In the Matter of DB Mahaffy & Co Pty Limited [2012] NSWSC 1286

Supreme Court New South Wales

Medium Neutral Citation: In the Matter of DB Mahaffy & Co Pty Limited [2012] NSWSC 1286 Hearing dates: 10 September 2012 Decision date: 10 September 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Interlocutory process dismissed with costs Catchwords: CORPORATIONS - external administration - application to set aside creditor's statutory demand - application by director to be joined as plaintiff - whether director would have standing to be a plaintiff - UCRP r 7.1(2) requires that a solicitor be appointed to act for defendant company Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 7.1(2), r 7.1(3) (Cth) Corporations Act 2001, s 459G Cases Cited: In the Matter of DB Mahaffy & Co Pty Limited [2012] NSWSC 776 Category: Interlocutory applications Parties: David B Mahaffy (Applicant) DB Mahaffy & Associates Pty Ltd (Plaintiff) Deputy Commissioner of Taxation (Defendant) Representation: Counsel: David Mahaffy (In Person) (Applicant) Abood (Solicitor) (Respondent) Solicitors: David Mahaffy (In Person) (Applicant) ATO Legal Services Branch (Respondent) File Number(s): 2011/383182

Judgment (ex tempore) 1David Mahaffy claims an order "that David B Mahaffy (an individual) be joined to the Supreme Court proceedings, case number 2011/383182, as director of DB Mahaffy & Associates Pty Ltd", the plaintiff in those proceedings. 2The substantive proceedings are an application by the plaintiff pursuant to (Cth) Corporations Act 2001, s 459G, to set aside a creditor's statutory demand served on it by the defendant Deputy Commissioner of Taxation. There is no apparent basis upon which an individual, who happens to be the sole director of the company in question, has standing to be joined as a party to the company's application to set aside the creditor's statutory demand, or to make such an application themselves. The proper plaintiff, and the only proper plaintiff, in such proceedings is the company on which the demand has been served. There is therefore no apparent basis upon which Mr Mahaffy as an individual can be joined as a party to the proceedings. 3The application is made in light of a judgment I gave on 2 July 2012 [In the Matter of DB Mahaffy & Co Pty Limited [2012] NSWSC 776], in which I made orders that unless a notice of solicitor acting was filed by a legal practitioner retained by the plaintiff, the proceedings be stayed. That order was made in circumstances that the present proceedings had purportedly been brought by the company DB Mahaffy & Associates Pty Ltd without a solicitor acting for it. As I then pointed out, (NSW) Uniform Civil Procedure Rules 2005, r 7.1(2), provides that a company within the meaning of the Corporations Act may commence and carry on proceedings in any court by a solicitor or by a director of the company, but r 7.1(3) provides that in the case of proceedings in the Supreme Court, a company can commence proceedings by a director "only if the director is also a plaintiff in the proceedings". Mr Mahaffy is not also a plaintiff in the proceedings, and does not have standing to be a plaintiff in those proceedings. 4Accordingly, as I pointed out on 2 July, unless a solicitor acts for the plaintiff, these proceedings have not been regularly or properly commenced. They therefore remain stayed. 5I order that the interlocutory process filed on 3 September 2012 be dismissed with costs.