NTL Constructions Pty Ltd v Queensland Building and Construction Commission
[2022] QCAT 239
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- Unreported Judgment
- NTL Constructions Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 239
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NTL Constructions Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 239
NTL Constructions Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 239
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | NTL Constructions Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 239 |
PARTIES: | NTL Constructions pty ltd (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR487-19 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 30 June 2022 |
HEARING DATE: | 30 June 2022 |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Traves |
ORDERS: | No order made |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review on basis applicant is deregistered – effect of deregistration – whether application to review should be dismissed Corporations Act 2001 (Cth), s 9, s 601AB, s 601AD, s 601AH Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) (2010) 77 ACSR 550 Lomas v Veescorp Pty Ltd [2011] QCATA 290. Stergiou v City Bank Savings Ltd [2005] ACTA 15 Total Eden Pty Ltd v Pipeline Properties Pty Ltd (1990) 8 ACLC 1075 United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 10 December 2019 NTL Constructions Pty Ltd (NTL) applied to the Tribunal for a review of the decision by the Queensland Building and Construction Commission dated 14 November 2019 about a scope of works for defective work at a property in Pimpama.
- [2]On 16 May 2022 the Commission filed an application to dismiss the proceedings pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the basis that NTL was deregistered on 22 November 2021.
- [3]NTL was deregistered by ASIC on 22 November 2021 pursuant to s 601AB of the Corporations Act 2001 (Qld) (Corporations Act).
- [4]The effect of deregistration is that the company ceases to exist: Corporations Act, s 601AD(1). Because the company ceases to exist, it is not a legal entity and it cannot institute or continue legal proceedings brought by it before deregistration.[1] All proceedings brought by or against a deregistered company are a nullity.[2]
- [5]All of the property of a deregistered company vests in ASIC on deregistration: s 601AD(2). “Property” is defined in s 9 of the Corporations Act as including a “thing in action”. It is likely, in my view, that the right to review a decision of the Commission, is a chose in action and therefore part of NTL’s property, which has now vested in ASIC. No submissions were directed to this point.
- [6]The consequence of deregistration is that no step taken in these proceedings can be taken by or against NTL unless the company is reinstated. Until that happens, the course of authority establishes that upon deregistration, any proceedings brought by the deregistered company “abate”, in the sense of being extinguished or annulled.[3]
- [7]ASIC or the Court may reinstate a deregistered company: s 601AH(1), (2). ASIC may do so if satisfied the company should not have been deregistered and the Court may do so if satisfied that it is just that the company’s registration be reinstated. If the company is reinstated, it is taken to have continued in existence as if it had not been deregistered. Any property that is still vested in the Commonwealth or ASIC (including any chose of action) revests in the company: s 601AH(5).
- [8]In this case NTL Constructions Pty Ltd has not been reinstated.
- [9]The issue arises as to what the appropriate course is: to dismiss the application to review; to adjourn; or to make no order at all. I note that in Lomas v Veescorp Pty Ltd,[4] an authority relied upon by the Commission, the Senior Member ordered a decision be stayed until the appeal was decided in circumstances where the successful party was deregistered at the time the Tribunal made an order in its favour.[5]
- [10]Jordan CJ in United Service Insurance Co Ltd (in liq) v Lang[6] in considering the effect of dissolution on proceedings before the Full Court held:
It having been ascertained that there is no appellant before us, we can do nothing except refrain from proceeding any further. The verdict for the defendant and the order for costs given by the learned District Court Judge are, of course, nullities, but in the absence of a plaintiff we have no more power to deal with them in the appeal than he had to make them in the action.
- [11]On that view, the appropriate course here would be to “do nothing except refrain from proceeding further”. That said, authorities exist which suggest the proceedings in these circumstances, can be dismissed: for example, Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ASCR 497; Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356.
- [12]The observation was made by Slattery J in Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2)[7] that cases where proceedings of a dissolved corporate plaintiff were dismissed usually involved other factors, such as defective pleadings or conduct by the plaintiff that could be characterised as an abuse of process.[8]
- [13]The Commission does not submit that any of those grounds exist. It submits that the review proceeding should be dismissed pursuant to s 47 of the QCAT Act, in circumstances where the Review Proceeding is lacking in substance, is an abuse of process and, “ultimately destined to fail”. The basis for this submission is the fact of NTL’s deregistration.
- [14]I accept that the proceedings are at an end. The cause of action remains vested in ASIC. In my view, the appropriate course is not to dismiss the proceedings but to refrain from taking any further steps in the proceedings. I direct the Registry to close the file.
- [15]For the reasons stated I make no further order.
Footnotes
[1] United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487.
[2] Stergiou v City Bank Savings Ltd [2005] ACTA 15 at [20], per Crispin P citing International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017.
[3] Total Eden Pty Ltd v Pipeline Properties Pty Ltd (1990) 8 ACLC 1075; United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487.
[4] [2011] QCATA 364.
[5] Ibid at [6]-[7].
[6] (1935) 35 SR (NSW) 487 at 497.
[7] (2010) 77 ACSR 550 at [19].
[8] Ibid at [19].