In the matter of Dapoli Corp Ltd and Australian Securities Commission v Dapoli Corp Ltd

[1992] FCA 1080

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 3057 of 1992

)

GENERAL DIVISION )

IN THE MATTER OF:DAPOLI CORPORATION LIMITED (A.C.N. 003 042 082)

BETWEEN:AUSTRALIAN SECURITIES COMMISSION

Applicant

AND:DAPOLI CORPORATION LIMITED

First Respondent

FAR EAST CONSORTIUM STRATEGIC INVESTMENT LIMITED

Second Respondent

EVERQUEEN INVESTMENTS INC

Third Respondent

CHIN TUNG NOMINEES LIMITED

Fourth Respondent

MKI CORPORATION LIMITED

Fifth Respondent

15 May 1992

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion by the applicant, the Australian Securities Commission for judgment against the fourth respondent, Chin Tung Nominees Limited. The fourth respondent initially filed a conditional notice of appearance in this

proceeding on 3 April 1992 and then later, after filing a motion

pursuant to Order 9 rule 7 of the Court's rules, the fourth

respondent on 8 May last, informed the Court that it submitted to the Court's jurisdiction, that it did not propose to file a defence in the proceeding and that it submitted to such order as

the Court may see fit to make save as to costs.
The applicant bases its entitlement to judgment against the
fourth respondent on various provisions in the Court's rules,

namely, Order 11 rule 23 (judgment in default of defence), Order 10 rule 7 (judgment by default for not complying with a direction of the Court that a defence be filed), Order 18 rule 4

(judgment arising from admissions), and (summary judgment on the

evidence) Order 20 rule 1.

The second respondent, Far East Consortium Strategic

Investment Limited, neither supports nor opposes the entry of

judgment against the fourth respondent provided that any such

judgment does not have the effect of constituting an admission

against it. The third and fifth respondents, Everqueen Investments Inc. and MKI Corporation Limited, oppose the entry

of summary judgment, though part of their opposition is assuaged by the concession of counsel for the applicant that it is not

sought that the judgment should operate as an admission against any respondent other than the fourth respondent. Nevertheless, the third and fifth respondents have argued that in the exercise

of its discretion the Court should not enter judgment against the fourth respondent at this stage. The power of the Court to

enter judgment against the fourth respondent is, of course, undoubted, as is the proposition that it is a discretionary power.

The alleged contravention of the fourth respondent is under s. 615 of the Corporations Law. I am satisfied that on each of the grounds upon which reliance is placed by the applicant it is

entitled to judgment against the fourth respondent, and I am satisfied that in the exercise of the Court's discretion judgment ought to be entered. The Court notes the concession by

the applicant that it does not seek to have the judgment operate as an admission or finding against any respondent other than the fourth respondent; and judgment will be entered on that basis.

(1)The Court declares that the fourth respondent acquired the shares referred to in schedule 3 to the statement of claim ("the shares"), in contravention of s. 615 of the

Corporations Law.

(2)The Court orders that the shares vest in the applicant.

(3)The Court orders that the applicant and the respondents be at

liberty to apply for directions in relation to the

disposition of the shares.

(4)The Court orders that all questions of costs as between the

applicant and any respondent of the motion be reserved.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate
Dated: 15 May 1992

Counsel for the Applicant :	G.C. Lindsay
Solicitors for the Applicant	:Australian Securities Commission

Solicitors for the Second

Respondent : Corrs Chambers Westgarth

Solicitors for the Third and

Fifth Respondents : Rosenblum & Partners

Date of Hearing : 15 May 1992

Date of Judgment : 15 May 1992