In the matter of ACN 002 408 040
[2013] NSWSC 1997
•04 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of ACN 002 408 040 [2013] NSWSC 1997 Hearing dates: 4 November 2013 Decision date: 04 November 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Consent orders varying previous order
Catchwords: CORPORATIONS - deregistration - where parties by consent seek to vary an order under s 509(6) after the expiration of the time limited for the making of an order under that section - where Court invited not to make a new or different order under s 509(6), but to vary the existing order in exercise of the Court's power to vary orders where the variation is consented to - order varied Legislation Cited: (Cth) Corporations Act 2001 s 509(6) Cases Cited: In the matter of ACN 002 408 040 [2013] NSWSC 470 Category: Principal judgment Parties: Henry Davis York (plaintiff)
Paul Steven Nelson (first defendant)
Peter Andrew Styles (second defendant)
ACN 002 408 040 Pty Ltd (in liq) (third defendant)Representation: Counsel:
A von Konigsmark (solicitor) (plaintiff)
M Watson) (solicitor) (liquidator)
Solicitors:
Henry Davis York (plaintiff)
Watson Mangioni (liquidator)
File Number(s): 2013/107212
Judgment - EX TEMPORE
HIS HONOUR: By originating process filed on 9 April 2013, Henry Davis York as plaintiff claimed against the first defendant Paul Steven Nelson, the second defendant Peter Andrew Styles and the third defendant company ACN 002 408 040 Pty Ltd (in liquidation) the following relief:
1. An order pursuant to section 588T(2)(b) of the (Cth) Corporations Act 2001 that the plaintiff have leave to commence proceedings against the first and second defendants for an amount of $294,099.54, and such further orders that the Court considers appropriate, pursuant to section 588G(2) and 588M(3) of the (Cth) Corporations Act 2001.
2. An order that the Australian Securities and Investments Commission not deregister the third defendant in accordance with section 509(5) of the (Cth) Corporations Act 2001 until further order of the court.
3. Costs reserved.
On 16 April 2013, Black J made an order pursuant to (Cth) Corporations Act 2001, s 509(6) that ASIC deregister the company on 18 December 2014. His Honour reserved liberty to any interested person who may be affected by those orders to apply to vary or discharge those orders with 48 hours notice being given to the plaintiff and to the Court. The orders were made, practically speaking, ex parte: see In the matter of ACN 002 408 040 [2013] NSWSC 470.
The requirement for an order under Corporations Act s 509(6) arose because the liquidator of the company had held its final meeting of members and creditors and lodged its final return with ASIC on 18 January 2013, the consequence of which was that, unless an order was made under s 509(6), ASIC was required to deregister the company three months after the final meeting of members and creditors, which would have been 18 April 2013. In circumstances where the plaintiff wished to pursue proceedings against the defendants to recover the sum described in paragraph 1 of its originating process, it was necessary that the company remain registered.
The proceedings contemplated by paragraph 1 of the originating process have now been settled and I am asked, by consent, to dismiss them. In those circumstances, there is no further requirement for the company to remain registered. Corporations Act, s 509(6), requires that the Court must make an order under that section fixing a different date of deregistration before the end of the three month period after the return was lodged. Black J referred to the potential difficulties to which this gives rise in his Honour's judgment (at [9]), where his Honour observed that once the date was fixed, a subsequent variation of it may not be effective, given the requirement in the Corporations Act s 509(6) that the order be made before the end of the three month period after the return was lodged. In reserving liberty to apply, his Honour observed (at [16]) that any application to vary the time period may be confined by the limited power of the Court to do so under s 509(6) of the Act.
The parties seek to circumvent this difficulty by proceeding not to seek a different or new s 509(6) order, but to seek a variation of the existing order and the date referred to in it by reliance on the Court's power to vary orders where they have been made in the absence of a relevant party, or pursuant to the leave reserved by his Honour or, as it seems to me, where the variation is consented to. The power that I am asked to exercise therefore is not a power under s 509(6), but the Court's power to vary its orders, albeit in limited circumstances. Where there is consent to that course and where there is no apparent prejudice to any party or third party involved in doing so, there is no reason why the Court should not adopt that course.
Accordingly, I make the following orders:
(1) Order that order 1 made by Black J on 16 April 2013 be varied by the deletion of the words "18 December 2014" and the insertion in lieu thereof of the words "15 November 2013" so that the varied order reads:
"1. Pursuant to s 509(6) of the Corporations Act 2001 (CTH), the Australian Securities and Investments Commission (ASIC) deregister ACN 002 408 040 Pty Ltd (in liquidation) on 15 November 2013".
(2) Order that the defendants notify ASIC of these orders within two days.
(3) Vacate all extant orders as to costs made in these proceedings.
(4) Order that the proceedings, save so much as the orders made by Black on 16 April 2013 as varied, be dismissed.
(5) No order as to costs with the intent that each party bear its own costs of the proceedings.
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Decision last updated: 16 April 2014
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