FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Hallmark Gold NL

[1999] FCA 373

CORPORATIONS LAW – application for declarations that persons not validly appointed as directors – persons appointed to fill casual vacancies – no election of directors to fill vacated offices at general meeting – whether persons continued as directors – construction of articles.

Federal Court Rules O 32 r 2(d)

ASIC v Hallmark Gold NL, Forge, Muir and Clark [1999] FCA 360

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v HALLMARK GOLD NL ACN 000 817 023 and DAVID JOHN MUIR

WG 3005 OF 1999

LEE J

1 APRIL 1999

PERTH

THE COURT ORDERS AND DECLARES THAT:

1.         The application be dismissed.

2.         The second respondent pay the costs of the applicant and the first respondent.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant (“ASIC”) seeks a declaration that the second respondent (“Muir”) was not a director of the first respondent (“Hallmark”) on or after 18 December 1998.

2                     The relevant facts are set out in the reasons delivered today in ASIC v Hallmark Gold NL, Forge, Muir and Clark [1999] FCA 360, an application for declaratory orders heard together with this application.

3                     Muir, through solicitors then acting for him, had notice of the date of trial in this proceeding. He did not appear on the hearing and pursuant to O 32 r 2(d) of the Federal Court Rules the trial proceeded.

4                     The declaration made in the above matter, that Muir ceased to be a director of Hallmark from 22 October 1998, makes any further declaration in this proceeding unnecessary.

5                     The application will be dismissed with an order that Muir pay the costs of ASIC and Hallmark.

Associate:

Dated:  1 April 1999