RGM Graphic Services Pty Ltd v Moon [2001] FCA 1799 (29 October 2001)

Last Updated: 14 December 2001

FEDERAL COURT OF AUSTRALIA

RGM Graphic Services Pty Ltd v Moon [2001] FCA 1799

RGM GRAPHIC SERVICES PTY LTD & ORS v ROBERT GEORGE MOON & ORS

N1128 of 2001

MADGWICK J

29 OCTOBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1128 of 2001

BETWEEN:	RGM GRAPHIC SERVICES PTY LTD (ADMINISTRATOR APPOINTED) (ACN 083 056 777) FIRST APPLICANT
	IAN FORRESTER KERR SECOND APPLICANT
	WAYNE PATRICK BONHAM THIRD APPLICANT
AND:	ROBERT GEORGE MOON FIRST RESPONDENT
	ACN 000 686 064 PTY LIMITED (IN LIQUIDATION) (FORMERLY CALLED RGM GRAPHIC ARTS PTY LIMITED) SECOND RESPONDENT
	AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION THIRD RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	29 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Australian Securities and Investment Commission be added as a respondent to the proceedings.

2. The applicants pay their own costs of the notice of motion filed on 13 September 2001.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1128 of 2001

BETWEEN:	RGM GRAPHIC SERVICES PTY LTD (ADMINISTRATOR APPOINTED) (ACN 083 056 777) FIRST APPLICANT
	IAN FORRESTER KERR SECOND APPLICANT
	WAYNE PATRICK BONHAM THIRD APPLICANT
AND:	ROBERT GEORGE MOON FIRST RESPONDENT
	ACN 000 686 064 PTY LIMITED (IN LIQUIDATION) (FORMERLY CALLED RGM GRAPHIC ARTS PTY LIMITED) SECOND RESPONDENT
	AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION THIRD RESPONDENT

JUDGE:	MADGWICK J
DATE:	29 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 In this matter, the applicants have brought proceedings against a personal respondent and what they understood to be an extant company. It transpires that the company had been deregistered and so had ceased to exist before the institution of the proceedings. The relief that the applicants seek includes that, in consequence of what is said to have been, among other things, misleading or deceptive conduct by the respondents, the first applicant should in

effect be relieved of liability under a charge which had been granted to the erstwhile company mistakenly sued.

2 An application, by way of notice of motion, is now made in substance to add the Australian Securities Investment Commission ("ASIC") as a respondent and to amend the application and statement of claim in the principal proceedings in order to clarify the claim about the charge. On deregistration, the erstwhile company's property vested in ASIC and such property probably included the erstwhile company's rights under the charge. The amendments seek consequential relief to prevent ASIC from enforcing the charge.

3 ASIC's position is one of, what might be called, cautious neutrality. It takes the view that should the applicants' claims to have been deceived, misled or otherwise legally wronged be accepted by the Court, then it would submit to an order to the effect of that sought. However, it takes the view that it cannot, without orders of the Court, agree not to enforce the charge.

4 In correspondence between the parties, the solicitors for ASIC have drawn attention to a line of cases, namely, Morris v Harris [1927] AC 252, Astaire Pty Ltd v Cavanagh (unreported, 23.2.87, Supreme Court of Western Australia, Master Seaman) and Total Eden Pty Ltd v Pipeline Properties Pty Ltd (1990) 8 ACLC 1075 (Supreme Court of Queensland, Master Bredmeyer). ASIC has suggested that a more appropriate remedy may be to have the second respondent reinstated, pursuant to s 601RH(2) of the Corporations Law. This is because that line of cases suggests that the proceedings, at least as against the second respondent, are null and, that being so, ASIC cannot be substituted as a respondent.

5 Mr Biscoe QC, for the applicants, has fairly and properly put the matter entirely before the Court and has persuaded me that that line of authority is distinguishable because there is a valid proceeding on foot against the personal respondent, Mr Moon. That being so, there is no reason why ASIC cannot be added as a respondent. The matter has of course, not been fully argued and it would not be appropriate to express any final view but, at least in this Court and having regard to O 6 r 7, 8 and 9 of the Federal Court Rules and in particular, r 9, which provides:

"Where a party:

(a) has been improperly or unnecessarily joined; or

(b) has ceased to be a proper or necessary party;

the Court, on application by any party or of its own motion, may order that he cease to be a party and make orders for the further conduct of the proceeding."

it may perhaps be doubted whether there is much room for the continued application of that line of authority which, however well grounded in legal theory, seems likely, in practice, to be only productive of a waste of money and time.

6 Accordingly, I will order that ASIC be added as a respondent and that leave be granted to the applicants to amend their application and statement of claim, substantially in accordance with the draft proposed by them. The applicants will pay their own costs of the notice of motion.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 13 December 2001

Counsel for the Applicants:	P Biscoe QC
Solicitors for the Applicants:	Bowles & Co
Date of Hearing:	29 October 2001
Date of Judgment:	29 October 2001