FF (R and D) Pty Ltd v Australian Securities and Investments Commission

FF (R and D) Pty Ltd initiated a claim for damages in the County Court against the Australian Securities and Investments Commission. The defendant company was in the process of a creditors’ voluntary winding up and had been deregistered prior to or at the time the County Court proceeding was filed. The primary issue before the court was whether the defendant company, which had been deregistered, could still be held liable for the damages claimed by the plaintiff. Specifically, the court had to determine if the plaintiff could proceed with the claim despite the company's liquidation and subsequent deregistration under the Corporations Act 2001 (Cth).

The court examined the statutory provisions, particularly section 500(2) and section 601AH of the Corporations Act 2001 (Cth), to assess the defendant's capacity to be sued and the potential for reinstatement. The court noted that section 500(2) allows for a discretion to grant leave to proceed with legal actions even against a company in liquidation. However, the application for reinstatement combined with the application for leave to proceed had not been sought. The court concluded that the absence of an application for reinstatement rendered the proceeding ineffective and therefore dismissed the plaintiff’s claim.

In light of the dismissal, the court did not find it necessary to address the broader issues of whether the company's deregistration interfered with the plaintiff's substantive rights or whether there was any utility in allowing the proceedings to continue. Consequently, the court ordered that the claim against the defendant company be dismissed without any orders for costs.