Chamoun v Chamoun, in the matter of Chamoun Investments Pty Limited
[2022] FCA 210
•10 March 2022
FEDERAL COURT OF AUSTRALIA
Chamoun v Chamoun, in the matter of Chamoun Investments Pty Limited [2022] FCA 210
File number(s): NSD 747 of 2020 Judgment of: FARRELL J Date of judgment: 10 March 2022 Date of publication of reasons: 11 March 2022 Catchwords: CORPORATIONS – application for declarations and orders for rectification of ASIC register – where forms lodged with ASIC changing the identity of company directors and shareholders and company’s registered address – where forms lodged with ASIC were not authorised by the directors of the company – application allowed Legislation: Corporations Act 2001 (Cth) s 1322 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 12 Date of hearing: 10 March 2022 Counsel for the Plaintiffs: Mr C Freeman Solicitor for the Plaintiffs: Photios Vouroudis & Co Counsel for the First Defendant / First Cross-Respondent: The First Defendant / First Cross-Respondent did not appear Counsel for the Second Defendant / Second Cross-Respondent: Ms E Bartley Solicitor for the Second Defendant / Second Cross-Respondent: Jordan Djundja Lawyers Counsel for the Third Defendant: The Third Defendant did not appear Counsel for the Fourth Defendant: The Fourth Defendant did not appear Counsel for the Fifth Defendant: The Fifth Defendant did not appear Counsel for the Sixth Defendant / Third Cross-Respondent: The Sixth Defendant / Third Cross-Respondent did not appear Solicitor for the Seventh Defendant / Cross-Claimant: Ms K Clements of Colin Biggers & Paisley ORDERS
NSD 747 of 2020 IN THE MATTER OF CHAMOUN INVESTMENTS PTY LIMITED ACN 070 967 930 BETWEEN: MALEK CHAMOUN and others named in the schedule
Plaintiff
AND: CAROLINE CHAMOUN and others named in the schedule
Defendant
ORDER MADE BY:
FARRELL J
DATE OF ORDER:
11 MARCH 2022
THE COURT DECLARES THAT:
1.The first plaintiff and second plaintiff are the directors of the third plaintiff.
2.The first plaintiff is the secretary of the third plaintiff.
3.The first plaintiff and second plaintiff each hold one of two issued ordinary shares in the capital of the third plaintiff.
THE COURT ORDERS THAT:
4.Pursuant to section 1322(4)(b) of the Corporations Act 2001 (Cth), the Form 484 lodged with ASIC on 1 May 2020 with document number 7EAW11755 be withdrawn from the registers kept under the Corporations Act 2001 (Cth) and not appear on public view.
5.Pursuant to section 1322(4)(b) of the Corporations Act 2001 (Cth), the Form 484 lodged with ASIC on 6 May 2020 with document number 7EAW23537 be withdrawn from the registers kept under the Corporations Act 2001 (Cth) and not appear on public view.
6.Leave be granted to the plaintiffs to otherwise discontinue proceedings against the first, second, third and sixth defendants.
7.The proceedings be dismissed as against the seventh defendant.
8.The Cross-Claim filed on 20 October 2020 be dismissed.
9.All costs orders be vacated.
10.There be no order as to costs of the proceedings.
11.The matter be listed for case management hearing on Thursday, 24 March 2022 at 9.30 am to address any issues arising concerning the fifth defendant.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
These are reasons for orders made on 10 March 2022.
On 9 July 2020, in file number NSD747/2020, Malek Chamoun, his brother George Chamoun and Chamoun Investments Pty Ltd (Chamoun Investments or the Company) filed an originating application seeking (among other things):
(a)Declarations that:
(i)Malek and George Chamoun are the directors of Chamoun Investments;
(ii)George Chamoun is the secretary of the Company; and
(iii)Malek and George Chamoun each hold one of the two issued ordinary shares in the capital of the Company; and
(b)Orders under s 1322(4)(b) of the Corporations Act 2001 (Cth) that:
(i)the Form 484 lodged with the Australian Securities and Investments Commission (ASIC) on 1 May 2020 with document number 7EAW11755 be withdrawn from the register kept under the Corporations Act and not appear on public view;
(ii)the Form 484 lodged with ASIC on 6 May 2020 with document number 7EAW23537 be withdrawn from the registers kept under the Corporations Act and not appear on public view; and
(iii)ASIC record that:
(A)Malek and George Chamoun are the directors of Chamoun Investments;
(B)George Chamoun is the secretary of Chamoun Investments; and
(C)Malek and George Chamoun each hold one of the two issued ordinary shares in the capital of Chamoun Investments.
The defendants in proceedings NSD747/2020 are Caroline Chamoun, Jack Chamoun (husband of Caroline Chamoun and brother of Malek and George Chamoun), Croydon Automotive Repairs Pty Ltd (Croydon), ASIC, Beatrice St Auburn Pty Ltd, Kadirhan Ilgun and Horwood Management Pty Ltd (Horwood). ASIC lodged a submitting notice (save as to costs orders) dated 24 August 2020.
On 20 October 2020, in proceedings NSD747/2020, Horwood filed a notice of cross-claim and a statement of cross-claim against Caroline Chamoun, Jack Chamoun and Mr Ilgun.
On 15 December 2020, the Supreme Court of New South Wales made orders under s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) transferring proceedings 2020/00277984 to this Court. CL Asset Holdings Pty Ltd brought those proceedings against Chamoun Investments, Caroline Chamoun, Jack Chamoun and Croydon. Those proceedings were assigned file number NSD1343/2020.
On 28 June 2021, Jack Chamoun, Caroline Chamoun and Croydon filed an originating process commencing proceedings against Chamoun Investments, CL Asset Holdings Pty Ltd, Malek Chamoun, George Chamoun and Starco Jewellers Pty Ltd. Those proceedings were assigned file number NSD620/2021.
The parties to each of the proceedings (other than Beatrice St Auburn) have reached settlement and have provided draft orders for discontinuance or dismissal of the proceedings, with no orders as to costs. Subject to what follows below, I was satisfied that the orders proposed in each of the proceedings should be made since they are consented to by each of the parties affected by them.
In relation to Beatrice St Auburn, I note that, until shortly before the case management hearing set down for 9.30 am on 10 March 2022 to consider making those orders, the plaintiffs operated on the belief that Beatrice St Auburn was in liquidation and the proceedings against it were stayed. However, in response to a request from the Court for evidence that Beatrice St Auburn was in liquidation, the plaintiffs in NSD747/2020 filed an affidavit sworn on 9 March 2022 by Photios Vouroudis, the plaintiffs’ solicitor. Annexed to it were:
(a)A copy of a Report on Company Activities and Property filed by Michael John Morris Smith and dated 25 May 2021 indicating that he was appointed as receiver and manager of property of Beatrice St Auburn on 25 March 2021;
(b)A copy of an email sent by Mr Vouroudis to Mr Smith on 7 March 2022 in which he:
(i)advised that he understood that Mr Smith was Beatrice St Auburn’s liquidator,
(ii)attached by way of service the amending originating process in NSD747/2020. Mr Vouroudis did not advise that the other parties to the proceedings had reached settlement;
(iii)advised that there was a case management hearing listed for 9.30 am on 10 March 2022; and
(iv)offered to send Mr Smith the Microsoft Teams link to the hearing if Mr Smith wished to appear. Mr Smith did not appear at the hearing. Instead, counsel for the plaintiffs sought time to communicate with Mr Smith concerning Beatrice St Auburn’s position.
Mr Vouroudis’ affidavit also attached a copy of an ASIC search in relation to Chamoun Investments that indicated that as at 9 March 2022, Malek and George Chamoun were the directors of that Company, Malek Chamoun was its secretary and the registered office was at Malek Chamoun’s residential address. Counsel for the plaintiffs accepted that they therefore no longer required relief requiring ASIC to rectify the register in that regard. However, relief was required concerning removal of dealings 7EAW11755 (filed on 1 May 2020) and 7EAW23537 (filed on 6 May 2020) concerning the identity of the Company’s directors, secretary and registered address.
Mr Ilgun is self-represented. Mr Vouroudis’ affidavit contained evidence of an email sent by Mr Ilgun to Mr Vouroudis on 7 March 2022 indicating that he consents to the proposed orders in relation to proceedings NSD747/2020 in so far as it relates to him as the sixth defendant.
Although I am satisfied that the orders now sought in each of the proceedings should be made, the plaintiffs in proceedings NSD747/2020 seek declarations. The consent of the parties is an insufficient basis for making declarations. Counsel for the plaintiffs read the affidavit of George Chamoun sworn on 7 July 2020 and paragraphs [1]-[4], [10], [11], [13] and [16]-[21] of the affidavit of Malek Chamoun sworn on 7 July 2020 and the annexures referred to in those paragraphs. I have reviewed those materials and I accept Malek and George’s unchallenged evidence that:
(a)Chamoun Investments was registered on 4 September 1995;
(b)At the times the forms referred to in (c) and (e) below were filed, Malek and George Chamoun were the only appointed directors, one of them was the secretary and each held one of two issued shares. The registered office and principal place of business of Chamoun Investments was at an identified address in Summer Hill. The Summer Hill address was also Malek’s residential address;
(c)A Form 484 was lodged with ASIC on 1 May 2020 with document number 7EAW11755. It records that:
(i)Malek and George ceased being directors and shareholders of Chamoun Investments on 29 April 2020;
(ii)George ceased being the secretary of Chamoun Investments on 29 April 2020;
(iii)Caroline was appointed sole director and secretary of Chamoun Investments on 29 April 2020;
(iv)Caroline became the sole shareholder of Chamoun Investments on 29 April 2020;
(d)The form also records that it was signed by Caroline Chamoun and lodged by Horwood Management. Horwood Management is an accountancy practice with which Malek and George Chamoun have never had any dealings. For the past 17 years, Anthony Waters has been Chamoun Investments’ accountant;
(e)A second Form 484 was lodged with ASIC on 6 May 2020 with document number 7EAW23537. It records that the registered office and principal place of business of Chamoun Investments changed from the Summer Hill address to an address in Cabarita in New South Wales. The form also records that Horwood Management lodged it;
(f)An extract from ASIC’s register dated 3 July 2020 records Caroline as the sole director, secretary and shareholder of Chamoun Investments; and
(g)Malek and George never approved those changes of officers, members and the registered office.
Having regard to this evidence, I was satisfied that the Forms 484 filed with ASIC on 1 and 6 May 2020 changing the identity of the directors and shareholders and the registered address of Chamoun Investments were not authorised for filing by the directors or secretary of Chamoun Investments. I am satisfied that the correct position is reflected in the ASIC extract of 9 March 2022 annexed to Mr Vouroudis’ affidavit. The declarations sought should be made accordingly.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell. Associate:
Dated: 11 March 2022
SCHEDULE OF PARTIES
NSD 747 of 2020 Plaintiffs
Second Plaintiff:
GEORGE CHAMOUN
Third Plaintiff:
CHAMOUN INVESTMENTS PTY LIMITED ACN 070 967 930
Defendants
Second Defendant:
JACK CHAMOUN
Third Defendant:
CROYDON AUTOMOTIVE REPAIRS PTY LIMITED ACN 073 783 972
Fourth Defendant:
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Fifth Defendant:
BEATRICE ST AUBURN PTY LTD ACN 629 968 878
Sixth Defendant:
KADIRHAN ILGUN
Seventh Defendant:
HORWOOD MANAGEMENT PTY LTD ACN 168 488 373
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