Mundt, C. v Australian Securities Commission

[1994] FCA 963

JUDGMENT No. ,,-...,.J ,t, 963 9

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) Bo WG 3580 of 1994

GENERAL DIVISION )

IN THE MATTER OF

AUSTRALIAN COMPANY NUMBER: 010 358 853

COLIB MWDT

Applicant

AND

AUSTRALIAN SECURITIES COHMISSION

Respondent

CORAM : LINDGREN J

PLACE : SYDNEY

DATE : 30 NOVEMBER 1994 13 DEC 1994

1. ORDERS pursuant to s 574 (3) of the Ur~orations Law that the Registration of Northline Express Pty Limited (in Liquidation) be reinstated.

2. ORDERS pursuant to s 4718 of the -ions Law that Colin Mundt have leave to proceed with proceedings No 13979 of 1988 in the Common Law Division of the Supreme Court of New South Wales against Northline Express Pty Limited (in Liquidation) subject to the condition that he shall not enforce any Judgment or Order against Northline Express Pty Limited (in Liquidation) without leave of a "Court" as defined in Section 9 of the Corporations Law.

3. ORDERS pursuant to s 473 (1) of the Cor~orations Law that

Desmond William Knight be removed as liquidator of

Northline Express Pty Limited (in Liquidation).

4. ORDERS pursuant to s 502 of the Cor~orations Law that Mr

T J Schmierer of Knights, Accountants and business

Advisers, Banking Annex, 5th Floor, Central Plaza One, 345 Queen Street, Brisbane be appointed as liquidator of Northline Express Pty Limited (in Liquidation).

WXE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 3580 of 1994

GENERAL DIVISION )

IN THE MATTER OF IPORTIILI#ES PTY LIMITED

AUSTRALIAN COMPANY NUMBER: 010 358 853

COLIN MUMDT

Applicant

AUSTRALIAN SECURITIES COMMISSION

Respondent

CORAM : LINDGREN J

PLACE : SYDNEY

DATE : 30 NOVEMBER 1994

REASONS FOR JUDGMENT

In this matter an application was made ex parte, by written application dated 10 November 1994, by Colin Mundt ("Mr Mundt") for, in effect, the re-registration of the company Northline Express Pty Limited ("the Company") and other relief directed to enable him to pursue currently pending proceedings against the Company. These ex tempore reasons do not purport to cover the whole history of the matter, or to express as fully as might be desirable, all of the considerations which have led me to think that I should exercise my discretion in favour of Mr Mundt.

Mr Mundt is the plaintiff in proceedings No 13979 of 1988 in the Common Law Division of the Supreme Court of New South

Wales (the "Supreme Court proceedings" ) which are to be heard on 12 December 1994, in which he seeks to recover damages for personal injuries from, inter alia, the Company as his former employer arising out of an accident at work on 27 January 1988.

The Supreme Court proceedings are set down for an estimated duration of three to four days. In those proceedings, the Company is the first defendant and the other defendant is P L Pickles & CO (Newcastle) Pty Limited. Apparently, only in recent times, have Mr Mundt's solicitors become aware that the Company is in liquidation. The position is, as revealed by company search, that the Company was ordered to be wound up on 17 August 1989.

It seems unnecessary for me to give an account of the details of the accident at work, which is pleaded in the further amended statement of claim. At the time when the Supreme Court proceedings were commenced the Company was not in liquidation. However, from the time when it went into liquidation, of course Mr Mundt was not at liberty to continue his action as against the Company without leave of a court. Being unaware of the liquidation he did not seek leave. The liquidator of the Company was Desmond William Knight of Knights, Accountants and Business Advisers ("the Firm") of Brisbane.

The present application first came before me when I was sitting as duty judge on 18 November. There was a paucity of evidence at that point of time and after some discussion, the matter cam back before me on 21 November. There have been further affidavits filed which cover some of the gaps and provide a basis for the drawing of inferences to fill other gaps in the evidence.

Mr Knight has long since ceased to practise as a liquidator and there is a consent from Mr T J Schmierer of the Firm to be appointed as liquidator of the Company if the Court should make an order restoring the Company to the Register.

When the case first came before me, the Australian Securities Commission ("the Commission") was represented and it was then indicated that the Commission had no objection to the making of an order for reinstatement of registration. Later on the same day Mr Adelstein, solicltor, who represents FA1 Insurance Limited, the insurer of the Company for the purpose of the Supreme Court proceedings, also appeared before me and indicated that his client insurer did indeed indemnify the Company in respect of its potential liability as flrst defendant in the Supreme Court proceedings and had no objection to my granting the relief sought by Mr Mundt.

Having regard, in particular, to the decision of the Full Court of this Court in Acton Enqineerinq v Cam~bell (1991) 6

ACSR 149, I accept that the Court has iurisdiction to make the orders sought notwithstanding the fact that the winding up itself is a proceeding of the Supreme Court of Queensland. I would seriously have considered the desirability of making an order for a transfer of the present application to the Supreme Court of Queensland or to the Supreme Court of New South Wales where the claim for damages is pending, but the little time remaining between now and the hearing may well have created administrative difficulties in that respect. There appears, to my mind, to be little doubt that an order of some kind should be made by some Court to assist Mr Mundt. If the present application were to be transferred to the Supreme Court of New South Wales it is to be expected that it would be heard and determined in the Equity Division of that Court rather than in the Common Law Division. In these circumstances there seems to be no difference of substance between the hearing and determination of the application in this Court and in the Supreme Court of New South Wales.

In all the circumstances I think it appropriate to make the orders sought and I make orders as follows:

(1) An r e pursuant to subsection 574 (3) of the

Cor~orations that the registration of Northline

Express Pty Limited (in Liquidation) be reinstated;

(2) an order under s 4718 of the Cor~orations Law that Colin

Mundt have leave to proceed with proceedings number 13979 of 1988 in the Common Law Division of the Supreme Court of New South Wales against, inter alia, Northline Express Pty Limited (in Liquidation) subject to the condition that he shall not enforce any Judgment or Order obtained in those proceedings as agalnst Northline Express Pty Limited (in Liquidation) without leave of a "Court" as defined in s 9 of the for~orations Law;

(3) an ordec pursuant to sub-section 473 (1) of the for~orations Law removing Desmond William Knight as liquidator of Northline Express Pty Llmited (in Liquidation);

( 4 ) m order pursuant to s 502 of the Corporations Law

appointing Mr T J Schmierer of Knights Accountants,

Banking Annexe, 5th Floor, Central Plaza One, 345 Queen Street, Brisbane, as liquidator of Northline Express Pty Limited (in Liquidation).

I certify that this and the preceding 4 pages

are a true copy of the Reasons for Judgment of

the Honourable Justice Lindgren.

Associate: "49 Dated: 12 December 1994

mEd:

30 November 1994

EIaCS:

Sydney

30 November 1994

appearance^: Mr D R Conti of counsel instructed by McClellands, Solicitors, appeared for the applicant.

Mr P S Jones instructed by Hunt & Hunt appeared for the respondent.