Chong v Cheshire Securities Pty Ltd - [2001] WASC 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHONG -v- CHESHIRE SECURITIES PTY LTD [2001] WASC 266

CORAM: MASTER BREDMEYER

HEARD: 20 SEPTEMBER 2001

DELIVERED : 4 OCTOBER 2001

FILE NO/S: COR 302 of 2001

BETWEEN: KELVIN CHONG CHI HOONG
Plaintiff
AND
CHESHIRE SECURITIES PTY LTD (ACN 009 264 082)
Defendant

Catchwords:

Corporations - Reinstatement of deregistered company

Legislation:

Corporations Law, s 601AH

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr S S Ludher by leave
Defendant: Mr J R N Rowe

Solicitors:

Plaintiff: In person
Defendant: Australian Securities & Investments Commission

Case(s) referred to in judgment(s):

Cheshire Holdings Pty Ltd v Yap Cheng See, unreported; SCt of WA; Library No 950634; 22 November 1995
Fermanis v Cheshire Holdings Pty Ltd, unreported; SCt of WA; Library No 7739; 12 July 1989
Yap & Anor v ASIC [2000] WASC 159
Yap v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998
Yap v Esanda Finance Corporation, unreported; FCt SCt of WA; Library No 980182; 9 April 1998

Case(s) also cited:

Nil

MASTER BREDMEYER: This is an application by Mr Chong that the company, Cheshire Securities Pty Ltd, be reinstated to the company register by the Court and for such other orders as the Court shall think just. The application is supported by a short affidavit of Mr Chong sworn 20 August 2001 and a longer affidavit of Mr Chong sworn 5 September 2001. Cheshire Securities Pty Ltd was formerly known as Cheshire Holdings Pty Ltd and each of these two affidavits in the headings still refer to Cheshire Holdings Pty Ltd. I will refer to the company as "Cheshire".
Mr Chong says he was a director and shareholder of Cheshire previously. I take it that means prior to the deregistration of the company. His two affidavits refer to numerous factual matters which only Mrs Yap could know. Although he does not say that he is swearing these affidavits based on information supplied to him by Mrs Yap, it is quite apparent to me that that is what he is doing. These are in truth affidavits relating events which occurred when Mrs Yap was the driving force of the company. The longer of the two affidavits annexes the judgment of Steytler J in Cheshire Holdings Pty Ltd v Yap Cheng See, unreported; SCt of WA; Library No 950634; 22 November 1995. In that judgment, for reasons there given, Steytler J declined to reinstate the company. Steytler J's decision was upheld by the Full Court in Yap v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998. At the time of deregistration the company was in liquidation. Mrs Yap also asked for a permanent stay of the liquidation and that order was also refused.
I consider that this application has been definitively decided by Steytler J and affirmed on appeal by the Full Court and the matter is now closed. It is issue estoppel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WASC 266
Decision Date: 4 OCTOBER 2001

CaseChat Overview and Summary

In the case of Chong v Cheshire Securities Pty Ltd, the matter was heard in the Supreme Court of Western Australia. The primary dispute involved the reinstatement of a deregistered company, Cheshire Securities Pty Ltd, and the implications of a prior litigation against Esanda Finance Corporation. Mrs. Chong, acting on behalf of the deregistered company, sought to challenge the outcome of a previous judgment that had been entered by default against Mrs. Yap in relation to a debt owed by Cheshire Securities Pty Ltd to Esanda Finance Corporation.

The legal issues before the court included whether the deregistered company could be reinstated and whether the judgment against Mrs. Yap, who was associated with Cheshire Securities Pty Ltd, could be challenged on procedural grounds. Additionally, the court had to consider the credibility and integrity of Mrs. Yap as assessed in previous proceedings and whether the findings made against her were pertinent to the current application.

The court examined the history of the litigation between Mrs. Yap and Esanda Finance Corporation, noting that the District Court had dismissed her application to set aside the default judgment and that the Full Court had also dismissed her appeal. The court found that the previous judgments were conclusive on the issues of credibility and integrity of Mrs. Yap and that these findings were relevant to the current application. The court concluded that there was no serious question to be tried in the current application and dismissed the application for reinstatement of the deregistered company.

The court's decision was based on the procedural history of the case, the adverse findings against Mrs. Yap, and the lack of merit in the current application. The application to reinstate the deregistered company was dismissed, and no further appeal was permitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Esanda action has also been litigated. Cheshire failed in that and its appeal has been dismissed. Cheshire borrowed money from Esanda to build some student accommodation at Curtin University. Mrs Yap or Cheshire sued Esanda in the District Court in 1994. Esanda filed an application for summary judgment on behalf of the defendant and was successful. Mrs Yap failed to attend on the hearing date and the judgment was entered by default. She later applied by summons to have that judgment set aside and the Principal Registrar of the District Court dismissed her application. She appealed to Barlow DCJ out of time. On 3 May 1996 he dismissed her appeal for reasons given. In the course of that hearing she made various far‑reaching allegations against Esanda. The Judge concluded that there was not a serious question to be tried upon any cause of action raised by Mrs Yap. He considered that her explanation for the delay in bringing the application was inadequate. In the course of those reasons he made a number of adverse findings on the credibility and integrity of Mrs Yap. She then sought leave to appeal to the Full Court in FUL 86 of 1996. She got out of time. Leave to appeal was refused and the appeal was struck out for want of prosecution by the Full Court in Yap v Esanda Finance Corporation, unreported; FCt SCt of WA; Library No 980182; 9 April 1998. The Full Court gave 13 pages of reasons. In the course of giving those reasons the Full Court said it assumed that the appeal had merit. Her appeal failed on procedural grounds. For these reasons the application will be dismissed.