ASK Business Solutions Pty Ltd v Dib [2005] NSWSC 1000

New South Wales Supreme Court

CITATION : ASK Business Solutions Pty Ltd v Dib [2005] NSWSC 1000

HEARING DATE(S) : 4 October 2005

JUDGMENT DATE : 4 October 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Manager should be allowed to appear for company although authority not proved.

CATCHWORDS : CORPORATIONS [20] - Constitution and legal capacity - External litigation - In general - Appearance in court by company - Who may appear.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 rr 7.1, 7.2

ASK Business Solutions Pty Ltd (P) PARTIES : Tony Dib (D1) Dewbarn Pty Limited (D2)

FILE NUMBER(S) : SC 5217/05

C S Alavelu manager, by leave (P) COUNSEL : No appearance (D1 & 2)

Jack Singh Solicitors (P) SOLICITORS : No appearance (D1 & 2)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 4 OCTOBER 2005

5217/05 ASK BUSINESS SOLUTIONS PTY LIMITED v TONY DIB & ANOR JUDGMENT 1 HIS HONOUR: This morning I propose to extend the injunction which I granted ex parte to the plaintiff urgently during the night of Thursday, 29 September 2005. I propose to make these orders in unusual circumstances and despite considerable irregularity in the form of the proceedings. 2 The company has been represented this morning by Mr Alavelu, who is its manager. He is not in fact a director of the company. He has sworn that he is its manager; the sole director is his wife, Parwathi Deva Alavelu. There is not filed with the originating process an affidavit of his authority to appear for the company, if, indeed, he is an officer of the company within the meaning of r 7.1(4)(b) of the Uniform Civil Procedure Rules 2005 ("the UCPR"). The company is therefore seeking this morning to appear by a person who would not normally be allowed to appear for it: UCPR rr 7.1, 7.2. 3 However, Mr Alavelu has been placed, as I perceive not through his own fault, in difficult circumstances. His solicitor, Mr Jack Singh, has announced to him only this morning that he does not propose to come to Court or arrange representation for the plaintiff because he is sick. I find this very poor. It has left Mr Alavelu and the plaintiff in the lurch. I find it difficult to believe that Mr Singh is so sick that he could have somehow arranged appearance by counsel, by an agent or by another solicitor and I take a poor view of this conduct. 4 There is an ex parte injunction which expires today. Mr Alavelu has made a very reasonable hand of bringing to Court the evidence necessary to justify a continuation of the injunction and material which is supplemented by his oral evidence has sufficiently proved service on the defendants of the plaintiff's intention to move for a continuation of the injunction today. 5 Mr Alavelu believes that the summons was served by fax on the defendants. More importantly, he was present when the minute of orders which I signed and sealed on Thursday night was faxed from Mr Singh's fax machine, both to a number nominated over the telephone by Mr Dib, who is the first defendant and appears to be a director of the second defendant. They were faxed as well to Lamrocks Solicitors of Penrith, who correspondence shows have been recently acting for the defendants in relation to this matter. That minute contained a grant of leave by me for the plaintiff to move to continue this injunction at 10am today before me in Court 8C, where I am at present sitting. The force of the evidence which I have already outlined is much reinforced by the fact that, although it seems clear that the defendants are on notice of this application, they have failed to appear before the Court this morning. 6 The current lease under which the plaintiff claims runs only to 30 November 2005. It is at the moment far from clear that there is any agreement for the grant of a further lease to the plaintiff. However, in view of the defendants' failure to appear, I propose to extend the injunction up to and including 30 November 2005 or earlier further order. I shall grant liberty to the defendant to apply to dissolve or vary the injunction on three days notice. 7 In view of the difficult situation into which Mr Alavelu was suddenly placed this morning, I intend on this occasion and for today only to give such dispensation of the Rules of Court as would permit Mr Alavelu to appear for the plaintiff today. I dispense with the relevant provisions of the UCPR rr 7.1 and 7.2. However, Mr Alavelu must realise that this is unlikely to be repeated in the future. Either appropriate authority complying with the Rules for him or his wife to appear for the company must be established or it would be far preferable if a solicitor is engaged who would properly attend to the matter on the company's behalf in the ordinary way. 8 I shall direct that the orders be entered forthwith and be taken to be entered upon the signing and sealing of a minute of the orders by a Registrar. The orders will provide for their being served in the first instance by facsimile transmission to the number specified by Mr Dib and to Lamrocks Solicitors. However, a sealed copy of the orders should also be served in due course on the defendants in the regular way, and if the summons has not already been served, it also should be served. The defendants should also be given written notice that the matter is now stood over to 28 November 2005 before the Registrar. At that time a further continuation of the injunction may be sought, if there is material to support it, or provision can be made for the proceedings to be disposed of.