Re Cheshire Securities Pty Ltd - [2003] WASC 132

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Cheshire Securities Pty Ltd

Details

AGLC: Re Cheshire Securities Pty Ltd [2003] WASC 132
Case: [2003] WASC 132
Decision Date: 6 JUNE 2003

CaseChat Overview and Summary

In the case of Re Cheshire Securities Pty Ltd, the applicant, Mr Chong, sought to reinstate the company Cheshire Securities Pty Ltd to the register of companies. This application was opposed by the Australian Securities and Investments Commission (ASIC) and the liquidator of the company, Mr Fermanis. The matter was heard in the Federal Court of Australia. The central dispute was whether the company should be reinstated, given its history of insolvency and prior failed attempts to achieve reinstatement.

The primary legal issue before the court was whether the company should be reinstated to the register, considering its insolvent status and the absence of any change in circumstances since the previous applications. The court also had to consider whether the matter was res judicata or if the applicant had standing to bring the application. The court's reasoning focused on the unchanged circumstances since the first application in 1995, which was dismissed by Steytler J. It found that the company remained insolvent with no funds to pursue litigation and no liquidator willing to accept appointment. Additionally, the court found that the matter was now subject to issue estoppel and res judicata, having been determined adversely to the applicant on multiple occasions. The court concluded that continuing with such applications was oppressive and an abuse of process.

The court dismissed the application, finding that no basis existed to justify reinstating the company. It did not consider it necessary to determine whether Mr Chong had standing to bring the application, as the matter was already concluded by prior determinations. The court found that the continuation of such applications was an abuse of process and oppressive to the other parties involved. The court did not make any further orders beyond dismissing the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.