New South Wales Supreme Court CITATION : Treadwell v Hickey [2009] NSWSC 1395 HEARING DATE(S) : 23/11/09, 24/11/09, 25/11/09, 26/11/09 JUDGMENT DATE : 16 December 2009 JURISDICTION : Equity Division JUDGMENT OF : Barrett J DECISION : Proceeding dismissed with costs. CATCHWORDS : PROFESSIONS AND TRADES - accountants - accountant in private practice retained by group of companies - alleged breach of retainer and negligence - scope of retainer - whether accountant required to act otherwise than on clients' instructions and information given by clients - whether breaches when payroll tax registration not obtained by client and business activity statements not lodged by client - CONTRACT - alleged breaches of contract concerning laptop computer and loan - no matter of principle - CORPORATIONS - winding up - winding up in insolvency - automatic set-off under Corporations Act s 553C(1) - set-off inoperative under s 553C(2) if person seeking it had notice of fact of insolvency at time of giving or receiving credit - need for insolvency to be proved to activate s 553C(2) - insolvency not proved - EQUITY - general principles - assignments in equity - assignment of legal chose in action - where assignee of causes of action commences proceedings before notice of assignment given to the defendant - assignor not made a party to the proceedings at inception - but later joined - whether recovery of common law remedy by assignee precluded - PROCEDURE - joinder of parties - application at start of trial by plaintiff equitable assignee to join assignor as party - application opposed by defendant - application granted Conveyancing Act 1919, s 12 LEGISLATION CITED : Corporations Act 2001 (Cth), ss 95A, 436A, 553C Limitation Act 1969, s 63(2) CATEGORY : Principal judgment Australian Securities and Investments Commission v Plymin [2003] VSC 123; (2003) 175 FLR 124 Barton v Atlantic 3 Financial (Australia) Pty Ltd [2004] QSC 376; (2004) 212 ALR 348 Equus Financial Services Ltd v Glengallan Investments Pty Ltd (unreported, QCA, 19 May 1994, BC9404553) Gye v McIntyre [1991] HCA 60; (1991) 171 CLR 609 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210; (2000) 48 NSWLR 709 Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 McIntosh v Shashoua [1931] HCA 56; (1931) 46 CLR 494 National Mutual Life Nominees Ltd v National Capital Development Commission (1975) 6 ACTR 1 CASES CITED : Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963)109 CLR 9 Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1 Powell v Fryer [2001] SASC 59; (2001) 159 FLR 433 Purdon v Purdon [2007] NSWSC 141 Re Westerton; Public Trustee v Gray [1919] 2 Ch 104 Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation [2001] NSWSC 621; (2001) 53 NSWLR 213 Stein v Blake [1995] UKHL 1; [1996] AC 243 Thomas v National Australia Bank Ltd [1999] QCA 525; [2000] 2 Qd R 448 Weddell v J A Pearce & Major [1988] Ch 26 Westbourne Grammar School v Sanget Pty Ltd [2007] VSCA 39 TEXTS CITED : Sir Frederick Jordan, "Chapters on Equity in New South Wales" (1921) PARTIES : Robin Ernest Treadwell - Plaintiff Richard John Hickey - Defendant FILE NUMBER(S) : SC 4422/05 COUNSEL : Mr A G Rogers - Plaintiff Mr A S Martin SC - Defendant SOLICITORS : Fitzpatrick Solicitors Pty Ltd - Plaintiff McMahon's Lawyers - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J WEDNESDAY, 16 DECEMBER 2009 4422/05 ROBIN ERNEST TREADWELL v RICHARD JOHN HICKEY JUDGMENT The proceedings 1 Each cause of action upon which Mr Treadwell sues as plaintiff in these proceedings is a cause of action that is said to have arisen originally in either Greenfold Staff Solutions Pty Ltd (which I shall call "Staff") or Greenfold Consulting Pty Ltd ("Consulting"). 2 Mr Treadwell claims to be entitled to sue upon the several causes of action as assignee. The effectiveness of the assignments to permit him to sue at law is challenged. More precisely, the defendant maintains that no complete cause of action was available to the plaintiff when he commenced the action, that nothing that has happened since has cured that defect and that, for that reason alone, the plaintiff must fail. 3 The convenient course is to begin by assuming that the plaintiff is entitled, as assignee, to sue upon the several causes of action (to the extent that they are maintainable) and to decide whether the claimed entitlement to relief has been established. Thereafter, the question of effectiveness of the assignments can be addressed. The context 4 Staff and Consulting were, at all material times, two of four companies the whole of the issued share capital of which was held by Greenfold Holdings Pty Ltd ("Holdings"). The five companies are together referred to as the "Greenfold Group". Mr Treadwell owned all shares in Holdings and was, at the start of the parties' relationship, the sole director of each of the five companies making up the Greenfold Group. The two of the five companies not so far mentioned are Greenfold Executive Appointments Pty Ltd and Greenfold Print Pty Ltd. 5 The Greenfold Group, principally through Staff, conducted a labour hire business. It employed persons and then contracted with other business owners to supply the services of those persons for deployment in their businesses. 6 The defendant, Mr Hickey, is a chartered accountant. At all material times, he conducted a public accountancy practice at Eastwood as a sole practitioner under the name "Richard J Hickey & Co". 7 It is common ground that, in June 1998, Mr Hickey was retained by the companies in the Greenfold Group to act as their accountant and to attend to their taxation and accountancy affairs. Mr Treadwell alleges breach of retainer and negligence on the part of Mr Hickey, as against Staff and Consulting. Mr Hickey denies those allegations. Mr Treadwell claims damages for breach of contract and negligence. Mr Hickey denies liability. 8 It is also common ground that, soon after he was retained as accountant, Mr Hickey was allotted one share in Holdings and became a director of each of Holdings, Staff, Consulting and Greenfold Executive Appointments Pty Ltd. The claims made by Mr Treadwell 9 Central to the parties' controversy is the scope of Mr Hickey's retainer. Mr Treadwell, in his further amended statement of claim, pleads the terms of the retainer in detail. At trial, however, Mr Treadwell ultimately alleged only the following breaches of retainer (transcript, page 227 lines 33 to 36): (a) failure to prepare payroll tax returns for Staff and Consulting (further amended statement of claim, paragraphs 47(c) and 48(c)); (b) failure to prepare business activity statements for Staff for periods ending 30 June 2001, 31 July 2001 and 31 August 2001 (further amended statement of claim, paragraphs 47(d)(i)(5), (6) and (7)); (c) failure to prepare business activity statements for Holdings for the period ending 30 June 2001 (further amended statement of claim paragraph 47(d)(iv)(3)); (d) failure to prepare and lodge any business activity statements for Consulting from May 2001 (further amended statement of claim, paragraph 47(d)(xi)); (e) failure to bring to Mr Treadwell's attention the obligation of Staff to pay payroll tax (further amended statement of claim, paragraph 47(o)). 10 As eventually presented, Mr Treadwell's case did not include allegations of breach of any duty of care in negligence wider or more demanding than the aspects of the retainer to which these allegations of breach of contract relate. 11 As is made clear at transcript page 202 lines 6 to 12, Mr Treadwell advances only two additional claims against Mr Hickey, that is, claims apart from those involving alleged breach of specified terms of the retainer (and corresponding negligence). The first concerns a laptop computer in relation to which it is pleaded that Staff, by its servant or agent Mr Treadwell, agreed to purchase the computer for Mr Hickey in consideration for which Mr Hickey agreed to pay the cost to Staff, which agreement, it is said, Mr Hickey breached by failing to pay Staff. 12 The second additional claim concerns a loan. It is alleged that, in the period June 1998 to August 2001, Staff lent Mr Hickey $24,000 (it was accepted at trial, however, that only $20,600 could be claimed). Mr Hickey admits that loans were made but not the amount. Mr Treadwell alleges that the money lent was repayable on demand. Mr Hickey denies this. Mr Treadwell alleges demand for payment by Staff on 3 April 2002 and failure by Mr Hickey to comply with the demand. Mr Hickey further alleges indebtedness of $44,000 by Staff to him and an entitlement to set that off against his debt to Staff. 13 All the causes of action asserted are common law causes of action. The remedies claimed are all common law remedies. I mention this because of its relevance to the assignment question to be addressed presently. Claims for statutory relief under the Corporations Act and for declaratory relief are among those ultimately not pressed. Mr Hickey's retainer 14 I shall deal first with the claims of breach of retainer (and corresponding negligence). The dispute, as I have said, is as to the scope of the retainer, not its existence. The two points of conflict concerning the retainer are, first, whether Mr Hickey undertook to deal comprehensively with statutory compliance issues and, second, as to the significance of his becoming a director of four of the Greenfold Group companies. Mr Treadwell says that Mr Hickey was retained for reward to be a director; Mr Hickey says that there was no contract or reward associated with his directorship and that it was separate from the retainer. 15 The retainer was entered into in or about June 1998. It was not recorded in writing. It followed an initial meeting between the two individuals on 11 May 1998. It is common ground that the discussion was on the basis that Mr Hickey would look after the Greenfold Group's taxation and accountancy affairs. According to Mr Treadwell's first affidavit, there was a request also that Mr Hickey look after all statutory compliance issues, which Mr Hickey accepted. Mr Hickey denies this part of the conversation. 16 In an affidavit of 20 November 2009, Mr Treadwell said more about the May 1998 conversation, including (at paragraph 3) that he said to Mr Hickey: "I have no training in accounting compliance or in relation to BAS returns, payroll tax, group tax, or superannuation. You can look after these." 17 Mr Treadwell confirmed in the witness box that this had been said in May 1998. This cannot be so. There were no such things as "BAS returns" at that time. Statutory requirements with respect to business activity statements were part of the goods and services tax reforms introduced with effect from 1 July 2000. Mr Treadwell eventually accepted in cross-examination that he had never heard of a BAS in 1998 and that he first became aware of the concept in 2001. 18 Mr Treadwell acknowledged that, before he swore his 5 March 2008 affidavit, he was asked to recall all conversations with Mr Hickey and was then unable to recall the conversation to which he deposed on 20 November 2009. Nor, he said, did he have any contemporary document that refreshed his memory of the matter. 19 Mr A S Martin SC submitted on behalf of Mr Hickey, and I accept, that it is implausible that Mr Treadwell should recall in November 2009 a conversation of May 1998 that he could not recall in March 2008 when nothing to refresh his recollection could be pointed to as having happened in the meantime; the more so when the conversation professed to be recalled referred to taxation concepts that were not invented until some two years after the supposed conversation and which, on his own admission, Mr Treadwell did not become aware of until about a year after their introduction. 20 My finding is that Mr Treadwell did not speak to Mr Hickey the words set out in paragraph 3 of his affidavit of 20 November 2009 or words to that effect. 21 I proceed therefore on the basis that the question of the scope of the retainer should be approached without regard to what is said in paragraph 3 of Mr Treadwell's November 2009 affidavit about the conversation of May 1998. 22 Mr Hickey's version of the retainer is that it was "a standard accountant/client engagement" and that his role was to deal with the ATO in such matters as the preparation and lodgment of tax returns, preparation of annual financial statements and dealing with ASIC in respect of annual returns. Mr Hickey denies that he undertook to ensure that all compliance matters were up to date. 23 Mr Treadwell sought to support his version by evidence that Mr Hickey had free access to the Greenfold office and had been shown where the filing cabinets were, with an open invitation, as it were, to get from them whatever he needed. Mr Hickey denied any such invitation or arrangement. 24 Mr Treadwell's version is inconsistent with contemporary documents. There are in evidence numerous letters from Mr Hickey, on his practice letterhead, to various companies in the Greenfield Group reporting on a variety of matters, particularly matters concerning the Australian Taxation Office. There are many instances of letters forwarding notices from the ATO about defaults and overdue payments. The letters are cast in businesslike terms. They carry no suggestion or hint that the writer of the letter bears some responsibility for the particular default or shares a common problem with the addressee. The letters are consistent with a situation in which an accountant advises his client on what should be done to meet a particular requirement and the client then has the task of doing whatever needs to be done. 25 Had Mr Hickey had full and free access to all records of the Greenfold Group under an arrangement by which he was to help himself to whatever he needed to ensure full compliance, he would not have written the letters he in fact wrote. There would have been no need for him to do so. 26 Also of particular relevance is a letter to Mr Treadwell of 8 September 2000 from Mr Sweeney, an accountant employed by Mr Hickey, asking for detailed information to assist with the preparation of accounts. Mr Treadwell had no recollection of receipt of this but, because there is in evidence a copy bearing handwriting of his clerical assistant, Ms O'Brien, it is clear that it reached the Greenfold Group. Mr Sweeney said that a copy of the letter was stuck up on a wall in the office by way of reminder of reporting requirements. This confirms Mr Sweeney's evidence that this was in the nature of a standing request and that he copied the letter to the client in at least two subsequent months. There is a contemporaneous note from Mr Sweeney to Mr Hickey confirming this. 27 Evidence was given by both Mr Hickey and Mr Sweeney of the processes employed for the preparation by Mr Hickey's practice of taxation returns, business activity statements and the like for the Greenfold Group. Consistently with my findings about the nature and scope of the retainer, "raw materials" mainly in the form of lists of cheques, bank statements, lists of invoices and payroll summaries were collected from Greenfold Group staff. This was done mainly by Mr Sweeney. Sometimes he found problems such as absence of details of cheques. Ms O'Brien gave evidence that she tried as best she could to ensure that missing details were inserted before records were handed over. She did this mainly by asking Mr Treadwell for the missing details. Mr Sweeney's practice, when he struck difficulties that he could not sort out by discussion with Ms O'Brien, was to refer them to Mr Hickey who, on his understanding, then consulted with Mr Treadwell in an attempt to solve the problem. 28 It should also be recorded that, at Mr Hickey's prompting, Mr Treadwell employed Ms Ellis as a part-time bookkeeper for the Greenfold Group. Had the retainer been as Mr Treadwell contends, he would have said that the relevant tasks were the responsibility of Mr Hickey. 29 I accept the version of the retainer put forward by Mr Hickey, as distinct from Mr Treadwell's version entailing total and comprehensive responsibility of Mr Hickey for all statutory compliance matters. 30 I have referred to Mr Treadwell's contention that Mr Hickey was retained for reward to be a director of four of the Greenfold Group companies. There is no evidence to support this. It is clear that he did become a director – a step that many professionals such as accountants and solicitors would prefer to avoid in relation to a client company, given its capacity to undermine the objectivity that is central to proper discharge of professional responsibility. But there is nothing to show that Mr Hickey assumed the office of director otherwise than solely by reference to the terms that applied by virtue of the constitutions of the several companies. 31 In particular, it has not been shown that any part of the agreed remuneration related to Mr Hickey's services as a director. All references to remuneration are concerned with services rendered and to be rendered as an accountant. Alleged breaches of retainer – payroll tax 32 I turn now to the particular allegations of breach of retainer pressed by Mr Treadwell, starting with the allegation of failure to prepare payroll tax returns for Staff and Consulting. 33 There was a reference to payroll tax in Mr Treadwell's affidavit of 20 November 2009 recording his alleged conversation with Mr Hickey in May 1998. For reasons already stated, I do not accept that that conversation took place in the terms deposed to by Mr Treadwell. I am therefore not satisfied that it was a term of the retainer that Mr Hickey should prepare or arrange preparation of payroll tax returns for companies in the Greenfold Group. 34 It was accepted by counsel for Mr Treadwell that there was never any express instruction to Mr Hickey or his representative to prepare payroll tax returns. Counsel for Mr Hickey referred to two particular parts of Mr Hickey's affidavit evidence in this regard: first, his statement that Mr Treadwell never instructed or directed him to arrange registration for payroll tax; and, second, records of advice he gave about payroll tax. 35 It is Mr Hickey's evidence that, in about October 1999, he spoke to Mr Treadwell and said that Staff, which had, as it were, let on hire the services of a number of employees to Tech Pacific (then its only client) had reached the "payroll tax threshold" of $50,000 per month or $600,000 per year and needed to register for payroll tax. Mr Hickey says that he repeated this to Mr Treadwell later in October or in November 1999 and Mr Treadwell replied to the effect that, because Tech Pacific was behind in its payments, there was a cash flow problem; then: "Let's postpone the payroll tax registration until we have received the proceeds from the litigation that we are involved in and use part of these funds to bring us up to date with whatever we owe the OSR." 36 Mr Treadwell said in cross-examination that he could not recall parts of this statement but remembered saying words to the effect, "Well, because Tech Pacific is behind in their payments we are experiencing a cash flow problem". 37 Having regard in particular to Mr Treadwell's recollection just mentioned, I find on the balance of probabilities that Mr Treadwell made the statement about postponing payroll tax registration and did so in response to Mr Hickey's express advice that registration was required because the threshold had been reached. It follows that the client companies must be taken to have instructed Mr Hickey that he was not to concern himself with payroll tax compliance, registration upon reaching the threshold being the first step to be taken in relation to payroll tax compliance. 38 Mr Treadwell has therefore failed to make good the allegations of breach at paragraphs 47(c) and 48(c) of the further amended statement of claim. Alleged breaches of retainer – business activity statements 39 The only other allegations of breach of retainer that are pressed (see paragraph [9] above) all concern failure to prepare business activity statements in accordance with the goods and services tax legislation. 40 The evidence relied on by Mr Treadwell in this connection is in part in his own affidavit of 20 November 2009 and in part in Mr Sweeney's affidavit. He relies first on paragraph 3 of his affidavit of 20 November 2009 which is the subject of my finding at paragraph [20] above. He also relies on paragraph 4 of the same affidavit. 41 It is not, however, in dispute that the duties of Mr Hickey, in accordance with the retainer, extended to preparation of business activity statements. In relation to what was done to perform that part of the retainer, Mr Sweeney's evidence is pertinent. 42 Mr Sweeney gave evidence that all business activity statements were lodged up to and including May 2001 (with the exception of Consulting where there was lodgement up to April 2001). I did not understand Mr Treadwell to dispute this. For all companies for the following three months (plus, for Consulting, May 2001) – the months relevant to this part of the plaintiff's case – Mr Sweeney gave evidence that, despite requests, he was not provided by the client with enough information to prepare the business activity statements. Mr Sweeney was not challenged in cross-examination on these statements in his affidavit. 43 It must follow that the plaintiff has failed to establish the breaches of retainer said to consist of failure to lodge business activity statements, that is, the breaches alleged in paragraphs 47(d)(i)(5), (6) and (7), 47(d)(iv)(3) and 47(d)(xi) of the further amended statement of claim. Given my conclusions about the scope and nature of the retainer, the obligation of Mr Hickey to prepare and lodge business activity statements was conditioned on the provision by the client of the information needed (and requested) to permit the preparation of those statements. The laptop computer 44 I consider next the claim in relation to the laptop computer. Mr Treadwell maintains that Staff purchased the computer in or around April 2000 for use by Mr Hickey and on the basis of a promise by Mr Hickey to pay for it; and that Mr Hickey failed to make payment, thereby breaching the agreement. Mr Hickey accepts that Staff bought the computer for his use and that he used it. He does not accept that he agreed to pay for it. 45 The problem for Mr Treadwell in this part of the case is that he has not adduced evidence from which it can be inferred that such an agreement was made between Staff and Mr Hickey. All that is put in evidence by Mr Treadwell is a cheque butt dated 11 May 2000 marked "Tech Pacific Laptop Computer for Richard J Hickey $7058.98" and an invoice from "Greenfold" (with the names of four of the Greenfold Group companies on it) dated 11 May 2000 and addressed to Mr Hickey for $7,059.00 for "purchase & supply ex Tech Pacific" of a computer of the relevant kind. But those documents do not, of course, support the allegation as to the existence of the agreement. 46 Nor, significantly, did Mr Treadwell say anything in his affidavits that would contribute or lead to a finding that an agreement was made. 47 Mr Hickey did, by contrast, give relevant evidence. He said in his affidavit that, while the computer was bought for his use, the arrangement was that it would be bought and retained by Staff so that it could be depreciated. He says that there was no agreement that he was to buy the computer from Staff and pay Staff for it; also that Staff never asked to have the computer back. He further says that an invoice dated 3 May 2000 was not seen by him until some considerable time later. His best recollection is that he received it just before Mr Treadwell commenced earlier proceedings against him in 2003. 48 Mr Hickey was taken to a letter written by solicitors acting for him in April 2002 responding to a letter from solicitors for the Greenfield Group demanding, among other things, payment for the computer. Mr Hickey's solicitors said that the computer was part of the consideration given to him for rendering services. He said in cross-examination that that was a misstatement of the position by his then solicitors. 49 Mr Hickey also gave evidence of a conversation between himself and Mr Treadwell at the time the computer was purchased. It was to this effect: "Hickey: I have debited my loan account with the cost of the computer. Treadwell: I want you to take it out of your loan account. I want you to leave it in the name of Staff Solutions so that we can get the benefit of depreciation." 50 Mr Hickey says that he then reversed the loan account entry. 51 Mr Hickey was not cross-examined about his evidence of conversations and events at and shortly after the purchase of the computer. Nor, as I have said, is there contrary evidence from Mr Treadwell. 52 I accept Mr Hickey's evidence and find that the agreement relied upon by Mr Treadwell as the source of Mr Hickey's contractual obligation to pay $7,059.00 in respect of the computer was not made. The claim by Mr Treadwell for payment of that sum therefore fails. The loan account 53 I consider next the claim for $20,600 in respect of the loan account. 54 Mr Hickey does not dispute that Staff lent him money and that, to the extent of $20,600, this has not been repaid. All advances were made before 30 June 2001, since the loan balance of $20,600 now claimed is recorded in Staff's draft balance sheet as at that date prepared by Mr Hickey himself. It is the contention of Mr Hickey, however, that, by operation of s 553C of the Corporations Act 2001 (Cth), the liability in respect of this sum has been extinguished. 55 I have not so far mentioned that, on 26 March 2002, Staff entered voluntary administration under Part 5.3A of the Corporations Act. Creditors voluntary winding up followed on 28 June 2002. Mr Hickey says that, as at 26 March 2002, Staff was indebted to him for unpaid remuneration to the extent of $44,000 and that, by operation of s 553C, his liability to pay $20,600 to Staff was extinguished and Staff's liability to him was correspondingly reduced. 56 Mr Hickey's retainer continued until 29 November 2001 at which point he was replaced by another firm of accountants. Until that time, the basis of retainer, as to reward, was that periodic accounts should be rendered for work done and that there was, in addition, a flat fee retainer of $2,000 per week. The weekly retainer arrangement commenced on 1 June 2000. The weekly sum was paid up to 12 July 2001. Thereafter, six payments were made by automatic bank transfer but those transfers were subsequently reversed through the banking system. There were accordingly no payments for the twenty-two weeks from 12 July 2001 to termination of the retainer on 29 November 2001. Mr Hickey maintains that a sum of $44,000 was therefore due and owing by Staff to him as at the commencement of Staff's winding up in the following year. 57 There is, however, a question as to the identity of the company obliged to pay the weekly retainer. The conversation in which the weekly fee was agreed did not specify which of the Greenfold Group companies was to pay it. It is, however, clear (particularly from bank statements) that the fee was always paid by Staff and not by any other company. That is, to my mind, a sufficient basis for a finding that the contractual commitment was a commitment of Staff. An alternative connotation suggested by Mr Martin SC for Mr Hickey is that the payment obligation was an obligation of all the Greenfield Group companies jointly and severally. On that alternative basis also, the debt can be seen to be a debt of Staff. 58 Section 553C of the Corporations Act is in these terms: "(1) Subject to subsection (2), where there have been mutual credits, mutual debts or other mutual dealings between an insolvent company that is being wound up and a person who wants to have a debt or claim admitted against the company: (a) an account is to be taken of what is due from the one party to the other in respect of those mutual dealings; and (b) the sum due from the one party is to be set off against any sum due from the other party; and (c) only the balance of the account is admissible to proof against the company, or is payable to the company, as the case may be. (2) A person is not entitled under this section to claim the benefit of a set-off if, at the time of giving credit to the company, or at the time of receiving credit from the company, the person had notice of the fact that the company was insolvent." 59 It is well established that this section operates at the commencement of a winding up: see Gye v McIntyre [1991] HCA 60; (1991) 171 CLR 609; Stein v Blake [1995] UKHL 1; [1996] AC 243; Barton v Atlantic 3 Financial (Australia) Pty Ltd [2004] QSC 376; (2004) 212 ALR 348. The section operates in such a way as to produce a net balance owing by one party to the other, which net balance is either recoverable by the company in liquidation or provable in its winding up. 60 My conclusion is that s 553C did operate in the way for which Mr Hickey contends. Once Staff passed into creditors voluntary winding up pursuant to s 446A, it must be taken to have been "an insolvent company that is being wound up". The effect of the section is therefore that, following commencement of the winding up of Staff, Mr Hickey has not been indebted to Staff in respect of the claimed $20,600 – subject, however, to a possibility raised by counsel for Mr Treadwell to which I must now turn. 61 Section 553C(1) did not operate to effect a set-off as between the $20,600 and the $44,000 if, at the time Mr Hickey gave credit to Staff or received credit from Staff (being, on the facts, before termination of his retainer on 29 November 2001), he "had notice of the fact that the company was insolvent". This is the effect of s 553C(2). It was submitted on behalf of Mr Treadwell that Mr Hickey had such notice at relevant times before 29 November 2001. 62 Section 553C(1) refers to "the fact that the company was insolvent", thus emphasising that the question whether a company is insolvent at a particular time is a question of fact: Powell v Fryer [2001] SASC 59; (2001) 159 FLR 433 at [73]. Section 553C(2) will operate to deny access to s 553C(1) if two conditions are satisfied at a time to which s 553C(2) refers: first that, as a matter of fact, the company was insolvent at that time; and second, if the person claiming the benefit of set-off had notice of the fact of insolvency at that time. 63 It was accepted by Mr A G Rogers of counsel who appeared for Mr Treadwell that the factual inquiry into insolvency necessary in this context is the same as that which the court would make upon, for example, an application for winding up on the insolvency ground or an application for relief on the basis of insolvent trading. The court must find, in terms of s 95A of the Corporations Act, that at the time in question the company was not able to pay all its debts as and when they became due and payable. An inquiry is therefore necessary into the extent and nature of the debts, the times at which they were due and payable, the extent of the cash the company had, the extent and nature of its other assets, any capacity it had to raise capital and a number of other matters relevant to the "cash flow test" which is recognised in the case law as the principal method of deciding insolvency. An indication of the scope and nature of the inquiry may be gained from the following principles set out by Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation [2001] NSWSC 621; (2001) 53 NSWLR 213 at 224-225: "(i) whether or not a company is insolvent for the purposes of the Corporations Act (Cth), ss 95A, 459B, 588FC or 588G(1)(b), is a question of fact to be ascertained from a consideration of the company's financial position taken as a whole; (ii) in considering the company's financial position as a whole, the Court must have regard to commercial realities. Commercial realities will be relevant in considering what resources are available to the company to meet its liabilities as they fall due, whether resources other than cash are realisable by sale or borrowing upon security, and when such realisations are achievable; (iii) in assessing whether a company's position as a whole reveals surmountable temporary illiquidity or insurmountable endemic illiquidity resulting in insolvency, it is proper to have regard to the commercial reality that, in normal circumstances, creditors will not always insist on payment strictly in accordance with their terms of trade but that does not result in the company thereby having a cash or credit resource which can be taken into account in determining solvency; (iv) the commercial reality that creditors will normally allow some latitude in time for payment of their debts does not, in itself, warrant a conclusion that the debts are not payable at the times contractually stipulated and have become debts payable only upon demand; (v) in assessing solvency, the court acts upon the basis that a contract debt is payable at the time stipulated for payment in the contract unless there is evidence, proving to the court's satisfaction, that: • there has been an express or implied agreement between the company and the creditor for an extension of the time stipulated for payment; or • there is a course of conduct between the company and the creditor sufficient to give rise to an estoppel preventing the creditor from relying upon the stipulated time for payment; or • there has been a well established and recognised course of conduct in the industry in which the company operates, or as between the company and its creditors as a body, whereby debts are payable at a time other than that stipulated in the creditors' terms of trade or are payable only on demand: (vi) it is for the party asserting that a company's contract debts are not payable at the times contractually stipulated to make good that assertion by satisfactory evidence." (References omitted) 64 Proof of insolvency often entails examination of a number of so-called "indicia of insolvency": see, for example, the list in Australian Securities and Investments Commission v Plymin [2003] VSC 123; (2003) 175 FLR 124 at [386]. 65 In the present case, Mr Treadwell advances a particular contention as to the insolvency of Staff, that is, that it was insolvent at 30 June 2001 and continued in a state of insolvency thereafter. Several matters are put forward as a basis for such a finding. 66 The first is a balance sheet of Staff at 30 June 2001 or, at all events, a draft of such a balance sheet prepared by Mr Hickey. It shows current liabilities of $1,235,724 and current assets of $827,560. Other assets are negligible and there are no other liabilities. The accompanying profit and loss account shows a substantial loss for the year to 30 June 2001. 67 Reference was next made by counsel for Mr Treadwell to a statement in Mr Treadwell's affidavit that, in July 2001, Mr Hickey said to him: "You are going to have to wind up Staff Solutions. It has a payroll tax liability." 68 Mr Hickey, however, denies having said this. His evidence is that, on 18 June 2001, he had a conversation with Mr Treadwell about the continuing unavailability of funds Mr Treadwell had expected the Greenfold Group to recover through litigation; and that he said to Mr Treadwell: "Well, Staff has to cease trading immediately and we will need to produce a cash flow." 69 Mr Hickey also gave evidence that a cash flow projection for the period 2 July 2001 to 31 March 2002 was prepared. In August 2001, however, Mr Hickey ascertained from the relevant solicitor that the funds Mr Treadwell had told him would be coming from litigation would not be forthcoming at all. This called into question the reliability of the cash flow projection. At Mr Treadwell's request, Mr Hickey took legal advice on how to deal with the financial situation of Staff. The solicitor recommended appointment of an administrator. An administrator was eventually appointed on 26 March 2002. 70 This evidence does not justify a finding that Staff was insolvent at 30 June 2001 and at all times thereafter. The balance sheet alone is not evidence of inability to generate cash to cover the current liabilities. The views expressed by Mr Hickey about immediate cessation of trading do not prove insolvency (I interpolate here that I prefer Mr Hickey's view of what he said: a recommendation to cease trading and prepare a cash flow projection is inherently more likely to have come from an accountant than is a blunt statement of need to "wind up"). And the solicitor's recommendation in August 2001 that an administrator be appointed is, given the terms of s 436A of the Corporations Act, consistent with a view merely that the company was "likely to become insolvent at some future time". 71 Insolvency of Staff on and from 30 June 2001 has not been proved. There is therefore no basis for a finding that Mr Hickey had notice of the fact of insolvency at a time as at which the benefit of set-off is claimed by him by reason of the indebtedness of Staff to the extent of $44,000. 72 The conclusion in this part of the case is accordingly that, because of statutory set-off, Staff's claim for $20,600 maintained against Mr Hickey by Mr Treadwell as assignee fails. Mr Treadwell's entitlement to sue 73 Since I have determined that Mr Treadwell does not succeed on any of the claims in the further amended statement of claim ultimately pressed by him (that is, the claims identified at paragraphs [9], [11] and [12] above), there is really no need for me to address the question of his entitlement to sue as assignee upon common law causes of action that are said to have arisen originally in Staff and perhaps Consulting. I nevertheless proceed to deal briefly with that matter and, in doing so, note immediately the relevant terms of s 12 of the Conveyancing Act 1919: "Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor ..." 74 It is necessary to refer to several deeds of assignment. The first deed is dated 10 September 2002 and is between Staff, Staff's liquidator and Consulting. By that deed, Staff assigned to Consulting "the Hickey Chose in Action", defined as follows: "'the Hickey Chose in Action' means all claims, demands and actions howsoever arising, that Staff has or may have against Richard J Hickey ('Hickey') at the date of this Deed, including but not limited to: (a) Any claim with respect to any loans made to Hickey; (b) Any claim for reimbursement for the cost of Toshiba Tecra 8100 Laptop computer; (c) Any claim with respect to the payments made to Hickey by Staff for the period 1 July 1999 to 31 July 2001; (d) Any claim against Hickey for compensation with respect to Hickey carrying out or falling to carry out work for Staff; (e) Any claim in equity or under the Trade Practices Act against Hickey; (f) Any cross-claim, counter claim or other claim by Hickey arising out of the same substratum of facts comprising the matters in clauses 1.1(a), (b), (c), (d) and (e) of this Deed." 75 The second deed of assignment is dated 26 July 2005 and is between Consulting (through its liquidator) and Mr Treadwell. It recited (indeed, annexed a copy of) the deed of assignment of 10 September 2002 and defined "the Hickey Chose in Action" in the following terms and stated that Consulting assigned it to Mr Treadwell: "'The Hickey Chose in Action' means all claims, demands and actions howsoever arising, that Consulting acquired pursuant to the Deed of Assignment dated 10 September 2002 a copy of which is Annexure 'A' to this Deed." 76 The third deed of assignment is dated 25 October 2007 and is between Consulting (through its liquidator) and Mr Treadwell. By that deed, Consulting assigned to Mr Treadwell "Consulting's Claims", defined as: "'Consulting's Claims' means all claims, demands, causes of action and actions howsoever arising and of whatsoever nature including all claims at Law, all claims in Equity and all claims under any Australian Federal or State Act of Parliament that Consulting has against Richard John Hickey in accordance with the following provisions of this Deed PROVIDED that the causes of action hereby assigned do not include the causes of action assigned in the July 2005 Deed." 77 As regards "the Hickey Chose in Action" as defined by the deed of 10 September 2002, therefore, there was an assignment first by Staff to Consulting and later by Consulting to Mr Treadwell. Furthermore, it may readily be accepted for s 12 purposes in relation to each of the three deeds that it effected an absolute assignment (not by way of charge) of a debt or legal chose in action and that it is Mr Hickey who was, in each case, the debtor or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action. 78 Mr Treadwell contends that notice of the first assignment (that of 10 September 2002 by Staff to Consulting) was given to Mr Hickey by means of service of initiating process in separate proceedings brought against Mr Hickey in 2003 (as well as service of initiating process in these present proceedings). Mr Treadwell further contends that notice of the second assignment (that of 26 July 2005 by Consulting to Mr Treadwell) was given to Mr Hickey through service of initiating process in these proceedings. The contention in relation to the third assignment (Consulting to Mr Treadwell dated 25 October 2007) is that notice was given to Mr Hickey through service of a draft further amended statement of claim in these proceedings. 79 In relation to the first assignment, service of the 2003 initiating process may be accepted as having amounted to notice under s 12 of the Conveyancing Act, so that that assignment was perfected at law before these present proceedings were commenced. In relation to the second and third assignments (Consulting to Mr Treadwell), there can be no suggestion that notice had been given to Mr Hickey before these proceedings were commenced. Mr Treadwell's position, as I have said, is that it was service in these proceedings – of necessity, after their commencement - that constituted notice of assignment to Mr Hickey; and Mr Martin SC put his submissions on the basis that, at the time of commencement, "the legal title to the causes of action resided in Consulting". Joinder of Consulting as a party 80 The assignor to Mr Treadwell, that is, Consulting, was not a party to these proceedings when they were commenced. Mr Treadwell did, however, take certain steps in relation to that aspect a few days before the trial was scheduled to begin. He filed in court a notice of motion seeking an order joining Consulting and its liquidator as defendants. I stood that motion over to the first day of the trial and heard it before embarking upon this trial itself. Over the opposition of Mr Hickey, I ordered that the two additional defendants be joined, indicating that I would give reasons as part of my reasons in the proceedings as a whole. 81 I digress, therefore, to explain why I acceded to the application for joinder of Consulting and its liquidator as additional defendants (noting, I might say, that they positively consented to being joined although, perhaps curiously, not as co-plaintiffs). It was common ground that, at the time these proceeding were commenced, there had been an effective equitable assignment of the choses in action by Consulting to Mr Treadwell (lack of notice to the debtor or person charged being irrelevant to the validity of an equitable assignment of a legal chose in action: Thomas v National Australia Bank Ltd [1999] QCA 525; [2000] 2 Qd R 448); but that the lack of notice meant that there was no assignment at law, with the result that Mr Treadwell could not sue at law but Consulting could: McIntosh v Shashoua [1931] HCA 56; (1931) 46 CLR 494 at 514 (it is Consulting, rather than its liquidator, that was the legal owner of the choses in action and the appropriate additional party). 82 Occupying, as he did, the position of an equitable assignee only when these proceedings were commenced, Mr Treadwell had the rights described by Sir Frederick Jordan in "Chapters on Equity in New South Wales" (1921) at p.54: "The rights of the equitable assignee are as follows: (1) he may use the assignor's name, to sue the person from whom the chose is recoverable, in an action at common law, subject to an obligation to indemnify the assignor against costs; (2) if the assignor refuses to allow his name to be used at common law, or if other special circumstances exist, the assignee may sue the debtor in equity, joining the assignor as a co-defendant; but the assignee is not justified in suing in equity unless for some special reason." 83 Blackburn J pointed out in National Mutual Life Nominees Ltd v National Capital Development Commission (1975) 6 ACTR 1 that the necessity for the name of the assignor in recovery proceedings against the person liable (an element essential at common law) is seen by equity as "so much a formality" that, if the assignor does not consent to be a co-plaintiff, he can be added as a defendant; and if the party sued does not take the technical point of want of party, the court can ignore it. Likewise, in Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512, the Court of Appeal of this court referred to the requirement of joinder of the assignor as "a rule of procedure which may be dispensed with". 84 The principles to which I have referred make it clear that, if the defendant takes the point of want of a necessary party, the court will, virtually as of course, order the joinder of the assignor as a defendant; and that it will not allow an action to be defeated through what equity regards as a common law technicality. A court of equity takes that approach because it sees the assignee as fully entitled in equity and therefore as deserving of its assistance to overcome the technicality thrown up by the common law. It was for that reason that I granted Mr Treadwell's joinder motion before proceeding with the trial of the action. In the course of opposing the making of the joinder order, Mr Martin SC made it clear that the defendant considered the proceedings to be incompletely constituted, so that Mr Treadwell must fail in his claims. That was sufficient to activate the discretion to join the assignor. Effect of the joinder of Consulting 85 A matter canvassed on the hearing of the joinder motion is of wider significance and was also the subject of submissions at trial. It goes to the question whether, even with the assignor joined as a party, the assignee, as plaintiff, can succeed if, because of lack of the notice required by s 12, he did not enjoy what might be termed a fully fledged right of action at common law at the commencement of the proceeding. 86 Mr Martin SC contended upon the hearing of the joinder motion that the application should not be granted because grant of the relief sought would be pointless – in the sense that, even with Consulting as a party, Mr Treadwell could not succeed at trial. That submission was repeated in the course of submissions at the conclusion of the hearing, that is, after the assignor had been joined. 87 I therefore proceed to consider the question whether, as thus submitted, Mr Treadwell could never have succeeded in these proceedings because he did not have at commencement the capacity to sue upon the common law causes of action or to recover the common law relief sought. 88 Mr Martin SC placed particular reliance on the recent decision of Smart AJ in Purdon v Purdon [2007] NSWSC 141. In that case, as here, an assignee instituted proceedings before notice had been given to the debtor. Notice was given after that time and before the proceedings came to trial. Smart AJ said at [124]-[125]: "In the absence of evidence of notice being duly given by a permissible mode of service prior to the institution of the proceedings an action brought by the assignee in his own name by virtue of the statutory provisions must fail: see McDonald v Lloyd (1931) 31 SR (NSW) 415. The assignment is of course effective in equity as between the assignor and the assignee and the assignor could be compelled in equity to allow proceedings to be brought in its name. This would be subject to an acceptable indemnity as to costs and any argument that this should not occur because of JP not complying with cl 1.4 of the Assignment and serving the requisite notice prior to the institution of proceedings against SP. No application to amend was made; it would be incorrect for me to embark upon a discussion of the terms of the Civil Procedure Act 2005, when this has not been made the subject of submissions from counsel." 89 In Purdon v Purdon, however, the assignor had not been made a party and remained a non-party at the time of judgment. There were thus, as it were, two defects operative against the plaintiff at the time the proceedings were commenced: first, absence of the notice necessary under s 12 of the Conveyancing Act to complete his legal title to sue; and, second, absence as a party of the assignor in whom rested the legal title to sue. The first of these was remedied after commencement of the proceedings and before trial. The second was never remedied. 90 Of particular relevance to the case before me are the following observations of Nettle JA in Westbourne Grammar School v Sanget Pty Ltd [2007] VSCA 39 at [8] – [9]: "[I]t is rudimentary that an assignment of a debt or other chose in action is not effective for the purposes of s 134 [ie, the equivalent in Victoria of s 12 of the Conveyancing Act ] until notice of assignment has been given. Until then, an assignee does not have standing at law to sue to recover the debt or other chose in action in the assignee's own name. There is also authority that the notice must be given before the action is brought. That does not mean that a proceeding begun before notice is a nullity. It may be cured by joinder of the assignor, and now, with the advent of Rule 13.08 of the Supreme Court (General Civil Procedure) Rules 2005 and cognate provisions in other jurisdictions, it may be that an assignee could cure its position by giving notice after the institution of the proceeding and amending its statement of claim to allege the fact of notice. But unless and until notice has been given or the assignor has been joined, a proceeding instituted in the name of the assignee cannot proceed to final judgment and it is liable to be stayed, even on appeal, until the formalities are in order. " [footnotes omitted] 91 The footnote to his Honour's statement that there is authority that the notice must be given before the action is brought refers to three cases, Re Westerton; Public Trustee v Gray [1919] 2 Ch 104, McIntosh v Shashoua (above) and Holt v Heatherfield Trust Ltd [1942] 2 KB 1. Statements in all these cases support the proposition that the assignee has no title to sue at law unless and until the legal assignment has been completed by the giving of notice – that being, of course, the proposition upon which the decision of Smart AJ in Purdon v Purdon depended. But in Holt v Heatherfield Trust Ltd (at 5), Atkinson J made the significant additional point that "the assignment entitles the assignee to sue for the debt assigned even before notice is given so long as he joins the assignor on one side or the other". 92 It is thus clear (and logically to be expected) that, although the title to sue at law does not arise in the assignee until notice is given to the debtor, an action commenced by the assignee before that point will be fully and completely constituted if the assignor is a party to it at inception. This is because the party with the title to sue at law is privy to the action. 93 In the present case, of course, Consulting was not made a party to the action at the outset. It became a party after the proceedings commenced by Mr Treadwell as equitable owner of the choses in action had been on foot for a considerable time and as the trial was about to begin. This brings into focus the observation of Nettle JA that a proceeding commenced by an assignee before the giving of notice to the debtor is not a nullity and that the deficiency arising from the absence of notice may be cured by subsequent joinder of the assignor. 94 Nettle JA referred to Weddell v J A Pearce & Major [1988] Ch 26, a case mentioned in submissions. A cause of action in negligence was assigned in February 1986. The writ was issued by the assignee alone on 2 May 1986, at which time no notice of the assignment had been given to the defendants. Scott J rejected a submission that the action was a nullity. His conclusion was stated thus at 40: "[A]n equitable assignee can sue in his own name. He cannot, however, recover damages or a perpetual injunction without joining as a party the assignor in whom legal title to the chose in action is vested. The same would apply to recovery of a debt. The reason for this is, however, a pragmatic one. The debtor must not be at risk of suit by the legal owner of the chose. To put the point another way, the debtor must, if he is adjudged liable, be in a position to obtain a complete discharge from his liability by paying the plaintiff, the equitable assignee." 95 Scott J quoted and relied on a passage in the speech of Viscount Cave LC in Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1 at 14. The Lord Chancellor began by observing that an equitable owner may commence proceedings alone and obtain interim protection in the form of an interlocutory injunction. An equitable owner does not need assistance to obtain that purely equitable remedy. His Lordship then said that, beyond that, the equitable owner of a chose in action must "in due course" cause to be a party the person having the legal right to demand it. The reason was then stated: "If this were not so, a defendant after defeating the claim of an equitable claimant might have to resist like proceedings by the legal owner, or by persons claiming under him as assignees for value without notice of any prior equity, and proceedings might be indefinitely and oppressively multiplied." 96 As Windeyer J observed in Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9 at 29-30: "The assignor (the creditor) as legal owner, the debtor and any assignees of any other parts of the debt were all necessary parties, so that all the obligations of the debtor and the rights of all persons interested in the fund might be established by the decree". 97 Wedell v J A Pearce & Major was also referred to by McPherson JA in Equus Financial Services Ltd v Glengallan Investments Pty Ltd (unreported, QCA, 19 May 1994, BC9404553). The Queensland Court of Appeal there allowed an appeal from an order of summary dismissal of an action brought by an equitable assignee who had not joined the assignor as a party. McPherson JA said: "As Lord Macnaghten said in William Brandt's Sons & Co v Dunlop Rubber Company Limited [1905] AC 454, 462, no action is now dismissed for want of parties. To countenance this application to strike out the action would go far towards resurrecting the old rules for joinder of parties along with many of their abuses, which it was the avowed object of the Judicature system to eliminate. See Werdeman v. Societe Generale d'Electricite (1881) 19 Ch 246, 251, 254, 255; Carrick v. Armstrong [1969] QdR 185, 191-192. Now under Order 3, rule 11 of The Rules of the Supreme Court , the Court must not refuse to determine a cause or matter by reason only of non-joinder of parties; instead, the names of anyone who ought to have been joined may be added, either as plaintiffs or as defendants, if their presence is necessary in order to enable the Court to adjudicate effectually and completely, and settle all the questions involved. In an action such as the present it was therefore not correct procedure to apply to strike out the action on the ground that the assignment alleged in favour of the plaintiff was defective or incomplete. . . The matter of non-joinder arises here only if the assignment is not statutory but simply equitable, or if it is at present nothing more than a mere agreement to assign. To cover those possibilities the assignor Rural Finance Pty. Ltd. should have been made a co-plaintiff with Equus Financial Services Limited. To achieve that now, Rural's written consent is needed under Order 3, rule 11. If it is not obtained, Rural may be joined co-defendant : cf. Meldrum v. Scorer (1887) 56 LT 471. The reason for making the assignor a party to an action brought by an equitable assignee is to ensure that the assignor is bound by the outcome of the proceedings. If the assignor is not bound, payment by the debtor to the assignee in accordance with the judgment involves the risk that it will not necessarily discharge the debt. See Weddell v. J A Pearce & Major [1988] Ch 26, 40-41. Even so, the court does not always insist on joinder if satisfied that it can, in terms of Order 3, rule 11, effectually and completely adjudicate without adding parties. An example is where it can be predicated that, apart from the plaintiff assignee in equity, no one has an interest in the subject debt, so that the assignor is in substance a bare trustee for the assignee. In cases like that joinder of the assignor has been dispensed with. See William Brandt's Sons & Co v Dunlop Rubber Co Limited [1905] AC 454, 462; Camfield Pastoral Company v Dixon [1972] QdR 289, 305; Calaby Pty Ltd v Ampol Pty Ltd (1990) 71 NTR 1, 18-19." 98 The decided cases thus make it clear that an action commenced by an assignee before the giving of notice to the debtor or other person bound – that is, an action commenced by a mere equitable assignee of a legal chose in action – is not a nullity or liable to be struck out or dismissed out of hand. But such an action will not be an appropriate vehicle for the ultimate recovery of a remedy at law unless and until the assignor who is alone entitled to sue at law is a party. By joining the assignor at a later stage ("in due course", to use Viscount Cave's words), the mere equitable assignee by whom the action was initiated makes that existing action a means of obtaining the common law remedy. The action attains that quality because the joinder ensures that the assignor is privy to the eventual judgment and thereby disabled from afterwards asserting the same cause of action against the defendant. It is because the assignor is a party when judgment is ordered that the possibility of double recovery is forestalled. It is beside the point that the assignor was not a party when the equitable assignee acted alone to initiate the proceedings or at any other time before judgment. 99 There was brief reference by Mr Martin SC upon the hearing of the joinder motion to the possibility that, if the proceedings had been commenced only at the time of the filing of that motion, Mr Hickey may have had the benefit of a time bar in respect of the assigned rights of action asserted against him. It is therefore pertinent to note that, in Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210; (2000) 48 NSWLR 709, Santow J held that an action commenced by an equitable assignee of a legal chose in action who does not make the assignor a party is, in terms of s 63(2) of the Limitation Act 1969, "an action . . . brought on the cause of action". 100 In this case, Mr Treadwell sued as equitable assignee only. Because no notice of the assignment had been given to Mr Hickey when Mr Treadwell commenced the proceedings, the legal title to the choses in action was at that time in Consulting. If things had remained in that state at the conclusion of the proceedings and it had been established that Mr Hickey was liable in damages, judgment would not have been ordered in favour of Mr Treadwell (I leave to one side the possibility mentioned at the end of the above extract from the judgment of McPherson JA in Equus Financial Services Ltd v Glengallan Investments Pty Ltd). The position would have been as in Purdon v Purdon. When Consulting was joined as a party, however, the situation changed. Mr Treadwell's title was in no way improved. But because Consulting, as a party at the time of judgment, would have been bound by the judgment (so that neither Consulting itself nor any other assignee could have asserted the legal causes of action anew against Mr Hickey), Mr Treadwell, although only still an equitable assignee, would have been awarded the common law relief warranted by those causes of action. Disposition 101 Mr Treadwell has not established an entitlement to any of the relief he seeks. The orders of the court will therefore be as follows: 1. On the further amended statement of claim, order that all claims by Robin Ernest Treadwell against Richard James Hickey be dismissed and that judgment be entered for Richard James Hickey against Robin Ernest Treadwell. 2. Order that Robin Ernest Treadwell pay Richard James Hickey's costs of the proceedings. ********** 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.