Daniel Johannes Bredenkamp as liquidator of Azurite Corporation Pty Ltd (in Liquidation) v Australian Securities and Investments Commission

Case •

[2025] WASC 331

•

15 AUGUST 2025

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DANIEL JOHANNES BREDENKAMP as liquidator of AZURITE CORPORATION PTY LTD (IN LIQUIDATION) -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2025] WASC 331

CORAM:   HILL J

HEARD:   8 AUGUST 2025; ON THE PAPERS

DELIVERED          :   15 AUGUST 2025

FILE NO/S:   COR 111 of 2025

BETWEEN:   DANIEL JOHANNES BREDENKAMP as liquidator of AZURITE CORPORATION PTY LTD (IN LIQUIDATION)

First Plaintiff

AZURITE CORPORATION PTY LTD (IN LIQUIDATION)

Second Plaintiff

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Defendant


Catchwords:

Corporations - Application to reinstate deregistered company - Whether it is 'just' that the registration of the company be reinstated - Turns on own facts

Corporations - Application to wind up the company on reinstatement - Whether company solvent on reinstatement - Whether just and equitable to wind up company - Turns on own facts

Legislation:

Corporations Act 2001 (Cth) s 459P, s 461, s 601AH

Result:

Application allowed

Category:    B

Representation:

Counsel:

First Plaintiff : D J Branford
Second Plaintiff : D J Branford
Defendant : No appearance

Solicitors:

First Plaintiff : Pragma Lawyers
Second Plaintiff : Pragma Lawyers
Defendant : No appearance

Cases referred to in decision:

Australian Securities and Investment Commission v Letten [2011] FCA 498

Australian Securities and Investment Commission v Storm Financial Ltd (2009) 7 ACSR 81

Callegher v Australian Securities and Investments Commission (ASIC) (2007) FCA 482; (2007) 239 ALR 749

Hugall v Australian Securities and Investments Commission [2009] WASC 185

Low v Australian Securities and Investments Commission [2024] WASC 116

Pilarinos v Australian Securities and Investments Commission [2006] VSC 301

Re Deputy Commissioner of Taxation; in the matter of James Hardie Australian Finance Pty Ltd [2008] FCA 1181; (2008) 248 ALR 557

Re ERB International Pty Ltd (deregistered) [2014] NSWSC 200; (2014) 98 ASCR 124

Re Westbourne Galleries Ltd [1973] AC 360

The Bell Group Ltd v Australian Securities and Investments Commission [2018] FCA 884; (2018) ACSR 247

HILL J:

  1. By originating process filed on 22 July 2025, the plaintiffs seek orders pursuant to s 601AH of the Corporations Act 2001 (Cth) (Act) for the reinstatement of the registration of Hades Corporation (WA) Pty Ltd (Company). On the reinstatement, the plaintiffs say the Company should be wound up in insolvency, alternative on just and equitable grounds, and the first plaintiff be appointed as liquidator of the Company.

  2. The plaintiffs also seek ancillary orders pursuant to s 601AH(3)(c) of the Act to validate any actions done by the Company between the date the Company was deregistered and its date of reinstatement, as well as for orders that the advertising and notification requirements of the Act in relation to the proposed winding up of the Company be dispensed with. Following an exchange with counsel at the hearing, the plaintiffs did not press the application for orders for the validation of an actions of the Company in the absence of any evidence as to what actions (if any) had been taken over this period.

  3. The matter first came before me for hearing on 8 August 2025. At that hearing, counsel for the plaintiffs informed the court that the Australian Securities and Investments Commission (ASIC) considered the notice and advertising requirements prescribed by s 465A(1)(c) of the Act and r 5.6(2)(b) of the Supreme Court (Corporations) (WA) Rules 2004 (WA) should be complied with.[1] As there was no urgency in resolving the matter, I adjourned the plaintiffs' originating process until 15 August 2025 to enable these matters to occur and indicated that, in the absence of anyone filing a notice of intention to be heard, I would vacate the hearing and determine the application on the papers. On the afternoon of 14 August 2025, in the absence of any notice having been filed, I vacated the hearing.

    [1] Ex A.

  4. In support of the application, the plaintiffs relied on three affidavits: an affidavit of Daniel Johannes Bredenkamp, the first plaintiff, filed 22 July 2025; and two affidavits of Erin Jayne Newman, a graduate employed by Pragma Lawyers, the plaintiffs' solicitors, filed 24 July and 8 August 2025.

  5. I have also had the benefit of an outline of written submissions from the plaintiffs filed 6 August 2025.

Service of proceedings

  1. On the evidence before me, I am satisfied that the application has been served on ASIC,[2] as well as Mr Fotios, the former director of the Company.[3] No notice was given by ASIC or Mr Fotios that they opposed the application and neither party appeared before me on 8 August 2025.

    [2] Affidavit of Erin Jayne Newman filed 24 July 2025, 'EJN-2'; Affidavit of Erin Jayne Newman filed 8 August 2025, 'EJN-3', 'EJN-5'.

    [3] Affidavit of Erin Jayne Newman filed 24 July 2025, 'EJN-1', 'EJN-4'.

Factual background

  1. On 19 March 2024, Mr Bredenkamp was appointed as one of the joint and several administrators of the second plaintiff, Azurite Corporation Pty Ltd (Azurite).[4]

    [4] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [6], 'DJB-5'.

  2. Meetings of creditors were held on 2 April 2024 and 1 July 2024. At the second meeting, the creditors resolved that Azurite be wound up and Mr Bredenkamp appointed as liquidator of Azurite.[5]

    [5] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [7] - [9].

  3. On 12 April 2024, the former director of Azurite, Ms Renee Fotios, submitted a Report on Company Activities and Property (ROCAP). The ROCAP disclosed that the Company was a related party of Azurite at the date of the appointment of Mr Bredenkamp and owed $750,000 to Azurite.[6]

    [6] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [10] - [11].

  4. After investigating this matter further, Mr Bredenkamp believes:[7]

    (a)a loan of $750,000 was made by Azurite to the Company on about 13 October 2017 (Loan);

    (b)there is no written agreement setting out the terms and conditions of the Loan;

    (c)there has been no repayment by the Company of the Loan, whether in part or in full, and the Loan remains outstanding; and

    (d)the Loan has potential value for Azurite and its creditors.

    [7] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [12] - [17].

  5. Since becoming aware of the Loan, Mr Bredenkamp and his lawyers conducted further investigations as to the circumstances of the Company's deregistration. These investigations revealed that:

    (a)the Company was deregistered on 11 March 2022 by ASIC pursuant to s 601AB of the Act;[8]

    (b)prior to its deregistration, the Company did not have any directors.  The previous sole director of the Company, Michael Fotios, ceased to be a director on 30 April 2019 when he was made bankrupt;[9] and

    (c)the Company is a registered shareholder of Auris Minerals Ltd, owning 14,175,000 shares which have an approximate value of $70,000.[10]

    [8] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [19], 'DJB-8'.

    [9] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [20] - [22], 'DJB-9'.

    [10] Affidavit of Daniel Johannes Bredenkamp filed 22 July 2025 [23] - [25], 'DJB-10'.

Should the Company be reinstated?

  1. Pursuant to s 601AH(2) of the Act, where a company has been deregistered, the court may make an order that ASIC reinstate the company if the conditions required by the Act are met.

  2. Section 601AH(2) states:

    The Court may make an order that ASIC 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.

  3. The court is not required to make an order where the elements of this section are satisfied but retains a residual discretion.

  4. An application for a company to be reinstated may be made by a person who is aggrieved by the deregistration.[11] The term 'person aggrieved' is not expressly defined in the Act and is not to be construed narrowly.[12] In determining whether a plaintiff is a person aggrieved by the deregistration of the company, the court must consider whether the plaintiff has shown that deregistration has deprived them of something, or injured or damaged them in a legal sense, or that they became entitled in a legal sense to regard the deregistration as the cause of dissatisfaction.[13]

    [11] Re Deputy Commissioner of Taxation; in the matter of James Hardie Australian Finance Pty Ltd [2008] FCA 1181; (2008) 248 ALR 557 [13].

    [12] The Bell Group Ltd v Australian Securities and Investments Commission [2018] FCA 884; (2018) ACSR 247 [47].

    [13] Hugall v Australian Securities and Investments Commission [2009] WASC 185 [13]; Callegher v Australian Securities and Investments Commission (ASIC) (2007) FCA 482; (2007) 239 ALR 749 [50].

  5. There is no temporal limitation in the term 'person aggrieved'; that is, there need only be a causal link between the grievance and the deregistration of the company.[14] A person can become aggrieved as a result of events which occur after the time of the deregistration.[15]

    [14] The Bell Group Ltd v Australian Securities and Investments Commission [49].

    [15] Pilarinos v Australian Securities and Investments Commission [2006] VSC 301 [49].

  6. Before the court can make an order for reinstatement, the court must be 'satisfied that it is just that the company's registration be reinstated'. This confers a broad discretion on the court. In exercising its discretion, relevant factors the court will take into account include:[16]

    (a)the circumstances in which the company came to be deregistered;

    (b)the future activities of the company, if an order for reinstatement is made;

    (c)whether any particular person is likely to be prejudiced by the reinstatement; and

    (d)the public interest generally.

    [16] The Bell Group Ltd v Australian Securities and Investments Commission [72]; Re ERB International Pty Ltd (deregistered) [2014] NSWSC 200; (2014) 98 ASCR 124 [5].

  7. While it is usual that when a company is reinstated, it is reinstated in the form which it existed prior to registration, an order for winding up may be made immediately following a company's reinstatement in the appropriate circumstances.[17]

    [17] Low v Australian Securities and Investments Commission [2024] WASC 116 [25].

  8. On the evidence before me, I accept that Azurite has a strong bona fide claim against the Company for repayment of the Loan. On this basis, I accept that at least the second plaintiff is a 'person aggrieved' by the deregistration of the Company for the purposes of s 601AH(2)(a)(i) of the Act.

  9. The evidence before me is that the Company has not carried on business since about April 2019 and was deregistered by ASIC under s 601AB of the Act. It does not appear that anyone will be prejudiced in the event the Company is reinstated. In my view, it would be in the public interest for the plaintiffs to be able to attempt to recover repayment of the Loan to enable this amount to be distributed to Azurite's creditors.

  10. The Company is recorded as being a shareholder in Auris Minerals, which shares have an approximate value of $70,000. As the second plaintiff is the only known creditor of the Company, I accept that it is likely that these shares can be realised for the benefit of the plaintiffs. On this basis, I accept that good use can be made of an order for reinstatement and that it is 'just' to make the order sought.

Should the Company be wound up and the first plaintiff appointed as liquidator?

  1. I accept that a creditor of a company has standing to apply for the company's winding up in insolvency pursuant to s 459P(1)(a) of the Act, as well as on just and equitable grounds pursuant to s 461(1)(k) of the Act.

  2. Turning first to the question as to whether orders should be made under s 461(1)(k) of the Act. The categories of circumstances that satisfy the just and equitable ground are not closed or rigid.[18] In the past, orders have been made under s 461(1)(k) of the Act in cases where the winding up was served to protect investors; the affairs of the company had been conducted in a way which demonstrate a lack of probity productive of a justifiable lack of confidence in the administration of the company; or where there has been misconduct or illegality in the conduct of affairs of the company, such that it is in the public interest and the protection of investors that the company be wound up.[19]

    [18] Australian Securities and Investment Commission v Storm Financial Ltd (2009) 7 ACSR 81 [65]; Re Westbourne Galleries Ltd [1973] AC 360.

    [19] Australian Securities and Investment Commission v Letten [2011] FCA 498 [13].

  3. In this case, the sole director of the Company ceased to be a director almost three years ago. For this reason, on its reinstatement, the Company would not have a director and it is unlikely that this position will change.  In these circumstances, I accept it is just and equitable for orders to be made winding up the Company and appointing the first plaintiff as liquidator.

Conclusion

  1. For these reasons, I am satisfied that it was appropriate to make orders in terms of paragraphs 1, 4, 5 and 7 of the plaintiffs' originating process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KS

Associate to the Honourable Justice Hill

15 AUGUST 2025


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