Romelal v Pioneer Kal Pty Ltd
[2022] WASC 293
•1 SEPTEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ROMELAL -v- PIONEER KAL PTY LTD [2022] WASC 293
CORAM: STRK J
HEARD: 19 AUGUST 2022
DELIVERED : 19 AUGUST 2022
PUBLISHED : 1 SEPTEMBER 2022
FILE NO/S: COR 122 of 2021
BETWEEN: NAKUL ROMELAL
Plaintiff
AND
PIONEER KAL PTY LTD
First Defendant
NIRAVKUMAR GORDHANBHAI PATEL
Second Defendant
PARMINDER SINGH
Third Defendant
FILE NO/S: CIV 2426 of 2021
BETWEEN: PARMINDER SINGH
Plaintiff
AND
NAKUL ROMELAL
Defendant
Catchwords:
Practice and procedure - Consolidation of actions - Where the parties agree that there are common questions of fact and issues in both proceedings - Delay on the part of the applicant - One of the proceedings significantly further advanced - Turns on own facts
Practice and procedure - Leave to adduce further evidence - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 83 r 1
Result:
Applications granted
Category: B
Representation:
COR 122 of 2021
Counsel:
| Plaintiff | : | C S Williams |
| First Defendant | : | No appearance |
| Second Defendant | : | F A Robertson |
| Third Defendant | : | F A Robertson |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| First Defendant | : | No appearance |
| Second Defendant | : | Trinix Lawyers |
| Third Defendant | : | Trinix Lawyers |
CIV 2426 of 2021
Counsel:
| Plaintiff | : | F A Robertson |
| Defendant | : | C S Williams |
Solicitors:
| Plaintiff | : | Trinix Lawyers |
| Defendant | : | Solomon Brothers |
Cases referred to in decision:
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Carew-Reid v The Public Trustee (Unreported, WASC, Library No 950251, 26 May 1995)
Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115
Espanol Holdings Pty Ltd v Banning [2000] WASC 192
Hamersley Iron Pty Ltd v James [2015] WASC 10
Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75
Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250
Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1
Saker v Creative Land Management Pty Ltd [2000] WASC 44
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89
TABLE OF CONTENTS
Introduction
Background
The applications
Application for consolidation
The power to consolidate proceedings where only one is commenced under the Corporations Act
Legal principles in respect of consolidation
The parties' submissions
The submissions made on behalf of Mr Patel and Mr Singh
The submissions made on behalf of Mr Romelal
Disposition
Application to adduce further evidence
Legal principles in respect of leave to adduce further evidence
The parties' submissions
The submissions made on behalf of Mr Patel and Mr Singh
The submissions made on behalf of Mr Romelal
Disposition
Orders made on 14 June 2022
Delay
Findings
Conclusion and orders
Sch A - Chronology
Sch B - Orders made on 26 August 2022
STRK J:
Introduction
Background
Nakul Romelal, Niravkumar Gordhanbhai Patel and Parminder Singh are directors and shareholders of Pioneer Kal Pty Ltd. By an originating process filed on 20 July 2021 known as COR 122 of 2021, Mr Romelal (as the plaintiff) commenced a proceeding in this court under the Corporations Act 2001 (Cth) against Pioneer Kal (as the first defendant), Mr Patel (as the second defendant) and Mr Singh (as the third defendant). By the Corporations Act proceeding, Mr Romelal seeks the following orders:
(a)pursuant to s 233(1)(c), further or alternatively s 233(1)(j), of the Corporations Act, Mr Patel and Mr Singh cause Pioneer Kal to repay the loan of $173,000 owed to Mr Romelal;
(b)pursuant to s 233(1)(d) of the Corporations Act, Mr Patel and Mr Singh purchase Mr Romelal's shareholding in Pioneer Kal for a price to be determined; and
(c)alternatively, pursuant to s 233(1)(a), further or alternatively s 461(1)(f) of the Corporations Act, Pioneer Kal be wound up.
In July 2021, Mr Patel and Mr Singh gave notice of their intention to appear in the Corporations Act proceeding and to oppose Mr Romelal's application. Pioneer Kal did not.
On 28 October 2021, Mr Singh (as the plaintiff) commenced by writ an action in the District Court of Western Australia as against Mr Romelal (as the defendant), seeking debt recovery. (Neither Pioneer Kal nor Mr Patel are parties to the debt recovery proceeding.) By the indorsement to the writ, Mr Singh claims that Mr Romelal is obliged to pay to him:
(a)the sum of $246,120.33 for moneys loaned and advanced by Mr Singh to Mr Romelal, further or alternatively, for moneys had and received to the use of Mr Romelal from Mr Singh;
(b)alternatively, the sum of $115,672.25 for moneys loaned and advanced by Mr Singh to Mr Romelal, further or alternatively, for moneys had and received to the use of Mr Romelal from Mr Singh; and
(c)interest and costs.
On 10 December 2021, Judge Whitby made orders remitting the District Court action to this court pursuant to s 77 of the District Court of Western Australia Act 1969 (WA). The debt recovery proceeding was given upon transfer a Supreme Court action number, being CIV 2426 of 2021. I understood Mr Singh commenced this separate proceeding as it was not procedurally open to him to prosecute a counterclaim against Mr Romelal in the Corporations Act proceeding.[1]
[1] Mr Romelal's submissions par 18; ts 19 - 20 (1 July 2022); ts 34 - 35 (28 July 2022).
Both proceedings arise out of the same factual matrix. Mr Romelal, Mr Patel and Mr Singh were the directors and shareholders of Pioneer Kal, which was only concerned with the operation of a Domino's Pizza franchise in Kalgoorlie. In broad terms, in the Corporations Act proceeding, Mr Romelal contends that he has been oppressed as he did not receive any proceeds from the sale of the business operated by Pioneer Kal. In the Corporations Act proceeding, Mr Patel and Mr Singh contend that Mr Romelal did not receive proceeds because Mr Romelal owed Pioneer Kal and Mr Singh various sums of money that was offset against moneys due to Mr Romelal. I understood that Mr Singh intends to defend the debt recovery proceeding on the same basis.
As to the status and progress of each proceeding, I note as follows. Save for the application to remit the proceeding to this court, no material procedural steps have been taken in the debt recovery proceeding. No statement of claim has been filed, the ambit of the claim being solely defined by the indorsement to the writ.
In contrast, the Corporations Act proceeding is very advanced. A comprehensive chronology was annexed to the respondent's submissions filed on behalf of Mr Romelal, which I have reproduced at sch A to these reasons. I particularly note that discovery has been attended to and the parties have filed affidavits and further affidavits in the proceeding. The parties attended a court annexed mediation in June 2022, which was unsuccessful. On 14 June 2022, Master Sanderson ordered that the Corporations Act proceeding be listed for a final hearing for four days' duration commencing on a date to be fixed. The learned Master did not accede to the request of Mr Singh and Mr Patel to program the filing of further affidavit evidence, and ordered that no party may adduce further evidence except with leave of the court. A further mediation conference had been listed for 17 October 2022.[2] Four hearing days, being 21 to 24 November 2022, had been set aside by the court taking into account counsel availability.
The applications
[2] See [95] as to the post-hearing status.
By a chamber summons filed on 20 July 2022 in the Corporations Act proceeding (as amended on 18 August 2022) on behalf of Mr Patel and Mr Singh, and a chamber summons filed on 18 August 2022 in the debt recovery proceeding on behalf of Mr Singh, consolidation orders pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 83 r 1 were pressed in the following terms:
(a)Supreme Court of Western Australia action number COR 122 of 2021 between Nakul Romelal as plaintiff and Pioneer Kal Pty Ltd, Niravkumar Gordhanbhai Patel and Parminder Singh as defendants, be consolidated, alternatively heard together with action CIV 2426 of 2021 in this Court between Parminder Singh as plaintiff and Nakul Romelal as defendant, and the actions be carried on as one action with the evidence in CIV 2426 of 2021 to be used as the evidence in COR 122 of 2021 and vice versa.
(b)The plaintiff in COR 122 of 2021 be the plaintiff in the consolidated action and have carriage of the consolidated action.
(c)The consolidated action proceed under the following title:
IN THE SUPREME COURT OF WESTERN AUSTRALIA COR 122 OF 2021
CONSOLIDATED WITH SUPREME COURT ACTION NUMBER CIV 2426 OF 2021
By the chamber summons filed in the Corporations Act proceeding, Mr Patel and Mr Singh also sought leave to adduce further evidence, seeking an order in the following terms:
4The second and third defendants have leave to adduce further evidence in relation to any issues already raised in any affidavit evidence filed in this action.
At the hearing of the applications, counsel for Mr Patel and Mr Singh read the affidavit of Mr Singh sworn on 20 July 2022 (which I refer to in these reasons as the second affidavit of Mr Singh),[3] and relied upon a written outline of submissions filed on 16 August 2022, which referred to the affidavits of Mr Romelal sworn 20 July 2021, Mr Singh sworn 30 August 2021 (which I refer to in these reasons as the first affidavit of Mr Singh), and Mr Patel sworn 30 August 2021.
[3] ts 43 (19 August 2022).
Mr Romelal opposed the applications and at the hearing of the applications, counsel read the affidavit of Julie Ann Minett, a secretary employed by Solomon Brothers, the solicitors for Mr Romelal, sworn on 12 August 2022.[4] Counsel for Mr Romelal also relied upon a written outline of submissions filed on 12 August 2022, which referred to the affidavit of Mr Romelal, the first and second affidavits of Mr Singh, and the affidavit of Mr Patel.
[4] ts 58 (19 August 2022).
After hearing the applications, I gave brief reasons for granting the same and stated that I would publish my full reasons. These are my reasons. I also requested that the parties confer as to the form of orders to give effect to my decision. A copy of the orders made in each proceeding (the form of which were agreed by the parties) are reproduced at sch B to these reasons.
Application for consolidation
The power to consolidate proceedings where only one is commenced under the Corporations Act
I proceeded on the basis that the court has the power to consolidate proceedings where only one is commenced under the Corporations Act, which was accepted by both parties.[5]
[5] ts 44 - 46 (19 August 2022).
This court has the power to consolidate 'any number of causes or matters'.[6] As to my reasoning, I make the following observations.
[6] RSC O 83 r 1.
By s 4(1) of the Supreme Court Act 1935 (WA):
(a)'action' means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, but does not include any criminal proceeding;
(b)'cause' includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding; and
(c)'matter' includes every proceeding in the court, not in a cause.
There is nothing in O 83 r 1 of the RSC nor the Supreme Court Act which restricts the power of consolidation such that it can only be exercised with respect to two matters of the same broad nature, or which were commenced by the same form of originating process.
The court is exercising federal jurisdiction in hearing the Corporations Act proceeding. No federal legislation prescribes a process for consolidation of proceedings brought under the Corporations Act.
Unless the court otherwise orders, by virtue of s 79 of the Judiciary Act 1903 (Cth),[7] the Supreme Court (Corporations) (WA) Rules 2004 (WA) apply to a proceeding in the court under the Corporations Act that is commenced on or after the commencement of Supreme Court (Corporations) (WA) Rules; and the other rules of the court apply to a proceeding in the court under the Corporations Act that is commenced on or after the commencement of Supreme Court (Corporations) (WA) Rules to the extent that they are relevant and not inconsistent with Supreme Court (Corporations) (WA) Rules.[8]
[7] Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1.
[8] Supreme Court (Corporations) (WA) Rules 1.3(1)(a) and (2)(a).
As the Supreme Court (Corporations) (WA) Rules is silent to consolidation, unless the court otherwise orders, the court's power to order consolidation of a proceeding commenced under the Corporations Act is governed by O 83 r 1 of the RSC.
From my review of the case law, only two reported decisions from this court have concerned an application to consolidate proceedings in circumstances where one was a proceeding under the Corporations Act: Carew-Reid v The Public Trustee (Unreported, WASC, Library No 950251, 26 May 1995) and Saker v Creative Land Management Pty Ltd [2000] WASC 44. In their respective decisions, Master Bredmeyer and Master Sanderson proceeded on the basis that there is the power to order consolidation in such circumstances. I proceeded on the same basis.
Legal principles in respect of consolidation
The principles to be applied in determining the consolidation application are well settled and were not in dispute.[9] Order 83 r 1 of the RSC provides that:
Whenever any issues between the same parties can be conveniently tried together, or whenever it appears desirable notwithstanding that the parties are not identical and that the evidence necessary to prove the issues is not identical, the Court may consolidate any number of causes or matters in order to quiet all claims relating to one subject matter, transaction or event, or to substantially similar subject matters, transactions or events.
[9] Mr Patel and Mr Singh's submissions pars 1 - 4; Mr Romelal's submissions pars 13 - 15.
The scope and operation of O 83 was outlined by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd [2011] WASC 208; (2011) 42 WAR 75 as follows:
[77]There is no presumption against consolidation: A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [2003] NSWSC 956 [22]. Although made in the context of the differently worded NSW rule about consolidation, Austin J's observation applies equally to the WA rules.
[78]Each case depends on its own facts and circumstances, Cameron v McBain [1948] VLR 245, 247; A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [22]; Saker v Creative Land Management Pty Ltd [2000] WASC 44 [2].
[79]Austin J said of the NSW rule that it is to be construed as a flexible rule of convenience in the administration or justice, suggesting that the court has the power to do what is necessary and appropriate to permit effective consolidation with a view to final determination of the real issues between the parties, with justice to all concerned: A Goninan & Co Ltd v Atlas Steels (Aust) Pty Ltd [42].
[80]In Cameron v McBain, 247 Herring CJ said that broadly the question on a consolidation application is whether in all the circumstances it is convenient, having regard to avoiding multiplicity of actions and to saving time and expense.
[81]Among the matters that may be relevant to the exercise of discretion regarding consolidation are:
(1)whether it is convenient to consolidate the actions, including whether it will prevent multiplicity of actions and ensure savings of time and cost;
(2)whether there are common questions of law or fact or a common transaction or series of transactions;
(3)whether consolidation will cause prejudice or unfairness to any parties;
(4)whether consolidation will be conducive to a just resolution of the issues; and
(5)whether there are any practical matters which may make it inexpedient to consolidate[.]
In Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80; (2019) 55 WAR 89 the Court of Appeal applied with approval the observations made by Beech J in Lois Nominees Pty Ltd v QBE Insurance (Australia) Ltd and went on to add that the application of O 83 is to be construed and applied by regard to O 1 r 4B of the RSC:
[409]The observations of Nourse LJ (Woolf LJ & Fox LJ agreeing) in Arab Monetary Fund v Hashim (No 4),[10] albeit directed to the relevant English rule, are also pertinent. His Lordship said that the rule permitting consolidation 'ought to be broadly construed', and that 'it is not the leaning of our courts to restrict procedural powers which may be useful to them unless the wording of the rules or the interests of justice require it'.
[410]Further, O 83 must be construed and applied so as 'best to ensure the attainment' of (amongst other things) (1) promoting the just determination of litigation, (2) disposing efficiently of the court's business, (3) maximising the efficient use of available judicial and administrative resources, and (4) facilitating the timely disposal of business.[11]
[10] Arab Monetary Fund v Hashim (No 4) [1992] 4 All ER 860, 863 ‑ 864.
[11] Order 1 r 4B RSC.
In determining the application for consolidation, I adopted and applied these principles.
While the applicants pressed for the consolidation of the proceedings, I understood after hearing counsel that no party had a strong view as to whether the proceedings ought be consolidated or simply heard together if the applicants were successful on their application.[12] I proceeded on the basis that the principles that apply in respect of consolidation are a useful guide in an application for an order that the actions be heard together.[13]
The parties' submissions
[12] ts 67 - 68 (19 August 2022).
[13] Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [7]; Espanol Holdings Pty Ltd v Banning [2000] WASC 192 [4].
The parties agreed that there are common questions of fact and issues in both proceedings.[14] In this regard, it was observed that:
(a)in the Corporations Act proceeding, Mr Romelal contends that he has been oppressed as he did not receive any proceeds from the sale of business operated by Pioneer Kal;[15]
(b)in both proceedings, Mr Patel and Mr Singh will say that Mr Romelal did not receive any proceeds because Mr Romelal owed Pioneer Kal and Mr Singh various sums of money that was offset against any money due to Mr Romelal;[16]
(c)in the debt recovery proceeding, Mr Singh sues for money, alternatively, the outstanding balance of the moneys, that Mr Patel and Mr Singh contend (in the Corporations Act proceeding) Mr Romelal owed Mr Singh; and
(d)the same evidence intended to be adduced in defence of the Corporations Act proceeding is intended to be adduced to prosecute in the debt recovery proceeding.[17]
[14] Mr Patel and Mr Singh's submissions par 5; Mr Romelal's submissions pars 16 - 17.
[15] Second affidavit of P Singh par 5(a); affidavit of N Romelal par 44.
[16] Second affidavit of P Singh par 5(b); first affidavit of P Singh par 12; affidavit of NG Patel pars 25 - 26.
[17] Second affidavit of P Singh par 6.
Put another way, as counsel for Mr Romelal noted, the issues raised in the debt recovery proceeding are a subset of the issues raised in the Corporations Act proceeding; and the debt recovery proceeding raises no issues that are not raised in the Corporations Act proceeding.[18]
[18] Mr Romelal's submissions par 17.
Despite this common ground, the parties were in dispute as to whether the court should exercise its discretion to order consolidation of the proceedings.
The submissions made on behalf of Mr Patel and Mr Singh
On behalf of Mr Patel and Mr Singh, counsel submitted that if the proceedings were not consolidated, alternatively heard together:[19]
(a)judicial time would be occupied twice in the determination of common issues of fact;
(b)the possibility of inconsistent findings of fact would arise;
(c)the outcome of the Corporations Act proceeding will directly impact the debt recovery proceeding and vice versa, because if Mr Singh were ordered to repay or account to Mr Romelal in the Corporations Act proceeding for any amount of the proceeds from the sale of the business operated by Pioneer Kal that Mr Romelal received, then that would alter the amount claimed by Mr Singh in the debt recovery proceeding. Mr Singh deposed that he would seek the stay of the enforcement of any judgment in the Corporations Act proceeding pending the determination of any offsetting sum that may be ordered in his favour in the debt recovery proceeding.[20]
[19] Mr Patel and Mr Singh's submissions par 6. See also second affidavit of P Singh pars 7 - 10.
[20] Second affidavit of P Singh par 8.
However, if the proceedings were consolidated, the final position of any moneys owed as between the parties would be known and the need for any stay application would not arise.[21]
[21] Mr Patel and Mr Singh's submissions par 6.
As to the prejudice that Mr Romelal would suffer if the final hearing of the Corporations Act proceeding did not proceed on the dates set aside in November 2022, I understood counsel on behalf of Mr Patel and Mr Singh to raise the following four matters.
First, counsel submitted that the dates of 21 to 25 November had only been tentatively fixed, to be used only if the applications for consolidation and leave to adduce further evidence were unsuccessful. Counsel submitted that the tentative dates could not now be used as the basis to oppose the applications, which dates were always contingent upon the outcome of the applications.[22]
[22] Mr Patel and Mr Singh's submissions par 8.
Secondly, counsel accepted that if the applications for consolidation were granted there could be, and indeed would be, an expedited timetable to final hearing. Counsel for Mr Patel and Mr Singh suggested that the hearing of the consolidated proceeding could be held in early 2023, meaning that any delay would be minimal, particularly having regard to the fact that reasons for decision would in any event be unlikely to be delivered before the court's summer recess.[23]
[23] Mr Patel and Mr Singh's submissions par 9.
Thirdly, counsel noted that in any event, the circumstances giving arise to Mr Romelal's alleged claim of oppression arose in September 2018. Mr Romelal did not commence the Corporations Act proceeding until July 2021, almost 3 years later and more than 18 months after the Mr Patel and Mr Singh's solicitors wrote to Mr Romelal's solicitors disputing his claim.[24] Counsel submitted that Mr Romelal cannot maintain the submission that any delay in the hearing of the Corporations Act proceeding beyond tentative dates set aside in November 2022 would cause gross unfairness and prejudice to Mr Romelal, in light of his own delay in commencing the Corporations Act proceeding.[25]
[24] Affidavit of NG Patel par 29.
[25] Mr Patel and Mr Singh's submissions par 10.
Fourthly, any prejudice to Mr Romelal would be outweighed by the factors in favour of consolidation outlined by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd at [410], namely that consolidation of the proceedings will promote the just determination of litigation, the efficient disposition of the court's business, maximise the efficient use of available judicial and administrative resources, and facilitate the timely disposal of business.[26]
The submissions made on behalf of Mr Romelal
[26] Mr Patel and Mr Singh's submissions par 11.
Counsel on behalf of Mr Romelal submitted that the applications for consolidation of the two proceedings should be refused.
Counsel for Mr Romelal noted that Mr Patel nor Mr Singh had proffered any explanation in the evidence filed in support of the applications as to why Mr Singh took no action to progress the debt recovery proceeding until orders were made for the Corporations Act proceeding to be listed for final hearing.[27] Counsel noted that the lack of explanation was particularly problematic in circumstances where the need to have the two proceedings heard concurrently was foreshadowed in correspondence between the parties' representatives in December 2021,[28] and despite this, no steps were taken by Mr Singh nor Mr Patel to seek consolidation until the first application was filed on 20 July 2022 in the Corporations Act proceedings, and the second on 18 August 2022 in the debt recovery proceeding.
[27] Mr Romelal's submissions par 22.
[28] Affidavit of JA Minett, JAM-2.
Counsel submitted that it was open for the court to infer that the applications were now agitated to delay the disposition of the more advanced Corporations Act proceeding.
In short, Mr Romelal opposed the making of any order which did not allow the Corporations Act proceeding to be heard on the dates set aside in November 2022. If the dates were lost, Mr Romelal's position was that such outcome would not promote the just determination of either proceeding.[29] I understood that Mr Romelal would not oppose consolidation (or an order that the proceedings be heard together) if the application were granted subject to directions which facilitated a final hearing of a consolidated proceeding (or both proceedings) on the dates set aside in November.[30]
[29] Mr Romelal's submissions pars 21 - 23.
[30] ts 62 - 63 (19 August 2022); Mr Romelal's submissions par 23.
Counsel for Mr Romelal submitted that maintenance of the November dates could be achieved by orders requiring the filing of pleadings within a truncated timeframe; dispensing with discovery (which had already been given in the Corporations Act proceeding, and in which all issues raised in the debt recovery proceeding had already been agitated); and providing that the evidence in the Corporations Act proceeding stand as evidence in the debt recovery proceeding.[31]
[31] Mr Romelal's submissions par 21.
While it was submitted that Mr Romelal would be prejudiced by delay, he adduced no evidence of specific prejudice that would follow upon the grant of the application.
Disposition
The point in the Corporations Act proceeding (relative to final hearing) when the applications were made weighed heavily against grant. Despite the desirability of consolidation having been the subject of correspondence as between the legal representatives in December 2021, Mr Patel and Mr Singh did not promptly bring an application for consolidation in either proceeding, nor did Mr Singh take any steps to prosecute the debt recovery proceeding upon transfer to this court. No explanation for their inaction was deposed to, and it may be assumed that as represented parties, Mr Patel and Mr Singh were cognisant that a consequence of their inaction and delay was that it was likely that the Corporations Act proceeding would be heard and determined first in time, and that Mr Patel and Mr Singh were live to the implications of the same.
Despite the delay, in all of the circumstances I was satisfied that it was convenient and preferable for the proceedings to be heard and determined together, and that it was neither convenient nor preferable for the Corporations Act proceeding to be determined in isolation.
As was accepted by Mr Romelal, there will be common questions of fact and issues to be determined in both proceedings. The commonality weighed heavily in favour of granting the relief sought by Mr Patel and Mr Singh.
The parties agreed that there was a substantial common substratum of fact for the two actions. Mr Romelal and Mr Singh were and remain represented by the same legal practitioners in both matters. As the parties agreed at the hearing, the evidence to be adduced in each proceeding is substantially the same.[32] I understood counsel for all parties to have accepted that no additional hearing days would be required if the proceedings were heard together.[33] I was satisfied that consolidation will avoid inconvenience to the parties and witnesses, the potential for inconsistent findings, and the inefficient use of the court's and the parties' resources. The objects of positive case flow management are best advanced by hearing and determining both proceedings at the same time.
[32] ts 55, 59 - 60 (19 August 2022).
[33] ts 54, 67 - 68 (which I understood to be implicit acceptance on the part of counsel for Mr Romelal) (19 August 2022).
Further, I understood counsel for Mr Romelal to concede that there would be no prejudice to him if the November dates were retained for the hearing of both proceedings, consolidated or otherwise.[34]
[34] ts 62 - 63 (19 August 2022); Mr Romelal's submissions par 23.
At the conclusion of the hearing of this application, I informed the parties that:[35]
(a)I considered it appropriate that the two proceedings should be heard and determined together;
(b)I did not have a strong view as to whether the proceedings ought be consolidated or simply listed to be heard together, and I would invite counsel to address me as to whether either course was preferable, having regard to the directions that would follow;
(c)on my reckoning, directions could be made that would have the proceedings (consolidated or otherwise) ready for final hearing on the dates set aside in November 2022, and a consequence of the late application was the imposition of a timeframe where there was no scope for further delay by Mr Patel and Mr Singh; and
(d)the dates set aside in November 2022 would be fixed for the hearing of the proceedings (consolidated or otherwise).
[35] ts 76 - 78 (19 August 2022).
I requested that the parties confer with respect to programming directions to have both matters proceed to final hearing on the days set aside in November, consolidated or otherwise.
After this conferral, the parties filed a memorandum of proposed consent orders which programmed the proceedings to be heard together on the dates set aside in November 2022. In the end, the parties did not favour consolidation. The orders made in each proceeding are reproduced at sch B to these reasons.
Application to adduce further evidence
Prior to a directions hearing on 14 June 2022 before the learned Master, the parties to the Corporations Act proceeding filed competing minutes of proposed directions.
Counsel on behalf of Mr Romelal filed a minute which contemplated, among other things, the listing of the Corporations Act proceeding on the basis that the evidence in chief would be given by the affidavits filed and served in that proceeding. It also contemplated that except with leave of the court, no party would adduce evidence from any witness whose affidavit had not been filed and served in accordance with the orders that had been made in that proceeding.[36]
[36] Minute of proposed orders filed on behalf of Mr Romelal in the Corporations Act proceeding on 13 June 2022, proposed orders 1, 2 and 7.
Counsel on behalf of Mr Patel and Mr Singh filed a minute which contemplated they be given leave to file and serve any further affidavits on which they intend to rely on or before 31 October 2022; that Mr Romelal file and serve any additional affidavits in response by 28 November 2022; and that a further directions hearing be listed on 6 December 2022.
No affidavits were filed in support of the orders pressed at the directions hearing on 14 June 2022 by either party.
At the directions hearing, counsel for Mr Patel and Mr Singh made the following observations from the bar table, unsupported by evidence:[37]
KO, MR: Yes. May it please, Master. The reason why the second and third defendants are seeking this time is because, as my friend alluded to, there are a multiple number of transactions. The second and third defendant is going to require expert forensic accounting evidence that it needs to submit and rely upon now. So that is why the lengthy time period has been sought. Because a forensic accountant will need to go into the books and records and analyse those multitude of transactions which is the subject of this dispute as well. And we say that that's important, in terms of the reconciliations.
[37] ts 3 - 4 (14 June 2022).
Further submissions were made on behalf of Mr Patel and Mr Singh to the learned Master as to the necessity of additional evidence, particularly expert evidence, in the disposition of the Corporations Act proceeding.[38] After hearing counsel at this directions hearing, the learned Master reserved his decision. Later on 14 June 2022, the learned Master made the orders pressed on behalf of Mr Romelal without providing reasons. The learned Master did not accede to the request made on behalf of Mr Patel and Mr Singh that they be given a further opportunity to file affidavit evidence in the Corporations Act proceeding.[39]
[38] ts 4 - 5 (14 June 2022).
[39] ts 5 - 7 (14 June 2022).
By the application filed in the Corporations Act proceeding on 20 July 2022, as amended on 18 August 2022, Mr Singh and Mr Patel sought 'leave to adduce further evidence in relation to any issues already raised in any affidavit evidence filed in this action', and an order that the evidence in the debt recovery proceeding be used as the evidence in the Corporations Act proceeding, and vice versa.
Legal principles in respect of leave to adduce further evidence
The principles to be applied in determining the application for leave to adduce further evidence are well settled and were not in dispute.[40] In Hamersley Iron Pty Ltd v James [2015] WASC 10, Beech J at [150] explained that in exercising the discretion whether to grant leave to a party to adduce new evidence, the considerations explained in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 provide assistance, and could be summarised as follows:
[40] Mr Patel and Mr Singh's submissions par 13; Mr Romelal's submissions par 24.
(a) the effect of an application to adduce further evidence on the court and on other litigants is relevant;
(b) there is no right to adduce all arguably relevant evidence, no matter the stage at which the application is made and no matter the effect upon the course of the litigation;
(c) justice requires that parties have a fair opportunity to adduce evidence in support of their case, but limits may be placed on late applications to adduce further evidence;
(d) the nature and importance of the proposed new evidence to the party seeking to lead it must be taken into account;
(e) attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from that delay, and any prejudice that is shown;
(f) the point in the litigation relative to the trial may be an important consideration;
(g) where a discretion is sought to be exercised in favour of a party, an explanation will be called for; and
(h) the point can be reached where a party has had sufficient opportunity to adduce evidence in support of its case.
In determining the application pressed on behalf of Mr Patel and Mr Singh for leave to adduce further evidence, I have adopted and applied these principles.
The parties' submissions
The submissions made on behalf of Mr Patel and Mr Singh
Mr Patel and Mr Singh seek leave to:[41]
(a)adduce further evidence to correct the financial records of Pioneer Kal by its former accountants; and
(b)adduce expert evidence from a forensic accountant to properly analyse and reconcile payments made to and from Pioneer Kal, and payments made between Mr Singh and Pioneer Kal.
[41] Second affidavit of P Singh pars 11 and 13.
In his affidavit sworn in support of this application, Mr Singh deposed that:[42]
It was raised by my lawyers at the mediation conference between the parties on 1 June 2022 that there were some errors in [Mr Patel's] affidavit sworn 30 August 2021, namely his incorrect explanation of the loan account referred to in paragraph 15 of that affidavit and the loan accounts prepared by Domino's bookkeeping services who took over the business' accounting from Universal Taxation Services. If that evidence is left to stand uncorrected there will be a presumption under section 1305 of the Corporations Act and section 79C of the Evidence Act that the books and records are prima facie correct which [Mr Patel] and I will not be in a position to rebut with any evidence to the contrary.
[42] Second affidavit of P Singh par 12.
In the submission of counsel, in light of the above, Mr Patel and Mr Singh will suffer extreme prejudice if they are unable to adduce the evidence sought on matters that are material to their defence, which turns on the books and records not reflecting the true position of the company, and that there was an error on the part of the accountant who prepared them.[43] Counsel also noted that if further evidence was not able to be adduced on this issue, an estoppel might arise in the debt recovery proceeding, binding Mr Singh to matters raised (and not raised) in the Corporations Act proceeding. It was submitted that significant prejudice would be suffered by Mr Singh if he was unable to prosecute the debt recovery proceeding on what he says is the true factual position as to the monetary transactions as between Mr Singh, Mr Romelal and Pioneer Kal.
[43] Mr Patel and Mr Singh's submissions par 15.
With respect to the potential prejudice that Mr Romelal may experience by reason of a delay to the final hearing of the Corporations Act proceeding, counsel for Mr Patel and Mr Singh repeated their submissions made in relation to the consolidation application (summarised at [31] to [35] above).[44]
[44] Mr Patel and Mr Singh's submissions par 17.
As to the prejudice that Mr Romelal may suffer by having to respond to further evidence filed on behalf of Mr Patel and Mr Singh at this late stage, I understood counsel for Mr Patel and Mr Singh to submit that his prejudice ought not be given weight in the disposition of this application for leave, as Mr Patel and Mr Singh as defendants ought be afforded an opportunity to comprehensively defend the claims brought against them by Mr Romelal.[45]
[45] Mr Patel and Mr Singh's submissions par 17.
Through their counsel, Mr Patel and Mr Singh denied having unduly delayed seeking leave to adduce further evidence in all of the circumstances.[46] Counsel submitted that the additional evidence sought would likely be an expensive task and therefore, in the circumstances, it was reasonable for Mr Patel and Mr Singh to delay in briefing an expert until after the mediation between the parties had concluded.
[46] Mr Patel and Mr Singh's submissions par 19.
Counsel disavowed any suggestion that Mr Patel and Mr Singh were re‑arguing a matter that had been decided already by the Master on 14 June 2022 and raised the following points.[47] First, the hearing before Master Sanderson was only a standard directions hearing, and there was no proper application with supporting affidavit for leave to adduce further evidence for the Master to consider. Secondly, after counsel for Mr Patel and Mr Singh orally sought time to file further evidence, counsel for Mr Romelal opposed the orders, and the Master simply made the orders without providing reasons for his decision. Thirdly, the hearing was not a proper hearing to determine whether Mr Patel and Mr Singh should be given leave to adduce further evidence. Fourthly, the orders made on 14 June 2022 contemplated that a party may apply for leave to adduce further evidence, which is what Mr Singh and Mr Patel have now sought.[48]
[47] Mr Patel and Mr Singh's submissions par 20.
[48] Mr Patel and Mr Singh's submissions par 20; ts 13 (1 July 2022).
Finally, counsel submitted that in light of the factors stated by the High Court in AON Risk Services Australia Ltd v Australian National University, justice required that leave to adduce further evidence be granted in circumstances where:[49]
(a) the further evidence is material to Mr Patel and Mr Singh's defence;
(b) Mr Patel and Mr Singh have not unduly delayed in seeking leave; and
(c) Mr Romelal had not identified any real material prejudice he would suffer if the leave was granted.
The submissions made on behalf of Mr Romelal
[49] Mr Patel and Mr Singh's submissions par 21.
In opposition to the application to adduce further evidence, counsel on behalf of Mr Romelal first submitted that Mr Patel and Mr Singh's contentions as to why leave should be granted were raised at the hearing on 14 June 2022, at which time Master Sanderson declined to make such orders.[50] Counsel submitted that the applicants had not pointed to anything that had changed since that hearing and, consequently, the application constitutes an attempt to re-argue the same matter. Further to this point, counsel noted that while the court may discharge or vary an interlocutory order in its inherent jurisdiction, absent changed circumstances, the court will not typically revisit an interlocutory order that has already been made.[51] It was submitted that litigants simply making the same contentions before different judicial officers at different times and seeking a different result, as counsel suggested that Mr Patel and Mr Singh were doing, ought be strongly discouraged.
[50] Mr Romelal's submissions par 27.
[51] Mr Romelal's submissions par 28, citing Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 178; Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115 [9] - [12].
It was further submitted that the Mr Patel and Mr Singh had not proffered anything resembling adequate and complete explanation for their delay in adducing the evidence they now seek leave to adduce.[52]
[52] Mr Romelal's submissions par 29.
Counsel submitted that leave to adduce lay evidence should not be granted for the following reasons:[53]
1.All that is said by Mr Patel and Mr Singh is the assertion in par 23 of Mr Singh's affidavit sworn on 20 July 2022 that the errors in Mr Patel's affidavit were identified by their lawyers at a mediation held on 1 June 2022. The applicants do not state what those errors are, in circumstances where an alleged error in the loan account is specifically deposed to in par 15 of Mr Patel's affidavit sworn on 30 August 2021.
2.The question of whether funds provided by Mr Romelal to Pioneer Kal constituted a loan, and whether some of that loan remained outstanding when the net proceeds of the sale of Pioneer Kal's business were snaffled by Mr Patel and Mr Singh on 20 November 2018, have been issues in the Corporations Act proceeding since they were commenced. An order requiring Mr Patel and Mr Singh to cause Pioneer Kal to repay the outstanding balance of the loan is the first order sought in the originating process pursuant to which the Corporations Act proceeding was commenced. The accuracy of what Pioneer Kal's financial statements recorded in this regard was specifically addressed in par 15 of Mr Patel's affidavit sworn on 30 August 2021. There have been multiple tranches of affidavits filed since then. What the supposed mistake is, how it was made and why it has been recognised only at this point are matters that ought be subject to proper explanation before the leave sought by Mr Patel and Mr Singh ought be granted, and no real attempt is made to proffer any such explanation.
3.Mr Romelal has conducted the Corporations Act proceeding since 30 August 2021 on the basis that it was contended that Pioneer Kal's records contained the error asserted in par 15 of Mr Patel's affidavit sworn on 30 August 2021 but were not otherwise impugned. If this is not to be the case, Mr Romelal may need to adduce further evidence, which will imperil the tentatively scheduled November dates for the final hearing.
[53] Mr Romelal's submissions par 30.
Counsel submitted that leave to adduce expert forensic accounting evidence should not be granted for the following reasons:[54]
1.The applicants have not adequately explained the relevance of expert evidence they seek to adduce and its importance to the proceeding. The second affidavit of Mr Singh does not address what would be achieved from some 'reconciliation' of the payments to and from Pioneer Kal and between Mr Romelal and Mr Singh, nor how this evidence would assist in defining the facts in issue in the Corporations Act proceeding.
2.The question of whether payments were made for the benefit of Pioneer Kal, or were made to or for the benefit of one or more of Mr Romelal, Mr Singh or Mr Patel, is a question of fact to which only lay evidence can be relevant. There is nothing about which a forensic accountant can proffer an admissible opinion.
3.The progress and resolution of the Corporations Act proceeding is likely to be seriously disrupted if applicants' last-minute attempt to introduce expert evidence is permitted. Mr Romelal may be required to find and instruct its own expert to address any findings of Mr Patel and Mr Singh's expert that he disputes. There is no realistic prospect of the Corporations Act proceeding being heard on the dates tentatively scheduled in November if expert evidence was now to be allowed.
4.The costs involved in engaging an expert forensic accountant are also likely to be significant when compared to the relatively modest claims of Mr Romelal and Mr Singh. The objective of proportionality imposed by O 1 r 4B(1)(e) of the RSC will not be met by an order being made for expert evidence of no more than tangential relevance.
5.The applicants have not given an adequate and complete explanation for their previous failure to seek orders providing for expert evidence, and their later delay in requesting leave to adduce the expert evidence they seek. It was evident from 30 August 2021 onwards when the affidavits of Mr Patel and Mr Singh, both sworn on that date, were each filed, that the payments made to and from Pioneer Kal and between Mr Romelal and Mr Singh were contested. Mr Singh's affidavit sworn on 20 July 2022 is silent as to why Mr Patel and Mr Singh failed to seek orders providing for expert evidence during the course of the Corporations Act proceeding and why they did not request leave to adduce the expert evidence they seek until this late juncture.
[54] Mr Romelal's submissions par 31.
Finally, counsel referred to the final hearing of the Corporations Act proceeding being tentatively scheduled on dates set aside in November 2022. Counsel submitted that an order in Mr Patel and Mr Singh's favour to adduce further evidence (both lay and expert) risks the loss of those dates, and further delay to the Corporations Act proceeding beyond the already prolonged timeframe. Further, it would also likely require Mr Romelal, who is a fly-in and fly-out worker frequently away from Perth for extended periods of time, to file further affidavits in response to any new evidence adduced and potentially go to the expense to finding his and instructing his own forensic expert accountant to prepare a competing expert report should he dispute the findings in a report produced by Mr Patel and Mr Singh's expert. Therefore, counsel submitted that this would be highly prejudicial to Mr Romelal.[55]
Disposition
Orders made on 14 June 2022
[55] Mr Romelal's submissions par 32.
First, it is appropriate that I address the suggestion made on behalf of Mr Singh and Mr Patel that the directions hearing before the Master on 14 June 2022 was not a 'proper hearing' to determine whether Mr Patel and Mr Singh should be permitted to adduce further evidence in the Corporations Act proceeding.[56] While this was not a submission expressly advanced by Mr Robertson at the hearing of the application, I understood Mr Patel and Mr Singh to complain in the submissions filed on their behalf that the Master's List was not the occasion for there to be a contested hearing as to appropriate case management directions, and that they were caught by surprise by the orders made on 14 June 2022.
[56] Mr Patel and Mr Singh's submissions par 20; ts 12 - 14 (1 July 2022).
In this regard, Mr Patel and Mr Singh appeared to have misunderstood the case management powers that might be exercised at a directions hearing. As at 14 June 2022, the Corporations Act proceeding was case managed by the learned Master, being the judicial officer who handles, among other things, civil cases commenced by originating processes other than by writ.[57]
[57] Consolidated Practice Direction 4.3.1 [1].
Representatives of the parties attended Masters Chambers on 14 June 2022 having in advance of the hearing exchanged and filed competing minutes of proposed directions. Mr Patel and Mr Singh had prior notice of the orders pressed on behalf of Mr Romelal. Mr Ko, who appeared for Mr Patel and Mr Singh, was not caught by surprise at the hearing by the position adopted by Mr Williams on behalf of Mr Romelal.
Further, neither Mr Ko nor Mr Williams sought for the directions hearing to be programmed through to a special appointment, nor to be adjourned to afford the parties the opportunity to adduce evidence in support of the orders pressed. It would appear that Mr Patel and Mr Singh elected not to file any evidence in support of their proposed minute dated 13 June 2022. The parties' representatives were heard and the case management orders promoted on behalf of Mr Romelal were favoured. The orders made were within the case management powers of the Master, albeit reasons for that preference were not provided.
I proceeded on the basis that the orders made on 14 June 2022 left open the possibility of leave being sought, and if obtained, for additional evidence to be adduced at the final hearing of the Corporations Act proceeding. Such an application came before me for hearing, supported by the second affidavit of Mr Singh and submissions made in support of the same. I approached the application cognisant of the authorities relied upon by counsel for Mr Romelal which concerned the approach of the courts to an application to discharge or vary an interlocutory order, summarised at [67] above.
Delay
Secondly, I weighed in the balance the delay on the part of Mr Patel and Mr Singh in securing leave to adduce expert evidence, and filing what they considered to be necessary lay evidence.
In considering the application for leave to adduce additional evidence pressed on behalf of Mr Patel and Mr Singh, I was cognisant of the opportunity that had already been afforded to them to adduce evidence in the defence of the Corporations Act proceeding. As is revealed in sch A to these reasons, Mr Singh and Mr Patel first filed responsive affidavits in the Corporations Act proceeding on 30 August 2021; were afforded time to file further affidavits by orders made on 21 October 2021; the time for filing of the same was extended by orders made on 8 December 2021 and 19 January 2021; and further affidavits were deposed to and filed by Mr Patel and Mr Singh on 1 March 2021.
The second affidavit of Mr Singh was relatively brief in the matters deposed to in support of the application for leave. It did not contain a fulsome explanation of the circumstances which gave rise to the delay in filing the evidence which he and Mr Patel now say is critical to their defence of the Corporations Act proceeding.
Mr Singh deposed that at the mediation conference on 1 June 2022, errors in Mr Patel's affidavit sworn on 30 August 2021 were raised by his lawyers.[58] There was no explanation proffered as to how the error was identified, nor when.
[58] Second affidavit of Singh par 12.
As to delay, a submission was made to the following effect:[59]
The defendants deny that they have unduly delayed seeking leave to adduce further evidence in the circumstances. As suggested by Mr Romelal, the additional evidence sought by the defendants is likely to be an expensive task. In the circumstances, it was reasonable for the defendants to hold off seeking such evidence until after the mediation between the parties was concluded. Mediation was listed by the Court in March 2022, and then held in June 2022. At the first directions hearing in the matter after the mediation (before Master Sanderson on 14 June 2022) the defendants sought time to file further evidence, and at the next hearing in the matter (before Justice Strk on 1 July 2022) orders were made for the filing of this application.(footnotes omitted)
[59] Mr Patel and Mr Singh's submissions par 19.
While not deposed to, I understood that the Mr Patel and Mr Singh delayed in seeking leave to adduce expert evidence, and incurring the costs of the same, pending mediation.
Mr Singh did however depose to there being an error in the affidavit evidence filed in the Corporations Act proceeding and the need to correct the same.[60] Mr Singh deposed that if that evidence was left to stand uncorrected, the presumption that the books and records of Pioneer Kal were prima facie correct could not be rebutted, to his and Mr Patel's detriment. This was an issue only briefly raised by counsel before the learned Master in responsive oral submissions at the hearing on 14 June 2022.[61]
Findings
[60] Second affidavit of Singh par 12.
[61] ts 6 - 7 (14 June 2022).
The application to adduce additional evidence was very finely balanced. Despite the brevity in explanation and the delay on the part of Mr Patel and Mr Singh, on balance, I considered it appropriate to grant them leave to adduce further evidence. In reaching this conclusion, I particularly weighed the following in the balance.
First, I took into account the nature and importance of the proposed new evidence to the party seeking to lead it.
Mr Singh deposed that an error had been identified in filed affidavit evidence. I was satisfied that it was appropriate that Mr Patel and Mr Singh be given an opportunity to correct it.
Mr Singh also deposed that it was necessary for a forensic accountant to properly analyse and reconcile payments made to and from Pioneer Kal; and payments made between Mr Romelal and Mr Singh. I understood that what was proposed was an analysis of books and records that might prove to be a difficult task for the judge in the determination of both the Corporations Act proceeding and the debt recovery proceeding, and I was satisfied that this was an appropriate to grant leave to the parties to adduce the same.
Without the additional evidence, there is a risk that Mr Patel and Mr Singh would be denied a fair opportunity to defend the Corporations Act proceeding. For completeness however, I note that by granting leave to the parties to adduce expert evidence of forensic accountants, I make no finding as to admissibility of such reports. Objections to admissibility have in no way been pre-determined.
Secondly, I weighed in the balance the point in the litigation relative to the dates set aside in November 2022. There was about 13 weeks between the hearing of the application and the proposed November dates. There appeared to be sufficient time to allow the evidence to be adduced without jeopardising the November dates.
Thirdly, I understood that the additional evidence would not increase the estimated number of hearing days. I understood counsel to agree that the hearing of both the Corporations Act proceeding and the debt recovery proceeding with the additional evidence could be accommodated within the number of days that had been set aside.
Fourthly, I was cognisant that Mr Romelal would likely incur additional costs in responding to the further evidence filed on behalf of Mr Patel and Mr Singh. To the extent that Mr Romelal incurred costs in responding to affidavit evidence filed in August 2021 that contained an error now sought to be corrected, and as a consequence Mr Romelal incurred unnecessary costs, his wasted costs might be addressed by an appropriate costs order in his favour.
Fifthly, while I accepted that Mr Romelal would suffer general prejudice if there was a delay, I understood that the prejudice to Mr Romelal would be largely ameliorated if the additional evidence did not result in the loss of the November dates.
Sixthly, I noted that the Corporations Act proceeding had been on foot for 13 months as at the hearing of the applications. While the parties had been given ample time to put in their evidence prior to mediation, the delay on the part of Mr Patel and Mr Singh was not so egregious as to be determinative.
Finally, I note that the learned Master did not have before him an application for consolidation when he made case management directions in the Corporations Act proceeding on 14 June 2022. In the end, I was not prepared to order that the debt recovery proceeding be heard at the same time as the Corporations Act proceeding on the condition that evidence to be adduced in both proceedings be limited to the evidence that had been filed to date in the Corporations Act proceeding. In all of the circumstances, I did not consider that justice would be served by imposing as a condition of consolidation or concurrent hearing of the proceedings that Mr Singh be shut out from adducing lay and expert evidence in support of his claim in the debt recovery proceeding. (For completeness however, I note that had I not determined it appropriate that the debt recovery proceeding be heard with the Corporations Act proceeding, I would have in any event granted the application for leave to adduce additional evidence in the Corporations Act proceeding for the reasons expressed above.)
Conclusion and orders
For these reasons, the applications were successful. In the end, the orders promoted by Mr Patel and Mr Singh were necessary and appropriate for the final determination of the real issues between the parties, with prejudice mitigated with the retention of the November hearing dates. Programming orders have since been made in a form agreed by the parties which contemplate an earlier return to mediation than that previously fixed, and for the proceedings to be heard together from 21 to 25 November 2022.
The orders extracted on 26 August 2022 in each proceeding provided that the costs of each application be reserved. Whether Mr Romelal incurred unnecessary costs in the Corporations Act proceeding by responding to erroneous affidavit evidence which will not be relied upon at trial is not yet known. Whether he ought be compensated for any costs thrown away can be addressed at a later time.
Sch A - Chronology
| No. | Date | Event |
| 1. | 20/07/2021 | Corporation Proceedings commenced |
| 2. | 20/07/2021 | Mr Romelal files his affidavit sworn 20 July 2021 |
| 3. | 02/08/2021 | Orders made by Justice Strk requiring: • the Defendants to file affidavits in opposition to the Corporations Proceedings by 31 August 2021; and • the plaintiff to file affidavits in reply by 14 September 2021 |
| 4. | 30/08/2021 | The Defendants file the Patel Affidavit |
| 5. | 30/08/2021 | The Defendants file the Singh Affidavit |
| 6. | 16/09/2021 | Orders made by Master Sanderson: • extending the time for the plaintiff to file and serve affidavits in reply to 28 September 2021; and • requiring the parties to confer in October 2021 regarding scope of discovery of documents |
| 7. | 29/09/2021 | Mr Romelal files a responsive affidavit sworn 28 September 2021 |
| 8. | 21/10/2021 | Master Sanderson makes orders requiring: • the parties to give discovery by 4 November 2021; • the parties to file any further affidavits in support of, or in opposition to, the Corporations Proceedings on or by 18 November 2021; and • the Defendants to file any affidavits in reply by 2 December 2021 |
| 9. | 28/10/2021 | The Singh Action is commenced |
| 10. | 04/11/2021 | The plaintiff files an affidavit of discovery |
| 11. | 12/11/2021 | The Defendants file an affidavit of discovery sworn by Mr Patel |
| 12. | 07/12/2021 | The Defendants file an affidavit of discovery sworn by Mr Singh |
| 13. | 08/12/2021 | Master Sanderson makes orders extending the time for: · the parties to file and serve further affidavits in support of, or in opposition to, the Corporations Proceedings to 21 December 2021; and · the Defendants to file any affidavits in reply to 18 January 2022. |
| 14. | 10/12/2021 | Judge Whitby orders that the Singh Action be remitted to the Supreme Court |
| 15. | 19/01/2022 | Mr Romelal files a supplementary affidavit of discovery sworn 18 January 2022 |
| 16. | 19/01/2022 | Master Sanderson makes orders extending the time: · for the parties to file and serve further affidavits in support of, or in opposition to, the Corporations Proceedings to 8 February 2022; and · for the Defendants to file any affidavits in reply to 22 February 2022. |
| 17. | 01/02/2022 | Mr Romelal files a further affidavit in support of the Corporations Proceedings |
| 18. | 24/02/2022 | Master Sanderson makes orders to extend the time for the Defendants to file affidavits in reply to 1 March 2022 |
| 19. | 01/03/2022 | The Defendants file an affidavit of Mr Singh sworn 28 February 2022 |
| 20. | 01/03/2022 | The Defendants file an affidavit sworn by Mr Patel on 1 March 2022 |
| 21. | 03/03/2022 | Master Sanderson makes orders referring the Corporations Proceedings to a mediation conference |
| 22. | 01/06/2022 | Mediation conference held |
| 23. | 14/06/2022 | Master Sanderson: · declines to make orders allowing the Defendants to file any further lay evidence or evidence of a forensic accountant; and · orders that the Corporations Proceedings be listed for a final hearing of four days' duration |
Sch B - Orders made on 26 August 2022
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
1 SEPTEMBER 2022
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