Aristocrat Technologies Australia Pty Limited (ACN 001 660 715) v Australian Securities & Investment Commission

[2006] FCA 1834

FEDERAL COURT OF AUSTRALIA

Aristocrat Technologies Australia Pty Limited (ACN 001 660 715) v Australian Securities & Investment Commission [2006] FCA 1834

ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED (ACN 001 660 715) v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

NSD2324 OF 2006

EMMETT J

5 DECEMBER 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2324 OF 2006

BETWEEN:	ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED (ACN 001 660 715) Plaintiff
AND:	AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION Defendant

JUDGE:	EMMETT J
DATE OF ORDER:	5 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The registration of DAP Services (Kempsey) Pty Limited ACN 055 803 542 (the “Company”) be reinstated pursuant to section 601AH(2) of the Corporations Act 2001 (Cth).

2.The Plaintiffs pay the fees, costs and expenses properly incurred by Peter Ngan and Gregory Parker in respect of the reinstatement of the Company, including the costs of this application and the costs of any further action required pursuant to sections 508 or 509 of the Corporations Act 2001(Cth).

3.The first and second plaintiffs pay to Ngan & Co all such amounts referred to in order 2 above within 14 days of service on the plaintiffs of a tax invoice itemising such amounts.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2324 OF 2006

BETWEEN:	ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED (ACN 001 660 715) Plaintiff
AND:	AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION Defendant

JUDGE:	EMMETT J
DATE:	5 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. DAP Services Kempsey Pty Ltd (‘the Company’), has been deregistered pursuant to s 509(5) of the Corporations Act 2001 (Cth) (‘the Act’). The plaintiffs have applied for orders under s 601AH(2) of the Act that the registration of the Company be reinstated.

2. The plaintiff commenced a proceeding in this Court against the Company and its directors, David Alan Parry and Rhonda Denise Parry.  That proceeding was commenced on 30 March 2005.  In that proceeding, the plaintiffs alleged that the Company infringed copyright of the plaintiffs in certain material used in the operation of poker machines.  The claim against the directors of the Company was that they were involved in, authorised and procured the infringement. 

3. On 15 June 2005, the Company was placed into voluntary liquidation by its shareholders.  The shareholders of the Company at that time were the directors, Mr and Mrs Parry, and James Robert Parry.  All three Parrys are shown in Company records as residing at 9 Balmoral Crescent, Georges Hall.  At the time of voluntary liquidation, there were three fully paid E Class shares owned by each of Rhonda, David and James Parry.  There were 102 fully paid ordinary shares, 101 of which were owned by David Parry and one of which was owned by Rhonda Parry.

4. The records refer to a partly paid ordinary share in the name of Rhonda Parry although, according to the records, there were no such shares issued at the time of commencement of the voluntary liquidation. 

5. The liquidators of the Company gave notice to creditors of a meeting of creditors, although the plaintiffs received no such notice.  However, on 17 June 2005, the plaintiffs became aware that the Company was in liquidation and, on 2 August 2005, leave was granted to proceed against the Company on terms.  On 22 March 2006, Wilcox J entered judgment against the Company and its directors in the proceeding.  Having found infringement of copyright, his Honour ordered damages. However, the plaintiffs were not satisfied with his Honour’s order and, on 12 April 2006, the plaintiffs filed a notice of appeal.  On 2 May 2006, the directors also filed a notice of cross-appeal.  On 5 May 2006, his Honour made costs orders.  The plaintiffs were not happy with those orders and, on 19 May 2006, filed an amended notice of appeal against the costs orders. 

6. In the meantime, on 9 May 2006, the liquidators of the Company dispatched a circular to creditors notifying them of the final meeting of members and creditors to be held on 16 June 2006. While notice was sent to the plaintiffs, it did not come to the attention of the appropriate officers and the meeting was convened, although no quorum was present. In any event, on 19 June 2006, the liquidators filed with the defendant, Australian Securities and Investments Commission (‘the Commission’), a return under s 509 notifying that the meeting had been convened. By the operation of s 509(5), the Commission was required to deregister the Company at the end of a three-month period after that return was lodged.

7. Thus, the effect was that, on 19 September 2006, the Company was deregistered by the Commission.  On 9 November 2006, the appeals from the orders of Wilcox J came on for hearing.  At about that time, the plaintiffs became aware that the Company had been deregistered.  The plaintiffs then sought an explanation from the liquidators and found that, while notice had been sent to the plaintiffs, it had not, as I have said, reached the appropriate officers.  The plaintiffs seek reinstatement of the registration of the Company in order to continue the prosecution of the appeal.  The appeal has been heard and judgment reserved by the Full Court.

8. The Company had filed a submitting appearance in the appeal, although there was opposition to the appeal from the directors.  On 23 November 2006, the liquidators wrote to the plaintiff’s solicitors indicating that they had no objection to the reinstatement of the Company for the purposes of the continuation of the proceeding.  It would be unfortunate if the orders made by Wilcox J were varied on appeal, in circumstances such that the variation was not in some way binding on the entity which was primarily responsible for the infringement found by his Honour.

9. The solicitors for David and Rhonda Parry in the appeal were notified on 27 November 2006 of the plaintiffs’ intention to make this application, and of the fact that it was listed for hearing at 10.15am today.  When the matter was called on there was no appearance for the directors.  They have not been joined as defendants, but the originating process and the affidavit relied upon by the plaintiff was served with the letter of 27 November 2006.  While the directors and James Parry appear to have at least some theoretical interest as contributories, there does not appear to be any real interest, since any shares that they held were fully paid.

10. In all of the circumstances, I am satisfied that it is just that the Company’s registration be reinstated.  Accordingly, I propose to make an order that the Commission, which is joined as a defendant, reinstate the registration of the Company.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:
Dated:        10 January 2007

Counsel for the Plaintiffs:	Mr NR Murray
Solicitor for the Plaintiffs:	Baker & McKenzie
Date of Hearing:	5 December 2006
Date of Judgment:	5 December 2006