Australian Securities and Investments Commission v Hallmark Gold NL

[1999] FCA 373

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Hallmark Gold NL
[1999] FCA 373

CORPORATIONS LAW – application for declarations that persons not validly appointed as directors – persons appointed to fill casual vacancies – no election of directors to fill vacated offices at general meeting – whether persons continued as directors – construction of articles.

Federal Court Rules O 32 r 2(d)

ASIC v Hallmark Gold NL, Forge, Muir and Clark [1999] FCA 360

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v HALLMARK GOLD NL ACN 000 817 023 and DAVID JOHN MUIR
WG 3005 OF 1999

LEE J
1 APRIL 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 3005 OF 1999

BETWEEN:

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Applicant

AND:

HALLMARK GOLD NL
ACN 000 817 023
First Respondent

DAVID JOHN MUIR
Second Respondent

JUDGE:

LEE J

DATE OF ORDER:

1 APRIL 1999

WHERE MADE:

PERTH

THE COURT ORDERS AND DECLARES THAT:

1.        The application be dismissed.

2.        The second respondent pay the costs of the applicant and the first respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 3005 OF 1999

BETWEEN:

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Applicant

AND:

HALLMARK GOLD NL
ACN 000 817 023
First Respondent

DAVID JOHN MUIR
Second Respondent

JUDGE:	LEE J
DATE:	1 APRIL 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant (“ASIC”) seeks a declaration that the second respondent (“Muir”) was not a director of the first respondent (“Hallmark”) on or after 18 December 1998.

2. The relevant facts are set out in the reasons delivered today in ASIC v Hallmark Gold NL, Forge, Muir and Clark [1999] FCA 360, an application for declaratory orders heard together with this application.

3. Muir, through solicitors then acting for him, had notice of the date of trial in this proceeding. He did not appear on the hearing and pursuant to O 32 r 2(d) of the Federal Court Rules the trial proceeded.

4. The declaration made in the above matter, that Muir ceased to be a director of Hallmark from 22 October 1998, makes any further declaration in this proceeding unnecessary.

1. The application will be dismissed with an order that Muir pay the costs of ASIC and Hallmark.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:  1 April 1999

Counsel for the Applicant:	M J Gething
Solicitor for the Applicant:	Australian Securities & Investments Commission
Counsel for the First Respondent:	M J McCusker QC
N P Gentilli
Solicitor for the First Respondent:	Jackson McDonald
No appearance for the Second Respondent.
Date of Hearing:	15 March 1999
Date of Judgment:	1 April 1999