, if such an amendment were to be sought. It is for this reason that I have directed that if the plaintiff seeks to make any further amendment to the originating process, and if that application is to be opposed, an interlocutory process seeking leave be returnable on the next directions date.

White v Overland

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