City West Water Ltd v Mr D Investments Pty Ltd
[2002] VSC 553
•17 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 6940 of 2002
| CITY WEST WATER LIMITED | Plaintiff |
| v | |
| MR. D. INVESTMENTS PTY LTD | Defendant |
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MASTER: | Senior Master Mahony | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 25 September 2002, 23 October 2002 and 13 November 2002 | |
DATE OF ORDER: | 13 November 2002 | |
DATE OF JUDGMENT: | 17 December 2002 | |
CASE MAY BE CITED AS: | City West Water v Mr D Investments | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 553 | |
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Corporations – registration – deregistration and reinstatement – company deregistered under Companies Code – source of Court’s jurisdiction to order reinstatement – s 459 (6) of Code or s 601AH (2) of the Corporations Act 2001
Companies (Victoria) Code, s 459
Corporations(Victoria) Act 1990, s 85
Company Law Review Act 1998 (Cth)
Corporations Law, ss 571, 574, 601AH, 1362CH
Corporations Act 2001 (Cth), s 601AH (1) and (2)
National Australia Bank Limited v Australian Securities Commission (1991) 5 ACSR 453, 9 ACLC 1093, followed
Re K P Wee Investments Pty Ltd (1993) 32 NSWLR 745 at 746-7, 12 ACSR 620 at 621, 12 ACLC 157 at 157-8, referred to
Re Wangi Wangi Development Co Ltd (1994) 12 ACLC 297, referred to
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 referred to
Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556, not followed
Parker v Australian Asbestos Pty Ltd and Others (2002) 42 ACSR 138, not followed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. W. Ellis | Davies Moloney |
| For Australian Securities and Investments Commission | Mr T. R. Luxton (solicitor, on 25 September 2002 and 23 October 2002) Mr S. Maguire (solicitor, on 13 November 2002) | ASIC Legal Department |
JUDGMENT
This is an unusual case. When the originating process was filed it named as the defendant a company which no longer existed, Mr D. Investments Pty Ltd (‘the company’). The company had been incorporated on 23 October 1984 under the Companies (Victoria) Code (‘the Code’), but had ceased to be since 3 May 1988 when it was deregistered as defunct by the National Companies and Securities Commission under s 459 (1), (2) and (4) of the Code. In consequence of the deregistration, the company was thereupon dissolved: s 459(4). The plaintiff’s primary application in this proceeding was for an order for reinstatement of the registration of the company. If that application were successful, the plaintiff then sought an order for the winding up of the company.
The company is named on the relevant certificate of title as the registered proprietor of a house property at 49 Cubitt Street, Richmond (‘the property’). The plaintiff is the entity now responsible for water supply to the property. When the company was extant and for some years thereafter, the Melbourne & Metropolitan Board of Works (‘MMBW’) was the responsible entity. It appears that no water rates or other charges have been paid since 1984 (the year the company was incorporated) and that was despite MMBW obtaining an order against the company in 1986 and issuing a warrant of distress. The plaintiff claims to be entitled to recover all water rates and charges outstanding with respect to the property, being sums totalling $4,912.19. It also appears that the local municipality, formerly the City of Richmond and now the City of Yarra, is owed approximately $16,000.00 for unpaid municipal rates and charges. In these circumstances, the plaintiff seeks the relief to which I have referred so that, ultimately, a liquidator of the company will be able, if necessary, to sell the property for the benefit of the company’s creditors.
A preliminary question has arisen, however, as to the source of the Court’s jurisdiction to order the reinstatement of the company’s registration. At the time of the deregistration the source was s 459 (6) of the Code, which read as follows:
‘If a person is aggrieved by the cancellation of the registration of a company, the Court, on an application made by the person at any time within 15 years after the cancellation, may, if satisfied that the company was, at the time of cancellation, carrying on business or in operation or otherwise satisfied that it is just that the registration of the company be reinstated, order the reinstatement of the registration of the company and, upon an office copy of the order being lodged with the [National Companies and Securities] Commission, the company shall be deemed to have continued in existence as if its registration had not been cancelled, and the Court may by the order give such directions and make such provisions (including directions and provisions relating to the re-transfer of property vested in the Commission under section 461) as seem just for placing the company and all other persons in the same position as nearly as may be as if the registration of the company had not been cancelled.’
A ‘company’ was defined s 5 of the Code to mean inter alia ‘a company incorporated under this Code’. Section 461 vested in the Commission ‘the estate or interest’ in any ‘outstanding property’ of a company at the time of its dissolution ‘together with all claims, rights or remedies of the company that the company or its liquidator then had’.
The Corporations Law of Victoria came into force on 1 January 1991. Its implementation was governed by the Corporations (Victoria) Act 1990 (‘the 1990 Act’). In the 1990 Act, the Code was described a ‘co-operative scheme law’ (s 84) while the Corporations Law of Victoria was classified as a ‘national scheme law of this jurisdiction’ (s 3). Section 85 (1) of the 1990 Act provided:
‘This section provides for the national scheme laws of this jurisdiction to supersede the co-operative scheme laws, which are to continue to operate of their own force only in relation to –
(a) matters arising before the commencement of this section; and
(b)matters arising, directly or indirectly, out of such matters –
in so far as the national scheme laws do not deal with those matters.’
The deregistration of the company was a ‘matter’ which arose before the commencement of s 85 on 1 January 1991, and the application for reinstatement of its registration is a ‘matter’ arising directly (or, at least, indirectly) out of it. The definition of ‘company’ in s 9 of the Corporations Law was ‘a company incorporated, or taken to be incorporated, under the Corporations Law of this jurisdiction’. (That definition was amended in 1998 by substituting ‘registered’ for ‘incorporated’: Company Law Review Act, Second Schedule.) Section 126 (1) of the Corporations Law in effect provided that a ‘body corporate’ which, immediately before the commencement of the Corporations Law was ‘incorporated, or taken to be incorporated, under a previous law of this jurisdiction’ was, upon the commencement, to be taken to be registered as a company under Division 2 of Part 2.2 of the Law. The company having been dissolved in 1988, it was not immediately before the commencement of the Corporations Law incorporated, or taken to be incorporated, under a previous law; it was not taken to be registered under the Corporations Law; and it was not a ‘company’ to which the Corporations Law applied. Therefore, s 574 of the Corporations Law – the equivalent to s 459 of the Code – could not apply to it. Accordingly, since s 574 did not ‘deal with [the] matters’ of deregistration or reinstatement of the registration of the company, s 459(6) of the Code continued, by force of s 85 of the 1990 Act, to be the source of jurisdiction of the Court to order the reinstatement.
So much is surely non-controversial, because it is the reasoning applied by McLelland J of the Supreme Court of New South Wales in National Australia Bank Limited v Australian Securities Commission (1991) 5 ACSR 453, 9 ACLC 1093. That case was heard and determined on 5 August 1991, a few months after the inception of the Corporations Law. It concerned the reinstatement of the registration of a Victorian company which had been cancelled pursuant to the Code in 1990. The Supreme Court of New South Wales was able to hear the application by reason of s 42 (1) of the 1990 Act.
In a written submission, Mr Luxton, the solicitor for ASIC referred me to additional cases. The first is Re K P Wee Investments Pty Ltd (1993) 32 NSWLR 745 at 746-747, 12 ACSR 620, at 621, 12 ACLC 157, at 157-158, another application in New South Wales for the reinstatement of the registration of a Victorian company deregistered under the Code, where Santow, J followed National Australia Bank Limited v Australian Securities Commission. The second case, Re Wangi Wangi Development Co Ltd (1994) 12 ACLC 297, is another decision of McLelland CJ in Eq. (as, by then, McLelland, J had become). It concerned an application that the dissolution of a company in 1935, following winding up, be declared void. Although the precise relief sought was different from that in the other cases I have mentioned, the reasoning for concluding that the remedy was available (under s 307 of the Companies Act 1961 (NSW) which did apply to companies dissolved prior to its enactment), was precisely similar to that in the other cases to which I have referred. The company simply was not a ‘company’ to which the Corporations Law applied; s 571 of the Corporations Law which provided for such relief therefore could not apply; and the operation of s 307 of the Companies Act 1961 had been preserved for the purpose.
In anticipation of the commencement of the Corporations Act 2001 on 15 July 2001, s 85 of the 1990 Act was further amended with effect from 14 July 2001. The section, in its form prior to amendment, is set out in [4]. The amendments inserted the words ‘or the Corporations legislation’ after the expression ‘in so far as the national scheme laws’; and added a sub-section (4) providing that ‘Corporations legislation’ meant ‘the Corporations legislation to which Part 1.1A of the Corporations Act 2001 of the Commonwealth applies’. Section 5D (2) of the Corporations Act is in Part 1.1A and provides that the Part applies only to the Act itself and regulations under it; Part 3 of the ASIC Act; and regulations under the ASIC Act for the purposes of Part 3 of the ASIC Act.
It would be the Corporations Act (if any of these) which, by reason of the further amendments of s 85 of the 1990 Act, would now deal with matters concerning the deregistration of companies and alter the impact of s 85 of the 1990 Act in consequence of the amendment. The Corporations Act, however, has not done this. A ‘company’ under that Act is ‘a company registered under this Act’ (s 9). As to companies in existence before 15 July 2001, section 1378 (1) of the Act provides that the registration of a company under the Corporations Law, if extant immediately prior to the commencement of the Act, would have effect as if the company were registered under the Act. A company which was deregistered (and whose registration had not been reinstated) immediately prior to the commencement of the Act would not be, then, a ‘company’ within s 1378 (1) or within s 9. In consequence, by the same reasoning as was applied in National Australia Bank Limited v Australian Securities Commission, s 601AH of the Corporations Act – the section dealing with the reinstatement of the registration of companies under that Act – would have no application to a company deregistered under the Code; and s 459 of the Code would continue to be the provision under which the Court would order the reinstatement of such a company.
This conclusion, however, has not been drawn in two recent cases in the Supreme Court of New South Wales in which, independently of one another, it was held that, in consequence of the effect of a section inserted in the Corporations Law in 1998 and of the operation of transitional provisions in the Corporations Act, the Court’s jurisdiction to order the reinstatement of a company’s registration cancelled before the commencement of the Corporations Law is found now in s 601AH (2) of the Corporations Act. The cases are Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556 and Parker v Australian Asbestos Pty Ltd and Others (2002) 42 ACSR 138.
In neither Shaw nor Parker did the court have the advantage of considered submissions from ASIC. It appears that in New South Wales a legal representative of ASIC does not ordinarily attend the hearing of applications for reinstatement of company registrations. (In Victoria, the opposite is the case and, as the member of the Court who customarily hears such applications, I am continually benefited by the assistance of ASIC lawyers.)
Shaw was decided in circumstances of considerable urgency: The plaintiff was dying and a hearing before the Dust Diseases Tribunal was due to commence on the same day Barrett, J decided the reinstatement application. ASIC had stated in a letter to the plaintiff’s solicitors that it would not oppose the application provided inter alia the orders sought be ‘couched in terms of s 601AH (2) of the Corporations Act, requiring ASIC to reinstate the registration of the company’ (41 ACSR 556 at [12]), thereby inferring that s 601AH (2) was the source of jurisdiction of the Court to make a reinstatement order where (as was the fact) the company had been deregistered under s 459 of the Companies (NSW) Code.
Parker was a case in which Austin, J made limited publication of his intended reasons and adjourned the hearing without final order to enable ASIC to consider his reasons and address them. The response he received was that ASIC did not have ‘anything to submit in opposition to my reasoning, nor the orders I propose to make’ (42 ACSR 138 at [18]).
In this case, as I have already indicated [6], Mr Luxton appeared as solicitor for ASIC. Mr Luxton is a Senior Lawyer of ASIC’s ‘Enforcement’ Division; and he made both oral and written submissions challenging the conclusions in both Shaw and Parker.
While one is aware, of course, of the desirability of uniformity throughout Australia of construction of the Corporations Act 2001 of the Commonwealth, and of the dictum of the High Court concerning the construction of the Corporations Law in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, at 492, the differing approach of ASIC in New South Wales and Victoria appeared to me to justify consideration of Mr Luxton’s submissions.
As a result of the Company Law Review Act 1998 (Cth) (‘the 1998 Act’), the Corporations Law was amended in a number of respects, including the deregistration and reinstatement provisions. Section 571 (to which I referred in [6] and which empowered the Court to make an order declaring void a dissolution of a company consequent on winding up) and s 574 (which concerned deregistration and reinstatement) were, in effect, repealed and replaced by s 601AH, when Chapter 5A (containing s 601AA – 601AH) replaced Part 5.6, Division 8 (which had contained inter alia ss 571 and 574). In the ‘new’ Chapter 5A, s 601AA provided for ‘voluntary deregistration’; s 601AB, for administrative deregistration by ASIC; s 601AC, for dissolution after merger or winding up; and s 601AD, for the effect of dissolution (that the company ceases to exist and its property vests in the Commission). Section 601AH (1) and (2) provided as follows:
‘(1)The ASC may reinstate the registration of a company if the ASC is satisfied that the company should not have been deregistered.
(2) The Court may make an order that the ASC reinstate the registration of a company if:
(a) an application for reinstatement is made to the Court by: (i) a person aggrieved by the deregistration; or (ii) a former liquidator of the company; and
(b) the Court is satisfied that it is just that the company’s registration be reinstated.’
The only amendments made to s 601AH (1) and (2) when the Corporations Act 2001 was enacted involved the substitution of ‘ASIC’ for ‘the ASC’ where thrice occurring. (For convenience, I refer to ‘ASIC’ throughout these reasons, including references to times when ‘ASC’ would be appropriate.)
The 1998 Act also inserted in the Corporations Law the section on which reliance was placed for the conclusion reached in both Shaw and Parker, s 1362CH. Section 1362CH provided:
‘ASIC’s powers under section 601AH extend to the reinstatement of the registration of a body corporate that:
(a) was at some time before commencement incorporated or taken to be incorporated under a previous law of this jurisdiction corresponding to Chapter 2 of the old law; and
(b)was deregistered before commencement.
Section 601AH applies to the reinstatement with any modifications that the circumstances require.’
In Shaw 41 ACSR 556 at [9], [10] and [11], Barrett, J expressed the view that, even in a case in which the Court ordered reinstatement under s 601AH (2), the act of reinstatement by ASIC pursuant to the order would be, as far as ASIC was concerned, the exercise by it of a ‘power’ within s 1362CH:
‘Section 1362CH is a provision about ASIC’s powers. It says that the powers of ASIC under s 601AH extend to the registration of a class of bodies that includes the company the subject of the present application. Nothing explicit is said about the continuation of the jurisdiction of the court under s 601AH but it seems to me to be clear that preservation of that jurisdiction is implied.
The view I have just expressed proceeds from recognition that the power to reinstate, like the power to register in the first place, is a power confided exclusively to ASIC. Only ASIC has the power to register or to reinstate. In some instances, the power will be exercised as a result of ASIC’s own decision that all necessary steps have been taken to warrant exercise of the power. In other cases, ASIC will exercise its power because of some more direct legal requirement to exercise it, such as a court order. But whether there is a court order or not, the conclusive step can only ever be taken by ASIC which, in taking that step, is never a free agent and must conform to the applicable legal restraints. Whenever it takes the step, it exercises a power.
It follows from this that I regard as preserved and continued by s 1362CH not only so much of s 601AH as contemplates action by ASIC according to its own decision independently made (that is, s 601AH (1)), but also the part of the section which contemplates action by ASIC to reinstate upon an order made by the court (s 601AH (2)). When ASIC effects a reinstatement following an order by the court it still exercises a power of reinstatement, albeit in circumstances where it makes no independent decision beyond the decision to comply with the order.’
Assuming for the moment that, on the proper construction of s 1362CH, the act of ASIC in reinstating the registration of a company in compliance with an order of the Court is the ‘exercise’ of a power within the section, it has to be said that it is not apparent how that would alter or affect the source of the jurisdiction of the Court to have made the order.
With respect, however, the act of ASIC in reinstating a company’s registration in compliance with an order of the Court may more aptly be described as the exercise of a ‘function’ rather than of a ‘power’. It is in that sense of ‘function’ that it may be said that only ASIC may ‘register or reinstate’. To comply with a mandatory order of a court is not to exercise a power, but to perform an obligation. The order does not reserve to ASIC a discretion whether to comply with it. That being so, it is difficult to characterise observance of the imperative to comply with the order as the exercise of a ‘power’. It has not been possible for me to conceive of circumstances where ASIC might exercise a discretion against reinstatement where the Court has ordered it to reinstate the registration of a company; where the order has been authenticated (and the capacity to recall and vacate it consequently has disappeared); where there has been no stay ordered with respect to the operation of the order; and where a copy of the order, as authenticated, is duly lodged, with a duly completed Form 105, and any precondition to reinstatement stipulated in the order, e.g. payment of ASIC’s costs, has been satisfied.
The concept of the Court’s making an order against ASIC for the reinstatement of the registration of a company was created when s 601AH (2) was inserted in the Corporations Law by the 1998 Act, that is, at the same time as s 1362CH was inserted. In previous legislation (see, for example, ss 574 (4) of the Corporations Law, s 459 (6) of the Code (set forth in [3]), and s 308 (5) of the (Uniform) Companies Act 1961), an order for reinstatement (or, in the case of the 1961 Act, restoration of the company’s name to the register) resulted, upon the lodgment of an office copy of the order, in the company’s being deemed by force of the legislation always to have been in existence. In other words, the order, the lodgment of the office copy of the order and the legislation combined to produce that effect. No order was made that the relevant Commission or the Commissioner for Corporate Affairs or the Registrar of Companies perform any act. If it were intended, then, that ‘ASIC’s powers’ extended to a ‘power’, as distinct from an ‘obligation’, to reinstate after ordered by the Court to reinstate, one would have expected this to be set forth explicitly in the section which provided for the order against ASIC, s 601AH (2), and not left to be inferred from a section the effect of which with respect to ‘ASIC’s powers’ apparently was confined to a retrospective extension of powers explicitly conferred on ASIC by s 601AH.
In the passage from his judgment in Shaw which I have quoted in [17], Barrett, J referred to s 601AH (1) as that under which ASIC may reinstate a company ‘according to its own decision independently made’. It will be recalled that subsection (1) expressly provides for ASIC’s power to reinstate the registration of companies in cases where it is satisfied that deregistration ought not to have been effected. In preceding legislation, ASIC’s power itself to reinstate was limited to cases of error by the relevant Commission in effecting the deregistration or equivalent. As will be seen, the extension of powers conferred by s 601AH (1) and, retrospectively, by s 1362CH, was directed inter alia to cases where it could be established that a basis for administrative deregistration, e.g., that the company had ceased carrying on business, was not correct. The advantage of such an extension of ASIC’s powers is that there would be, in such cases, no longer a need to resort to the Court under s 601AH (2). It is to subsection (1), then, that one would expect the reference in s 1362CH to ‘ASIC’s powers’ to relate. That this was its purpose, and limitation, is confirmed by the relevant paragraphs of the Explanatory Memorandum circulated with the Company Law Review Bill 1997 (the Bill for the 1998 Act) and a copy of which Mr Luxton included with his written submissions.
Under the heading, ‘Reinstatement’, paragraphs 15.24–15.27 of the Explanatory Memorandum were as follows:
‘15.24 Currently, the ASC may only reinstate a registered company if it was deregistered as the result of an error on the part of the ASC. Other applications for reinstatement must proceed by application to the Court (current s 574).
15.25 The Bill provides the ASC with clear powers to reinstate a company which has been deregistered when it should not have been, for example, in a situation where the company is still carrying on business. This avoids the cost of a court application for reinstatement (Bill s 601AH(1)). The ASC’s power to reinstate companies extends to the registration of a body corporate which was deregistered before the new rules commence (Bill s 1362CH). The Bill also enables the reinstatement of companies where an application has been made under current section 571 or subsection 574(3) and that application had not been determined before the commencement (Bill s 1443). [My emphasis]
15.26 It is envisaged that the ASC will only exercise its reinstatement power where no dealings with the property of a deregistered company which give rise to third party rights have been carried out during the intervening period. If third parties have become involved, it is expected that reinstatement will generally need to proceed through the Court.
15.27 The Court’s reinstatement power is preserved under the Bill (Bill s 601AH (2)). If the Court exercises its reinstatement power under s 601AH (2) of the Bill, it may also validate anything done between the deregistration of the company and its reinstatement and may make any order that it considers just in the circumstances (Bill s 601AH (3)). The 15 year time limit on reinstatement applications is abolished. In relation to a body corporate that has been dissolved for 15 years or more, the ASC may destroy or dispose of any document a transparency of which has been incorporated with a register kept by the Commission (Bill Schedule 2 Item 406).’
There are a number of further observations which could be made about this extract from the Explanatory Memorandum but I make only one: The ‘envisaged’ limitation on ASIC’s powers in para 15.26 and the expectation of resort to the Court in the circumstances para 15.26 concerns, appear further to point to a clear understanding of those responsible for drafting the 1998 Act that provisions about ‘ASIC’s powers’ in s 601AH (1) were not provisions about the power of the Court under s 601AH (2).
In Parker, Austin, J also relied on s 1362CH of the Corporations Law but applied different reasoning from that Barrett, J in Shaw to conclude that it enabled an application under s 601AH (2). In Shaw, Barrett, J had relied on s 1408 (1) of the Corporations Act as continuing the operation of s 1362CH after the Act had come into force. In Parker, Austin, J relied on s 1400 of the Act (42 ACSR 138 at [11]):
‘Section 1400 states that if a right was acquired under a provision of the Corporations Law that was in force immediately before 15 July 2001 and corresponds to a provision of the Corporations Act, then as from 15 July 2001 the person enjoying that right acquires, in substitution, an equivalent right under the corresponding provision in the new Corporations Act. Section 601AH of the Corporations Act corresponds with s 601AH of the Corporations Law as in force immediately before 15 July 2001, since they are substantially identical. Thus, a person who, immediately before 15 July 2001, had the right under the Corporations Law to seek the reinstatement of a company under s 601AH of the Corporations Law now enjoys an equivalent right under s 601AH of the present Act.’
Austin, J went on to conclude that ‘the position is the same’ with respect to companies deregistered under earlier legislation – the three deregistered companies whose reinstatement he was considering were deregistered under the Companies Act 1961 (NSW) – ‘because of the effect of s 1362CH of the Corporations Law which was in place immediately before the commencement of the Corporations Act’ (42 ACSR 138 at [12]). He stated that effect as follows (ibid., at [13] and [14]):
‘Section 1362CH of the Corporations Law stated that s 601AH applied, with any modification that the circumstances required, to the reinstatement of the registration of a body corporate that was at some time before 1 January 1991 incorporated under a previous law of New South Wales corresponding to the incorporation provisions of the Corporations Law, and was deregistered before 1 January 1991. Thus, by virtue of s 1362CH, s 601AH applied, immediately before 15 July 2001, to enable the court to reinstate under that provision a company deregistered under the Companies (NSW) Code or even under the Companies Act 1961 (NSW). There is no 15 year time limit in s 601AH, and I see no basis for contending that the circumstances would require a modification of that section to impose a 15 year time limit. Indeed, to do so would run counter to the broad empowering scope of s 1362CH.
Thus, by virtue of s 1362CH, a person aggrieved by the deregistration of a company under the Companies (NSW) Code or the Companies Act 1961 (NSW) had a right immediately prior to 15 July 2001 to seek reinstatement of a company, and by virtue of s 1400 of the Corporations Act, that person now enjoys an equivalent right under s 601AH of the Corporations Act. There is no 15 year time limit under s 601AH. It follows that the court has the power, in the present case, to order reinstatement of the three companies deregistered under the Companies Act 1961 (NSW), provided that the case falls within the requirements of the present s 601AH (2).’
With respect, as has been seen, the subject of s 1362CH was limited to ‘ASIC’s powers’ and the section did not have such a general operation with respect to the whole of s 601AH as Austin, J suggests in the passage quoted in [25]. In particular, it had no application to the jurisdiction of the Court under s 601AH (2).
There is a further point to be noted which Mr Luxton drew to my attention. Section 1362CH was contained in Part 11.1 of Chapter 11 of the 1998 Act. Section 1362CA, the first section in Part 11.1, provided:
‘This Part applies to a body corporate that was incorporated, immediately before Division 2 of Part 2.2 commenced (1 January 1991), under a previous law of this jurisdiction that corresponded to Chapter 2 (as in force immediately before that Division commenced).’
This section makes it clear, Mr Luxton submitted, that s 1362CH, as was the case with all other sections in Part 11.1, was concerned only with companies incorporated before 1 January 1991 and remaining extant, that is, not deregistered, immediately prior to that date. Contrary to the view taken by Barrett, J in Shaw (41 ACSR 556, at [5]) and by Austin, J in Parker (42 ACSR 138, at [13]) that s 1362CH was directed to companies deregistered before the ‘commencement’ of the Corporations Law, then, the submission was that the extension of ‘ASIC’s powers’ which s 1362CH effected applied to companies deregistered before the commencement of s 1362CH but which had been extant on 1 January 1991. This was supported by the definition of ‘commencement’ in s 9 of the Corporations Law which was, in relation to the ‘commencement’ of ‘this Law or a provision of the Law’, the ‘time at which the Law or provision came into operation’(my emphasis). In these circumstances, Mr Luxton submitted, ‘commencement’ in s 1362CH (a) and (b) must refer to the commencement of s 1362CH, and could not refer to the ‘commencement’ of the Corporations Law itself. Certainly, the latter construction would give rise to difficulties in the light of the apparent effect of s 1362CA. Against that construction too appears to be what is stated in par 15.25 of the Explanatory Memorandum (see [22]), namely, that the ‘ASC’s power to reinstate companies extends to the reinstatement of the registration of a body corporate which was deregistered before the new rules commence’ (my emphasis). It might also be appropriately observed that 1 January 1991 was the date on which the Australian Securities Commission came into being in place of the National Companies and Securities Commission, a different entity. The rationale for a break-off date of 1 January 1991 for Part 11.1, then, could well have been that thereby there would be no purported imposition on the Commission of the task of visiting actions taken in the past by a different entity. I accepted Mr Luxton’s submission as to the limit of the retrospective operation of s 1362CH .
Accordingly, I was compelled to conclude that, the company having been deregistered under the Code, the Court’s jurisdiction to make the order for reinstatement of its registration is still to be found in s 459 (6) of the Code.
The affidavit evidence adduced by the plaintiff initially and over two adjournments showed that, during its relatively brief existence, the company was used for the purposes of a then notorious member of the criminal ‘underworld’ and that its directors were, at best, his nominees and persons who, if they acted at all, did so in accordance with his dictates. Since deregistration there has been a continuation of enjoyment of the benefit of services to the property at 49 Cubitt Street, Richmond without payment. Many years – but not quite 15 - passed without an application for reinstatement of the company’s registration. Had the 15 year limitation period been exceeded, it is probable that a case for extension of the time under s 539 (4)(d) of the Code would have been successful. The evidence suggests that, although the person to whom I have referred died not long after the company was deregistered, the lack of activity in seeking reinstatement might in no small part have been due to fear of reprisals by his relatives and friends. The plaintiff did not exist in those days and has now concluded that the size of its claim (and, presumably, the resilience of its officers) is such as to warrant this proceeding. Its case was made out both for reinstatement and for an order that, upon reinstatement, the company be wound up.
These matters having become apparent on 13 November 2002, I made a brief oral statement of my conclusions, stated that I would provide in due course these written reasons for concluding that s 459 (6) is the source of jurisdiction, and made a number of orders. As the naming of the company as a defendant would be required for the purposes of the winding up order, ASIC was simply added as a defendant. The registration of the company was ordered to be reinstated pursuant to s 459 (6) of the Companies (Victoria) Code; and a provision for the payment of ASIC’s costs with respect to the proceeding was made. It was further ordered that, upon the reinstatement of the company’s registration, the property at 49 Cubitt Street, Richmond is vested in the company; the company be wound up by the Court on the just and equitable ground; and an official liquidator, Mr Bruno Robert Secatore, is appointed as liquidator for the purposes of the winding up. I also ordered that the plaintiff’s costs of the proceeding be costs in the winding up of the company.
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