In the matter of Circle Recruitment Pty Limited In the matter of Nader Group ACT Pty Limited In the matter of Investcorp International Pty Limited [2013] NSWSC 734

In the matter of Circle Recruitment Pty Limited In the matter of Nader Group ACT Pty Limited In the matter of Investcorp International Pty Limited [2013] NSWSC 734

The issue of separate demands was not an abuse of process because Mr Berberian had a proper basis to contend the plaintiff companies were jointly and severally liable. However, the plaintiffs' February affidavits raised a genuine dispute about the employing entity. Because the plaintiffs could and should have promptly disclosed the alleged conversation said to establish ETN as employer, there should be no order as to costs up to and including 25 February 2013; after that disclosure Mr Berberian was correct to withdraw the demands and should pay costs referable to the set-aside applications from that date, while the plaintiffs should pay the costs of the costs hearing because Mr Berberian...

Jurisdiction
Australia
Judgment Date
19 April 2013
Procedural Posture
Corporations Applications Under Ss 459 G, 459 H and 459 J of the Corporations Act 2001 (cth) to Set Aside Statutory Demands; Costs Under S 459 N / Costs Determination After the Statutory Demands Were Unconditionally Withdrawn
Outcome
Costs ordered partly in favour of each side: no costs up to and including 25 February 2013; defendant to pay costs of the applications to set aside the demands from 25 February 2013 excluding this costs application; plaintiffs to pay costs of the costs hearing.
Legal Topics
['statutory Demands' 'genuine Dispute' 'abuse of Process' 'joint and Several Liability' 'costs After Withdrawal of Demands' 'early Disclosure of Dispute']
['corporations' 'civil Procedure' 'costs'] ['statutory Demands' 'genuine Dispute' 'abuse of Process' 'joint and Several Liability' 'costs After Withdrawal of Demands' 'early Disclosure of Dispute']

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Procedural Posture

Corporations Applications Under Ss 459 G, 459 H and 459 J of the Corporations Act 2001 (cth) to Set Aside Statutory Demands; Costs Under S 459 N / Costs Determination After the Statutory Demands Were Unconditionally Withdrawn

Legal Issues

  1. 1 ['Whether issuing three separate statutory demands to three separate companies for the same debt was an abuse of process.' 'Whether there was a proper basis for treating each plaintiff company as jointly and severally liable for the claimed debt.' 'Whether the statutory demands could have been set aside on the basis that the debts were genuinely disputed.' 'Whether the plaintiffs acted unreasonably by not disclosing the basis of their dispute sufficiently early for costs purposes.']

Ratio Decidendi

The issue of separate demands was not an abuse of process because Mr Berberian had a proper basis to contend the plaintiff companies were jointly and severally liable. However, the plaintiffs' February affidavits raised a genuine dispute about the employing entity. Because the plaintiffs could and should have promptly disclosed the alleged conversation said to establish ETN as employer, there should be no order as to costs up to and including 25 February 2013; after that disclosure Mr Berberian was correct to withdraw the demands and should pay costs referable to the set-aside applications from that date, while the plaintiffs should pay the costs of the costs hearing because Mr Berberian...

Court Disposition

Costs ordered partly in favour of each side: no costs up to and including 25 February 2013; defendant to pay costs of the applications to set aside the demands from 25 February 2013 excluding this costs application; plaintiffs to pay costs of the costs hearing.

Orders

  • ['No order as to costs up to and including 25 February 2013, the date of service of the affidavits of Messrs Nader and Sfeir dated 23 and 22 February 2013 respectively.' 'Mr Berberian should pay the costs referable to the application to set aside the Demands, excluding the costs referable to this application, from...