Waud v Ceps (Qld) Pty Ltd t/as the Ceps Superannuation Fund (Deregistered)

[2021] QCATA 95

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Waud v Ceps (Qld) Pty Ltd t/as the Ceps Superannuation Fund (Deregistered) [2021] QCATA 95

PARTIES:

KAREN WAUD

(applicant/appellant)

v

CEPS (QLD) PTY LTD T/AS THE CEPS SUPERANNUATION FUND (DEREGISTERED)

(respondent)

APPLICATION NO:

APL123-21

ORIGINATING APPLICATION NO:

MCD051451/16 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

26 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

1. The application for leave to appeal or appeal is struck out pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where respondent deregistered – where proceedings incomplete at date of deregistration – effect of deregistration on proceedings

Corporations Act 2001 (Cth), s 601AD, s 601AH

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 49

Amcus Pty Limited v Hurst Rentals Pty Limited & Ors [No 2] [2010] NSWSC 239

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Deregistered

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The applicant, Ms Waud has filed an application for leave to appeal or appeal a decision made on 7 December 2020 whereby Ms Waud’s application to set aside a default decision dated 18 August 2017 was dismissed. The application was filed on 29 April 2021 and an extension of time was granted by the Appeal Tribunal for the filing of the application for leave to appeal or appeal to that date.

2. Ms Waud has also filed in this Tribunal an application to stay an enforcement warrant issued in the Magistrates Court at Southport dated 9 March 2021. The enforcement warrant has been executed resulting in the seizure and sale of Ms Waud’s Range Rover motor vehicle. Ms Waud submits that she understands the proceeds of sale are held by the Magistrates Court and have not been disgorged to the judgment creditor.

3. Ms Waud obtained a stay of the enforcement proceedings in the Magistrates Court on 21 May 2021 until further order of the Magistrates Court.

4. The complication in this matter is that the respondent Ceps (Qld) Pty Ltd t/as Ceps Superannuation Fund was deregistered on 10 January 2018. That entity has had no status at law since that date. I observe that in the many documents on the Tribunal file referring to the company the mode of representation of the company name varies. I am satisfied that the one company is involved. I will use the mode of representation set out in any document I refer to in this decision.

5. Despite deregistration, the recovery proceedings are being prosecuted in the Magistrates Court and defended in the Tribunal and Appeal Tribunal in the name of the company. Submissions have been made to the Appeal Tribunal by Mr Craig Bax, Group Compliance Manager, Collections & Recovery Options Pty Ltd. Mr Bax and his company purport to act as agents for Mr Ceps Meikle. It is submitted by Mr Bax that on 29 November 2016 the debt said to be due from Ms Waud to the respondent was assigned to Mr Ceps Meikle and that notice of that assignment was given to Ms Waud at the time. Mr Bax submits that Mr Meikle is entitled to bring and maintain the minor civil debt in either the name of the assignee or the assignor. Mr Bax does not address the effect of deregistration of the respondent company. At no time has Mr Ceps Meikle been joined as a party to the proceeding.

6. The relevant chronology is:

   (a)8 June 2016 - Ceps (Qld) Pty Ltd (ACN 149328629) trading as ATF The Ceps Superannuation Fund filed a minor civil dispute – minor debt, seeking recovery of moneys paid to Ms Waud. The claim describes the money paid as a deposit for the acquisition by the applicant company from Montana Invest Pty Ltd for an exclusive trading area. The claim then describes the money paid as a loan for Ms Waud’s sole use. The claim is not otherwise particularised.

   (b)7 November 2016 – Electronic lodgement of an affidavit of service disclosing service by leaving a copy at Suite 7, 47 Ashmore Road, Bundall, said to be the place of business of Karen Waud. The document was said to be given to Michael Browne, who confirmed that he would hand a copy of the claim to Karen Waud. The date of service is given as 31 October 2016.

   (c)29 November 2016 – Ceps Meikle executed a Deed of Assignment of Debt on behalf of Ceps (QLD) Pty Ltd ATF the Ceps Superannuation Fund of PO Box 7226 Cloisters Square Western Australia, to himself as Assignee at the same post office box address.

   Annexed to the Assignment of Debt is a Notice in writing of assignment of debt addressed to Karyn Waud of 47 Ashmore Road, Bundall as debtor, asserting that the assignor has assigned and transferred the whole of the assignor’s legal and equitable right and ownership to the debt to Ceps Meikle with the intent that the assignee is now the owner of the debt and that payment of the debt should be made to the assignee.

   (d)18 August 2017 – Decision by default issued in favour of Ceps (Qld) Pty Ltd trading as ATF The Ceps Superannuation Fund.

   (e)26 September 2017 – judgment obtained by CEPS (Qld) Pty Ltd (ACN149328629) t/as The CEPS Superannuation Fund, in Magistrates Court matter no. M1220/2017.

   (f)10 January 2018 – Ceps (QLD) Pty Ltd ACN 149328629 is deregistered following an application for voluntary deregistration filed 6 November 2017.

   (g)7 January 2020 – an application to set aside the 18 August 2017 decision is dismissed for the following reasons:

   (a)     inordinate delay in bringing the application;

   (b)     no credible defence is made out; and

   (c)     acceptance of the respondent’s submissions filed 4 December 2019 particularly at paragraphs numbered 88 to 122.

   I note the submissions in response to the application to set aside are said to be made on behalf of Ceps Meikle as assignee. The submissions referred to go to the question of delay in bringing the application and address any defence on the merits. It is said that Ms Waud did not file a draft Response and has not said on what basis she is entitled to the funds in question, having implicitly acknowledged they were deposited to her account.

   (h)9 March 2021 – Enforcement Warrant issued on behalf of Ceps (Qld) Pty Ltd ATF the Ceps Superannuation Fund as enforcement creditor.

   (i)20 April 2021 – Notice of an Enforcement Warrant – Seizure and Sale of Property given to Karen Waud.

   (j)23 April 2021 – Karen Waud’s motor vehicle seized.

   (k)29 April 2021 – Application for leave to appeal or appeal filed.

   (l)21 May 2021 – Stay of enforcement proceedings in the Magistrates Court.

7. By section 601AD(1) of the Corporations Act 2001 (Cth) (the Act), a company loses legal personality and ceases to exist upon deregistration. By section 601AD(1A) of the Act, on deregistration all property that the company held on trust immediately before deregistration vests in the Commonwealth. By section 601AD(2) property other than property held on trust vests in ASIC.

8. As a result of deregistration, the company cannot commence legal proceedings, nor can proceedings be commenced against it.

9. Incomplete proceedings by a deregistered company pursuing a claim, and incomplete proceedings against a deregistered company, are automatically abated by the deregistration and are a nullity.[1] The practice is for a Court to make no further order[2] or to strike out the proceeding.[3] By section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), the Tribunal may strike out a proceeding if it is misconceived, lacking in substance or an abuse of process.

   [1]Lexis Nexis, Austin & Black’s Annotations to the Corporations Act, (online at 19 July 2021) Part 5A.1 – Deregistration, Effect on Proceedings, [5A.601AD].

   [2]Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) [2010] NSWSC 239.

   [3]Lexis Nexis, Halsbury’s Laws of Australia, (online at 19 July 2021) 120 Corporations, (6) Deregistration and reinstatement of companies, ‘Consequences of deregistration’ [120-14830].

10. For the purpose of proceedings in this Tribunal, the result of deregistration of Ceps (Qld) Pty Ltd (ACN 149328629) is that:

    (a)the decision refusing to set aside the judgment by default is a nullity; and

    (b)the appeal is a nullity.

11. The Appeal Tribunal is unable to order a stay or to determine the appeal. The appropriate order is for the appeal proceedings to be struck out pursuant to section 47 of the QCAT Act.

12. It will be a matter for the Magistrates Court as to how it treats the proceeds of enforcement proceedings taken by the deregistered company in light of section 601AD of the Act and the claims of the persons interested in the money.

13. The applicant, Ms Waud is entitled to seek reinstatement of the deregistered company by ASIC or upon application to the Queensland Supreme Court pursuant to section 601AH of the Act. It remains open to Ms Waud, pursuant to section 49 of the QCAT Act, to seek the leave of the President or Deputy President of the Tribunal to commence another proceeding in relation to this matter, if Ms Waud considers there is any merit in her doing so.

14. The application for leave to appeal or appeal is struck out pursuant to section 47 of the QCAT Act.