Memorandum of Advice
To: Botchit
From: Robert
Re: Suit filed against Wecanfixit by Slipped and claims to be made against King Plaza Hospital by Wecanfixit.
Date: 18th October, 2019.
a)
The issue is that what may be the instant steps, which may be followed by Wecanfixit, for the protection of the reputation and position of Wecanfixit in relation to the claim made by Slipped.
It has been stated in the provisions of the law that individuals and organizations should follow genuine steps for the resolution of disputes before the institution of the proceedings of civil nature. The requirement for the genuine steps are provided in rules as mentioned under the Common Law.
Hence, applying the above rule, it may be stated that Wecanfixit may follow the steps mentioned above and it must be mentioned by Botchit that the genuine steps statement have been complied in accordance to the rules as provided under the Common Law in relation to such genuine steps.
b)
The issue in this regard is that what may be the procedural issues in relation to the claim regarding King Plaza Hospital, specifically regarding service requirements.
The Common Law provides information and rules in this regard. It provides the following process:-
- Service regarding an order or a document or a process as per the Common Law in relation to the organization may be send to the registered office of the organization by post.
- A copy of the order or the document or the process may be delivered to any particular director or the directors of an organization who may be located in in the nation of Australia.
- When a liquidator may be appointed, then an order or a document or a process that is delivered to the organization, and the copy of the same shall be send to the office of the liquidator.
- When an appointment of an administrator of the organization is given effect to, then a copy of the order or the document or the process may be send to the official address of the administrator.
- In case when the registered organization is a registered foreign organization, then in such case a copy may be send to the official address of the local agent in relation to the foreign organization.
- The directors of the registered organization may also be served with a copy of the aforementioned manifestations.
A relevant case law in this regard is the case of Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876.
The aforementioned procedure may be applied in the given scenario. Wecanfixit may follow the abovementioned procedure in relation to the claim regarding the King Plaza Hospital.
c)
The issue is that what may be the requirements of the court in relation to Scamm and Botchit being the directors of the organization named Wecanfixit in relation to the claim regarding King Plaza.
As per the common law a director of an organization is required to fulfil certain duties. These duties include duty of good faith, duty of diligence, caution and care, duty in relation to retaining of discretion, duty not to reveal information that may be confidential and duty not to misuse business opportunities. If such duties are violated then it may result in action of civil nature regarding damages. Such duties have also been prescribed by the Corporations Act.
A relevant case law in this regard is Australian Securities and Investment Commission (ASIC) v Cassimatis (No. 8) [2016] FCA 1023.
Scamm and Botchit may perform the aforementioned duties as per the requirement of the court.
d)
The issue in this regard is that what may be the steps which may be taken by King Plaza, if the claim has to be heard in the nation of Malaysia, Kuala Lumpur to be specific.
As per the Common Law and the law of the judges, an application may be made by the defendant to set aside the origination process. In any particular proceeding, the court may provide the orders stated below:-
- An order which may set aside the concerned origination process
- An order that may set aside the service regarding the origination process in relation to the defendant.
- An order making a declaration that the concerned origination process is not properly delivered to the defendant.
- An order which may confirm the service in relation to the origination process in the specified place outside the area of New South Wales.
- An order which may protect or release from seizure in relation to any property of the defendant.
The defendant may make an application for such order within the specified time in relation to entering appearance regarding the proceedings. The notice of motion shall be filed without making an entry to an appearance. The notice must contain the address of the applicant.
In the case of Scrivener v Raffles Medical Group Limited [2015] NSWSC 874, a suit was applied in the Supreme Court of NSW regarding violation of contract and the health neglect as counter to the defendant, for the facilities provided in Singapore. The claim declaration (and related manifestations) were delivered through an airmail letter on the 28th day of the month of July in the year of 2014 to the General Manager regarding defendant in Singapore. The defendant made an application as per UCPR 12.11 to set aside the claim on the grounds of inappropriate service, unfitting forum and an unconnected issue in relation to the accountability.
The King Plaza Hospital shall need to follow the aforementioned process in regard to the claim to be heard in Malaysia, specifically in Kuala Lumpur.
e)
The issue in this regard is that what advice may be given in relation to the initial dispute over the jurisdiction.
A rule in this regard is provided in the case of Scrivener v Raffles Medical Group Limited [2015] NSWSC 874. In this case, a suit was applied in the Supreme Court of NSW regarding violation of contract and the health neglect as counter to the defendant, for the facilities provided in Singapore. The claim declaration (and related manifestations) were delivered through an airmail letter on the 28th day of the month of July in the year of 2014 to the General Manager regarding defendant in Singapore. The defendant made an application as per UCPR 12.11 to set aside the claim on the grounds of inappropriate service, unfitting forum and an unconnected issue in relation to the accountability. The plaintiff in this case, who is a dweller of NSW and had health specialists in Australia, proclaimed that the court may govern the claim in relation to tort and make an application of the laws of the nation of Singapore.
Applying the rule as provided in the aforementioned case, it may be stated that the laws of Malaysia may be applied in the court of NSW. However, the place of the primary incident and the related incidents is the nation of Australia. Hence, it may be said that the nation of Australia and the state of NSW may be the appropriate jurisdiction for the given scenario.
Question 2
Memorandum of Advice
To: Botchit and Scamm
From: Robert
Re: Security of costs.
Date: 18th October, 2020.
The primary issue in this regard is what does security of costs actually mean and what may be the consequences if such costs are not paid and what shall be the consequence if King Plaza decides to file an application.
According to section 98 of the Civil Procedure Act of the year 2005, it may be stated that subject to the rules of the court as per the aforementioned Act or any relevant Act, costs may be levied as per the discretionary power of the court. The court enjoys the absolute power in relation to the determination as to who shall pay the costs and to whom the costs may be paid. The court also decides the extent of the costs that is to be paid. The court shall order to pay costs either on the indemnity basis or on an ordinary basis. The ordinary basis costs may be referred to the costs that may be paid by the unsuccessful party to the successful party. In case of an ordinary basis it may be in favor of the party that is paying. If an assessment of costs are made on indemnity basis, then in such situation the court shall provide the benefit of any kind of doubt in relation to whether such costs have been rationally incurred or whether such costs were sensible and rational in the amount in the favor of the party that is receiving.
In the case of Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536, it has been stated that the circumstances or the situations where the costs may be made on an indemnity basis, such situation may justify such order in relation to indemnity costs. It may include allegations regarding fraud which have been untrue, prolonging and delaying of the proceedings with proper proof regarding misconduct, proceedings that have been prompted with a concealed motive, wilful disregard regarding facts that are known to be true and laws that are properly established.
Applying the rule as provided in section 98 of the Civil Procedure Act of the year 2005, it may be said that the court shall have the absolute power in relation to the payment of the costs. The court shall have the discretion to decide whether costs shall be paid by Wecanfixit or King Plaza. In the given scenario, the court shall decide that whether such costs would be on an ordinary basis or on indemnity basis.
Applying the rule as stated in the case of Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536, it may be stated that in the given scenario, the factors provided in the aforementioned case must be proved by the party making an application for security of costs.
Hence, it may be concluded that the court shall have the discretion to make decisions in relation to security of costs.
Question 3
The primary issues in this regard is what may be the consequences for not being able to pay costs even after a statutory demand and what may be the private accountability for such conduct.
According to section 459E as provide in the Corporations Act (Cth) of the year 2001, a statutory demand is considered to be a demand that is sent to an organization in relation to any debt of the organization which may be due and also payable. Such demand creates a mandate on the organization to pay the required amount in relation to the debt within a time period of twenty one number of days from the day on which the demand is received by the organization. If the organization that needs to pay the debt does not make the payment or make an application for setting aside such demand within a period of the aforementioned twenty one days, then it shall be presumed that the organization has failed to meet the demand in relation to the debt. Such failure to make the payment shall mean that the organization is insolvent. The organization may make an application to set aside the concerned demand on certain grounds. These grounds include a genuine dispute in relation to the debt, an offsetting debt of the debtor organization and when such demand may be considered to be defective. If such application is a success, then the court may ask the creditor to make the payment of the costs for the harassment of the debtor organization. However, a statutory demand provides no guarantee or assurance, regarding the payment of the debt, to the creditor.
Applying the aforementioned rule in the given scenario, it may be said that if there is no dispute in relation to the debt which must be paid by Wecanfixit and the statutory demand is a valid one, then the inability of Wecanfixit to pay the required amount shall make the organization insolvent. The directors of Wecanfixit shall not be held privately accountable for the debt that the organization has failed to pay.
In conclusion, it might be said that the directors of Wecanfixit shall not be held privately accountable.
References
Australian Securities and Investment Commission (ASIC) v Cassimatis (No. 8) [2016] FCA 1023.
Civil Procedure Act, 2005.
Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536.
Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876.
Corporations Act, 2001 (Cth)
Scrivener v Raffles Medical Group Limited [2015] NSWSC 874.
