Flooring Xtra Stores Pty Ltd v Guymer
[2020] VCC 704
•28 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-06251
| FLOORING XTRA STORES PTY LTD (ACN 602937986) Formerly ROSEBUD FLOORING XTRA (AUST) PTY LTD | First Plaintiff |
| and | |
| FLOORING XTRA (AUST) PTY LTD (ACN 114808293) | Second Plaintiff |
| V | |
| SARAH JANE GUYMER (AS TRUSTEE OF THE GUYMER FAMILY TRUST AND IN HER PERSONAL CAPACITY) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 28 May 2020 | |
CASE MAY BE CITED AS: | Flooring Xtra Stores Pty Ltd & Anor v Guymer | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 704 | |
REASONS FOR JUDGMENT
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Subject: Application for Stay of Proceedings
Catchwords: Service and Execution of Process Act 1992 (Cth), section 20; whether claim by Victorian incorporated companies for debt allegedly owing by NSW resident natural person should be stayed in favour of hearing in District Court of NSW; whether applicant needs to show clear and compelling grounds for stay; factors except financial circumstances of parties evenly balanced; stay granted
Legislation Cited: Service and Execution of Process Act 1992 (Cth);
Cases Cited:L&H Group v Edwards [2018] VCC 23; Fertico v Murray River Corn [2002] SADC 89; Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54; Equus Financial Services Ltd v Lah (Unreported, VSC FC, 8 September 1993, Brooking, Ormiston & Vincent JJ); in Voth v Manildra Flour Mills Proprietary Ltd & Anor (1990) 171 CLR 538; Boart Longyear Pty Ltd v Coburn & Crocker (t/as Concrete Cutting & Sealing Co) (Unreported, VSC, 15, 16 and 18 June 1998, O’Bryan J), St George Bank v McTaggart [2003] QCA 584, Goh, Ambrosini & Hollingsworth v BPH Energy Ltd & Grandbridge Ltd [2019] NSWDC 559; De Beers Consolidated Mines, Limited v Howe (Surveyor of Taxes) [1906] AC 455; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Judgment: 1. Within 14 days of this day the parties must bring in short Minutes to give effect to these reasons.
2. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G Lubofsky | Rotman & Morris |
| For the Defendant | Mr A Fleming | Elizabeth Fleming & Associates |
HIS HONOUR:
1 Ms Guymer lives at Surfside in New South Wales. Late last year the plaintiffs commenced this proceeding against her, seeking recovery on behalf of the first plaintiff company of $49,919.36 as a debt or liquidated sum, or alternatively damages and the sums of $95,624.55, said to be a debt, and $9,731.90 for goods sold and delivered on behalf of the second plaintiff company or, alternatively, damages. These amounts are said to arise out of a contract for the sale of a business in the form of the 2015 Contract for Sale of Business Agreement published by the Law Society of New South Wales, whereby Ms Guymer, as trustee of the trust, sold a business known as “Homemaker Carpets Flooring Xtra, Unit 8, the Homemaker Centre, Cranbrook Road, Batemans Bay, NSW”.
2 Paragraph 50 of the Agreement, headed “Franchise Agreement”, was a warranty by Ms Guymer that at the time of the agreement she was “currently a Franchisee acting as the sole surviving Trustee of the Guymer Family Trust”. The Franchise Agreement was said to be one in which Flooring Xtra (Aust) Pty Ltd was the master franchisee and Ms Guymer and her late husband, as trustees of the Guymer Family Trust, were the franchisee. The following Special Condition No. 51 provided for payment by Ms Guymer to Flooring Xtra (Aust) Pty Ltd, the second plaintiff. This clause apparently was the basis for the second plaintiff’s claim. The claim for $9,731.90, on behalf of the second plaintiff, for goods sold and delivered, seems to have been on the basis of a separate freestanding transaction. The Sale of Business Agreement is Exhibit “A” to an affidavit sworn by Ms Guymer, 25 February 2020.
3 Solicitors acting for Ms Guymer filed a summons dated 4 March 2020, seeking a stay of this proceeding pursuant to s20 of the Service and Execution of Process Act 1992 (Cth). According to her first affidavit, Ms Guymer is “suffering financial hardship”. She said that she and her husband were trustees of their family trust and carried on business as franchisees under the franchise arrangement already referred to. She said the:
“… business struggled financially. My husband died on 2 July 2017, the cause of death was cancer. At the time of my husband’s death we had debts to the Franchisor. I attempted to continue the business alone but was unable to trade out of our difficulties. In about November 2017 the First Plaintiff purchased the franchise business … [for] the sale price of $200,000”. (Defendant’s affidavit, signed 23 February 2020, paragraph 5)
4 Ms Guymer said the first plaintiff agreed to employ her for a period of two years, though she was no longer in that employ.
5 She said she received $221,811.30 from insurer NRMA in or about August 2018, relative to her husband’s death, paying $193,500 to “the Second Plaintiff” and retaining $28,311.30 “to assist me to pay for necessities. Two other insurers rejected applications under their policies”. (Ibid, paragraph 6).
6 She said that she had been forced to sell her residence in Catalina, New South Wales. She said “the Franchisor” had lodged a caveat, refusing to withdraw it unless it received the net proceeds of sale (presumably after paying out prior ranking mortgages) which it received in the sum of $147,399.42 (Ibid, paragraph 7).
7 According to Ms Guymer, she is unemployed, relying on Centrelink benefits. Her previous employer had been put out of business by last summer’s bushfires. She said she owned a motor vehicle worth $9,000 and had to meet weekly rental of $380 per week, and food and other necessities. (Ibid, paragraph 8).
8 Amongst the claims against Ms Guymer is an alleged failure to account for profits derived from the business which was sold. She said she lost business records in last summer’s bushfires and will need the assistance of an accountant and others to reconstruct accounts for the purpose of defending herself against the plaintiffs’ claim in this regard. She said she believed that no such debt as alleged in favour of the plaintiffs existed. (Ibid, paragraph 12) Her accountant is resident in Batemans Bay, New South Wales. Her solicitor carries on practice in Sydney, Batemans Bay and Moruya, New South Wales. She added “[p]ersons who can give evidence about how takings of the business were managed are also resident in Batemans Bay, New South Wales”. (Ibid, paragraph 13) She said she has good defence to the plaintiffs’ claims and believes she may be able to lodge an effective crossclaim “by reason of the breach of contract by the Franchisor in lodging the caveat and causing me to be denied the use of the net proceeds of sales”. (paragraphs 14-15).
9 Mr McLeod, the plaintiffs’ management accountant, swore an affidavit on 24 March 2020. He said the plaintiffs were part “of the Flooring Xtra group of companies which operate company-owned and franchised businesses for the sale and installation of flooring products”. (paragraph 3) He said the second plaintiff was “an associated company of the first plaintiff … and the vehicle through which flooring products are sold to franchisees”. (paragraph 3)
10 These companies had a registered office at Level 1, 420 Spencer Street, West Melbourne, with a business address at 24 Silkwood Rise, Carrum Downs. (paragraph 4). According to Mr McLeod, “the plaintiffs will likely call two witnesses in the trial in the proceeding: myself and Scott Enno, Managing Director”. (paragraph 13) He and Mr Enno live in Melbourne and work at the business’s head office in Carrum Downs.
11 Mr McLeod expressed scepticism as to the statement that Ms Guymer was unemployed. He said that she was served with the Writ and Summons at the address of the business which was the subject of the sale transaction in Cranbrook Road, Batemans Bay. He said, “[i]t is my opinion that the defendant was working at Flooring Xtra Batemans Bay and was served there for that reason”. (paragraph 15). Mr McLeod also noted that Mr Graj of the plaintiffs’ solicitors, Rotman & Morris, had sent Letters of Demand to Ms Guymer, threatening proceedings in the County Court of Victoria, and received no challenge to this Court’s jurisdiction in response. (paragraph 18) Ms Guymer swore an affidavit in response on 25 March. She gave a narrative of her employment history in the last couple of years, stating that she had resigned from Flooring Xtra Batemans Bay on 13 April 2018, then worked at another outlet known as “Hip Pocket” in Batemans Bay for 10 weeks, but was let go in July 2018. She said she had not worked at either of those places since. She said she was present at the Flooring Xtra business in Batemans Bay for service of the Writ, not because this was her place of employment, but because she had travelled there in response to a telephone call indicating that a ”Jeremy” was there with documents to give her.
Section 20
12 The Writ was served on Ms Guymer in New South Wales pursuant to the terms of the Service and Execution of Process Act 1992 (Cth). Section 20 provides inter alia:
“(1) This section does not apply in relation to a proceeding in which the Supreme Court of a State is the court of issue.
(2) The person served may apply to the court of issue for an order staying the proceeding.
(3)The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters.
(4) The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:
(a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
(b) the place where the subject matter of the proceeding is situated; and
(c) the financial circumstances of the parties, so far as the court is aware of them; and
(d) any agreement between the parties about the court or place in which the proceeding should be instituted; and
(e) the law that would be most appropriate to apply in the proceeding; and
(f) whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
(5) The court’s order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in issue without delay or undue expense.
(6) The court may determine the application for an order without a hearing unless the applicant or a party objects.
… .”
13 Ms Guymer has stated she is agreeable to her applications being determined without a hearing.
14 It will be seen that this section applies only to proceedings commenced other than in a State Supreme Court.
Contentions on behalf of Ms Guymer
15 In written submissions dated 26 March 2020, Ms Guymer’s solicitors contended that the appropriate court to determine this dispute was the District Court of New South Wales. They said the relevant factor, the financial circumstances of the parties, “weigh overwhelmingly towards the defendant's application”. (paragraph 9) They added that her legal representatives’ practice was in New South Wales and they were familiar with the facts of her case and the procedures in New South Wales’ courts. They continued:
“In this case there are differences in applicable law and there are also significant procedural differences between the Courts of the two States.” (Ibid)
16 Ms Guymer, they said, was “plainly far less able to bear the imposition of such additional costs”. (Ibid) They referred to a decision of Judge Marks in this Court of L&H Group v Edwards [2018] VCC 23 at [57], where her Honour stated it could not be assumed that witnesses could necessarily give their evidence by video link. A trial judge might reject such an application based on such issues as “credibility, access to documents, the need for an expert witness to have access to a plaintiff, etc.” (Ibid, paragraph 10) They referred to a judgment of Judge Kitchen of the District Court of South Australia, Fertico v Murray River Corn [2002] SADC 89 [38]-[42].
17 Turning to the matters for consideration in accordance with s20(4) of the Act, they said Ms Guymer would, if the matter proceeded in this Court, have to undertake expenditure “in the first instance” for travel and accommodation, and they said the subject matter of the proceeding was a “contract made in NSW concerning transactions in NSW”. (Ibid, paragraph 12(b)) They said Ms Guymer had “extremely limited means”. The Sales Agreement provided for proceedings to be instituted in either New South Wales or Victoria, the choice of law and jurisdiction in the Franchise Agreement which was discharged by the Contract of Sale was, they said, irrelevant. They said there was no appreciable difference “under common law between the law of NSW and Victoria” (Ibid, paragraph 12(e)) and there were no related proceedings. As to the Letter of Demand giving intention to sue in Victoria, they said Ms Guymer “could not be expected to turn her mind to the appropriate forum in the circumstances of the correspondence”. (Ibid, paragraph 17)
Submissions on behalf of the Plaintiffs
18 In a written submission by Mr G Lubofsky of the Victorian Bar on behalf of the plaintiffs, it was said that the onus lay on Ms Guymer to “establish [her] entitlement to a stay under s20”. (paragraph 4) That onus demanded the establishment of a “‘clear and compelling basis for the relief sought’”, (Ibid) referring to Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54, 58. It was not sufficient, he said, to prove that the New South Wales District Court was appropriate to hear the dispute. It was necessary, rather, to show that it was the more appropriate court. Equus Financial Services Ltd v Lah (Unreported, VSC FC, 8 September 1993, Brooking, Ormiston & Vincent JJ).
19 This Court, he said, was the more appropriate one. While Ms Guymer resided in New South Wales, the plaintiffs’ registered offices and principal places of business were in Victoria, “[t]his factor does not favour one forum over another”. (paragraph 8) As to witnesses, the plaintiffs intended calling two Victorian-based witnesses and the only witness identified by Ms Guymer was the accountant who “might” be required to give evidence. They said she did not explain “why that is the case”. (paragraph 9) A trial in New South Wales would cause greater inconvenience to the plaintiffs.
20 It could not be said, according to the submission, that the subject matter of the proceeding was in New South Wales. One party was in New South Wales, the other parties were in Victoria. The Franchise Agreement was, he said, governed by the laws of the State of Victoria, although the franchise was located in New South Wales. Therefore, “the parties’ business relationship, has a closer connection to Victoria than to New South Wales”. (paragraph 11)
21 It was conceded that the claim for goods sold and delivered by the second plaintiff had “a closer nexus to New South Wales than to Victoria (although the fact remains that one of the counterparties to that arrangement is a Victorian entity)” (paragraph 12), but the small quantum of the claim means this consideration “should be given little weight in the context of this proceeding”. (paragraph 12)
22 It was said that the arrangement adopted in recent weeks to deal with the COVID-19 emergency facilitated, encouraged and perhaps mandated the conduct of trials by video. Therefore, there would be no difficulty in Ms Guymer’s accountant giving evidence by video link. (paragraph 14) Noting Special Condition No. 54 of the Sale Contract, permitting proceedings to be commenced either in a New South Wales or Victorian Court, success of this application would entail an abrogation of that agreement. The Franchise Agreement, it was said, entailed an exclusive jurisdiction clause for Victorian Courts. (paragraphs 16-17)
23 Mr Lubofsky said there was “no substantive difference between the laws of Victoria or New South Wales, so this factor does not carry any weight”. (paragraph 18) Finally, reference was made to the Letter of Demand threatening proceedings in this Court, which did not elicit an objection to jurisdiction. (paragraph 19) It was said there was “clear and compelling basis for the relief sought” and at the highest, the District Court of New South Wales and this Court may be thought equally appropriate as forums. The New South Wales Court was not “more appropriate”. (paragraph 20)
Conclusions
24 In Nygh and Davies, Conflict of Law in Australia (7th ed, Buttersworth, 2002, page 50, [4.17]), the learned authors, having quoted the terms of s20(4) setting out the relevant factors to inform the determination of an application under s20, continued:
“… but the plaintiff’s choice of the place of issue is not itself a relevant consideration
This last qualification makes it clear that contrary to the common law test laid down by the High Court in Voth v Mamildra Flour Mills Pty Ltd ([1990] 171 CLR 538), the court should not start off with a presumption in favour of the plaintiff’s choice with the defendant having the burden to prove that the forum is ‘clearly inappropriate’. Instead the court should determine which is the more appropriate forum without placing an onus on either side.” (Nygh and Davies op cit)
25 It may be going too far to say, as the learned authors do, that an application for a stay bears no onus of proof or persuasion at all. As Ormiston J (as he then was) said in Equus Financial Services Ltd v Lah (Unreported, VSC, FC 8 September 1993), the reference to the “appropriate Court” in s20(3) “should be taken as meaning ‘the more appropriate Court’”. (Ibid at 8) If two courts in different States are each thought to be appropriate, an application for a stay should not succeed unless one is shown to be more appropriate than the other.
26 In Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54, [58]-[59], Olsson J of the Supreme Court of South Australia was considering an appeal from a determination under s20 by a magistrate. Olsson J said:
“It is plain that the onus lies on an applicant seeking relief, either pursuant to s20 or at common law, to establish a clear entitlement to it. Moreover, it seems to me that, having regard to the potentially profound impact of a stay order upon a plaintiff, that onus demands that the applicant demonstrate a clear and compelling basis for the relief sought. As Deane J said in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 241 ("Oceanic"), a party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist on its exercise and to have his claim heard and determined.
It is to be noted that, whilst subs(9) of s20 preserves the general, common law, or other powers of a court to stay proceedings, subs(4) specifically establishes, as what appears to be a self-contained code, the relevant considerations to be addressed where the application is based fairly and squarely on s20. Care must therefore be taken not to become distracted, in seeking to apply s20, by broader, common law approaches which may not necessarily be applicable to s20 criteria.”
27 Later on page 59, his Honour specifically disapproved the applicability of the analysis adopted by the High Court in a different context relative to stay applications in Voth v Manildra Flour Mills Proprietary Ltd & Anor (1990) 171 CLR 538.
28 Subject to the need to demonstrate that another court is a more appropriate court to hear a matter that necessarily entails an applicant’s shouldering some sort of burden an onus, uninstructed by the analysis of Olsson J in Rick Cobby, I would have preferred the approach advocated by Nygh and Davies in the passage quoted.
29 In Boart Longyear Pty Ltd v Coburn & Crocker (t/as Concrete Cutting & Sealing Co) (Unreported, VSC, 15, 16 and 18 June 1998, O’Bryan J) O’Bryan J was considering, by way of judicial review, a determination made by a magistrate under s20. His Honour specifically stated that the analysis in Voth v Manildra Flour Mills Proprietary Ltd was not appropriate as a guide to an application under s20. He then referred to the passage from the judgment of Olsson J in Rick Cobby quoted above and stated:
“If, in the passage cited, His Honour intended to impose a higher standard of proof than ‘balance of probabilities’, I respectfully disagree that a party applying under s20 for a stay order has to do more than show that on the balance of probability the Court of another State is the appropriate court for the proceeding. I respectfully agree with the ‘balancing’ concept stated by His Honour.”
30 In St George Bank v McTaggart [2003] QCA 584, McPherson JA as a judge of the Queensland Court of Appeal said:
“[17] In Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54, 58, Olsson J said that the applicant for a stay must demonstrate a "clear and compelling" basis for the relief sought. It is enough here to say that, on their application under s 20(3) of the Act, the first and second defendants were bound to discharge the onus of satisfying the court on the balance of probabilities that the proceedings ought to be stayed…“
I do not take this as an endorsement of the analysis of Olsson J in Rick Cobby. Rather, it is consistent with the rejection by O’Bryan J of any requirement for “clear and compelling” reasons before a stay may be granted in Boart.
31 Recently, in Goh, Ambrosini & Hollingsworth v BPH Energy Ltd & Grandbridge Ltd [2019] NSWDC 559, Judge Strathdee of the District Court of New South Wales said at [15]:
“The applicants bear the onus of satisfying this court that the District Court of Western Australia is the appropriate court, and in order to do so, must present a ‘clear and compelling basis for the relief sought’ (see Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54 at 58). However, it is clear from s 20(4) of the SEPA that the fact that the proceedings have been commenced in the District Court of New South Wales is not a factor that the court is to take into account, and thus this court should not begin its determination with any presumption in favour of either jurisdiction.”
32 It follows from that review of subsequent decisions and of the text of s20 itself, it is inappropriate to approach this application as the plaintiffs contend I should, by considering that it should fail in the absence of “clear and compelling” considerations in its favour. The matter should be determined by reference to the factors referred to sub-s(4), which should succeed if, in light of those considerations, the New South Wales District Court is regarded as a more appropriate venue than this Court.
33 The first matter for consideration is the residence of the parties. It is common ground that Ms Guymer resides in New South Wales. Mc McLeod’s affidavit shows that the plaintiffs are incorporated in Victoria and have their head office in Victoria. As to the place which is regarded as the “residence” of a company, the speech of Lord Loreburn LC in De Beers Consolidated Mines, Limited v Howe (Surveyor of Taxes) [1906] AC 455 in the context of income tax liability, has been regarded as generally authoritative. His Lordship said:
“… In applying the conception of residence to a company, we ought, I think, to proceed as nearly as we can upon the analogy of an individual. A company cannot eat or sleep, but it can keep house and do business. We ought, therefore, to see where it really keeps house and does business. An individual may be a foreign nationality, and yet reside in the United Kingdom. So may a company. Otherwise it may have its chief seat of management and its centre of trading in England under the protection of English law, and yet escape the appropriate taxation by the simple expedient of being registered abroad and distributing its dividends abroad. The decision of Kelly C.B. and Huddleson B. in the Calcutta Jute Mills v. Nicholson and the Cesena Sulphur Co. v. Nicholson, now thirty years ago, involved the principle that a company resides for the purposes of income tax where its real business is carried on … I regard that as the true rule, and the real business is carried on where the central management and control actually abides.” ([1906] A.C. 455, 458)
34 The plaintiffs’ central management and control is in Victoria. A consideration of the residence of the parties is therefore equivocal. The residence of the one side in Victoria can be regarded as offset by the other in New South Wales. Again, the issue of witnesses tends to be equally balanced. The plaintiffs’ witnesses reside in Victoria. The defendant’s witnesses, or possible witnesses, reside in New South Wales.
35 Precisely what might be regarded as “the subject matter of the proceeding” is open to question or debate. There is no particular piece of immovable property identified. The plaintiffs complain that moneys are payable to them under the Sale of Business Agreement which remains unpaid. The defendant says the Sale Contract relates to a piece of personal property, viz, the good will of the business in New South Wales. The submissions did not go into issues such as where the agreement in question should be regarded as having been made. This would normally be the place where the last execution was made and there was no evidence on that point. Again, the principle that a debtor should seek out his or her creditor might indicate that the breaches alleged by the plaintiffs in the claim occurred in Victoria. This is not a situation where, for instance, there is a dispute as to the quality of building work which could be conveniently viewed in one State, being located there, and not being conveniently viewed by a court sitting in another State. No clear indication one way or another emerges from a consideration of the subject matter of the proceeding.
36 The financial circumstances of the parties demonstrate a clear distinction to be made between the plaintiffs on the one hand and the defendant on the other. There is nothing to indicate that the plaintiffs are other than solvent operating corporations. Ms Guymer, however, on her account, is in financial hardship. Mr McLeod’s supposition that she was in employment at the premises where the subject business was carried on appears not to be correct. Plainly, for a person of limited means or subject to financial embarrassment, conduct of proceedings in his or her own home State is less burdensome and financially demanding than having to litigate interstate. There are no related proceedings. The claims in question seem to be made in contract or under the law of quasi contract or restitution. There should therefore be no distinction between the substantive law to be applied to the dispute in Victoria as compared with New South Wales. “[T]here is but one common law in Australia which is declared by [the High Court of Australia] as the final court of appeal”. (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563. The agreement to be found at Special Condition No. 54 of the Sale Contract authorises the bringing of proceedings in either New South Wales or Victoria. To stay proceedings in Victoria might therefore be thought to be in violation of the authority which the contract bestows on the plaintiffs to bring their claim in Victoria if they so desire.
37 As plaintiffs’ counsel correctly observed, in the present post-COVID-19 environment, courts have become far more willing and adapted to the taking of evidence via video. The New South Wales witnesses which the defendant wishes to rely upon, could therefore be heard without the trouble and expense of requiring them to travel to Victoria. Indeed, with the present travel restrictions, there might be difficulties in their doing so anyway.
38 With some hesitation, I conclude that the financial hardship which the defendant suffers brings the balance down in favour of granting the stay which she seeks, by a very narrow margin. The plaintiffs have not distinctly admitted her financial hardship, though they are not in a position, it would appear, to deny it. That hardship is given credence by the fact that one of the payments sought in the plaintiffs’ Statement of Claim was on the terms of the Sale Agreement itself, to be payable as and when a life insurance payout accrued in favour of Ms Guymer, the implication being that the plaintiffs were aware that absent that insurance payout she would otherwise be unable to fund the liability.
Costs
39 The solicitors for the defendant contended on the question of costs that “
“… If there is to be a stay the defendant will consent to appropriate orders to protect the plaintiffs in the event they are successful in an action in New South Wales or enter into such agreement as the Court thinks fit.”.
40 The plaintiffs’ submissions did not deal with the subject of costs. Accordingly, I will reserve them.
Disposition
41 I will invite the parties to bring in Minutes to give effect to these reasons.
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