Med2 Pty Ltd v Ates and Ates

[2024] NSWDC 176

District Court

New South Wales

Medium Neutral Citation:

Med2 Pty Ltd v Ates and Ates [2024] NSWDC 176

Hearing dates:

11 April 2024

Date of orders:

17 May 2024

Decision date:

17 May 2024

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1)   The defendants’ application for the plaintiff’s claim to be struck out is refused.

(2)   The defendants’ application for the statement of claim to be struck out in its entirety is refused.

(3)   The plaintiff’s application for leave to amend its statement of claim is granted.

(4)   The plaintiff is to pay the defendant’s costs thrown away by reason of the amendment to the statement of claim, to be agreed or assessed.

(5)   The plaintiff is to pay into court the sum of $215,805.70 on account of security for costs on or before 28 June 2024.

(6)   Subject to order (7), these proceedings are stayed until the plaintiff provides security in accordance with order (5).

(7) In the event that the plaintiff fails to pay into court the sum of $215,805.70 on account of security for costs on or before 28 June 2024, the defendants have liberty to apply to have these proceedings dismissed under r 42.21(3) of the Uniform Civil Procedure Rules 2005.

(8)   The matter is listed for a directions hearing on 9 July 2024 at 9:30am.

Catchwords:

ESTOPPEL — Anshun estoppel — Abuse of process – Amendment of statement of claim – Security for costs

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Corporations Act 2001 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33

Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157

GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2002) 97 ALJR 857

Hana v Shad Legal Services Pty Ltd [2021] NSWSC 601

Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258

In the matter of SRD Property Pty Ltd [2023] NSWSC 441

O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28

Treloar Constructions Pty Ltd v McMillan [2016] NSWCA 302

Salex NSW Pty Ltd v Congredior Pty Ltd [2021] NSWSC 732

Category:

Principal judgment

Parties:

Med2 Pty Ltd, (Plaintiff)
Aynur Ates, (First Defendant)
Necati Ates, (Second Defendant)

Representation:

Counsel:
Mr D Allen (Plaintiff)
Mr G Sirtes SC and Mr J Sukkar (Defendant)

Solicitors:
Kekatos Lawyers (Plaintiff)
Somerville Legal (Defendant)

File Number(s):

2023/317394

Publication restriction:

Nil

JUDGMENT

1. This decision concerns an amended interlocutory application by the defendants, Mr Ates and Mrs Ates, filed on 26 March 2024, seeking the following:

1. An order pursuant to s 1335(1) of the Corporations Act 2001 (Cth) or r 42.21(1) of the Uniform Civil Procedure Rules (NSW) (“the Rules”) that the plaintiff provide security for the defendants’ costs of the proceedings.

2. An order pursuant to the provisions cited in (1) above that the proceedings against the defendants be stayed until the plaintiff provides the security sought.

3. An order that, in the event that security is not provided, the defendants have liberty to apply to have the proceedings dismissed under r 42.21(3) of the Rules.

4. An order pursuant to r 13.4(1) of the Rules that the plaintiff’s claim against each of the defendants is dismissed.

5. In the alternative, an order that the statement of claim against each of the defendants be struck out in its entirety under r 14.28 of the Rules.

6. An order that the plaintiff pay the defendants’ costs of and incidental to the proceedings and the defendants’ motion.

7. In the alternative, pursuant to s 99 of the Civil Procedure Act, an order that the plaintiff’s solicitor pay the defendants’ costs of and incidental to the proceedings and the defendants’ motion.

2. This decision also concerns an interlocutory application by the plaintiff (‘Med2’), seeking an order that it be given leave to file an amended statement of claim.

The Proceedings

The Statement of Claim

3. In its statement of claim, filed on 6 October 2023, Med2 pleads a breach of an alleged oral contract between Med2 (“represented by its director”) and Mr Necati Ates, entered into on or about 8 August 2019, under which Med2 was to purchase all of Mr Ates’ shares in SRD Property Pty Ltd (‘SRD’) for the sum of $1,000,000 (‘the Share Purchase Agreement’). It is alleged in the statement of claim that the consideration was to be paid in three instalments of $400,000, $450,000 and $50,000 [sic].

4. It is further alleged that it was a material term of the Share Purchase Agreement that, in the event that Mr Ates did not transfer the shares within two weeks after the three instalments were paid, then the consideration was to be ‘a deemed loan payable immediately’.

5. It is alleged that Med2 made payments as directed by Mr Ates. On 8 August 2019, Med2 allegedly paid $400,000 into the joint account of Mr and Mrs Ates (‘Mrs Aynur Ates’). On 9 December 2019, Med2 allegedly paid $450,000 into Mrs Ates account. On 24 June 2020, Med2 allegedly paid $50,000 into an account held by SRD.

6. The shares were not transferred.

7. It is alleged that Med2, “represented by its director”, made requests for the repayment of the consideration, “but they refused”. It is alleged that this was a breach of the Share Purchase Agreement.

8. Med2 claims $1,000,000, costs and interest.

9. SRD was originally named on the statement of claim as the first defendant. An order was made on 14 March 2024, at the request and with the consent of the parties, to remove SRD as a defendant.

The Defence

10. Mr and Mrs Ates, in their defence, deny the allegations that a Share Purchase Agreement was entered into orally by Mr Ates. The alleged payment of consideration in three instalments is denied and so is the allegation that requests have been made for repayment.

11. It is asserted in the defence that Mr Ates holds 100% of the shares in SRD.

12. Mr and Mrs Ates deny that Med2 is entitled to the relief sought.

13. Mr and Mrs Ates further plead as follows:

17.   In answer to the whole of the statement of claim the defendants say:

a.   All issues concerning the ownership of the shares in the first defendant was determined in the Supreme Court proceedings; in the matter of SRD Property Pty Ltd [2023] NSWSC 441 (‘Proceedings’) [sic]. At [4] Black J states:

“SRD was incorporated on 18 April 2018… it is common ground that half of its shares are owned by Mr Ates and Mrs Oncu respectively (POC [4], [8])”

b.   Throughout the Proceedings the director of the plaintiff, Meral Oncu, maintained a position that the third defendant was the rightful owner of 50% of the shareholding in the first defendant.

c.   In filing its statement of claim the plaintiff is making an assertion that is so connected to the Proceedings it should have been made in the Proceedings and constitutes an abuse of process.

d.   In the circumstances the plaintiff is estopped from raising the matters in its statement of claim.

14. I will refer to the proceedings the subject of the judgment of Black J In the matter of SRD Property Pty Ltd [2023] NSWSC 441 as ‘the Supreme Court proceedings’, and to the judgment as ‘the Supreme Court judgment’.

The Supreme Court proceedings

15. On 9 February 2023, Mr Ates filed the Supreme Court proceedings. The Supreme Court proceedings sought relief under ss 233 and 461 of the Corporations Act 2001 (Cth) with respect to SRD, NRB Property Pty Ltd (‘NRB’) and MED Apartments Pty Ltd (‘MED Apartments’), on the grounds that the affairs of the companies were being conducted in a manner that was oppressive or unfairly prejudicial to, or unfairly discriminatory against Mr Ates, as a member of the companies (see s 232(a) and (e) of the Corporations Act 2001 (Cth)). The three companies were defendants to the proceedings, together with Mr Ravbun Oncu and Mrs Meral Oncu, who are married to each other.

16. In the Supreme Court proceedings, Mr Ates sought orders under s 233 of the Corporations Act 2001 (Cth) that judgment be entered against Mr Oncu in the amount of $525,000, that Mr Ates purchase Mrs Oncu’s shares in SRD and NRB and that Mr Ates purchase Mr Oncu’s shares in MED Apartments. Alternatively, Mr Ates sought orders that a liquidator be appointed to SRD, NRB and MED Apartments and that they be wound up under ss 233 and 461 of the Corporations Act 2001 (Cth).

17. The Supreme Court proceedings were heard on 11-13 and 18 April 2023. Judgment was delivered on 26 April 2023.

18. In the Supreme Court proceedings, it was common ground between the parties that SRD was incorporated on 18 April 2018 and was engaged in the business of property development. It was common ground that Mr Ates and Mrs Oncu were the directors of SRD and each owned half of its shares.

19. It was also common ground between the parties in the Supreme Court proceedings that NRB was incorporated in early 2019 and engaged in the business of property development and that Mr Ates and Mrs Oncu were the directors of NRB and each owned half of its shares.

20. It was common ground that MED Apartments was incorporated on 23 November 2021 and was intended to engage in property development. Mr Ates and Mr Oncu were the directors of MED Apartments and each owned half of its shares. The value of its shares was nil.

21. The submissions on behalf of Mr and Mrs Oncu (and others) in the Supreme Court proceedings described SRD, NRB and MED Apartments as being used by them, with Mr Ates, as “vehicles to undertake property transactions for profit”. It was accepted by both Mr Ates and Mr Oncu that their arrangement was an oral quasi-partnership for the purpose of property development (Supreme Court judgment at [49]-[50]).

22. Other companies used for purposes associated with property transactions undertaken by Mr Ates and Mr Oncu and discussed in the Supreme Court proceedings were Med Yapi Pty Ltd (‘Med Yapi’) and Med2. Mr Oncu was a director of Med Yapi and held 50% of its shares. The sole director and shareholder of Med2 is, and has been at all material times, Mrs Oncu.

23. Mr Ates argued, in the Supreme Court proceedings, that the affairs of SRD, NRB and MED Apartments were being conducted in a manner which was oppressive to him as a shareholder. Mr Ates’ and Mr Oncu’s business relationship was irretrievably damaged by late 2022. Mr Oncu stopped contributing to the expenses of the companies and, on 9 December 2022, purported to terminate the partnership with Mr Ates. It was common ground by the end of the Supreme Court hearing that the relationship between the parties had irretrievably broken down. The primary focus of the hearing was the form of the relief to be given.

24. Mr Oncu opposed Mr Ates’ application for buy-out orders. Mr Oncu sought to have SRD, NRB and MED Apartments wound up.

25. Mr Oncu, in his evidence, attempted to establish that Mr Ates had significant debt. This was relevant to Mr Oncu’s argument that Mr Ates was not in a financial position to satisfy the debts of the companies and buy out Mrs Oncu and Mr Oncu’s shareholdings. In closing submissions, it was argued on behalf of Mr Oncu that Mr Ates had not adduced evidence of his financial position, and that Mr Ates was unlikely to be able to satisfy the debts of the companies.

26. In evidence in the Supreme Court, Mr Oncu spoke of the conversation he had with Mr Ates on 9 December 2022, in which Mr Oncu proposed that the partnership end. This was followed, on 10 December 2022, by an offer by Mr Ates to sell his shares to Mr Oncu. In his affidavit, Mr Oncu said that the discussion on 9 December was the first time that he had discussed with Mr Oncu the prospect of splitting the partnership (Court Book Tab 6, p.80 paragraph 116). In cross-examination, Mr Oncu agreed that, prior to the discussion of 9 December 2022, nothing remotely similar to a buy-out had been discussed (transcript 13 April 2023 p.165).

27. Mrs Oncu did not give evidence in the Supreme Court proceedings.

28. It appears from the Supreme Court judgment that Mr Oncu put extracts from bank statements of Med2 in evidence to support his claim that he had paid money to third parties which did not appear in the bank statements of SRD, NRB or MED Apartments.

29. The Supreme Court rejected Mr Oncu’s case and ordered a buy-out by Mr Ates of SRD, NRB and MED Apartments, subject to the discharge of specified liabilities.

30. The substantive orders made in the Supreme Court proceedings were as follows:

1.   The Court declares that the third defendant (SRD) is indebted to the second defendant in the amount of $2,414,033 or such other amount as the Court declares.

2.   The Court declares that the fourth defendant (NRB) is indebted to the second defendant in the amount of $710,000.

3.   The Court declares that the value of the shares held in SRD by the plaintiff and the second defendant are, each, nil.

4.   The Court declares that the value of the shares held in NRB by the plaintiff and the second defendant are, each, nil.

5.   The Court declares that the value of the shares held in the fifth defendant (MED) by the plaintiff and the first defendant are, each, nil.

6.   Order that the plaintiff, by 4pm on 3 May 2023, pay the amount of $3,499,033 into Court comprising:

(a).   the amount of $2,414,033 representing the money owing to the second defendant pursuant to her director loan account in SRD; and

(b).   the amount of $710,000 representing the money owing to the second defendant pursuant to her director loan account in NRB; and

(c).   the amount of $375,000 as security for the first defendant’s potential liability for MED failing to settle the property in Auburn and the plaintiff’s undertaking noted in these orders.

6A   Direct the parties to relist the matter within 2 business days of non-compliance with order 6.

7.   Order that, subject to the plaintiff’s compliance with order 6, by 4pm on 5 May 2023:

(a).   the second defendant must provide to the plaintiff and Prothonotary of the Supreme Court a duly completed transfer of her shares in SRD and NRB to the plaintiff; and

(b).   the first defendant must provide to the plaintiff and the Prothonotary of the Supreme Court a duly completed transfer of his shares in MED to the plaintiff.

8.   Note that, subject to further order of the Court:

(a).   upon the plaintiff providing to the Prothonotary of the Supreme Court a duly completed transfer of the Auburn Property into the name of MED by 19 June 2023, the Court will release the amount of $375,000 to the plaintiff from the money held by the Court pursuant to Order 6(c).

(b).   if a transfer is not provided as contemplated by paragraph 8(a), the Court will release the amount of $375,000 to first defendant from the money held by the Court pursuant to order 6(c).

9.   Defer the question of the release of the amount specified in orders 6(a)-(b) to the second defendant from the money held by the Court in satisfaction of SRD’s indebtedness to the second defendant as per the declaration in order 1 and in satisfaction of NRB’s indebtedness to the second defendant as per the declaration in order 2 above and the release of the monies paid under order 6(c) to the first defendant for hearing or directions as appropriate before Black J at 9.15am on 26 May 2023.

10. Pursuant to s 94(1) of the Civil Procedure Act 2005 (NSW), if the first defendant and the second defendant do not comply with order 7, the Registrar of the Supreme Court of New South Wales is empowered to take all steps necessary to sign a share transfer of the second defendant’s shares in each of SRD and NRB and the first defendant’s shares in MED, and is directed to do so as soon as reasonably practicable.

11.   Order that the plaintiff by 4pm on 24 May 2023 remove the second defendant as the guarantor of the debt owed by NRB to National Australia Bank Limited (“NAB”) or, otherwise, have the second defendant’s guarantee to NAB released or satisfied, in consequence of a refinance of this debt, such that the second defendant no longer owes any guarantee and any security in relation to the property in Wentworthville owned by NRB.

12.   List the matter at 9.15am on 26 May 2023 with a view to making an order that each of the third, fourth and fifth defendants be placed in liquidation, if order 6 and/or order 11 are not satisfied within the dates specified in them.

13.   The relief sought by the plaintiff against the first defendant in respect of the debt in respect of Med Yapi Pty Ltd be dismissed.

31. Mr Ates paid the money required to be paid into court under the orders and released Mr Oncu as a guarantor of the debt owed by NRB to the National Australia Bank.

32. Mr Oncu’s shares in MED Apartments and Mrs Oncu’s shares in SRD and NRB were transferred to Mr Ates in mid-May 2023.

33. As I have said, the current proceedings were filed in this Court on 6 October 2023.

Rule 13.4(1) and Rule 14.28 of the Rules

Anshun estoppel

34. The Rules provide, in rule 13.4 and rule 14.28:

13.4   Frivolous and vexatious proceedings

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

14.28   Circumstances in which court may strike out pleadings

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

35. The defendants seek an order dismissing these proceedings on the grounds that the plaintiff is estopped by Anshun estoppel or, alternatively, that the proceedings are an abuse of process, and they should therefore be struck out.

36. In the alternative, the defendants argue that the statement of claim should be struck out on the same basis as set out in [35], above.

37. Anshun estoppel precludes the assertion of a claim, or the raising of an issue of law or fact, if that claim or issue was so connected with the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim not to have been made, or for the issue not to have been raised, in those proceedings (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602-603 and Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 (‘Tomlinson’)).

38. The policies behind Anshun estoppel include the desirability of finality in litigation and the desirability that a party, having litigated a matter, should not be ‘twice vexed’ by a requirement that they litigate that matter again (see Tomlinson at [24]).

39. It is clear from the early formulation of Anshun estoppel that it arose only when the parties to the first judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

40. In Tomlinson, the High Court (Bell, Gaegler, Keane and Nettle JJ) said, at [35] and [95]:

35.   Subsequent applications of the principle in Ramsay v Pigram have for the most part correctly emphasised that the interest of the privy must in each case be a legal interest: an economic or other interest on the part of A in the outcome of the earlier proceeding is insufficient. Those applications have also correctly emphasised that, absent a legal interest, such influence as A might have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control. Thus, directors of a company, who also held shares in its parent company, were held not to be estopped from pursuing a later action to recover damages to compensate for a loss on their own account in circumstances where they had stood to gain financially from an earlier action by the company claiming damages for loss on the company's account. That was despite the directors having been found to have exercised effective control over the company's conduct of that earlier action. The constraint on the conduct of A in such circumstances lies not in an estoppel but, in an appropriate case, in abuse of process.

…

95.   It is established by the decided cases that privity of interest exists where party and privy share the same interest, in the sense that they are equally entitled to assert a discrete legal right; or where they share an interest by reason of an established legal or equitable relationship, such as agency or trusteeship; or, in some of the more recently decided cases, where the privy claims "under or through" or "on account of or for the benefit of" the party in a manner which is sufficiently analogous to one or other of the same interest or established legal or equitable relationship cases to warrant its inclusion. But the problem is in deciding what is sufficiently analogous.

41. It was argued on behalf of Mr and Mrs Ates that an entity “controlled by a party to proceedings could be estopped from bringing a second claim that could have been brought by the controlling party in the first proceedings” (relying on Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33 Allsop P at [5])

42. Med2 argued that there could be no Anshun estoppel affecting this matter on account of the Supreme Court proceedings because Med2 was not a party to the Supreme Court proceedings.

43. Med2 relied upon the judgment in Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33, where Allsop P, at [4] – [5], said:

5. As to the question of privies, the submission was put on behalf of the respondents that Justice Handley, writing extra-judicially, “Anshun Today” (1997) 71 Australian Law Journal 934 at 941, supported the proposition that Champerslife could be estopped from propounding its claim because Mr Lawrence was estopped from running his (separate) claim. I do not read his Honour as saying any such thing. What his Honour was implicitly directing himself to was the operation of the Anshun principle to the privy in respect of the claim to which it was privy. As Giles JA points out in his reasons, any application of the Anshun doctrine to Mr Lawrence would not by the operation of privity of interest prevent Champerslife bringing its own case. It does not have or hold that case through any privity involving Mr Lawrence. That is not to say, however, that in an appropriate case (which might be thought to be unusual) it might be that X, which was not a party to litigation to which Y was a party, could, by the operation of the Anshun doctrine, be prevented from bringing a case that Y, if it controlled X, could have caused X to bring in the earlier proceedings: cf Johnson v Gore Wood & Co. Certainly here, there was every reason to conclude that it was not unreasonable for Mr Lawrence not to bring his own claim for damages (if he thought he had a case) and not to cause Champerslife to bring its own claim in the Local Court proceedings. I would reserve any further discussion of privity in relation to res judicata or Anshun to a case where such is necessary.

44. In Hana v Shad Legal Services Pty Ltd [2021] NSWSC 601 (‘Hana’), Beech-Jones J said, at [33]-[35]:

31.   … one aspect of the defendant’s notice of motion endeavoured to invoke Anshun. The defendant referred to a number of decisions of intermediate Courts of Appeal which have extended Anshun so that it applies to proceedings subsequently brought against entities that were not parties to the original proceedings but where it can be said that the claim against that entity “were so relevant to the subject matter of the first action that it was unreasonable for the purchasers not to rely upon them in that action” (Rippon at [23]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 at [131]).

32.   In Redowood Pty Limited v Link Market Services Pty Limited (formerly known as ASX Perpetual Registrars Limited) [2007] NSWCA 286 at [45], Hodgson J stated that, in cases that seek to invoke Anshun where the parties to the later proceedings are not the same as the earlier proceedings, then a finding of unreasonableness in not raising the matter in the earlier proceedings is still “relevant; but ... it must either be considered not conclusive, or else must be understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process”. In Ekes at [131], Bathurst CJ observed that a factor of importance in such cases is that the second action may give rise to inconsistent judgments.

33.   The application of Anshun to a second proceeding not involving the parties to the first proceeding has not to date been adopted by the High Court. As noted, the discussion in Tomlinson characterised Anshun as one of “three forms of estoppel” operating “between parties to a proceeding or their privies” (Tomlinson at [23]). The finding I have made is that, as formulated, these proceedings are an abuse of process because they seek to directly relitigate precisely what was lost in the probate proceedings. …

45. In Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258 (‘the Hana appeal decision’) the Court of Appeal upheld the decision in Hana.

46. The current law in New South Wales is the law set out by the High Court in Tomlinson, which is that, for an Anshun estoppel to be established, the parties in the two sets of proceedings in question must be the same entities or their privies.

47. Med2 was not a party to the Supreme Court proceedings. In the context of the Supreme Court proceedings and these proceedings, Med2 is not the privy of Mr or Mrs Oncu. Med2 did not have an interest in the Supreme Court proceedings through Mr or Mrs Oncu. Med2 did not share an interest with Mr or Mrs Oncu. Anshun estoppel does not apply to the present proceedings. A director or shareholder of a company is not, by those circumstances, a privy of that company, even if they are the controlling mind of the company.

Abuse of Process

48. In Tomlinson, French CJ, Bell, Gaegler and Keane JJ said:

25.   Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

26.   Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. [footnotes omitted]

49. In the Hana appeal decision, the Court of Appeal referred to O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315, where Beazley P said:

111.   The authorities also state that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution: Moore & Ors v Inglis (1976) 50 ALJR 589, at 593 and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; 177 CLR 378, at 392, per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal's formulation of the test in Gill v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and that the onus is "a heavy one": Williams v Spautz [1992] HCA 34; 174 CLR 509, at 529, per Mason CJ, Dawson, Toohey and McHugh JJ.

50. Med2 submitted that keeping a litigant out of court on the basis of the way the Supreme Court proceedings were conducted on the part of Mr and Mrs Oncu would be an extreme step, only to be taken in exceptional circumstances. In GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2002) 97 ALJR 857, Kiefel CJ, Gaegler J and Jagot J said:

3.   As will be explained, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.

….

15. As explained below, an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or "'so unfairly and unjustifiably oppressive' as to constitute an abuse of process" is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the "correctness standard" as explained in Warren v Coombes. Further, on the undisputed facts in the present case, the Diocese did not prove that there could be no fair trial (and did not contend otherwise that a trial would be so unfairly and unjustifiably oppressive as to constitute an abuse of process). Accordingly, the Diocese did not prove that the proceedings involved an abuse of process. 

51. It was argued on behalf of Mr and Mrs Ates that it was within Mr and Mrs Oncu’s power to join Med2 as a cross-claimant in the Supreme Court proceedings, or to rely on the indebtedness of Mr Ates which is now relied upon in these proceedings in support of Mr Oncu’s argument in the Supreme Court that there ought to be a winding up of SRD, NRB and MED Apartments rather than a buy-out by Mr Ates.

52. The Uniform Civil Procedure Rules 2005, in rule 9.1, provide for the making of a cross-claim by a party. There is no provision in the Rules for the making of a cross-claim by a non-party, and Med2 was not a party in the Supreme Court proceedings. Mr Oncu had no claim against Med2 and could not, therefore, make a cross-claim against it. There is no procedure by which Mr Oncu could have initiated an action between Med2 and Mr and Mrs Ates and joined it to the Supreme Court proceedings, which were, of course, initiated by Mr Ates.

53. Mr Oncu, in the Supreme Court proceedings, could have raised the alleged agreement the subject of these proceedings, and given evidence about it, as part of his argument that Mr Ates lacked the financial resources to meet the liabilities of SRD, NRB and MED Apartments and fund a buy-out. It is curious that he did not do so, given the importance of that issue to the resolution of the proceedings. No explanation has been offered as to why he did not do so. I note the submission in Mr and Mrs Ates’ case that there may have been other benefits to Mr Oncu’s case in the Supreme Court proceedings had he done so. However, even had the issue been fully explored in the Supreme Court proceedings, given that Med2 was not a party, orders could not have been made in those proceedings resolving the alleged debt arising from the alleged breach of the alleged oral contract.

54. It was argued on behalf of Mr and Mrs Ates that the proposition now made by Med2 that it entered into the Share Purchase Agreement on 8 August 2019 for the purpose of acquiring all of Mr Ates’ shares in SRD is at odds with the agreement in the Supreme Court proceedings that Mr Ates and Ms Oncu each held half of the shares of SRD at all material times. I reject this argument. Med2 is not arguing, in this matter, that Mr Ates’ shares in SRD changed hands under the Share Purchase agreement. Med2 is arguing that the terms of the alleged Share Purchase agreement allowed Mr Ates to elect either to transfer his shares in SRD and keep the money allegedly paid as consideration, or to refrain from transferring his shares in SRD and treat the money as an interest free loan payable on demand. It is pleaded that demands have been made and not satisfied.

55. It is further argued, on behalf of Mr Ates, that Med2’s pleading in this matter is at odds with Mr Oncu’s agreement, in the Supreme Court proceedings, during cross-examination, that the conversation he had with Mr Ates on 9 December 2022 was the first time the prospect of a buyout was raised. I do not consider that this is sufficient, in itself, to form the basis of a finding of abuse of process. The buy-out referred to in the question in the Supreme Court proceedings was a buy-out in relation to three companies, of which SRD was one. It may be that Mr Oncu meant, by his answer, that a buy-out of all of the companies the subject of the Supreme Court proceedings had not previously been discussed.

56. I reject the contention that these proceedings are an abuse of process.

57. I will refuse the application by the defendants for the striking out of the plaintiff’s claim. I will also refuse the application by the defendants for the striking out of the plaintiff’s statement of claim in this matter.

The application to amend the Statement of Claim

58. Med2 has applied for leave to amend its Statement of Claim, to the following effect:

1. To state that, at all material times, from 1 August 2019 to 1 July 2021, Med2 acted through Mr Ravbun Oncu.

2. To change its pleading as to the third instalment it allegedly made under the alleged Share Purchase Agreement. Presently, it is pleaded in the Statement of Claim that Med2 paid $50,000 to an account held by SRD in part payment of the Share Purchase Agreement on 24 June 2020. The draft amended Statement of Claim would plead instead that Med2 paid $150,000 on 24 June 2020 to an account in the name of NRB in part payment of the SRA. Consequently, the manner in which the relief claimed is pleaded is changed.

3. To plead, in the alternative, that the payments amounting to $1,000,000 were paid under a mistaken belief that the Share Purchase Agreement was in operation.

59. The application for leave to amend the statement of claim is supported by an affidavit of Mr Kekatos, dated 20 March 2024. Mr Kekatos states:

10.   Upon further examination of the bank accounts of Med2, we found that there was a typographical error in the summary provided by NAB as $150,000 was transferred to NAB and not $50,000. Exhibited hereto at pages 12 to 15 is a true copy of the bank statement of Med2.

11.   The typographical error in the summary of transactions provided by NAB continued in the Statement of Claim in that it pleaded a reduced amount of the third tranche of payments under the Share Purchase Agreement.

12.   The errors were made inadvertently at the time of drafting the Statement of Claim.

60. I make no findings of fact in relation to the assertions in Mr Kekatos’ affidavit. I note that the original and current Statement of Claim said, in paragraph 12:

12.   A payment of $50,000 on 24 June 2020 to the account of the First Defendant.

The first defendant was SRD, not NRB. This issue has not been addressed.

61. It will be conducive to the efficient disposal of the dispute between the parties for the issues between them to be heard and decided in the current proceedings. The claim that the plaintiff now seeks to plead is well within time. I will therefore allow the amendment.

62. The plaintiff is to pay the defendants’ costs thrown away by reason of the amendment to the statement of claim, to be agreed or assessed.

The application for security for costs

63. By Notice of Motion filed on 26 March 2024, the defendants seek an order pursuant to s 1335(1) of the Corporations Act 2001 (Cth) or r 42.21(1) of the Uniform Civil Procedure Rules (NSW) that the plaintiff provide security for costs, and that the proceedings be stayed until it does so.

64. Further, the defendants seek an order that they have liberty to apply to have these proceedings dismissed under the Uniform Civil Procedure Rules 2005 (NSW) r 42.21(3) if the plaintiff fails to provide security for costs.

65. The defendants argued that there should be an order that Med2 provide security for costs on the basis that there is a clear and substantial risk that it will not be capable of meeting any adverse costs order.

66. The defendants relied upon an affidavit of Mr Hemsworth, a solicitor, dated 25 March 2024.

67. Mr Hemsworth said, in his affidavit, that his firm, Somerville Legal, issued a notice to produce to the plaintiff on 14 March 2024 requesting various financial documents of the plaintiff from the previous three years. Mr Hemsworth referred to the order of 14 March 2024, made at the request and with the consent of the parties, in the following terms:

4.   Plaintiff to respond to any request for documents and/or notice to produce in connection with the defendant’s proposed security for costs motion by 19 March 2024.

68. Mr Hemsworth said that none of the documents requested were produced.

69. By email dated 22 March 2024, the plaintiff’s solicitors provided a title search for a property in Blacktown NSW (‘the Blacktown property’) owned by Med Pty Ltd. The email further said:

We are instructed to inform you that Med Pty Ltd is prepared to provide a statutory undertaking in favour of Med2 Pty Ltd for any costs order that may be made against Med2 Pty Ltd in these proceedings.

70. Mr Hemsworth caused a Current and Historical ASIC Company Search of Med2 to be performed. The search revealed that Med2 has a paid-up capital of two dollars.

71. A New South Wales Land Ownership Search for Med2 conducted for Mr Hemsworth showed that Med2 owns no real property in New South Wales.

72. The plaintiff resisted the making of an order for security for costs.

73. An affidavit of Mr Oncu dated 10 April 2024 was provided.

74. Mr Oncu, in his affidavit, said that he is the sole director and shareholder of Med Pty Ltd. Mr Oncu said that the Blacktown property has a market value of approximately $7,500,000. It is leased for rent of $208,000 plus GST. He said:

18.   The Blacktown Property is not encumbered, and Med has complete equity as the sole proprietor.

19.   The title search of the Blacktown Property records a mortgage to National Australia Bank, but the debt secured by this mortgage has been discharged and we’re in the process of getting the mortgage removed.

75. Both s 1335 of the Corporations Act 2001 and r 42.21 of the Uniform Civil Procedure Rules 2005 allow the court to make orders requiring a plaintiff to provide security for costs where there is credible evidence that there is reason to believe that a plaintiff which is a corporation will be unable to pay the costs of the defendant if ordered to do so.

76. The defendants argued that the onus to show that there is reason to believe that a plaintiff corporation will be unable to pay costs is ‘undemanding’ and ‘a low threshold’ (Treloar Constructions Pty Ltd v McMillan [2016] NSWCA 302 [11]-[13]). Where a defendant has made a reasonable request for financial documents relevant to security and that request is not responded to, the failure to respond:

…can ground, together with other factors, an inference that there is a reason to believe that it will not be able to meet an order for security for costs...” (Salex NSW Pty Ltd v Congredior Pty Ltd [2021] NSWSC 732, [25]).

77. I take into account the evidence before me as to Med2’s paid-up capital of $2 and the evidence that it owns no real property in New South Wales. I infer from Med2’s refusal to provide the financial records requested that there is nothing in those records which would assist it in relation to the argument as to security for costs, and that the records would not show that Med2 is in a financial position to meet a future costs order in this matter. It is plain that there is reason to believe that Med2 would be unable to pay a costs order, were it made against it.

78. The plaintiff argued that the undertaking offered by Med Pty Ltd ought to be accepted as security.

79. The defendants argued that the undertaking should not be accepted as security for Med2’s costs, for the following reasons:

1. The evidence of Med Pty Ltd’s assets was served less than 24 hours prior to the argument about security for costs, and could not, therefore, be investigated.

2. No evidence at all has been given of Med Pty Ltd’s net asset position.

3. No evidence has been given to support the assertion as to the steps taken to discharge the existing mortgage on the Blacktown Property. Plainly, until the mortgage is discharged, it can be used as security for a further loan.

4. Other creditors may have unregistered interests in the Blacktown property. The costs and logistics of the defendants enforcing a writ against the property and selling it to satisfy any adverse costs order would be considerable.

5. Corporate undertakings do not have the same weight as personal undertakings. Mr and Mrs Oncu are not offering personal undertakings.

80. For all of the reasons relied upon by the defendants, I do not consider that the undertaking offered by Med Pty Ltd would provide the defendants with adequate security for costs.

81. In all of the circumstances of this matter, I find that there is an adequate basis for requiring that security for costs be provided under r 42.21(1)(d). The only adequate security in the circumstances is the payment of an amount into court.

82. It was submitted, on behalf of the plaintiff, that it is unusual for security to be given for costs that the defendants have already incurred (Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157 at [53]. It was also submitted that the application had been made late in the proceedings. I reject these arguments. The plaintiff has, in this decision, been successful in amending its statement of claim. That amendment will change the basis of its claim. On the claim as originally pleaded, the full amount of the alleged purchase price/loan had not yet been paid, so the alleged trigger for the opportunity for Mr Ates to transfer his shares in SRD had not arisen, and neither had the occasion for a demand for the repayment of the loan and thus a liability to repay it. The amendment pleads, for the first time, that the full amount of the alleged purchase price/loan was paid. These are exceptional circumstances.

83. Mr Hemsworth, in his affidavit, undertook a detailed calculation of the estimated legal costs and disbursements which are likely to be incurred in the event that this matter proceeds to judgment. The outcome of that calculation was an estimate of costs and disbursements, plus GST, less 30% (on the basis that, on an assessment, it is usual for a 25-30% reduction to occur to arrive at costs on a party-party basis) in the amount of $215,805.70.

84. It was argued on behalf of the plaintiff that Mr Hemsworth’s calculation was too generous. No comparable comprehensive calculation was proffered, however. It seems to me that the calculation is within the bounds of what might be ordered by way of party-party costs. I adopt Mr Hemsworth’s figures.

Orders:

85. I make the following orders:

1. The defendants’ application for the plaintiff’s claim to be struck out is refused.

2. The defendants’ application for the statement of claim to be struck out in its entirety is refused.

3. The plaintiff’s application for leave to amend its statement of claim is granted.

4. The plaintiff is to pay the defendants’ costs thrown away by reason of the amendment to the statement of claim, to be agreed or assessed.

5. The plaintiff is to pay into court the sum of $215,805.70 on account of security for costs on or before 28 June 2024.

6. Subject to order (7), these proceedings are stayed until the plaintiff provides security in accordance with order (5).

7. In the event that the plaintiff fails to pay into court the sum of $215,805.70 on account of security for costs on or before 28 June 2024, the defendants have liberty to apply to have these proceedings dismissed under r 42.21(3) of the Uniform Civil Procedure Rules 2005.

8. The matter is listed for a directions hearing on 9 July 2024 at 9:30am.

**********

Decision last updated: 22 May 2024