Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38

Reported Decision: 71 NSWLR 262

New South Wales Court of Appeal

CITATION: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38

HEARING DATE(S): 14 February 2008

JUDGMENT DATE: 2 April 2008

JUDGMENT OF: Spigelman CJ at 1; Tobias JA at 102; Campbell JA at 103

1 Grant leave to appeal; 2 Upon the filing of the Further Amended Notice of Appeal: (i) Allow the appeal; DECISION: (ii) Set aside the order made by Barrett J on 5 March 2007; (iii) Direct ASIC to rectify the register kept under s 118 of the Corporations Act 2001 by vacating the reinstatement of the registration of the second respondent; (iv) Set aside Order 1 made by Barrett J on 11 May 2007; (v) Remit the first respondent's application for reinstatement of the second respondent. 3 The respondents to pay the appellants' costs of the proceedings on the Interlocutory Process dated 14 March 2007 in the Court below, of the application for leave to appeal and of this appeal.

CATCHWORDS: APPEAL – practice and procedure – powers of the court – remit - CORPORATIONS – winding up - order for reinstatement of a company following voluntary winding up – consequent reinstatement of the company to the register by ASIC – effect of reinstatement – power of the court to order rectification of the register to complement setting aside the order for reinstatement – Uniform Civil Procedure Rules 2005 r 36.15 – Corporations Act 2001 (Cth) s 601AH, s 1322(4) - PROCEDURE – orders of the court - power of the court to set aside an order – requirement of irregularity - Uniform Civil Procedure Rules 2005 r 36.15 – irregularity in failing to disclose to the court – Corporations Act 2001 (Cth) s 601AH(2)(b) – irregularity in denying procedural fairness to affected party – effect of presence of an observing solicitor in court proceedings - WORDS & PHRASES – "rectify", "rectification"