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. The question which was immediately posed by the certificate was whether the award, the subject of appeal, had any validity or whether in the light of the fact at the time of the award the company had ceased to exist, it was a nullity. 2 UNREPORTED JUDGMENTS That question has not been explored at any length because of the intimation to the Court by counsel for the appellant that the appellant proposes to seek an order under s459(6) of the Companies (New South Wales) Code 1981. That subsection provides: "If a person is aggrieved by the cancellation of the registration of a company, the Court, on an application made by the person at any time within fifteen years after the cancellation, may, if satisfied that the company was, at the time of the cancellation, carrying on business or in operation or otherwise satisfied that it is just that the registration of the company be reinstated, order the reinstatement of the registration of the company and, upon an office copy of the order being lodged with the Commission, the company shall be deemed to have continued in existence as if its registration had not been cancelled, and the Court may be the order give such directions and make such provisions (including directions and provisions relating to the re-transfer of property vested in the Commission under s461) as seem just for placing the company and all other persons in the same position as nearly as may be as if the registration of the company had not been cancelled." At first, counsel for the appellant asked this Court to make an order under the subsection. There is no doubt that, by virtue of s44 of the Supreme Court Act 1970, the Court of Appeal may in proceedings before it exercise any power, jurisdiction or authority of the Supreme Court whether in law or in equity or under any Act. That provision might, in another case, make it appropriate for the saving of time that the Court step in and exercise the powers which are conferred on the Supreme Court by the Companies (New South Wales) Code s459(6). However, the subsection appears to contemplate that a number of steps will first be taken, including to notify the National Companies and Securities Commission of the application. The Court was informed this is the normal course followed in applications of this kind. There may also be other parties who should be on notice of the application. Such may be contemplated by the closing words of the subsection. Accordingly, it would not be appropriate for this Court, here and now, to make the order sought under s459(6) without notice to the Commission or to any other party that may be involved. It is therefore more appropriate that the matter should await any application that may be made in the ordinary way to the Equity Division. That is the Division of the Court which ordinarily administers the Companies (New South Wales) Code and deals with applications under s459(6). It was in these circumstances that counsel for the appellant indicated that his client asks for an adjournment of the appeal to allow such an application to be made. Counsel who appeared in the name of the respondent indicated he also supported that application. Once the application is made, if an order is made by the Equity Division, the position in this Court will be rectified. The Court could then return to the substance of the appeal and to a consideration of the costs consequences which flow from the developments of today. Some material has been placed before the Court which indicates that prior notice of the difficulty in the status of the respondent was given by the solicitors for the respondent to the solicitors for the appellant. However, it is not necessary for the Court now to explore that matter. We do not presently have before us a company which might be the subject of a valid order of the Court, including one disposing of costs. If the Equity Division does not make the order which the appellant foreshadows he will seek under s459(6), there is another weapon in the armoury of the appellant. This is an application for a declaration against the \GRYETO PECIPAJKOVSKI v JA GOODSELL STRUCTURAL ENGINEERING PTY LTB (Hope AJA) insurer. However, the relevant provisions of the compensation legislation, appear to make it clear that such a declaration can be made, and made only, by the Compensation Court. For all of these reasons it is appropriate to accede to the application for an adjournment, lamentable as it is that such an application is made at such a late stage and in proceedings which are already so long delayed. It may be hoped that the defect which has appeared will be dealt with promptly. After that the matter may be brought back to this Court for final speedy resolution. The court may then be differently constituted and the appeal, which did not start, is not to be regarded as part-heard. 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. Mahoney JA I agree. Hope AJA I also agree. Appeal adjourned until Monday 6 November 1989 for mention in Motions. The costs of today are reserved.