In the matter of Mermax Australia P/L Australian Company No. 006 934 425 Mingtor Investments P/L & Anor. v Australian Securities Commission

[1993] FCA 231

t IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 3004 of 1993

QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

IN THE MATTER OF MERMAX AUSTRALIA PTY. LTD.

AUSTRALIAN COMPANY NO. 006 934 425

BETWEEN: MINGTOR INVESTMENTS PTY. LTD.

First Applicant

AND :  WILLIAM LEWSKI

Second Applicant

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	25 March, 1993
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The application for re-registration of Mermax Pty. Ltd. is dismissed.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

2.        The applicants pay Goldpearl Pty. Ltd.'s costs of and incidental to the application.

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 3004 of 1993
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	1

IN THE MATTER OF M E W AUSTRALIA PTY. LTD.

AUSTRALIAN COMPANY NO. 006 934 425

BETWEEN: MINGTOR INVESTMENTS PTY. LTD.

First Applicant

AND :  WILLIAM LEWSKI

Second Applicant

AND :  AUSTRALIAN SECURITIES COMMISSION

Respondent

m m : Drummond J

Place: Brisbane

Date:  25 March, 1993

EX TEMPORE REASONS FOR JUDGMENT

This is an application for reinstatement of the
registration of Mermax Australia Pty. Ltd. ("Mermax"). It was

de-registered in July 1992 for non-compliance with various

requirements of the Corporations Law, including a failure on

its part to file returns for the years 1989, 1990 and 1991.

On 23 September, 1991, Goldpearl Pty. Ltd. ("Goldpearl") commenced application QG 127 of 1991 against Mermax and against Mr. Lewski who had, prior to de- registration of Mermax, a 30 per cent interest in Mermax. On 24 March, 1992, almost exactly 12 months ago, Goldpearl filed a notice of discontinuance against Mermax. It was some months after that that Mermax was de-registered. The action between Goldpearl and Mr. Lewski continued and it appears that, save only for a failure on the part of Mr. Lewski to comply with directions of the court in relation to the provision of some further particulars in relation to the provision of inspection of documents and in relation to giving complete discovery, the matter has been ready for trial at least since the end of last year.

The sole basis upon which re-registration of Mermax is sought is so that it can come back into the action and seek orders against Goldpearl, assuming it will be successful in obtaining leave to be rejoined as a party.

The making of this application is characterised by the same delay on the part of Mr. Lewski's side of the record as has characterised that side's progress, or lack of progress, I should say, in getting the matter to a stage where it would be ready for trial. On 3 February, 1993, Cooper J

Mermax to be re-registered or, in the event that the same has gave a direction that Mr. Lewski, by 3 March, 1993, cause	not been re-registered' by the Australian Securities
Commission, to file an application in this court seeking re- registration of the company and file an application seeking joinder of the company as a respondent to the action. As I have already indicated, that direction was not complied with. It was not until 8 March that the application seeking re- registration of the company was actually filed.
It emerged fairly quickly in argument that there is no evidence before me to indicate that the solicitor representing Mr. Lewski had grounds for anticipating that, if Mermax were re-registered, instructions would be given to him to make the necessary application for the joinder of Mermax in the action. The material was simply quite deficient in not covering that fairly obvious matter. When I was asked to be shown in the material the bases upon which it was sought to re-register Mermax so that it would be able to pursue claims for relief in the main action, it was conceded by counsel for the applicants that he could not indicate anything in the material in that regard.
The applicants sought an adjournment of their belated application for re-registration in order to assemble the material which should have been available and put before the court on this occasion. That application was opposed by counsel for Goldpearl, essentially on the basis of the lapse of time since proceedings against Mermax were discontinued by the applicant and the subsequent history, which I think I have
already sufficiently outlined.
It is clear that in this case if re-registration were to be granted for the sole purpose advanced, namely, to enable Mermax to come back into the action, this proceeding, which is practically ready for hearing, would be delayed for quite a considerable period of time. In my view, the applicant would suffer real prejudice if the matter were to be delayed further. I think in these circumstances that it is one of those relatively rare cases in which it is inappropriate to grant the application for adjournment to remedy deficiencies in the material. I refuse the application for adjournment.
Given what I have had to say about there being major gaps in the material before me, in that the material fails to disclose any basis upon which the discretion to re-register the company could properly be exercised, I propose to dismiss the application for re-registration.
I am afraid that, in those circumstances, the applicant for re-registration will have to pay Goldpearl's costs of that application.
I certify that this and the preceding
three pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.
Associate:  ,/ L I / / G ~ - -
Date :  25 March, 1993