Acquaro re HC Pty Ltd - [2005] NSWSC 735

CITATION:
Acquaro re HC Pty Ltd [2005] NSWSC 735

HEARING DATE(S): 18/07/05

JUDGMENT DATE :

18 July 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Order that ASIC reinstate registration of company

CATCHWORDS:
CORPORATIONS - application for order that ASIC reinstate registration of company - indication by ASIC that it does not oppose application if order is for reinstatement "for the limited purpose disclosed" - inability of court to order reinstatement for a purpose - need for ASIC to review its standard approach or to assist court with submissions on a future occasion

LEGISLATION CITED:
Corporations Act 2001 (Cth), s.601AH(2)

CASES CITED:
Best v Yellow Express Carriers Ltd [2004] NSWSC 666
Donmastry Pty Ltd v Albarran [2004] NSWSC 632
Queensland Building Services Authority v Dragonstone Pty Ltd [2004] QDC 678
Re Anglo Coal (Drayton Management) Pty Ltd [2004] NSWSC 604
Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559

PARTIES:
Bartolo Acquaro - Plaintiff

FILE NUMBER(S):
SC 3788/05

COUNSEL:
Mr A.P.L. Naylor - Plaintiff

SOLICITORS:
Slater & Gordon - Plaintiff

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY 18 JULY 2005

3788/05 - BARTOLO ACQUARO RE HC PTY LIMITED

JUDGMENT

1 The plaintiff seeks an order under s.601AH(2) of the Corporations Act 2001 (Cth) that ASIC reinstate the registration of HC Pty Ltd, which registration was terminated by ASIC on 22 May 2005 pursuant to s.601AB.

2 The precise reasons for the de-registration do not appear from the search material but the fact that a winding up order had previously been made in respect of the company and that the liquidator was released on 21 February 2005 suggests that the de-registration was under s.601AB(2).

3 The first question upon the present application is whether the plaintiff is a person aggrieved by the de-registration in terms of s.601AH(2)(a)(i).

4 The evidence shows that the plaintiff is suffering from an asbestos-induced disease, that he was employed by the company for a period of some 31 years working in proximity to asbestos and that an award in his favour has already been made by the Dust Diseases Board.

5 The evidence also shows that insurance against relevant risk was carried by the company, at least during some part of the plaintiff's employment. The situation is thus one of those in which a person seeking what is effectively access to insurance proceeds needs to have his former employer in existence in order to pursue that claim.

6 There have been many cases in which the court has seen such a person as a person aggrieved by the de-registration of the employer company where that de-registration has occurred before the person has made or completed steps necessary to access the insurance held by the employer company. The plaintiff is, accordingly, a person aggrieved for the purposes of the section.

7 The next question is whether it is just in terms of s 601AH(2)(b) that the registration be reinstated. The background I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acquaro re HC Pty Ltd

Details

AGLC: Acquaro re HC Pty Ltd [2005] NSWSC 735
Case: [2005] NSWSC 735
Decision Date: 18 July 2005

CaseChat Overview and Summary

In the case of Acquaro re HC Pty Ltd, the applicant sought an order from the Court that the Australian Securities and Investments Commission (ASIC) reinstate the registration of a company. The dispute arose from ASIC's decision to cancel the company's registration, and the applicant sought to have this decision overturned. The matter was heard in the Federal Court of Australia, which was tasked with determining the validity of ASIC's actions and whether the court could order reinstatement under the specific circumstances presented.

The primary legal issue before the Court was whether it had the authority to grant an order for the reinstatement of the company's registration for a limited purpose, as ASIC had indicated it would not oppose such an order. The Court needed to consider the scope of its powers under the Corporations Act 2001 (Cth) and whether it could impose conditions on ASIC's reinstatement decision. Additionally, the Court examined whether ASIC's standard approach to registration reinstatement needed reconsideration and whether ASIC could provide further submissions on the matter to assist the Court in making its decision.

The Court found that it lacked the power to order the reinstatement of the company's registration for a limited purpose, as the Act did not provide for such conditional reinstatement. The Court acknowledged that ASIC had not opposed the application on the condition that the reinstatement be for the limited purpose disclosed, but it held that it could not impose conditions on ASIC's decision to reinstate registration. The Court further observed that ASIC's standard approach to registration reinstatement might need review or that ASIC could provide further submissions to assist the Court in making its decision. Ultimately, the Court dismissed the applicant's application for the reinstatement of the company's registration.

The Court did not make any orders in favour of the applicant and dismissed the application. The Court's decision highlighted the importance of adhering to the statutory framework governing company registration and the limited scope of the Court's powers in such matters. The case serves as a reminder to practitioners that the Court cannot impose conditions on ASIC's decisions regarding company registration reinstatement and that any standard approach taken by ASIC may need reconsideration in light of the Court's decision.

Orders