Remiliotis, J. v Tenth Anemot P/L (In Liquidation)

[1994] FCA 446

JUDGMENT No. ..... , , 4 4 6 J a

A	-
VICTORIA DISTRICT REGISTRY No VG 3368 of 1992
mNERAL DIVISION
B E T W E E N :

JIM REMILIOTIS

Applicant

A N D :

TENTH ANEMOT PTY LTD (IN LIOUIDATIONL

Res~ondent

COURT :  NORTHROP J

EIm&xS MELBOURNE

m:  31 MAY 1994

REASONS FOR JUDGMENT

By application dated 2 June 1993, an application

by Mr Jim Remiliotis seeking a review of a decision of a
registrar of the Court making a winding up order against the

company Tenth Anemot Pty Limited (in liquidation). Under

section 35A(5) of the Federal Court of Australia Act and 021

r3 of the Federal Court Rules, any application for review of the decision of the registrar must be made within 21 days or

petitioning creditor, Brambles Pty Limited, had served the
such further time as the Court may allow.	In the present

case, the order for winding up was made on 15 February 1993
and it appears that the directors, or at least one of the
directors, of the company knew of the order on or about 18
February 1993, but the application for review was not made

until 2 June 1993.

The essence of the grounds for the review is that the

relevant documents under 8460 of the Corporations Law in
November 1992 and the application for the winding ap order in
December 1992 on the registered office of the company as
appearing in the Australian Securities Commission records.
That was the office of the solicitors for the company, but it
appears that some time earlier the company had changed its
solicitors and, although it had resolved to change the address
of the registered office of the company, had taken no steps at

all to do so.

It is accepted that the authorities show that, although

under the Corporations Law service of documents may be served
by post at the registered office of a company appearing in the
appropriate records, such service is not conclusive. In
appropriate cases, if it can be shown that the company did not
receive the notice, that may be sufficient to negative the
service. On this point, a number of authorities were referred
to including Re Rustic Homes Pty Ltd (1988) 13 ACLR 105, a

decision of von Doussa J while a Judge of the Supreme Court of

principles which have been accepted in other authorities. For	South Australia, where at p106 his Honour sets out the general	instance in Deputy Commissioner of Taxation v A b b e m o d Pty
Ltd (1990) 2 ACSR 91, a decision in the Supreme Court of New South Wales of Waddell J, the Chief Judge in Equity, his Honour accepted the same principles and distinguished an earlier decision of his own in Quicksafe Freightlines Pty Limited v Shell Company of Australia Limited (1984) 10 ACLR 161, and reference was also made to Re Gasbourne Pty Ltd, a decision of Nicholson J when a Judge of the Supreme Court of Victoria, [l9841 VR 801 in particular at p856.

It is accepted that the service of documents of this kind

is essential for the purposes of the application of the law,
and-to give the company an opportunity to be heard,
particularly when the order being sought is an order winding
up the company. The seriousness of such an order is
recognised and accepted and there is a need for proper
service. There are, however, in this case a number of other
factors which are of equal relevance and should be taken into

account.

The company itself is completely insolvent and has been

insolvent for many years. In other proceedings in the Federal

Court, No VG 3018 of 1992, another creditor had commenced
proceedings for the winding up of the company in which
Brambles had also appeared as a creditor, and had also given
the required notice under 8460 of the Corporations Law. That

matter has not yet been concluded. The matter was fixed for a

was reached between the company and the first applicant for	date to be allocated for hearing. Apparently some arrangement	the winding up. Apparently no notice of it was given to Brambles, and the whole matter remained in limbo.
It is in the background of those facts that the question of whether there should be an extension of time granted is to
be coneidered. It is noted that the present applicant knew of
the existence of the winding up order just a few days after
the order had been made. It must be accepted that he knew of
the nature of the winding up proceedings, and the effect on the company of such a winding up order. He had at least over a fortnight in which to do something about having the order of the registrar reviewed. He did nothing.

Thereafter, there were attempts made, apparently, as

disclosed by the affidavit material, of trying to get copies
of the relevant documents from the liquidator and from the
solicitor, but one can only comment that in cases of this kind
it is important that action be taken speedily and without
undue delay. That was not done here. There was undue delay,
and in all the circumstances there has been no satisfactory
explanation given to the Court at all as to why action was not

taken much earlier.

In all the circumstances, and in the exercise of its

discretion, the Court refuses to grant leave to review, or to extend the time in which to make that application for review,

of the decision of the registrar made on 15 February 1993.	In
those circumstances, the review must be refused because of the

absence of leave to review out of time.

I certify that this and the preceding three (3) pages are a
true copy of the Reasons for Judgment of The Honourable Mr

Justice R.M. Northrop.

ssociate: @	e	e
Date :

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
450 LITTLE BOURKE STREET

MELBOURNE. 3000

12 July 1994

Me Sonia Cornale
Records Clerk
Library and Information Services
Principal Registry
Federal Court of Australia

Level 16

Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia

I enclose the following judgment for inclusion in the data

base of Federal Court Judgments:

Jim Remiliotis v Tenth Anemot Ptv Ltd (In Liauidatiod

No VG 3368 of 1992

The word processing disk containing the above judgment is enclosed. Please return the disk to me when appropriate.

Thank you

Secretary to
V	The Hon Mr Justice Northrop
Enc