NKMH Holdings Pty Ltd v Hathway

[2021] FCA 1549

FEDERAL COURT OF AUSTRALIA

NKMH Holdings Pty Ltd v Hathway [2021] FCA 1549

Appeal from:	Hathway, in the matter of Stacey Apartments Pty Ltd (in liq) v Southern Cross Estate Developers Pty Ltd (deregistered) [2019] FCA 1218
File number:	NSD 1391 of 2019
Judgment of:	BESANKO J
Date of judgment:	13 December 2021
Legislation:	Federal Court Rules 2011 (Cth) r 36.11
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	4
Date of hearing:	Determined on the papers
Counsel for the Appellants:	The Appellants did not appear
Counsel for the Respondents:	The Respondents did not appear

ORDERS

NSD 1391 of 2019

BETWEEN:

NKMH HOLDINGS PTY LTD ACN 102 384 314

First Appellant

MERHIS MANAGEMENT GROUP PTY LTD (ACN 602 122 716)

Second Appellant

PAYROLL MANAGEMENT PTY LTD (ACN 122 191 422)

Third Appellant

AND:

STEPHEN HATHWAY

First Respondent

STACEY APARTMENTS PTY LTD (IN LIQUIDATION) ACN 600 480 699

Second Respondent

ARGYLE BUILDERS PTY LTD (IN LIQUIDATION) ACN 119 092 045 (FORMERLY MERHIS CONSTRUCTIONS PTY LTD) (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	13 DECEMBER 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed for want of prosecution and for failure to comply with a direction of the Court under r 36.11(2)(h) and (j) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

BESANKO J:

1. This appeal has been referred to me for consideration of its disposition in the following circumstances.  The Notice of appeal dated 26 August 2019 was filed on 30 August 2019.  The appellants appeal against certain orders made by a judge of the Court on 29 July 2019 (Hathway, in the matter of Stacey Apartments Pty Ltd (in liq) v Southern Cross Estate Developers Pty Ltd (deregistered) [2019] FCA 1218). There are 17 grounds in the Notice of appeal.

2. On 19 July 2021, Registrar Van Le made the following orders:

   1.By 30 July 2021, the appellants must file an affidavit addressing the following:

   a.   whether the respondents have been served with the notice of appeal;

   b.   the current status of the matter; and

   c.   the reason that the appellants consider it appropriate not to respond to correspondence issued by the Court.

   2.By 30 July 2021, Mr Kassem of Future Legals must advise the Court the reason that he has not filed a notice of appearance in the matter, despite the matters set out in paragraphs 4 and 7 above.

   3.In the event of non-compliance with Orders 1 and 2, the matter will be referred to a judge to consider whether the appeal should be dismissed for want of prosecution or for failure to comply with a direction of the Court under r 36.11(2)(h) and (j) of the Federal Court Rules 2011 (Cth).

3. The notes preceding the orders set out clearly the procedural steps taken or not taken, as the case may be, in the appeal.  They are as follows:

   1.On 26 August 2019, the appellants filed the notice of appeal in this proceeding.

   2.In November 2019, the Court was informed that the matter had settled and that further documentation would be sent to the Court shortly.  On that basis, the matter was not listed in the February 2020 Full Court and Appellate sitting period.

   3.In May 2020, the Court attempted to contact the appellants to ascertain the status of the matter, noting that the respondents had not filed a notice of address for service.

   4.On 21 May 2020, the Court was informed by Gibson Howlin Lawyers, then solicitor for the appellants, that their instructions had been withdrawn and that Mr Steve Kassem of Future Legals was instructed by the appellants to file a Notice of Acting – Change of Lawyer.

   5.On 22 May 2020, Gibson Howling Lawyers filed Notices of Termination of Lawyer’s Retainer.

   6.On 29 April 2021, the Court again attempted to contact the appellants via email to ascertain the status of the matter.  No response was received despite the Court receiving read receipts from the email addresses of the company directors of the appellants, and Mr Kassem of Future Legals being copied into that correspondence.

   7.On 7 June 2021, Registrar Van Le contacted Mr Kassem and was informed that a deed had been signed between the parties and that a notice of appearance and notice of discontinuance will be filed in the matter by 11 June 2021.

   8.No notice of appearance or notice of discontinuance has been filed.  The Court has not received any correspondence from the appellants and it is unclear whether the respondents have been served.

   9.These orders give the appellants and Mr Kassem of Future Legals a final opportunity to address the Court before orders are made that the appeal be dismissed for want of prosecution, with associated costs orders.

4. Rule 36.11 of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court, constituted by a single judge, for directions in relation to the management, conduct and hearing of an appeal and those directions may include dismissing an appeal for want of prosecution (r 36.11(2)(h)) and/or making an order that an appeal to the Court be dismissed for failure to comply with a direction of the Court (r 36.11(2)(j)(i)). Having regard to the matters noted in Registrar Van Le’s orders and the circumstance that neither order in paragraphs 1 or 2 has been complied with and no party has contacted the Court to ask for any variation to those orders or any further indulgence, the powers in r 36.11(2)(h) and (j)(i) are engaged and appropriate orders should be made. I will make an order that the appeal be dismissed for want of prosecution and for failure to comply with a direction of the Court under r 36.11(2)(h) and (j) of the Federal Court Rules 2011 (Cth).

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Associate:       

Dated:       13 December 2021

SCHEDULE OF PARTIES

NSD 1391 of 2019
Respondents
Fourth Respondent:	SOUTHERN CROSS RIGGING & CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 077 596 108
Fifth Respondent:	LIVERPOOL BUSINESS ESTATE PTY LTD (IN LIQUIDATION) ACN 126 846 634
Sixth Respondent:	PHILIP HOSKING
Seventh Respondent:	SOUTHERN CROSS ESTATE DEVELOPERS PTY LTD (DEREGISTERED)
Eighth Respondent:	DAVID IANNUZZI
Ninth Respondent:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION