Di Camillo v Australian Securities and Investments Commission
[2024] WASC 288
•13 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DI CAMILLO -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2024] WASC 288
CORAM: MASTER RUSSELL
HEARD: ON THE PAPERS
DELIVERED : 13 AUGUST 2024
FILE NO/S: COR 10 of 2024
BETWEEN: JOHN DI CAMILLO
Plaintiff
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Defendant
Catchwords:
Corporations law – Application to reinstate deregistered company – Plaintiff seeks reinstatement to pursue personal injury claim – Whether plaintiff is a person aggrieved – Whether it is just to reinstate deregistered company – Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 601AA(2), s 601AG, s 601AH(2), s 601AH(2)(a)(i) s 601AH(2)(b), s 601AH(5)
Supreme Court (Corporations) (WA) Rules 2004 (WA), r 2.8
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | On the papers |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | No appearance |
Cases referred to in decision(s):
ACN 009 009 072 PTY LTD (in liquidation) v Australian Securities & Investments Commission [2022] WASC 221
Callegher v Australian Securities and Investments Commission (2007) FCA 482; (2007) 239 ALR 749
Hugall v Australian Securities and Investments Commission [2009] WASC 185
In the matter of LCW Property Holdings Pty Ltd (deregistered) [2020] NSWSC 71
Jit Sun Investments Pte Ltd (Singaporean Unique Entity Number
200308432W) v Australian Securities and Investments Commission [2021] WASC 235
Pilarinos v Australian Securities and Investments Commission [2006] VSC 301
Re Brockweir Pty Ltd [2012] VSC 225
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
The Bell Group Ltd v Australian Securities and Investments Commission [2018] FCA 884; (2018) ACSR 247
MASTER RUSSELL:
Introduction
By originating process filed on 23 January 2024, the plaintiff, John Di Camillo, applied ex parte for orders under s 601AH(2) of the Corporations Act 2001 (Cth) (Act) for the reinstatement of Wallkins Pty Ltd (ACN 628 896 319) (Wallkins).
Wallkins was deregistered on 6 August 2023 by voluntary deregistration under s 601AA(2) of the Act.
The plaintiff seeks orders for Wallkins' reinstatement to pursue an action for damages for personal injury against it in respect of injuries alleged to have been suffered by the plaintiff on about 25 November 2021 during an accident at premises occupied by Wallkins (Accident).
The Accident is alleged to have occurred in a section of the Harvey Norman store in Osborne Park which, at that time, was independently occupied and operated by Wallkins, as a franchisee.
As the order sought in an application under s 601AH(2) of the Act, if made, requires the Australian Investments and Securities Commission (ASIC) to reinstate a company's registration, ASIC is a necessary party to the proceeding and should be served with the originating process and supporting affidavits.
By chamber summons filed on 5 March 2024, the plaintiff applied to amend the originating process to join ASIC as a party. Orders were made on 14 March 2024 giving the plaintiff leave to amend the originating process to add ASIC as the defendant, and for the amended originating process to be served on ASIC and any other interested party.
ASIC has been served with the amended originating process and supporting affidavits. ASIC has informed the plaintiff's lawyers that it does not oppose the application and does not intend to appear.
The former directors of Wallkins, Jason Mark Sawkins and Brent Wall, have also been served with the amended originating process and supporting affidavits and were given notice of the hearing of the amended application. Neither Mr Sawkins nor Mr Wall have sought to appear and have not informed the plaintiff or the court that they wish to be heard.
In support of the application, the plaintiff relies on affidavits sworn by Jacinta Claudia Pizzata on 23 January 2024, 5 March 2024, 8 April 2024, 15 April 2024 and 14 June 2024. The plaintiff has also filed a minute of proposed statement of claim for the personal injury action he seeks to bring in the District Court of Western Australia, if his application is granted.
Having considered the affidavits filed in support of the application, for the reasons that follow, I am satisfied that it is appropriate to make an order under s 601AH(2) of the Act for the reinstatement of Wallkins.
Factual background
The following summary of the relevant background, and the circumstances in which the plaintiff brings the application, are derived from the affidavits filed in support of the application and the minute of proposed statement of claim.
The Accident occurred on about 25 November 2021 at the Harvey Norman store at 469/475 Scarborough Beach Road in Osborne Park in the State of Western Australia, in an area occupied by an AV/IT franchise (Premises), operated by Wallkins at that time. The plaintiff alleges that, while walking through the Premises, his foot was caught on a plinth located in the walkway, causing him to trip and fall.
It is alleged that as a result of the Accident, the plaintiff suffered soft tissue injuries to his cervical spine and thoracolumbar spine, injuries to both his wrists and to his right shoulder. He seeks to bring a claim against Wallkins, if reinstated, for damages for negligence and breach of duty of care owed by Wallkins, as occupier of the Premises under s 2 of the Occupiers Liability Act 1985 (WA).
The plaintiff previously instituted proceedings in the District Court against Harvey Norman Holdings Limited (Harvey Norman). Those proceedings were discontinued after the plaintiff's lawyers were informed that Harvey Norman was not the occupier of the Premises. The Premises were occupied by Wallkins, an independent franchisee, from which it operated a separate, independent retail business.
The plaintiff is an engineer, architect and builder. At the time of the Accident, he was 73 years old and was working as a self-employed building supervisor and manager. He claims that following the Accident, he was unable to work for a period of time and his ability to continue to work has been significantly restricted because of his injuries.
The plaintiff claims to have incurred costs and expenses with respect to medical treatment and management of his injuries. He anticipates he will continue to incur further such costs, and may require surgery.
The plaintiff has attended upon Dr Enzo Almonte, his general practitioner, and Dr Andrew C Harper, Occupational and Public Health Physician, on multiple occasions following the Accident. He has also been assessed by a neurological consultant, Dr Ross S Goodheart.
In a report dated 27 September 2022, Dr Almonte provides details of the plaintiff's diagnosis and injuries and states that the plaintiff has reported ongoing symptoms affecting his back, hips and legs.
Reports have also been prepared by each of Dr Harper and Dr Goodheart on 17 and 18 January 2023 respectively, who assessed the plaintiff on the date of their reports. In summary, they report that the plaintiff:
(a)has sustained injuries to his cervical and lumbar spine, wrists and right shoulder;
(b)the injuries he sustained have aggravated significant pre-existing degenerative change in his cervical and lumbar spine;
(c)requires ongoing treatment, including physiotherapy and may require surgery to his lumbar spine;
(d)has a significantly reduced work capacity;
(e)has limited driving capacity; and
(f)will likely continue to have a compromised work capacity for the foreseeable future, and it is probable his injuries will require him to retire earlier than he otherwise would have.
Wallkins was voluntarily deregistered on 6 August 2023, pursuant to s 601AA(2) of the Act.
Ms Pizzata deposes to numerous attempts to ascertain the identity of any insurer and to obtain information regarding any insurance policy that Wallkins may have had at the time of the Accident.
The plaintiff contacted McDonald Ross Pty Ltd, Chartered Accountants, which are listed on Wallkins' application for deregistration, which advised that the insurer on file was Steadfast IRS or Lloyd's of London. The plaintiff's lawyers contacted the representative office of Lloyd's of London, which stated it has no authority to acknowledge notification or assist with claims, and the plaintiff would need to obtain a copy of Wallkins' insurance policy to determine the insurer.
The plaintiff's solicitors have contacted Steadfast IRS and Harvey Norman but have been unable to obtain information from them as to any insurance cover held by Wallkins.
Relevant legal principles
Where a company has been deregistered, the court may make an order that ASIC reinstate the company if the conditions required by s 601AH(2) of the Act are met. Relevantly, the first of those requirements is that the applicant is a person aggrieved by the deregistration.[1] The second requirement is that the court is satisfied it is just for the company's registration to be reinstated.[2]
[1] Section 601AH(2)(a)(i) of the Act.
[2] Section 601AH(2)(b) of the Act.
I refer to and respectfully adopt Hill J's summary of the principles applicable to an application under s 601AH(2) of the Act in Jit Sun Investments Pte Ltd (Singaporean Unique Entity Number: 200308432W) v Australian Securities and Investments Commission,[3] as follows:
[3] Jit Sun Investments Pte Ltd (Singaporean Unique Entity Number: 200308432W) v Australian Securities and Investments Commission [2021] WASC 235 [5] - [8].
(1)An application to this court for a company to be reinstated may be made by a person who is aggrieved by the deregistration or a former liquidator of the company. The court has a residual discretion whether to make an order.[4]
(2)The term 'person aggrieved' is not expressly defined in the Act and should not be construed narrowly.[5] In determining whether the plaintiff is a person aggrieved by the deregistration of the company, the court must consider whether the plaintiff has shown that the 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.[6]
(3)There is no temporal limitation in the term 'person aggrieved' and there need only be a causal link between the grievance and the deregistration of the company.[7] A person can become aggrieved as a result of events which occur after the time of the deregistration.[8]
(4)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 that the court will take into account include:[9]
(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.
[4] Re Deputy Commissioner of Taxation; in the matter of James Hardie Australian Finance Pty Ltd [2008] FCA 1181; (2008) 248 ALR 557 [13].
[5] The Bell Group Ltd v Australian Securities and Investments Commission [2018] FCA 884; (2018) ACSR 247, 262 [47] (McKerracher J).
[6] Hugall v Australian Securities and Investments Commission [2009] WASC 185 [13]; Callegher v Australian Securities and Investments Commission (2007) FCA 482; (2007) 239 ALR 749 [50].
[7] The Bell Group Ltd v Australian Securities and Investments Commission [49].
[8] Pilarinos v Australian Securities and Investments Commission [2006] VSC 301 [49].
[9] 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].
As stated by Hill J in ACN 009 009 072 Pty Ltd (in liquidation) v Australian Securities & Investments Commission:[10]
In Re Regional Planners Development Co Pty Ltd, Brereton J expressed the view that the question for the court was 'whether the deregistration of the company practically precluded the plaintiff from instituting proceedings'.
[10] ACN 009 009 072 Pty Ltd (in liquidation) v Australian Securities & Investments Commission [2022] WASC 221 (ACN 009 009 072) [32] citing Re Regional Planners Developments Co Pty Ltd [2015] NSWSC 1996; (2015) 110 ACSR 457 [29].
In Re Brockweir Pty Ltd,[11] Sifris J said:
In order to assess whether the plaintiffs are aggrieved parties, it is not necessary to embark on a detailed and exhaustive analysis of the facts and law underpinning the claim. The threshold is low. The assessment needs to be dealt with in a summary way. As long as the claim is not plainly hopeless and bound to fail, it should, subject to other relevant matters, proceed.
[11] Re Brockweir Pty Ltd [2012] VSC 225 [22].
Notice of an application under s 601AH(2) must be given to ASIC as required by r 2.8 of the Supreme Court (Corporations) (WA) Rules 2004.
Notice should also be given to anyone who may be prejudiced by the making of an order for reinstatement of the company. This includes the directors at the time of deregistration. Upon reinstatement, the company is taken to have continued in existence as if it had not been deregistered.[12] One of the consequences of this is that the directors of the company at the time of its deregistration will continue as directors of the company upon its reinstatement.
[12] Section 601AH(5) of the Act.
Disposition
As noted, ASIC has been served with the application and supporting evidence and has stated that it does not oppose the application and does not seek to be heard.
The directors of Wallkins at the time it was deregistered have also been given notice of the application and evidence in support and have not sought to be heard.
Despite attempts to identify whether Wallkins was insured at the time of the Accident and the identity of any insurer, the plaintiff has not been able to do so and is unable to bring a claim directly against any insurer of Wallkins, pursuant to s 601AG of the Act.
I make no comment on the prospects of the plaintiff succeeding in any claim against Wallkins. However, I am satisfied on the evidence adduced that the plaintiff has summarily demonstrated he has a cause of action and a basis to bring a claim against Wallkins.
The deregistration of Wallkins practically precludes the plaintiff from instituting proceedings because there is no other person or entity against whom the claim can be appropriately brought. The plaintiff has been unable to identify whether there is an insurer against whom a claim could be brought under s 601AG of the Act.
There is limited information as to the circumstances in which Wallkins was deregistered. It was deregistered voluntarily. Mr Sawkins declared that the company was no longer trading, had no liabilities and was not party to any litigation. The standard declaration also includes that the company had assets of less than $1,000. Although the plaintiff has been unable to obtain details of Wallkins' insurer, I am unable to conclude it did not have insurance at the time of the Accident. Reinstatement of Wallkins is likely, in my view, to assist in determining the identity of any insurer and information about any insurance cover in relation to the proposed claim.
I am satisfied that the plaintiff, as a person who wishes to pursue litigation against the deregistered company, is a person aggrieved by the deregistration of Wallkins, for the purposes of s 601AH(2)(a)(i). I am also satisfied that there is utility in making the order and that it is just, in the circumstances outlined, to do so.
While Wallkins may suffer prejudice if it is reinstated and the plaintiff successfully brings a claim against it, it is in the public interest for the plaintiff to have the opportunity to exercise his legal right to bring a claim.
Conclusion and orders
For these reasons, I am satisfied it is appropriate to exercise my discretion to order the reinstatement of Wallkins. Subject to hearing from the plaintiff as to the final form of orders, I will make orders as follows:
1.Pursuant to s 601AH(2) of the Corporations Act 2001 (Cth), the defendant, the Australian Securities and Investments Commission, is to reinstate the registration of Wallkins Pty Ltd (ACN 628 896 319) (Company).
2.Notice of these orders is to be given to the defendant and to the directors of the Company within seven (7) days.
3.Liberty to apply.
In the amended originating process, the plaintiff seeks an order that the costs of the application be costs in the proposed District Court action against Wallkins, once reinstated. I will hear from the plaintiff in relation to the order sought in relation to costs, including:
(a)whether it is appropriate to make the order sought; and
(b)whether any costs ordered should be fixed or limited to an amount that appropriately reflects the time and costs ordinarily associated with an application of this type, properly prepared.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
13 AUGUST 2024
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