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 have described shows amply that it is just.

8 As I have said, a winding up order had been made in respect of the company before it was de-registered. It is desirable that the reinstatement put the company back into the form in which it was. Although the liquidator had been discharged, it is desirable that the liquidator again be in office. It would be inappropriate the company be returned to the hands of its directors.

9 The plaintiff's solicitors have been in touch with the former liquidator, Mr Porter, explaining the situation and foreshadowing this application. They asked whether Mr Porter would consent to act as liquidator if the company was reinstated. By reply dated 30 June, Mr Porter said that he was prepared to consent to act as liquidator should the court order reinstatement, provided that the plaintiff agreed to meet his reasonable costs and disbursements for doing so. The plaintiff's solicitors wrote to Mr Porter on 30 June confirming that they would meet his reasonable costs and disbursements if the Court ordered the reinstatement of the company to the register.

10 ASIC has been given notice of the application and has stated that it does not oppose it, provided certain conditions are satisfied. One of them involves payment of ASIC's costs and it is contemplated by the plaintiff that the Court will make an order in that respect.

11 In accordance with what experience confirms to be its pro forma letter, ASIC says that it will not oppose provided that the order sought is couched in terms of s.601AH(2) requiring ASIC to reinstate the registration "for the limited purpose disclosed". As has been pointed out by the court previously, reinstatement is an all or nothing affair. The most recent observation to the effect that reinstatement cannot be for a limited purpose is, I think, in the judgment of the Chief Judge in Equity in Best v Yellow Express Carriers Ltd [2004] NSWSC 666 (see also Re Anglo Coal (Drayton Management) Pty Ltd [2004] NSWSC 604; Donmastry Pty Ltd v Albarran [2004] NSWSC 632; Queensland Building Services Authority v Dragonstone Pty Ltd [2004] QDC 678). The relevant principle was recognised in relation to predecessor legislation by McLelland J in Re Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559.

12 The court has power to reinstate the registration. It does not, as I presently see matters, have power to reinstate for any particular purpose. Either the registration is in place and the company exists for all purposes or the registration is not in place and the company is non-existent for all purposes. I therefore choose to regard that aspect of the ASIC letter as not operative in any meaningful sense. It is to be hoped that ASIC will see fit to review its pro forma letter in this respect or, as an alternative, to assist the court on some future occasion with submissions as to how reinstatement for a “limited purpose” can properly be ordered.

13 I make the orders in the short minutes of order which I initial and date.