McIntyre v Eastern Prosperity Investments Pty Ltd
[2001] FCA 1655
•22 NOVEMBER 2001
Practice and procedure
(includes corrigenda dated 24 December 2001)
PRACTICE AND PROCEDURE - representative proceedings against corporations - foreign corporation - corporation deregistered in Australia - subsequently re-registered - new corporation number - contention that former company ceased to exist - contention misconceived - motion for orders restraining solicitors from acting and joining ASIC as respondent dismissed - no question of principle
Federal Court of Australia Act 1976 (Cth)
Trade Practices Act 1974 ( Cth) s 82, s 87
DONALD COLIN MCINTYRE (FOR AND ON BEHALF OF HIMSELF AND PATRICIA ANN MCINTYRE AND AS A REPRESENTATIVE OF THE GROUP MEMBERS REFERRED TO IN THE APPLICATION) v EASTERN PROSPERITY INVESTMENTS PTE LTD and DBF PROPERTY HOLDINGS PTY LTD AS TRUSTEE FOR THE FREARSON FAMILY TRUST
W243 of 2000
FRENCH J
22 NOVEMBER 2001
PERTH
| IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | W243 OF 2000 |
| BETWEEN: | DONALD COLIN MCINTYRE (FOR AND ON BEHALF OF HIMSELF AND PATRICIA ANN MCINTYRE AND AS A REPRESENTATIVE OF THE GROUP MEMBERS REFERRED TO IN THE APPLICATION) APPLICANT DONALD COLIN MCINTYRE AND PATRICIA ANN MCINTYRE TRADING AS VICTORIA PARK TRAVELWORLD (SHOP 24) First Group Member PAUL STANLEY SCRUTTON AND BEVERLEY MAUREEN SCRUTTON TRADING AS PHOTOMAT VICTORIA PARK (SHOP 20) Second Group Member DENNIS BEAUMONT AS TRUSTEE FOR THE BEAUMONT FAMILY TRUST TRADING AS INNERSPIN COMPACT DISC S (SHOP 8) Third Group Member KERRY GEORGE AND FREDERICK WILLIAM GEORGE TRADING AS THE HEART COFFEE LOUNGE (SHOP 21) Fourth Group Member PHIMCHAI SMITH TRADING AS PHUKET THAI RESTAURANT (SHOP 44) Fifth Group Member KENNETH JECKS AND IRENE FUSSELL TRADING AS PLAYFUL PETS (SHOP 31) Sixth Group Member ARMIN PODGORNY AND SABINA PODGORNY TRADING AS GOURMET AVIGNON (SHOP 33) Seventh Group Member DAVID THAMBIPILLAI TRUSTEE FOR THE NEW DAY TRUST TRADING AS CURRY BOWL INDIAN TAKEAWAY (SHOP 45) Eighth Group Member BRENDAN REIDY-CROFT CEASED TRADING AS ZIPPY MULTI SERVICES (SHOP 47) Ninth Group Member MILAN SIMIC AND ANNA SIMIC TRADING AS MARTINS SKEWERS (SHOP 10) Tenth Group Member ALLAN AND HELEN LAWRENCE CEASED TRADING AS HAVA LOOK DISCOUNTS (SHOP 23) Eleventh Group Member KIM LIEN LAM TRADING AS FAIRY PATISSERIE (SHOP 26) Twelfth Group Member THIONG AIK GAN AND BEE TIN TAN TRADING AS TEONGBEE MALAYSIAN FOODS (SHOP 42) Thirteenth Group Member SHIRLEY JANE FRUDE CEASED TRADING AS AZALEA FLORIST AND GIFT BASKET (SHOP 9) Fourteenth Group Member |
| AND: | EASTERN PROSPERITY INVESTMENTS PTE LTD (ACN 065 747 006) FIRST RESPONDENT DBF PROPERTY HOLDINGS PTY LTD (ACN 082 702 103) AS TRUSTEE FOR THE FREARSON FAMILY TRUST SECOND RESPONDENT |
JUDGE: | FRENCH J |
| DATE OF ORDER: | 22 NOVEMBER 2001 |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. The motion be dismissed.
2. The applicant pay the first respondent's costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| WESTERN AUSTRALIA DISTRICT REGISTRY | W243 OF 2000 |
| BETWEEN: | DONALD COLIN MCINTYRE (FOR AND ON BEHALF OF HIMSELF AND PATRICIA ANN MCINTYRE AND AS A REPRESENTATIVE OF THE GROUP MEMBERS REFERRED TO IN THE APPLICATION) APPLICANT DONALD COLIN MCINTYRE AND PATRICIA ANN MCINTYRE TRADING AS VICTORIA PARK TRAVELWORLD (SHOP 24) First Group Member PAUL STANLEY SCRUTTON AND BEVERLEY MAUREEN SCRUTTON TRADING AS PHOTOMAT VICTORIA PARK (SHOP 20) Second Group Member DENNIS BEAUMONT AS TRUSTEE FOR THE BEAUMONT FAMILY TRUST TRADING AS INNERSPIN COMPACT DISC S (SHOP 8) Third Group Member KERRY GEORGE AND FREDERICK WILLIAM GEORGE TRADING AS THE HEART COFFEE LOUNGE (SHOP 21) Fourth Group Member PHIMCHAI SMITH TRADING AS PHUKET THAI RESTAURANT (SHOP 44) Fifth Group Member KENNETH JECKS AND IRENE FUSSELL TRADING AS PLAYFUL PETS (SHOP 31) Sixth Group Member ARMIN PODGORNY AND SABINA PODGORNY TRADING AS GOURMET AVIGNON (SHOP 33) Seventh Group Member DAVID THAMBIPILLAI TRUSTEE FOR THE NEW DAY TRUST TRADING AS CURRY BOWL INDIAN TAKEAWAY (SHOP 45) Eighth Group Member BRENDAN REIDY-CROFT CEASED TRADING AS ZIPPY MULTI SERVICES (SHOP 47) Ninth Group Member MILAN SIMIC AND ANNA SIMIC TRADING AS MARTINS SKEWERS (SHOP 10) Tenth Group Member ALLAN AND HELEN LAWRENCE CEASED TRADING AS HAVA LOOK DISCOUNTS (SHOP 23) Eleventh Group Member KIM LIEN LAM TRADING AS FAIRY PATISSERIE (SHOP 26) Twelfth Group Member THIONG AIK GAN AND BEE TIN TAN TRADING AS TEONGBEE MALAYSIAN FOODS (SHOP 42) Thirteenth Group Member SHIRLEY JANE FRUDE CEASED TRADING AS AZALEA FLORIST AND GIFT BASKET (SHOP 9) Fourteenth Group Member |
| AND: | EASTERN PROSPERITY INVESTMENTS PTE LTD (ACN 065 747 006) FIRST RESPONDENT DBF PROPERTY HOLDINGS PTY LTD (ACN 082 702 103) AS TRUSTEE FOR THE FREARSON FAMILY TRUST SECOND RESPONDENT |
| JUDGE: | FRENCH J |
| DATE: | 22 NOVEMBER 2001 |
| PLACE: | PERTH |
Procedural History
1 These proceedings are brought by David McIntyre as a representative party under Pt IVA of the Federal Court of Australia Act 1976 (Cth). The application, which was filed on 22 December 2000, names as group members the proprietors of various businesses who are or were tenants of the Heart of the Park Shopping Centre located at 366 Albany Highway, Victoria Park. The first respondent is Eastern Prosperity Investments Pte Ltd, a company incorporated in Singapore which is the owner of the land upon which the shopping centre stands. The second respondent, DBF Property Holdings Pty Ltd, is incorporated in Western Australia and at all material times is said to have managed the shopping centre on behalf of Eastern Prosperity.
2 The statement of claim filed by Mr McIntyre in person occupies some 221 pages. It contains numerous allegations of misrepresentation and broken promises on the part of the respondents. The relief claimed is damages under s 82 of the Trade Practices Act1974 (Cth) and other orders under s 87 of the Act.
3 The questions of law or fact said to be common to the claims of the group members are:
"(a) whether the first and second respondents by itself, its officers, servants or agents in making the representations pleaded in the Statement of Claim to the group members engaged in trade or commerce within the meaning of s 52 of the Act;(b) whether the representations pleaded in the Statement of Claim as having been made to the group members to the effect that the shopping centre would be refurbished and renovations undertaken was misleading and deceptive or was likely to mislead or deceive within the meaning of s 52 of the Act;
(c) whether the representations pleaded in the Statement of Claim as having been made to the group members to the effect that the shopping centre would be refurbished and renovations undertaken was unconscionable conduct in business transactions within the meaning of s 51AC of the Act."
A notice of motion was filed by the applicant on 22 December 2000 seeking an order dispensing with the requirement that the applicant give notice of proceedings under s 33J of the Federal Court Act.
4 Directions were made on 6 February for the parties to attend before a Registrar for a conference under O 10 r 1(2)(h) by no later than 6 March 2001. The directions hearing and the notice of motion were adjourned to 9 March 2001. The conference was adjourned to 19 March and the directions hearing adjourned by consent to 29 March. The conference was further adjourned to 27 March and on that date further adjourned to a date to be fixed.
5 In the event, at a directions hearing on 11 April 2001, the Registrar directed that any application to strike out the substantive application and the statement of claim be filed and served by 25 May and the time for filing and serving any defences be extended until a date thereafter. The directions hearing was then adjourned to 30 May. On 25 May, the second respondent filed a motion to strike out the statement of claim and, alternatively, a number of paragraphs thereof. On 30 May, the Registrar adjourned that motion and the second respondent's motion and the directions hearing to 3 July. On 21 June, the second respondent filed a motion for a mareva injunction against the first respondent. On 25 June, orders were made restraining the first respondent from transferring the proceeds of any sale or mortgage of the land outside Australia. The order was made operative until 27 June. On that day it was extended until trial or further order.
6 On 3 July, directions were made by the Registrar that any application to amend the statement of claim was to be filed and served by 24 July and the directions hearing was adjourned to 1 August. On 20 July, the applicant filed a motion for an extension of time within which to amend its statement of claim and for an order that the solicitor acting for the first respondent provide an undertaking to the Court that all documentation of the first respondent would be preserved pending further order of the Court. In an affidavit filed on 20 July 2001, the applicant made reference, inter alia, to the deregistration of the first respondent in Australia. He referred to a conversation with an officer of the first respondent, Leok Meow Ang, who said, among other things, that it was likely to remain deregistered. On 1 August 2001, directions were made by the Registrar extending the time for compliance with the previous order for amendments to the statement of claim and adjourning the directions hearing to 11 September.
7 On 29 August, the applicant filed a motion seeking an order for discovery against the directors of the first respondent and an injunction restraining it from dealing with a term deposit in the sum of $2.3 million said to be held at the Colonial State Bank. The applicant's affidavit in support of that motion exhibited, inter alia, an extract from the records of the Australian Securities and Investments Commission ("ASIC") which showed that the first respondent had been deregistered on 28 February 2001.
8 On 11 September, the matter came before me. The next directions hearing was set down for 5 November. The first respondent was to file any motion to strike out the statement of claim on or before 29 October together with an outline of submissions in support of such motion. The strike out motion was to be returnable on 5 November at 10.15am together with the second respondent's strike out motion which had been filed on 25 May. Any proposed amended statement of claim was to be considered on 5 November provided it had been filed and served by 22 October. In the meantime, on 21 September, the applicant filed a motion returnable on 27 September. That is the motion which is the subject of this ruling.
The Applicant's Motion
9 The applicant's motion filed on 21 September sought the following orders:
"a) the First Respondent and its directors, agents and solicitors be injuncted from further proceeding with any litigation in any state or federal court until it is re-registered;b) Ilberys Lawyers be restrained from further acting or purporting to act on behalf of the First Respondent herein;
c) a declaration do issue forth that the issues of summonses in the local court in proceedings 18880 to 18887 and 18889 by Ilberys Lawyers be declared to be void in breach of section 601CD of the Corporations Law;
d) the Applicant's costs be paid by Ilberys Lawyers personally;
e) any or all of the Applicant's costs that have been incurred through the participation of Ilberys Lawyers in these proceedings subsequent to the deregistration of the First Respondent on 28 February 2001, be declared to have been unnecessarily incurred;
f) the Applicant be entitled forthwith to an order that the costs referred to against Ilberys Lawyers be paid on a full indemnity scale;
g) The Australian Securities and Investments Commission be joined as a party to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;
h) that a declaration do issue forth that the property of the First Respondent including the land and buildings comprising the Heart of the Park Shopping Centre and the term deposit of $2.3 million or such monies as may be standing to the credit of the First Respondent with the Colonial state Bank pursuant to the charge in favour of Perpetual Trustees Victoria Limited vests in ASIC pursuant to section 601AD(1) and (2) of the Corporations Act 2001;
i) Ilberys Lawyers do forthwith hand over all documentation and other property of the First Respondent to the Australian Securities and Investment Commission;
j) such further or other orders as the Court may deem appropriate;"
The Deregistration and Re-registration of the First Respondent
10 In an affidavit in support of his motion, the applicant said that at an earlier directions hearing on 11 September 2001, counsel for the first respondent had informed the Court that the company had been re-registered. However on 13 September 2001, the applicant had obtained an extract of company records relating to Eastern Prosperity Investments Pte Ltd (ARBN 065 747 006). That showed its status as deregistered. However, a contemporaneous search for Eastern Prosperity Investments Pte Ltd (ARBN 097 952 193) showed that company to be currently registered as from 29 August 2001. What had in fact happened, as appears from an affidavit by an officer of ASIC, was that Eastern Prosperity Investments (ARBN 065 747 006) had been struck off on 28 February 2001. It was re-registered with a new ARBN number on 29 August 2001. As Mr Rassool pointed out in his submissions, it is the same company albeit it was given a new number.
11 In his submissions, Mr Rassool pointed out that when an application for registration for a foreign company is in the prescribed form and the documents set out in s 601CE of the Corporations Act are submitted to ASIC, ASIC grants the application and allots an ARBN number. In the case of the registration of Eastern Prosperity on 29 August 2001, the documents prescribed under the section were submitted and ASIC was bound to register it. The first respondent is a company incorporated in Singapore and is a foreign company in Australia. It was struck off on 28 February 2001 under s 601CL of the Corporations Act. The consequence of the striking off was that it ceased to be registered. This procedure was to be contrasted with that of the deregistration of a company under Chapter 5A of the Corporations Act where the company ceases to exist by virtue of s 601AD of the Act. Following dissolution or deregistration of a registrable body incorporated outside Australia, its property situated in Australia, vests in the ASIC under s 588 of the Corporations Act. By reason of the limited definition of "deregistered" under s 9 this provision does not apply in this case. At no time did the first respondent cease to exist. It was, and still is, a properly incorporated company in Singapore. It was not dissolved by operation of s 601CL on deregistration. As Mr Rassool said, for the first respondent to cease to exist as an entity, there would need to be some form of application or procedure carried out in Singapore in accordance with the law of that country.
12 As I foreshadowed in comments to the applicant in the course of argument on this motion, the motion is misconceived. It will be dismissed. The applicant will be ordered to pay the first respondent's costs of the motion. The first respondent seeks its costs on an indemnity basis. A letter was written to the applicant on 23 September by the solicitors for Eastern Prosperity pointing out that the motion was fundamentally misconceived. The solicitors explained that their client's existence did not depend upon its recognition or registration in Australia. The fact that it had been given a new registration number had no effect upon its legal standing.
13 The applicant is hampered by his lack of legal representation. This means he is at risk of continued difficulty in the progress of this application arising from a misunderstanding of the law as has occurred in this case. In the circumstances, however, I am not satisfied that he acted other than genuinely and that this is a case in which, for any other reason, I should order indemnity costs. Normal party and party costs will apply. ASIC does not seek an order for costs in respect of this motion.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . |
Associate:
Dated: November 2001
#DATE 22:11:2001
| Mr DC McIntyre appeared on his own behalf | |
| Counsel for the Respondent: | Ms AJ Crichton-Browne |
| Solicitor for the Respondent: Counsel for the Australian Securities and Investments Commission: | Ilbery Barblett Mr RGB Rassool |
| Date of Hearing: | 27 September 2001 |
| Date of Ruling: | 22 November 2001 |
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