CKM (Mortgages) Limited v Australian Securities and Investment Commission, in the matter of Real Property Group Pty Limited
[2012] FCA 162
•24 February 2012
FEDERAL COURT OF AUSTRALIA
CKM (Mortgages) Limited v Australian Securities and Investment Commission, in the matter of Real Property Group Pty Limited [2012] FCA 162
Citation: CKM (Mortgages) Limited v Australian Securities and Investment Commission, in the matter of Real Property Group Pty Limited [2012] FCA 162 Parties: CKM (MORTGAGES) LIMITED
ACN 089 263 310 v
AUSTRALIAN SECURITIES AND INVESTMENT COMMISSIONFile number: NSD 104 of 2012 Judge: JACOBSON J Date of judgment: 24 February 2012 Catchwords: CORPORATIONS – reinstatement of registration of a company Legislation: Corporations Act 2001 (Cth), ss 509(6), 601AH, 601AG Cases cited: CKM (Mortgages) Limited v Real Property Group Pty Limited (In Liquidation) [2011] FCA 332 Date of hearing: 24 February 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Plaintiff: Mr Golledge Solicitor for the Plaintiff: Colin Biggers & Paisley
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 104 of 2012
IN THE MATTER OF REAL PROPERTY GROUP PTY LIMITED
BETWEEN: CKM (MORTGAGES) LIMITED
ACN 089 263 310
PlaintiffAND: AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
Defendant
JUDGE:
JACOBSON J
DATE OF ORDER:
24 FEBRUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to s 601AH of the Corporations Act 2001 (Cth) the Australian Securities and Investments Commission reinstate the registration of Real Property Group Pty Limited ACN 067 558 874 (the Company).
2.Antony DeVries and Riad Tayeh, the liquidators of the Company immediately before its deregistration, be restored to office as liquidators upon reinstatement of the registration.
3.The costs of the Australian Securities and Investments Commission in the sum of $434 is payable by the Plaintiff.
4.The costs and expenses of these proceedings, including the costs referred to in order 3 above be costs and expenses in the winding up in the company.
5.A copy of these orders be served by pre-paid post on a former director of the Company, Mr Ronnie Gedeon.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 104 of 2012
IN THE MATTER OF REAL PROPERTY GROUP PTY LIMITED
BETWEEN: CKM (MORTGAGES) LIMITED
ACN 089 263 310
PlaintiffAND: AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
Defendant
JUDGE:
JACOBSON J
DATE:
24 FEBRUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application made under s 601AH(2) of the Corporations Act 2001 (Cth) (the “Act”) for an order that the Australian Securities and Investment Commission (“ASIC”) reinstate the registration of Real Property Group Pty Ltd (“the Company”).
The application is supported by an affidavit of Mr Antony Paul Riordan sworn 23 January 2012. The affidavit sets out the background to the present application, which is drawn in large part from the reasons for judgment of Emmett J in CKM (Mortgages) Limited v Real Property Group Pty Limited (In Liquidation) [2011] FCA 332, in particular, at [1] to [5].
It is evident from the background facts referred to in his Honour’s judgment that there are proceedings on foot in the Supreme Court of New South Wales in which the present plaintiff, CKM (Mortgages) Limited (“CKM”) is the plaintiff, and in which the Company is one of the defendants.
His Honour was satisfied that it was appropriate in the application before him to make an order under s 509(6) of the Act deferring the registration of the Company. His Honour did so upon the basis that the members voluntary winding up of the Company had come about without CKM being notified, and that the completion of the winding up had taken place without the liquidators being informed of the proceedings that are on foot in the Supreme Court of New South Wales.
In essence, this morning’s application and the orders sought by Mr Golledge, who appears for the plaintiff, is warranted by the same facts and matters to which Emmett J was taken in support of the application to defer the registration of the Company. I am satisfied that CKM is a person aggrieved by the de-registration, and that it is just that the Company’s registration be reinstated. As I have said, the reason why this is so is essentially the same reason as prompted Emmett J in the first instance to defer de-registration of the company.
The essential consideration is that the claim brought by CKM in the Supreme Court appears on the evidence before me to be a viable claim, and it has been listed for hearing for 10 days to commence in October of this year. A mediation is to take place in March with a preliminary conference before the mediator to take place on 29 February.
There is some evidence that the company is insured in respect of the, claims made in the Supreme Court. However, the facts put before me today show that CKMs solicitors are not in a position to say whether s 601AG of the Act is engaged. It is therefore not appropriate for the matter to be disposed of on the footing that it would be open to CKM to take proceedings directly against the insurer under that section.
ASIC consents to the reinstatement of the Company on the usual terms. Those terms either have been, or will be, satisfied by the orders that I will make, or by the steps which are required to be taken pursuant to the reinstatement of the Company.
The former liquidators of the Company do not oppose the order for reinstatement, and arrangements have been made to meet their fees. Notice is to be given to the relevant parties of the orders that I will make.
Accordingly, I propose to make orders in terms of the short minutes of order handed to me by Mr Golledge today. I will also order that Mr Ronnie Gedeon, who was a director of the Company and who was also a defendant in the Supreme Court proceedings, be notified of the order for reinstatement of the Company.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson . Associate:
Dated: 24 February 2012
1
1