Jordan v Step Ahead Security Pty Ltd ACN 102 803 181
[2006] FCA 827
•21 JUNE 2006
FEDERAL COURT OF AUSTRALIA
Jordan v Step Ahead Security Pty Ltd ACN 102 803 181 [2006] FCA 827
THOMAS JAMES JORDAN, JOCELYN PATRICIA JORDAN AND GWYNETH HELEN HARRISON v STEP AHEAD SECURITY PTY LTD ACN 102 803 181
QUD 151 OF 2006
DOWSETT J
21 JUNE 2006
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 151 OF 2006
BETWEEN:
THOMAS JAMES JORDAN, JOCELYN PATRICIA JORDAN AND GWYNETH HELEN HARRISON
APPLICANTSAND:
STEP AHEAD SECURITY PTY LTD ACN 102 803 181
RESPONDENTJUDGE:
DOWSETT J
DATE OF ORDER:
21 JUNE 2006
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The application stand dismissed.
2. The respondent pay the applicant’s costs up to and including 23 May 2006.
3. There be no order as to costs incurred after 23 May 2006.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 151 OF 2006
BETWEEN:
THOMAS JAMES JORDAN, JOCELYN PATRICIA JORDAN AND GWYNETH HELEN HARRISON
APPLICANTSAND:
STEP AHEAD SECURITY PTY LTD ACN 102 803 181
RESPONDENT
JUDGE:
DOWSETT J
DATE:
21 JUNE 2006
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This matter has an unfortunate history. I doubt whether any purpose would be served by canvassing it in detail. The application is to be dismissed at the request of the applicant. The only question is as to costs. It seems to me that when the statutory demand was served, it was properly served. No question of inappropriateness arises in connection therewith.
It seems, however, that the debt was disputed, notwithstanding the fact that judgment by default had been obtained in connection with it. The debtor company proposed to apply to set aside the judgment but, perhaps because of bad luck and incompetence, that was not done.
The applicant first knew of such intention on 3 March this year. The debtor’s solicitor had previously written to the applicant disputing the validity of the statutory demand, but there was little substance in the reasons given for that dispute. At that time, the debtor said that it intended to apply to set aside the judgment and that it would be successful, but said nothing about the grounds upon which it might reply.
In those circumstances, the applicant cannot be criticised for proceeding to apply for a winding up order. However, on 23 May 2006 the debtor, by its solicitors, indicated its willingness to pay to the applicant the amount of the judgment debt pending the outcome of the application to set aside the judgment. That application was rejected upon the basis that it was “uncommercial”. This seems to have meant that the debtor had not offered to pay the applicant’s costs. Whilst I can understand the applicant’s position, I think that the offer was a reasonable basis for dealing with the matter pending the outcome of the application to set aside the judgment.
The applicant ought to have entered into further discussions with the debtor, with a view to identifying an appropriate basis upon which proceedings might be held in abeyance pending the outcome of the application to set aside the judgment. Substantial justice will best be done if I order that the applicant have its costs up to and including 23 May 2006, and that there be no order as to the costs thereafter.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 4 July 2006
Counsel for the Applicant: Troy Houghton Solicitor for the Applicant: HQF Lawyers Counsel for the Respondent: M Martin Solicitor for the Respondent: Yarwood Legal Group Date of Hearing: 21 June 2006 Date of Judgment: 21 June 2006
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