New South Wales Supreme Court CITATION : Milano v JD Holdings [2001] NSWSC 899 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2178/2001 HEARING DATE(S) : 15/10/01 JUDGMENT DATE : 15 October 2001 PARTIES : MILANO CONSTRUCTION PTY LTD v JD HOLDINGS PTY LTD JUDGMENT OF : Master Macready at 1 COUNSEL : E. White for plaintiff C. Whitelaw for defendant SOLICITORS : Firmstone & Associates for plaintiff MacKellar Crain & Barnett for defendant CATCHWORDS : Practice and Procedure. Review of Registrar's decision on costs. Need to hear full argument. Order made by Registrar varied. DECISION : Paragraph 23 - 1 - 1 MASTER: This is the hearing of an interlocutory application which was made on 18 June 2001 which seeks to review an order by the Registrar which was made on 17 May 2001. The order related to the payment of costs when the Registrar ordered the defendant to pay the plaintiff's costs. The proceedings were winding up proceedings against the defendant company. They were effectively abandoned and dismissed on 17 May as the defendant produced evidence of solvency sufficient to satisfy the plaintiff. Earlier there had been a statutory demand in respect of which there was no application to set aside the payment. Thus, the presumption of insolvency applied. 2 The course of the proceedings before the Registrar appears to be somewhat unfortunate. The Registrar asked one or two questions when he was asked to deal with the question of costs and then apparently refused to receive a chronology from the defendant's counsel and heard no further submissions. What that led to was that the Registrar decided the question of costs without regard to an affidavit that had been filed specifically to deal with the question of costs and also without the chronology and the benefit of submissions that were intended to be made. 3 The evidence shows that there is far more that was relevant than the mere matters that the Registrar had regard to, namely whether the defendant had applied to set aside the statutory demand. It is unfortunate because there are further costs incurred in this appeal. 4 The plaintiff was a subcontractor on a building project at Kings Cross. According to the defendant it was the developer in respect of that project and it says that a company, Total Concepts Pty Ltd, was the builder. I will deal with some of the chronology of the relevant events before moving on to the matter. 5 By the end of the year 2000 there seemed to be disputes about work being carried on and also about the lack of payment. On 4 December there was some service of claims under the Building and Construction (Security of Payment) Act which the defendant ignored. If the view which it took of the contractual arrangements be right, then it was entitled to so ignore the claim. 6 On 8 December other proceedings were commenced in this Court - 4959/00 - that sought the return of building equipment and materials. In the course of those proceedings in an affidavit of 9 March 2000 Mr Davies, a director of the defendant, made it perfectly clear that the defendant was of the view that there were never any contractual arrangements between the plaintiff and the defendant for the supply of services or materials. Ultimately those proceedings were discontinued by consent and there seems to be therefore some difficulty in relying upon these disputes in relation to the present proceedings. 7 On 7 February the statutory demand was served on Mr Davies, a director of the company, and a copy sent by mail to the registered office. The copy sent by registered mail was returned as the office had been changed. Mr Davies apparently did not bother to look at the envelope which he was given and simply handed it on. 8 On 21 February the plaintiff filed and served a statement of liquidated claim in the District Court naming the present defendant as a defendant. The amount claimed included the debt referred to in the statutory demand. The time for compliance with the statutory demand expired on 28 February and no application was made to set it aside. The defendant started to do something in March. On 6 March in correspondence it said that it was going to apply to set aside the demand and allege a genuine dispute and that it proposed to defend in the District Court proceedings. Three days later it also set out the basis for suggesting that there was no debt due by the defendant and seeking to clarify the date on which the demand was served. It then made some statements which were to the effect that even if the time had expired, it intended to dispute the debt on the issue of the petition. It said that if the genuine dispute is found, they would seek an order for indemnity costs. That produced a response on the 14th saying that the demand was served on 7 February and the company was going to be wound up. 9 On 23 March the defendant's solicitors replied once again presenting the stance which it had set out before, namely, that there was a genuine dispute. This was irrelevant at this stage. 10 On 27 March the defendant sought further and better particulars of the District Court statement of claim. 11 On 12 April 2001 the application to wind up was lodged and it relied upon the failure to comply with the statutory demand. 12 On 26 April there was a letter in which the defendant sought an undertaking not to advertise, which was given, and raising the same matters it raised before. 13 On 27 April there was a response in which the plaintiff reiterated its position that the defendant had consistently refused to pay the plaintiff and also referred to the fact that the defendant consistently failed to suggest that the plaintiff's claims were in dispute. According to the correspondence and the affidavit, that was not correct. They had been disputed on several occasions. 14 The submissions for the defendant raised a number of matters which were put on the wide question of what were the appropriate considerations for ordering costs. They included reasons for the failure to apply to set aside the demand and the probably difficult question of whether or not it was ever going to be open to the defendant to assert a lack of standing to bring the proceedings. That difficulty probably arose because of the operation of 459 S and the fact that the actual amount of this debt was not relevant to solvency. 15 Importantly, they also raised the question as to whether there was an abuse of process by the issuing of parallel proceedings. As is perfectly apparent from the chronology, the proceedings to recover the same debt were filed on 21 February and were well advanced with detailed requests for particulars. A defence had not been filed by 12 April when the application to wind up was lodged in this Court. 16 There are a number of cases that deal with the principles in this respect. Importantly in Portfolio Projects Pty Ltd v Oakes Building Co Pty Ltd (1987) 5 ACLC 911 Needham J said: "It seems to me to be an abuse of the process of this Court to make a claim for that sum of money that is included in the Common Law claim and seek to wind up the company in parallel proceedings in the Equity Division because of the failure to pay the plaintiff ... ". 17 These comments were adopted by Santow J in Roy Morgan Research v Wilson Market Research (1996) 14 ACLC 925 at 929 where his Honour referred to what the late Master Adams said in Mala Pty Ltd v Johnston (1995) 13 ACLC 100 at 102 where the late Master said: "As to abuse of process, it is prima facie an abuse of process for any party to institute two proceedings for the one claim. That much, I think, appears from a case cited to me this morning. Portfolio Projects Pty Ltd v Oakes Building Co Pty Ltd (1987) 5 ACLC 911. I use the words "prima facie" because there can be an explanation why two proceedings are issued and it is a matter for the court to determine whether the explanation is sufficient. That, I think, appears from the Re Bond Corporation Holdings Ltd (1990) 8 ACLC 153; (1990) 1 WAR 465 where there was at the time of the filing of a petition civil proceedings in the court which involved a dispute as to the same amount". 18 I have referred to and applied those principles in Murphy and Ors v Teakbridge (1999) NSWSC 1231. The question which arises here is whether there really is any explanation to avoid the conclusion that, prima facie, there is an abuse of process. The plaintiff suggests that there are a number of things and in particular suggests that as a result of the evidence that was in the earlier Supreme Court proceedings, I can conclude, as I would, that a director of the plaintiff was aware that the defendant was required to pay a mortgage of about $5.726 million on or before 23 March 2001. Also apparently a director of the plaintiff was privy to conversations between the director of the defendant and subcontractors about bounced and cheques. 19 There were advanced the various matters relating to return of goods which are the subject of the Supreme Court proceedings. I do not think they are relevant to consider on this matter. What one really has to see is whether there is an explanation for doing what is a prima facie abuse. There is no evidence sworn by the defendant in these proceedings setting out precisely what is the reason why parallel proceedings were commenced. One sees a little from the letter of 27 April the attitude, including inaccurate statements that the defendant has consistently failed to do anything to suggest that the plaintiff's claims are disputed. 20 To my mind there is really no explanation as to why there were two parallel sets of proceedings. It seems to me that the plaintiff had information that suggested to it that the defendant was in a difficult situation. It knew that there had been no application to set aside the demand but it also knew that there was a dispute about the debt and in fact it had issued the proceedings. 21 In these circumstances it would seem to me that there is no adequate explanation for the parallel proceedings. I would have thought there was, prima facie, an abuse of process. On this basis it would seem to me that the order of the Registrar ought to be set aside. 22 The claim is made, of course, for there to be costs on an indemnity basis. I do not think that that is appropriate. One of the things that the defendant seems to have done is to in fact simply say what it is going to do without doing it. It was not until later on in the proceedings that it offered the evidence that it was in fact solvent. Precisely why this is so does not appear from the evidence. 23 Taking into account all these factors, the appropriate order is, firstly, I set aside the order of the Registrar of 17 May. I order the plaintiff to pay the defendant's costs on a party and party basis, including the costs of this review. oOo Last Modified: 10/25/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.