Re Horizons (Asia) Pty Limited

[2022] NSWSC 376

Supreme Court

New South Wales

Medium Neutral Citation:	Re Horizons (Asia) Pty Limited [2022] NSWSC 376
Date of orders:	1 April 2022
Decision date:	01 April 2022
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	Interlocutory Process dismissed
Catchwords:	CORPORATIONS — Winding up — Statutory demand — Application to set aside — JUDGMENTS AND ORDERS — Amending, varying and setting aside — CIVIL PROCEDURE — Parties — Representation — where application to set aside a creditor’s statutory demand was declined and costs orders made — whether judgment should be stayed, set aside or varied — whether court should dispense with Rules to permit person who is not a director to represent company while a solicitor is on the record
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 7.2
Cases Cited:	Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corp Ltd (2008) 243 ALR 207; 65 ACSR 249; [2008] HCA 9
Category:	Principal judgment
Parties:	Horizons (Asia) Pty Ltd (Plaintiff) N A Ackroyd & Others trading as Holding Redlich Lawyers (Defendant)
Representation:
File Number(s):	2021/277754

Judgment

1. By Interlocutory Process filed on 22 March 2022, Horizons (Asia) Pty Ltd (“Horizons”) seeks orders granting leave to represent itself (if required), extending the time for application (if required) and seeking to stay, set aside or vary a judgment delivered by Rees J on 22 December 2021, by which her Honour had declined to set aside a creditor’s statutory demand issued to Horizons and related costs orders. That Interlocutory Process was filed by Horizons rather than by its then solicitor, who then filed a notice of intention to cease to act on 24 March 2022 but remains on the record until a notice of ceasing to act can be filed. This Interlocutory Process was made returnable in the Corporations Motions List on 4 April 2022.

2. Horizon’s Interlocutory Process seeks some of the relief that it sought in an earlier application filed on 4 January 2022, which it did not press and which was dismissed on 31 January 2022. Horizon’s Interlocutory Process is of the same character as an application that Horizons filed in other proceedings involving another creditor’s statutory demand issued by a third party, which I also dismissed after an oral hearing on 28 March 2022. Ms Ng, who appears to be associated with Horizons, although she is not a director of it, appears to have initiated both applications.

3. At my request, by email dated 28 March 2022, my Associate advised Horizons and the Respondent’s solicitor that:

“His Honour notes that an Interlocutory Process was filed in this matter on 22 March 2022 by [Horizons], presumably by Ms Ng. His Honour proposes to make an order in chambers dismissing this Interlocutory Process without an oral hearing and vacating the listing on 4 April 2022, subject to allowing an opportunity for Horizons/Ms Ng to make written submissions as noted below.

His Honour proposes to make that order for the following reasons, subject to that opportunity to make written submissions:

1. On 29 November 2021, Black J reviewed the matters relevant to dispensing with the requirements under UCPR r 7.1 to permit Ms Ng to appear [for Horizons], and made orders relating to the filing and service of a Notice of Appearance by a newly retained solicitor for Horizons. On 4 January 2022, Black J again permitted Ms Ng to represent Horizons on that day only. Ms Ng was not given leave to appear for Horizons, beyond that day. Where Ms Ng does not have leave to appear for Horizons, she does not have the ability to file an interlocutory process seeking substantive relief on its behalf.

2.    On 4 January 2022, Horizons by Ms Ng sought orders that correspond to Orders 1, 3 and 5 sought in the Interlocutory Process filed on 22 March 2022 and that application was dismissed on 31 January 2022. His Honour observed, in the course of his judgment, that the application had the difficulty that a presumption of insolvency had already arisen, so that the relief sought by Horizons may well have no utility.

3.   His Honour today declined to dispense with the Rules and to permit Ms Ng to appear and dismissed a corresponding application in proceedings 2022/8504.

It seems to his Honour that this further Interlocutory Process [is] re-agitating the same issues as the 4 January application should also be dismissed, because it has no utility where a presumption of insolvency has already arisen. His Honour will allow Ms Ng until 4pm on 30 April 2022 to make submissions as to (1) why his Honour should grant leave to her to appear for Horizons and (2) whether the application has any utility.”

4. By submissions made shortly before that time, Horizons, in a document not filed by its solicitor nor signed or authorised by any named person, set out the chronology of events as it understood it, including the orders made by Rees J, the filing of and dismissal of the earlier interlocutory application, the filing of a notice of intention to appeal, a costs hearing which it claims incurred in its absence (but which was in fact determined by Rees J on the papers), and further steps including the filing of an appeal by Horizons on 22 March 2002 and the Interlocutory Application filed on the same date, and steps that are being taken by Horizon to retain new solicitors to act for it.

5. Horizons submits that:

“The above-mentioned Notice of Appeal is based on former legal advice obtained that “disputes” genuinely existed between the parties and also cost assessment process is ongoing with assigned assessor to determine in due course. Thus, in the present unusual circumstances and in the interest of justice and cheap and fast court principle, it is the respectful request of Horizons (the appellant/applicant) not to dismiss the “Stay” Interlocutory but rather, permit a short adjournment and re-list the case perhaps after the Easter break, to enable a new lawyer to be put in place to assist with Horizons on any outstanding matter.”

6. I am satisfied that the Interlocutory Process should be dismissed, without an oral hearing, to avoid imposing the further costs of it on the Respondent and the community. First, it is contrary to the proper administration of justice to have unidentified persons associated with a company (likely Ms Ng) filing applications with which the company’s legal representatives are not involved, while those legal representatives remain on the record. Second, there is no real likelihood that the Court would dispense with rr 7.1 and 7.2 of the Uniform Civil Procedure Rules 2005 (NSW) to permit Ms Ng to represent Horizons at a hearing on 4 April 2022, for the same reasons that it did not dispense with those rules to permit Ms Ng to represent Horizons in the corresponding application in another matter on 28 March 2022. Third, the Interlocutory Process was not supported by any affidavit, and there is no evidence that indicates any reason why the relief sought should be granted. Fourth, there is no utility in staying, setting aside or varying the judgment delivered by Rees J declining to set aside the demand, where the 21 day period for compliance with the demand has passed and a presumption of insolvency has arisen, and that period cannot be extended or that presumption extinguished where that has occurred: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corp Ltd (2008) 243 ALR 207; 65 ACSR 249; [2008] HCA 9. While that proposition may well also have the consequence that Horizon’s appeal is moot, that is a matter for the Court of Appeal and not for me. Fifth, there is no evidence to support the proposition that the costs order made by Rees J should be stayed or set aside and no apparent reason why that should occur and, to the extent that Horizon seeks that order, it may seek it (with any necessary leave) in its appeal against that judgment.

7. For these reasons, the Interlocutory Process filed by Horizons on 22 March 2022 should be dismissed. I reserve leave to the Respondent to apply, within 7 days, as to costs, although it is not apparent why it would have incurred any material costs where there has been no need for it to file evidence or make submissions as to the application.

**********

Decision last updated: 14 April 2022