Martin Bruce Jones as Liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) v Sun Engineering (Qld) Pty Ltd
[2017] WASC 195
•18 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MARTIN BRUCE JONES As Liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) -v- SUN ENGINEERING (QLD) PTY LTD [2017] WASC 195
CORAM: KENNETH MARTIN J
HEARD: 9 JUNE 2017 AND BY WRITTEN SUBMISSIONS OF 13 JUNE 2017 (21ST DEFENDANT IN COR 21 OF 2017), 16 JUNE 2017 (FIFTH DEFENDANT IN COR 20 OF 2017) AND 28 JUNE 2017 (21ST DEFENDANT IN COR 21 OF 2017)
DELIVERED : 18 JULY 2017
FILE NO/S: COR 20 of 2017
MATTER :Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 065 464 226); Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 114 897 728); and Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 103 678 324)
BETWEEN: MARTIN BRUCE JONES As Liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation)
First Plaintiff
MARTIN BRUCE JONES As Liquidator of Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Second PlaintiffMARTIN BRUCE JONES As Liquidator of Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Third PlaintiffAND
SUN ENGINEERING (QLD) PTY LTD
First DefendantEASTCOAST DEVELOPMENT ENGINEERING PTY LTD
Second DefendantKPMG (A FIRM)
Third DefendantKPMG FINANCIAL ADVISORY SERVICES (AUSTRALIA) PTY LTD
Fourth DefendantPRICE WATERHOUSECOOPERS (A FIRM)
Fifth DefendantPFP (AUST) PTY LTD
Sixth DefendantBORAL RESOURCES (WA) LTD
Seventh DefendantBORAL RESOURCES (QLD) LTD
Eighth DefendantAMCOM PTY LTD
Ninth DefendantWA SKILLS TRAINING PTY LTD
Tenth Defendant
FILE NO/S :COR 21 of 2017
MATTER :Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 114 897 728); Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 103 678 324); Forge Group Asset Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 161 511 486)
BETWEEN :MARTIN BRUCE JONES As Liquidator of Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
First Plaintiff
MARTIN BRUCE JONES As Liquidator of Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Second PlaintiffMARTIN BRUCE JONES As Liquidator of Forge Group Asset Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Third PlaintiffAND
ALSTOM GRID AUSTRALIA PTY LTD
First DefendantAMEC FOSTER WHEELER AUSTRALIA PTY LTD
Second DefendantBEAVER PROCESS EQUIPMENT PTY LTD
Third DefendantSTREAMLINE UNDERGROUND SERVICES PTY LTD
Fourth DefendantREKMAL HOLDINGS PTY LTD
Fifth DefendantRCR O'DONNELL GRIFFIN PTY LTD
Sixth DefendantSHANNON POWER MANAGEMENT PTY LTD
Seventh DefendantFREMANTLE STEEL FABRICATION CO (WA) PTY LTD
Eighth DefendantBOSNAFIX PTY LTD
Ninth DefendantVEOLIA WATER SOLUTIONS & TECHNOLOGIES (AUSTRALIA) PTY LTD
Tenth DefendantHOLCIM (AUSTRALIA) PTY LTD
Eleventh DefendantSTORK TECHNICAL SERVICES AUSTRALIA PTY LTD
Twelfth DefendantEASTERN CONTRACTING SERVICES PTY LTD
Thirteenth DefendantSTARCLIP ENTERPRISES PTY LTD
Fourteenth DefendantCARDNO GEOTECH PTY LTD
Fifteenth DefendantABB AUSTRALIA PTY LTD
Sixteenth DefendantKNOB 1 PTY LTD (PREVIOUSLY BAC PEFA-MEDICALS PTY LTD)
Seventeenth DefendantGTO ENERGY SERVICES PTY LTD
Eighteenth DefendantPACIFIC CONSTRUCTION GROUP PTY LTD
Nineteenth DefendantRIGGING SHED (SOUTH) PTY LTD
Twentieth DefendantSOUTHERN WIRE PTY LTD
Twenty-first DefendantESCO AUSTRALIA HOLDINGS PTY LTD
Twenty-second DefendantAPTS PTY LTD
Twenty-third DefendantEX PRODUCTS PTY LTD
Twenty-fourth DefendantCORE WATER MANAGEMENT SOLUTIONS PTY LTD
Twenty-fifth DefendantTHE TRUSTEE FOR DTMT UNIT TRUST (PREVIOUSLY DTMT CONSTRUCTION COMPANY)
Twenty-sixth DefendantDEAN WELDON ENTERPRISES PTY LTD
Twenty-seventh DefendantFENCEWRIGHT PTY LTD
Twenty-eighth DefendantJAYTONA PTY LTD
Twenty-ninth DefendantONESTEEL REINFORCING PTY LTD
Thirtieth DefendantONESTEEL TRADING PTY LTD
Thirty-first DefendantG M & C INDUSTRIES PTY LTD
Thirty-second DefendantSONIC HEALTHPLUS PTY LTD
Thirty-third DefendantSYLVANIA LIGHTING AUSTRALASIA PTY LTD
Thirty-fourth DefendantPARCHEM CONSTRUCTION SUPPLIES PTY LTD
Thirty-fifth DefendantEPOCA CONSTRUCTIONS PTY LTD
Thirty-sixth Defendant
Catchwords:
Practice and procedure - Insolvency - Application by liquidator for leave to join multiple parties in actions pursuant to O 18 r 4 of the Rules of the Supreme Court of Western Australia - Liquidator seeking leave nunc pro tunc to join multiple parties to proceedings without leave that was opposed by certain defendants - Common issues of insolvency of failed trading group and other issues - Whether court should exercise discretion to grant leave to allow multiple defendants in the circumstances - Case management principles - Looming expiry of three-year period under s 588FF(3)(a)(i) one day after filing of liquidator's commencing processes - Assertion of prejudice by two joined defendants on basis of argued loss of accrued limitation rights in event leave nunc pro tunc to allow joinder of multiple defendants granted
Legislation:
Corporations Act 2001 (Cth), s 588FF
Rules of the Supreme Court 1971 (WA), O 18 r 4
Result:
Leave granted to join multiple parties in the two actions
Category: B
Representation:
COR 20 of 2017
Counsel:
First Plaintiff : Mr J C Vaughan SC & Mr M J Sims
Second Plaintiff : Mr J C Vaughan SC & Mr M J Sims
Third Plaintiff : Mr J C Vaughan SC & Mr M J Sims
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : Mr G Abbott
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Solicitors:
First Plaintiff : Chew+Matthews
Second Plaintiff : Chew+Matthews
Third Plaintiff : Chew+Matthews
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : King & Wood Mallesons
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
COR 21 of 2017
Counsel:
First Plaintiff : Mr J C Vaughan SC & Mr W C J Zappia
Second Plaintiff : Mr J C Vaughan SC & Mr W C J Zappia
Third Plaintiff : Mr J C Vaughan SC & Mr W C J Zappia
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Sixteenth Defendant : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : No appearance
Twentieth Defendant : No appearance
Twenty-first Defendant : Mr D H Solomon
Twenty-second Defendant : No appearance
Twenty-third Defendant : No appearance
Twenty-fourth Defendant : No appearance
Twenty-fifth Defendant : No appearance
Twenty-sixth Defendant : No appearance
Twenty-seventh Defendant : No appearance
Twenty-eighth Defendant : No appearance
Twenty-ninth Defendant : No appearance
Thirtieth Defendant : No appearance
Thirty-first Defendant : No appearance
Thirty-second Defendant : No appearance
Thirty-third Defendant : No appearance
Thirty-fourth Defendant : No appearance
Thirty-fifth Defendant : No appearance
Thirty-sixth Defendant : No appearance
Solicitors:
First Plaintiff : Lavan
Second Plaintiff : Lavan
Third Plaintiff : Lavan
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Sixteenth Defendant : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : No appearance
Twentieth Defendant : No appearance
Twenty-first Defendant : Solomon Brothers
Twenty-second Defendant : No appearance
Twenty-third Defendant : No appearance
Twenty-fourth Defendant : No appearance
Twenty-fifth Defendant : No appearance
Twenty-sixth Defendant : No appearance
Twenty-seventh Defendant : No appearance
Twenty-eighth Defendant : No appearance
Twenty-ninth Defendant : No appearance
Thirtieth Defendant : No appearance
Thirty-first Defendant : No appearance
Thirty-second Defendant : No appearance
Thirty-third Defendant : No appearance
Thirty-fourth Defendant : No appearance
Thirty-fifth Defendant : No appearance
Thirty-sixth Defendant : No appearance
Case(s) referred to in judgment(s):
Baker v Shire of Albany (1994) 14 WAR 46
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Bingham v England (1996) 17 WAR 226
Dean‑Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525; (2002) 55 NSWLR 64
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114
Gloria Marshall Australia Pty Ltd (in liq) v Bell Press Pty Ltd [2002] NSWSC 1191
Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334
Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171
Lord v Agreserves Australia Ltd [2006] FCA 598
Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269
Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348
Re RCG CBD Pty Ltd (in liq) [2016] NSWSC 1489
Rizeq v State of Western Australia [2017] HCA 23
Silverstone Holdings Pty Ltd v American Home Assurance Co (1997) 18 WAR 516
South Johnstone Mill Ltd v Dennis [2007] FCA 1448; (2007) 163 FCR 343
KENNETH MARTIN J: Martin Bruce Jones (the Liquidator) is the sole liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) (Forge Ltd).
Forge Ltd is the parent company of a group of corporations once known as the Forge group - of which all member corporations are now in liquidation, with Mr Jones as their common liquidator.
Relevantly, some other subsidiaries within the Forge group of corporations included:
(a)Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (Forge Construction);
(b)Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (Forge Power); and
(c)Forge Group Asset Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (FGAM).
COR 20 of 2017
Mr Jones as liquidator of the three Forge group entities (Forge Ltd, Forge Construction and Forge Power) commenced COR 20 of 2017 by an originating process filed in this court on 10 February 2017. The originating process named Sun Engineering (Qld) Pty Ltd as first defendant along with nine other defendants (10 in all).
Mr Jones' originating process in COR 20 of 2017 pursues relief under s 588FA, s 588FC, s 588FE and s 588FF of the Corporations Act 2001 (Cth), essentially with the liquidator seeking to void numerous payments made by those Forge group members as unfair preferences, or payments subjected to other related relief.
However, it is the case that COR 20 of 2017 was commenced without Mr Jones first obtaining leave pursuant to O 18 r 4(1) of the Rules of the Supreme Court 1971 (WA) (RSC) permitting the joinder in that proceeding of multiple (3) plaintiffs and the multiple (10) defendants.
No real issue arises in COR 20 of 2017 concerning a common joinder by Mr Jones without leave in his three liquidator plaintiff capacities in the one proceeding at commencement. Rather, it is the joinder of the multiple defendants which is the potentially problematic focus of the present applications.
Mr Jones accepts vis-à-vis the 10 defendants who were all made parties to COR 20 of 2017 that their common joinder within that action as defendants does not satisfy the 'without leave' criteria permitted by the rules for bringing some types of proceedings either by or against multiple parties by RSC O 18 r 4(1)(b). Consequently, it is also accepted by Mr Jones, at this time, that leave to join all the parties within that action, COR 20 of 2017, must be obtained.
Mr Jones now seeks that leave - as seen claimed under par 1.1 of the originating process that began COR 20 of 2017. Paragraph 1.1 of the originating process seeks:
1.As against each of the Defendants:
1.1if and to the extent required, an order that the plaintiffs be granted leave nunc pro tunc to be joined as plaintiffs to the proceeding and to join each of the Defendants to the proceeding pursuant to Order 18 rule 4(1) of the Rules of the Supreme Court WA 1971.
Mr Jones as liquidator now accepts, as regards the joinder of the multiple plaintiffs and defendants, that leave from the court pursuant to RSC O 18 r 4(1) is required, notwithstanding the 'to the extent required' preface to par 1.1.
There is no real issue concerning the multiple plaintiffs and Mr Jones' three capacities as liquidator of each Forge group member plaintiff. Accordingly, leave in that respect should be granted.
As regards the joinder of the multiple defendants in COR 20 of 2017, the position remains controversial.
I note at par 1.2 of the originating process that COR 20 of 2017 seeks in the alternative orders pursuant to s 588FF(3)(b) of the Corporations Act - to extend the period within which an application may be made by each of the plaintiffs under s 588FF(1) to obtain an order against the defendants in respect of the payments sought to be recovered by the liquidator from each defendant. The extension of time the plaintiffs seek to a date not less than 14 days after the date of the refusal of any grant of leave sought by par 1.1. But that foreshadowed (alternative) extension of time relief is not pursued by Mr Jones upon the present application. It is deferred to be dealt with later, if necessary. The hearing proceeded on that premise.
Presently, therefore, I am only concerned within COR 20 of 2017 with the liquidator's application for leave now sought under RSC O 18 r 4(1) and which is sought essentially after the event of commencing this litigation (or 'nunc pro tunc') as regards a permitted joinder of each of the (remaining) defendants within COR 20 of 2017.
There have been some relevant defendant developments since 10 February 2017 following the filing of the liquidator's originating process in COR 20 of 2017 as regards participation.
At the hearing of this application, Mr Jones, by senior counsel, has advised me that three of the claims pursued by the liquidator against named defendants have now been resolved. Those defendants are no longer participants in the litigation.
As regards the residual seven defendants, the position advised is that six have indicated, either directly, or through nominated legal representatives of record, that they neither consent nor oppose the liquidator's present application to obtain leave nunc pro tunc - as regards a permitted joinder by leave of multiple defendants in COR 20 of 2017.
However, one defendant from COR 20 of 2017, namely the fifth defendant, Price WaterhouseCoopers (PWC), actively opposes the grant of leave now sought by the liquidator - as regards its joinder in the proceedings with any other defendants. To that end, PWC had caused its legal representatives to enter a notice of conditional appearance on its behalf on 13 March 2017, after it was served with the originating process. A conditional appearance was filed on a basis of PWC's contention as to 'irregularities in the originating process'.
On 27 March 2017, PWC by a notice of motion, moved pursuant to RCS O 12 r 6(2) to set aside the liquidator's originating process brought against it on the basis of 'irregularity' - and which PWC's application expressly identified as a 'failure to comply with O 18 r 4(1) … insofar as it relates to the fifth defendants [sic]'.
PWC's motion was supported by an affidavit of Robert Slattery, affirmed 27 March 2017.
COR 21 of 2017
Mr Jones as liquidator, also on 10 February 2017, commenced COR 21 of 2017, this time against 36 different defendants. The relief claimed is seen to advance similar unfair preference payment issues as for COR 20 of 2017, as against further defendants. The solicitors of record for the plaintiffs in this action are distinct to COR 20 of 2017.
Mr Jones, in three different capacities as liquidator of three Forge group member entities, is once again the common plaintiff. In this proceeding Mr Jones, as liquidator of Forge Construction and Forge Power, is again a plaintiff. However, Mr Jones as liquidator of Forge Group Asset Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (FGAM) is the third plaintiff in COR 21 of 2017 (and Forge Ltd is not a participant plaintiff in COR 21 of 2017).
Pursuant to par 1.1 of this commencing originating process, leave is presently sought by Mr Jones as regards joinder of the three plaintiffs (that again is uncontroversial) and the multiple defendants. Leave to join is sought in terms identical to that sought in COR 20 of 2017 - along with the alternative extension of time relief under par 1.2 (again deferred, and not currently pursued).
In COR 21 of 2017, Mr Jones again accepts that leave to aggregate the observed multiple parties in that one action is now required. In essence though, it is only the joinder of the multiple defendants which has been put at issue and again only by one defendant.
Hence, this leave application in COR 21 of 2017 and the similar application by Mr Jones for leave in COR 20 of 2017 raise common considerations as regards the two actively opposing defendants.
There have also been some relevant developments since commencement of COR 21 of 2017, as regards participant defendants.
At the hearing of this application, I was advised that Mr Jones has either achieved a resolution or reached arrangements for a stay with eight of the originally named 36 defendants in COR 21 of 2017.
Of the residual 28 defendants in COR 21 of 2017, the position advised by Mr Jones is that five have now indicated their consent to leave being granted to the liquidator as regards their common joinder in the proceeding as defendants.
Nineteen other named defendants in COR 21 of 2017 have indicated that they neither consent nor oppose a grant of leave as sought by the liquidator. But they have not otherwise sought to be heard.
In COR 21 of 2017, only one defendant, namely the twenty-first defendant Southern Wire Pty Ltd (Southern Wire), has actively participated and indicated its affirmative opposition to the leave as is presently sought by the liquidator as regards his joinder of multiple parties in COR 21 of 2017.
Unlike PWC in COR 20 of 2017, Southern Wire filed an unconditional appearance ‑ after it had been served with the liquidator's originating process in COR 21 of 2017. In adopting that course Southern Wire ran a risk of waiving an irregularity in the liquidator's action against it. However, the liquidator through senior counsel at the hearing of the application, indicated he did not wish to take any waiver point against Southern Wire. That stance was taken, in effect, to permit Southern Wire's active opposition against leave for it to being joined at this time as a defendant with other defendants in COR 21 of 2017 ‑ to be evaluated upon its merits.
Southern Wire, through its legal representatives, has now filed two tranches of lengthy written submissions (of 9 May and 30 May 2017, respectively) articulating active opposition to any grant of leave to the liquidator at this time, as regards its joinder as a defendant with other defendants within COR 21 of 2017.
Given the liquidator's concession, I granted leave at the hearing to Southern Wire, pursuant to RSC O 23 r 1, for it to withdraw its unconditional appearance. In that respect, Southern Wire, in effect, now replicates the same jurisdictional opposing stance against joinder as for PWC in COR 20 of 2017.
So it is that Southern Wire now contends for a violation of RSC O 18 r 4(1) arising from the liquidator's failure to earlier obtain leave from this court to join it with the other defendants to COR 21 of 2017 - prior to the filing and commencement of the liquidator's originating process in COR 21 of 2017, on 10 February 2017.
Before advancing further to consider specific opposition arguments advanced by PWC, in COR 20 of 2017, and by Southern Wire, in COR 21 of 2017, it is convenient to set out the terms of RSC O 2 r 1. As we will see, they bear materially upon the underlying character of opposing arguments. RSC O 2 r 1(1) of the rules of this court provides:
Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
In COR 20 of 2017, PWC opposes leave sought by the liquidator and affirmatively applies under its notice of motion to set aside the proceedings brought against it by Mr Jones.
In COR 21 of 2017, Southern Wire opposes the liquidator's application for leave to join multiple defendants advanced pursuant to par 1.1 of that originating process.
Some legislative background
In both COR 20 of 2017 and COR 21 of 2017, with respect to civil matters arising under Corporations legislation, namely the Corporations Act 2001 (Cth), the Supreme Court of Western Australia is exercising the federal jurisdiction that is conferred upon it by s 1337B(2) of the Corporations Act.
From that commencing platform, it is convenient to see the terms of s 588FF(1) and (3) of the Corporations Act which provide (relevantly):
(1)Where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of section 588FE, the court may make one or more of the following orders:
(a)an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction;
…
(3)An application under subsection (1) may only be made:
(a)during the period beginning on the relation-back day and ending:
(i)3 years after the relation-back day; or
…
whichever is the later; or
(b)within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.
Timing
Corporations who were members of the Forge group of companies commonly entered into administration on 11 February 2014. Subsequently, those corporations were placed into liquidation. Consequently, the relevant 'relation‑back day' that becomes applicable under s 588FF(3)(a)(i), and as defined by s 9 and s 91 of the Corporations Act, is 11 February 2014.
As a result, it can be seen that the three‑year period applicable to Forge group members under s 588FF(3)(a)(i), expired at midnight on 11 February 2017.
It may then be appreciated that the liquidator's originating processes filed out of this court on 10 February 2017 commencing both COR 20 and COR 21 of 2017 ‑ were filed only one day before the looming expiry of the three‑year period under s 588FF(3)(a)(i).
Nevertheless, it is clear the two originating process as commenced by Mr Jones in his different liquidator capacities ‑ COR 20 of 2017 and COR 21 of 2017 were commenced within time in this court.
The two processes, COR 20 and COR 21 of 2017, were commenced procedurally under the Supreme Court (Corporations) Act (WA) Rules 2004 (Corporations Rules) as originating processes (see r 2.2(3)(a) and r 2.4). As such they meet a prerequisite of s 588FF(1) as being 'application(s)' by a 'company's liquidator'. Fulfilment of that criteria is significant, given the observations by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 [36]. That plurality had observed:
Two stipulations for the competent institution of the application under s 588FF(1) which the respondents made … were that it be made by the liquidator of the second respondent and that it be made, as was the case, within three years after the relation‑back day. These stipulations were elements of the right of the respondents to have (the District Court of New South Wales) consider the making of the order for payment sought by them.
They continued at [40]:
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 provision 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.
For the Supreme Court of Western Australia, the local procedural regime of rules for Corporations Act matters is rendered applicable via s 79 of the Judiciary Act 1903 (Cth) begins with the local Corporations Rules. The Corporations Rules are procedurally specific in numerous respects as regards many aspects of corporations civil litigation. But they also expressly incorporate by reference the more general rules of civil procedure of this court ‑ to the extent the general rules are relevant and are not otherwise inconsistent: see r 1.3(2) of the Corporations Rules.
On 21 June 2017 the High Court of Australia delivered its reasons for decision in Rizeq v State of Western Australia [2017] HCA 23, which was an appeal concerning the ramifications of s 79 of the Judiciary Act 1905 (Cth). In the wake of Rizeq the twenty-first defendant in COR 21of 2017 sought and obtained my leave to provide further written submissions to address Rizeq's suggested implications in these proceedings upon the present applications, particularly as regards RSC O 18 r 4(1).
No other party sought to be heard concerning any potential Rizeq implications.
The twenty-first defendant in COR 21 of 2017 by its written submissions of 28 June 2017 contended:
2.Because O 18 r 4(1) is a jurisdictional source of this court's power to determine several claims against several parties in one proceeding which imposes a jurisdictional requirement on a proposed plaintiff seeking to institute one proceeding in this court making several claims against several parties, (as submitted in para 7 of the response submissions and earlier submissions there referred to), by reason of the matters in para 1 above, Rizeq establishes that O 18 r 4(1) is not a provision picked up by s 79 of JA because:-
2.1this court is not 'exercising' federal jurisdiction until after that jurisdictional requirement has been complied with by a proposed plaintiff;
2.2further or alternatively, O 18 r 4(1) establishes an aspect of the character or constitution of this court which the Commonwealth must take as found in investing this court with federal jurisdiction and which the Commonwealth is incapable of altering.
3.That O 18 r 4(1) is not picked up by s 79 of JA does not mean it is inoperative in this matter. It is an aspect of State law binding on a proposed plaintiff before the exercise of federal jurisdiction by this court commences, in the same way as s 6(1) of the Misuse of Drugs Act 1981 was held to be binding in the exercise of federal jurisdiction in Rizeq.
4.Alternatively, if O 18 r 4(1) is picked up by s 79 of JA, Rizeq now affirms (as referred to in para 1.3 above) that it is picked up as Commonwealth law with this same meaning as in State law. Order 18 r 4(1) is therefore, in that event, still a jurisdictional requirement to be satisfied by a proposed plaintiff seeking to institute a proceeding in this court making several claims against several parties under s 588FF(1) or s 588FF(3) of the Corporations Act 2001.
On my assessment, working from the plurality reasons of Bell, Gageler, Keane, Nettle and Gordon JJ, Rizeq does not in the end bear materially here upon the present applications. This court is clearly exercising the federal jurisdiction expressly conferred upon it. However, as seen, no suggestion is made that this court's procedural rules (including RSC O 18 r 4) do not, at the end of the day, apply - irrespective of the genesis or source of their end application. Hence, it is unnecessary to consider any implications of Rizeq beyond that end position.
Joinder
Consequently, the general civil procedural rules of this court apply ‑ subject to a qualification for circumstances where the Corporations Rules cater more specifically for any presenting procedural issue.
So it is that RSC O 2 r 1 is applicable as regards irregularities. It is not in contention toward present circumstances that O 2 r 1 of this court's rules does not apply. RSC O 2 r 1 was actively referred to on all sides at the hearing of the present applications.
By reason of the application of O 2 r 1, it is clear the originating processes filed in this court on 10 February 2017 by Mr Jones to commence COR 20 of 2017 and COR 21 of 2017 are not and never were, 'nullities'.
That is the foundational commencing position for evaluating the present leave applications, notwithstanding that as originating processes filed within this court, they may have otherwise manifested features of 'irregularity'.
In present circumstances there is the identifiable irregularity arising out of the fact that at commencement of both proceedings on 10 February 2017, as regards a joinder of multiple parties, that leave of the court had not first been obtained under RSC O 18 r 4(1) by Mr Jones as plaintiff for him to bring his proceedings against all the multiple named defendants (and plaintiffs).
It is convenient at this point to set out RSC O 18 r 4. That rule provides:
4.Joinder of parties
(1)Subject to rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where ‑
(a)if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and
(b)all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
As I indicated, the liquidator's position upon the present application is that the limited circumstances as are mentioned in RSC O 18 r 4(1) do not apply where leave is not required as regards joinder. Hence, it is accepted that leave to join the multiple parties within COR 20 of 2017 and COR 21 of 2017 needs to be obtained by Mr Jones.
That requirement is fully accepted by Mr Jones notwithstanding that there presents in both processes a common underlying insolvency issue of law and fact ‑ as regards the solvency at a point or points in time of members of the failed Forge group. There are also cross-guarantees given as between all members of the failed Forge group member corporations.
The difficulty for the liquidator as regards any possible joinder of parties without leave is the inability to also meet O 18 r 4(1)(b) - as regards showing his relief is sought in respect of the 'same transaction or series of transactions'. That limb is clearly not met. There appears to have been multiple, diverse transactions and separate relationships as between Forge group members and their diverse creditors - who received payments now under scrutiny as possible preference payments. Thus, leave to join multiple parties is needed for present circumstances.
The litigation circumstances of COR 20 and COR 21 of 2017 reflect what is clearly a large scale and complex 'preference' recoupment exercise being undertaken by Mr Jones as liquidator of at least four failed Forge group corporations and involving multi-million dollar claims.
'Mother proceedings'
There presents what looks to be overwhelming forensic convenience for a liquidator in a large scale insolvency being able to proceed by a use of uniformly case‑managed civil proceedings taken by the liquidator in a Supreme Court against multiple defendants. That precedent is now well established in Australia.
The procedural mechanism of a liquidator utilising what has come to be referred to as a 'mother proceeding' taken against multiple defendants was explained by Austin J in a seminal insolvency decision in this country, Dean‑Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525; (2002) 55 NSWLR 64. That decision and its 'mother proceeding' approach have then been followed on subsequent occasions in Australia. It is noteworthy as regards the Dean-Willcocks decision that at that time (ie in 2002) pt 8 r 2 of the Supreme Court Rules 1970 (NSW) was then phrased in terms akin to RSC O 18 r 4 of the current rules of this court - albeit that the capacity to proceed by leave was made the subject of a separate subpar (b) in the New South Wales rule.
A liquidator's 'mother proceeding' approach as was identified by Austin J in the Dean‑Willcocks decision has subsequently been accepted in Gloria Marshall Australia Pty Ltd (in liq) v Bell Press Pty Ltd [2002] NSWSC 1191 [4] (Young CJ); Lord v Agreserves Australia Ltd [2006] FCA 598 [12] (Jacobson J) and Re RCG CBD Pty Ltd (in liq) [2016] NSWSC 1489 [7] (Black J).
In Re RCG CBD Pty Ltd at [7], Black J said that the circumstances in which a court may grant leave to join multiple defendants in the one unfair preference action were 'well established'. He observed [8]:
It should be recognised that there is, of course, a risk of disadvantage to a single defendant in the joinder of multiple defendants, to the extent that it may be required to be present while issues affecting other defendants are addressed. That disadvantage can be mitigated, however, by case management, and I would have determined this application, had it been contested, on the basis that the Court would make appropriate orders for case management. In Lord v Agreserves Australia Ltd [2006] FCA 598, Jacobson J referred to the approach adopted by Austin J in Air TransitInternational and applied the same approach, there granting leave to join the several defendants, although in that case there were several separate proceedings involved. In Re ACN 107 936 827 Pty Ltd (formerly known as Eaton Group Australia Pty Ltd) (in liq) (unreported, 21 September 2015), I followed those decisions, in granting leave under r 6.19 of the Uniform Civil Procedure Rules to bring an application under s 588FF of the Corporations Act against multiple defendants in respect of transactions alleged to constitute voidable transactions and, in particular, unfair preferences. In Re Eaton Electrical Group (Qld) Pty Ltd (in liq) (26 September 2016), Brereton J similarly observed, in the course of argument, although it was ultimately not necessary for his Honour to deliver a formal judgment, that the existence of a common issue as to solvency is likely to be sufficient for the grant of such leave, even if there are other issues that are distinct between the parties which will need to be addressed by issues of case management.
The line of national case authority decided in reference to the Corporations Act supporting the use of a 'mother proceeding' is therefore seen to be significant, persuasive and binding on me ‑ particularly in circumstances where this court is exercising federal jurisdiction. This court should recognise and implement to the fullest extent open a process of uniform decision‑making towards a nationally applied corporate regulatory regime across Australia.
But in present circumstances, both PWC and Southern Wire point to a suggested unique underlying factual feature, namely an expiry of the three‑year period as identified under s 588FF(3) on 11 February 2017, at a time without this court having then granted leave to the liquidator to permit a joinder of PWC and Southern Wire as defendants with the other multiple defendants also joined in COR 20 of 2017 and COR 21 of 2017.
Accordingly, it is argued by PWC and Southern Wire that this suggested limitation and expiry of time feature throws up unique circumstances ‑ which, in the end, detract from any affirmative application of case authorities where leave to proceed against multiple defendants by using 'mother proceedings' has uniformly been allowed.
But against that broad submission opposing leave to join at this time, I should identify that the underlying facts of the 2002 Dean‑Willcocks decision itself had displayed circumstances under which the same three‑year applicable time period had run out ‑ and prior to Austin J granting leave in that decision to, in effect, sanction the joinder of multiple defendants after the expiry. Austin J observed in terms [49]:
Some defendants submitted that the court should be concerned that the liquidator has instituted two single proceedings just days before the expiry of the three-year limitation period set by s 588FF(3). I do not follow this point. If it was proper for the liquidator to commence two single proceedings rather than separate proceedings against every defendant, the fact that those proceedings were commenced just within the three-year limitation period is relevant. If it is suggested that the liquidator has delayed until the last-minute and then, realising the enormity of the task of preparing separate originating processes and affidavits for about 70 proceedings in a matter of days, he cynically and improperly commenced two single proceedings, the answer is that there is no evidence to that effect.
His Honour continued [50]:
The Court would be reluctant to exercise its discretion in a manner that effectively brought these two proceedings to an end, if in consequence all claims to recover unfair preferences for the benefit of unsecured creditors became statute-barred, where another alternative is available.
With those preliminary observations, I turn to evaluate more specifically the precise objections as raised by PWC and Southern Wire against leave to join them as defendants in a multi defendant action brought by the liquidator being granted at this time.
Submissions opposing leave by PWC
The opposing stance of PWC against leave being given at this time is found encapsulated under par 2, par 9 and par 10 of its written submissions. Paragraph 2 reads:
2.The fifth defendant's primary contention is that the irregularity in the plaintiffs' originating process in COR 20 of 2017 and dated 10 February 2017 (originating process) cannot be cured as no order can be made to add a party after the commencement of the originating process and no order can be made to join a party nunc pro tunc after the expiration of the period provided by s 588FF(3)(a)(i) of the Corporations Act 2001 (Cth) (CA).
Pausing at this point, the inherent fallacy of the submission can be swiftly detected.
The liquidator is not presently seeking to add PWC as a defendant to his originating process of 10 February 2017. PWC is already an existing party (the fifth defendant) to COR 20 of 2017 as from that date.
The true contentious issue of PWC at hand is only an issue as to the liquidator being given leave at this time by the court to proceed in the one action against multiple defendant parties, including PWC.
The erroneous premise of the opposing submission by PWC is to the effect that proceedings have not yet been validly commenced against it. But they clearly have been, and validly so, on 10 February 2017. The presence of an irregularity in the commenced proceeding is something of a different character.
Once that foundational fallacy is exposed, the balance of PWC's associated arguments can be seen to fall away, derivatively.
PWC's submissions continued at par 9 and par 10, in terms:
9.In the usual course, where leave is sought to join parties after the originating process is filed, the joinder will only take effect from the date of the order. However, the rules for adding defendants cannot abrogate limitation statutes and a nunc pro tunc order cannot be made to extend time to issue a writ out of time. That is, now that the period required by CA 588FF(3)(a)(i) for the commencement of the originating process against (PWC) has expired, RSC O 18 r 4 cannot be used nunc pro tunc to circumvent that temporal requirement.
10.Thus, if any order were made under RSC O18 r 4 as sought by the plaintiffs, that order could only be effective to join the fifth defendant from the date of the order, which would mean that the originating process is incompetent (for non-compliance with CA 588FF(3)(a)(i)) and must be dismissed. (footnotes omitted)
Again it can be seen from the first sentence of par 9 that, with respect, the foundation for the submission is misconceived. It proceeds on the same conceptual misapprehension of law to the effect that PWC is not already a party to a valid and subsisting originating process within COR 20 of 2017 in this court as from 10 February 2017.
Other cases, decided within this jurisdiction from time to time, have dealt with rather differing underlying factual or procedural scenarios - such as extending the validity of a stale and unserved writ (see Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269 [34], [36], [37], [45]), or an attempted amending of pleadings to permit new causes of action to be raised against parties - where limitation periods have expired. As to that latter situation, see now Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [46] and [57]. The local decisions referred to by PWC are either distinguishable on their facts, or not relevant to the present legal point at issue.
For present circumstances, whilst there is an accepted 'irregularity' in the commencement of COR 20 of 2017 by Mr Jones as liquidator against multiple defendants without first obtaining leave to join all parties, that issue relates to the matter of multiple parties (relevantly the defendants) being aggregated in one action without prior leave sanctioning that joinder. The multiple joinder issue and the resultant irregularity does not, on my assessment, equate to a wholly distinct conceptual scenario - of a failure to commence proceedings against PWC within the three-year time frame under s 588FF(3). That is a very different situation to what has occurred in fact here. The present situation is not a nullity problem for the originating process - as regards a potential non-commencement of originating process within time. The words of RSC O 2 r 1 render that conclusion explicit. Neither COR 20 of 2017 nor COR 21 of 2017 were nullities after they were filed in this court on 10 February 2017.
An 'irregularity' problem is presently capable of being cured by a grant of leave to retrospectively sanction the aggregation of the multiple defendants in one action, if a grant of leave is otherwise assessed as appropriate at this time. Procedural irregularities of such nature can be cured by the grant of leave issued after the filing of the originating process (by leave from the court that is granted nunc pro tunc, as it is termed).
No case authority decided in Western Australia, as I assess the overall legal position, inhibits this court, at this time, from granting leave to sanction the irregular joinder of multiple parties under RSC O18 r 4(1), if the underlying circumstances, as now assessed, warrant that grant of leave.
As Mr Jones' submissions point out, the terms of RSC O 18 r 4(1) stand in some contrast textually to the earlier RSC O 18 r 1(2). That first mentioned rule is more explicit in terms of an express temporal requirement to obtain leave beforehand. RSC O 18 r 1(2) says:
An application for leave under this rule must be made ex parte by affidavit before the issue of the writ and the affidavit must state the grounds of the application.
Even so, it has been authoritatively held in this State that leave may still be granted under O 18 r 1 after the issue of the writ ‑ notwithstanding that leave was not obtained prior to an issue of the writ ‑ in violation of O 18 r 1: see Silverstone Holdings Pty Ltd v American Home Assurance Co (1997) 18 WAR 516, at 519, 527, 535. Leave was given to remedy that irregularity (in that litigation, with the power to grant leave retrospectively (ie, nunc pro tunc) being found to arise either under RSC O 2 r 1, or the inherent jurisdiction of the court).
I would further observe that nothing in the materials filed on behalf of PWC (see the affidavit of Robert Slattery of 27 March 2017) identifies any specific prejudice that is said to fall upon PWC, by reason of the required future participation by it as a co‑defendant within present action COR 20 of 2017 - and alongside the other named defendants.
There is a clear distinction as between a true prejudice and a loss of a 'forensic windfall', as was identified by Middleton J in South Johnstone Mill Ltd v Dennis [2007] FCA 1448; (2007) 163 FCR 343 [59]. In the context of evaluating the discretionary aspects of granting leave nunc pro tunc in that context, his Honour had observed:
In addition, given the possibility that the causes of action will be statute‑barred if one takes the view that leave should not be granted nunc pro tunc, this will deny the company any potentially good cause of action. In those circumstances incurable prejudice may flow to the company. On the other hand, the respondents merely seek to protect a forensic windfall, which is not a proper basis for denying leave nunc pro tunc: see Karam v Australian and New Zealand Banking Group Ltd (2000) 34 ACSR 545 per Santo J. Nowhere does any respondent indicate any other relevant prejudice arising from granting leave nunc pro tunc, if it were otherwise appropriate to do so.
Middleton J, of course, had then been concerned with a grant of leave sought retrospectively under s 236 and s 237 of the Corporations Act, after the commencement of statutory oppression proceedings. Nevertheless, his Honour's comprehensive analysis of the basis for the power of the Federal Court to grant leave nunc pro tunc, seen commencing at [24] advancing to [56], canvas the significant case authorities on the point, including the High Court's observations in Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 and a decision of the Full Court of the Federal Court in Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171. In my assessment, Middleton J's approach and observations are analogously persuasive in the present context of s 588FF of the Corporations Act.
PWC's arguments raised against a grant of retrospective leave to the liquidator must fail. Correlatively, PWC's notice of motion must also fail.
Submissions of Southern Wire
There are strong conceptual parallels within the tranches of opposing written submissions filed on behalf of Southern Wire, with the opposing submissions against leave as advanced by PWC - which I have now rejected. However, the basis of Southern Wire's opposition is broader. Heavy emphasis is once again directed at a suggested running out of the three-year period as set under s 588FF(3)(a) prior to this court issuing a ruling on the liquidator's pending leave application in COR 21 of 2017 as regards a joinder of multiple defendants in that action.
It is convenient to identify a number of paragraphs from Southern Wire's first tranche of written submissions of 9 May 2017. I begin with par 25 which is in the following terms:
It is clearly established by repeated appellate decisions in this State that a required order granting leave to commence a proceeding cannot be made nunc pro tunc (whether on a separate interlocutory application in a proceeding which has been commenced or, as here, on an application seeking the relief in the originating process commencing the proceeding).
Footnote 47 of Southern Wire's submissions mentions local decisions of Bingham v England (1996) 17 WAR 226, 239 B - D; Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348, 354 - 355 (Anderson J); and Baker v Shire of Albany (1994) 14 WAR 46, 57 (Kennedy J).
Southern Wire's written submissions continue:
Because O 18 r 4(1) only confers power on the court to grant leave to commence proceedings (and not to join parties to an existing proceeding) … the reasoning in those authorities is directly applicable … This point alone should be determinative of both the application for an order granting leave nunc pro tunc under O 18 r 4(1) and … any consideration of the matter under O 2 r 1(2).
The above contention, which was repeatedly emphasised by counsel for Southern Wire during verbal argument, essentially, displays the same, in principle, misconception that undermined the arguments of PWC. The present is not a scenario of a liquidator now seeking leave to commence a proceeding against Southern Wire nunc pro tunc. COR 21 of 2017 has already been validly commenced against Southern Wire as a defendant, on 10 February 2017.
As pointed out in the written reply submissions of 24 May 2017, the liquidator, as plaintiff, does not require and does not seek any order granting leave to commence proceedings pursuant to s 588FF(1)(a) of the Act against any defendant named in COR 20 of 2017 or COR 21 of 2017. Such proceedings are already (validly) commenced.
The liquidator's present application (relevantly) is merely to seek orders granting leave to join the multiple parties seen within those actions as co-defendants. This is in circumstances where it is plain that the court holds the power to grant that leave at this time, even though the action has commenced and even though the relevantly stated three‑year period has now run (ie, leave granted nunc pro tunc): see Re RCG CBD [10] (Black J).
Accordingly, the references to many West Australian case authorities as found in the footnotes to Southern Wire's submissions, addressing legislative provisions where there is a more express or direct requirement for leave to be obtained prior to a commencement of local proceedings, in the end, are not to the point here.
The written submissions of Southern Wire then contend that in any event no order granting leave nunc pro tunc ought to be made at this time. It is said:
26.Further or alternatively to para 25, the plaintiffs' submissions (and the prolix affidavit evidence in support of the application) do not establish the matters required to be established in accordance with the authorities referred to in para 24 above to obtain an order nunc pro tunc granting leave or an order excusing the irregularity under O 2. In particular:
26.1the initial letters of demand to the twenty‑first defendant were dated 9 and 19 December 2016. Proceedings were plainly contemplated against the twenty-first defendant then (almost two months before the limitation period ended on 10 February 2017). No reason has been given in the plaintiffs' voluminous affidavit evidence as to why an application for leave under O 18 r 4(1) to commence joined proceedings was not made and determined a sufficient time before expiry of the limitation period to enable separate proceedings to be commenced during the limitation period if required, as contemplated by the second sentence of [38] of Air Transit International quoted in para 6 above or, alternatively, commencement of separate proceedings followed by consolidation, which is what was done in Agreserves referred to in para 7 above. The careful structuring of the relief sought in paras 1.1 and 1.2 of the originating process referred to in paras 3 and 4 above shows, in the absence of any other explanation in the plaintiffs' affidavits, that the filing of the originating process not complying with O 18 r 4(1) was deliberate conduct with knowledge of the imminent expiry of the limitation period. There is therefore, applying the authorities referred to in para 24 above, nothing exceptional in the facts to justify the making of an order nunc pro tunc, nor is there, applying the authorities referred to in paras 17 and 20 above, any relevant omission or mistake in practice or procedure which has been satisfactorily explained and which warrants excusing an irregularity under O 2; and
26.2because the limitation period in s 588FF(3)(a)(i) of the Act expired on 10 February 2017 (without an application to extend time having been made regularly by that date as required by s 588FF(3)(b) of the Act), an order granting leave nunc pro tunc under O 18 r 4(1) will affect the substantive right which accrued to the twenty‑first defendant under s 588FF(3) at the end of 10 February 2017. Because that substantive right would be affected, an order having that effect would, applying the authorities referred to in para 26.1, cause material prejudice to the twenty-first defendant for the purposes of both the nunc pro tunc application and O 2 considerations, in addition to the prejudice referred to in paras 27.2 and 27.3 below.
Accordingly, the plaintiffs have clearly not established an entitlement to an order nunc pro tunc granting leave to commence the proceeding under O 18 r 4(1) or an order excusing irregularity under O 2. The matters in this para 26 are separately (and alternatively to para 25) determinative of the application.
Southern Wire then further submits that even if an application had been made prior to or contemporaneously with Mr Jones' commencement of COR 21 of 2017, that leave would not then have been granted. The submissions continue:
27.Further or alternatively to paras 25 and 26, the following factors, which would be relevant if an order granting leave to commence proceedings under O 18 r 4(1) were regularly sought before institution of the proceedings, which together or individually (and in addition to those in para 26) warrant discretionary refusal of the application for an order granting leave nunc pro tunc under the principles referred to in paras 22 and 23 above, are:
27.1.the public interest in not facilitating avoidance of payment of prescribed filing fees referred to in para 10 above;
27.2.the burden on individual defendants by being joined in this proceeding, established by the voluminous correspondence to date annexed to the Burns Affidavit and the other matters referred to in para 5 above, as well as the burden of reading the voluminous evidence in support of this application in order to properly oppose this application;
27.3the concession by the plaintiffs' senior counsel at the strategic conference that mediation is impossible gives rise to material oppression. Mediation is an important component of all civil litigation in this Court (and is subject of a separate Part - Part VI - of the Supreme Court Act). For there to be no mediation but just the opportunity announced at the strategic conference for individual defendants to separately negotiate is oppressive because the hugely increased costs of defence incurred and likely to be incurred by individual defendants joined in the proceeding (as evidenced by what has occurred to date detailed in the Burns Affidavit) is clearly to be used as a lever by the plaintiffs to unfairly obtain individual negotiated settlements favourable to the plaintiffs.
27.4.the admitted lack of connection of the twenty‑first defendant with any other defendant: para 12 of the plaintiffs' submissions, a factor of importance in Axis referred to in para 23 above;
27.5.the fact that the Parliament provided a mechanism for a liquidator to avoid repeated proof of insolvency by creating the statutory presumptions in s 588E(8) of the Act shows that the Parliament contemplated that presumption being utilised in separate proceedings (or at least separate proceedings case managed together as appropriate) where overlapping issues in numerous claims by a liquidator arise, rather than an oppressive omnibus proceeding joining many defendants such as the present; and
27.6in all of the circumstances detailed in these submissions, including those in paras 27.2 and 27.3 and the unexplained, deliberate conduct referred to in para 26.1, the proceeding has been, and will continue to be, unjustifiably oppressive to individual defendants ‑ and the court avoids that outcome because unjustifiable oppression of a party is an abuse of process.
However, I must reject all these submissions as advanced by Southern Wire as to it suffering any generalised or fact specific prejudice in present circumstances and which would inhibit this court from granting the leave sought by the liquidator at this time as regards joinder.
In the present particular prevailing context of a large scale insolvency recovery action by a liquidator, in a complex corporate failure scenario of interrelated corporations and cross‑guarantees, the in‑principle considerations articulated by Austin J in Dean-Willocks, in my view, are obvious. They remain overwhelmingly compelling. They must prevail over Southern Wire's grievances against a grant of leave.
That, of course, is not to say that for circumstances where a 'mother proceeding' is commenced as regards numerous defendants, that bespoke case management considerations concerning the position of a particular defendant within the overall litigation may not arise for future consideration and raise the need for case specific redress, where needed, from time to time. For instance, Black J explicitly recognises that function for case management in the Re RCG CBD decision.
But any participation concerns applicable towards the idiosyncratic positions of an individual defendant remain, in my view, more than capable of being addressed by tailored case management directions to accommodate a situation of a particular defendant as the litigation advances towards a trial, or trials, of a part or parts, of the commenced litigation.
Conclusions
At the heart of the opposing stances of PWC and Southern Wire rests their basal submission that the three-year period set under s 588FF(3)(a)(i) for a liquidator to bring an 'application' has now run - prior to a grant of leave by this court under RSC O 18 r 4(1) permitting joinder of multiple defendants in the application - in circumstances where leave to join the multiple defendants was required to be obtained earlier.
In effect, they both contend it is now too late for leave to be granted by this court to permit this liquidator's action taken as against multiple defendants. Both PWC and Southern Wire contend they hold 'accrued rights', derived from the running and expiry of the three-year period under s 588FF(3)(a) before the issue of any grant of leave to join the multiple defendants. PWC and Southern Wire also assert that these are substantive, not merely procedural rights.
But the core conceptual problem of that opposing stance, in my respectful assessment, is that it ignores the undeniable truth that this liquidator has validly commenced both actions COR 20 of 2017 and COR 21 of 2017 by his originating processes filed in this court on 10 February 2017. This was within the three-year time period. RSC O 2, as now seen, next renders it abundantly clear that the originating processes filed by the liquidator in this court to commence COR 20 of 2017 and COR 21 of 2017, were not nullities. The two actions were validly commenced against all named defendants. They manifest what is, in the end, a curable irregularity.
Irregularities are capable of being cured by a grant of leave by the court at any time. That is the character of the applications presently advanced by the liquidator in both actions pursuant to par 1.1 of his originating process in both proceedings and after the event of their commencement.
The leave applications arising as they do in a complex corporate insolvency context, must be evaluated upon their merits.
I should also say for the record that had I (hypothetically) been evaluating applications made by this liquidator for leave to proceed against the named defendants to COR 20 of 2017 and COR 21 of 2017 at, or contemporaneously with, the filing of the two originating processes on 10 February 2017, my view is that I would almost certainly have granted leave then, to permit a joinder of all the multiple plaintiffs and defendants as seen. The forensic considerations applicable in a complex insolvency recovery action favouring that course were then, and remain as, of obvious magnitude. They would then (as they do now) have almost certainly led me to the conclusions that leave to join all the multiple parties should have been granted.
PWC and Southern Wire have argued that this court lacks jurisdiction (or power) to issue an order granting leave at this time to regularise the joinder of those defendants in both actions. That submission is, I conclude, ultimately fallacious. The court is fully empowered to redress an irregularity, whenever such an issue needs to be confronted.
Neither PWC nor Southern Wire convincingly point to any tangible prejudice of a relevant kind within their materials arising out of a bringing of the 'mother proceedings' by the liquidator which include them as defendants, in present circumstances. By my assessment, any true prejudice as might later emerge that is applicable to their individual circumstances as a participant defendant is more than capable of being addressed by specific case management measures redressing their situations - if, or when, that is needed. True prejudice is not the loss of a 'forensic windfall'.
Once it is accepted that the liquidator's proceedings under COR 20 and COR 21 of 2017 were commenced within time, albeit suffering from the irregularity of not obtaining leave to join the multiple named parties, a loss of accrued limitation rights arguments by the opposing parties, on my assessment, falls away as being conceptually misconceived.
Clearly, this court both holds jurisdiction and power at this time to grant leave to the liquidator to regularise his unilateral joinder of multiple parties and to redress the irregularity. It may do that after the event of the filings of the originating processes by RSC O 18 r 4(1) and, in my view, it should do just that. Significant case authority delivered across Australia in the insolvency context confirms that conclusion.
Consequently, orders in the following terms look to be appropriate in each action:
COR 20 of 2017
1.PWC's application by notice of motion dated 27 March 2017 is dismissed.
2.The plaintiffs have leave pursuant to Order 18 rule 4 of the Rules of the Supreme Court 1971 (WA) (RSC) nunc pro tunc from the commencement of the proceedings, namely 10 February 2017, to join together each of the plaintiffs and the defendants in the action.
3.PWC is to pay the plaintiffs' costs of PWC's application by notice of motion dated 27 March 2017 and the plaintiffs' application to join all parties (including PWC) to the proceeding pursuant to RSC Order 18 rule 4, such costs to be taxed, if not agreed, and to be paid forthwith.
COR 21 of 2017
1.The plaintiffs have leave pursuant to Order 18 rule 4 (1) of the Rules of the Supreme Court 1971 (WA) (RSC) nunc pro tunc from the commencement of the proceedings, namely 10 February 2017, to join together each of the plaintiffs and the defendants in the action.
2.Southern Wire is to pay the plaintiffs' costs of the plaintiffs' application to join all parties (including Southern Wire) to the proceeding pursuant to RSC Order 18 rule 4(1), with such costs to be taxed, if not agreed, and to be paid forthwith.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MARTIN BRUCE JONES As Liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) -v- SUN ENGINEERING (QLD) PTY LTD [2017] WASC 195 (S)
CORAM: KENNETH MARTIN J
HEARD: ON THE PAPERS UNDER THE PARTIES' WRITTEN SUBMISSIONS OF 21, 24 & 25 JULY 2017
DELIVERED : 27 JULY 2017
FILE NO/S: COR 20 of 2017
MATTER :Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 065 464 226); Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 114 897 728); and Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 103 678 324)
BETWEEN: MARTIN BRUCE JONES As Liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation)
First Plaintiff
MARTIN BRUCE JONES As Liquidator of Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Second PlaintiffMARTIN BRUCE JONES As Liquidator of Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Third PlaintiffAND
SUN ENGINEERING (QLD) PTY LTD
First DefendantEASTCOAST DEVELOPMENT ENGINEERING PTY LTD
Second DefendantKPMG (A FIRM)
Third DefendantKPMG FINANCIAL ADVISORY SERVICES (AUSTRALIA) PTY LTD
Fourth DefendantPRICE WATERHOUSECOOPERS (A FIRM)
Fifth DefendantPFP (AUST) PTY LTD
Sixth DefendantBORAL RESOURCES (WA) LTD
Seventh DefendantBORAL RESOURCES (QLD) LTD
Eighth DefendantAMCOM PTY LTD
Ninth DefendantWA SKILLS TRAINING PTY LTD
Tenth Defendant
FILE NO/S :COR 21 of 2017
MATTER :Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 114 897 728); Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 103 678 324); Forge Group Asset Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 161 511 486)
BETWEEN :MARTIN BRUCE JONES As Liquidator of Forge Group Construction Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
First Plaintiff
MARTIN BRUCE JONES As Liquidator of Forge Group Power Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Second PlaintiffMARTIN BRUCE JONES As Liquidator of Forge Group Asset Management Pty Ltd (Receivers and Managers Appointed) (In Liquidation)
Third PlaintiffAND
ALSTOM GRID AUSTRALIA PTY LTD
First DefendantAMEC FOSTER WHEELER AUSTRALIA PTY LTD
Second DefendantBEAVER PROCESS EQUIPMENT PTY LTD
Third DefendantSTREAMLINE UNDERGROUND SERVICES PTY LTD
Fourth DefendantREKMAL HOLDINGS PTY LTD
Fifth DefendantRCR O'DONNELL GRIFFIN PTY LTD
Sixth DefendantSHANNON POWER MANAGEMENT PTY LTD
Seventh DefendantFREMANTLE STEEL FABRICATION CO (WA) PTY LTD
Eighth DefendantBOSNAFIX PTY LTD
Ninth DefendantVEOLIA WATER SOLUTIONS & TECHNOLOGIES (AUSTRALIA) PTY LTD
Tenth DefendantHOLCIM (AUSTRALIA) PTY LTD
Eleventh DefendantSTORK TECHNICAL SERVICES AUSTRALIA PTY LTD
Twelfth DefendantEASTERN CONTRACTING SERVICES PTY LTD
Thirteenth DefendantSTARCLIP ENTERPRISES PTY LTD
Fourteenth DefendantCARDNO GEOTECH PTY LTD
Fifteenth DefendantABB AUSTRALIA PTY LTD
Sixteenth DefendantKNOB 1 PTY LTD (PREVIOUSLY BAC PEFA-MEDICALS PTY LTD)
Seventeenth DefendantGTO ENERGY SERVICES PTY LTD
Eighteenth DefendantPACIFIC CONSTRUCTION GROUP PTY LTD
Nineteenth DefendantRIGGING SHED (SOUTH) PTY LTD
Twentieth DefendantSOUTHERN WIRE PTY LTD
Twenty-first DefendantESCO AUSTRALIA HOLDINGS PTY LTD
Twenty-second DefendantAPTS PTY LTD
Twenty-third DefendantEX PRODUCTS PTY LTD
Twenty-fourth DefendantCORE WATER MANAGEMENT SOLUTIONS PTY LTD
Twenty-fifth DefendantTHE TRUSTEE FOR DTMT UNIT TRUST (PREVIOUSLY DTMT CONSTRUCTION COMPANY)
Twenty-sixth DefendantDEAN WELDON ENTERPRISES PTY LTD
Twenty-seventh DefendantFENCEWRIGHT PTY LTD
Twenty-eighth DefendantJAYTONA PTY LTD
Twenty-ninth DefendantONESTEEL REINFORCING PTY LTD
Thirtieth DefendantONESTEEL TRADING PTY LTD
Thirty-first DefendantG M & C INDUSTRIES PTY LTD
Thirty-second DefendantSONIC HEALTHPLUS PTY LTD
Thirty-third DefendantSYLVANIA LIGHTING AUSTRALASIA PTY LTD
Thirty-fourth DefendantPARCHEM CONSTRUCTION SUPPLIES PTY LTD
Thirty-fifth DefendantEPOCA CONSTRUCTIONS PTY LTD
Thirty-sixth Defendant
Catchwords:
Practice and procedure - Costs issues - Costs follow the event - Apportionment by taxing officer - Turns on own facts
Legislation:
Nil
Result:
Costs orders issued
Category: C
Representation:
COR 20 of 2017
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Solicitors:
First Plaintiff : Chew+Matthews
Second Plaintiff : Chew+Matthews
Third Plaintiff : Chew+Matthews
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : King & Wood Mallesons
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
COR 21 of 2017
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Sixteenth Defendant : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : No appearance
Twentieth Defendant : No appearance
Twenty-first Defendant : No appearance
Twenty-second Defendant : No appearance
Twenty-third Defendant : No appearance
Twenty-fourth Defendant : No appearance
Twenty-fifth Defendant : No appearance
Twenty-sixth Defendant : No appearance
Twenty-seventh Defendant : No appearance
Twenty-eighth Defendant : No appearance
Twenty-ninth Defendant : No appearance
Thirtieth Defendant : No appearance
Thirty-first Defendant : No appearance
Thirty-second Defendant : No appearance
Thirty-third Defendant : No appearance
Thirty-fourth Defendant : No appearance
Thirty-fifth Defendant : No appearance
Thirty-sixth Defendant : No appearance
Solicitors:
First Plaintiff : Lavan
Second Plaintiff : Lavan
Third Plaintiff : Lavan
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Sixteenth Defendant : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : No appearance
Twentieth Defendant : No appearance
Twenty-first Defendant : Solomon Brothers
Twenty-second Defendant : No appearance
Twenty-third Defendant : No appearance
Twenty-fourth Defendant : No appearance
Twenty-fifth Defendant : No appearance
Twenty-sixth Defendant : No appearance
Twenty-seventh Defendant : No appearance
Twenty-eighth Defendant : No appearance
Twenty-ninth Defendant : No appearance
Thirtieth Defendant : No appearance
Thirty-first Defendant : No appearance
Thirty-second Defendant : No appearance
Thirty-third Defendant : No appearance
Thirty-fourth Defendant : No appearance
Thirty-fifth Defendant : No appearance
Thirty-sixth Defendant : No appearance
Case(s) referred to in judgment(s):
Caratti v Caratti [2012] WASC 357
Gillon Pty Ltd (Trustee) v Wet Fix Holdings (No 2) [2016] FCA 1483
Gloucester Shire Council v Fitch Ratings, Inc [No 3] [2017] FCA 553
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2011] WASC 44
MacMahon Contractors Pty Ltd v Woodside Energy Ltd [No 2] [2009] WASC 11
Moran v Schwartz Publishing Pty Ltd [No 6] [2016] WASC 168
Stanley v Layne Christensen Co [2006] WASCA 56
KENNETH MARTIN J: Subsequent to the publication of my reasons on 18 July 2017, the parties have been unable to agree upon dispositive costs orders for those applications.
At [113] of the reasons I indicated a prima facie position in terms of dispositive orders, including as to costs. I said:
Consequently, orders in the following terms look to be appropriate in each action:
COR 20 of 2017
1.PWC's application by notice of motion dated 27 March 2017 is dismissed.
2.The plaintiffs have leave pursuant to Order 18 rule 4 of the Rules of the Supreme Court 1971 (WA) (RSC) nun pro tunc from the commencement of the proceedings, namely 10 February 2017, to join together each of the plaintiffs and the defendants in the action.
3.PWC is to pay the plaintiffs' costs of PWC's application by notice of motion dated 27 March 2017 and the plaintiffs' application to join all parties (including PWC) to the proceeding pursuant to RSC Order 18 rule 4, such costs to be taxed, if not agreed, and to be paid forthwith.
COR 21 of 2017
1.The plaintiffs have leave pursuant to Order 18 rule 4(1) of the Rules of the Supreme Court 1971 (WA) (RSC) nunc pro tunc from the commencement of the proceedings, namely 10 February 2017, to join together each of the plaintiffs and the defendants in the action.
2.Southern Wire is to pay the plaintiffs' costs of the plaintiffs' application to join all parties (including Southern Wire) to the proceeding pursuant to RSC Order 18 rule 4(1), with such costs to be taxed, if not agreed, and to be paid forthwith.
After receipt of the parties' written submissions, I issued orders on 24 July 2017 in terms of pars 1 and 2 above in COR 20 of 2017 and per par 1 for COR 21 of 2017 and reserved all issues of costs to be dealt with on the papers.
Hence, it is only the residual cost orders in the applications in the two Corporations Act matters which remain problematic. I am now in receipt of the parties' further written submissions as regards costs.
The philosophical areas of disagreement upon costs as between the parties appear to be four-fold. First, PWC and Southern Wire commonly point out, and Mr Jones, by his submissions accepts, that some element of cost was always going to be necessarily incurred by the plaintiffs in bringing his retrospective leave applications towards multi-party joinder, given the accepted need for leave to join multiple parties in the two actions. Therefore, the opposing defendants ought only be liable for the proportions of any increased costs attributable to their failed opposition stances against the liquidator's leave applications. But that opposition resulted in the applications needing to be argued at some length across a full hearing day on 9 June 2017 to hear and then evaluate the active opposition of PWC and Southern Wire. The issue can be accommodated by limiting Mr Jones' recovery costs, as the successful party on the applications, to his costs from and after 11 April 2017, with his costs prior to that time being ordered to be costs in the cause.
Second, PWC contends that a costs order against it in respect of its failed notice of motion (to which it accepts an exposure) should not be ordered to be payable immediately but, rather, should only be ordered to be paid at the end of the litigation against it. Hence, PWC advocates an order that it only pay the plaintiffs' costs in respect of its failed notice of motion 'in any event', rather than forthwith.
PWC's 'in any event' position is opposed by Mr Jones. He contends that the order as to costs should reflect the interlocutory costs order outcome position applicable as a matter of general practice in the CMC list of this state as regards such applications - with the consequence that if costs cannot be agreed they should be made payable forthwith. I accept that submission. It is supported by the applicable consolidated practice direction (4.7.1) and also see MacMahon Contractors Pty Ltd v Woodside Energy Ltd [No 2] [2009] WASC 11; Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Corrs Chambers Westgarth [2011] WASC 44 [35]; Caratti v Caratti [2012] WASC 357 [29]; and Moran v Schwartz Publishing Pty Ltd [No 6] [2016] WASC 168 [33] - [36].
Third, whilst PWC accepts some liability for an adverse costs outcome, Southern Wire does not. Southern Wire contends by its written submissions that, in fact, it ought to receive an award of costs in its favour, since its opposition was in circumstances where the liquidator always needed to seek leave (as is accepted) to join multiple plaintiffs and multiple defendants, that Southern Wire's failed opposition to leave position was not unreasonable and that, in the circumstances, it should receive an award of its costs. To that end, Southern Wire's written submissions refer to authorities Gillon Pty Ltd (Trustee) v Wet Fix Holdings (No 2) [2016] FCA 1483 [6] - [7]; Gloucester Shire Council v Fitch Ratings, Inc [No 3] [2017] FCA 553 [14]; and Stanley v Layne Christensen Co [2006] WASCA 56 [52].
I must reject Southern Wire's submissions in this respect seeking costs as unduly ambitious. As my primary reasons reflect, the philosophical basis for Southern Wire's opposition was, in the end exposed as conceptually flawed in law. The pragmatic consequence of Southern Wire's broader opposition to leave as regards the defendants was responsible for a greatly increased deployment of evidentiary resources and written materials needed by the plaintiffs' solicitors in resisting Southern Wire's arguments and then by the court. This all unnecessarily increased what might otherwise have been dealt with in an hour, in less controversial circumstances into a full blown interlocutory dispute that, in the end, consumed all of a full hearing day and required reserved reasons. That was a needless waste as things turned out.
So it is that Southern Wire must be forced to accept, as PWC does, a level of costs responsibility by reason of opposition stances which, in the end, were not successful. Some level of costs exposure must follow that adverse event outcome for these defendants.
Fourth, as between PWC and Southern Wire, there appears to be a raised concern that the quantum level of opposition from Southern Wire was broader than that articulated by PWC - as, indeed, my primary reasons record. Hence, PWC does not wish to be held accountable, in effect, for a greater costs exposure than is appropriate, given its more limited scale of opposition.
Southern Wire's position is reflected under the third tier of conceptual controversy as regards its being awarded costs, but which I have now rejected above.
Whilst I see some merit in PWC's conceptual position, I am persuaded in the end that if the parties cannot agree upon this costs apportionment issue, the powers of the taxing officer under O 66 r 44 of the Rules of the Supreme Court 1971 (WA) (RSC) are adequate to address this issue at any assessment of costs.
Clearly, however, the applications in the two actions were argued together across one full day's argument. The taxing officer's assessment, if needed, will take account of the fact that all the applications were argued together and, second, that the scale of the opposing arguments raised against leave to join multiple parties was of a greater magnitude emanating from Southern Wire than PWC - both from a submitted materials perspective in terms of documents put to the court, and a duration perspective in terms of the time taken in the hearing and disposition of all Southern Wire's arguments. Some degree of apportionment reflecting that disparity, speaking broadly, would not seem out of place, but it is entirely a matter for the taxing officer, absent agreement.
Accordingly, orders will now issue in the following terms in COR 20 of 2017 (as per proposed costs orders in the plaintiffs' minute of 21 July 2017 for this action, par 3 and par 4):
1.The fifth defendant is to pay the plaintiffs' costs of the fifth defendant's application by notice of motion dated 27 March 2017 and the plaintiffs' costs from and after 11 April 2017 of the plaintiffs' application to join all parties (including the fifth defendant) to the proceeding pursuant to RSC O 18 r 4, such costs to be taxed, if not agreed, and to be paid forthwith.
2.The costs up to and including 10 April 2017 of the plaintiffs' application to join all parties (including the fifth defendant) to the proceeding pursuant to RSC O 18 r 4 be the plaintiffs' costs in the cause.
Orders will now issue in the following terms in COR 21 of 2017 (as per proposed costs orders in the plaintiffs' minute of 21 July 2017 for this action, par 2 and par 3):
1.The twenty-first defendant is to pay the plaintiffs' costs from and after 11 April of the plaintiffs' application to join all parties (including the twenty-first defendant) to the proceeding pursuant to RSC O 18 r 4(1), with such costs to be taxed, if not agreed, and to be paid forthwith.
2.The costs up to and including 10 April 2017 of the plaintiffs' application to join all parties (including the twenty-first defendant) to the proceeding pursuant to RSC O 18 r 4 be the plaintiffs' costs in the cause.
Those orders as to costs will issue upon the publication of these reasons.
9
24
2