Eyles v Curved Plywood [2004] NSWSC 257

New South Wales Supreme Court

CITATION : Eyles v Curved Plywood [2004] NSWSC 257 HEARING DATE(S) : 29 March 2004 JUDGMENT DATE : 29 March 2004 JURISDICTION: Equity JUDGMENT OF : Austin J DECISION : Validating order made

CATCHWORDS : CORPORATIONS - reinstatement of deregistered company - validating order under s 601AH(3) - (no question of general principle) LEGISLATION CITED : Corporations Act 2001 (Cth) ss 601AA, 601AH PARTIES : Milton Thomas Eyles (P) Curved Plywood Products Pty Ltd (D) FILE NUMBER(S) : SC 6419/03 COUNSEL : D E Baran (P) M J Jenkins (D) SOLICITORS : G H Healey & Co, Mascot (P) Vandervords (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

MONDAY 29 MARCH 2004

6419/03 MILTON THOMAS EYLES V CURVED PLYWOOD PRODUCTS PTY LTD JUDGMENT (Ex tempore; revised 31 March 2004) 1 HIS HONOUR: Before me is an application by originating process filed on 19 December 2003, by which the plaintiff seeks orders under section 601AH(3) of the Corporations Act 2001 (Cth) designed to validate what has been done with respect to proceedings in the District Court of New South Wales brought by him for damages for personal injury against his employer. 2 The defendant company was deregistered on 8 February 2000 pursuant to section 601AA of the Act. The plaintiff filed a statement of claim in the District Court on 23 November 2001, just a few days before legislative changes to the Workers' Compensation Act took effect relating to the bringing of claims for damages for personal injury in industrial accidents. 3 It appears that no adequate checks were made at that time to ascertain whether the defendant had been deregistered. Therefore the District Court proceeding was launched and continued for some time before the deregistration of the defendant was identified as a problem. The company was reinstated by order of Bergin J in this Court on 3 December 2002. 4 The matter came before His Honour Judge Hungerford in the District Court, on an interlocutory application in that court for leave to extend the time under the Workers' Compensation Act for the bringing of the proceeding, since the District Court proceeding had been commenced more than three years after the date of giving notice of the injuries. By the time his Honour heard that application, the company had been reinstated, but an issue arose as to whether the defendant company could be affected by an order for leave to extend the filing time when it did not exist at the time when the plaintiff purported to commence the District Court action. 5 I was informed from the Bar table that the defendant resisted the application before his Honour, and made an application itself for dismissal of the proceeding on the ground that at the relevant time the company did not exist and therefore the commencement and maintenance of the proceeding had been incompetent. At that point Judge Hungerford adjourned the application before him so as to permit the plaintiff to come to this Court for a validating order. 6 Today the defendant is represented but makes no submission in opposition to a validating order, and has merely addressed the court on the question of costs. 7 Section 601AH(3) provides that if the Court makes an order under subs (2) (as it has in this case) it may "validate anything done between the deregistration of the company and its reinstatement" and it may also make any other order it considers appropriate. Section 601AH(5) states that if a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. 8 I am satisfied that the appropriate course in the present circumstances is for this Court to do what is necessary to make it clear that the District Court proceeding is to be treated as if the defendant were a corporation in existence at all relevant times. There is a substantive question for the District Court as to whether leave should be granted to the plaintiff, nunc pro tunc, to extend the time under the Workers' Compensation Act for commencement of that proceeding. I say nothing about the merits of that matter. It seems to me, however, that it is that matter that should be addressed on its merits and the District Court ought not to be distracted by the additional complication arising out of the non-existence of the defendant. 9 While this Court would not exercise its discretion under s 601AH(3) routinely so as to cure what appears to have been an oversight, by which the plaintiff failed to confirm the corporate existence of the defendant before commencing its District Court proceeding, the special circumstances of this case suggest that it is appropriate that the order be made. Those special circumstances include the fact that the District Court proceeding was commenced days before a change of the law which would have prejudiced the plaintiff as a plaintiff in that proceeding, and the fact that the issue has arisen in circumstances where the substantive application to extend the time for commencement of the District Court proceeding is part-heard before that Court. 10 It is at least arguable that no order is needed, having regard to the terms of s 601AH(5). However, the learned District Court judge was in some doubt as to whether s 601AH(5) was sufficient to cure the problem without curial intervention, and in circumstances where there is clear power for this Court to make a specific order under subs (3), his Honour's doubt should be removed by making such an order. **********