Vero Insurance Ltd v Nicejade Pty Ltd - [2010] NSWSC 1407

CITATION: Vero Insurance Ltd v Nicejade Pty Ltd [2010] NSWSC 1407

HEARING DATE(S): Written submissions: 01/12/10

JUDGMENT DATE :
3 December 2010

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Order by consent setting aside order directing reinstatement of reguistration of deregistered company (and allied orders). Order by consent dismissing proceedings. Consequential orders by consent.

CATCHWORDS: CORPORATIONS - deregistered company - orders previously made in contested proceedings directing ASIC to reinstate company's registration - application now made by unsuccessful defendant with consent of successful plaintiff for order setting aside previous orders and dismissing the proceedings - where order directing reinstatement by ASIC not served on ASIC - where company accordingly remains deregistered despite court's order directing reinstatement - power of court to set aside order by consent of parties - where ASIC itself not party but takes the attitude that it will implement the order directed to it if and when served with the order - no reason why original orders should not be set aside as parties wish - observations on the policy question whether it should be within the power of private litigants to decide whether the court's directive to ASIC reaches ASIC

LEGISLATION CITED: Corporations Act 2001 (Cth) s 601AH(2)
Uniform Civil Procedure Rules 2005, rules 36.15(2), 36.16

CATEGORY: Consequential orders

CASES CITED: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262
Vero Insurance Ltd v Nicejade Pty Ltd [2010] NSWSC 556

PARTIES: Vero Insurance Limited - Plaintiff
Nicejade Pty Limited - First Defendant
Sunlord Holding Pty Limited - Second Defendant

FILE NUMBER(S): SC 08/281810

SOLICITORS: Mills Oakley Lawyers - Plaintiff
Bartier Perry - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 3 DECEMBER 2010

2008/281810 VERO INSURANCE LIMITED v NICEJADE PTY LIMITED & ANOR

JUDGMENT

1 On 1 June 2010, I delivered a reserved judgment in these proceedings (Vero Insurance Ltd v Nicejade Pty Ltd [2010] NSWSC 556) and made orders as follows:

Corporations Act

2 These orders were made on the application of Vero Insurance Ltd (“Vero”) and against strenuous opposition by Sunlord Holding Pty Ltd (“Sunlord”) which was the holding company of Nicejade at the time of its deregistration in 2006.

3 On 25 June 2010, I made an…

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.

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Details

Case: [2010] NSWSC 1407
Decision Date: 3 December 2010

CaseChat Overview and Summary

The case of Vero Insurance Ltd v Nicejade Pty Ltd involves a dispute concerning the registration status of a company, Nicejade Pty Ltd, which had been deregistered by the Australian Securities and Investments Commission (ASIC). Vero Insurance Ltd, the plaintiff, had previously obtained orders directing ASIC to reinstate the registration of Nicejade Pty Ltd. However, due to an oversight, these orders were not served on ASIC, resulting in the company remaining deregistered. Subsequently, Nicejade Pty Ltd, the defendant, applied to set aside the previous orders and dismiss the proceedings, with the consent of Vero Insurance Ltd. The court was required to determine whether it had the power to set aside the original orders by consent of the parties and whether ASIC, which was not a party to the proceedings but had an interest in the outcome, would implement the court's directive if served with the order.

The court found that it did have the power to set aside the original orders if both parties consented to the application. The court emphasised that ASIC, while not a party, had expressed its intention to implement the order if and when it was served. The court concluded that there was no reason why the original orders should not be set aside as both parties wished. The court also briefly considered the broader policy question of whether private litigants should have the power to decide whether the court's directive to ASIC reaches ASIC. However, the court did not make a definitive ruling on this issue, leaving it open for future consideration.

The court ordered that the previous orders directing ASIC to reinstate the registration of Nicejade Pty Ltd be set aside. The proceedings were dismissed with costs. The court's decision highlights the importance of ensuring that court orders are properly served on relevant parties and the potential consequences of oversight in this regard. Additionally, the case underscores the court's willingness to set aside its own orders by consent of the parties, even in the absence of a formal application from the affected third party, ASIC.

Orders