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. Mr Kunc referred to a number of what might be regarded as discretionary matters in support of the order that the claimant seeks, these matters are derived from affidavits made by Mr Eckett in the Commercial Division which were 2 UNREPORTED JUDGMENTS tendered and indicate an intention as far back as 1989 to put the company's affairs in order. It appears that on only two occasions over many years prior to its de-registration had the company filed appropriate returns. I do not think that it is necessary for me to dwell upon those matters of discretion, I think the circumstance that the company has been de-registered, that the appeal was filed at a time after the company had been de-registered purportedly on behalf of the company and is therefore a nullity are sufficient to ground the order for striking out what the claimant now seeks. It was fairly pointed out by Mr Kunc that if an application is proceeded with to the appropriate court to have the company's registration re-instated and that order is made, it would then be open to the company which is not technically a party to the proceedings now before me, to make an application for leave to appeal out of time if it be so advised. I express no view one way or another about the likely success of such an application. This leaves the question of the claimant's application to join Mr Eckett as another opponent and for an order for costs relying upon Pt 52A r 4 and particularly subrule 4(f). There is good reason for the claimant to complain in this case that it has been put to costs and expense as a result of solicitors and possibly Mr Eckett taking steps which led to a notice of appeal being filed without appropriate retainer. That is at the heart of the claim that is made for Mr Eckett to be now joined as an opponent and a costs order made against him. However, I am considerably troubled by the fact that in this case until today the opponent was a firm of solicitors who were on the record as the appellant's solicitors. Apparently by an agreement, the terms of which have not been told to me, the claimant no longer wishes to proceed against those solicitors. In the circumstance that that arrangement having been reached, it is now sought today to add Mr Eckett as a further opponent simply for the purpose of seeking an order for costs against him. I am not satisfied that it is appropriate either to join him or to make such an order. It seems to me it may well be that those primarily responsible for the filing of a notice of appeal without appropriate retainer were the solicitors who purported to act for the non existent company. It is true that Mr Eckett was, prior to the dissolution of the company, a director thereof and it may be that he took some steps which could only have been based upon the continued existence of the company and to that extent contributed to the situation that now exists. However, on the material before me I reiterate that it seems that the solicitors were those primarily responsible and some arrangement of which I know nothing having been reached with them, it does not seem to me appropriate in the circumstances that I should now impose upon Mr Eckett an order for costs. Accordingly the order that I will make is that the appeal No CA40571 of 1995 be struck out. I make no order as to the costs of this application. Orders accordingly.