Mikhail Distribution Services Pty Ltd v Australia Post [2004] NSWIRComm 235

Mikhail Distribution Services Pty Ltd v Australia Post [2004] NSWIRComm 235

The applicant company had been deregistered before the summons was filed and therefore did not exist when the proceedings were purportedly commenced. A deregistered company has no power to commence proceedings or instruct others to do so. Proceedings instituted by a non-existent entity are a nullity and constitute an abuse of the processes of the Court; once the Court became aware of that nullity, it had no power to adjourn the proceedings to allow reinstatement and the proceedings had to be struck out.

Jurisdiction
Australia
Judgment Date
01 September 2004
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Strike Out Application
Outcome
Proceedings struck out; costs reserved; liberty to apply with respect to costs.
Legal Topics
['deregistered Company Commencing Proceedings' 'strike Out Application' 'nullity' 'abuse of Process' 'reinstatement of Company Registration' 'adjournment']
['industrial Relations' 'corporations Law' 'civil Procedure'] ['deregistered Company Commencing Proceedings' 'strike Out Application' 'nullity' 'abuse of Process' 'reinstatement of Company Registration' 'adjournment']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Strike Out Application

Legal Issues

  1. 1 ['Whether proceedings commenced by a company that had been deregistered before filing were a nullity.' 'Whether the Court could adjourn the strike-out application to allow the deregistered company an opportunity to have its registration reinstated.' 'Whether proceedings instituted on behalf of a non-existent entity constituted an abuse of the processes of the Court.']

Ratio Decidendi

The applicant company had been deregistered before the summons was filed and therefore did not exist when the proceedings were purportedly commenced. A deregistered company has no power to commence proceedings or instruct others to do so. Proceedings instituted by a non-existent entity are a nullity and constitute an abuse of the processes of the Court; once the Court became aware of that nullity, it had no power to adjourn the proceedings to allow reinstatement and the proceedings had to be struck out.

Court Disposition

Proceedings struck out; costs reserved; liberty to apply with respect to costs.

Orders

  • ['The proceedings are struck out.' 'Costs are reserved.' 'Liberty to apply with respect to costs.']