Moderngarde Pty Limited v Zipangu Corporation Pty Lmited [1999] NSWSC 197

New South Wales Supreme Court CITATION : Moderngarde Pty Limited v Zipangu Corporation Pty Lmited [1999] NSWSC 197 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1030/99 HEARING DATE(S) : 15 March 1999 JUDGMENT DATE : 15 March 1999

PARTIES : Moderngarde Pty Limited (P) Zipangu Pty Limited (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. D. Godwin (D) SOLICITORS : Ferrirer & Associates (D) CATCHWORDS : CASES CITED : Knight v FP Special Assets Limited (1992) 174 CLR 178 DECISION :

- 7 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 15 March 1999

1030/99 MODERNGARDE PTY LIMITED -v- ZIPANGU CORPORATION PTY LIMITED JUDGMENT

1 MASTER: There is presently before the Court a summons filed on 8 January 1999. The plaintiff in that summons is Moderngarde Pty Limited and the defendant is Zipangu Corporation Pty Limited. By that summons the plaintiff claims an order that the demand for payment served upon it by the defendant be set aside and seeks a consequential order for costs. 2 Although the summons does not have annexed to it a copy of the statutory demand, I have been taken by the defendant to the statutory demand dated 17 December 1998, which claims an amount of $63,437.62, described as "being the amount ordered to be paid to the creditor, such order made by Judge Dent in District Court proceedings No 484/1997". 3 The summons appears to suggest that it was filed by "the authorised officer, Moderngarde Pty Limited, c/- Registered Office 10 Pittwater Road Manly NSW 2095" and the telephone number then following. The document also bears as the plaintiff's address for service "c/- 10 Pittwater Road Manly NSW 2095". It appears to be signed, by someone identifying himself as the plaintiff's authorised officer. 4 When the matter was called on for hearing before me, Mr M Grainger, who stated he was a director of the plaintiff, said that he was appearing for the plaintiff company. Mr Godwin of Counsel appeared for the defendant. I explained to Mr Grainger that he could not appear for the plaintiff in the conduct of the present proceedings, but that I would be prepared to hear what he might wish to say concerning the matter. 5 It is quite clear from the provisions of Part 4, rule 4A of the Supreme Court Rules (which enable a corporation in certain circumstances to commence or carry on proceedings by a director) that, since the circumstances contemplated by that rule have not been complied with in the instant case, the present proceedings have been improperly constituted. For that reason, if for no other reason, it is inevitable that the summons must be dismissed. 6 I gave to Mr Grainger the opportunity of seeking to have cured the procedural problems confronting the plaintiff, which cure would have required at the very least that he be joined as an additional plaintiff in the proceedings. 7 Mr Grainer declined to avail himself of that opportunity and stated that he did not seek to be so joined as a plaintiff. I contemplated the possibility of an adjournment, to enable Mr Grainger to obtain legal advice in the matter. It appears that he has at least at earlier stages had the benefit of legal advice, or indeed of legal representation both for the plaintiff company and for himself personally. That suggestion of a short adjournment was embraced by Mr Grainger but was opposed by the defendant. 8 Since it is likely that the Court would be able to cure the procedural deficiencies in the institution and constitution of the proceedings, were Mr Grainger to consent to being joined as a plaintiff, there now appears to me to be no purpose, in the light of Mr Grainger's presently expressed attitude in granting an adjournment of the present proceedings. 9 The summons states that the plaintiff disputes the existence and/or quantum of the debt to which the demand relates and that the plaintiff has an offsetting claim. 10 In response to an inquiry by me at the outset of the hearing whilst I was attempting to ascertain the attitude adopted by each party, the clear impression given to me by Mr Grainger was that he was totally unaware of any judgment in favour of the defendant against the plaintiff. There has been placed before me by the defendant a judgment dated 25 September 1998 in the District Court of New South Wales in Sydney in file No 484/97. That is a judgment pursuant to Part 31 rule 15 of the District Court Rules, and is in the following form: It is this date adjudged: