Hume v Goldblaze Nominees Pty Ltd as Trustee for The Goldblaze Unit Trust
[2021] WASCA 177
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUME -v- GOLDBLAZE NOMINEES PTY LTD AS TRUSTEE FOR THE GOLDBLAZE UNIT TRUST [2021] WASCA 177
CORAM: MURPHY JA
MITCHELL JA
HEARD: 24 SEPTEMBER 2021
DELIVERED : 1 OCTOBER 2021
FILE NO/S: CACV 76 of 2021
BETWEEN: ALISTAIR DAVID HUME
Appellant
AND
GOLDBLAZE NOMINEES PTY LTD AS TRUSTEE FOR THE GOLDBLAZE UNIT TRUST
First Respondent
NORMAN PHILLIP CAREY
Second Respondent
BRETT CHARLES ANTHONY
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: GOLDBLAZE NOMINEES PTY LTD AS TRUSTEE FOR THE GOLDBLAZE UNIT TRUST -v- HHA ARCHITECTS PTY LTD [2021] WASC 189
File Number : COR 31 of 2021
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
File Number : CIV 1102 of 2019
Catchwords:
Appeal - Practice and procedure - Review of registrar's decision to reject appeal notices for filing - Where appellant sought to commence appeal on behalf of company contrary to O 4 r 3 of the Rules of the Supreme Court 1971 (WA) - Where appellant sought a stay of winding up orders - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 198G(1), s 198G(3)(b), s 482(1), s 482(1A)(a)
Rules of the Supreme Court 1971 (WA), O 4 r 3
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Case(s) referred to in decision(s):
Binetter v Deputy Commissioner of Taxation [2011] FCA 184; (2011) 82 ATR 85
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust v HHA Architects Pty Ltd [2021] WASC 189
Goldblaze Nominees Pty Ltd v HHA Architects Pty Ltd [2020] WASC 139
Prow Pty Ltd v Commissioner for Police [2012] WASC 363
JUDGMENT OF THE COURT
Introduction
On 12 August 2021, Mr A D Hume 'for HHA Architects Pty Ltd' (company) lodged appeal notices in respect of orders made by Master Sanderson and Archer J concerning the company in proceedings CIV 1102 of 2019 and COR 31 of 2021, respectively. The appeal documents were rejected for filing by the registrar, effectively on the basis that the documents sought to institute appeals on behalf of the company, contrary to O 4 r 3 of the Rules of the Supreme Court 1971 (WA) (Rules), which provides, relevantly in effect, that a corporation may not commence legal proceedings otherwise than by a solicitor.
Mr Hume filed an application on 26 August 2021 for a review of the registrar's decision not to accept the documents for filing. In the papers filed with the court, Mr Hume described himself as a '100% shareholder of [the company]'. In his application, Mr Hume indicates that he seeks, in effect, a stay of the order to wind up the company in COR 31 of 2021.
The formal orders sought in the application are in the following terms:
1.Order permitting Mr Hume to represent his practice in SC and de facto in Supreme Court of Appeal, without restrictions.
2.Order permitting Mr Hume to file an amended statement of defence and counter-claim and expert witness outline re CIV 1102 of 2019.
3.Order to rescind the decision by Master Sanderson on 11 June 2021, regarding the winding up of [the company].
4.Declaration that Hume Healthcare Architects Pty Ltd is a legitimate and independent practice distinct from [the company]. (emphasis added)
Mr Hume's application was heard by the court on 24 September 2021. For the reasons which follow, the application should be dismissed.
Background
The company is, relevantly, a party to two actions in the General Division of the Supreme Court, being CIV 1102 of 2019 and COR 31 of 2021. Mr Hume is the director of the company. He is not a party to either of CIV 1102 of 2019 or COR 31 of 2021 in his personal capacity.
CIV 1102 of 2019
The parties in CIV 1102 of 2019 are Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust (first plaintiff), Norman Phillip Carey (second plaintiff), the company (first defendant) and Brett Charles Anthony (second defendant).
In general terms, in CIV 1102 of 2019, the plaintiffs allege that the company was engaged to provide certain architectural services. It is alleged that in preparing house designs, the company was in breach of the terms of the engagement, alternatively in breach of a duty to exercise reasonable care and skill in the provision of the services. The particulars to the amended statement of claim quantify Goldblaze's loss at just over $3.2 million.[1]
[1] See Goldblaze Nominees Pty Ltd v HHA Architects Pty Ltd [2020] WASC 139.
The company was originally represented by DLA Piper in the proceedings. DLA Piper filed an ex parte chamber summons on 17 December 2020 to cease acting for the company. On 21 December 2020, Registrar Whitby made orders allowing DLA Piper to cease acting.
On 16 February 2021, Mr Hume filed an application on behalf of the company seeking an order that he be granted leave to represent the company. The application was heard on 4 March 2021, and the master gave ex tempore reasons on 13 April 2021. On 20 April 2021, the master ordered that Mr Hume's application be dismissed. It appears that the company is currently unrepresented in CIV 1102 of 2019.[2]
[2] Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust v HHA Architects Pty Ltd [2021] WASC 189.
The proceedings are ongoing. On 17 August 2021, the plaintiffs were granted leave pursuant to s 471B of the Corporations Act 2001 (Cth) (Act) to continue the proceedings against the company, despite the company being wound up pursuant to the orders of 17 June 2021 referred to at [13] below.
COR 31 of 2021
The parties to COR 31 of 2021 are Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust (first plaintiff), Norman Phillip Carey (second plaintiff) and the company (defendant). In these proceedings, the plaintiffs sought orders pursuant to s 461(1)(k) of the Act that the company be wound up and that an official liquidator be appointed. The plaintiffs' application was heard on 6 May 2021.
On 11 June 2021, the master published written reasons to the effect that the company should be wound up and an official liquidator appointed: Goldblaze Nominees Pty Ltd as trustee for the Goldblaze Unit Trust v HHA Architects Pty Ltd.[3]
[3] Goldblaze [13].
On 17 June 2021, Archer J made orders winding up the company and appointing official liquidators.
Disposition - the application
Order 4 r 3 of the Rules provides:
Individual may act in person or by solicitor; body corporate must act by solicitor
(1)Subject to subrule (2) and to Order 70 rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the Supreme Court by a solicitor or in person.
(2)Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor. (emphasis added)
There is no relevant statute creating an exception to the rule in O 4 r 3(2) of the Rules. Further, the court has no power to dispense with the relevant explicit requirement of the Rules: Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd[4] and Prow Pty Ltd v Commissioner for Police.[5]
[4] Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372 [44], [47].
[5] Prow Pty Ltd v Commissioner for Police [2012] WASC 363 [18].
Whilst the court has the power, exercisable in limited circumstances, to permit an individual who is not a legal practitioner to act as a spokesperson for a company in proceedings involving the company,[6] the power to do so does not overcome O 4 r 3 of the Rules and the prohibition on the company itself not taking any formal step in the proceedings, other than by a solicitor.[7]
[6] Prow [19] - [22].
[7] Prow [23].
This means that, relevantly for present purposes, any appeal by the company must be commenced by a solicitor and not a person wishing to appear as advocate on behalf of the company.
Moreover, as the company is in liquidation, Mr Hume, insofar as he is a director of the company, is precluded from exercising any function or power of the company (including in relation to the commencement of an appeal on behalf of the company) without the written approval of the liquidator or the Court: s 198G(1) and s 198G(3)(b) of the Act.[8] It appears that Mr Hume has not sought the approval of the liquidator, nor applied to the court for such approval. Any application would need to be made to the General Division of the Supreme Court. Given that such an application would be brought for the purpose of facilitating an appeal against orders made by the master and Archer J, it would be appropriate for any such application to be heard by another judicial officer.
[8] See, generally, Binetter v Deputy Commissioner of Taxation [2011] FCA 184; (2011) 82 ATR 85 [7] ‑ [8].
Nor do the appeal notices purport to appeal the orders against the company in Mr Hume's capacity as a 'third party' affected by the orders.[9]
[9] cf Binetter [9] - [13].
Further, although Mr Hume seeks, in effect, orders terminating and/or staying the winding up orders, he has not brought an application to the court as a 'contributory' (shareholder) under s 482(1) and s 482(1A)(a) of the Act. Those provisions provide:
Power to stay or terminate winding up
(1)At any time during the winding up of a company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified in the order.
(1A)An application may be made by:
(a)in any case--the liquidator, or a creditor or contributory, of the company[.]
Again, any such application should be brought in the General Division.
Therefore, the registrar correctly refused to accept the appeal notices for filing, as Mr Hume cannot commence the appeals on the company's behalf. Mr Hume's application filed 26 August 2021 should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
1 OCTOBER 2021
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