In Stergiou v Citibank Savings Ltd [2005] ACTCA 15 Crispin P states
[8]. .... On 12 May 1995 Higgins J gave judgment for the appellants. His Honour observed, in passing, that the pleadings, even then, had followed a "tortuous and confusing course" and noted that Citibank Savings Ltd had been unable to provide an adequate explanation for certain debits from the appellants’ accounts. Consequently, despite the appellants’ failure to make the agreed payments, it had not been demonstrated that, as at 22 January 1992, there had been a default under the mortgage for the period of one month required to justify the issue of a notice under s 93 of the Land Titles Act.
[9]. Citibank Savings Ltd appealed from this decision and on 13 June 1996 its appeal was upheld by a Full Court of the Federal Court, apparently on the basis that the claim had required proof that the appellants had been in default as at 23 March 1992, when the ejectment proceedings commenced, rather than 22 January 1992.
[10]. However, this victory was again short lived. The matter was remitted to Higgins J for rehearing. On 28 August 1997 his Honour again found for the appellants on the basis that Citibank Savings Ltd had been equally unable to demonstrate that they had been in default for the requisite period by the later date.
[11]. The appellants were left to enjoy their apparently crushing victory without having to fend off any further attempts to obtain possession of their house until 2003. However, they obviously did not subscribe to the view that ‘sleeping dogs should be let lie’ and Mr Stergiou continued to pursue his claim and that of his fellow plaintiffs with remarkable diligence. He almost invariably appeared in person and his face quickly became familiar to counsel who frequented the Friday motions list. He sometimes made apparently wild allegations against bank officers, lawyers and other people. He seemed convinced of the truth of such allegations, despite the absence of any evidence to support them, though it was not always easy to determine whether they were intended to be taken literally or were mere hyperbole. On at least one occasion he responded to my entreaty to seek legal advice by telling me that he had seen many lawyers but that none had agreed with him.
[12]. The appellant’s claim alleged, in essence, that Citibank Savings Ltd had been involved in a conspiracy with various members of the legal profession against the appellants and the other plaintiffs and that they were entitled to damages for "mental anguish" in respect of certain errors that Citibank Savings Ltd had made and for ejectment from the house. There were also actions against various firms of solicitors and these claims involved proceedings in this Court, the Federal Court and the High Court of Australia. The appellants consistently failed but no fresh proceedings were brought against them and it appeared that Citibank Savings Ltd had simply decided to keep its corporate head down until this spate of proceedings had been completed. ...
[16]. This notice also failed to elicit any response and on 19 February 2003 the current proceedings were commenced on behalf of Citibank Savings Ltd against the appellants. This time the bank trimmed its case, avowedly to give the appellants the benefit of any doubt and, perhaps, to avoid becoming embroiled in arguments over any disputed items. Reliance upon any default prior to 1 July 1992 was abandoned and the claim was founded upon a notice that had claimed only the sum of $160,000 secured by the mortgage rather than the full amount borrowed.
[17]. The proceedings were duly heard by Connolly J who gave judgment on 21 May 2004, finding for Citibank Savings Ltd and making orders for the possession of the house and payment of costs. The appellants promptly appealed.
[18]. Since any claim for the disputed amounts had been abandoned and no payments of principal or interest had been made for twelve and a half years, one might have thought that the appeal would have had little chance of success. Furthermore, the years had apparently taken their toll, not only on Mr Stergiou’s businesses but also on his health. He was unable to prepare the appeal books normally required and when the matter was called on for hearing before the Full Court of the Court of Appeal on 16 February 2005, it became obvious that his hearing had deteriorated. He appeared a small, tired, sick David forced to fight a corporate Goliath without any sling or stones.
[19]. Yet, unexpectedly, he launched one legal missile. He handed up an historical company extract provided by the Australian Securities and Investments Commission that revealed that Citibank Savings Ltd had been deregistered on 13 June 1996.
[20]. That was, of course, the day upon which the Full Federal Court delivered judgment on the original claim in its favour and remitted its earlier claim for rehearing. There is no reason to suppose that this act of corporate suicide was precipitated by the prospect of further litigation with the appellants but it was immediately clear to the respondent to the appeal and the Court that its consequences for the ensuing litigation had been nonetheless catastrophic. All proceedings for or against a deregistered company are a nullity: see for example, International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017.
[21]. At this point Mr Meagher SC, who appeared for the respondent and until then had believed he had been appearing for a company that was registered and entitled to be represented by him, understandably sought an adjournment to enable those instructing him to verify the accuracy of the record and consider their position.
[22]. It was, of course, startling to find that legal proceedings had been maintained by and against Citibank Savings Ltd throughout a period of nearly nine years after the company had been deregistered. However, the solicitors ostensibly retained to act for the company throughout that period had not been informed either of its deregistration or of the assignment of its rights under the mortgage. They presumably acted upon an assumption that those operating a major banking institution would have known whether the company they thought they worked for actually existed. Nonetheless, the potential implications for them and the bank officers that instructed them were at least interesting. The adjournment was duly granted. ...
[27]. First, I am unable to see how orders could be made in proceedings that are a nullity that would not equally be nullities.
[28]. Second, the application is made by two companies, one that is unregistered, and hence has no standing to make any such application, and the other that is not a party to the proceedings.
[29]. Third, I am unable to accept that it would be an appropriate exercise of the power conferred by s 601AH of the Corporations Act (2001) (Cth) to reinstate a company, not for the purpose of asserting any rights of or against it, but merely as a technical device intended to retrospectively validate proceedings that have been a nullity since their inception. Even if so validated, the proceedings could ultimately have no effect on the rights or obligations of the reinstated company because it had divested itself of any rights under the mortgage.
[30]. Fourth, even if the proceedings could be retrospectively validated, the appellants would not only be entitled to succeed in their appeal but to an order for summary judgment. The proceedings were founded upon the service of a s 93 notice invalidly issued by a deregistered company demanding payment of a debt which had not been owed to it.
[31]. Fifth, I am unable to see anything in s 601AH that suggests that the power thereby conferred was intended to permit the retrospective validation of orders made in proceedings that were a nullity at a time when the orders were made.
[32]. Sixth, no issue as to whether Citibank Pty Ltd was entitled to possession of the appellants’ house or had any rights against them was ever litigated before Connolly J and I do not accept that they could be effectively denied a hearing on such issues by an amendment of the judgment in the manner suggested.
[33]. Seventh, it would in any event be inappropriate for such an approach to be taken on appeal.
[34]. Accordingly, I can see no basis for the exercise of any discretion provided by s 601AH and the application must be dismissed.
[35]. In view of the concession that the proceedings before Connolly J were a nullity, the appeal will presumably proceed unopposed and the appellants will live to litigate again should Citibank Pty Ltd decide to start a new action against them.
