Re Cheshire Securities Pty Ltd
[2003] WASC 132
•6 JUNE 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE CHESHIRE SECURITIES PTY LTD; EX PARTE CHONG [2003] WASC 132
CORAM: MASTER NEWNES
HEARD: 6 JUNE 2003
DELIVERED : 6 JUNE 2003
FILE NO/S: COR 81 of 2002
MATTER :Section 574(2) of the Corporations Law
CHESHIRE SECURITIES PTY LTD (ACN 009 264 082)
EX PARTE
KELVIN CHI HOONG CHONG
Applicant
Catchwords:
Corporations Law - Application to reinstate company - Res judicata - Turns on own facts
Legislation:
Corporations Act, s 574(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Mr P Fermanis : In person
ASIC: Ms M E McDiarmid
Solicitors:
Applicant: In person
Mr P Fermanis : In person
ASIC: Australian Securities & Investment Commission
Case(s) referred to in judgment(s):
Cheshire Holdings Pty Ltd v Yap Cheng See, unreported; SCt of WA; Library No 950634; 22 November 1995
Chong v Cheshire Securities Pty Ltd [2001] WASC 266
Yap Cheng See v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998
Yap Cheng See v Cheshire Holdings Pty Ltd, unreported; SCt of WA; Library No 970334; 11 July 1997
Yap v Esanda Finance Corporation Ltd, unreported; FCt SCt of WA; Library No 980182; 9 April 1998
Case(s) also cited:
Arcola Pty Ltd; Ex parte Yap Chen See, unreported; SCt of WA; Library No 950631; 22 November 1995
Australian Competition & Consumer Commission v Australian Securities & Investments Commission (2000) 34 ACSR 232
Civil & Civic Pty Ltd v R W Bass Pty Ltd (1996) 20 ACSR 16
Fermanis v Cheshire Holdings Pty Ltd, unreported; SCt of WA; Library No 7739; 12 July 1989
Holli Managed Investments Pty Ltd v Australian Securities Commission (1998) 30 ACSR 113
In the matter of Peter Conyers Holdings Pty Ltd (In Liq) (1996) 14 ACLC 1835
Payne v Wizard Industries Pty Ltd (1997) 24 ACSR 277
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Great Eastern Cleaning Services Pty Ltd (No 2) (1978) 3 ACLR 886
Re Immunosearch Pty Ltd (1990) 2 ACSR 455
Re Stolidus Nominees Pty Ltd (1986) 5 ACLC 380
Yap & Anor v Australian Securities & Investments Commission [2000] WASC 159
Yap v Granich & Associates [2002] WASCA 330
Yap v Granich & Associates, unreported; FCt SCt of WA; Library No 970487; 21 July 1997
Yap v P Vivante & Co Pty Ltd, unreported; SCt of WA; Library No 970215; 8 May 1997
MASTER NEWNES: This is an application to reinstate a company, Cheshire Securities Pty Ltd, to the companies register. It is supported by an affidavit sworn on 27 May 2003 by Kelvin Chong Chi Hoong ("Mr Chong"), and a further affidavit sworn on 27 May 2003 by Yap Cheng See ("Mrs Yap"). Mr Chong is Mrs Yap's son.
The applicant seeks to reinstate the company so that it may be joined as the fifth defendant to an action in this Court, CIV 1879 of 1989, to pursue claims for damages it is alleged to have against Esanda Ltd. The reinstatement application is opposed by Esanda and by the Australian Securities and Investments Commission.
Cheshire Securities was incorporated on 18 August 1987. It was previously known as Cheshire Holdings Pty Ltd. On 5 September 1990, the company was wound up in insolvency by an order of this Court on a creditor's petition. That was a petition of Mr Fermanis who had an outstanding debt of some $35,000. I should mention that the applicant denies the debt and says the statutory demand on which the petition relied, and the petition itself, were not correctly served and the company should not have been wound up and consequently should not have been deregistered.
In any event, on 5 September 1990 Mr Ross Norgard was appointed as liquidator of the company. On 9 January 1991, Mr Norgard reported to ASIC that the company had no assets to be realised and it was fully wound up. He requested that it be deregistered. That deregistration occurred on 13 April 1992.
On 7 February 2000, the company was administratively reinstated to the register. On 28 March 2000, Mr Norgard wrote to ASIC saying that he no longer acted as liquidator. On 7 April 2000, ASIC wrote to Mr Chong, the applicant for reinstatement on that occasion, advising that it intended to deregister the company again and set out the reasons for that. The company was duly deregistered on 20 June 2000.
The present application is one in a number of applications which have been made to this Court to reinstate the company to the register. It seems the first application was brought in 1995 by Mrs Yap for the purposes of enabling the company to pursue a claim against Esanda. That claim was, in essence, the same claim as is relied upon in the present application.
In the 1995 application, Steytler J considered the application on the assumption that the company had a claim against Esanda. His Honour found first, that if the company was restored to the register, it would not be able to discharge its existing liabilities, which would be restored by reinstatement, and, secondly, it would not be capable of pursuing the claim against Esanda because it had no funds to do so. Moreover, the liquidator had indicated that he was no longer prepared to act as liquidator and no‑one else had been put up who was prepared to take the claim against Esanda. The application to reinstate the company was dismissed by Steytler J on 22 November 1995: Cheshire Holdings Pty Ltd v Yap Cheng See, unreported; SCt of WA; Library No 950634; 22 November 1995.
Mrs Yap appealed to the Full Court against that decision. Between lodging that appeal and its determination, Mrs Yap made a fresh application, in 1997, to reinstate the company. The application was for the same purpose of pursuing the alleged claim against Esanda. That application was dismissed by Master Sanderson on 11 July 1997 on the basis that it was simply an attempt to relitigate the application which had been dismissed by Steytler J and it was res judicata: Yap Cheng See v Cheshire Holdings Pty Ltd, unreported; SCt of WA; Library No 970334; 11 July 1997.
In February 1998, the Full Court heard an application to dismiss Mrs Yap's appeal against the decision of Steytler J for want of prosecution. On 9 April 1998, the Full Court ordered that the appeal be struck out: Yap Cheng See v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998. In doing so, the Full Court considered the merits of the appeal and concluded that the appeal had no reasonable prospects of success.
However, Mrs Yap was not deterred. On 23 July 1998, Mrs Yap brought another application to reinstate the company. That application was dismissed by Master Sanderson on 19 August 1998.
It appears that Mrs Yap then retired from the forefront of the fray and the present applicant, Mr Chong, brought a fresh application in August 2001. That application was dismissed by Master Bredmeyer on 4 October 2001: Chong v Cheshire Securities Pty Ltd [2001] WASC 266.
The present application has now been brought by Mr Chong. In my view, it is unnecessary to canvass in any detail the affidavits filed in support of this application. What emerges, in the end, is that this application rests in all material respects on the same basis as its failed predecessors. I should add that it is also evident that, although the application has been brought by Mr Chong, Mrs Yap appears to be very much involved in it and actively assisted Mr Chong, who appeared in person during the course of the hearing of this application.
I do not, for present purposes, propose to detail the allegations against Esanda or the claim which it is said that Cheshire Securities has against it. They are sufficiently referred to in the respective reasons for judgment of Steytler J and the Full Court, to which I have referred.
I should note, however, that an action by Mrs Yap against Esanda, apparently arising out of the same facts, was dismissed by the District Court some years ago and Mrs Yap's appeal against that decision was struck out by the Full Court on 9 April 1998: Yap v Esanda Finance Corporation Ltd, unreported; FCt SCt of WA; Library No 980182; 9 April 1998.
Mrs Yap's claims against other parties referred to in her affidavit which has been filed in this application, namely, Vivante and Granich and Associates, were apparently also dismissed some years ago.
Allegations have also been made against Mr Fermanis in respect of the winding‑up petition which led to the liquidation of the company and an action in the District Court by Mr Fermanis against the company in which he obtained judgment. Those claims have apparently also been heard and determined.
The details of those matters are set out in the judgment of Master Bredmeyer in Chong v Cheshire Securities (supra). That judgment also contains a history of the applications to reinstate the company up to that point.
I should also mention that CIV 1879 of 1989, to which the applicant seeks to join the company as the fifth defendant, appears to have been resolved many years ago as a result of orders made in the District Court by Judge Charters on 8 December 1989 in a related action, Sin v Arcola & Ors, which is District Court number 2235 of 1989. At the least, it is clear that no steps have been taken in the prosecution of CIV 1879 of 1989 for some 13 years.
In any event, by whatever means the alleged claim against Esanda might be sought to be pursued if the company were to be reinstated, in my view no basis has been put forward which would justify an order reinstating the company to the register.
The circumstances have not materially changed since the first application for reinstatement was brought in 1995 by Mrs Yap and that application, as I have said, was determined adversely to her by Steytler J.
The reasons which his Honour gave for dismissing that application are, in my view, apposite to the current application. On the evidence, if reinstated, the company would be, and would continue to be, insolvent. There is no evidence that it has any funds to pursue the litigation which it seeks to pursue against Esanda. There is no evidence of any liquidator who would accept an appointment as such to the company. In all respects, as I say, the position remains unchanged from that in 1995.
Moreover, the matter, in my view, is now the subject of an issue estoppel and is res judicata. It has been determined by this Court on a number of successive applications, on each occasion adverse to the applicant. Indeed, in my view, it has reached the point where the continuation of such applications is oppressive to the other parties concerned and is an abuse of the process of this Court.
In the circumstances, it is unnecessary to determine the other point raised by ASIC; namely, the standing of Mr Chong to bring this application. Were it necessary to do so, I would have found that Mr Chong was not a person aggrieved within s 601AH(1)(a) of the Corporations Act and did not in fact have standing. But, for the reasons I have already given, it is unnecessary to determine that point in order to dispose of this application.
In my view, the application should be dismissed.