Access Television Services P/L v McLatchie
[2006] QMC 5
•31 August 2006
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Access Television Services P/L v McLatchie [2006] QMC 5
PARTIES:
ACCESS TELEVISION SERVICES PTY LTD
(plaintiff)
v
CHAD MCLATCHIE
(defendant)
FILE NO/S:
M82/05
DIVISION:
Magistrates Courts
PROCEEDING:
Claim – Application to amend claim
ORIGINATING COURT:
Magistrates Court at Coolangatta
DELIVERED ON:
31 August 2006
DELIVERED AT:
Coolangatta
HEARING DATE:
31 August 2006
MAGISTRATE:
Costanzo JJ
ORDER:
1. The Application to amend the Claim and the Statement of Claim is refused.
2. The Applicant shall pay the Defendant’s costs of the Application.
3. The Request for default judgment is refused.
CATCHWORDS:
CORPORATIONS - where party is a company, identification of company by its ACN — where company has become deregistered — whether company can continue to sue
CIVIL LAW – PRACTICE AND PROCEDURE – application to amend claim – substitution of party – request for default judgement by consent
Uniform Civil Procedure Rules 1999, r 375, r 376 Corporations Act 2001 (Cth), s 601AA to 601AF
COUNSEL:
Goodwin for plaintiff
C Grey for defendant
SOLICITORS:
Agent for Phillips Fox Solicitors for plaintiff
Woodward Lawyers for defendant
The Application
On 9 Feb 2006 the Plaintiff filed an application to this court for leave to amend the claim and statement of claim pursuant to rule 375 of the Uniform Civil Procedure Rules 1999.
The amendments sought to the claim and statement of claim are set out in the Affidavit of Paul Michael Ivan Crossley filed herein with the said Application on 9 February 2006.
The parties were not ready to have the application heard until 31 August 2006 when it was heard in Chambers for much longer than the time estimates provided by each party. Due to the extremely limited sitting time available in Coolangatta I reserved my decision.
Issues
It is not in dispute that—
1. The originating process, a claim, and the statement of claim were filed on 29 March 2005.
2. The Plaintiff was named in the claim and statement of claim as—
“Access Television Services Pty Ltd ACN 089 027 001”
3. The Plaintiff supplied goods and services to the defendant. The Plaintiff claimed against the Defendant $3089.70 for goods supplied in the period 13 July 2004 to 12 August 2004.
In the Defence of the Defendant the Defendant admits the Plaintiff supplied goods to the defendant on consignment but says they have either been paid for in full or returned to the Plaintiff. Further the Defendant says the contract was terminated on or about 25 November 2003 and no goods were supplied to the Defendant in July or August 2004.
The Plaintiff seeks to amend the Plaintiff company’s ACN on the Claim as an administrative error. The Plaintiff says it should be ACN 070 457 180 in order to correctly identify the company which is owed the alleged contract debt.
The Defendant opposes this part of the Application. The Defendant did not oppose the amendment to the Statement of Claim.
There are four issues for my determination.
The Defendant’s opposed the change of ACN on two grounds.
First issue: Does UCPR permit substitution of a Plaintiff?
Firstly, it was submitted no rule in the UCPR permitted the change of name of a Plaintiff. Mr Grey submitted the change would actually substitute a different company because the company identified on the original Claim is a new company with the same name as the one which contracted with the Defendant and that the ACN on the original Claim belongs to that new company. If Mr Grey is correct the issue is whether the UCPR can permit a substitution of the Plaintiff.
Second issue: Can the old company still sue?
Secondly, Mr Grey submitted the company named Access Television Services Pty Ltd ACN 070 457 180 has been deregistered and that it can not now sue and that all its assets have vested in ASIC.
Third issue: Costs
The Defendant submits he is entitled to costs if the Application to amend the Claim is granted.
Fourth issue: Request for Default Judgment By Consent
The Plaintiff also made a verbal application for default judgment on the basis it is by consent under the terms of a Settlement. The Defendant is opposed to that request for default judgment on the ground that the Plaintiff needs to file and serve another Application, that the request refers to the wrong paragraph in the Terms of Settlement, that the Plaintiff has accepted two late payments contrary to the Terms of Settlement, and that the Plaintiff has no proof of service upon the Defendant of the Request for Default Judgment By Consent.
Does UCPR permit substitution of a Plaintiff?
Rule 375 UCPR states:
375 Power to amend
(1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
(2) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(3) If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.
(4) This rule is subject to rule 376.
Rule 376 UCPR states:
376 Amendment after limitation period
(1) This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
(2) The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if—
(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected—
(i) was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counter-claiming defendant, only if—
(a) the court considers it appropriate; and
(b) the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.
(4) The court may give leave to make an amendment to include a new cause of action only if—
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
While no question of expiry of any period of limitation arose here, the UCPR clearly contemplates that even if the effect of the amendment is to substitute a new party the amendment may be allowed and must be allowed if the amendment is to correct a misnomer.
For the purpose of dealing with the first objection I do not need to finally decide whether the effect of the amendment sought is to correct a mere misnomer or to substitute a new party as either is permissible. It is within my discretion.
Can the old company still sue?
To determine this issue the question whether the change of ACN also changes the actual party or legal entity taking the seat as Plaintiff achieves significant importance if Mr Grey’s submission is also correct that in this case the relevant company has been deregistered, ceased to exist as a legal entity and can no longer sue the Defendant.
Mr Grey tendered two ASIC searches of the National Names Index.
The first ASIC search document shows that ACN 089 027 001 (the one used to identify the Plaintiff in the original Claim) is identified with a currently registered company named ATS 2005 Pty Ltd. Its former name was Access Television Services Pty Ltd. The name changed on 25 October 2005. That company had no contract with the Defendant. Indeed the search document shows that as at the time of the alleged contractual debt arising in July/August 2004 this company’s name was probably Universal Communications Group Pty Ltd. If the listing of documents is complete on that search document that name changed to Access Television Services Pty Ltd on 29 December 2004 (after the alleged debt arose). It seems to have then changed to the current name ATS 2005 Pty Ltd on 25 October 2005.
The second ASIC search document shows that ACN 070 457 180 (the one sought to be used to identify the Plaintiff in the Application to amend the Claim) is identified with a deregistered company named ATS 2004 Pty Ltd. It was deregistered on 6 August 2006 after lodgement of an Application For Voluntary Deregistration of a Company on 26 May 2006. If the listing of documents is complete on that search document it seems this company’s former name was Access Television Services Pty Ltd until 29 December 2004. That was therefore the company name as at the time the alleged debt arose in July/August 2004.
What this also shows is that on 29 December 2004 the company name Access Television Services Pty Ltd went from the legal entity identified with ACN 070 457 180 (the contracting company which is now deregistered) to the legal entity identified with ACN 089 027 001 (the non-contracting company which is still currently registered).
The effect of deregistration is that under s 601AD(1) of the Corporations Act 2001 (Cwth) a company ceases to exist. Officers of the company may still be liable for things done before the company was deregistered. However, under s 601AD(2) on deregistration, all the company's property vests in ASIC. If company property is vested in a liquidator immediately before deregistration, that property vests in ASIC. The subsection extends to property situated outside this jurisdiction. Under subsection (3) ASIC takes only the same property rights that the company itself held. If the company held particular property subject to a security or other interest or claim, ASIC takes the property subject to that interest or claim. Under section 261 property of a company “means property that is held by the company (whether or not as trustee) wherever the property is situated (whether in Australia or elsewhere).” According to the ASIC web site the property of the company can include the estate and interest in the property at law or in equity, together with all claims, rights and remedies, that the company or its liquidator had in respect of the property.
Under s 601AD(4) ASIC has all the powers of an owner over property vested in it under subsection (2).
Under s 601AE(2) if the company did not hold the property on trust, ASIC may dispose of or deal with the property as it sees fit, and apply any money it receives to defray expenses incurred by ASIC in exercising its powers in relation to the company and to make authorised payments.
Under s 601AF ASIC may do an act on behalf of the company or its liquidator if ASIC is satisfied that the company or liquidator would be bound to do the act if the company still existed.
It is clear that the company named Access Television Services Pty Ltd with ACN 070 457 180 has been deregistered and that it can not now sue and that all its assets have vested in ASIC.
It would now be up to ASIC to bring any action to recover the alleged debt.
The application to amend the Claim must therefore fail.
Costs
The Defendant has successfully challenged the Application. In doing so he has identified that the present Applicant is the present Plaintiff which is a currently registered company. The Applicant ought to have known its own registration history and that of the company by the ‘same’ name which is now deregistered. It was submitted this was the solicitor’s mistake. I was not told if that was an instruction or an assumption. Mr Goodwin appeared as town agent for the relevant firm of solicitors. I simply have nothing of any weight before me to explain why the claim did not identify the correct company or why the company was not correctly identified. I note that if the correct identification was used while the company was still registered ASIC would have been unable to accept its Application For Voluntary Deregistration of a Company lodged on 26 May 2006 (see Corporations Act s 601AA(2)(f)— a person may not apply for voluntary deregistration of a company if the company is a party to any legal proceedings).
The Applicant should pay the Defendant’s costs of the Application.
Request for Default Judgment By Consent
For the same reasons I have given above and because it is has now been identified that the current Plaintiff had no contract with the Defendant the Request for default judgment should be refused. In the circumstances I do not need to decide whether a further application ought to have been filed and served.
ORDERS
1. The Application to amend the Claim and the Statement of Claim is refused.
2. The Applicant shall pay the Defendant’s costs of the Application.
3. The Request for default judgment is refused.
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