ECKETT ENTERPRISES PTY LIMITED v COSMETIC TECHNICAL SERVICES PTY LIMIMTED [1996] NSWCA 166

ECKETT ENTERPRISES PTY LIMITED vy COSMETIC TECHNICAL SERVICES PTY LIMIMTED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 11 March 1996

[1996] NSWCA 166

Sheller JA. This is an application by Cosmetic Technical Services Pty Limited to strike out a notice of appeal which was filed reportedly on behalf of Eckett Enterprises Pty Limited on 12 September 1995.

The application joined five members of a firm of solicitors known as Carneys as first opponent and Eckett Enterprises as second opponent. Mr Kunc, who appeared for the claimant, informed me that the claimant did not now seek any orders against the first opponent as I understand some arrangement to have been reached with that firm of solicitors. However, the claimant applied to join as a third opponent, Wayne Gregory Eckett, who was a director of Eckett Enterprises Pty Limited.

The application was supported by an affidavit of Phillip John Tietzel of 25 October 1995 which discloses that the proceedings from which the appeal issaid to have been brought were heard by Smart J in May 1994. His Honour delivered judgment on 15 August 1995 in favour of the claimant.

On 2 September 1994, that is between the dates of hearing and the delivery of judgment, Eckett Enterprises Pty Limited was dissolved and has been de-registered.

On 16 October 1995 the claimant's solicitors wrote to Carneys pointing this out and indicating that the claimant did not wish to incur costs unnecessarily in respect of an appeal which had been lodged on behalf of an entity which had ceased to exist. Carneys were asked to let the claimant's solicitors know whether they would consent to certain steps being taken as a result of that. In his affidavit Mr Tietzel said that he did not receive any reply to that letter either in writing or by telephone.

Enough has been said up to this point to make it plain that the appeal is a nullity and, accordingly, the notice of appeal should be struck out. However, when the matter was called on this morning Mr Eckett sought leave to appear on behalf of the company. The company of course does not exist, however I gave Mr Eckett leave to make such submissions as he might wish. In the course of doing so he sought to file in Court an application for reinstatement of the registration of Eckett Enterprises Pty Limited. It did not then, nor does it now, seem to me to be appropriate that this Court should on no notice at all entertain such an application. However, Mr Eckett also filed in Court an affidavit of 9 March 1996 in which he refers to a number of matters said to be in explanation of the delay in taking steps to avoid the situation that now faces the Court. In the forefront of those is the fact that Mr Eckett has been overseas for a large part of the period between November 1992 and late last year.