SVETO PECIPAJKOVSKI v JA GOODSELL STRUCTURAL ENGINEERING PTY LTD [1989] NSWCA 164

SVETO PECIPAJKOVSKI vy JA GOODSELL STRUCTURAL ENGINEERING PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY JA and Hope AJA 4 September 1989 [1989] NSWCA 164

COMPANIES — removal from register — certificate tendered — consequence for continuance of appeal against company application for certificate of reinstatement of company — Companies (New South Wales) Code, s459(6) — where certificate might be granted nunc pro tune by Court of Appeal — Supreme Court Act 1970 s44 — held: The appeal should be adjourned to permit the appellant to apply to the Equity Division of the Supreme Court for the order under s459(6) of the Code.

APPEAL — Court of Appeal — exercise of powers of the Supreme Court — certificate reinstated company respondent to register of companies — held: Power should not be exercised having regard to notice to be given — proceedings should be adjourned to allow application to be made to the Equity Division of the Supreme Court.

Companies (New South Wales) Code 1981, s459(4), s459(6). Supreme Court Act 1970, s44. Workers' Compensation Act 1926, s49A. Workers' Compensation Act 1987, s162. The orders which I propose are that the appeal be adjourned for the purposes which have been stated until Monday 6 November 1989 for mention in Motions. The costs of today are reserved.

Kirby P This long delayed appeal has come on for hearing before the Court today. When it was called, it was suggested to the Court that the respondent company no longer existed as an entity liable to be sued, in the sense that it had been removed from the Register of Companies. A certificate was tendered, without objection, certifying that the respondent had been struck off the register pursuant to s459(4) of the Companies (New South Wales) Code on 10 January 1984.

This suggestion created a problem for the parties and for the Court. First, the respondent had appeared by solicitors and counsel. No application was made to withdraw that appearance. The solicitors remained on the record. Counsel indicated candidly that his instructions were received not from the company itself but from the company's insurer under the Workers' Compensation Act 1926. Secondly, the award of Judge Davidson, which is the subject of the appeal, was made out on 5 September 1985. That is a day after the certificate previously referred to indicates that the company was removed from the register. No step has been taken in the Compensation Court to seek an order against the insurer of the company for the purposes of the Workers' Compensation Act either under s49A of the Act as it was enacted in 1926 or under the successive provision, s162 of the Workers' Compensation Act 1987.