Frigger v Professional Services of Australia Pty Ltd (No 5)

In the Federal Court of Australia, the case of Frigger v Professional Services of Australia Pty Ltd (No 5) dealt with a dispute concerning the validity of a company's registration and the court's authority to remove the company from the register. The court was tasked with answering three separate questions based on agreed and assumed facts. The first question was whether the registration of the company, originally named Liberty Oil (Australia) Pty Ltd and later changed to Professional Services of Australia Pty Ltd, was invalid from the outset. The second question was whether the court had the power to order the Australian Securities and Investments Commission (ASIC) to remove the company from the register. The third question was whether such an order could be made with retrospective effect.

The court concluded that the registration of the company was not invalid from the outset despite the fact that the memorandum and articles of association were not signed by the subscribers. The court also held that it did not have the power to order ASIC to remove the company from the register, nor did it have the power to make such an order with retrospective effect. This decision was based on the proper construction of section 1322(4)(b) of the Corporations Act 2001 (Cth). The court's reasoning hinged on the interpretation of the statute and the established legal principles governing company registration and the role of the court in such matters.

The final orders of the court included a correction to the statement of agreed facts, confirming that Mr Emilio Gerzic witnessed the signatures on the Form 201 application. The court answered the three separate questions in the negative, stating that the registration was not invalid ab initio, the court did not have the power to remove the company from the register, and any such order could not be made with retrospective effect. The court also set a deadline for the parties to file an agreed minute or competing minutes of orders regarding the future conduct of the proceedings and the question of costs. The matter was to be listed for further orders at a later date.