Feng v GMS Fulfilment Services Limited - [2004] NSWSC 855

Reported Decision:
50 ACSR 527
(2004) 22 ACLC 1371

Supreme Court

CITATION: Feng v GMS Fulfilment Services Limited [2004] NSWSC 855

HEARING DATE(S): 13/09/04

JUDGMENT DATE:
16 September 2004

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Originating process dismissed

CATCHWORDS: CORPORATIONS - application by plaintiff in common law proceedings against defendant for order restoring defendant's name to register of foreign companies - name struck off register by ASIC on basis of belief that defendant no longer carrying on business in Australia - ability of plaintiff to pursue common law proceedings in no way dependent on or facilitated by restoration of defendant's name to register - ability of plaintiff to proceed by service on defendant in place of incorporation - plaintiff not aggrieved by striking off - no reason to consider restoration just.

LEGISLATION CITED: Companies Act 1993 (NZ)
Companies Act 1955 (NZ), s.27(3)
Companies Reregistration Act (NZ), s.12
Company Law Review Act 1998 (Cth)
Corporations Act 2001 (Cth), ss.601AH, 601CL, Division 2 Part 5B.2
Corporations Law, ss.102A, 344

CASES CITED: Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 34 ACSR 232
Best v Yellow Express Carriers Ltd [2004] NSWSC 666
In the Marriage of VR & N Gould (1993) 17 Fam LR 156
Newby v Von Oppen and the Colt's Patent Firearms Manufacturing Co (1872) LR 7 QB 293
Victorian Workcover Authority v Orientstar Shipping Corp [2003] VSC 311
Williams v Lips-Heerlen BV (unreported, NSWSC, Giles J, 1 November 1991):

PARTIES :
Jerry Quan Feng - Plaintiff
GMS Fulfilment Services Limited - Defendant

FILE NUMBER(S): SC 2619/04

COUNSEL: Mr D P M Ash - Plaintiff

SOLICITORS: Bryden's Law Office - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY, 16 SEPTEMBER 2004

2619/04 – JERRY QUAN FENG v GMS FULFILMENT SERVICES LIMITED

JUDGMENT

1 By an amended originating process filed in court on 13 September 2004, the plaintiff seeks an order under s.601CL(10) of the Corporations Act 2001 (Cth) in respect of the defendant.

2 The defendant is a company incorporated under and owing its existence to the general companies legislation of New Zealand. A copy of its certificate of incorporation is in evidence. It shows that the defendant was incorporated on 25 August 1989 under the Companies Act 1955 (NZ). By virtue of s.27(3) of that Act, the members for the time being and from time to time thereby became a body corporate. The defendant was on 30 June 1997 reregistered pursuant to the Companies Reregistration Act 1993 (NZ) so that it became a company under the Companies Act 1993 (NZ). The reregistration did not create a new legal entity or affect the defendant’s continuity as a legal entity (Companies Reregistration Act, s.12). As a company registered under the Companies Act 1993, the defendant is, in the words of s.15 of that Act, “a legal entity in its own right separate from its shareholders”.

3 The evidence also shows that the defendant was registered as…

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: [2004] NSWSC 855
Decision Date: 16 September 2004

CaseChat Overview and Summary

The case of Feng v GMS Fulfilment Services Limited involved the plaintiff, Feng, bringing an application against the defendant, GMS Fulfilment Services Limited, in the Federal Circuit Court. The dispute centred on the defendant's name being struck off the register of foreign companies by the Australian Securities and Investments Commission (ASIC) on the basis that it was believed the company was no longer carrying on business in Australia. Feng sought an order to restore the defendant's name to the register as part of broader common law proceedings.

The court was tasked with determining whether Feng's ability to pursue common law proceedings against the defendant was contingent upon the restoration of the defendant's name to the register. Additionally, the court needed to decide whether the plaintiff could proceed with service on the defendant in place of incorporation and whether Feng's lack of grievance over the striking off justified considering the restoration. The court also needed to assess whether there were any reasons that restoration of the defendant's name would be considered just.

In its decision, the court held that Feng's capacity to pursue common law proceedings against the defendant was not dependent on or facilitated by the restoration of the defendant's name to the register. The court found that Feng could proceed by serving the defendant in place of incorporation. Furthermore, as Feng was not aggrieved by the striking off of the defendant's name, there was no basis for considering the restoration just. Consequently, the court dismissed Feng's application for the restoration of the defendant's name to the register.

Orders