Lindholm v Australian Securities and Investments Commission
[2005] FCA 1003
•19 JULY 2005
FEDERAL COURT OF AUSTRALIA
Lindholm v Australian Securities & Investments Commission [2005] FCA 1003
CROSS-VESTING - application for reinstatement of deregistered company – deregistered company party to Supreme Court litigation – whether in the interests of justice that application be cross-vested
IN THE MATTER OF GLOBAL COMMUNICATIONS TECHNOLOGIES PTY LTD (ACN 050 166 526) (DEREGISTERED)
JOHN ROSS LINDHOLM AND GEORGE GEORGES v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
MERKEL J
19 JULY 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
CORPORATIONS DIVISION
VID 646 OF 2005 IN THE MATTER OF GLOBAL COMMUNICATIONS TECHNOLOGIES PTY LTD (ACN 050 166 526) (DEREGISTERED)
BETWEEN:
JOHN ROSS LINDHOLM
FIRST PLAINTIFFGEORGE GEORGES
SECOND PLAINTIFFAND:
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
DEFENDANTJUDGE:
MERKEL
DATE OF ORDER:
19 JULY 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application in the Court, VID 646 of 2005, be cross-vested, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987, to the Supreme Court of Victoria.
2.That the plaintiff pay ASIC’s costs of and incidental to the proceeding to date.
3.All other questions of costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
CORPORATIONS DIVISION
VID 646 OF 2005 IN THE MATTER OF GLOBAL COMMUNICATIONS TECHNOLOGIES PTY LTD (ACN 050 166 526) (DEREGISTERED)
BETWEEN:
JOHN ROSS LINDHOLM
FIRST PLAINTIFFGEORGE GEORGES
SECOND PLAINTIFFAND:
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
DEFENDANTJUDGE:
MERKEL
DATE:
19 JULY 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The subject matter of the present application is the application for reinstatement of Global Communications Technologies Pty Ltd. The reasons for that application and the benefits sought to be realised as a consequence of it are complex and for present purposes I need not go into them.
The real question before me at the moment is whether I should adjourn the application to enable the plaintiffs to put in further material or whether I should move of my own motion to cross‑vest the application to the Supreme Court, which has before it on Friday an application which is closely related to a number of issues raised by the present application. Two of those issues have persuaded me that it is in the interests of justice that the issues be before the same judge at the same time and not be divided between two judges in different courts.
The two issues are whether the plaintiffs are persons aggrieved and whether the court should exercise the discretionary power it has to reinstate Global Communications Technologies Pty Ltd. The primary reason contended for the reinstatement is that a deed of settlement has been agreed upon which would have the effect of resolving a number of issues between parties to the Supreme Court litigation, which could lead to the outcome sought by the plaintiffs, namely, the payment to them of some $300-$350,000 for their professional fees.
If the approval of the deed requires the reinstatement of the company, the case that the plaintiffs are persons aggrieved and entitled to make application for reinstatement, may be a compelling one. If on the other hand, the deed is able to proceed without the reinstatement of the company, then they may not be persons aggrieved and there may also be discretionary factors that would weigh against that reinstatement. As the deed is not before me and would have to be adduced in evidence to resolve those issues and as the approval to the deed is coming before Mandie J in the Supreme Court on Friday of this week, which is Friday, 22 June 2005, it seems to me to be clearly in the interests of justice that his Honour have both the reinstatement application and the application for approval of the deed before him so he can resolve those matters.
There is also a further issue which is a minor one in the overall scheme of things, and that relates to the intervention sought to be made by Mr O'Bryan of senior counsel on behalf of the deed administrators of another company which claims to have an interest in the outcome of the present application and which it appears is a party or entitled to be heard on the application for approval of the deed. His client wishes to have a role in the matter and it seems appropriate that, as that matter will be coming on before Mandie J on Friday, his client be entitled to ask his Honour to hear what he may wish to say or have to say on that application if his Honour is disposed to accede to their application.
That is an additional reason why, in the interests of justice, all the parties having a right to be heard are capable of exercising that right before the same judge in the same court rather than possibly having a bifurcation of the proceedings and some uncertainty as to whether they are entitled to be heard. I am comforted in the conclusion at which I have arrived by counsel for the plaintiffs agreeing that, given practical considerations, the cross‑vesting is the preferred outcome anyway. Nonetheless, the reason why I do propose to
exercise the cross‑vesting power of my own motion is that I am satisfied that independently of the wishes of the parties, it is in the interests of justice that there be that cross‑vesting.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate:
Dated: 22 July 2005
Counsel for the Plaintiff: DJ Williams Solicitor for the Plaintiff: Gadens Lawyers Counsel for the defendant: M Adkins Solicitor for the defendant: Australian Securities and Investments Commission Counsel for GI Rathner (as deed administrator of Advanced Communications Technologies (Australia) Pty Ltd): N O’Bryan SC Solicitor for GI Rathner (as deed administrator of Advanced Communications Technologies (Australia) Pty Ltd): Robert James Lawyers Date of Hearing: 19 July 2005 Date of Judgment: 19 July 2005
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