Abraham v The Joadja Whiskey Company Pty Ltd
[2007] FCA 823
•4 May 2007
FEDERAL COURT OF AUSTRALIA
Abraham v The Joadja Whiskey Company Pty Ltd [2007] FCA 823
YAEL ABRAHAM v THE JOADJA WHISKEY COMPANY PTY LTD
(ACN 100 572 558)NSD 507 OF 2007
YAEL ABRAHAM v JASMMAN PTY LTD (ACN 092 769 214)
NSD 508 OF 2007LINDGREN J
4 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 507 OF 2007
BETWEEN:
YAEL ABRAHAM
PlaintiffAND:
THE JOADJA WHISKEY COMPANY PTY LTD
(ACN 100 572 558)
Defendant
JUDGE:
LINDGREN J
DATE OF ORDER:
4 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The proceeding be transferred to the Supreme Court of New South Wales.
2. These orders be entered expeditiously.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 508 OF 2007
BETWEEN:
YAEL ABRAHAM
PlaintiffAND:
JASMMAN PTY LTD (ACN 092 769 214)
Defendant
JUDGE:
LINDGREN J
DATE OF ORDER:
4 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The proceeding be transferred to the Supreme Court of New South Wales.
2. These orders be entered expeditiously.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 507 OF 2007
BETWEEN:
YAEL ABRAHAM
PlaintiffAND:
THE JOADJA WHISKEY COMPANY PTY LTD
(ACN 100 572 558)
Defendant
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 508 OF 2007
BETWEEN:
YAEL ABRAHAM
PlaintiffAND:
JASMMAN PTY LTD (ACN 092 769 214)
Defendant
JUDGE:
LINDGREN J
DATE:
4 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These reasons for judgment relate to proceedings NSD 507 of 2007 and NSD 508 of 2007. In each of these proceedings, the plaintiff, Ms Abraham, seeks an order that the defendant company be wound up in insolvency for failure to comply with a statutory demand. Each defendant applies for an order that the proceeding be transferred to the Supreme Court of New South Wales.
The applications for transfer are made under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and s 1337H of the Corporations Act 2001 (Cth) (“the Corporations Act”). The former provision is to the effect, relevantly, that where a proceeding is pending in this Court and it appears to this Court that the proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of New South Wales, and it is more appropriate that the proceeding in this Court be determined by the Supreme Court, this Court shall transfer the proceeding to the Supreme Court.
The Corporations Act provision is to the effect, relevantly, that this Court may transfer a proceeding in this Court with respect to a civil matter arising under the Corporations Act, to a State or Territory Supreme Court, if it appears to this Court that “having regard to the interests of justice, it is more appropriate” for the proceeding to be determined by a State or Territory Supreme Court provided it has jurisdiction in respect of the matter for determination.
There are two relevant proceedings pending in the Supreme Court of New South Wales. The first is one brought by the defendant in proceeding NSD 507 of 2007, The Joadja Whiskey Company Pty Ltd (“Joadja”), and is proceeding 5988 of 2006 in the Equity Division of that Court. The other is brought by the defendant in proceeding NSD 508 of 2007, Jasmman Pty Ltd (“Jasmman”), and is proceeding number 5987 of 2006 also in the Equity Division of that Court. In the Equity Division proceedings, Joadja and Jasmman, respectively, apply under s 459G(1) of the Corporations Act for an order setting aside a single statutory demand dated 15 November 2006 which was addressed to both of them.
The statutory demands have their genesis in an order that was made in the Industrial Relations Commission of New South Wales by Commissioner Macdonald on 4 May 2006: see Yael Abraham v Jasmman Pty Limited [2006] NSWIRComm 1047. That proceeding was brought by Ms Abraham for unfair dismissal, pursuant to s 84 of the Industrial Relations Act 1996 (NSW). Ms Abraham was successful, an order being made that “the Respondent” in that proceeding pay her compensation of $22,500 within 21 days from the date of the decision, that is, within 21 days from 4 May 2006.
Apparently, Ms Abraham wrote to the Commission inquiring whether the order was made against both companies or only against Jasmman. According to what I was told, without further notice to her, or any notice to either company, on 22 December 2006 the Commissioner issued a supplementary decision (Yael Abraham v Jasmman Pty Limited and The Joadja Whiskey Company Pty Ltd (No 2) [2006] NSWIRComm 1184) to the effect that “the respondent” meant both Joadja and Jasmman. It was on the basis of that clarification that Ms Abraham served the single statutory demand on both companies, which led to the two proceedings to set aside in the Supreme Court. Those proceedings are yet to be heard, but apparently an order has been made in them extending the time for compliance with the statutory demand.
Ms Abraham states today that she made it clear to the companies that while reserving her right to argue that the statutory demand was valid, she did not intend to rely upon it. I note that the defendants’ complaints concerning that statutory demand were that it was a single demand addressed to two companies. Apparently it is also common ground that the notice stated the incorrect rate of interest and it may be that there were other complaints about the form of the document.
Be all this as it may, the fact is that Ms Abraham, while reserving her position, issued two further statutory demands, one addressed to each company on 5 February 2007. The two winding up proceedings before me are based upon non-compliance with those statutory demands.
Ms Abraham resists the motion for transfer, saying that it would be unjust for the hearing of the winding-up applications to be delayed. However, the Supreme Court is able to assess the case for an early hearing of these two proceedings, as well as or better than I am able to do. The Supreme Court has before it the pending applications to set aside the earlier statutory demand.
In the course of argument today, reference has been made to other proceedings. Apparently on 19 April 2007 in the Supreme Court of New South Wales, Equity Division, Hamilton J made an order transferring a further proceeding commenced by Ms Abraham from the District Court of New South Wales to the Supreme Court. That District Court proceeding is number 30 of 2006 in the Property Relationships List in the Wollongong Registry of the District Court, and is brought against a director of the companies, Mark Longobardi.
Also on 19 April 2007, Hamilton J ordered that a proceeding in the Chief Industrial Magistrate’s Court (proceeding number 113516) be transferred to the Supreme Court. That proceeding relates to a claim by Ms Abraham to recover wages from both companies.
I agree with Ms Abraham that those two other proceedings may have no relevance to the two winding up proceedings. I note that so far as the evidence goes, there is no dispute that at least Jasmman is liable to Ms Abraham under the order made in the Industrial Relations Commission.
One thing, however, is clear; that is, the close relationship between the two Supreme Court proceedings in which Joadja and Jasmman have applied to set aside the statutory demand made upon both of them jointly, and these present two winding up proceedings before me. They should all be dealt with in the one court.
In my view, this Court’s power under both statutory provisions referred to at [2] above to transfer the winding up proceedings to the Supreme Court of New South Wales is enlivened and should be exercised.
For the above reasons, in each proceeding I order that the proceeding be transferred to the Supreme Court of New South Wales.
I order that the order for transfer be entered expeditiously. There will be no order for costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 28 May 2007
In each proceeding:
The Plaintiff appeared in person.
Counsel for the Defendant: Ms T Bartush-Peek Solicitors for the Defendant: Our Lawyers Our Conveyancers Date of Hearing: 4 May 2007 Date of Judgment: 4 May 2007
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