Indigo Financial Money Pty Ltd v Moustrides - [2010] SASC 355

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
INDIGO FINANCIAL MONEY PTY LIMITED v MOUSTRIDES & ANOR
[2010] SASC 355
Judgment of The Honourable Justice White
24 December 2010
CORPORATIONS - WINDING UP - WINDING UP IN INSOLVENCY - STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND - PROCEDURAL REQUIREMENTS - OTHER MATTERS
The appellant was served at the one time with separate statutory demands from each of the respondents - the appellant filed a single originating process seeking to set aside both statutory demands - the respondents submitted that the originating process did not comply with the requirements of s 459G of the Corporations Act 2001 (Cth) (the Act) - relying upon the decision of Young J in Help Desk Institute Pty Ltd v Adams (1999) 17 ACLC 18, the Master dismissed the originating process, holding that separate originating processes were required - the appellant appealed against this decision.
Whether a company may, by the one initiating process, apply to the Court under s 459G of the Act for orders setting aside two or more statutory demands.
Held: appeal allowed - there is no express or implied requirement in s 459G of the Act that an originating process deal with one statutory demand, and one statutory demand only.
Corporations Act 2001 (Cth) s 459E, s 459F, s 459G, s 459T, s 588FF; Acts Interpretation Act 1901 (Cth) s 23; Judiciary Act 1903 (Cth) s 79; Corporate Law Reform Bill 1992 (Cth); Corporations Rules 2003 (SA) r 2; Supreme Court Civil Rules 2006 (SA) r 31, r 73, referred to.
Indigo Financial Money Pty Limited v Moustrides & Moustrides [2010] SASC 235; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; Filaria Pty Ltd v Carlisle [2004] ACTSC 95; Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd (2006) 202 FLR 459; Isaco Pty Ltd v Davey (2003) 180 FLR 183; Cooloola Dairies Pty Ltd v National Foods Milk Ltd (2004) 184 FLR 86; Gujarat NRE Australia Pty Ltd v Williams [2006] NSWSC 518; Gordon v Tolcher (2006) 231 CLR 334; Wood v Cross Television Centre Pty Ltd [1962] NSWR 528; Meckiff v Simpson [1968] VR 62; Hinze v Zed [1926] SASR 77; Help Desk Institute Pty Ltd v Adams (1999) 17 ACLC 18; Calquid Pty Ltd v A & D R Illes Pty Ltd (2000) 34 ACSR 523; Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485; Remo Constructifons Pty Ltd v Dualcorp (2008) 222 FLR 375, considered.

INDIGO FINANCIAL MONEY PTY LIMITED v MOUSTRIDES & ANOR
[2010] SASC 355
Appeal from a Master

WHITE J. The question on this appeal is whether a company may, by the one initiating process, apply to the Court under s 459G of the Corporations Act 2001 (Cth) (the Act) for orders setting aside two or more statutory demands which have been served on it.
A Master held that the originating process filed by the appellant (Indigo) on 12 May 2010 was defective because it sought the setting aside of two statutory demands and, because of that defect, he dismissed the process.[1] In doing so the Master applied the construction of s 459G which was adopted by Young J in Help Desk Institute Pty Ltd v Adams,[2] a decision which has been followed in a number of the later authorities.
[1] Indigo Financial Money Pty Limited v Moustrides & Moustrides [2010] SASC 235.
[2] (1999) 17 ACLC 18.
However, there are other authorities which have held that s 459G does permit, at least in some circumstances, initiating processes seeking the setting aside of multiple statutory demands.
Background
Indigo was incorporated in 2007 and carries on business in South Australia. On 22 April 2010 each of the two respondents, acting under s 459E of the Act, served on Indigo a creditor’s statutory demand for payment of a debt. The first respondent claimed payment of an asserted debt of $49,000. The second respondent claimed payment of an asserted debt of $213,360. There is some indication in the materials that the first and second respondents may be brother and sister. Each of the statutory demands was dated 20 April 2010 and signed on behalf of the respective respondents by Mr Narayan, a solicitor in the firm of Duncan Basheer Hannon. Each of the statutory demands was also accompanied by a letter in identical terms addressed to Indigo and signed by Mr Narayan.
Subsequently, on 12 May 2010, Indigo filed and served a single originating process using Form 2 in Sch 1 to the Corporations Rules 2003 (South Australia) (the Corporations Rules).[3] The Corporations Rules are in the form of the uniform rules adopted by the State and Territory Supreme Courts and the Federal Court for the implementation of the Act. Part A of the originating process, under the heading of “Details of Application” was as follows:
This application is made under section 459G(1) and section 459J(1)(b) of the Corporations Act 2001.
The application seeks to set aside two statutory demands served upon Indigo Financial Money Pty Limited ACN 126 039 236 on 22 April 2010.
On the facts stated in the supporting affidavit, the plaintiff claims:
1.That the “Creditor’s Statutory Demand for Payment of Debt” dated 20 April 2010 and served on the plaintiff, Indigo Financial Money Pty Limited, on 22 April 2010 by the first defendant, Peter Raymond Moustrides, be set aside pursuant to sections 459H and 459J of the Corporations Act 2001;
2.That the “Creditor’s Statutory Demand for Payment of Debt” dated 20 April 2010 and served on the plaintiff, Indigo Financial Money Pty Limited, on 22 April 2010 by the second defendant, Marguarita Arista Moustrides be set aside pursuant to sections 459H and 459J of the Corporations Act 2001.
…
[3] See r 2.2 of the Corporations Rules 2003 (South Australia).
The initiating process was accompanied by an affidavit of Mr Tsoulos, a director of Indigo, who disputed Indigo’s indebtedness to each of the respondents.
On 1 June 2010, the respondents filed an interlocutory process seeking, amongst other things, that Indigo’s originating process filed on 12 May 2010 be struck out as defective, on the ground that it sought to prosecute relief against two distinct creditors in the one application made under s 459G. As noted at the commencement of these reasons, a Master of this Court upheld that application and dismissed Indigo’s originating process.
The Master reviewed the authorities commencing with the decision of Young J in Help Desk Institute Pty Ltd v Adams[4] as well as the discussions in “McPherson’s Law of Company Liquidation” and in “Statutory Demands: Law and Practice”.[5] The Master also considered r 73(2) of the Supreme Court Civil Rules 2006 which provides:
(2)     A single action may be brought against two or more defendants if—
(a)     the claim against each arises out of the same or similar facts; or
(b)     the claim against each involves the determination of a common question of law or fact; or
(c)     the Court gives its permission.
[4] (1999) 17 ACLC 18.
[5]    Farid Assaf, LexisNexis, Australia, 2008 at [4.24]-[4.28].
The Master considered that the statutory demands issued by each of the respondents had relatively little in common. He said:
In this case the statutory demand issued by each defendant is in respect of distinct debts incurred at different dates. The factual circumstances differ. Even though the plaintiff might argue that it has a common defence to both claims that does not necessarily bring it within the provisions of 6R 73(2)(a). It may bring it within the provisions of 6R 73(2)(b) but that is unclear. Any alleged common legal substratum will be against the factual background of distinct debts for distinct loans by different creditors. However, it is not difficult to envisage a circumstance where perhaps six investors in a company seek assistance from the same solicitor and all separately issue statutory demands for the amount of their investment and interest which are all served at about the same time. In my view the scheme of the Act is such that it would be inappropriate for the plaintiff or alleged debtor at that time to be able to issue one originating process seeking orders setting aside the six statutory demands. It would, as earlier authority suggests, lead to a confusion of the process inconsistent with the objects of Part 5.4 of the CA and the legislation must prevail.[6]
However, the Master determined the interlocutory process on a different basis, namely, that other than in limited circumstances, s 459G did not permit the one application to deal with more than one statutory demand:
There is nothing in the present case that indicates that the statutory demands have been served in respect of a joint debt. Indeed the evidence is to the contrary. This case in its factual circumstances aligns closely with the circumstances in Help Desk. The surname of the defendants is the same but that is of no consequence. In my view it is likely that the correct view of the law has been expressed by McPherson as earlier set out. That requires separate originating processes to be issued to set aside separate demands by separate creditors save that the one originating process may in appropriate circumstances be issued for multiple demands served by the same creditor particularly where the debts demanded arise from the same transaction or series of transactions. While that approach may at times represent an inconvenience to the debtor it is an approach that is consistent with the object of Part 5.4 to resolve disputes about statutory demands in a swift and efficient manner.[7]
[6] Indigo Financial Money Pty Limited v Moustrides & Moustrides [2010] SASC 235 at [26].
[7] Ibid at [32].
Section 459G
Section 459G of the Act establishes the means by which a company may contest a statutory demand. It provides:
(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2)An application may only be made within 21 days after the demand is so served.
(3)An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
Section 459G and Two or More Statutory Demands
The question of whether an initiating process under s 459G of the Act seeking the setting aside of a statutory demand should deal with one demand, and one demand only, was first considered by Young J in Help Desk Institute Pty Ltd v Adams.[8] In what seems to have been an ex tempore decision, Young J identified a number of features of s 459G, and of Part 5.4 of the Act in which it is contained, which suggested that each application to set aside a statutory demand should deal with only one demand. Young J considered that these features indicated sufficiently an intention that s 23(b) of the Acts Interpretation Act 1901 (Cth) (which provides that unless the contrary intention appears, the singular includes the plural) should not be applied.
[8] (1999) 17 ACLC 18.
First, Young J compared s 459G, on the one hand, with ss 459E and 459F, on the other. He considered that s 459E “seems to go out of its way to differentiate between a single debt and two or more debts”[9] and that s 459F “seems to contemplate that each statutory demand gives rise to a separate liability on the company to be wound up under Part 5.4 if that demand is not dealt with”.[10] Those provisions provided part of the context in which s 459G was to be considered.
[9] Ibid at 20.
[10] Ibid.
Secondly, Young J considered that s 459G itself limited the way in which applications could be made.[11] In this respect Young J referred to David Grant & Co Pty Ltd v Westpac Banking Corporation[12] in which the High Court held that Part 5.4 of the Act established a scheme by which the non-compliance of a company with a notice of statutory demand could lead to its winding up. Section 459G enables a company served with a notice of statutory demand to avoid that consequence by making an application to a court. However, s 459G defines the jurisdiction of the court by imposing a time requirement as an essential condition of the right to make the application. It seems that Young J also regarded s 459G as defining the way in which an application under that section is to be made.
[11] Ibid at 20.
[12] (1995) 184 CLR 265.
Thirdly, Young J considered that if s 459G contemplated that the one application may address two or more demands, one would have expected that the legislature would have said “after the demand is so served, or if more than one demand is served, by 21 days after the first of such demands is so served”.[13]
[13] Help Desk at 20.
Fourthly, Young J considered that the scheme established by Part 5.4 contemplates the determination of applications under s 459G by reference to limited evidential material.[14] The determination in a summary way of applications to set aside statutory demands would be frustrated if the supporting affidavit required by s 459G(3)(a) included “extraneous matters”. It seems that Young J considered that the supporting affidavit may, or would be likely to, include “extraneous matters” if the initiating process dealt with two or more statutory demands.
[14] Ibid at 20-1.
Young J concluded:
It seems to me that when one adds all those matters together a contrary indication is given in the statute, that is, there can be only one summons dealing with one demand.[15]
[15] Ibid at 21.
However, as Barrett J pointed out in the later case of Remo Constructions Pty Ltd v Dualcorp,[16] the decision in Help Desk ultimately did not turn on the fact that the summons sought to deal with two separate demands. Instead, Young J determined the matter on the basis that the applicant had not filed a supporting affidavit of the kind required by s 459G(3). That was because the affidavits relied upon by the applicant “included a whole lot of extraneous matters”[17] and the principal affidavit dealt with matters other than the statutory demands.[18] Young J’s conclusion appears in the following passages:
It follows from what I have said that that cannot be a supporting affidavit within the meaning of s 459G(3) and accordingly, there has been no filing of a supporting affidavit within the time limits prescribed by the Corporations Law, so it is now not possible for the summons to succeed. For that reason, and for others, which it is unnecessary to express, I do not believe that I can just strike out, say, prayers 2 and 3 of the summons and let prayer 1 proceed.
Thus, the present summons is not an application within the meaning of s 459G and the court cannot give any relief.[19]
[16] [2008] NSWSC 1172; (2008) 222 FLR 375.
[17] Help Desk at 21.
[18] Ibid.
[19] Ibid.
The question was next considered by Santow J in Femley Pty Ltd v Salken Engineering Pty Ltd.[20] In that case, three companies carrying on business in partnership were each served with a separate notice of demand seeking payment of the one partnership debt. They filed a summons seeking the setting aside of the notices. Santow J described the application as a composite application seeking the setting aside of the statutory demands. The creditors argued that what was required by s 459G was three separate applications: one by each of the three partnership companies in relation to the separate statutory demand served on that company.
[20] (1999) 17 ACLC 828.
Santow J rejected a submission that he should not follow Help Desk because it was clearly wrong, but considered that it could be distinguished from the circumstances of the case before him:
I consider that Help Desk can properly be distinguished from the facts before me, though it is necessary to do so with some care. I certainly do not think that Young J’s conclusion in relation to the circumstances before him was plainly wrong. There is, in addition, some force in the contention that the scheme of Pt 5.4 could not work as intended if, in relation to non-jointly owned debts, each company with its separate indebtedness were in the one application with the one accompanying affidavit to attempt to set aside the statutory demand applicable to it, on varying grounds as between each company. Grounds for setting aside each statutory demand for each alleged debtor company need to be separately identified, where there are non-joint debts; how could this be done with the one composite affidavit and the one composite application? Even if for separate and distinct debts such gymnastics could be achieved, at least as a matter of drafting, Pt 5.4 would fail to achieve expeditious resolution of disputes as to such alleged debts as Parliament intended.[21]
As the debt claimed in Femley was a partnership debt, Santow J considered that the difficulties which he had identified in this passage were inapplicable, and accordingly found that the companies had made a valid application under s 459G.
[21] Ibid at 832-3.
Later cases which have followed Help Desk include Calquid Pty Ltd v A & D R Illes Pty Ltd;[22] (Santow J); Filaria Pty Ltd v Carlisle;[23] and Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd[24] (Douglas J). These decisions concerned applications to set aside two or more statutory demands relating to liabilities which were neither joint, nor joint and several. The courts have tended to emphasise the prospect that a single application dealing with more than one statutory demand would be incompatible with one of the objects of Pt 5.4, namely, that disputes in relation to the existence or amount of a debt should be dealt with quickly. For example, in Calquid, Santow J referred to the statement of the objects of Pt 5.4 in the Explanatory Memorandum accompanying the Corporate Law Reform Bill 1992 and continued:
[Section 459G(3)] requires an affidavit “supporting the application” to be filed with the court and served on the person who served the demand on the company. Where, as here, there is a separate and distinct indebtedness, though arising out of the same contract, an affidavit supporting the application necessarily has to deal with a plurality of distinct subject matters, even if it so happens that the plaintiff lodging the summons and accompanying affidavit elects to use the same grounds in that accompanying affidavit. One can imagine the complexities that would then follow if the subsequent elaboration of the subject matter of that single affidavit had to bifurcate and deal with each of two distinct debts. Such a contemplation is hardly compatible with the object of Pt 5.4, namely that, “disputes in relation to the existence or amount of a debt be dealt with quickly …”[25]
[22] [2000] NSWSC 558; (2000) 34 ACSR 523.
[23] [2004] ACTSC 95.
[24] [2006] QSC 247; (2006) 202 FLR 459.
[25] [2000] NSWSC 558 at [46]; (2000) 34 ACSR 523 at 530.
In Calquid, Santow J also considered that s 467A of the Act (which provides that applications under Pt 5.4 and Pt 5.4A should not be dismissed merely because of a defect or irregularity) could not be called in aid. That was because s 467A applies only to applications under Pt 5.4 or Pt 5.4A and Santow J consider that an application dealing with two or more statutory demands (in the case of non-joint liabilities) was not such an application.[26]
[26] Ibid.
However, not all courts have followed Help Desk. In Isaco Pty Ltd v Davey[27] one creditor had served separate statutory demands on nine companies in respect of a debt said to be owed by them jointly and severally. By a single originating process, the nine companies then sought the setting aside of the statutory demands. The application was expressed in such a way that each individual company sought the setting aside only of the statutory demand served upon it. That is to say, each of the applicants sought a separate and distinct order in relation to the statutory demand served on it. Barrett J applied the reasoning of Santow J in Femley and distinguished the decisions in both Help Desk and Calquid. He held accordingly that the application of each company, although contained in the one summons, was authorised by s 459G.
[27] [2003] NSWSC 1043; (2003) 180 FLR 183.

In Cooloola Dairies Pty Ltd v National Foods Milk Ltd[28] Chesterman J said that he regarded the reasoning which suggested that the one summons could not deal with more than one statutory demand to be “unconvincing”[29] and said that “the debtor can in the one application brought pursuant to s 459G seek orders that all or some of the demands be set aside.”[30] However, Chesterman J did not refer to the decisions reviewed above and his comments were, in any event, not necessary for the determination of that case.
[28] [2004] QSC 308; (2004) 184 FLR 86.
[29] Ibid at [14]; 91.
[30] Ibid at [24]; 93.
Austin J in Gujarat NRE Australia Pty Ltd v Williams[31] also made some obiter remarks indicating that the decision in Help Desk may be distinguishable. In that case, three persons who claimed the payment of a debt served a statutory demand on the debtor company. That company then, by the one summons, sought to have each of the statutory demands set aside. Austin J said:
It is appropriate to observe that the present defendants have not sought to make any submission arising out of the fact that, although there were three statutory demands served on Gujarat Australia, Gujarat Australia made only one application to set aside all three statutory demands, rather than three separate applications (see Help Desk Institute Pty Ltd v Adams (1999) 17 ACLC 18; Calquid Pty Ltd v A & D R Illes Pty Ltd [2000] 34 ACSR 523; Filaria Pty Ltd v Carlisle & Ors [2004] ACTSC 95). Without the benefit of argument, I should say that, were the Help Desk issue raised, I would be inclined to distinguish that line of cases, having regard to the fact that the three statutory demands all purportedly relate to the same debt arising out of the same dispute, are all directed to the same alleged debtor and were all served at the same time.[32]
[31] [2006] NSWSC 518.
[32] Ibid at [12].
The decision of Barrett J in Remo Constructions Pty Ltd v Dualcorp Pty Ltd[33] is significant. In that case, the applicant company sought the setting aside of two separate statutory demands served on it by the one creditor.
[33] [2008] NSWSC 1172; (2008) 222 FLR 375.
Barrett J considered it appropriate to approach the question of whether the one summons may deal with more than one statutory demand by reference to “first principles”.[34] He did this, despite recognising the persuasive force of Help Desk and Calquid, because he considered that the decision in the former turned upon the absence of a supporting affidavit as required by s 459G(2), and the decision in the latter turned on the fact that the summons had been issued outside the 21 day limiting period.
[34] Ibid at [30].
Approaching the matter in that way, Barrett J said:
I do not think that the legislation requires this Court to proceed according to an abstract rule of general application that “there can only be one summons dealing with one demand”. At the same time, however, one originating process dealing with several demands may founder because the affidavit put forward as a supporting affidavit is not in truth of that character. It might also founder if in the Filaria form embodying a claim for a single order in respect of multiple demands: see [15].[35]
[35] Ibid at [35].
Barrett J advanced two reasons for concluding that the Court should not proceed according to an abstract rule of general application that there can be only one summons dealing with one demand:
First, I do not think that it is discernible from the language of s 459G: the proposition advanced by Young J in Help Desk in the words quoted at [7][36] is, I think, met by observing that the time limit expressed by the words “after the demand is so served” can quite easily be applied separately to each claim in an originating process of the kind now before me to determine whether the application represented by that claim is within time.
The second reason is that, in proceedings under the Corporations Act commenced in this court, the Rules of procedure in this court apply: Gordon v Tolcher (2006) 231 CLR 334. Under r 6.18(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW), a plaintiff may, in any originating process, claim relief against the defendant in respect of one or more causes of action if the plaintiff sues in the same capacity and claims the defendant to be liable in the same capacity in respect of each cause of action. Each claim of the present plaintiff to have a statutory demand set aside is a distinct cause of action that lies against a single defendant in a single capacity at the suit of a single plaintiff in a single capacity. The conditions for the operation of the rule are thus satisfied. (That would not be so in a case like Help Desk, Ambassador at Redcliffe or Filaria where there were several issuers of statutory demands and therefore several defendants; the question of joinder would then probably be governed by r 6.19).[37]
Barrett J went on to hold that the summons issued in Remo was valid.
[36] Paragraph 7 of Remo quoted the passage in Help Desk in which Young J said “if more than one demand was contemplated, one would have expected the legislature to have said ‘after the demand is so served, or if more than one demand is served, by 21 days after the first of such demands is served’”.
[37] Ibid at [36]-[37].
Consideration
Counsel for the respondent submitted that this Court should follow Help Desk and the subsequent decisions which have applied it. The Court should hold, he submitted, that the one originating process cannot be used by a company seeking to set aside multiple statutory demands. In the alternative, if a single originating process may be used in some cases, it is not permissible in cases like the present in which the debts claimed are due to different creditors and arise from different circumstances
In support of these submissions, counsel emphasised in particular the potential for compromise to the expeditious determination of applications to set aside statutory demands in the event that the one application and the affidavit supporting it deal with multiple statutory demands. As noted earlier, this consideration formed an important part of the rationale of Young J and of Santow J in Help Desk and Calquid respectively.
Generally, when applying Commonwealth legislation the courts of the States apply the construction adopted by courts of other States unless satisfied that that construction is clearly wrong. That is required in respect of decisions of the intermediate appellate courts of other States[38] and is the general approach, as a matter of comity, in respect of the decisions of single judges.[39] However, the existence of conflicting decisions of single judges on the issue arising in the present case means that the application of this principle cannot be determinative of the appeal. Instead, this Court must reach its own decision but in doing so be informed by the approaches discussed in the authorities above.
[38] Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492.
[39] Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd [2006] QSC 247 at [17]; (2006) 202 FLR 459 at 463.
In my opinion, the approach of Barrett J in Remo Constructions is to be preferred.
First, like Barrett J, I am unable to discern in s 459G an abstract general rule that each initiating process issued under that section should deal with only one demand. It is true that s 459G refers to “an application” and “the application”, expressions which are more naturally understood as referring to the singular. But the same may be said of many provisions to which s 23(b) of the Acts Interpretation Act 1901 (Cth) applies.
Counsel for the respondent referred to s 459E which contemplates expressly that the one statutory demand may relate to more than one debt. This express contemplation of the plural contrasted, he submitted, with the language in s 459G with the consequence that the legislature should be taken to have contemplated only the one application being issued in relation to each demand. I do not regard this submission as persuasive. Section 459E refers of necessity to two or more debts because it contemplates expressly that the statutory minimum amount which may found a statutory notice of demand may be made up of two or more debts. This explains its express reference to the plural. There is no counterpart requirement in s 459G and accordingly, it was not necessary for s 459G to have a counterpart provision. In other words, comparing s 459G with s 459E in this way is not to compare like provisions.
Counsel was on somewhat stronger ground in referring to s 459T(1) which provides that “a single application may be made for two or more companies to be wound up in insolvency if they are joint debtors, whether partners or not”. Section 459T is at least an instance of the legislature addressing the possibility of a single application being directed to two or more defendants. However, s 459T seems intended to address the particular circumstance of two or more companies being jointly liable. Further, it could be said that if the legislature was willing to allow a single application for the winding up of two or more companies, it should also be taken to have contemplated a single application for the lesser step of the setting aside of two or more demands.
In considering the possibility that s 459G may contemplate only single applications dealing with one notice of demand, it is appropriate to keep in mind, in my opinion, the observation of Gummow J in David Grant regarding the inappropriateness of reading in, by implication, limitations on the grant of jurisdiction or power to a court. Gummow J said:
As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision.[40]
(Citation omitted)
[40] (1995) 184 CLR 265 at 275-6.
In the absence of express words, the view that s 459G allows only a single application dealing with a single demand seems to involve the incorporation of a restrictive implication of the kind to which Gummow J referred. In expressing that opinion, I am not overlooking the possibility of inconvenience, and the possible impact on a court’s ability to deal expeditiously with applications for the setting aside of notices of demand. But, for the reasons I will give shortly, courts have an armoury of powers by which to deal with such circumstances if and when they arise. The orders made by Barrett J in Isaco Pty Ltd v Davey[41] provide on example.
[41] [2003] NSWSC 1043.
It is to be kept in mind that the approach adopted in Help Desk may, if applied universally, also produce inconvenient results and cause the incurring of additional expense. The circumstances of Femley, Isaco and Remo Constructions provide examples. It is reasonable to suppose that the legislature may have been just as concerned to avoid inconvenience and expense of this kind. It could also be said that provisions such as ss 459J and 467A indicate that in this area the courts should eschew technicality.
Related to these considerations is a further matter. In each of Femley and Isaco, courts distinguished Help Desk. They did so by finding that the rationale for the decision in Help Desk was inapplicable in the particular circumstance of those cases. However, it is difficult to find in s 459G, or its associated provisions, any textual basis for concluding that some kinds of applications dealing with multiple notices of demand are permissible, but not others. Section 459G should be taken to have a constant meaning: not a meaning which, chameleon like, changes according to the different circumstances in which it is invoked. If the proper construction of s 459G does not permit applications dealing with two or more statutory demands, then that is its effect, even if the rationale used to determine that construction is not applicable in all cases. Conversely, the very fact that it is necessary to adopt exceptions to the Help Desk construction tends to indicate that that construction may be inappropriate.
In Gordon v Tolcher[42] the High Court held that, subject to the operation of other provisions of the Act, after the institution of an application under s 588FF in a State or Territorial court, the rules of procedure of that court, picked up by s 79 of the Judiciary Act 1903, govern the conduct of the matter.[43]
[42] [2006] HCA 62; (2006) 231 CLR 334.
[43] Ibid at [32]; 346.
The Court said:
[32] Section 588FF does not deal with the investment of federal jurisdiction in any court or with the manner of exercise of that jurisdiction. The section is found in Pt 5.7B, whilst the jurisdiction of courts is provided for in Pt 9.6 A. Section 588FF is silent respecting the procedures to be adopted by the court exercising federal jurisdiction in the present matter; this jurisdiction is conferred by s 1337E upon the District Court. Section 588FF evinces a two-fold legislative intention. First, conferral of federal jurisdiction is left to Pt 9.6A of the Corporations Act. Secondly, subject to any operation of other provisions of the Corporations Act, after the institution of an application the procedural regulation of the conduct of a matter is left for that particular State or territorial procedural law which is to be picked up by s 79 of the Judiciary Act.
The same is true of applications under s 459G. Accordingly, s 79 of the Judiciary Act 1903 (Cth) picks up and applies the Corporations Rules to applications under s 459G. Those Rules do not contain any provision concerning joinder of parties or the joinder of causes of action. However, r 1.3(2) of the Corporations Rules provides:
The other Rules of the Court apply to the extent that they are relevant and not inconsistent with these Rules:
(a)to a proceeding in the Court under the Corporations Act, or the ASIC Act, that is commenced on or after the commencement of these Rules; and
…
The effect of r 1.3(2) is therefore to pick up the application of the Supreme Court Civil Rules 2006 to which I referred earlier in these reasons.
Counsel for the respondent emphasised the words “after the institution of an application” in [32] of Gordon v Tolcher set out above. He submitted that these words indicated that this Court’s procedural Rules should apply to an application under s 459G only after the action had been commenced, and not to the commencement of the action itself. This had the effect, so he contended, that this Court’s Rules concerning joinder of parties and joinder of causes of action were inapplicable.
I do not agree. I do not understand the High Court to have been enunciating the principle for which counsel contended. The passage in [32] on which counsel relied is referable to the issue being addressed by the High Court in Gordon v Tolcher, namely, whether a State procedural law permitting a retrospective extension of time was excluded by s 588FF(3), which specified the time within which an application under that section is to be brought. What the Court was indicating in [32] is that after an application under s 588FF has been commenced within the specified time, the procedural regulation of the conduct of the matter is then left to the particular State’s or Territory’s procedural rules. This understanding is made plain later in the Court’s reasons:
Accordingly, s 588FF is dealing, as an essential aspect of the regime it creates, with the period within which the application must be made. An application may be made only to a court invested with Federal jurisdiction by one or other of the provisions of Pt 9.6A. Thereafter, and subject to any other relevant provisions of the Corporations Act, the conduct of the litigation is left for the operation of the procedures of that court. These procedures will vary from one State or Territory to another and within the court structures of those States and Territories. The scheme of the Corporations Act is not to impose a direct Federal and universal procedural regime. Rather, s 79 of the Judiciary Act is left to operate according to its terms in the particular State or Territory concerned.[44]
[44] Ibid at [40]; 348.
Section 459G does specify some procedural requirements. It requires that there be a written application supported by an affidavit, and requires that each of the application and the supporting affidavit be filed and served within 21 days after the notice of demand is served. However, s 459G is otherwise silent as to the procedure to be adopted. It does not, for example, specify whether the application should be by way of summons, application or writ or whether the application may be by way of “originating process” or “interlocutory process”, being the two forms of process contemplated by r 2.2 of the Corporations Rules. Although it would be unusual, it is at least theoretically possible that an application under s 459G may be made by interlocutory process if there were already proceedings on foot in the Court between the parties.
In my opinion, the effect of Gordon v Tolcher is that subject to compliance with the procedural requirements contained in s 459G itself, and in any other applicable provisions of the Act, it is the Corporations Rules of this Court which govern both the commencement and the conduct of an application under s 459G made in this Court. Those Rules incorporate by reference the rules relating to joinder of parties, joinder of causes of action, and the rules relating to the division of an action into separate actions.[45] This means that the Court has an armoury of powers with which to control the conduct of the action including, in an appropriate case, the power to strike out parties or causes of action,[46] to require the plaintiff to elect to proceed with only some causes of action[47] and the power to order separate hearings.[48] In addition, the Court’s power to control abuse of its own processes may be engaged. By these means the Court may avoid at least some of the inconvenience to which the authorities have referred.
[45] Supreme Court Civil Rules 2006 r 31(2).
[46] Wood v Cross Television Centre Pty Ltd [1962] NSWR 528.
[47] Meckiff v Simpson [1968] VR 62 at 68-9.
[48] Hinze v Zed [1926] SASR 77.
If an initiating process does deal with multiple notices of demand the plaintiff will need to ensure that the application and supporting affidavit are filed and served within 21 days of the service of the first in time of the statutory demands.
In addition, plaintiffs who contemplate their application under s 459G dealing with multiple causes of action should consider the pitfalls involved, in particular the risk that their affidavit in support may be deficient, so as not to count as the kind of affidavit to which s 459G(3) refers.[49]
[49] Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172 at [35]; (2008) 222 FLR 375 at 382.
For these reasons, I consider that the Master was in error in determining that, as a matter of law, the appellant’s initiating process could not deal with both of the respondents’ notices of statutory demand. The Master should have found that s 459G did not preclude the course of action adopted by the appellant.
If the respondents contend that their joinder in the one action was inappropriate, that contention should have been addressed by reference to rr 73, 74 and 77 of the Supreme Court Civil Rules 2006. Although the Master made some reference to r 73(2), the issues concerning possible misjoinder and the manner of the future conduct of the matter were not agitated before him. The parties agreed that, in the event that the appeal was allowed, the matter should be remitted to the Master for consideration of those matters, to the extent that they require determination. Any such consideration may have to take account of the suggestion of Mr Tsoulos in his affidavit that the investment of funds relied on by the respondents occurred in common circumstances.
Conclusion

For the reasons given above, I allow the appeal. I set aside Orders 1 and 2 made by the Master on 30 July 2010 and remit the matter to the Master for hearing and determination of the appellant’s originating process filed on 12 May 2010.
I will hear the parties as to costs.