Austshade Pty Ltd v Boss Shade Pty Ltd

[2014] FCA 309

FEDERAL COURT OF AUSTRALIA

Austshade Pty Ltd v Boss Shade Pty Ltd [2014] FCA 309

Citation:	Austshade Pty Ltd v Boss Shade Pty Ltd [2014] FCA 309
Parties:	AUSTSHADE PTY LTD ACN 066 409 247 AND EKKEHARD SIEGFRIED HARTMUT KOEHN v
BOSS SHADE PTY LTD ACN 115 280 272, BAUER INVESTMENTS PTY LTD ACN 010 865 068, HOLGER BAUER, BERNHEL PTY LTD ACN 065 563 920 AND STEFAN BAUER
File number:	QUD 189 of 2012
Judge:	DOWSETT J
Date of judgment:	13 February 2014
Legislation:	Corporations Act 2001 (Cth) s 601AH
Date of hearing:	13 February 2014
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	3
Solicitor for the Applicants:	Bennett & Philp Solicitors
Counsel for the Respondents:	Mr Anthony Franklin SC
Solicitor for the Respondents:	Lillas & Loel Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 189 of 2012

BETWEEN:

AUSTSHADE PTY LTD ACN 066 409 247
First Applicant

EKKEHARD SIEGFRIED HARTMUT KOEHN
Second Applicant

AND:

BOSS SHADE PTY LTD ACN 115 280 272
First Respondent

BAUER INVESTMENTS PTY LTD ACN 010 865 068
Second Respondent

HOLGER BAUER
Third Respondent

BERNHEL PTY LTD ACN 065 563 920
Fourth Respondent

STEFAN BAUER
Fifth Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	13 FEBRUARY 2014
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Pursuant to Section 601AH(2) of the Corporations Act 2001 (as amended) (the “Act”), the court orders that the Australian Securities and Investments Commission (“ASIC”) reinstate the registration of both Boss Shade Pty Ltd ACN 115 280 272 and Bauer Investments Pty Ltd ACN 010 865 068.

2.Pursuant to Section 601AH(3) of the Act the court validates all steps taken in these proceedings by or on behalf of both Boss Shade Pty Ltd and Bauer Investments Pty Ltd during the period beginning when each company was deregistered and ending when each company’s registration was reinstated but without prejudice to any of the applicants’ claims against the respondents made in any pleadings of the applicants in this action.

3.Pursuant to Section 43(3) of the Federal Court of Australia Act, and Rule 40.2 of the Rules of this Court, upon their reinstatement, Boss Shade Pty Ltd and Bauer Investments Pty Ltd, together with the third respondent, Holger Bauer, are to pay the applicants’ costs of and incidental to the Orders sought in paragraphs 1 – 4 in the application filed 6 January 2014 to be taxed.

4.Pursuant to Section 43(2) of the Federal Court Act, the applicants may forthwith tax (without deferring the taxation until after the trial of this action) those costs that are awarded pursuant to the Orders in paragraph 3 above.

5.Paragraphs 12, 13, 14, 15, 17 and 18 of the Orders of 19 February 2013 are vacated.

6.The applicants have leave to file and serve an amended originating application and amended statement of claim, such amended application and amended statement of claim to be filed and served within seven days (7) of the making of the Orders on this application.

7.The respondents are to file and serve a defence to the amended statement of claim within fourteen (14) days of the service of the amended statement of claim.

8.The applicants are to file and serve a reply to the defence to the amended statement of claim within seven (7) days of the date of service of the defence.

9.Within 14 days of the date of service of the reply under paragraph 8, the parties are to confer and attempt to reach agreement on any facts in their respective proposed agreed list of facts which are not presently agreed.

10.Within 7 days of that conference, each party is to file and serve a notice setting out the facts in its notice of proposed agreed facts that are agreed to by the other party, those that are not agreed to, and a brief statement of the reasons given for non-agreement.

11.The matter is listed for further review and directions at 10:15 on 5 May 2014.

12.Each party’s costs of and incidental to that part of the hearing relating to the orders in paragraphs 6 to 11 above are reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 189 of 2012

BETWEEN:

AUSTSHADE PTY LTD ACN 066 409 247
First Applicant

EKKEHARD SIEGFRIED HARTMUT KOEHN
Second Applicant

AND:

BOSS SHADE PTY LTD ACN 115 280 272
First Respondent

BAUER INVESTMENTS PTY LTD ACN 010 865 068
Second Respondent

HOLGER BAUER
Third Respondent

BERNHEL PTY LTD ACN 065 563 920
Fourth Respondent

STEFAN BAUER
Fifth Respondent

JUDGE:	DOWSETT J
DATE:	13 FEBRUARY 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for reinstatement of two companies.  The companies were involved in litigation in this Court and had been so involved for some time prior to the beginning of 2013.  One company (“Bauer Investments”) was deregistered by ASIC in March 2013 for non‑payment of ASIC’s fees.  The present applicant, who was the applicant in those proceedings, heard of the company’s deregistration only in October last year.  The other company (“Boss Shade”) was deregistered on the application of one of its officers in September 2013.  The present applicant also heard of that fact in October last year.

2. The applicant applied for reinstatement of both companies. However, prior to the filing of that application, solicitors for Bauer Investments made application for its reinstatement. No such application has been made by Boss Shade or any officer of that company. Given that the litigation had been continuing in the absence of any knowledge of these deregistrations, it was appropriate that the applicant seek orders pursuant to section 601AH for their reinstatement. The Court should so order and also validate anything done in the litigation during the periods of deregistration.

3. I consider that the present application was inevitable in the case of both companies.  The applicant should have its costs of the applications today.  They should be taxed forthwith.  I order accordingly.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett .

Associate:

Dated:       31 March 2014