Emergen-X Pty Limited (in liquidation) (ACN 114 579 510), in the matter of Emergen-X Pty Limited (in liquidation) (ACN 114 579 510)

Specialist Pathology Services Pty Limited (the Plaintiff) applied to the Federal Court of Australia under section 509(6) of the Corporations Act 2001 (Cth) for an order that the Australian Securities and Investments Commission deregister Emergen-X Pty Limited (in liquidation) (the Defendant) on 24 May 2010. The Plaintiff, a member of the Defendant, sought the order to prevent the loss of tax concessions amounting to approximately $85,000 available under the small business capital gains tax regime of the Income Tax Assessment Act 1997 (Cth). The Plaintiff argued that if the Defendant was not deregistered by 3 June 2010, it would lose the benefit of these tax concessions.

The legal issues before the court were whether the Plaintiff was an interested party under section 509(6) of the Corporations Act and whether the Court should exercise its discretion to bring forward the date of deregistration. The Plaintiff argued that there were no creditors of the Defendant, the members of the company supported the application, and the liquidator consented to the application. The Plaintiff also submitted that there was no consideration of "commercial morality" which would weigh against the exercise of the Court's discretion.

The Court found that the Plaintiff was an interested party within the meaning of section 509(6) because it was a member of the Defendant and had an obvious interest in the making of the application. The Court was satisfied that there were no creditors of the company, and the members of the company supported the application. The Court also noted that the liquidator obtained a clearance from the Australian Taxation Office prior to the holding of the final meeting of members. The Court concluded that it was appropriate to exercise its discretion to bring forward the date of deregistration by the period sought, which would result in bringing forward the date of deregistration by approximately seven weeks.

The Court ordered that the Australian Securities and Investments Commission deregister the Defendant on 24 May 2010 and that this order be entered forthwith. The Court did not find it necessary to express any view on whether commercial morality was a consideration in the exercise of the discretion to approve a scheme of arrangement.