Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd

[2016] NSWCA 42

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 42
Hearing dates:	9 December 2015
Decision date:	15 March 2016
Before:	Gleeson JA at [1]; Simpson JA at [59]; Emmett AJA at [60].
Decision:	(1)   Dismiss the applicants’ notices of motion dated 27 July 2015 and 3 December 2015.  (2)   Applicants to pay the respondent’s costs of the motions.
Catchwords:	PRACTICE AND PROCEDURE – UCPR r 36.15 – application to set aside judgment – whether judgment given irregularly, illegally or against good faith – application to re-open decision dismissing application for leave to appeal – whether the Court misapprehended facts or law PRACTICE AND PROCEDURE – UCPR rr 7.1 and 7.2 – whether corporate plaintiff may commence or carry on proceedings in Supreme Court by a director who is not also a plaintiff in the proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 3, 14 Corporations Act 2001 (Cth) Interpretation Act 1987 (NSW) s 21 Supreme Court Rules 1970 (NSW) r 8(1) Uniform Civil Procedure Rules 2005 (NSW) rr 7.1, 7.2, 7.14, 36.15, 36.16, 36.17, 42.1
Cases Cited:	Autodesk Inc v Dyason [No 2] [1993] HCA 6; 176 CLR 300 Connectland Pty Ltd v Porthaven Pty Ltd [2011] NSWSC 616 DB Mahaffy & Associates Pty Ltd v Mahaffy [2011] NSWSC 673 In the Matter of DB Mahaffy & Associates Pty Limited [2012] NSWSC 776 JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128; 75 NSWLR 745 May v Christodoulou [2011] NSWCA 75; 80 NSWLR 462 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; 78 NSWLR 190 Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240 Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWCA 383 Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1708 Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771 Teoh v Hunters Hill Council [No 2] [2010] NSWCA 321 Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
Category:	Principal judgment
Parties:	Tanamerah Estates Pty Ltd (First Applicant) James Tydeman (Second Applicant) Tibra Capital Pty Ltd (Respondent)
Representation:	Counsel: M Klooster (Respondent)   Solicitors: James Tydeman (authorised director) (Applicants) Schofield King Lawyers (Respondent)
File Number(s):	2013/175752
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36 (6 February 2013) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (No 2) [2013] NSWSC 616 (23 May 2013) Date of Decision: 6 February 2013 23 May 2013 Before: Hallen J; Bergin CJ in Eq File Number(s): 2012/269942

Judgment

1. GLEESON JA: The applicants, Tanamerah Estates Pty Ltd (Tanamerah) and Mr James Tydeman, seek orders under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15 setting aside or varying the decision of this Court on 19 August 2013: Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266. This Court dismissed with costs an application for leave to appeal from three decisions of the judges in the Equity Division in proceedings brought by Tanamerah against the respondent, Tibra Capital Pty Ltd (Tibra) (the 2012 proceedings), namely:

1. the decision of Hallen J on 6 February 2013 ordering that: (a) Mr Tydeman be removed as a party/plaintiff in the proceedings; (b) the plaintiffs’ notice of motion filed 31 October 2012 be dismissed; (c) unless by 20 February 2012, a notice of legal practitioner acting had been filed and served by a solicitor retained by Tanamerah, the proceedings be stayed; and (d) Tanamerah and Mr Tydeman to be jointly and severally liable to pay Tibra’s costs of two motions: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36. (The reference in the order made by Hallen J to “20 February 2012” is an obvious mistake. The date should have been “20 February 2013”);

2. the decision of Bergin CJ in Eq on 8 March 2013 that Tanamerah pay 75% of Tibra’s costs of a notice of motion filed 18 February 2013 for the re-opening of part of the 2012 proceedings; and

3. the decision of Hallen J on 23 May 2013 dismissing with costs the re-opening motion concerning the costs order made on 6 February 2013 and that such costs be payable forthwith: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (No 2) [2013] NSWSC 616.

2. In dismissing the application for leave to appeal, the Court also corrected under the “slip rule”, the orders made by Hallen J on 23 May 2013 dealing with costs to reflect his Honour’s judgment because of the difficulties with those orders as identified at [9] of the reasons of Basten JA.

Background

3. The underlying dispute before Hallen J was the ability of a company to commence and carry on proceedings “by a director”. It is desirable to briefly refer to the circumstances in which that issue arose.

4. Tanamerah commenced proceedings against Tibra by a statement of claim filed in the Equity Division on 29 August 2012. It purported to do so through the agency of Mr Tydeman, who relied upon a resolution of directors of Tanamerah dated 19 June 2012 authorising Mr Tydeman to do all things necessary on behalf of Tanamerah to enforce its rights against Tibra. Tibra disputed Tanamerah’s entitlement to commence proceedings without a solicitor. Subsequently, an amended statement of claim was filed on 24 September 2012 naming Mr Tydeman as a second plaintiff. Tibra then sought orders by notice of motion dated 28 September 2012 removing Mr Tydeman as a party and staying the proceedings until Tanamerah appointed a solicitor to act for it. Tanamerah and Mr Tydeman continued to assert their entitlement to proceed in the manner they had taken to that time. In the alternative, by notice of motion dated 31 October 2012, they sought a dispensing order under s 14 of the Civil Procedure Act 2005 (NSW).

5. The effect of the decision of Hallen J on 6 February 2013 was that the 2012 proceedings were stayed, as a notice of appearance was not filed by a legal practitioner on behalf of Tanamerah by 20 February 2012. That remains the position.

6. UCPR r 36.15(1) provides that a judgment or order may, on sufficient cause being shown, be set aside if the judgment “was given or entered, or the order was made irregularly, illegally or against good faith.”

7. The meaning of this rule was considered by this Court in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; 78 NSWLR 190. The Court (Allsop P, Campbell JA and Handley AJA) said in its joint judgment:

16. The focus of r 36.15(1) is on the judgment or order which is attacked, and the question is whether it was “given … entered, or … made” irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision or the irregularity of other steps in the proceedings, or in the proceedings below.

17.    The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties are represented and fully heard.

The applicants’ motions

8. In substance, the applicants’ notice of motion filed 27 July 2015 seeks a re-opening of the application for leave to appeal. However, the relief sought in the re-opening motion was not so confined.

9. Paragraph 1 sought a stay of other proceedings commenced by Tanamerah against Tibra on 15 June 2015 (the 2015 proceedings) seeking, among other things, to set aside a statutory demand dated 22 May 2015 issued by Tibra until after the re-opening motion has been determined.

10. Not only were the 2015 proceedings not properly before this Court on the re-opening application, those proceedings were determined by Black J by orders made on 16 November 2015: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1708. While Tanamerah has commenced proceedings in this Court seeking leave to appeal from that decision, an application to stay the order dismissing the 2015 proceedings was refused by Leeming JA on 30 November 2015: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWCA 383. Ultimately, Mr Tydeman did not press this relief.

11. Paragraph 2 sought a stay of the enforcement of the costs orders made by Hallen J and Bergin CJ in Eq in the 2012 proceedings and by this Court when dismissing the application for leave to appeal, pending the determination of either the 2012 proceedings or the re-opening motion. This relief depended upon the outcome of the re-opening application.

12. The applicants filed written submissions dated 14 September 2015. Although the rules limit the written submissions on a full appeal to 20 pages, the submissions on the re-opening motion extended to 76 pages.

13. On 3 December 2015, the applicants filed a further notice of motion. So far as is presently relevant, this motion sought the following relief:

(2) A declaration that the legal meaning of the rules, in respect to timing of procedural matters as contemplated by the rules, requires UCPR r 7.2 must be read and applied first and before UCPR r 7.1 is read and applied.

(3) A declaration that in these proceedings 2013/175752 Mr James Tydeman, in the capacity as a duly appointed director whom had also been properly authorised by the board of directors as contemplated by UCPR r 7.2(2)(a)(ii), also acted on behalf of Tanamerah Estates Pty Limited in accordance with the legal meaning of the defined word “plaintiff” as fixed by the CPA s 3.

(4) A declaration that in the proceedings 2012/269942 in the court below Mr James Tydeman, in the capacity as a duly appointed director whom had also been properly authorised by the board of directors on 19 June 2012 as contemplated by UCPR r 7.2(2)(a)(ii), also acted on behalf of Tanamerah Estates Pty Limited in accordance with the legal meaning of the defined word “plaintiff” as fixed by the CPA s 3.

14. Although the issue raised by the applicants’ first notice of motion, and initially the only issue, is whether the decision of this Court refusing leave to appeal should be re-opened, the declarations sought in the later motion indicate the nature of the primary legal argument which the applicants advanced on the re-opening application.

Proceedings by a company

15. UCPR r 7.1 provides relevantly as follows:

7.1 By whom proceedings may be commenced and carried on

(1)   A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.

…

(2)   A company within the meaning of the Corporations Act 2001 of the Commonwealth:

(a)   may commence and carry on proceedings in any court by a solicitor or by a director of the company, and

(b)   may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the company.

(3)   In the case of proceedings in the Supreme Court, subrule (2)(a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings.

…

16. Subrule (1A) deals with a power of attorney granted by another person and is not relevant. Subrule (4) deals with proceedings by a corporation which is not a company within the meaning of the Corporations Act 2001 (Cth). Subrules (4A) and (4B) deal with proceedings in the Industrial Relations Commission. Subrule (5) provides a further entitlement for a person other than a lawyer to commence and carry on proceedings in the Local Court.

17. Rule 7.2 relevantly requires that a person commencing or carrying on proceedings as the director of a company within the meaning of the Corporations Act must file an affidavit as to his or her authority to act, together with a copy of an instrument evidencing that authority, namely a resolution of the directors.

18. It should be accepted that the primary power and authorisation in the rules as to the commencement and carrying on of litigation by companies is found in UCPR r 7.1: Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWCA 383 at [9] (Leeming JA). Importantly, r 7.1 distinguishes between proceedings commenced in the Local Court, the District Court and the Supreme Court.

19. In the case of proceedings in the Local Court, a company need not appear by way of a solicitor. A company may appear in the Local Court either by a director or (unless the Court orders otherwise) by a duly authorised officer or employee of the company. In the case of proceedings in the District Court the company may appear by a director. In the case of proceedings in the Supreme Court, the right of a company to appear by a director is qualified by the requirement in r 7.1(3) that the director is also a plaintiff in the proceedings. Rule 7.2 imposes an additional obligation in the case of proceedings in the Supreme Court or the District Court by requiring a director to file an affidavit of the director’s authority in circumstances where a director is permitted to act pursuant to r 7.1.

20. In JSBG Developments Pty Ltd v Kozlowski [2009] NSWSC 1128; 75 NSWLR 745 at [18], Barrett J (as his Honour then was) held that only a director who is in his or her own right a plaintiff is eligible under r 7.1(2)(a), and that the combined effect of UCPR r 7.1(2)(a) and (3) was that if the company and the director of the company are both plaintiffs, the company may commence and carry on the proceedings by that director. Otherwise, the company may only commence or carry on the proceedings in the Supreme Court by a solicitor.

21. This reading of the rules has been followed and applied at first instance in Connectland Pty Ltd v Porthaven Pty Ltd [2011] NSWSC 616 (White J); DB Mahaffy & Associates Pty Ltd v Mahaffy [2011] NSWSC 673 (White J) and In the Matter of DB Mahaffy & Associates Pty Limited [2012] NSWSC 776 (Brereton J).

22. Hallen J accepted and applied this reading of the rules, and this Court (Basten JA and Sackville AJA) affirmed his Honour’s approach when refusing leave to appeal. The applicants seek to re-agitate, among other things, this reading of r 7.1.

Re-opening – relevant principles

23. It has been said that this Court would only set aside a decision of the Court refusing leave to appeal in exceptional circumstances. The Court would need to be persuaded that a renewed application was supported by a new ground of fact or law that had not been considered before, or that there had been a significant change of circumstances in the meantime: Teoh v Hunters Hill Council [No 2] [2010] NSWCA 321 at [15] (Handley AJA; Allsop P and Beazley JA agreeing). See also Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771 at [17].

24. The relevant legal principles applicable to a re-opening application were discussed by Mason CJ in Autodesk Inc v Dyason [No 2] [1993] HCA 6; 176 CLR 300 (Autodesk).

25. The power to set aside part or all of a judgment is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. The power is enlivened where a court has “apparently proceeded according to some misapprehension of the facts or the relevant law” and where that misapprehension cannot be attributed solely to the neglect or default of the party seeking to set aside or vary the judgment: Autodesk at 302-303.

26. Importantly, Mason CJ emphasised in Autodesk (at 303) that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court, or “to provide a backdoor method by which unsuccessful litigants can reargue their cases”. See also Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362; Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240.

27. In the present case, this is essentially what the applicants are now seeking to do.

The re-opening application should be refused

28. The applicants relied on each of the grounds in UCPR r 36.15(1). However, many of the complaints raised in the applicants’ written and oral submissions did not draw a clear distinction between setting aside a judgment or order on the grounds of irregularity, illegality or absence of good faith. Many of the complaints asserted a combination of grounds in respect of the same matter. In the circumstances, it is convenient to group the applicants’ major complaints together. Three main complaints were identified.

29. First, that the Court had failed to properly apply the definitions of “person under legal incapacity”, “tutor” and “plaintiff” in relation to UCPR rr 7.1 and 7.2. These complaints were variously characterised by the applicants as an irregularity, illegality and a lack of good faith.

30. Secondly, that the applicants were denied procedural fairness in this Court because the judgment contained “surprises”. The applicants characterised the “surprises” as an irregularity or an absence of good faith.

31. Thirdly, that the Court had improperly invoked the “slip rule” under UCPR r 36.17 in the absence of any notice of motion being filed requesting the Court to do so. The applicants contended this constituted an irregularity and an illegality or an absence of good faith.

The “plaintiff” point

32. With respect to the construction and application of UCPR rr 7.1 and 7.2, the applicants’ essential propositions were as follows:

1. that Mr Tydeman was a “plaintiff” for the purposes of r 7.1(3) when the 2012 proceedings were commenced because he signed the statement of claim on behalf of Tanamerah as its duly authorised representative;

2. that Mr Tydeman was a tutor for Tanamerah because a company is only a “sheet of paper” and hence a person under a “legal incapacity”; and

3. that in dismissing the application for leave to appeal, Basten JA and Sackville AJA disregarded a relevant authority in this Court: May v Christodoulou [2011] NSWCA 75; 80 NSWLR 462.

33. As to (1), when a company commences proceedings, the “plaintiff” is the company itself, not the person who happens to sign the statement of claim on its behalf, whether that person is a solicitor instructed by the company or an eligible director of the company. This follows from an ordinary reading of the expression “plaintiff” as defined in s 3(1) of the Civil Procedure Act. The term “plaintiff” relevantly means “the person by whom proceedings are commenced”. The word “person” when used in any Act or instrument includes a corporation: Interpretation Act 1987 (NSW), s 21.

34. As to (2), the notion that a company as a juristic entity is a “person under a legal incapacity” because a company itself is inanimate is misconceived for the reasons given by Basten JA: [2013] NSWCA 266 at [20]. The definition of the phrase “person under a legal incapacity” in s 3(1) of the Civil Procedure Act is concerned with individuals rather than juristic persons. The suggestion that a company was under a “legal incapacity” and therefore a company would be forced to sue through a “tutor” in all cases was properly rejected by this Court.

35. As to (3), the applicants’ reliance upon the following statement of Handley AJA at [8] in May v Christodoulou was misplaced:

Rule 7.1(2), read with relevant definitions, enables a company, acting by a director, to commence and defend proceedings in any court, but r 7.1(3) provides that a company can only commence proceedings in the Supreme Court by a director if that director is also a plaintiff. Rule 7.2(2) prescribes the steps required before a director can act in this way. The prescribed affidavit must contain a statement by the director (r 7.2(2)(iv)) that he is aware that “he ... may be liable to pay some or all of the costs of the proceedings.”

36. First, May v Christodoulou concerned proceedings in the District Court where a director (who was not a party to the proceedings) had conducted the company’s defence of a claim. The director was successful on appeal in setting aside a personal costs order which had been made against him. The requirement of r 7.1(3) was not in issue as this subrule only applies to proceedings by a company in the Supreme Court.

36. Secondly, I do not read [8] of the judgment of Handley AJA (who was in the minority in May v Christodoulou) as being inconsistent with the reading of r 7.1(3) by Hallen J and this Court. What his Honour expressed at [8] was no more than a statement of the effect of the r 7.1 when read with r 7.2. His Honour did not address whether r 7.1(3) requires the director as plaintiff to have a proper cause of action which may be advanced in the proceedings commenced and carried on by the director on behalf of the company in the Supreme Court. This is not surprising; his Honour was dealing with proceedings carried on by a director in the District Court to which r 7.1(3) does not apply.

37. Thirdly, and importantly, Basten JA and Sackville AJA did not misapprehend the relevant law. May v Christodoulou simply did not apply to the issue which was before Hallen J.

38. Nonetheless, the applicants submitted, based on an email communication from the Hon Ken Handley in October 2013, that the statement by his Honour (as he then was) in [8] of May v Christodoulou is to be understood as meaning:

A properly authorised director can appear in court for the company and there is no need for him/her to have a personal claim as well … .

40. That a former a judge may express a view on the meaning of a rule in the UCPR is really beside the point, no matter how eminent the jurist. The task of the Court is to consider and apply the rules in the UCPR not the extra-curial views of a respected jurist.

Procedural fairness

41. The applicants complained of “surprises” in the reasons of this Court when refusing leave. Mr Tydeman pointed to the reference by Basten JA at [20] to the expression “disable person” under the former Supreme Court Rules 1970 (NSW), r 8(1). Mr Tydeman complained that this rule was not argued before the Court, and that he lost the opportunity to argue that the rule was irrelevant. This reflects a misunderstanding of the Court’s reasons. Basten JA was simply explaining at [20] that the fact that all of the paragraphs in the definition of a “person under legal incapacity” refer to individuals with a disability reflects the historical approach under the rules, including under the former Supreme Court Rules where the analogous expression used was that of a “disable person”.

42. Next, Mr Tydeman complained that Basten JA used the word “initiate” at [16] of his reasons in connection with the commencement of proceedings when he should have used the word “commence” as in r 7.1. It was contended that Basten JA did not apply the definition to the rules. This contention does not require further comment. It involved nothing more than a pointless and misconceived attempt to find error when none existed.

43. Mr Tydeman also complained that Basten JA made a false statement at [18] of his reasons because he incorrectly attributed to the applicants an argument relying on UCPR r 7.14, which the applicants had not advanced. Rule 7.14 deals with the requirements that a “person under a legal incapacity” appear by a tutor appointed under the rules. True it is that the applicants did not expressly refer to r 7.14, but their contention that a company was a person under a legal incapacity and that Mr Tydeman was the tutor for Tanamerah necessarily engaged r 7.14. The applicants’ complaint is again misconceived.

The “slip rule”

44. The prospect of this Court correcting the costs orders made by Hallen J under the “slip rule” was raised with the parties by the Court on the hearing of the leave application.

45. UCPR r 36.17 provides that if there is an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

46. Contrary to the applicants’ contentions, the reference in r 36.17 to the Court acting “on its own motion”, does not mean that the Court itself gives notice of its intention to act under the slip rule by way of a notice of motion addressed to the parties.

47. Mr Tydeman complained that Basten JA only referred, during oral argument on the leave application, to the possibility of correction of the orders of Hallen J arising from [84] and [85], and not [86], of his Honour’s reasons given on 23 May 2013. So much can be accepted, but the absence of express reference by Basten JA to [86] of Hallen J’s reasons, which dealt with the same subject matter, does not make the correction under the slip rule irregular, illegal or against good faith.

48. In any event, accepting that an affected party may seek to set aside an order made under the slip rule relying upon UCPR r 36.16(2)(b), if the order was made in the absence of the party, no basis has been demonstrated for interfering with the order made by this Court under the slip rule on 19 August 2013 varying the orders made by Hallen J on 23 May 2013.

Other matters

49. In my view, the orders of this Court announced orally on 19 August 2013 following the publication of reserved reasons were not “given or made” irregularly. Most of the irregularities relied upon amounted to no more than the assertion that the conclusion reached by this Court in refusing leave to appeal involved a mistake. Other irregularities relied upon included spelling errors in orders and asserted deficiencies in the certification of the judgment of Sackville AJA. These matters did not provide any basis to set aside the judgment given by this Court.

50. The illegalities relied on included that the relevant judges had manipulated the outcomes of the interlocutory disputes for improper purposes, may have engaged in criminal conduct, and that the relevant judges and counsel for Tibra engaged in some form of covert undertaking to pervert the course of justice. There was no basis for these assertions.

51. Nor in my view were the orders of this Court on 19 August 2013 “given or made” against good faith. The assertion that the relevant judges acted in bad faith because their Honours avoided consideration of the applicants’ contention that acting under the authority contemplated by UCPR r 7.2(2) negates any need for the director to be eligible under UCPR r 7.1(2), amounted to no more than the assertion of a mistake by Hallen J sufficient to justify the grant of leave to appeal. This Court dealt with and rejected that proposition. Some of the other matters relied upon included that errors in the transcripts of proceedings show that the system can be manipulated. The asserted errors, which do not require consideration, could not provide a basis for concluding that the judgment of this Court was against good faith.

52. The applicants also complained that they had suffered substantial injustices both with respect to the costs orders made against them and because Tanamerah’s proceedings against Tibra had been stifled by the stay order made by Hallen J. It was contended that the judges of the Court were involved in oppression by requiring a company to instruct a solicitor to appear on its behalf.

53. As already indicated, the rules make provision for a company to appear by a director in the Supreme Court when the director is also a plaintiff. Mr Tydeman accepted that he did not have a personal cause of action against Tibra and he was properly removed as a plaintiff from the 2012 proceedings. In the circumstances, unless a dispensing order was obtained, Tanamerah could only appear in the Supreme Court by a solicitor. Tanamerah sought a dispensing order before Hallen J from the requirement in r 7.1(3) but not on the ground of impecuniosity. Importantly, Tanamerah did not seek leave to appeal against the decision of Hallen J on 6 February 2013 refusing to make a dispensing order.

54. Mr Tydeman made clear on the re-opening application that Tanamerah has not instructed a solicitor to appear on its behalf in the 2012 proceedings because it does not consider that a company need appear by a solicitor. The stay of the 2012 proceedings is a consequence of Tanamerah’s decision in that regard.

55. No purpose would be served by further analysing the applicants’ written submissions, particularly in the context of a re-opening motion. It is sufficient to say that having read the submissions, I am not persuaded that the Court misapprehended either the case sought to be advanced by the applicants on the leave application, or the legal principles upon which the applicants relied.

56. As to the costs orders made by Hallen J and Bergin CJ in Eq, the applicants failed to identify any argument of fact or law which this Court misapprehended, when refusing leave to appeal in respect of those orders.

Orders

57. For the reasons given, the application to set aside the judgment and orders of this Court made on 19 August 2013 should be dismissed with costs. It follows that the applicants’ further notice of motion filed on 3 December 2015 should also be dismissed with costs. Such costs orders are appropriate given the general rule that costs follow the event: UCPR r 42.1.

58. Accordingly, I would propose the following orders:

1. Dismiss the applicants’ notices of motion dated 27 July 2015 and 3 December 2015.

2. Applicants to pay the respondent’s costs of the motions.

59. SIMPSON JA: I agree with Gleeson JA.

60. EMMETT AJA: The principal question in these proceedings is whether a director of a company may, as of right, appear for the company in proceedings in the Supreme Court. Uniform Civil Procedure Rule 7.1(2)(a) relevantly provides that at company within the meaning of the Corporations Act 2001 (Cth), may commence and carry on proceedings in any court by a solicitor or by a director of the company. However, UCPR 7.1(3) provides that, in the case of proceedings in the Supreme Court, that rule authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings.

61. On 29 August 2012, Tanamerah Estates Pty Ltd (Tanamerah) commenced proceedings against Tibra Capital Pty Ltd (Tibra) by filing a statement of claim in the Equity Division (the Equity proceedings). Tanamerah purported to do so through the agency of Mr Tydeman, as a director, whom Tanamerah had authorised to act on its behalf. Mr James Tydeman, who has at all relevant times been a director of Tanamerah, claims that Tanamerah is entitled, as of right, to conduct proceedings in the Equity Division of the Supreme Court by him as a director and without retaining a solicitor.

62. Tibra raised with Tanamerah the question of whether it was entitled to commence proceedings without a solicitor. On 24 September 2012, an amended statement of claim was filed, in which Mr Tydeman was named as the second plaintiff.

63. On 28 September 2012, Tibra filed a notice of motion in the Equity proceedings seeking an order that Mr Tydeman be removed as a party to the proceedings. On 31 October 2012, Mr Tydeman filed a notice of motion in which he sought various forms of relief, including an order guaranteeing that if he was removed as a party to the proceedings, the rules be dispensed with to permit Tanamerah to commence and carry on the proceedings through him as its duly authorised agent. On 6 February 2013, a judge of the Equity Division ordered that Mr Tydeman be removed as a party in the proceedings and that his notice of motion of 31 October 2012 be dismissed. His Honour also ordered that, unless by 20 February 2012 a notice of legal practitioner acting had been filed and served by a solicitor retained by Tanamerah, the proceedings be stayed.

64. Tanamerah subsequently filed a summons seeking leave to appeal to this Court from the orders made by the primary judge (the appeal proceedings). On 19 August 2013, Basten JA and Sackville AJA dismissed the application for leave to appeal.

65. By notice of motion filed in the appeal proceedings on 27 July 2015, Tanamerah applied for various orders, including an order under UCPR r 36.15 that the judgment entered or given and the orders made by Basten JA and Sackville AJA on 19 August 2013 be set aside. By notice of motion filed on 3 December 2015, Tanamerah also sought a declaration in the appeal proceedings that Mr Tydeman acted on behalf of Tanamerah in accordance with the legal meaning of the word “plaintiff” as defined in s 3 of the Civil Procedure Act 2005 (NSW).

66. The Court granted leave to Tanamerah to appear by Mr Tydeman on the hearing of the two motions. The Court took that step without any objection on the part of Tibra.

67. The bases upon which Mr Tydeman contended that Tanamerah was entitled to appear by him, without a solicitor, are completely without substance or merit. First, he suggested that any company, because it can only act through its directors, is a person under a legal incapacity and, in some way, Mr Tydeman, as an authorised agent of Tanamerah, was its tutor. Alternatively, he suggested that, because he signed the statement of claim as an agent on behalf of Tanamerah, he was in effect the plaintiff, whether or not he was named as second plaintiff. Both contentions are completely without merit and show a complete misconception and misapprehension of the notions involved.

68. Once Mr Tydeman had been removed from the Equity proceedings as a party, namely as second plaintiff in the Equity proceedings, r 71.(3) was no longer satisfied. Mr Tydeman accepted that no relief was claimed by him in the amended statement of claim and that he did not have any individual cause of action available to him against Tibra. In particular, he did not claim to have a joint personal entitlement to the relief sought by Tanamerah and accepted that he was not what might be called “a proper plaintiff” in the proceedings. In those circumstances, there could be no possible complaint about the order made for his removal as a party to the Equity proceedings.

69. It may be arguable that, for so long as Mr Tydeman was named as second plaintiff in the Equity proceedings, he was a plaintiff in the Equity proceedings for the purpose of r 7.1(3). However, once he was removed as a party, the requirements of r 7.1(3) were no longer satisfied. Accordingly, it was necessary for Tanamerah to have the leave of the court to continue to prosecute the proceedings without having a solicitor on the record.

70. No basis has been established to support Mr Tydeman’s contention that UCPR r 36.15 had any application in the circumstances of the case. No possible basis has been established for concluding that the orders made by Basten JA and Sackville AJA were made irregularly, illegally or against good faith. I agree with Gleeson JA, for the reasons proposed by his Honour, that the motions must be dismissed with costs.

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Amendments

17 March 2016 - [5] - 6 February 2013

Decision last updated: 17 March 2016