Plaspak P/L v Monterro P/L

[1994] FCA 709

709       =iLt

JUDGMENT No. ...,.,., ,.J --

IN THE FEDERAL COURT OF AUSlXALJA

NEW SOUTH WALES DEIWCT REGISTRY	No. NG 3306 oil993
GENERAL DIVISION

BETWEEN :	PLASPAK PTY m
(ACN 001 743 559) Applicant
AND :	MONTERRO PTY LJMlTED (ACN 003 623 596) Respondent
IN THE MATER OF MONTERRO PTY LTD (ACN 003 623 596)

CORAM :	TAMBERLIN J
PLACE :	SYDNEY
DATED :	14 SEPTEMBER 1994

REASONS FOR JUDGMENT

In this matter by reason of section 459R(3) of the Corporations Law, the application

for winding up in insolvency has not been determined wthin six months after the

making of the application. Accordingly, by operation of sub-section (3) the

application is dismissed.

against it in this matter. The first objection to an award of costs is based on an	argument that the soliator appearing in these proceedings for the respondent has not
been properly retained or has not been retained at all and accordingly there has been
no appearance by the respondent company so as to enable it to claim costs in these proceedings. No evidence of an afbnatlve nature is brought forward in support of
this challenge to the retainer but it a said that a challenge has been made and, it having been made, the onus is on the respondent's solicitor to establish the existence
of a retainer.
The matter came on before Sheppard J in February 1994 and there was no challenge to the retainer or to the appearance of Mr Nazarian on that occasion. An affldavlt was fled on 11 February 1994 by Mr Vazrick Hwanessian, who states that he is a director of the respondent company and is a certified practising accountant. He
annexes a true copy of the financial statements for Monterro Pty Limited for the financial years ending 30 June 1991, 1992 and 1993. The latest of these financial
statements states that the d~rectors of the company are Vaziick Hovanessian and Paula Margaret Hovanessian. It appears that a Mr Tobin was previously a director of the company but ceased to be a director m 1990 and thls is shown as the result of a company search made in January or February 1994.
Monterro Pty Limited through its director Mr Hovaness~an was aware of the fact that In my view on the balance of probabilities it is more likely than not that the company
Mr Nazarian was acting as solicitor for the company m these proceedings and
continued to permit him to do so. I derive this from the fact that Mr Hovanessian has sworn two affidavits in the proceedings as a dlrector of the respondent company
and that it appears that his wife is also a director of the company. They appear to
be the only directors. In these c~rcumstances, if the company was aware through its
directors, as I think it was, of the proceedings and the fact that Mr Nazarian was
acting in the proceedmgs, I think that on the balance of probabllitles I must find that Mr Nazarian had a retainer from the company. There 1s no a f i a t l v e evidence produced by the applicant to establish the position otherwise.
The second matter which is rehed on by the applicant is an argument to the effect
that there has been no appearance by the respondent company because it has not complied with the provisions of order 71 rule 37(11), which requlres a company intending to appear on the day appomted for dlrectlons or on the hearing of a
winding up application and to oppose the application to file a notice of appearance in accordance with form 79.
Such a notice of appearance has been filed but it did not comply with form 79.
Nevertheless, in view of the fact that a part~al heanng has taken place before
Sheppard J and the fact that it 1s quite clear that the company, from the affidavits
put forward in relation to non-appearance by the respondent company.
filed intends to, or does in fact, oppose the making of a windlng up order in the matter, I consider that there is no substance m thls second argument whch has been
The thud argument advanced in opposltlon to an award of costs in favour of the
respondent was that the six month period explred in April 1994. Accordingly, by
force of section 459R, the application was then dismissed. It is said that because the
respondent must have equally been aware of the dismissal by reason of section 459R(3) at that time, then no further costs after that date should be awarded in favour of the respondent agalnst the applicant.
In my opinion, the simple fact is that, due to the inaction of the applicant in this
matter, the respondent has been unnecessarily put to cost and expense in relation to defending the matter, and accordingly I am of the view that the ordmary rule should
apply, namely, that the costs ought to follow the event. I therefore make an award of costs in favour of the respondent in this proceeding.
In summary, the applicatlon for wmding up of the respondent is dismissed, and I
order that the applicant pay the respondent's costs of this applicatlon.
I certify that this and
the prcading three (3)
p a p arc a-true copy of the Rcasoos for Judgment herein of
hi^ Honour Mr Justia.Tamberlin.

On the hearing before me this afternoon the only outstanding questlon 1s the question

of costs. Prima fac~e it seems to me that if the application has been dismissed, then the costs ought to follow the event and the respondent company ought to get its costs.

However, three objections have been raised by the applicant to an order for costs

Date :	14 September 1994
Counsel for Applicant :	Mr D A Smallbone

Solicitors f o r - ~ ~ ~ l i c a n t : Bryden Doherty Partners

Solicitor for Respondent :	Mr S Nazarian
Date of Hearing :	14 September 1994
Date Judgment Delivered :	14 September 1994