Brown v Hodgkinson [2008] NSWSC 625

Brown v Hodgkinson [2008] NSWSC 625

Although during deregistration the Company had no interest in the land and could not then sustain the caveat, ASIC's reinstatement meant the Company was taken to have existed throughout, the caveat lodged before deregistration continued to have effect, and the Company had capacity to make the extension application. The extension orders were orders of a superior court and were binding unless set aside. As there was no prejudice, confusion or utility in vacating them, and the undertaking as to damages was reaffirmed, the motion to vacate the orders was dismissed.

Jurisdiction
Australia
Judgment Date
18 June 2008
Procedural Posture
Supreme Court of New South Wales Equity Division Corporations List Motion / Defendants' Amended Motion to Vacate Orders Made by Nicholas J on 25 March 2008 and 27 March 2008 Extending the Operation of a Caveat
Outcome
Motion dismissed
Legal Topics
['deregistration and Reinstatement of Company' 'caveats Under the Real Property Act 1900 (nsw)' 'lapsing Notice' 'effect of Superior Court Orders' 'costs of Motion']
['corporations' 'real Property' 'civil Procedure'] ['deregistration and Reinstatement of Company' 'caveats Under the Real Property Act 1900 (nsw)' 'lapsing Notice' 'effect of Superior Court Orders' 'costs of Motion']

Case Brief

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Procedural Posture

Supreme Court of New South Wales Equity Division Corporations List Motion / Defendants' Amended Motion to Vacate Orders Made by Nicholas J on 25 March 2008 and 27 March 2008 Extending the Operation of a Caveat

Legal Issues

  1. 1 ['Whether orders extending the operation of a caveat should be vacated because the second plaintiff company was deregistered when the orders were made.' "What effect ASIC reinstatement under s 601AH(1) and s 601AH(5) of the Corporations Act 2001 (Cth) had on the company's existence, property and caveat." 'Whether the orders made by Nicholas J were a nullity or remained binding until set aside.']

Ratio Decidendi

Although during deregistration the Company had no interest in the land and could not then sustain the caveat, ASIC's reinstatement meant the Company was taken to have existed throughout, the caveat lodged before deregistration continued to have effect, and the Company had capacity to make the extension application. The extension orders were orders of a superior court and were binding unless set aside. As there was no prejudice, confusion or utility in vacating them, and the undertaking as to damages was reaffirmed, the motion to vacate the orders was dismissed.

Court Disposition

Motion dismissed

Orders

  • ['The Notice of Motion is dismissed.' "The second plaintiff is to pay the third defendant's costs of the motion from 4 April 2008 to 9 April 2008." "The third defendant is to pay the second plaintiff's costs of the motion thereafter until 18 June 2008."]