New South Wales Supreme Court CITATION : Pantzer (as Liquidator of ACN 060 296 175 Pty Ltd) [2000] NSWSC 214 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4770/99 HEARING DATE(S) : 9 February and 3 March 2000 JUDGMENT DATE : 3 March 2000 ACN 060 296 175 Pty Ltd (formerly Royal Group Pty Limited) (P1) PARTIES : Warren Pantzer (as Liquidator of ACN 060 296 175 Pty Limited) (P2) FAI General Insurance Company Limited (D) JUDGMENT OF : Hamilton J COUNSEL : S Gallant, Solicitor (P1 & 2) No appearance (D) SOLICITORS : Robinson Creais (P1 & 2) No appearance (D) CATCHWORDS : PROCEDURE [24] - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - Applications under Federal Courts (State Jurisdiction) Act 1999 to have order in proceeding in Federal Court treated as order of the Supreme Court - Who may make application in respect of winding up order - Company or liquidator? LEGISLATION CITED : Corporations Law, s 477 Federal Courts (State Jurisdiction) Act 1999, s 11 CASES CITED : Re Wakim; Ex parte McNally (1999) 73 ALJR 839 DECISION : Orders that summons be amended to join company as plaintiff and that winding up order be treated as an order of the Supreme Court. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J FRIDAY, 3 MARCH 2000 4770/99 WARREN PANTZER (AS LIQUIDATOR OF ACN 060 296 175 PTY LIMITED) JUDGMENT HIS HONOUR: 1 On 9 October 1998 the Federal Court of Australia in proceedings NG 3152/98 at the suit of FAI Insurance Company Limited made an order for the winding up of Royal Group Pty Limited (now known as ACN 060 296 175 Pty Limited (in liquidation)) ("the company") and appointed Warren Pantzer as liquidator. In proceedings N 3021/99 the Federal Court of Australia at the suit of Mr Pantzer, as liquidator of the company, on 22 February 1999 ordered the issue of examination summonses to various persons so that they might be examined in Court concerning the affairs of the company. On 16 June 1999 the High Court of Australia delivered judgment in Re Wakim; Ex parte McNally (1999) 73 ALJR 839. By reason of that judgment it became apparent that the Federal Court of Australia had no jurisdiction to entertain the above proceedings or make the orders aforesaid. 2 On 11 February 2000 in each of the above proceedings Gyles J in the Federal Court of Australia declared that that Court had no jurisdiction to hear and determine the proceedings. The orders of Gyles J were relevant orders within the meaning of s 11 of the Federal Courts (State Jurisdiction) Act 1999 ("the Act"). Subsection (2) of that section provides as follows: "(2) A person who was a party to a proceeding in which a relevant order is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court, and the Supreme Court may make such an order." The liquidator desires that the examination summonses proceed in this Court. To obtain an order under s 11(2) he had issued on 24 November 1999 the summons in these proceedings, naming himself as plaintiff and naming no defendant. 3 When the summons first came before me a question was raised as to the meaning in s 11(2) of "a party to a proceeding in which a relevant order is made". In fact, at that time no relevant orders had been made. However, there was a further question as to whether, even after relevant orders were made, the plaintiff as liquidator could be characterised as a party to the proceedings. In fact, in proceedings N 3021/99 he was the plaintiff and therefore a party. However, in the original winding up proceedings, NG 3152/98, this was doubtful, since he was not named as a plaintiff or defendant in those proceedings, the plaintiff being FAI and the defendant the company. He had been appointed liquidator and was in office at the time of the making of the the relevant order in those proceedings, but there is some doubt as to whether he was a party to the proceedings within the meaning of the secction. It may be that, bearing in mind the purpose of the Act, a liquidator, who is in office, should be regarded as a party, since he is empowered under the Corporations Law to make many applications to the Court in his own name in the winding up proceedings by virtue of his office. However, the company itself was undoubtedly a party to proceedings NG 3152/98 at the time the relevant order was made in those proceedings, and, rather than engage in the perhaps not entirely easy exercise of construing s 11 to determine the ambit of the meaning of "party" in the section, it was decided to follow the course of amending the summons to include the company as a plaintiff. Under the Corporations Law s 477(2)(a) the liquidator has in fact brought forward an amended summons in which both the company and the liquidator are named as plaintiffs and, in fact, FAI is named as defendant, although it really has no function to play in this application. 4 It seems to me that the easiest and most convenient course to follow, when an application is to be made on behalf of a company in liquidation for an order under s 11(2) of the Act, is for the company itself to be made the plaintiff in the appropriate proceedings. The orders that I make in these proceedings are as follow: 1 I grant the plaintiff leave to file an amended summons. 2 I dispense with service of the summons on the defendant. 3 I order that proceedings NG 3152/98 and N 3021/99 in the Federal Court of Australia New South Wales District Registry be treated as proceedings in this Court. …oOo… Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.