Jason Armstrong v John Joseph Dignan

[2011] NSWSC 870

Supreme Court

New South Wales

Medium Neutral Citation:

Jason Armstrong v John Joseph Dignan [2011] NSWSC 870

Hearing dates:

04/08/2011

Decision date:

04 August 2011

Before:

Garling J

Decision:

(1) I order, pursuant to s 601AH of the Corporations Act 2001, that the Australian Securities and Investments Commission reinstate the registration of the third defendant, Edward T Davis & Co Pty Limited (ACN 101 122 525).

(2) I order that the plaintiff's costs of the notice of motion be the plaintiff's costs in the proceedings against the company, Edward T Davis & Co Pty Limited.

(3) I order that all other parties pay their own costs.

Catchwords:

CIVIL - claim for damages via contract and tort law regarding properly dealing - Deregistered corporation - Application for reinstatement of registration - Section 601AH Corporations Act 2001 - Applicant aggrieved as deregistration precludes legal proceedings - Just to preserve potential to access company's insurance policy - Application granted.

Legislation Cited:

Corporations Act 2001
Legal Profession Act 2004

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jason Armstrong
John Joseph Dignan

Representation:

Counsel:
J Raine (P)
C Blair (D2 and D3)
Solicitors:
No appearance (P)
Ebsworths, Lawyers (D2 and D3)

File Number(s):

SC 2010/118118

Publication restriction:

Nil

Judgment (EX TEMPORE)

1. GARLING J: This is an application by notice of motion filed 14 July 2011 for an order in the following terms, namely:

"An order pursuant to s 601AH of the Corporations Act 2001 that the respondent, the Australian Securities and Investments Commission, reinstate the registration of the third defendant, Edward T Davis & Co Pty Limited (ACN 101 122 525)."

1. The Corporations Act 2001 permits a company to be reinstated either by the Australian Securities and Investments Commission or, alternatively, by an order of this Court.

1. The statutory provision, s 601AH, which permits the Court to make the order requires that the Court be satisfied of two matters. The first is that the application for reinstatement is made to the Court by a person aggrieved by the deregistration. The second matter is that the Court is satisfied that it is just that the company's registration be reinstated.

1. The notice of motion was brought by Jason Armstrong, who is the plaintiff in proceedings filed in this Court, in which he claims damages for breach of contract, and in tort, arising out of property dealings in circumstances where the second defendant, Timothy Joseph Breene, acted as a solicitor employed by the company the subject of the order.

1. Edward T Davis & Co Pty Limited was the incorporated legal practice through which Mr Breene practised. It is not necessary, for purposes of determining this application, to make any finding about whether the plaintiff will, or will not, succeed on the claim as it is presently formulated in an Amended Statement of Claim filed in this Court on 24 May 2011.

1. It is sufficient to take the pleading on its face. Doing so I am satisfied that the plaintiff, Jason Armstrong, is a person aggrieved by the deregistration of the company as the deregistration precludes him from proceeding against it in these proceedings. In those circumstances, the plaintiff's claim for relief would be inadequately constituted as all necessary parties would not be the subject of proceedings. Accordingly, I am satisfied that the first requirement of s 601AH of the Corporations Act is met.

1. The second element requires the Court to be satisfied that it is just that the company's registration be reinstated. I am so satisfied. That is because the company was, on the material before me, an incorporated legal practice. The requirements of the Legal Profession Act 2004 mean that the company should have had in place a policy of insurance to protect it against claims of this kind. In the event that the plaintiff succeeds on the claim against the company, then reinstatement of the company's registration will permit the plaintiff to access the company's insurance policy, assuming that there are no other reasons for denial of insurance. None are before the Court.

1. As well it enables the company's interests to be properly protected by retaining solicitors to act for it in the proceedings and to defend itself against the allegations that it is liable to the plaintiff.

1. For those reasons, it is just that the company's registration be reinstated.

1. Accordingly I am persuaded that I should make the following orders:

(1) I order, pursuant to s 601AH of the Corporations Act 2001, that the Australian Securities and Investments Commission reinstate the registration of the third defendant, Edward T Davis & Co Pty Limited (ACN 101 122 525).

(2)   I order that the plaintiff's costs of the notice of motion be the plaintiff's costs in the proceedings against the company, Edward T Davis & Co Pty Limited.

(3)   I order that all other parties pay their own costs.

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Decision last updated: 12 August 2011