ANI Corporation Ltd, Elesanar Constructions Pty Ltd & Ors v Williamson & Ors [1992] QSC 383

C' o····· G State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J Writ No 1359 of 1992 THE ANI CORPORATION LIMITED trading as COATES HIRE, ACN 000 421 358, ELESANAR CONSTRUCTIONS PTY.LTD trading as REEDY CREEK QUARRIES ACN 000 804 384, EXSELL CONCRETE PTY LTD, ACN 010 891 773,. OCTVAS PTY LTD trading as MIDWEST . PETROLEUM, ACN 007 388 392 and VINIDEX TUBEMAKERS PTY LTD, ACN 000 664 942 and GEORGE WILLIAMSON, NOEL ERIC WILLIAMSON, RAYMOND ROBERT MOORE, GRAHAM JOHN BRANDON, JOHN EDWARD KURTZ and GARY FRANCIS GARDNER BRISBANE ... DATE 20/10/92 JUDGMENT 1 REVISED COi->IES ISSUED StatG Repo.rtlng Bureau · . ... . . Date oL I l I .l.. Plaintiffs Defendants -- 1 of 8 -- (· 201092 D.1 HIS HONOUR: I consider I should refuse at this stage to make an ord$r .under o 3 r .. SA. I shall hear submissions as to any other orders that should be made. I publish my reasons. I might say, gentlemen, that in this case I have considered that~the joinder of the.various claims which was done in the writ and in the draft statement of claim is not -authorised by o 3 r 1 ~ indeed, it wasn't argued that it was before me- and that-leave should not be given under o 3 r SA. The question is then what .should be done in the circumstances-where appearance has been entered to the· writ in the form in which it exists. I don't know if you wish to have a few minutes to 10 read the judgment. 20 MR ABAZA: If I could just briefly. HIS HONOUR: Yes. Perhaps "if I adjourn for five minutes. I will come back in five minutes. THE COURT ADJOURNED AT 9.25 A.M. THE COURT RESUMED AT 9-. 31 A. M. HIS HONOUR: Yes? MR ABAZA: Your Honour, in fact I make an oral application 30 pursuant to o 32 r 1 to delete the second to fourth-named 40 plaintiffs from the present action and in paragraphs 1 (ii) to 1 (v} inclusive of the endorsement. That would solve the position in relation to the plaintiffs other than the ANI Corporation Limited. Each of those other named parties will now issue separate proceedings in the same terms. HIS HONOUR: Have you any submissions on that? MR SMITH: Your Honour, I take it my friend really means to delete the plaintiffs 2 to 5? so HIS HONOUR: The plaintiffs other than ANI? MR SMITH: Yes, and he has so asked you to act in respect of the endorsement. The endorsement refers to five plaintiffs and he has asked you to delete (ii) to (v) . I assume that he means the same plaintiffs would go as well? JUDGMENT 2 60 -- 2 of 8 -- c\) c 201092 D.l MR ABAZA: Yes, that's correct: MR SMITH: Your Honour, no, I don't have any'objection to that. HIS HONOUR: I will make an order in those terms. That. seems to me to be appropriate. MR SMITH: I ask for costs of the application. HIS HONOUR: Can you resist that? MR ABAZA: It is opposed. The application was a discretionary one. The entry of-appearance, Your Honour will recall, was only filed by leave on the day. The grouping of thedefendants occurred - the entry of appearance is a joint one filed on that ·day by leave. The application should, -in my submission, properly be one as being costs in the cause. HIS HONOUR: Mr Smith? MR SMITH: Your Honour, the defendants came in answer to a summons which certainly sought the exercise by the Court-of its discretion. In my submission, with respect, the application failed; the Court's discretion was not exercised in favour of the applicants. Indeed, the Court exercised its discretion against the applicants. In my submission, therespondents having succeeded, in effect, in the application, should be entitled to their costs. HIS HONOUR: Yes, I think that's so. I will order that the applicants pay the respondents' costs, to be taxed. JUDGMENT 3 10 20 30 40 50 60 -- 3 of 8 -- C' c\ c IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. W 1359 of 1992 THE ANI CORPORATION LIMITED trading as COATES HIRE A.C.N. 000 421 358, ELESANAR CONSTRUCTIONS PTY LTD trading as REEDY CREEK QUARRIES A.C.N. 000 804 384, EXSELL CONCRETE PTY LTD A.C.N. 010 891 773, OCTVAS PTY LTD trading as MIDWEST PETROLEUM A.C.N. 007 388 392 and VINIDEX TUBEMAKERS PTY LTD A.C.N. 000 664 942 Plaintiffs GEORGE WILLIAMSON, NOEL ERIC WILLIAMSON, RAYMOND ROBERT MOORE, GRAHAM JOHN BRANDON, JOHN EDWARD KURTZ and GARY FRANCIS GARDNER Defendants JUDGMENT- RYAN J. Delivered the Twentieth day of October, 1992. Counsel: Solicitors: Mr. A. Abaza for Plaintiff/Applicant Mr. D. Smith for Defendant/Respondent Andrew P. Abaza for Applicant Hill and Taylor for Respondent Hearing Date: 30 September 1992. -- 4 of 8 -- c c IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. W 1359 of 1992 THE ANI CORPORATION LIMITED trading as CQATES HIRE A.C.N. 000 421 358, ELESANAR CONSTRUCTIONS PTY LTD trading as REEDY CREEK QUARRIES A.C.N. 000 804 384, EXSELL CONCRETE PTY LTD A.C.N. 010 891 7 7 3, OCTVAS PTY LTD trading as MIDWEST PETROLEUM A.C.N. 007 388 392 and VINIDEX TUBEMAKERS PTY LTD A.C.N. 000 664 942 Plaintiffs GEORGE WILLIAMSON, NOEL ERIC WILLIAMSON, RAYMOND ROBERT MOORE, GRAHAM JOHN BRANDON, JOHN EDWARD KURTZ and GARY FRANCIS GARDNER Defendants JUDGMENT - RYAN J. Delivered the Twentieth day of October, 1992. C Application has been made by A.N.I. Corporation Ltd. and others for leave pursuant to 0. 3 r. SA to join together in one action as plaintiffs. C' The solicitor for the applicants deposes that he has been instructed by them to commence proceedings pursuant to s. 592 of the Corporations Law against a number of persons. The applicants were suppliers of goods and services to Buckleys Earthmoving Pty. Ltd. (In Liquidation). Buckleys Earthmoving Pty. Ltd. was ordered to be wound up on 10 February 1992. It is stated that the issues for determination in the proceedings are identical, there would be savings in costs in conducting one trial rather than five separate trials,, the witnesses to be called by the -- 5 of 8 -- 2 applicants are the same, and the basis of the relief claimed is common to all applications. A writ was issued on 15 September 1992 by the applicants as plaintiffs against the defendants. An entry of appearance has been filed. The draft statement of claim alleges that the defendants were at all material times directors of Buckleys Earthmoving Pty. Ltd. ("the company"). During 1991 and 1992 the plaintiffs sold goods and services to the company. Immediately before the company incurred the debts, there were reasonable grounds to expect that the company would not be able to pay all its debts / 0 as and when they became due, or that if the company incurred such 0 debts it would not be able to pay all its debts as and when they became due. The defendants were therefore liable pursuant to s. 592 of the Corporations Law to pay to each of the plaintiffs the value of the goods and services supplied. The plaintiffs claim the amount of that value together with interest. Order 3 rule 1 permits all persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, to be joined in an action as plaintiffs, provided that the case is such that if such persons brought separate actions some common question of law or fact would arise. In Payne v. Young (1980) 145 CLR 609 at p.· 615, Mason J. observed that "the rule may well authorise the joinder of separate causes of action accruing to various plaintiffs against different defendants so long as the causes of action arise out of the same transaction or series of transactions". 0 0 -- 6 of 8 -- ------, 3 The causes of actions of the persons named in the writ as plaintiffs clearly do not arise out of the same transaction or series of transactions. They are asserted to arise out of separate contracts of sale to the company. Joinder cannot be justified under 0. 3 r. 1. Should it then be permitted under 0. 3 r. SA? This provides that notwithstanding Rules 1 and 5 (which relates to persons who may be joined as defendants), but without prejudice to any of the c~ powers of the Court or a Judge under this Order I two or more persons may be joined together in one action as plaintiffs or c c c defendants with the leave of the Court or a Judge. In Bishop v. Bridges (1990) 25 FCR 311 at p. 314-5, Wilcox J. gave consideration to the scope of 66(2)(b) of the Federal Court Rules, which permits two or more persons to be joined as applicants or respondents in any proceeding where the Court gives leave so to do. He said: "As the discretion conferred by subs. (b) is, in terms, unconfined, it would be inappropriate to specifycircumstances in which it might be applied. Everything must depend upon the facts of the particular case. But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of cost and delay may often support the grant of leaveunder subs.(b); but, in my opinion, leave ought not to be granted unless the Court is affirmatively satisfiedthat joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practicalmatters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors... Similarly, although all applicantsmight propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the '-''- -- 7 of 8 -- 4 claims of particular applicants as to make it inexpedient to joint the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impos~ an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims." In the instant case, the allegation is that each of the plaintiffs sold goods to the company over approximately the same period. The situation is one where separate contracts were made by each of the plaintiffs with the company, it may be on quite different terms. By s. 592(2) of the Corporations Law, in proceedings against a director under s. 592(1), defences are available to a director which may be provable by some but not by others. I am not satisfied that to give the leave sought would limit the costs and delays of the litigation. It is possible that it may increase them. It is undesirable in my opinion to exercise a discretion to permit joinder which may result in a situation where a number of distinct contracts made by different persons with a company are heard together, and where the defendants may 0 0 0 be able to establish defences separate from those of the company 0 in relation to the plaintiffs' claims. It may be that at a later stage it would be appropriate to make an order for consolidation under 0. 61 r. 5 or for the matters to be heard together, but I consider that I should refuse at this stage to make an order under 0. 3 r. SA. I shall hear submissions as to any other orders that should be made. -- 8 of 8 --