Sante Wines P/L v Heirloom Vineyards Wine Co P/L - [2017] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master)
SANTE WINES P/L v HEIRLOOM VINEYARDS WINE CO P/L & ANOR
[2017] SASC 65
Judgment of The Honourable Justice Nicholson
5 May 2017
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
CORPORATIONS - WINDING UP - WINDING UP IN INSOLVENCY - STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND - FOR DEFECT OR SOME OTHER REASON
On 15 February 2017, a Master of this court dismissed the appellant’s originating process filed 7 September 2016 by which it sought, pursuant to section 459G of the Corporations Act 2001 (Cth) (“the Act”) to have two statutory demands issued pursuant to section 459E of the Act set aside.
The Master dismissed the appellant’s application on the basis that the originating process was defective because the appellant had sought in the one order the setting aside of both statutory demands.
As a response, on 17 February 2017, the appellant filed an interlocutory application, seeking permission to amend its originating process nunc pro tunc so as to cure the defect by seeking a separate order with respect to each statutory demand. On 6 March 2017, the Master dismissed the appellant’s interlocutory application on the basis that the court lacked jurisdiction to allow the amendment.
The respondents submitted that the Court did not have jurisdiction to grant the primary relief sought by the appellant because its originating process did not conform to the requirements of section 459G of the Act. The respondent pressed two objections based on what it contends are the inviolable requirements for an originating process where an applicant seeks to have more than one statutory demand set aside. As the Master described the respondents’ contentions:
"[T]he plaintiff should have filed separate originating processes for each statutory demand, or, in the alternative, in the event that one originating process is sufficient, that separate orders should have been sought in relation to each statutory demand."
The Master rejected the first contention but accepted, and dismissed the originating process on the basis of, the alternative contention. Her Honour did not proceed to consider the merits of the appellant’s application.
Held:
1. The appeal against the Master’s judgment delivered on 15 February 2017 is allowed.
2. The appeal against the Master’s judgment delivered on 6 March 2017 is allowed.
3. The matter is remitted to the Master for its further disposition in accordance with these reasons.
Corporations Act 2001 (Cth) s 459G; Judiciary Act 1903 (Cth) s 79; Supreme Court Civil Rules 2006 r 17, referred to.
Hardel Pty Ltd v Burrell and Family Pty Ltd (2009) 103 SASR 408; Commercial and General Law (SA) Pty Ltd v Permanent Custodians Ltd (No 2) [2012] SASC 216, (2012) 273 FLR 247; Indigo Financial Money Pty Limited v Moustrides & Anor [2010] SASC 355, (2010) 245 FLR 331; Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd [2006] QSC 247, [2007] 2 Qd R 199, (2006) 202 FLR 459; Help Desk Institute Pty Ltd v Adams Unreported, Supreme Court of New South Wales, Young J, 18 November 1998; Calquid Pty Ltd v A & DR Illes Pty Ltd [2000] NSWSC 558, (2000) 34 ACSR 523; Filaria Pty Ltd v Carlisle & Ors [2004] ACTSC 95; Femley Pty Ltd v Salken Engineering Pty Ltd [1999] NSWSC 334, (1999) 17 ACLC 828; Isaco Pty Ltd v Davey [2003] NSWSC 1043, (2003) 47 ACSR 483; Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172, (2008) 222 FLR 375; Greenhills Securities Pty Ltd v Loire Consultants Pty Ltd [2015] NSWSC 13; Re John Farlow Pty Ltd [2015] NSWSC 939; Gujarat NRE Australia Pty Ltd v Williams [2006] NSWSC 518; Calquid Pty Ltd v A & D R Illes Pty Ltd [2000] NSWSC 558, (2000) 34 ACSR 523; Golden Planation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279; Mossimo Systems International Pty Ltd & Ors v Deputy Commissioner of Taxation [2010] NSWSC 1409; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43, (1995) 184 CLR 265, considered.

SANTE WINES P/L v HEIRLOOM VINEYARDS WINE CO P/L & ANOR
[2017] SASC 65
Appeal from a Master
NICHOLSON J.
Introduction

On 15 February 2017, a Master of this court dismissed the appellant’s originating process filed 7 September 2016 by which it sought, pursuant to section 459G of the Corporations Act 2001 (Cth) (“the Act”) to have two statutory demands issued pursuant to section 459E of the Act set aside.
The Master dismissed the appellant’s application on the basis that the originating process was defective because the appellant had sought in the one order the setting aside of both statutory demands.
As a response, on 17 February 2017, the appellant filed an interlocutory application, seeking permission to amend its originating process nunc pro tunc so as to cure the defect by seeking a separate order with respect to each statutory demand. On 6 March 2017, the Master dismissed the appellant’s interlocutory application on the basis that the court lacked jurisdiction to allow the amendment.
The appellant has appealed against both of the Master’s decisions. Both appeals lie to a single Judge rather than to the Full Court.[1]
[1] Supreme Court Civil Rules 2006, r 17, Hardel Pty Ltd v Burrell and Family Pty Ltd (2009) 103 SASR 408 (FC), Commercial and General Law (SA) Pty Ltd v Permanent Custodians Ltd (No 2) [2012] SASC 216; (2012) 273 FLR 247 at [34]-[37] (Nicholson J).
Background
The appellant is a wine wholesaler based in Victoria and both respondents are wine-makers. They have the same registered office and principal place of business but different shareholders and directors. From about 2012, the appellant was responsible for the distribution of the respondents’ wines in Victoria. No written agreement had been executed by any of the parties. However, a proposed written agreement had been provided by the appellant to each respondent.
Each respondent purported to terminate its respective arrangement with the appellant on 27 May 2016, by giving one month’s notice to the appellant. The basis for the purported terminations was alleged failures by the appellant to comply with contract terms in relation to payment of invoices issued by each respondent for the supply of wine. Each respondent contended that a number of its invoices remained outstanding at the time its statutory demand was issued and served. The outstanding invoices formed the basis for each statutory demand.
By letter dated 19 August 2016, the respondents’ solicitor wrote to the appellant enclosing the two Statutory Demands. The one from the first respondent was for the sum of $234,652.32 and the one from the second respondent was for the sum of $72,985.69.
On 7 September 2016, the appellant filed a single originating process in these terms (omitting formal parts).
On the facts stated in the supporting affidavit the plaintiff seeks the following orders:
1.An order that the statutory demands both dated 19 August 2016, served by the first defendant and second defendant upon the plaintiff, be set aside or varied (Section 459H(1)(a) or (b) and/or Section 459J(1)(a) and/or (b);
2.Further, or in the alternative, that any order under Sections 459H or 459J be made subject to conditions pursuant to Section 459M;
3.Such further or other order as this honourable court deems fit; and
4.An order that the first defendant and second defendant pay the costs of the application;
5.Costs.
On the same day that the originating process was filed in this Court, the appellant also issued proceedings in the Adelaide Magistrates Court against both respondents seeking damages for breach of contract. According to the appellant the Magistrates Court proceedings give rise to offsetting claims which would justify the setting aside of each of the statutory demands. The appellant also alleged that there were discrepancies in the amounts claimed by the respondents.
However, by 11 November 2016, the appellant had paid the debt due to the second respondent in full. As a consequence, the second respondent withdraw its statutory demand but continued to seek its costs incurred in defending the appellant’s originating process.[2] On and before 11 November 2016, the appellant had also paid various amounts to the first respondent leaving a balance due, in accordance with its statutory demand, of $122,386.22.
[2] The second respondent remained a party to the proceedings before the Master and on appeal and at all material times has been represented by the same solicitors and counsel representing the first respondent. Whilst not directly addressed before me, given that the second respondent retains an interest in the proceedings (if only as to the question of costs) I have treated counsel’s submissions responding to the appeal as being pressed on behalf of both respondents.
The matter came before a Master of this Court for argument on 16 November 2016. The respondents submitted that the Court did not have jurisdiction to grant the primary relief sought by the appellant because its originating process did not conform to the requirements of section 459G of the Act. The respondent pressed two objections based on what it contends are the inviolable requirements for an originating process where an applicant seeks to have more than one statutory demand set aside. As the Master described the respondents’ contentions:[3]
[T]he plaintiff should have filed separate originating processes for each statutory demand, or, in the alternative, in the event that one originating process is sufficient, that separate orders should have been sought in relation to each statutory demand.
The Master rejected the first contention but accepted, and dismissed the originating process on the basis of, the alternative contention. Her Honour did not proceed to consider the merits of the appellant’s application.
[3] Sante Wines Pty Ltd v Heirloom Vineyards Wine Company Pty Ltd & Anor, Master’s Reasons delivered 15 February 2017 in SCCIV-16-1155 at [10].
In response to the Master’s decision the appellant filed an interlocutory application on 17 February 2017[4] seeking permission to amend its originating process to cure the defect. On 6 March 2017, the Master refused the appellant’s interlocutory application. The Master agreed with the respondents’ submission that the court did not have jurisdiction to grant the application because there was no valid originating process on foot, available to be amended, during the 21 day period after service of the statutory demands, as required by section 459G of the Act.
[4] The appellant’s position had been secured by the obtaining of an extension of time within which to comply with the first respondent’s statutory demand pending its appeal from the Master’s dismissal of its originating process.
The appellant has appealed against all of the Master’s orders including those relating to costs.
Grounds of appeal
The grounds of appeal are in the following terms:
1That the Learned Judge erred in finding (paragraph 39 of the First Judgment) that separate orders must be sought in relation to each cause of action, that is, in relation to each statutory demand where applications to set aside more than one statutory demand are sought in the one originating process.
2That the Learned Judge should have found that there was no requirement for separate orders to be sought in relation to each cause of action on the originating process (First Judgment).
3The Learned Judge was in error in finding that the Court did not have jurisdiction to grant leave to amend the originating process (Second Judgment).
4The Learned Judge should have found that the Court had jurisdiction to grant leave to amend the originating process (Second Judgment).
During submissions the respondents, as part of their argument that the appellant had been obliged to seek a separate order with respect to each statutory demand, re-agitated their first contention before the Master to the effect that the appellant had been obliged to issue separate originating processes. This issue had been rejected by the Master and did not need to be revisited for the purpose of the appeal itself. Given that the respondents wished for the Master’s decision to be affirmed on this basis as well as on, or in the alternative to, the basis that the Master did find in their favour, the respondents should have filed a notice of contention. They did not do so. The appellant raised no objection at the appeal to this issue being re-argued. I will return to this issue.
Appeal grounds 1 and 2
Section 459G of the Act states:
Company may apply
(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2)An application may only be made within 21 days after the demand is so served.
(3)An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
The Act applies across the Commonwealth and as White J in Indigo Financial Money Pty Limited v Moustrides & Anor[5] observed consistently with previous authority:
Generally, when applying Commonwealth legislation the courts of the States apply the construction adopted by courts of other States unless satisfied that the construction is clearly wrong. That is required in respect of decisions of the intermediate appellant courts of other states[6] and is the general approach, as a matter of comity, in respect of the decisions of single judges.[7]
Nevertheless, his Honour further observed as follows.[8]
However, the existence of conflicting decisions of single judges on the issue arising in the present case[9] means that the application of this principle cannot be determinative of the appeal. Instead, this Court must reach its own decision but in doing so be informed by the approaches discussed in the authorities ...
[5] [2010] SASC 355; (2010) 245 FLR 331 at [31].
[6]    Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.
[7]    Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd [2006] QSC 247 at [17]; (2006) 202 FLR 459 at 463.
[8]    Indigo Finance Money Pty Limited v Moustrides & Anor [2010] SASC 355; (2010) 245 FLR 331 at [31].
[9]    The issue in Indigo Finance Money was whether s 459G required, without exception, the filing of a separate originating process with respect to each statutory demand sought to be set aside.
The issue of whether or not the appellant should have filed separate originating processes can be dealt with independently of the question whether the respondents should be allowed to re-agitate this issue in the absence of having put the appellant on notice by way of a notice of contention.
A suitable and commonly cited starting point in support of the respondents’ position is the decision of Young J (as his Honour then was) in Help Desk Institute Pty Ltd v Adams.[10] Other decisions that have adopted Young J’s analysis in Help Desk include Calquid Pty Ltd v A & D R Illes Pty Ltd,[11] Filaria Pty Ltd v Carlisle & Ors[12] and Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd.[13]
[10] Unreported, Supreme Court of New South Wales, Young J, 18 November 1998.
[11] [2000] NSWSC 558; (2000) 34 ACSR 523 (Santow J).
[12] [2004] ACTSC 95 (Harper M).
[13] [2006] QSC 247; [2007] 2 Qd R 199; (2006) 202 FLR 459 (Douglas J).
However, a number of single judge authorities have taken a somewhat more relaxed view with respect to this matter.[14] The respondents contend that any exception to the general rule requiring a separate originating process for each statutory demand under challenge, allowed for by this alternative or additional line of authority, extends only to multiple statutory demands relating to the same debt owed jointly and severally such as a partnership debt.[15]
[14] For example, Femley Pty Ltd v Salken Engineering Pty Ltd [1999] NSWSC 334; (1999) 17 ACLC 828 (Santow J), Isaco Pty Ltd v Davey [2003] NSWSC 1043; (2003) 47 ACSR 483 (Barrett J), Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172, (2008) 222 FLR 375 (Barrett J), Indigo Financial Money Pty Ltd v Moustrides [2010] SASC 355; (2010) 245 FLR 331 (White J), Greenhills Securities Pty Ltd v Loire Consultants Pty Ltd [2015] NSWSC 13 at [14]-[19] (Ball J), Re John Farlow Pty Ltd [2015] NSWSC 939 at [9]-[10] (Brereton J) and see also Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd [2006] QSC 247; [2007] 2 Qd R 199; (2006) 202 FLR 459 at [14]-[16] (Douglas J), Gujarat NRE Australia Pty Ltd v Williams [2006] NSWSC 518 at [12] (Austin J).
[15] See, for example, Femley Pty Ltd v Salken Engineering Pty Ltd [1999] NSWSC 334; (1999) 17 ACLC 828 and Ambassador at Redcliffe Pty Ltd v Barreau Peninsula Property Pty Ltd [2006] QSC 247; [2007] 2 Qd R 199; (2006) 202 FLR 459. In fact, the respondent maintains as an a priori contention that even this limited exception is not supported by the text of section 459G and that Help Desk which allowed for no exception to the one originating process for each statutory demand rule remains the law.
It is unnecessary to analyse all of the authorities on each side of this debate. A very useful, with respect, starting point is the decision of Barrett J in Remo Constructions Pty Ltd v Dualcorp Pty Ltd.[16] His Honour reviewed many of the authorities as then decided which had dealt with an objection to a single originating process by which a plaintiff or applicant had sought the setting aside of multiple statutory demands. Remo Constructions, itself, concerned one plaintiff who sought, by one originating process requesting separate orders, to set aside two statutory demands for different debts served by the one defendant on different days. Nevertheless, the authorities reviewed by Barrett J, whilst having in common a single originating process, by and large, concerned different combinations of circumstances. Only Calquid Pty Ltd v A & D R Illes Pty Ltd[17] concerned materially similar facts. Barrett J summarized the position before him in these terms.[18]
With all these judicial statements in mind, I return to the present case which involves two distinct debts (or alleged debts) each due to the same alleged creditor and created on different days (18 April 2008 in one case and 22 April 2008 in the other); two distinct statutory demands, one dated 18 April 2008 and the other dated 22 April 2008, which were separately served on the respective dates they bear; and two distinct claims for relief (embodied in the one originating process), each directed exclusively to one of the statutory demands.
This situation differs from that in Help Desk, Ambassador At Redcliffe and Filaria. In each of those cases, there were not only several distinct debts allegedly due by the particular company but also a different creditor in respect of each. The situation is closer to that in Calquid where there were distinct debts allegedly due by the same debtor to the same creditor arising from progress claims under a particular building contract. Points of distinction from Calquid to which Mr Johnson of counsel pointed on behalf of the present plaintiff are that the debts in the present case are judgment debts and that the ground of challenge to each statutory demand is the existence of an offsetting claim (in Calquid, as in Help Desk, there was reliance on the genuine dispute ground).
[16] [2008] NSWSC 1172; (2008) 222 FLR 375.
[17] [2000] NSWSC 558; (2000) 34 ACSR 523.
[18] Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172; (2008) 222 FLR 375 at [21]-[22].

Barrett J went on to identify two primary potential problems where one originating process is employed with respect to multiple statutory demands.[19]
In the present case, potential problems concerning the supporting affidavit called for by s 459G do not arise. I say this because it is an offsetting claim that is put forward as the ground for setting aside the statutory demand. The affidavit need therefore do no more than prove the existence of an offsetting claim of the requisite magnitude. The one ground, founded on the same evidence, is available to mount the attack on each statutory demand. I shall say more about this later.
That leaves as a possible obstacle the fact that, because the statutory demands were served on different days, there are two distinct periods of twenty-one days relevant to the operation of s 459G: see the observation of Young J quoted at para [7] above. Proceeding on the footing that, in this case, one demand was served on 18 April 2008 and the other was served on 22 April 2008, the deadline under s 459G(2) and s 459G(3) in relation to an application for an order setting aside one of the demands is seen to be four days after the corresponding deadline for the other.
Neither of these potential difficulties arises in the present case. The appellant has sought to have the statutory demands set aside on the basis of alleged offsetting claims of greater value[20] and both statutory demands were served on the same day.
[19] Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172; (2008) 222 FLR 375 at [23]-[24].
[20] The question of whether the appellant’s supporting affidavit complied with the requirements of s 459G and, in particular, provided a proper basis for setting aside either or both statutory demands was not argued before or determined by the Master and is not a matter arising on this appeal.
Barrett J proceeded to reason in the following terms.[21]
[21] Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172; (2008) 222 FLR 375 at [30]-[37].
Particularly in light of the fact that Young J’s observations about the unacceptability of the inclusion of two applications in one summons were apparently not essential to his decision and that the subsequent decisions of Santow J, Douglas J and Master Harper did no more than adopt, without discussion or analysis, what had been said by Young J, it is desirable that the present case be approached from first principles.
The initial questions arising are:
(a)whether the plaintiff, by filing the originating process on 9 May 2008, applied to the court for an order setting aside the statutory demand dated 18 April 2008 and served by the defendant on that day; and
(b)whether the plaintiff, by filing that same originating process on 9 May 2008, applied to the court for an order setting aside the statutory demand dated 22 April 2008 and served by the defendant on that day.
If each of those questions is answered in the affirmative, two further questions will arise:
(c)whether the plaintiff applied to the court, in each case, within twenty-one days after the demand was served; and,
(d)whether the affidavit of 9 May 2008 filed with the originating process on that date is, in truth, an affidavit supporting both the application in respect of the statutory demand dated 18 April 2008 and the application in respect of the statutory demand dated 22 April 2008.
Question (d) was not raised directly before me except inferentially by the references in submissions to the observations of Young J and Santow J regarding the difficulties with affidavits in the challenges based on genuine dispute that were before them and the point of distinction here arising from the fact that the challenge is based on offsetting claim. I shall return to the matter of the affidavit presently.
I am of the opinion that each of questions (a) and (b) above must be answered “Yes”. By para 1 in the originating process, the plaintiff makes application for an order setting aside the statutory demand dated 18 April 2008 served on it by the defendant on that day. By para 2 of the originating process, the plaintiff makes application for an order setting aside the statutory demand dated 22 April 2008 served on it by the defendant on that day. The originating process is thus the vehicle by which each of those distinct applications is made.
I do not think that the legislation requires this court to proceed according to an abstract rule of general application that “there can only be one summons dealing with one demand”. At the same time, however, one originating process dealing with several demands may founder because the affidavit put forward as a supporting affidavit is not in truth of that character. It might also founder if in the Filaria form embodying a claim for a single order in respect of multiple demands: see para [15] above.
There are two reasons for thinking that there is no requirement that the court proceed according to any abstract rule of general application that “there can only be one summons dealing with one demand”. First, I do not think that it is discernible from the language of s 459G: the proposition advanced by Young J in Help Desk in the words quoted at para [7] above is, I think, met by observing that the time limit expressed by the words “after the demand is so served” can quite easily be applied separately to each claim in an originating process of the kind now before me to determine whether the application represented by that claim is within time.
The second reason is that, in proceedings under the Corporations Act commenced in this court, the rules of procedure in this court apply: Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334. Under r 6.18(1)(a) of the Uniform Civil Procedure Rules 2005, a plaintiff may, in any originating process, claim relief against the defendant in respect of one or more causes of action if the plaintiff sues in the same capacity and claims the defendant to be liable in the same capacity in respect of each cause of action. Each claim of the present plaintiff to have a statutory demand set aside is a distinct cause of action that lies against a single defendant in a single capacity at the suit of a single plaintiff in a single capacity. The conditions for the operation of the rule are thus satisfied. (That would not be so in a case like Help Desk, Ambassador At Redcliffe or Filaria where there were several issuers of statutory demands and therefore several defendants; the question of joinder would then probably be governed by r 6.19).
Insofar as may be necessary, I prefer the reasoning and approach of Barrett J in Remo Constructions to that in the earlier authorities, particularly Help Desk on this issue. As far as the present case and questions (a) to (d), identified by Barrett J, are concerned, question (c) is to be answered in the affirmative, question (d) is not before me on this appeal and questions (a) and (b) will be answered in the affirmative given the basis, discussed below, for my rejection of the respondents’ alternative submission that the appeal must fail because only a single order has been sought with respect to the two statutory demands. However, before dealing with that alternative submission, I briefly mention some of the other decisions which bear on the single originating process issue.
Barrett J revisited the status of a single originating process directed to more than one statutory demand in Golden Planation Pty Ltd & Anor v TQM Design and Construct Pty Ltd.[22] Golden Plantation is also the leading decision dealing with the issue of whether or not, or in what circumstances, a plaintiff may apply to have set aside more than one statutory demand through the mechanism of seeking a single order. The circumstances dealt with in Golden Plantation were, in a sense, the converse of the present case.
[22] [2010] NSWSC 1279.
In Golden Plantation there were two plaintiffs both of whom joined in a single originating application to seek one order setting aside two separate and distinct statutory demands each of which related to and had been served on each plaintiff by the one defendant. The order sought was in these terms.
An order that the statutory demands, copies of which are annexed hereto, dated 20 May 2010 served by the defendant on the first plaintiff and the second plaintiff, be set aside.
By way of contrast, in the present case there is one plaintiff who through an expressed composite form of order, in a single originating process, seeks to have set aside two separate and distinct statutory demands each of which related to and had been served by each of two defendants. For reasons given below, this distinction is of significance.
In Golden Plantation, the essence of Barrett J’s reasoning in dismissing the originating process is contained in the following.[23]
[23] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [8], [11], [13], [14]. [16]-[18].
The descriptions of the debts make it clear that they are separate and distinct debts with separate and distinct sources. In the case of GP, the sole source is a deed of 1 October 2009. That source is not referred to in the KCL statutory demand.
.  .  .  .
It is well established, having regard to the decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, that the court cannot set aside a statutory demand except in response to an application made in conformity with s 459G and that all elements of a complete and regular application contemplated by the section must be found to have been attended to by the applicant within the period of 21 days the section prescribes. That period has now expired.
..  .  .
In the light of s 459G(1), a company on which a statutory demand has been served may apply for “an order setting aside” that statutory demand. In this case, GP does not seek an order setting aside the statutory demand served on it by TQM; nor does KCL seek an order setting aside the statutory demand served on it by TQM. Both plaintiffs claim a single order, being an order operating upon and in relation to both statutory demands.
The approach the plaintiffs have seen fit to take does not contemplate the setting aside of one statutory demand independently of the other. The claim is an all or nothing claim in respect of both statutory demands.
..  .  .
The cases allow very little scope indeed for the pursuit of two or more setting aside claims in a single proceeding. To the extent that such an approach might be found to comply with s 459G, it is necessary at the very least (and I do not say this is the only requirement) that there be a separate claim in respect of each statutory demand so that one originating process is, as I put it in Remo Constructions Pty Ltd v Dualcorp Pty Ltd (above) at [34], the vehicle by which each of several distinct applications is made.
In other words, a conforming application in respect of one statutory demand might possibly be advanced by an originating process which also advances a conforming application in respect of another statutory demand; but the separateness of the applications so that each application, as it relates to a single and particular statutory demand, has a distinct existence and relates to that demand alone is crucial to compliance with the scheme of s 459G.
The distinct existence of each of several applications is not achieved by the originating process in this case. My conclusion therefore is that the plaintiffs did not, by means of the originating process filed on 10 June 2010, make a valid and effectual application under s 459G in respect of either statutory demand and that the court therefore has no jurisdiction to set aside either demand. This case is, in that respect, the same as Filaria Pty Ltd v Carlisle (above).
In Mossimo Systems International Pty Ltd & Ors v Deputy Commissioner of Taxation[24] Barrett J was faced with circumstances similar to those in Golden Plantation. Seven plaintiff companies relied on the one originating process which advanced a claim for one order setting aside seven individual statutory demands. Each statutory demand concerned a debt said to be due from one of the plaintiff companies to the Australian Taxation Office. Each statutory demand had been served on the relevant plaintiff company. Barrett J found the circumstances to be materially indistinguishable from those in Golden Plantation and applied the same reasoning. His Honour held that the originating process did “not advance any claim in the manner contemplated and allowed by s 459G”.[25]
[24] [2010] NSWSC 1409.
[25] Mossimo Systems International Pty Ltd & Ors v Deputy Commissioner of Taxation [2010] NSWSC 1409 at [11].
Of significance in both Golden Plantation and Mossimo is that each plaintiff company joined in seeking the one order which dealt with the statutory demand in which it had an interest together with the statutory demand or demands in which it had no interest and with respect to which it had no standing to have set aside. As Barrett J put it in Golden Plantation.[26]
Both plaintiffs claim a single order, being an order operating upon and in relation to both statutory demands. The approach ... does not contemplate the setting aside of one statutory demand independently of the other. The claim is an all or nothing claim in respect of both demands.
[26] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [13]-[14].
In Indigo Financial Money Pty Ltd v Moustrides & Anor[27] the appellant was served at the one time with separate statutory demands from each of the two respondents. The appellant filed a single originating process by which it sought to have both statutory demands set aside. To this point, the circumstances are on all fours with the present case. However, unlike in the present case, the appellant in Indigo Financial Money sought separate orders in its originating process.
[27] [2010] SASC 355; (2010) 245 FLR 331.
A Master of this Court, relying on Help Desk, held that separate originating processes had been required and dismissed the single originating process relied on. White J allowed the appeal and remitted the matter for determination by the Master on the merits.
White J held that there was no express or implied requirement in section 459G of the Act that an originating process deal with only one statutory demand. Prior to arriving at that conclusion his Honour reviewed the facts and reasoning in most of the authorities then available starting with Young J’s decision in Help Desk and, after making the observations concerning judicial comity set out earlier, expressed a preference for the approach of Barrett J in Remo Constructions.[28] A number of the justifications provided by White J for his conclusion can be summarised as follows.[29]
[28] Indigo Financial MoneyPty Limited v Moustrides & Anor [2010] SASC 355; (2010) 245 FLR 331 at [32].
[29] Indigo Financial Money Pty Limited v Moustrides & Anor [2010] SASC 355; (2010) 245 FLR 331 at [33]-[45].
(i)His Honour, like Barrett J, was unable to discern in section 459G such an abstract general rule.
(ii)When considering the possibility that section 459G might require such an abstract general rule, it is appropriate to keep in mind the observation of Gummow J in David Grant & Co Pty Ltd v Westpac Banking Corporation.[30]
As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision.
(iii)In the absence of express words, the view that section 458G allows only a single application dealing with a single statutory demand seems to involve a restrictive implication of the type referred to by Gummow J.
(iv)The approach adopted in Help Desk, if applied universally, may produce inconvenient results and cause the incurring of additional expense[31] which, it is reasonable to suppose, the legislature may have been keen to avoid.
(v)In a number of earlier decisions the courts have distinguished Help Desk by finding that the rationale underpinning Young J’s approach did not apply to the particular circumstances under consideration. However, section 459G should be taken to have a constant meaning not one which changes according to circumstances. An inviolable rule is inviolable even when applied to cases that fall outside the “rationale” for the rule. The fact that it has been seen to be necessary to adopt exceptions suggests the construction of section 459G adopted in Help Desk may be inappropriate.
(vi)Section 79 of the Judiciary Act 1903 (Cth) picks up the application of the Corporations Rules to applications under section 459G.[32] In the absence of any (Corporations) rule dealing with joinder of parties and joinder of causes of action, rule 1.3(2) picks up the application of the Supreme Court Civil Rules 2006 which do deal with these matters. In this respect White J concluded as follows.[33]
In my opinion, the effect of Gordon v Tolcher is that subject to compliance with the procedural requirements contained in s 459G itself,[34] and in any other applicable provisions of the Act, it is the Corporations Rules of this Court which govern both the commencement and the conduct of an application under s 459G made in this Court. Those Rules incorporate by reference the rules relating to joinder of parties, joinder of causes of action, and the rules relating to the division of an action into separate actions.[35] This means that the Court has an armoury of powers with which to control the conduct of the action including, in an appropriate case, the power to strike out parties or causes of action,[36] to require the plaintiff to elect to proceed with only some causes of action[37] and the power to order separate hearings.[38] In addition, the Court’s power to control abuse of its own processes may be engaged. By these means the Court may avoid at least some of the inconvenience to which the authorities have referred.
[30] [1995] HCA 43; (1995) 184 CLR 265 at 275-276.
[31] White J offered as examples the circumstances in Femley, Isaco and Remo Constructions. I add that an obvious example of likely unnecessary additional expense would be where the Australian Taxation Office issues multiple statutory demands for numerous yearly failures to pay taxation debts. The requirement for a sole plaintiff to file separate originating processes would render that plaintiff liable for multiple filing fees. The current filing fee in the Supreme Court for an originating process is $3,414.00 (for a prescribed corporation) or $2,419.00 (for any other person).
[32] Cf; Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 at [32]; 346.
[33] Indigo Finance Money Pty Limited v Moustrides & Anor [2010] SASC 355; (2010) 245 FLR 331 at [45].
[34] White J had earlier identified these (at [44]) as comprising only a written application supported by an affidavit, both to be filed and served within 21 days after the statutory demand is served.
[35] Supreme Court Civil Rules 2006 r 31(2).
[36] Wood v Cross Television Centre Pty Ltd [1962] NSWR 528.
[37] Meckiff v Simpson [1968] VR 62 at 68-9.
[38] Hinze v Zed [1926] SASR 77.
White J went on to “counsel” prospective applicants as to the potential pitfalls that might arise when only one originating process is deployed with respect to multiple statutory demands. Further, his Honour noted that if a defendant were to contend that they had been inappropriately joined as a defendant in the one action any such contention should be addressed by reference to rules 73, 74 and 77 of the Supreme Court Civil Rules 2006.
In Greenhills Securities Pty Ltd v Loire Consultants Pty Ltd & Anor,[39] the plaintiff by way of a single originating process sought to have set aside three statutory demands, two served by one defendant and one served by the other defendant. The originating process sought separate orders in relation to each statutory demand. Ball J was faced with a number of issues to be determined including the single originating process issue. His Honour expressed a preference for the approach taken by Barrett J in Remo Constructions and White J in Indigo Financial Money. His Honour observed as follows.[40]
As is apparent in the present case, there is no difficulty in applying the provisions of s 459G separately to separate relief sought in the one originating process. Although Div 3 imposes a strict regime, I do not read it as intending to displace the general approach to the law of procedure that the court should look to the substance of what has happened rather than its form. If in substance an alleged debtor has made an application to set aside a statutory demand within the timeframe specified by s 459G and that application is supported by an affidavit that has been filed and served in accordance with the section, that it seems to me should be sufficient.
[39] [2015] NSWSC 13.
[40] Greenhills Securities Pty Ltd v Loire Consultants Pty Ltd & Anor [2015] NSWSC 13 at [19].

I also prefer the reasoning of and approach taken by Barrett J in Remo Constructions and, in particular, White J in Indigo Financial Money. The Master was correct not to dismiss the appellant’s single originating process simply on the basis that it sought to deal with more than one statutory demand.
I turn now to consider the respondents’ alternative, but in my view primary, argument that seeking to have both statutory demands set aside by way of a single order was fatal to the appellant’s application. In order to do so, it is necessary to return to the reasoning of Barrett J in Remo Constructions and Golden Plantation, the essence of which has been set out earlier.
In Remo Constructions Barrett J as part of his reasoning to the view that a single originating process relating to multiple statutory demands will not necessarily be invalid as falling outside the requirements of section 459G, acknowledged that:
It might ... founder if in the Filaria form embodying a claim for a single order in respect of multiple demands: see para [15] above.
[emphasis supplied]
Earlier in the judgment his Honour referred to the position in Filaria Pty Ltd v Carlisle & Ors[41] in more detail.[42]
Help Desk and Calquid were referred to by Master Harper in Filaria Pty Ltd v Carlisle [2004] ACTSC 95. That was a case in which a single order was sought setting aside three statutory demands each of which had been served on the plaintiff company by a different person. The claim was thus framed in an “all or nothing” way, so that, according to the manner in which the plaintiff advanced its case, the court’s task was to decide whether it should set aside all of the statutory demands or none of them.
[41] [2004] ACTSC 95 (Harper M).
[42] Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172; (2008) 222 FLR 375 at [15].
Barrett J’s consideration in Remo Constructions of Filaria was in the context of his consideration of the one originating process issue. Indeed, his Honour did not need to and did not address the single order issue. Further, in Filaria Master Harper decided the matter on the basis of the one originating process issue in accordance with Young J’s decision in Help Desk.
Accordingly I am persuaded that regardless of the merits of the application, it must fail by reason of the fact that the company has joined the three statutory demands in a single application to set aside, and that such a course is inconsistent with the terms of s 459G.[43]
[43] Filaria Pty Ltd v Carlisle & Ors [2004] ACTSC 95 at [22].
The only authority of which I have been made aware where the single order issue was directly addressed in the reasons for decision is Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd. It is the judgment of Barrett J in this case that is of the most direct assistance. The relevant paragraphs from his Honour’s judgment have been set out earlier. It is to be remembered that, unlike in the present case, each of the two plaintiffs in Golden Plantation sought the one order which dealt with the statutory demand in which it had an interest and the statutory demand in which it had no interest and with respect to which it had no standing.
The essence of his Honour’s reasoning would seem to have been as follows.
(i)The debts were separate and distinct with separate and distinct sources.[44]
(ii)All elements of a complete and regular application contemplated by section 459G must be attended to within the prescribed 21 day period.[45]
(iii)Both plaintiffs claim a single order operating in relation to both demands; neither “[seeks] an order setting aside the statutory demand served on it”.[46]
(iv)The plaintiffs’ approach “does not contemplate the setting aside of one statutory demand independently of the other”. The claim is an “all or nothing claim”.[47]
(v)The cases allow very little scope for the pursuit of two or more setting aside claims in a single proceeding.[48]
(vi)It is necessary (but not necessarily sufficient) for there to be a separate claim in respect of each statutory demand; “one originating process is ... [to be] the vehicle by which each of several distinct applications is made”.[49]
(vii)Each such application within the single originating process must have a distinct existence which relates alone to the one statutory demand. Such is “crucial to compliance with the scheme of s 459G”.[50]
[44] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [8].
[45] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [11], citing David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265.
[46] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [14].
[47] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [14].
[48] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [16].
[49] Golden PlantationPty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [16].
[50] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [17].
With respect, I do not understand Barrett J in Golden Plantation to be propounding an inflexible rule of law to the effect that a single originating process which seeks one order seeking to set aside more than one statutory demand can never conform to the requirements of section 459G. His Honour’s language does not go so far; it is consistent with the guarded language employed by his Honour in Remo Constructions.[51]
[O]ne originating process dealing with several demands may founder because the affidavit put forward as a supporting affidavit is not in truth of that character. It might also founder if in the Filaria form embodying a claim for a single order in respect of multiple demands ...
[emphasis supplied]
[51] Remo Constructions Pty Ltd v Dualcorp Pty Ltd [2008] NSWSC 1172; (2008) 222 FLR 375 at [35].
In Remo Constructions Barrett J was prepared to leave the door for a single order relating to multiple statutory demands ajar. This is consistent with his Honour’s reasoning in Remo Constructions and that of White J in Indigo Financial Money to the effect that section 459G does not provide for an abstract rule of law to the effect that there must always be a separate originating process referrable to each statutory demand. Furthermore, to impose an inviolable requirement that separate orders be sought where section 459G(1) provides only that “a company may apply … for an order setting aside a statutory demand on the Company” would seem to involve a restrictive implication of the type referred to by Gummow J in David Grant.
Ultimately, the question is one of construction. What are the requirements demanded by section 459G and does the originating process in issue, on its proper construction, satisfy those requirements?
Insofar as the necessary procedural requirements prescribed by section 459G are concerned, I adopt the position espoused by White J in Indigo Financial Money.[52]
[Section 459G] requires that there be a written application supported by an affidavit, and requires that each of the application and the supporting affidavit be filed and served within 21 days after the notice of demand is served.
[52] [2010] SASC 355; (2010) 345 FLR 331 at [44].
This summary is faithful to the ordinary and natural meaning of the language used in section 459G. To this summary I would add by reference to the language of section 459G(1) that the application must be one “for an order setting aside a statutory demand on the company”.
I turn now to consider the meaning or effect, on its proper construction, of the originating process filed in the present case. In Femley Pty Ltd v Salken Engineering Pty Ltd[53] Santow J, when considering a single originating process issue, observed that the application “has obviously to be read in conjunction with any affidavit in support”. His Honour also observed that it was necessary to find that the single originating process “is expressed so it can be read distributively, along with the accompanying affidavit”[54] and “is expressed so as to be capable of being read distributively as applicable to the relevant statutory demand applicable to the relevant plaintiff”.[55] These statements by Santow J were made in the context of his allowing an exception to the one originating process “rule” with respect to joint and several partnership debts. However, as a matter of principle, there is no reason why they should not also apply with respect to the single order issue. In Isaco Pty Ltd v Davey,[56] Barrett J adopted these observations of Santow J.
[53] [1999] NSWSC 334; (1999) 17 ACLC 828 at [22].
[54] Femley Pty Ltd v Salken Engineering Pty Ltd [1999] NSWSC 334; (1999) 17 ACLC 828 at [20] (emphasis supplied).
[55] Femley Pty Ltd v Salken Engineering Pty Ltd [1999] NSWSC 334; (1999) 17 ACLC 828 at [24] (emphasis supplied).
[56] [2003] NSWSC 1043; (2003) 47 ACSR 483 at [17].
The affidavits in the present matter, filed in support of the originating process and within the 21 day period prescribed by section 459G,[57] are plain to the effect that the appellant sought the setting aside “of each of the statutory demands dated 19 August 2016 respectively served by the first defendant and the second defendant upon the plaintiff”. The affidavits clearly identify the nature and amount of each of the two separate and distinct statutory demands. There can have been no doubt on the part of the two respondents of the appellant’s intentions in this respect. Further, each of the statutory demands had been directed to the single appellant who clearly had an interest in it and the necessary standing to seek an order for it to be set aside.
[57] One sworn by the plaintiff’s solicitor, Mark Eric Hamilton, on 7 September 2016 and one sworn by the sole director and manager of the plaintiff, Todd Samuel Lichti, on 7 September 2016.
Nevertheless, paragraph 1 of the prayer for relief in the originating process, read literally, seeks a composite order.
An order that the statutory demands both dated 19 August 2016 served by the first defendant and the second defendant upon the plaintiff be set aside ...
The order as sought can be construed, that is, interpreted or understood, in one or other of the following ways.
(i)a single order to the effect that both and only both statutory demands are set aside; or
(ii)an order that one of the statutory demands is set aside and another order that the other statutory demand is set aside (which if made by the Court would result in both statutory demands being set aside).
If the construction in (i) were to apply the appellant, arguably, would fall foul of the charge that it is maintaining an “all or nothing claim” that, according to the approach taken in Golden Plantation, does not fall within the requirements of section 459G. If so, and unless I were to be satisfied that Barrett J’s approach in Golden Plantation was “plainly wrong”, which I am not, such a construction of the order sought would lead to the dismissal of the appeal.
However, the construction identified above in (ii) avoids this result. If the construction in (ii) were to be adopted, the originating process would be “the vehicle by which each of several distinct applications is made” and one where each such application would “[relate] to a single and particular statutory demand”.[58]
[58] Golden Plantation Pty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 1279 at [16]-[17].
The construction in (i) derives from a literal reading of the proposed order as drafted. However, whilst the appellant plainly wants for both statutory demands to be set aside, it does not follow that this is the only order it has asked the Court to make. Further, the construction in (ii) conforms to the natural and ordinary meaning of the words used when considered in their full context. It is clear from the originating process and the supporting affidavits that the appellant wants two separate and distinct statutory demands to be set aside. They have been sufficiently identified, in particular, insofar as each relates to a particular defendant. By paragraph 3 of the prayer for relief the appellant also seeks “such further or other orders as [the] Court deems fit”.[59] Necessarily implied, when paragraphs 1 and 3 of the prayer for relief are considered together, is the plaintiff’s request for an order that each statutory demand be set aside or such of the two (in this case) be set aside as the Court “deems fit”.
[59] Emphasis supplied.
The pleader has commenced paragraph 1 with the phrase “An order that”. Had the opening words been “Orders that”, no criticism could be directed on the “all or nothing” basis. Nevertheless, the language used considered alone, and a fortiori together with the supporting affidavits, is capable of being and, taking a practical view, demands to be read distributively in the sense described by Santow J in Femley. The pleader has clearly indicated that he or she wants an order for each statutory demand to be set aside and notwithstanding the infelicitous use of language. To find otherwise would justifiably invoke the criticism that form is to be preferred over substance.
The construction in (ii) above is to be preferred and adopted. Appeal grounds 1 and 2 are made out and the appeal against the Master’s primary or first judgment is allowed.
As a consequence, the appeal concerning the Master’s second judgment dismissing the appellant’s interlocutory application for permission to amend the originating process can be dealt with more expeditiously.
Appeal grounds 3 and 4
Had I dismissed the primary appeal I also would have dismissed the appeal from the Master’s second judgment. Section 459G(2) provides that an application for an order setting aside a statutory demand “may only be made within 21 days after the demand is … served” (emphasis supplied). A Court has jurisdiction to hear and determine only an application that conforms to the requirements of section 459G. If there is no application that conforms to the requirements of section 459G on foot at the expiration of the 21 day period, a Court has no jurisdiction to make an order setting aside a statutory demand. It is simply too late once the 21 day period has expired to file an originating process or to amend a non-conforming and therefore invalid originating process previously filed.
Barrett J in Golden Plantation[60] explained the problem for such a plaintiff as follows:
I have not to this point mentioned the application of the plaintiffs made at the start of today’s hearing for leave to amend the originating process by substituting for the existing claim two separate and distinct claims, each being a claim for an order setting aside one of the two statutory demands. Such an amendment would not change the landscape as it existed at the end of the 21 day period central to the operation of s 459G. The amendment would therefore be futile.
Counsel for the plaintiff referred to ss 64 and 65 of the Civil Procedure Act 2005 in this connection and to the point that, in some circumstances, an amendment may relate back to the date of the commencement of the proceedings. That, to my mind, does not assist the plaintiffs for two reasons. First, no basis was articulated on which any relation back might be said to arise in this case. Second, and as I have said, the matters with which s 459G is concerned are to be assessed and found to be in conformity with the section as at the end of the 21 day period.
The Master was correct in adopting Barrett J’s analysis and its applicability in this jurisdiction.
[60] Golden PlantationPty Ltd & Anor v TQM Design and Construct Pty Ltd [2010] NSWSC 127at [19]-[20].
However, the effect of my allowing the appeal against the Master’s first judgment is that the appellant, at all times, was relying on a complying and valid originating process. Whilst, as it happens, the appellant may now not wish to amend the originating process, the incorrect premise on the basis of which the interlocutory application was dismissed has fallen away. I allow the appeal against the second judgment. The matter is to be remitted to the Master for the appellant’s originating process to be determined according to its merits and for the appellant’s interlocutory application, if pressed, to be determined according to its merits.
Conclusion
I make the following orders:
(i)The appeal against the Master’s judgment delivered on 15 February 2017 is allowed and the Master’s orders are set aside.
(ii)The appeal against the Master’s judgment delivered on 6 March 2017 is allowed and the Master’s orders are set aside.
(iii)The matter is remitted to the Master for its further disposition in accordance with these reasons.
I will hear the parties with respect to the costs of the proceedings before the Master and of the appeals.