Fuduche v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 503

50% 19%

JUDGMENT No. ........ ........ .. E ......,..,,,

IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	j NO GII of 1990
j
GENERAL DIVISION	1
1

BETWEEN. COSTER PTY LIMITED

Applicant

AND:	C O M M O N W E A L T H	O F
AUSTRALIA

First Respondent

AND:	ERROL BRIAN SAMS
A N  O F F I C E R O F T H E
A U S T R A L I A N  C U S T O M S
SERVICE

Second Respondent

Gram.	Davies J.
Date:	8 July 1993
Sydney
applicant in these proceedings. The first respondent, The Commonwealth of	Therefore, Coster Pty Limited does not exist and as a consequence, there is no

REASONS FOR JUDGMENT

EX TEMPORE

In these proceedings, the applicant, Coster Pty Limited, was deregistered by
the Australian Securities Commission under s.574 of the Comorations Law.

Australia, and the second respondent, Mt E.B. Sams, seek an order permanently

staying or dismissing the proceedings.

The application is made on a number of grounds. One ground relied upon is under Order 10 rule 7 of the Federal Court Rules, which empowers the Court to dismiss the proceedings if a party is in default. In my opinion, no such order can be

made at this stage, for such an application constitutes a step in the proceedings and it is my view that no such step can be taken in the absence of an applicant. If the

respondents wish to take a step in the proceedings, they must obtain a party to replace the applicant which has ceased to exist. Similarly, if an applicant who is a natural person dies and the respondent wishes to take a step in the proceedings, the respondent must obtain an order that a person be appointed to represent the deceased applicant. The Court then has power to appoint an administrator ad litem,

or to appoint a representative of the deceased person or the estate and then an order

can be made.

If the position is simply that an applicant has ceased to exist, however, then no step can be taken because effective proceedings are no longer on foot. Furthermore,

as Coster Pty Limited does not exist at this point of time, it cannot be a party in default in the sense of failing to have taken any action. For these reasons, I would

not make an order under Order 10 rule 7.

In determining what is an appropriate order in these circumstances, it is necessary to have regard to s.574 of the Corporations Law. Under that section, a person who is aggrieved by the cancellation of registration of a company may apply to

the Court for an order that the company be re-registered and sub-section (4) then provides that if such an order is made, the company shall be deemed to have

continued in existence as if registration had not been cancelled.

Therefore, the Act itself contemplates that Coster Pty Ltd may be re- registered, and so exist as though it had never been deregistered. It is quite inconsistent with the intent of s.574 for the Court to make any order at this stage

permanently staying or dismissing these proceedings. Indeed, if the Court makes an

order that the company be re-registered, it can then make any order necessaly to give effect to the Cornorations Law, including an order reinstating these proceedings. Such an application may be made to the Court by any person aggrieved and there is

evidence in this case of persons connected with Coster Pty Limited who propose to seek an order that the company be re-registered. Indeed, the respondents themselves would be entitled to make such an application simply on the basis that such an order would permit them to finalise these proceedings and to seek an order for the costs already incurred. Therefore, there are persons who may wish to pursue an

application for re-registration of the company and the evidence before the Court is

that it is intended that this will be done.

It follows that it is inappropriate for this Court to make any order effectively

dismissing these proceedings in a matter which is inconsistent with s.574. In a

circumstance such as this, the Court would ordinarily order that the proceedings be stayed, reserving liberty to apply for their reinstatement in the event that Coster Pty

Limited was re-registered. I would be inclined to make that order, save for the fact

that, for the purposes i f the Court's records, doubt would arise as to whether this is a
matter which has finally been completed.

In this circumstance, where there are parties who intend to apply for reinstatement of the company, it seems to me that the sensible course is simply to set a directions hearing for 10 December 1993 and reserve liberty to the parties to apply

in the interim.

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein of

the Honourable Mr Justice Davies.

Date:  8 July 1993