Re Infomedia Pty Limited
[2000] NSWSC 649
•14 June 2000
Reported Decision: [2000] 34 ACSR 682
[2000] 18 ACLC 625
New South Wales
Supreme Court
CITATION: Re Infomedia Pty Limited [2000] NSWSC 649 CURRENT JURISDICTION: Equity Division
Corporations ListFILE NUMBER(S): SC 2770/2000 HEARING DATE(S): 14/06/2000 JUDGMENT DATE: 14 June 2000 PARTIES :
Infomedia Pty Limited (P)JUDGMENT OF: Young J
COUNSEL : N Cotman SC (P) SOLICITORS: Cowley Hearne (P) CATCHWORDS: CORPORATIONS [340]- Extension of time- Change of type- No extensions of one month period under s 164 of Corporations Law possible. LEGISLATION CITED: Corporations Law, ss 164, 1322 CASES CITED: Bay Marine Pty Ltd v Clayton Properties Pty Ltd (1984) 9 ACLR 780
Caratti v Hillman (1973) 4 ACLR 170
David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265
Diversified Mineral Resources NL v Amusmet Investments Pty Ltd (1991) 5 ACSR 465
Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACSR 157
Re Matine Ltd (1998) 28 ACSR 268
Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380
Stitt v Richards (1897) 18 LR NSW (Eq) 1
Village Roadshow Broadcasting Pty Ltd v Austereo Ltd (1997) 24 ACSR 185DECISION: Proceedings dismissed.
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORTIONS LIST
YOUNG J
WEDNESDAY 14 JUNE 2000
2770/2000 - RE INFOMEDIA PTY LIMITED
JUDGMENT
1 HIS HONOUR: This is an application under s 1322 of the Corporations Law to abridge the times set out in s 164 of the Law in respect of a change of type application by the plaintiff.
2 The plaintiff is currently a proprietary company. It wishes to delete the conditions from its constitution that restrict proprietary companies and become a public company. It has, over the last six months, spent a considerable amount of money to effect that conversion and to obtain public equity finance.
3 Apart from one matter, the plaintiff's aspirations can be met by its deadline of 30 June 2000. If that deadline is not met then it may lose the advantage of an underwriting agreement and the interests of the shareholders will be prejudiced as well as the plaintiff having wasted a considerable amount of effort and money in getting things ready for 30 June.
4 By mid May 2000 the plaintiff was ready to lodge its documentation with the Australian Securities and Investments Commission (“ASIC”) but, at the last moment, it found the name which it wished to adopt was objectionable because there was an existing Western Australian company of a similar name. It took about 14 days to come to an arrangement with the Western Australian company to change its name. That arrangement was concluded on Wednesday 31 May 2000 and the appropriate documentation was lodged with ASIC on that day. The application required a change of type. Section 164 of the Corporations Law deals with this. Section 164(1) says that ASIC must give notice under subs (3) that it intends to alter the details of the company's registration if certain things happen, which in fact happened. Subsection (3) says:5 Subsection (4) provides:
"The notice that ASIC intends to alter the details of the company's registration must be:
(a) included on the ASIC database; and
(b) published in the Gazette .
The notice must also state that ASIC will alter the details of the company's registration one month after the notice has been published in the Gazette unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so."
"Subject to an order made by a court or the Administrative Appeals Tribunal within that month, after that month has passed ASIC must alter the details of the company's registration to reflect the company's new type."
6 The notice required under s 164 was published in the Commonwealth of Australia Gazette on 13 June 2000 and gave notice that ASIC would alter the registration details of, inter alia, the plaintiff one month after the publication of the notice.
7 The solicitor for the plaintiff has put on evidence that the plaintiff company has relatively few creditors (under $1 million) and that there could be no prejudice to any person caused by abridging the time of one month in s 164 to a time which would expire before 30 June.
8 Mr Cotman SC, who appears for the plaintiff, put that section 1322(4)(d) of the Corporations Law is sufficient authority for the Court to make the order and that the Court must, on the evidence, be satisfied that no one will be prejudiced and no substantial injustice is likely to be caused to any person. That provision enables the Court to make an order abridging the period for doing any act, matter or thing or taking any proceeding under the Corporations Law or in relation to a corporation.
9 Although s 1322 has been held to be a very wide provision which is to be construed liberally (see Elderslie Finance Corporation Ltd v Australian Securities Commission (1993) 11 ACSR 157, 160 and Village Roadshow Broadcasting Pty Ltd v Austereo Ltd (1997) 24 ACSR 185), there are limits as to what the Court can do under it (see eg Diversified Mineral Resources NL v Amusmet Investments Pty Ltd (1991) 5 ACSR 465 and David Grant & Company Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265).
10 It will be observed that s 164 mentions the time of one month in a number of connections. First, subs (3) explicitly states that the notice must state that ASIC will alter the details one month after notice has been published. Where a statute requires a notice to explicitly state something the notice is invalid if that something is not stated: Bay Marine Pty Ltd v Clayton Properties Pty Ltd (1984) 9 ACLR 780, 789.
11 Whatever s 1322 means it does not enable me to interfere with what the notice under s 164 must explicitly state because that could not be within the meaning of the phrase "doing an act, matter or thing ."
12 Cases such as the David Grant case and the decision of the Full Federal Court in Rochester Communications Group Pty Ltd v Lader Pty Ltd (1997) 23 ACSR 380, show that where there is a discrete part of the Corporations Law which purports to deal completely with a particular subject matter and uses words such as "must" or "may only" in connection with time, then s 1322 cannot be availed of to alter those times. In my view that line of thinking leads to rejection of the present application.
13 It should also be noted that the way in which the section is cast means that there is only obliquely the doing of an act. The doing of an act in subs (4) is where ASIC must, after one month has expired, effect the change of registration. However, that seems to me to be very close to the automatic effect of the notice, similar to the problem dealt with in the Diversified case, and the Court does not have the power to alter or abridge the relevant times.
14 Generally speaking, a court has no power to alter times set out in a statute. Unless there is power under s 1322, the Court is unable to give relief no matter how beneficial giving such relief may be, no matter what hardship might be caused by refusal, and despite the fact that no disadvantage will be suffered by any other person; see eg Stitt v Richards (1897) 18 LR NSW (Eq) 1. Furthermore, there is no escape by the route that was taken in cases such as Caratti v Hillman (1973) 4 ACLR 170 approved by Santow J in Re Matine Ltd (1998) 28 ACSR 268, 286 which involved using Court Rules to extend time.
15 I very much regret this decision because what the plaintiff seeks is eminently sensible, would hurt nobody, and the refusal of the application is going to cost tens of thousands of dollars without advantaging anybody. However, the legislature seems to have set its face to making hard and fast rules forgetting about Jephthah's daughter. If the legislation has taken the course of setting down unalterable time limits which cannot be altered even in the most just case, then the Court is left powerless to assist.
16 Accordingly, the proceedings must be dismissed.
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