Jordan v Step Ahead Security Pty Ltd ACN 102 803 181

[2006] FCA 827

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 APPLICANTS
AND:	STEP AHEAD SECURITY PTY LTD ACN 102 803 181 RESPONDENT
JUDGE:	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 APPLICANTS
AND:	STEP AHEAD SECURITY PTY LTD ACN 102 803 181 RESPONDENT

JUDGE:	DOWSETT J
DATE:	21 JUNE 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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