GRUZMAN PTY LTD v BATEMAN (trading as THE BATEMAN PHOTOGRAPHIC (GROUP)) [1996] NSWCA 234

GRUZMAN PTY LIMITED v BATEMAN (T/AS THE BATEMAN PHOTOGRAPHIC (GROUP)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 4 October 1996

[1996] NSWCA 234

Cole JA. On notice of motion

Ihave before me a notice of motion seeking, in essence, to strike out an appeal as incompetent. The basis on which the notice of motion is grounded is that as from 13 June 1996 the appellant company was dissolved in accordance with the Corporations Law. In those circumstances, the claimant took out a notice of motion, seeking to have the appeal dismissed or some other appropriate orders, in circumstances where it is listed for hearing in about a fortnight. However, yesterday the company was reregistered. Accordingly, any incompetence flowing from its dissolution has now been removed.

It has been suggested by Mr Wheelhouse that the reregistration or restoration to the register may be invalid upon some basis which it is unnecessary for me to consider. If that be the case, then that is a matter to be determined elsewhere. In the circumstances, it seems to me that I should dismiss the notice of motion. However, the need to bring thenotice of motion flowed from the appellant or its directors permitting the company to become dissolved under the Corporations Law in circumstances where it had not, for a number of years, filed audited returns. It seems to me, in the circumstances, the claimant was justified in bringing the notice of motion.

The formal orders of the Court will be that the notice of motion dated 1 October 1996 is dismissed, but the opponent is to pay the claimant's costs. The matter will proceed to hearing on 17 October 1996.

Orders accordingly.