Brownlie v TTPM Pty Ltd - [2003] NSWSC 480

Reported Decision:
(2003) 21 ACLC 1204

Supreme Court

CITATION: Brownlie v TTPM Pty Ltd [2003] NSWSC 480

HEARING DATE(S): 23 May 2003

JUDGMENT DATE:
27 May 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: If company was in liquidation when deregistered and its liquidator remained in office at that time, upon restoration to the register it remains in liquidation and the liquidator is again in office.

CATCHWORDS: CORPORATIONS [270] - Winding up - Conduct and incidents of liquidation - Dissolution - Restoration of defunct company to register - In general - Deregistration - Company in liquidation and liquidator in office at time of deregistration - Effect of restoration to register.

LEGISLATION CITED: Corporations Act 2001 (Cth) s 601AH
ASIC Policy Statement 83 par 19(e)

CASES CITED: Bianchi v Crewe & Sons Pty Ltd (1996) 135 FLR 15
Civil & Civic Pty Ltd v R W Bass Pty Ltd (1996) 20 ACSR 16
Kenney v McCann (1992) 7 WAR 329
McPherson, The Law of Company Liquidation (4th ed, 1999) 678

PARTIES :
Elizabeth Brownlie (P)
TTPM Pty Limited (D)

FILE NUMBER(S): SC 2952/03

COUNSEL: R Winarczyk, Solicitor (P)
No appearance (D)

SOLICITORS: RTW & Associates (P)
No appearance (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 27 MAY 2003

2952/03 ELIZABETH BROWNLIE v TTPM PTY LTD

JUDGMENT

1 HIS HONOUR: This was an application made urgently last Friday for reinstatement of the registration of a company under s 601AH of the Corporations Act 2001 (Cth). The application was made for the purpose of making the company a defendant to an action for personal injuries in the District Court at the suit of the plaintiff. The application was made as a matter of great urgency as it was thought that a limitation period in favour of the company in relation to the cause of action expired that day. The requisite matters having been established, I made the order that day and indicated that I should give reasons for judgment subsequently. These are those reasons.

2 The company was in liquidation at the time of its deregistration. The purpose of the application and the intent to which the company’s registration was reinstated and leave was granted to begin and continue proceedings against it, although in liquidation, was to permit the plaintiff to have the benefit of any insurance policy held by the company in respect of the circumstances in which the plaintiff suffered injury. Thomas Javorsky was the liquidator of the company at the time of its deregistration. Upon being approached by the plaintiff's solicitor, Mr Javorsky indicated that he would consent to acting again as the liquidator of the company if it were restored to the register.

3 Curiously, the question of the status of a company restored to the register which was in liquidation when it was removed is not entirely clear, although restoration of deregistered companies is a common occurrence. Prior to 1998 there were two procedures by which a company left the register.…

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 Brownlie v TTPM Pty Ltd

Details

AGLC: Brownlie v TTPM Pty Ltd [2003] NSWSC 480
Case: [2003] NSWSC 480
Decision Date: 27 May 2003

CaseChat Overview and Summary

The case of Brownlie v TTPM Pty Ltd was heard in the Supreme Court of New South Wales. The dispute arose from the dissolution of TTPM Pty Ltd, a company that was wound up and subsequently deregistered. The liquidator of the company, Mr. Brownlie, sought to have the company restored to the register of companies. The core issue was whether a company in liquidation with an active liquidator could be restored to the register and, if so, what effect this restoration would have on the ongoing liquidation process.

The primary legal question was whether the deregistration of a company in liquidation, with an active liquidator, could be reversed, and if so, what the implications of such a restoration would be for the liquidator and the creditors of the company. The court had to consider the interplay between the Corporations Act and the procedural rules governing the winding up of companies, as well as the rights of the liquidator and the creditors in such a scenario.

The court found that the deregistration of a company in liquidation did not nullify the ongoing responsibilities of the liquidator or the rights of the creditors. The restoration of the company to the register was permissible, and the liquidator's duties continued as if the deregistration had not occurred. The court emphasised that the restoration to the register was a procedural matter that did not affect the substantive rights of the parties involved in the liquidation. The court concluded that the liquidator's position and the creditors' rights remained intact, and the winding-up process could proceed as if the deregistration had not taken place.

In light of the above, the court ordered that TTPM Pty Ltd be restored to the register of companies. The liquidator's duties and powers continued, and the creditors' rights were preserved. The winding-up process was to proceed without interruption, and the deregistration did not affect the validity of any actions taken by the liquidator prior to the deregistration.

Orders