National Australia Bank Ltd v Pracom Investments Pty Ltd
[2002] FCA 463
•5 APRIL 2002
FEDERAL COURT OF AUSTRALIA
National Australia Bank Ltd v Pracom Investments Pty Ltd [2002] FCA 463
CORPORATIONS ACT – extending time within which a notice in respect of a charge is to be lodged
Corporations Act 2001 (Cth) s 266(4)
Hall v The Nominal Defendant (1966) 117 CLR 423 - cited
Sanofi v Parke Davis Pty Ltd (1982) 39 ALR 405 - cited
Sanofi v Parke Davis Pty Ltd (1983) 49 ALR 1 - cited
NATIONAL AUSTRALIA BANK LIMITED v PRACOM INVESTMENTS PTY LTD
V 3077 OF 2001
IN THE MATTER OF PRACOM INVESTMENTS PTY LTD & ORS
APPLICANT: NATIONAL AUSTRALIA BANK LTD
V 3027 OF 2002
JUDGE: MERKEL J
DATE: 5 APRIL 2002
PLACE: MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | V 3077 OF 2001 |
IN THE MATTER OF PRACOM LIMITED (ACN 078 675 153)
BETWEEN: | NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) |
AND: | PRACOM LIMITED (ACN 078 675 153) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION |
JUDGE: | MERKEL J |
DATE OF ORDER: | 5 APRIL 2002 |
WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
The plaintiff has leave to further amend the amended originating process into the form of the proposed further amended originating process, being exhibit “JRS 3” to the affidavit of John Richard Spear, sworn 28 March 2002.
The order made in the proceeding by me on 14 December 2001 be set aside and the following orders be substituted therefor:
(1) the time for the lodgment with the Australian Securities and Investments Commission of the Form 350 concerning charge number 762169 be extended under section 266(4) of the Corporations Act until 12 April 2002;
(2) the lodgment of the Form 350 be accompanied by a copy of this order.
The National Australia Bank pay the taxed costs of the Australian Securities and Investments Commission of and incidental to the proceeding.
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 | V 3027 OF 2002 |
IN THE MATTER OF PRACOM INVESTMENTS PTY LTD (ACN 083 091 016), PHONE RENTALS AUSTRALIA PTY LTD (ACN 050 958 364), PHONE INSTALLATIONS AUSTRALIA PTY LTD (ACN 070 135 545), PHONE SALES AUSTRALIA PTY LTD (ACN 064 820 195), UNIDIAL HOLDINGS PTY LTD (ACN 081 156 041), UNIDIAL PREPAID MOBILE PTY LTD (ACN 077 177 096), UNIDIAL ADMINISTRATION PTY LTD (ACN 081 506 345), PREPAID INTERNET SALES PTY LTD (ACN 081 491 296), UNIDIAL PREPAID COMMUNICATIONS PTY LTD (ACN 081 470 126), PRACOM TEHNICAL SERVICES (ADMINISTRATION) PTY LTD (ACN 088 697 438), UNIDIAL AUSTRALIA PTY LTD (ACN 072 834 827), STEADYCOM LIMITED (ACN 088 323 700), PRACOM TECHNICAL SERVICES PTY LTD (ACN 077 077 670)
BETWEEN: | NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) |
AND: | PRACOM INVESTMENTS PTY LTD PHONE RENTALS AUSTRALIA PTY LTD PHONE INSTALLATIONS AUSTRALIA PTY LTD PHONE SALES AUSTRALIA PTY LTD UNIDIAL HOLDINGS PTY LTD UNIDIAL PREPAID MOBILE PTY LTD UNIDIAL ADMINISTRATION PTY LTD PREPAID INTERNET SALES PTY LTD UNIDIAL PREPAID COMMUNICATIONS PTY LTD PRACOM TECHNICAL SERVICES (ADMINISTRATION) PTY LTD UNIDIAL AUSTRALIA PTY LTD STEADYCOM LIMITED PRACOM TECHNICAL SERVICES PTY LTD AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION |
JUDGE: | MERKEL J |
DATE OF ORDER: | 5 APRIL 2002 |
WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
The plaintiff has leave to amend the originating process into the form of the proposed amended originating process, being exhibit “JRS 1” to the affidavit of John Richard Spear, sworn 27 March 2002.
The time for the lodgment with the Australian Securities and Investments Commission of the Form 350 concerning each of the charges, numbered 762183, 762176, 762179, 762181, 762161, 762162, 762166, 762163, 762165, 762174, 762160, 762168 and 762171, be extended under section 266(4) of the Corporations Act 2001 until 12 April 2002.
The lodgment of the Forms 350 be accompanied by a copy of this order.
The National Australia Bank Ltd pay the taxed costs of the Australian Securities and Investments Commission of and incidental to the proceeding.
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 | V 3077 OF 2001 |
IN THE MATTER OF PRACOM LIMITED (ACN 078 675 153)
BETWEEN: | NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) |
AND: | PRACOM LIMITED (ACN 078 675 153) AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION |
| V 3027 OF 2002 | |
| IN THE MATTER OF PRACOM INVESTMENTS PTY LTD (ACN 083 091 016), PHONE RENTALS AUSTRALIA PTY LTD (ACN 050 958 364), PHONE INSTALLATIONS AUSTRALIA PTY LTD (ACN 070 135 545), PHONE SALES AUSTRALIA PTY LTD (ACN 064 820 195), UNIDIAL HOLDINGS PTY LTD (ACN 081 156 041), UNIDIAL PREPAID MOBILE PTY LTD (ACN 077 177 096), UNIDIAL ADMINISTRATION PTY LTD (ACN 081 506 345), PREPAID INTERNET SALES PTY LTD (ACN 081 491 296), UNIDIAL PREPAID COMMUNICATIONS PTY LTD (ACN 081 470 126), PRACOM TEHNICAL SERVICES (ADMINISTRATION) PTY LTD (ACN 088 697 438), UNIDIAL AUSTRALIA PTY LTD (ACN 072 834 827), STEADYCOM LIMITED (ACN 088 323 700), PRACOM TECHNICAL SERVICES PTY LTD (ACN 077 077 670) | |
AND BETWEEN: | NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) APPLICANT |
AND: | PRACOM INVESTMENTS PTY LTD PHONE RENTALS AUSTRALIA PTY LTD PHONE INSTALLATIONS AUSTRALIA PTY LTD PHONE SALES AUSTRALIA PTY LTD UNIDIAL HOLDINGS PTY LTD UNIDIAL PREPAID MOBILE PTY LTD UNIDIAL ADMINISTRATION PTY LTD PREPAID INTERNET SALES PTY LTD UNIDIAL PREPAID COMMUNICATIONS PTY LTD PRACOM TECHNICAL SERVICES (ADMINISTRATION) PTY LTD UNIDIAL AUSTRALIA PTY LTD STEADYCOM LIMITED PRACOM TECHNICAL SERVICES PTY LTD AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION THIRTEENTH DEFENDANT |
JUDGE: | MERKEL J |
DATE OF ORDER: | 5 APRIL 2002 |
WHERE MADE: | MELBOURNE |
REASONS FOR JUDGMENT
This matter concerns two separate proceedings in the Court. In each of the proceedings, the National Australia Bank Ltd (“the Bank”) is applying under s 266(4) of the Corporations Act 2001 (Cth) (“the Act”) for an extension of time within which a notice in respect of a charge is to be lodged. Section 266(4) confers power on the Court to extend the period within which any such notice is to be lodged if the Court is satisfied that the failure to lodge the notice within the requisite time:
“(a)was accidental or due to inadvertence or some other sufficient cause; or
(b)is not of a nature to prejudice the position of creditors or shareholders.”
There is a third ground, which is:
“that on other grounds, it is just and equitable to grant relief.”
The facts of the present cases are somewhat complex but have been summarised in a document handed up by counsel for the Bank, which I will treat as part of the court file. Counsel has also handed up a document, which I will also treat as part of the court file, which is a consolidated outline of contentions as to why the Bank has satisfied the preconditions for an extension of time.
ASIC, which is represented by its solicitor in the present matters, does not oppose the orders sought. It is satisfied that the orders being sought are not of a nature to prejudice the position of creditors or shareholders.
The Pracom companies, which gave the charges have indicated that they consent to the orders being sought by the Bank.
I am satisfied that the preconditions for the exercise of the Court’s power under section 266(4) have been enlivened. The requirements of subparagraph (a) and (b) both appear to me to have been satisfied by the material before the Court. It is of some significance that the failures to comply with the requirements of the Act in respect of the charges have occurred as a result of internal failures in relation to stamp duty and that, at all material times, the public record has given notice of the charges to the public.
There is a complication in respect of the orders sought in proceeding V 3077 of 2001. The complication arises because the Bank had successfully applied to me on a prior occasion for an extension of time under s 266(4). The order made in that proceeding extending time was made on the basis of essentially the same circumstances that are relied upon today. However, as a result of further inadvertence and misunderstandings as between the Bank and ASIC, the requirements of the Act were not satisfied within the time provided by my order. Thus, the failures that the order was designed to remedy have not, as events have transpired, been remedied.
The Bank relies upon O 35 r 7(2)(f) to submit that I have power to set aside my earlier order, which the Bank is asking me to do, on the basis that the Bank is the party in whose favour the order was made, and it consents to the order being set aside. It does seem to me that the Bank does fall within the terms of the sub-rule, therefore enlivening my power to set aside the earlier order.
It may be that the earlier order might be set aside under O 35 r 7(2)(c) as an interlocutory order as it may not have finally disposed of the rights of the parties. But see Hall v The Nominal Defendant (1966) 117 CLR 423 at 439-440 and 442-445 cf Sanofi v Parke Davis Pty Ltd (1982) 39 ALR 405, and at the final hearing: see (1983) 49 ALR 1 at 11. In view of the conclusion I have reached as to the applicability of O 35 r 7(2)(f) it is unnecessary to consider this issue further.
I am satisfied in all the circumstances that I should accede to the Bank’s submissions that it is just and appropriate that the extensions of time sought be granted. As I have indicated earlier, it does appear that the errors that have occurred have come about as a result of inadvertence. Whilst that inadvertence is not justified, nor is it sought to be excused, it would produce a harsh and unjust result if the Court did not extend time in circumstances where, at all relevant times, the public record has disclosed that the charges have been lodged and the failures that have caused the current problems have been brought about by internal stamp duty and timing problems. Thus, the failures are not of a nature that can prejudice the position of creditors or shareholders.
Accordingly, I propose to make orders in each of the proceedings, extending the time to enable the filing of the further Forms 350 required in order to comply with all relevant statutory requirements. Accordingly, I will make the orders sought by the Bank. In proceeding V 3077 of 2002, I make the following orders.
The plaintiff has leave to further amend the amended originating process into the form of the proposed further amended originating process, being exhibit “JRS 3” to the affidavit of John Richard Spear, sworn 28 March 2002.
The order made in the proceeding by me on 14 December 2001 be set aside and the following orders be substituted therefor:
(1)the time for the lodgment with the Australian Securities and Investments Commission of the Form 350 concerning charge number 762169 be extended under section 266(4) of the Corporations Act until 12 April 2002;
(2)the lodgment of the Form 350 be accompanied by a copy of this order;
The National Australia Bank pay the taxed costs of the Australian Securities and Investments Commission of and incidental to the proceeding.
In proceeding V 3027 of 2002 of the Court I order as follows:
The plaintiff has leave to amend the originating process into the form of the proposed amended originating process, being exhibit “JRS 1” to the affidavit of John Richard Spear, sworn 27 March 2002.
The time for the lodgment with the Australian Securities and Investments Commission of the Form 350 concerning each of the charges, numbered 762183, 762176, 762179, 762181, 762161, 762162, 762166, 762163, 762165, 762174, 762160, 762168 and 762171, be extended under section 266(4) of the Corporations Act 2001 until 12 April 2002.
The lodgment of the Forms 350 be accompanied by a copy of this order.
The National Australia Bank Ltd pay the taxed costs of the Australian Securities and Investments Commission of and incidental to the proceeding.
| I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. |
Associate:
Dated: 15 April 2002
Counsel for the Applicant: | Mr T Di Lallo |
Solicitor for the Applicant: | Russell Kennedy |
Counsel for the Respondent: | Mr BJ Faigen |
Solicitor for the Respondent: | John Mazurkiewicz |
Date of Hearing: | 5 April 2002 |
Date of Judgment: | 5 April 2002 |
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