Perera v Australian Securities and Investments Commission, in the matter of Hodder Rook & Associates Pty Limited

• Jurisdiction: Australia Federal only
• Judge: MARKOVIC J
• Judgment Date: 03 December 2019
• Neutral Citation: [2019] FCA 2015
• Court: Federal Court
• Date: 03 November 2019

FEDERAL COURT OF AUSTRALIA

Perera v Australian Securities and Investments Commission, in the matter of Hodder Rook & Associates Pty Limited [2019] FCA 2015

File number:	NSD 1482 of 2019
Judge:	MARKOVIC J
Date of judgment:	3 December 2019
Catchwords:	CORPORATIONS – application for reinstatement pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) – whether plaintiff is a person aggrieved – whether reinstatement just – application dismissed ; CORPORATIONS – application to terminate winding up of company pursuant to s 482(1) of the Corporations Act 2001 (Cth) – application dismissed
Legislation:	Corporations Act 2001 (Cth) ss 482(1), 601AH(2)
Cases cited:	Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Limited (2010) 80 ACSR 670; [2010] NSWSC 1369 Bell Group Ltd v Australian Securities and Investments Commission (2018) 128 ACSR 247; [2018] FCA 884 Doolan, in the matter of MIH Company Pty Ltd (in liq) v MIH Company Pty Ltd (in liq) [2015] FCA 1130 Yeo v Australian Securities and Investments Commission, in the matter of Ji Woo International Education Centre Pty Ltd (deregistered) [2017] FCA 1480
Date of hearing:	24 October 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	70
Counsel for the Plaintiff:	The Plaintiff appeared in person
Counsel for the Defendant:	The Defendant did not appear

Table of Corrections
10 December 2019	Date of Judgment and Date of Orders have been amended from 3 November 2019 to 3 December 2019.

ORDERS

		NSD 1482 of 2019
IN THE MATTER OF HODDER ROOK & ASSOCIATES PTY LIMITED ACN 003 936 141
BETWEEN:	MADURA PERERA Plaintiff
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Defendant

JUDGE:	MARKOVIC J
DATE OF ORDER:	3 December 2019

THE COURT ORDERS THAT:

1. The originating process filed on 13 September 2019 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1. By an originating process filed on 13 September 2019 Madura Perera seeks an order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Act) that the defendant, the Australian Securities and Investments Commission (ASIC), reinstate the registration of Hodder Rook & Associates Pty Limited (HRA), an order pursuant to s 482(1) of the Act that the liquidation of HRA be terminated and the following ancillary orders:

6 Any other order that the court pleases

a. Order that the Hodder Rook & Associates Pty. Limited ACN 003 936 141 pay any liability including wages and super to the Director Madura Perera only once all other outstanding liabilities are been paid.

b. Order that the outstanding employee super excluding the Directors super paid as the first payment by Hodder Rook & Associates Pty. Limited ACN 003 936 141

c. Order that the outstanding employee wages excluding the Directors wages paid as the second payment by Hodder Rook & Associates Pty. Limited ACN 003 936 141

d. Order that the outstanding ATO debt is paid as the third payment by Hodder Rook & Associates Pty. Limited ACN 003 936 141

e. Order that all other outstanding creditors are paid as the fourth payment by Hodder Rook & Associates Pty. Limited ACN 003 936 141

2. In his affidavit in support of the application affirmed on 17 October 2019 Mr Perrera seeks two additional orders: first, that upon termination of the winding up, the directors of the company take office of HRA; and secondly, that the costs of the application not be costs in HRA.

3. For the reasons that follow I am not satisfied that the orders sought by Mr Perera should be made and the originating process should be dismissed.

background facts

4. Mr Perera relies on four affidavits sworn by him and an affidavit sworn by Walter Guan, an accountant, annexing a report about HRA’s solvency in support of his application.

5. Mr Perera’s affidavits referred to proceedings involving HRA, interactions he had with the liquidator of HRA and the service of the originating process commencing this proceeding. Those affidavits also annexed a number of other documents to which no express reference was made. Set out below is a summary of the facts insofar as they are relevant to the application now before me.

6. HRA was a property valuation company. In June 2008 Mr Perera acquired all of the shares in HRA and since that time was its sole shareholder and director.

7. Mr Perera deposed that in July 2008 he was informed that Genworth Financial and Mortgage Insurance Pty Limited (Genworth) had filed a claim in the Supreme Court of New South Wales (Supreme Court) against HRA alleging negligence in relation to eight valuations completed by it (Supreme Court Proceeding). DLA Philips Fox (DLA) had been retained to act for HRA in that proceeding on behalf of HRA’s professional indemnity insurers, DUAL Australia Pty Ltd, for three of the valuations and Dexta Corporation Ltd (Dexta) for five of the valuations.

8. The evidence disclosed that the following occurred in and in connection with the Supreme Court Proceeding:

1. on 9 July 2009 Genworth was informed by DLA that Dexta had refused to indemnify HRA in relation to the five valuations for which it was the relevant insurer;

2. on 5 August 2009 Mr Perera informed DLA that he intended to terminate DLA’s retainer in relation to the uninsured claims. In a letter dated 9 August 2009, addressed to Mr Perera at HRA, DLA noted that as at that date HRA owed it $110,789.37 in outstanding fees which DLA required to be paid in full in order to facilitate the handover of files to HRA’s new lawyers;

3. from at least 1 October 2009 until about late March 2010 Carneys Lawyers acted for HRA in the Supreme Court Proceeding. According to a schedule titled “Carneys Lawyers Accounts to Hodder Rook” included in the evidence before me, Carneys billed a total amount of $65,438.73 in the period 1 October 2009 to 26 March 2010 of which $46,913.68 remained outstanding;

4. on 19 November 2009 Mr Perera was advised that Genworth had discontinued the proceeding in relation to two of the valuations with costs reserved, leaving three in dispute. The transcript of the Supreme Court Proceeding on 6 September 2010, the first day of the hearing, discloses that counsel for Genworth informed the court that three valuations remained in dispute in the proceeding, each of which was prepared and signed by Mr Perera, the proceeding originally concerned eight valuations but that the claims in relation to three of those valuations were resolved at a mediation which took place in July 2009 and since November 2009 Genworth had not pursued two of the valuations;

5. on 22 September 2010 the Supreme Court made orders including that:

   1. there be judgment for Genworth in the sum of $410,495.77 inclusive of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW);

   2. HRA to pay Genworth’s costs of the proceedings except for the costs solely incurred in relation to the “Excluded Claims” (identified below) to be assessed...