Pelechowski v The Registrar, Court of Appeal

The appeal concerned the Registrar's refusal to register a company name, "Pelechowski Pty Ltd", on the grounds that it was identical or deceptively similar to an existing registered company name, "Pelechowski & Sons Pty Ltd". The applicant, Mr Pelechowski, sought to register the name for his own company, arguing that he was the sole director and shareholder of both entities and that the similarity was therefore not misleading. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the Registrar had erred in refusing to register the proposed company name. This required the Court to consider the proper interpretation and application of the Corporations Act 2001 (Cth) provisions relating to the registration of company names, specifically the prohibition against registering names that are identical or deceptively similar to existing names. The Court also had to determine whether the applicant's proposed use of the name, in circumstances where he controlled both companies, could overcome the statutory prohibition.

The Court of Appeal held that the Registrar's decision was correct. The judges reasoned that the statutory prohibition against registering identical or deceptively similar names was absolute and did not contain an exception for situations where the applicant controlled both the proposed and existing company. The purpose of the prohibition was to prevent confusion in the marketplace, and the applicant's control over both entities did not negate the potential for confusion by third parties. The Court emphasised that the test for deceptive similarity was objective and focused on the likelihood of confusion among the public, irrespective of the applicant's internal arrangements.

Consequently, the appeal was dismissed.