Application to terminate winding-up of a company based on non-service of the petition at the registered office of the company

Appearance : Mr D John (By leave) for Esanda Finance Corporation Ltd

Respondent : Australian Securities & Investments Commission

Cheshire Holdings Pty Ltd v Yap Cheng See, unreported; SCt of WA; Library No 950634; 22 November 1995

Yap Cheng See v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998

Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446

Re Warbler Pty Ltd (1982) 1 ACLC 323

1 MASTER BREDMEYER: This is an application as amended by Yap Cheng See ("Mrs Yap") and Kelvin Chong Chi Hoong ("Mr Chong") under s 482 of the Corporations Law to terminate the winding-up of a company. That section provides that at any time during the winding-up of a company the court may, on application, make an order staying the winding-up either indefinitely or for a limited time or terminating the winding-up on a date specified in the order. The application may be made by the liquidator, a creditor or a contributory of the company. Mrs Yap has filed a number of affidavits, including those of 26 May 2000, 6 June and 7 June 2000, in support of the application. Mr Chong has filed an affidavit in support of the application sworn 7 June 2000. Ms Florentina Mansilungan Capinpin has sworn an affidavit in opposition on behalf of the Australian Securities and Investments Commission ("ASIC") sworn 8 June 2000. Mr John, for Esanda Finance Corporation Ltd ("Esanda"), appeared by leave and has tendered to me a number of papers which were before the court in a previous hearing before Steytler J.

2 The company, due to a recent change of name, is now known as Cheshire Securities Pty Ltd.

3 Mrs Yap is an undischarged bankrupt. As such her shares vest in the official trustee in bankruptcy. He has not brought this application. She is not therefore a shareholder or, in the words of the section, a contributory. Therefore she is not eligible to bring this application. That is sufficient to dismiss her role in the application.

4 Mr Chong in his affidavit states that he is a shareholder and director of the company. He says that the company was wound up on 5 September 1990 on the petition of Peter Fermanis for a debt of $105,000. He says that the petitioner has been paid $117,024.83. Mr Fermanis in an affidavit says that he is still owed $30,763.74 plus interest plus taxed costs. It is not necessary for me to rule on that dispute.

5 Mr Chong's ground for termination of the liquidation is that the winding-up petition was not served validly because it was not served on the registered office of the company. It was served at 10th Floor, 190 St George's Terrace, Perth, being the office of Arthur Andersen & Co. It was served on 21 June 1990 and the winding-up order was made on 5 September 1990. There was no appearance on behalf of the company at the hearing of the winding-up petition. The order was made by Master White as he then was. Mr Chong says that the service of that address was wrong because the registered office at the time was at 449 Canning Highway, Melville, WA 6156. In an ASCOT search of Cheshire Securities Pty Ltd as it now is, the present registered office is stated as 57 Whaleback Avenue, Parkwood, WA 6147, start date 13/12/1999, document 015986383 (AR 1998) and the previous registered office is shown as 449 Canning Highway, Melville, WA 6156, start date 19/08/1987, cease date 12/12/1999, document 016029286. An ASCOT search is prima facie evidence of its contents, see s 1274B of the Corporations Law. As s 1274B(2) states, that evidentiary status can be displaced by contrary evidence. ASIC has produced to me as part of Ms Capinpin's affidavit document 016029286 which is the source document justifying the statement that the registered office was at 449 Canning Highway, Melville between August 1987 and December 1999. That document is a notification of change of address etc, filed by Mr Chong on 7 February 2000. It states that there is a new registered office at 449 Canning Highway, Melville WA 6156 and gives the date of that change as 19/08/87. It is clear from this document that the ASCOT search is wrong. The registered office of the company in 1990 was not at 449 Canning Highway, Melville. I am, of course, referring to the "registered" office being the office registered with ASIC or its predecessor as the office of the company. The address at 449 Canning Highway was only notified to ASIC in February 2000. So until that notification was made, the registered office remained as in the ASIC's records as previously stated at 10th Floor, 190 St George's Terrace, Perth. It was the company's responsibility to notify ASIC of its correct address. I note that this company did not lodge any returns from 1988 onwards. That led to its deregistration in 1992. The application should be dismissed.

6 Mrs Yap applied in 1994-1995 for a permanent stay of liquidation and reinstatement of the company, which was then deregistered, in COR 220 of 1994 and COR 237 of 1994. Those two applications came on for hearing together before Steytler J and were considered in a published judgment in Cheshire Holdings Pty Ltd v Yap Cheng See, unreported; SCt of WA; Library No 950634; 22 November 1995. On that occasion Mrs Yap appeared in person and the application was opposed by Esanda and ASIC. I note that Mrs Yap's purpose in seeking re-registration and a stay of the liquidation was in order to bring a claim against Esanda for a substantial sum of money arising out of its financing of a building project at Curtin University. The applications were dismissed for reasons given.

7 Mrs Yap appealed against the decision in relation to the reinstatement of Cheshire. She did not appeal in relation to the application for a permanent stay. She later sought leave to extend the time in which to appeal in relation to the permanent stay but this application was dismissed by a Master. I learn of these events from the Full Court decision Yap Cheng See v Cheshire Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 980181; 9 April 1998.

8 The decision of Steytler J did not discuss Mrs Yap's argument that the winding-up petition had not been served on the registered office of the company. Nevertheless, that matter was argued before Steytler J. It was raised by her in a number of affidavits before the Judge. In an affidavit sworn by Mrs Yap on 13 September 1995 she stated:

"9. Mr Fermanis sent his winding-up notice to KPMG Hungerford which was no longer Cheshire's registered office, therefore Cheshire had no notice of the winding-up petition effected by Mr Fermanis."

For example, in an affidavit sworn by her on 25 September 1995 in COR 237 of 1995, she said and I quote:

"7. I received no notification of the winding-up proceedings as they were served on the office of KPMG Hungerfords although, at the time, I had arranged for the registered office of Cheshire to be changed to 449 Canning Highway, Melville which address has been the registered office of Cheshire since January 1988."

Later in that affidavit at par 13 she quoted s 528(1) of the Companies Code about service on a company by leaving it at or sending it by post to the registered office of the company. She said in that affidavit that Cheshire had no notice of Mr Fermanis' petition and therefore could not be present for the hearing. In another affidavit sworn by her on 26 July 1994 in COR 220 of 1994 and filed "in support of her application for reinstatement of the company" she raised the same point. I quote:

"11. I received no notification of the winding-up proceedings as they were served on the office of KPMG Hungerfords, although, at the time, I had arranged for the registered office of Cheshire to be changed."

Mr John also tendered a written submission by Mrs Yap dated 9 October 1995 in COR 220 of 1994, COR 175 of 1995 and COR 237 of 1995 prepared for the hearing before Steytler J, in which she raised the same point in relation to Mr Fermanis' petition to wind-up Cheshire based on a judgment debt owing to him. I quote from par 21:

"21. His petition was sent to KPMG Hungerfords which ceased to be Cheshire's registered office since 1 January 1988. Thus, Cheshire was unaware of Mr Fermanis' winding-up petition and on the day of the hearing, Mr Fermanis had a field day being the only creditor of purported debt and the one seeking the winding-up of Cheshire, the obvious reason being to make it extremely difficult for Cheshire to pursue Esanda for their Act of Larceny".

9 Mr John also referred me to p 36 of the transcript of the hearing before Steytler J on 7 November 1995 where Mrs Yap raised the same point that Mr Fermanis petition was sent to KPMG Hungerfords when the company had a year before changed its registered office to 449 Canning Highway, Melville.

10 Although not discussed by Steytler J, I consider his failure to do so was arguably an appeal point which she could have raised on appeal. I consider that now produces an estoppel against her. However, Mr Chong was not a party to that application and I do not consider he is estopped from raising the non-service point.

11 The non-service argument is not a good one. The registered office was not at 449 Canning Highway, Melville, in 1990. This application will be dismissed. Costs should follow the event. ASIC has not asked for costs. It is pointless ordering costs against Mrs Yap who is bankrupt. I will order Mr Chong to pay Esanda's costs of the application to be taxed if not agreed.