Kyne v CIMIC Group Limited

[2020] FCA 1341

FEDERAL COURT OF AUSTRALIA

Kyne v CIMIC Group Limited [2020] FCA 1341  

File number:

NSD 727 of 2020

Judgment of:

KATZMANN J

Date of judgment:

18 September 2020

Catchwords:

CORPORATIONS LAW — Application for reinstatement of a deregistered company  

Legislation:

Corporations Act 2001 (Cth) s 601AH(2)

Cases cited:

Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Ltd [2010] NSWSC 1369; 80 ACSR 670

Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; 174 ALR 688; 19 ACLC 341; 34 ACSR 232

Donmastry Pty Ltd v Albarran [2004] NSWSC 632

James v Leighton Holdings Limited [2013] FCA 1115

Re Proserpine Pty Ltd [1980] 1 NSWLR 745

Wedgewood Hallam Pty Ltd v Australian Securities and Investments Commission, in the matter of Combined Building Consultants Pty Ltd [2011] FCA 439

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

20

Date of last submission/s:

13 August 2020

Date of hearing:

Heard on the papers

Counsel for the Applicant:

Mr L T Livingston

Solicitor for the Applicant:

Gordon Legal

Solicitor for the First Respondent:

Herbert Smith Freehills

Counsel for the Second Respondent:

The Second Respondent did not appear

ORDERS

NSD 727 of 2020

BETWEEN:

THOMAS EDWARD KYNE

Applicant

AND:

CIMIC GROUP LIMITED (ACN 004 482 982)

First Respondent

LEIGHTON SUPERANNUATION PTY LIMITED (ACN 001 002 035) IN ITS FORMER CAPACITY AS TRUSTEE OF THE LEIGHTON SUPERANNUATION FUND

Second Respondent

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	18 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.Pursuant to s 601AH(2) of the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission reinstate the registration of Leighton Superannuation Pty Limited (ACN 001 002 035).

2.Costs of the interlocutory application filed on 13 August 2020 be costs in the cause.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

1. On 3 July 2020 Thomas Edward Kyne instituted proceedings in this Court seeking damages or equitable compensation from CIMIC Group Limited and Leighton Superannuation Pty Limited in its former capacity as trustee of the Leighton Superannuation Fund (together “the respondents”).  Mr Kyne alleges that he was formerly employed by Leighton Contractors Pty Ltd (now known as CPB Contractors Pty Ltd), a wholly owned subsidiary of Leighton Holdings Limited, now known as CIMIC, and a member of the Fund.  Leighton Superannuation has since been deregistered.

2. No defence has been filed.

3. In his statement of claim Mr Kyne alleges that, by a letter dated 17 September 1993, the respondents invited him to transfer from the defined benefits section of the Fund to a new accumulated benefits section.  The letter enclosed a number of documents.  One of those documents compared the benefits of the two sections.  According to the pleading, it included a guarantee that, in the event that Mr Kyne transferred from the defined to the accumulated benefits section, any benefit payable to him…