Jageev Pty Ltd v Deane, Francis Mervyn
[1997] FCA 283
•13 FEBRUARY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 3302 of 1996
)
GENERAL DIVISION )
)
BETWEEN: JAGEEV PTY LIMITED
(A.C.N. 001 982 127)
Applicant
AND: FRANCIS MERVYN DEANE
Respondent
Coram: Davies J.
Date: 13 February 1997
Place: Sydney
CORRIGENDUM
Please amend the above judgment as follows:-
Page 1 - 2nd sentence reads: -
"The matter came on for hearing before a registrar and the registrar refused to set aside or dismiss the application seeking the setting aside of the demand."
The sentence should be amended to read: -
"The matter came on for hearing before a registrar and the registrar refused to set aside and dismissed the application seeking the setting aside of the demand."
Bill Neild
Associate to Justice Davies
22 April 1997
CATCHWORDS
SECURITY FOR COSTS - Application for security for costs - application to set aside a statutory demand served on company heard by registrar - appeal from decision of registrar - respondent seeking security for costs of appeal - distinction between appeal from a judge of the Court and an appeal from a registrar - general practice where application to set aside a statutory demand.
Corporations Law - s.459G
Classic Ceramic Importers Pty Limited v Ceramica Antiga SA (unreported, Supreme Court of NSW, 5 May 1994)
JAGEEV PTY LIMITED v FRANCIS MERVYN DEANE
NG 3302 of 1996
Davies J.
13 February 1997
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 3302 of 1996
)
GENERAL DIVISION )
)
BETWEEN: JAGEEV PTY LIMITED
(A.C.N. 001 982 127)
Applicant
AND: FRANCIS MERVYN DEANE
Respondent
Coram: Davies J.
Date: 13 February 1997
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.Application for security for costs be refused.
2.Costs be reserved.
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 ) No NG 3302 of 1996
)
GENERAL DIVISION )
)
BETWEEN: JAGEEV PTY LIMITED
(A.C.N. 001 982 127)
Applicant
AND: FRANCIS MERVYN DEANE
Respondent
Coram: Davies J.
Date: 13 February 1997
Place: Sydney
REASONS FOR JUDGMENT
This is an application for security for costs. An application was made under s 459G of the Corporations Law to set aside a statutory demand served on the company Jageev Pty Limited. The matter came on for hearing before a registrar and the registrar refused to set aside or dismiss the application seeking the setting aside of the demand. The matter has now come before the Court on appeal. The respondent seeks security for the costs of the appeal.
It would be unusual, I think, for the Court to make an order for security for costs on an original application under s 459G and I am not presently aware, in my experience, of any such order having been made. It is such a similar procedure to the applications brought under the Bankruptcy Act 1966 (Cth) for the setting aside of a bankruptcy notice that perhaps it has not been thought appropriate to apply for such orders. Of course, bankruptcy involves individual persons and they stand in a different position to corporations.
The decision of Young J in Classic Ceramic Importers Pty Limited v Ceramica Antiga SA (unreported, Supreme Court of NSW, 5 May 1994) suggests that there is also a further principle applicable, namely that the company which seeks to set aside the statutory demand is in a practical sense the defendant to litigation and the person who serves the statutory demand is the aggressor. That fundamentally is still the position when the matter comes before the Court on appeal from the decision of a registrar.
Although many matters are sent for hearing in the first instance before a registrar, it is beyond the jurisdiction of this Court to arrange affairs so that the decision of the registrar is equivalent to a decision of a judge. That is a constitutional problem which of course does not face State courts. The result is that, for this Court to comply with the requirements of s 459G, which provides that a company may apply to the Court for an order setting aside a statutory demand, the Court must provide a rehearing on the merits of any matter which comes before a registrar and with which one of the parties to the proceedings before the registrar is dissatisfied.
For that reason, there is a fundamental distinction between an appeal from a judge of the Court and an appeal from a registrar, and it seems to me it would not ordinarily be proper for a court to order security for costs on an appeal from a decision of the registrar when it is one of those decisions where the Court is bound because of the Constitutional position and the requirements of the Corporations Law to provide a rehearing on the merits of the case.
I do not say that in no case would the Court refuse to make an order for security for costs when there was an application to set aside a statutory demand. There may well be such cases. But I am, myself, unaware of any such order having been made and it is certainly not the general practice. It seems to me that I should follow the general practice when the matter seems to raise no unusual circumstances.
For those reasons I will refuse the application for security for costs.
I shall reserve the question for costs.
I certify that this and the preceding 2 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.
Associate:
Date: 13 February 1997
Counsel for the applicant: M. Ashhurst
Solicitors for the applicant: Wakeling & Associates
Counsel for the respondent: P.R. Glissan
Solicitors for the respondent: P.W. Smyth King & Son
Date of hearing: 13 February 1997
Date of judgment: 13 February 1997
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