Plaintiff v Defendant

Supreme Court of Victoria|2017-10-13|Before: RANDALL AsJ

CORPORATIONS - Corporations Act 2001 (Cth) - Proceeding commenced in the name of a deregistered company as plaintiff - Judgment given against the plaintiff - Whether proceeding a nullity - Reinstatement - Corporations Act 2001 (Cth), s 601AH(2)(a) - Applicant the defendant in the proceeding - Whether the applicant a 'person aggrieved' - Corporations Act 2001 (Cth), s 601AH(2)(b) - Whether 'just' that company's registration be reinstated - Leave to an intervener to appear and make submissions - (Cth), - Whether the proceeding is rehabilitated upon reinstatement - Whether order futile - In the absence of a determination of futility, not appropriate to delve into the merits of the rights of the applicant.

1 Pursuant to an originating process filed by the applicant, Geelong Football Club Ltd ('the Club'), orders were sought pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) ('Corporations Act') as follows:

(a) pursuant to s 601AH(2) ... that the Australian Securities and Investments Commission reinstate the registration of [Pt Cook Community Entertainment Facility Pty Ltd ('Pt Cook')]; and

(b) pursuant to s 601AH(3)(c) ... a declaration validating the issue of Supreme Court proceeding No. S ECI 2017 00030 in the name of [Pt Cook].

2 The originating process first came on for hearing before Gardiner AsJ on 11 August 2017. Orders were made by consent without the necessity for any appearance. The Judge noted in other matters:

PCCEF Pty Ltd (ACN 130 656 147) ('PCCEF') seeks leave to be heard at the hearing of the application and, if granted leave to be heard, oppose the orders sought by the Applicant in its originating process.

By letter dated 2 August 2017, the Respondent [ASIC] confirmed it would not be appearing at the hearing of the application.

On 8 August 2017 PCCEF filed and served a notice of appearance.

3 Sub-sections 601AH(2), (3) and (5) of the Corporations Act provide:

Reinstatement by Court

(2) The Court may make an order that ASIC reinstate the registration of a company if:

(a) an application for reinstatement is made to the Court by:

(i) a person aggrieved by the deregistration; or

(ii) a former liquidator of the company; and

(b) the Court is satisfied that it is just that the company's registration be reinstated.

(3) If:

(a) ASIC reinstates the registration of a company under subsection (1) or (1A); or

(b) the Court makes an order under subsection (2);

the Court may:

(c) validate anything done during the period:

(i) beginning when the company was deregistered; and

(ii) ending when the company's registration was reinstated; and

(d) make any other order it considers appropriate.

Note: For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2).

...

Effect of reinstatement

(5) If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

4 The issues in this particular application are as follows:

(a) is the Club 'a person aggrieved by the deregistration' for the purposes of s 601AH(2)(a)(i) of the Corporations Act; and

(b) is it 'just' that Pt Cook's registration be reinstated?

5 Additionally, I am required to consider whether or not I ought to give leave to PCCEF Pty Ltd ('PCCEF') to be heard and oppose the orders sought.

6 On 9 June 2017, Croft J handed down judgment in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd.[1] The plaintiff was Pt Cook and the defendant was the Club. The opening paragraph of Croft J's judgment sets out:

This proceeding raises a question of construction of market rent review provisions in a commercial lease. The Plaintiff, Point Cook Community Entertainment Facility Pty Ltd, is the owner of "The Brook" situated at 5 Sneydes Road, Point Cook in Victoria ("the Premises"). The Plaintiff leased the Premises to the Defendant, Geelong Football Club Ltd, for a term of 20 years, commencing on 5 June 2009, together with three further terms, each of ten years, by a lease executed on or about the commencement date ("the Lease"). The Lease was preceded by a Deed of Variation of Agreement to Lease and Lease between PCCEF Pty Ltd and the Defendant dated 24 July 2008 ("the Deed of Variation").[2]

(a) there was no dispute that from 1 October 2009 PCCEF and not Pt Cook was the lessor under the Lease and the Club's landlord;

(b) that the timeframe was that the agreement to lease entered into between the Club and Pt Cook was 'followed' (and not 'proceeded') by a Deed of Variation of Agreement to Lease and the Lease between PCCEF and the Club; and

8 Croft J found in favour of the Club and on 9 June 2017 made orders which had been submitted by agreement by the parties as follows:

The notice dated 21 December 2016 given by the defendant in respect of a market rent review under the lease of premises at 215-221 Sneydes Road, Point Cook was valid and effective to invoke the Market Rent Review procedure set out in Schedule 2 of the lease.
Clause 7 of Schedule 2 only operates to limit any increase in rent consequent on a market rent review in the first year after the Market Rent Review Date but not in subsequent years so that where the current market rent as determined by the Market Rent Review procedure set out in Schedule 2 of the lease is either less than or more than the rent payable in the year prior to the Market Rent Review Date ("the previous rent"), the rent payable in the second and subsequent years after a Market Rent Review Date can be less than the previous rent or more than 8% higher than the previous rent.

The plaintiff is to pay the defendant's costs of and incidental to the proceeding including reserved costs, such costs to be agreed or in the absence of agreement to be taxed on a standard basis.[3]

9 I will not recite all the correspondence that preceded the institution of the proceeding or ensued thereafter. It is sufficient to refer to what I will set out in the following paragraphs.

10 On 10 November 2016 the Club's solicitors wrote to PCCEF with respect to, inter alia, a rent review. That letter enclosed a rent notice dated 9 November 2016, together with a copy of a market rent valuation report supporting the Rent Notice.

11 Law firm, Grindal & Patrick responded to that letter. That letter set out that the firm acted for PCCEF and had been instructed to respond to the letter of 10 November 2016.

12 By further letter dated 24 January 2017, Grindal & Patrick wrote to the Club's solicitors with respect to the rent review. The letter was entitled Re: PCCEF ... to [the Club] - the Brook, 215-221 Sneydes Road, Pt Cook. That letter concluded:

...Unless your client withdraws its purported notices, our client will consider commencing Supreme Court proceedings to obtain a declaration as to the proper operation of the rent review provisions in the lease so as to allow it to sell its property free of dispute with the tenant.

In that respect, please confirm whether or not you hold instructions to accept service. We confirm we hold those instructions on behalf of our client.

13 On 14 June 2017, subsequent to the publishing of the judgment by Croft J and the making of the orders, Grindal & Patrick wrote to the Club's solicitors and relevantly set out:

Despite judgment having been made in favour of the defendant's interpretation of the lease, our client maintains that the annual rental cannot be varied to a market-based rental from a date other than a market rent review date and that the lease does not permit the annual rental to reduce in any circumstances.

Accordingly, we have been instructed to lodge an application for leave to appeal.

14 It appears that the appeal was never filed. The time for appeal was 28 days from the date of Croft J's Judgment.

15 Prior to the time limited for the filing of an appeal, Grindal & Patrick wrote to the Club's solicitors on 3 July 2017. It is appropriate to set out the content of the whole of that letter:

We refer to the judgment of Justice Croft delivered on 9 June 2017.

Plaintiff deregistered

As you know, the parties in proceeding number S ECI 2017 00030 are listed in the Originating Motion and all subsequent documents filed with the Court as Point Cook Community Entertainment Facility Pty Ltd (ACN 123 118 187) (Plaintiff) and the Geelong Football Club Ltd.

The plaintiff was deregistered on 25 August 2010. As you are no doubt aware, on deregistration a company ceases to have a legal personality. In practical terms, it ceases to exist.

We should note that prior to deregistration, the plaintiff's correct name was Pt Cook Community Entertainment Facility Pty Ltd, and not Point Cook Community Entertainment Facility Pty Ltd.

Basis for Grindal & Patrick writing this letter

This firm no longer acts for PCCEF Pty Ltd. Strongman & Crouch have been appointed as solicitors for that entity, and the relevant contact person is Jonathan Joseph. A copy of this letter will be sent to Mr Joseph.

As a matter of law, we cannot act for the plaintiff as it does not exist. We are writing this letter solely in our capacity as officers of the Court.

Next steps

We suggest that the proceeding be called on for mention before Justice Croft to bring these matters to his Honour's attention and for the appropriate orders to be made.

It is our view that we should contact his Honour as soon as possible. In the event that we do not hear from you by 4pm today, we will contact his Honour's associate with this suggestion and copy you in to that correspondence.

16 By summons filed 6 July 2017, the Club sought orders:

An order that references to [Point Cook] in the orders made on 9 June 2017 and authenticated on 14 June 2017 [sic] (9 June orders) be substituted with references to PCCEF Pty Ltd.
In the alternative to the order at paragraph 1:

(a) An order that PCCEF Pty Ltd be joined to the proceeding as an additional plaintiff pursuant to r 9.07(1) of the Rules; and

(b) By way of supplemental order to the 9 June Orders:

(i) A declaration that the declarations at paragraphs 1 and 2 of the 9 June orders are binding upon PCCEF Pty Ltd; and

(ii) An order that the costs payable pursuant to order 3 of the 9 June Orders are payable by PCCEF Pty Ltd.

17 It would be fair to say that the Club did not accept that the proceeding was prosecuted other than by PCCEF. The controlling mind of each of the corporations was Michael Vickers Willis from whom Grindal & Patrick received instructions and all the documentation referred to in the proceeding was between the Club and PCCEF.

18 The proceeding was mentioned before Croft J on 7 July 2017. At that hearing the Club's summons was adjourned to enable the application to be made for reinstatement.

19 By email dated 21 July 2017 addressed to the Club's solicitors, PCCEF's solicitors relevantly set out:

As foreshadowed by our client's senior counsel at the hearing before the Honourable Justice Croft on 7 July 2017 Supreme Court of Victoria proceeding ... our client intends to commence a proceeding in the Supreme Court of Victoria against [the Club] seeking relief including:

A declaration as to the proper construction of the rent review provisions in the lease agreement made on or about 1 October 2009 by which PCCEF leased to [the Club] the property situated at 215-221 Sneydes Road Point Cook; and
In the alternative, that the relevant provisions of the lease be rectified.

20 That proceeding has subsequently been filed but not served.

21 It is clear that the new proceeding insofar as it relates to the construction of the Lease, seeks to do nothing more than raise the same issues as were agitated before and determined by Croft J. There is the added claim for rectification in the event that the construction point is once again decided adversely to PCCEF.

22 PCCEF is not directly affected by any order which I may make reinstating Pt Cook. It may be that the rights or liabilities of PCCEF are affected adversely by any order which is eventually made by Croft J. In Chalker v Clark, the Court of Appeal was concerned with a decision by Whelan J to reject the appellant's application for an order pursuant to s 601AH(2) of the Corporations Act.[4] In consideration of the appeal, Osborn AJA stated that Whelan J was correct to observe as follows:

It is often not appropriate for prospective defendants to a proceeding proposed to be pursued after reinstatement of a deregistered company to be permitted to make submissions as to the merits of the proposed action on the reinstatement application. In some circumstances, it is appropriate to entertain such submissions. For example, where it can be demonstrated that reinstatement is futile, as the proposed cause of action is clearly statute barred.[5]

23 His Honour referred to the decisions in Pilarinos & Ors v ASIC[6] and AMP v Victorian Workcover Authority.[7] In my view, these authorities warranted his Honour's observations.

We are told that the interested parties were granted leave to make submissions and that they provided evidence, but were not formally made parties. In our view, the substance of the matter is that they were allowed to intervene, and have intervened, in the proceeding and have participated as the only active respondents to both the application and to this appeal. There would have been no contradictor but for the presence of the interested parties.

Had it fallen to us to decide, we would have granted them leave to intervene formally in the appeal for that purpose. Not only did they have a proper interest to assert, and proper submissions to make about why the appeal should fail, but it was in the public interest that there be a contradictor for the assistance of the court.

It follows that the interested parties would have been exposed to costs if, having opposed the appeal, it had succeeded. Accordingly, having opposed the appeal successfully, they should have their costs of the appeal in the usual way. That accords with the view taken on the only other occasion when this matter was in this Court, that is, on 23 February last year, when orders were made extending time for filing a notice of appeal. The applicant was then ordered to pay what were described as the respondents' costs. That can only have been a reference to the interested parties represented by Mr Scott.[8]

25 Putting aside the issue of whether PCCEF has the requisite 'proper interest' I have been assisted by submissions made on its behalf and I concur with the notion that a contradictor assists the Court. Accordingly, I grant leave to PCCEF to appear and intervene as an interested party.

26 The position propounded by PCCEF can be succinctly summarised as:

The Club is not an aggrieved person. PCCEF submitted that there was no causal link between the Club's grievance and Pt Cook's deregistration on the following basis:

(i) GFC's 'grievance' is that Croft J's judgment in proceeding 00030 does not bind the lessor (PCCEF) under the subject lease;

(ii) that grievance was caused not by Pt Cook's deregistration but by proceeding 00030 being commenced in the name of the wrong party; and

(iii) that grievance would subsist whether or not Pt Cook had been deregistered.[9]

It is not just that Pt Cook be reinstated. It is an 'insurmountable defect in jurisdiction that a proceeding commenced by a non-existing company is null and void ab initio'.[10] In the circumstances, PCCEF's proceeding 00181 [the new proceeding] is the appropriate vehicle to agitate issues with respect to the lease.

The s 601AH(2) of the Corporations Act requirements

27 In Pilarinos v Australian Securities Investment Commission,[11] Gillard J said of 'a person aggrieved by the deregistration' as follows:

It is important to note the wording of sub-s (2). First, the phrase 'a person' is not defined or qualified in any way. Secondly, there is no time limit.[12]

...

As a general rule, the phrase should be given a wide application. In another context, in The AttorneyGeneral of the Gambia v N'Jie,[13] Lord Denning, speaking for the Privy Council, said:

"The words 'person aggrieved' are of a wide import and should not be subjected to a restrictive interpretation. I do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest."[14]

...

The question arises whether a person can be aggrieved as a result of events which occur after the deregistration. In my opinion, there is nothing in the legislation which requires that the applicant must have been aggrieved at the time of the deregistration. Indeed, the history of the legislation, and in particular, the widening of the category of persons who could be aggrieved and, further, the removal of any time limit, supports that view. The actual words of the sub-section themselves do not restrict the application to the grievance being in existence at the date of deregistration. The sub-section requires a causal link between the grievance and the deregistration, but no temporal restriction.[15]

...

In my opinion, the question of whether or not a person is aggrieved is to be determined at the date of the hearing. If the fact that the company remains deregistered would cause grievance to a particular person or entity, then, in my view, the person or entity who brings the application is an aggrieved person. In my opinion, the questions for determination are:

As at the date of the application, do the facts show that the applicant is aggrieved by the deregistration? If yes, is the grievance genuine, real and not merely theoretical, petty or fanciful?

If the answer to the latter question is also yes then, in my opinion, the person is an aggrieved person within the meaning of s.601(AH)(2) of the Act.[16]

(a) the Club was the successful party in the proceeding 2017 00030; and

(b) unless [Pt Cook] is reinstated, the Club faces the prospect of proceeding 2017 00030 be regarded as a nullity and, as a consequence, being deprived of the benefit of the 14 June orders [Sic: 9 June 2017] (which the Club will seek to bind PCCPF to) and having to defend the re-litigation and subject matter in proceeding 2017 00030 by PCCEF.[17]

29 The Club adopted the words of Refshauge ACJ in Commonwealth of Australia v Davis Samuel Pty Ltd (No.11),[18] where it was noted that the applicant could apply for reinstatement of a deregistered party to a Court proceeding, and would 'clearly be an aggrieved person within the meaning of s 601AH(2)(a)(i).'[19]

30 Apart from the substitution or joinder issues to be agitated before Croft J, the Club has an interest in prosecuting the costs order obtained in the order made by Croft J on 9 June 2017. Even if I were to accept PCCEF's submissions that the proceeding was a nullity and remains a nullity without the prospect of rehabilitation it does not follow that there is no prospect that the Club will not be able to obtain an order for costs against Pt Cook even if the costs order of 9 June 2017 is also void.

31 By s 24(1) of the Supreme Court Act 1986 (Vic), the Court has 'full power to determine by whom and to what extent the costs are to be paid.' That power extends to, in the appropriate circumstances, making costs orders against non-parties,[20] against the practitioners or even where there is no jurisdiction as to the subject matter of the proceeding.[21]

32 In Norbis v Norbis,[22] the High Court considered the Family Law Act 1975 which gave the Family Court power to make orders for the distribution of property according to what is 'just and equitable'. Mason and Deane JJ said that such an order was discretionary -

because it depends on the application of a very general standard - what is 'just and equitable' - which calls for an overall assessment in the light of the factors mentioned in [the Act], each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.[23]

33 In AMP General Insurance Ltd v Victorian Workcover Authority,[24] the Court of Appeal comprising of Maxwell P and Neave JA considered the power to order reinstatement if 'the Court is satisfied that it is just' to do so. In considering the courts discretion in this regard, Maxwell P and Neave JA made the following observations:

In our view, the decision to order reinstatement is properly characterised as a discretionary decision of the kind described in Norbis v Norbis. The decision has all of the features there referred to. The decision depends on the application of a very general standard - what is 'just'. The standard is so general, indeed, that it might be thought to do no more than make explicit the duty implicitly imposed on every decision-maker - to consider and weigh, fairly and rationally, all the relevant considerations. What is 'just' is a value judgment, and there is room for reasonable differences of opinion, no particular opinion being uniquely right.[25]

34 Senior counsel for PCCEF submitted that the reinstatement of Pt Cook is 'futile'. The platform for such a submission is that the proceeding before Croft J was a nullity having been commenced by a non-existent company. Further, by reason of the novation of the agreement to lease or the commencement of the new lease on or about 1 October 2009, Pt Cook 'has no cause of action and has never had a cause of action to assert'.[26]

35 The primary authority relied upon by PCCEF is Stergiou v Citibank Savings Ltd ('Stergiou').[27] Stergiou concerned a long and tortured procedural history, whereby Citibank Savings Ltd had sought possession of a house based upon failure to comply with obligations under a mortgage. It transpired that Citibank Savings Ltd had been deregistered on 13 June 1996. The mortgage which had been executed in favour of Citibank Savings Ltd had been assigned to Citibank Pty Ltd prior to the commencement of the proceeding and the notice requiring payment had been served by a deregistered company requiring payment of a debt which was no longer owed to it. Eventually Citibank Savings Ltd obtained summary judgment for possession of the property. That decision was appealed to the ACT Court of Appeal. In the course of hearing that appeal the status of Citibank Savings Ltd became relevant. Crispin P adjourned that appeal to enable an application for reinstatement to be made. Since the application was interlocutory in character the President heard the application as a single judge of the Court of Appeal.

In support of the application Mr Meagher submitted that the reinstatement of Citibank Savings Ltd would effectively restore it to the position that it would have enjoyed had it never been deregistered. Since, it would be taken to have existed throughout the whole period of the period since 19 February 2003, the proceedings would not be seen as a nullity but would, in effect, have been retrospectively validated. In that event, Citibank Pty Ltd, which is the company to which the rights under the mortgage had been assigned, could be joined as plaintiff in lieu of Citibank Savings Ltd and the judgment amended accordingly.[28]

...

37 Crispin P rejected that submission on five relevant bases.

First, I am unable to see how orders could be made in proceedings that are a nullity that would not equally be nullities.

Second, the application is made by two companies, one that is unregistered, and hence has no standing to make any such application, and the other that is not a party to the proceedings.

Third, I am unable to accept that it would be an appropriate exercise of the power conferred by s 601AH of the Corporations Act (2001) (Cth) to reinstate a company, not for the purpose of asserting any rights of or against it, but merely as a technical device intended to retrospectively validate proceedings that have been a nullity since their inception. Even if so validated, the proceedings could ultimately have no effect on the rights or obligations of the reinstated company because it had divested itself of any rights under the mortgage.

Fourth, even if the proceedings could be retrospectively validated, the appellants would not only be entitled to succeed in their appeal but to an order for summary judgment. The proceedings were founded upon the service of a s 93 notice invalidly issued by a deregistered company demanding payment of a debt which had not been owed to it.

Fifth, I am unable to see anything in s 601AH that suggests that the power thereby conferred was intended to permit the retrospective validation of orders made in proceedings that were a nullity at a time when the orders were made.[29]

38 Crispin P relied upon International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India ('International Bulk Shipping'),[30] in support of the first impediment being that 'all proceedings for or against a deregistered company are a nullity.'[31] In International Bulk Shipping, Evans LJ proceeded on the basis that:

The general rule is that an action commenced in the name of the non-existent person, or company, is a nullity: see ... Lizard Bros & Co Midland Bank Ltd [1933] AC 289 at 296 ... Dubai Bank v Galadari (No 4) (1990) Times, ...[32]

39 Evans LJ then considered if it was possible to apply the rules of procedure to permit the Court to add or substitute a new party. However, the English Court of Appeal did not consider the effect of a provision such as s 601AH.

40 In Commonwealth of Australia v Davis Samuel Pty Ltd (No 11),[33] Refshauge ACJ considered the inherent power of the Court to set aside a judgment and whether such judgment was a nullity. The sixteenth defendant was joined to the proceeding on 19 February 1999. On 14 March 2004, it was deregistered. Judgment was entered against the sixteenth defendant after its deregistration. The sixteenth defendant argued that the judgment entered against it was a nullity and ought to be set aside.

41 Refshauge ACJ noted that the notion of what is a nullity has 'bedevilled the courts and there is no clear answer.'[34]

42 Refshauge ACJ drew a distinction between the death of an individual and the deregistration of a company, noting that reinstatement was possible pursuant to s 601AH. The Acting Chief Justice made the following observations:

Thus, the process of deregistration is, unlike the death of an individual, more akin to the description given by Lord Blanesburgh in Morris v Harris [1927] AC 252 at 269, as follows:

[When the former dissolution of a company is declared void, the] company is restored to life as from the moment of dissolution but, continuing a convenient metaphor, it remains buried, unconscious, asleep and powerless until the order is made which declares the dissolution to have been void, then, and only then, is the company restored to activity.[35]

43 Refshauge ACJ noted Stergiou and the reliance placed upon International Bulk Shipping. His Honour also noted that the proceedings against the sixteenth defendant were valid when commenced. However, Refshauge ACJ observed that the Court (as is our Supreme Court) is a superior court of record and relevantly stated:

From this perspective, the following statement of McMurdo J, with whom McPherson JA and Holmes J agreed in Stone v ACE-IRM Insurance Broking Pty Ltd at [25]-[26], is apt:

[25] As Angel J remarked in Smart v Stuart [1992] NTSC 19; (1992) 83 NTR 1 at 7, the term "nullity" is a difficult one, because of its connotations of voidness. In the present case, there is, after all, a real proceeding: a claim and statement of claim has been sealed and issued. Had the appellant obtained a judgment in this proceeding, that judgment would not be a nullity: Cameron v Cole [1944] HCA 5; (1943) 68 CLR 571; Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158. In Cameron v Cole, McTiernan J said at 598-599:

Where a court is a superior court of record having general jurisdiction, it is impossible to treat any of its orders as a nullity. It may determine conclusively its own jurisdiction and whether the court determines it correctly or not, its order is valid.

In the same case, Rich J (Latham CJ agreeing) said at 590:

It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at worst voidable, and is valid unless and until it is set aside.

It may not now be correct to regard the Supreme Courts of the States as being courts of general jurisdiction: see Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at pp 211-212. But in the same case, Gleeson CJ cited with approval the above passage from the judgment of Rich J in Cameron v Cole, in which Rich J also said, at pp 590-591:

I am unable to feel any doubt that the Federal Court of Bankruptcy is a superior court. The language of Lord Green MR, in Craig v Kanssen [[1943] 1 KB 256 at 262], where he says that 'a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside,' is correct as an abstract proposition; but since the order before his Lordship was one of a superior court, the expression is somewhat misleading, and his statement that the distinction is 'between proceedings or order which are nullities and those in respect of which there has been nothing worse than an irregularity' [at 258] fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court (In re the Affairs of Hart [[1943] 169 LT 60]); but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion.

[26] It is then difficult to regard proceedings as a nullity in the sense that they are void whilst recognising that they can be the subject of a judgment which is valid unless and until set aside. To the extent that the expression is useful, it can only refer to a proceeding which is defective in a way which the court with its various powers, including those conferred by its particular rules of procedure, cannot cure. If there is an apparent remedial power under the procedural rules, the defect is curable and the proceeding should not be described as a nullity. It is the extent of the remedial power which defines what can be remedied, rather than the remedial powers being qualified by a characterisation of something as a nullity, according to what was said in other contexts and under different procedural rules. In the course of argument, Mr Bain QC, who led Mr Pyle for the respondent, submitted that Wigan v Edwards was itself an example of a proceeding which would be a nullity, but for the operation of r 375(2). That is to demonstrate that the categories of case fitting the description are affected by the content of the procedural rules. So, where the rules of court permit a defectively endorsed writ to be cured by an appropriate statement of claim, the writ is not a nullity, and it is effective as the commencement of proceedings for the purposes of the operation of a limitation period: Hill v Luton Corporation [1951] 2 KB 387; Pontin v Wood [1962] 1 QB 594.

This may be an answer to the Application by the Applicant Defendants. When judgment of a superior court of record has been given it is, on that account, unassailable except by appeal.[36]

44 In considering what to do with the judgment entered against the sixteenth defendant, Refshauge ACJ referred to Lazard Bros & Co v Midland Bank Ltd[37] and Deutsche Bank und Disconto Gesellschaft v Banque des Marchands de Moscou ('Deutsche Bank').[38] His Honour noted that in each case the judgment was declared a nullity given the non-existence of one of the parties but said 'In addition, there did not seem to be any equivalent to s 601AH for the Corporations Act in the relevant legislation in that case (referring to Deutsch Bank).'[39]

Further, in more recent times, proceedings that have not concluded by judgment have, it seems, been simply adjourned where there may be a realistic prospect of re-instatement as in Alyssa Treasury Services Ltd v Deputy Commissioner of Taxation [2009] FCA 1520; 77 ATR 917 and Care Park Pty Ltd v Universal One Communication Pty Ltd [2009] NSWSC 1405.

This is not an unreasonable response when, were the company to be re-instated, the proceedings could then continue and be properly conducted because of the effect of re-instatement: Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212; 1 Qd R 507.[40]

46 Sifris J in Hall v Australian Securities Investment Commission,[41] considered whether it was 'just' to restore a company to the Register which had been deregistered pursuant to the Company's Act 1928 (Vic). In noting some of the authorities in assisting with whether reinstatement would be 'just', Sifris J referred to Stergiou and noted that 'the Court refused the reinstatement application on the basis, inter alia, that the reinstatement order was "not for the purposes of asserting any right of or against it, but merely as a technical device, at [29] per Crispin P.'[42] Although noted, the reference cannot be said to form part of the platform of Sifris J's reasoning.

47 In Kingston Futures Pty Ltd v Waterhouse ('Kingston Futures'),[43] Applegarth J dealt with an application where a foreign corporation incorporated in the British Virgin Islands had instituted a proceeding in circumstances where it had been struck off the Register and therefore could not commence legal proceedings:

The defendant applied, inter alia, to strike out the proceedings. Before the application was heard, the plaintiff was reinstated to the Register ... and ... was 'deemed never to have been struck off the Register'. Expert evidence to prove the foreign law was tendered through an affidavit from a lawyer admitted to practice as a lawyer at the Bar in the British Virgin Islands and with other experience. The defendant persisted with the application contending that the proceeding would still be struck out on the basis that they were a nullity. [44]

48 Applegarth J was taken to Stergiou and to International Bulk Shipping and noted 'Stergiou turned on its own facts, and was not concerned with the consequences of reinstatement (whether by the Australian Securities Investment Commission or by a court order) whereby a company 'is taken to have continued in existence as if it had not been deregistered'.[45] A similar observation was made with respect to International Bulk Shipping.[46]

49 Similarly, in Oz-US Film Productions Pty Ltd (in liq) v Heath,[47] Master McLaughlin said:

Accordingly, the Plaintiff, having been reinstated, must since 15 December 1997 be deemed to have continued in existence throughout the entire time during which it was deregistered, including the time when the present proceedings were instituted. Thus the order of 15 December 1997 has the effect of retrospectively validating any proceedings or activity initiated or performed by the Plaintiff between dissolution and reinstatement. (See Silverstone Holdings Pty Limited v American Home Assurance Company (1997) 18 WAR 516). In particular, and in the circumstances of the instant case (where, as here, a company is deregistered whilst being a party to court proceedings, but achieves re-registration before it is removed from those proceedings), the proceedings continue unaffected, even if they were temporarily irregular during the period while the company was deregistered (see Jekos Holdings Pty Limited v Australian Horticultural Finance Pty Limited (1994) 121 FLR 362; Lidio Excellence Pty Limited v Cincotta (1998) 28 ACSR 389).[48]

50 PCCEF seeks to distinguish Davis Samuel (No 11),[49] Oz-US Film Productions Pty Ltd (in liq)[50] and Kingston Futures Pty Ltd[51] on the basis that each decision related to proceedings which had been validly constituted in the first instance and thereafter a party was deregistered. Further, in Kingston Futures the applicable British Virgin Islands law applied rather than the Corporations Act.

51 However, I can read no limitation into the decisions relied upon by the Club. This is particularly so when the other four basis outlined in Stergiou to which I referred in paragraph 35 are brought into consideration. For the following reasons, Stergiou can be distinguished from the present case.

52 It is clear that Crispin P determined that the unregistered company had no standing to make any such application. Clearly this must be correct. I cannot think of any case where the company itself would be a 'person aggrieved'.[52] Further, the circumstances where the directors would have any interest in reinstatement and fall within the category of 'a person aggrieved' would be almost non-existent. Additionally, as the deregistered company could not convene a meeting of directors to resolve to make the application, the impediments to making such an application would be almost insurmountable. Citibank Pty Ltd was not a party to the proceeding. Accordingly, it could have no interest in the proceeding or, itself, fall into the category of being 'a person aggrieved' until some other order were made in the original proceeding giving it standing. Consequently, its interest was contingent upon further orders made in that proceeding rather than upon any order made reinstating the deregistered company. In the present case, the application for reinstatement is not brought by the deregistered company itself, but on behalf of a company claiming to be 'a person aggrieved' by the deregistration. For the reasons stated above, I have determined that the Club has the relevant standing in order to bring such an application, pursuant to s 601AH of the Corporations Act.

Whether the reinstatement is merely a 'technical device'

53 Crispin P, in the third basis, viewed the proposed reinstatement as a 'technical device' intended to retrospectively validate proceedings. In his Honour's determination, the 'proceedings could ultimately have no effect on the right or obligations of the reinstated company because it had divested itself of any rights under the mortgage.'[53] Although PCCEF seized upon that position, I determine that the position in this case is distinguishable. If nothing more, the Club has an interest in reinstating the proceeding to facilitate any claim for costs it might have against Pt Cook. But, whilst recognising that the interest in the lease had been assigned prior to the commencement of the proceeding, it is in the position where it is open to contend that the use of Pt Cook's name in the proceeding before Croft J was an error. These circumstances are remarkably different from that of Stergiou. The summons filed by the Club on 6 July 2017 does not seek to join PCCEF to agitate some new cause of action against it. The purpose of joinder is on one view, to correct a misnomer in the name of the plaintiff. Rule 9.07(1) of Chapter 1 of the Supreme Court Rules may be applicable. Accordingly, an order of the Court is required. It cannot be considered that the Club will use a 'technical device' in the sense used by Crispin P. Of course correction of what is in effect a misnomer, is a technical device as various steps must be taken. However, that must be viewed in the sense that if Pt Cook is not reinstated, the club may lose its ability to assert that the proceedings ostensibly brought by Pt Cook were properly brought by PCCEF.

54 Crispin P accepted that the proceeding in Stergiou was a nullity. In contrast to Stergiou and in contrast to what is contended by PCCEF, this is not a straight forward case of the non-existent company commencing proceedings. Rather there is evidence to suggest (and both parties readily agree) that the proceedings were commenced with an error in the plaintiff's name. Therefore, the proceeding could equally be characterised as a misnomer or a mistaken identity which would be an irregularity rather than being a clear case of null and void. Having identified the issue, it is not appropriate for me to determine the point or say anything more. It is sufficient if I note that the prospect that the proceeding will be remediated by a determination of misnomer or mistaken identity does not fit comfortably with the concept that this proceeding is 'incurably bad'. It may well be that straightforward cases where proceedings are commenced by non-existent companies are a nullity, but this case is not one of them. I further note that in Deveigne v Askar,[54] a case upon which PCCEF relies, the Court made a distinction between an order being a nullity and needing to be set aside and the entire proceeding being a nullity.[55]

55 It has been recognised that room to declare proceedings null and void is very limited.[56] This is reinforced by a statutory regime that largely deems non-compliance with the rules to be an irregularity, and specifically excludes the possibility the proceedings of that type being nullities.[57] Further, I refer to and repeat what I noted before that the notion of what constitutes a nullity 'has bedevilled the Courts and there is no clear answer.'[58]

56 Given what I have outlined under this heading, the factors reinforce the conclusion that in special circumstances, such as the present, it is not a clear case of stating that the proceedings are a nullity, and therefore all decisions based upon it, are also nullities, as was the case in Stergiou.

57 In Stergiou, the application made to Crispin P was made at a time where there was an extant summary judgment application which had no prospect of success. Citibank Savings could not have relied upon the demand as no funds were payable to it. Whilst in the present case, the orders by Croft J are made in favour of the Club, who simply seeks to enforce them.

58 Furthermore, Crispin P's observation contained in the fifth basis for refusing the order is out of step with the regime of s 601AH. Upon reinstatement, Pt Cook is taken to have continued in existence as if it had not been deregistered.

59 I refer to the statement by Applegarth J in Kingston Futures (referring to Stergiou):

The decision did not address the situation that arises in the present proceedings where the registration of the company is reinstated before the Court determines the application to declare the proceeding a nullity.[59]

60 I further distinguish Stergiou on the basis that Citibank sought to rectify its own inattention to detail. The Club cannot be said to have initiated the predicament in which it finds itself in.

61 Finally, even if the orders of Croft J are a nullity, as PCCEF contends, no application has been made to set the decision of Croft J aside, and therefore the decision still stands. There is a wealth of authority that stands for the proposition that an order of a superior court is never void, only voidable, and therefore the judgment stands until an order is made to annul it.[60]

62 For these reasons, I consider that it is 'just' to reinstate Point Cook to enable the Club to explore any avenue it has to retrieve the cost expended in the proceeding before Croft J. I further determine, for the reasons set out, that it is 'just' to reinstate Pt Cook to enable the Club to make a further application before Croft J. It follows that I determine that there is utility in ordering the reinstatement.

63 Given the provision of s 601AH(5) of the Corporations Act I do not consider it necessary to make any orders pursuant to s 601AH(3) in this application.

1. The Defendant reinstate the registration of Pt Cook Community Entertainment Facility Pty Ltd pursuant to section 601AH(2) of the Corporations Act.

2. The Plaintiff lodge a copy of this order as authenticated with the Defendant together with a completed ASIC Form 105.

3. PCCEF pay the Plaintiff's costs of and incidental to the application, including reserved costs, on a standard basis.

[1] Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313.

[3] Orders of the Honourable Justice Croft in Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd, 9 June 2017.

[8] Chalker v Clark [2008] VSCA 92, [50]-[52].

[9] PCCEF, 'Outline of PCCEF's reply submissions', 8 September 2017, [2].

[14] [2006] VSC 301; (2006) 24 ACLC 775, [46] quoting Lord Denning in The AttorneyGeneral of the Gambia v N'Jie (1961) AC 617.

[17] Geelong Football Club Ltd, 'Plaintiff's Outline of Submissions', 4 September 2017, [16].

[20] See, eg, Manderson M & F Consulting (a Firm) v Incitec Pivot Ltd (No 3_)_ [2011] VSC 441.

[26] PCCEF, 'Outline of PCCEF's Submissions' 30 August 2017, [18].

[39] Commonwealth of Australia v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2; (2017) 316 FLR 159, [228].

[49] Commonwealth of Australia v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2; (2017) 316 FLR 159.

[50] Oz-US Film Productions Pty Ltd (in liq) v Heath [2001] NSWSC 298.

[51] Kingston Futures Pty Ltd v Waterhouse [2013] 1 Qd R 507.

[52] Section 601AH of the Corporations Act does not expressly provide for a deregistered company to apply for reinstatement of its own registration.

[53] Stergiou v Citibank Savings Ltd [2005] ACTCA 15, [29].

[56] Commonwealth of Australia v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2; (2017) 316 FLR 159.

[58] Commonwealth of Australia v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2; (2017) 316 FLR 159 [166].

[59] Kingston Futures Pty Ltd v Waterhouse [2013] 1 Qd R 507 [27].

[60] See eg, Brown v DML Resources Pty Ltd (No 4) [2001] NSWSC 947; (2001) 165 FLR 390; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; Schipp v Horfords Pty Ltd [1975] 1 NSWLR 412; Posner v Collector for Interstate Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461; New South Wales v Kable (2013) 252 CLR 118.

Court (General Civil Procedure) Rules 2015

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Judgment (157 paragraphs)

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Cases Cited (12)