Gregory Paul Quin in his capacity as the former liquidator of Blue Horseshoe Ventures Pty Limited v Australian Securities and Investments Commission
[2024] WASC 327
•9 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GREGORY PAUL QUIN in his capacity as the former liquidator of BLUE HORSESHOE VENTURES PTY LIMITED -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2024] WASC 327
CORAM: HILL J
HEARD: 30 AUGUST 2024
DELIVERED : 30 AUGUST 2024
PUBLISHED : 9 SEPTEMBER 2024
FILE NO/S: COR 128 of 2024
BETWEEN: GREGORY PAUL QUIN in his capacity as the former liquidator of BLUE HORSESHOE VENTURES PTY LIMITED
First Plaintiff
KIMBERLEY STUART WALLMAN in his capacity as the former liquidator of BLUE HORSESHOE VENTURES PTY LIMITED
Second Plaintiff
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Defendant
Catchwords:
Corporations law - Application to reinstate deregistered company - Whether 'just' to reinstate deregistered company - Application granted - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 509, s 601AH(1), s 601AH(2)
Result:
Application granted
Category: B
Representation:
Counsel:
| First Plaintiff | : | B Powell |
| Second Plaintiff | : | B Powell |
| Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Pragma Lawyers |
| Second Plaintiff | : | Pragma Lawyers |
| Defendant | : | In Person |
Cases referred to in decision:
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; 358 ALR 624
HILL J:
(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)
By originating process filed on 15 August 2024, the plaintiff seeks orders pursuant to s 601AH of the Corporations Act2001 (Cth) (Act) directing the Australian Securities and Investments Commission (ASIC) to reinstate the registration of Blue Horseshoe Ventures Pty Ltd (Company), and that upon such reinstatement, the plaintiffs be appointed as liquidators of the Company.
On 16 August 2023, the plaintiffs were appointed as joint and several administrators of the Company, and subsequently on 12 December 2023 as liquidators.[1]
[1] Affidavit of Gregory Paul Quin filed 15 August 2024, 'GPQ-2'.
The evidence of Mr Quin is that the Company was deregistered as a result of an administrative error. The error arose from the filing of a form 5603 with ASIC which incorrectly indicated the report was being filed by the plaintiffs as liquidators of a creditors’ voluntary liquidation, rather than a report being filed at the end of a voluntary administration. Pursuant to s 509 of the Act, on the lodging of the form, ASIC was required to deregister the Company.
The purpose of the plaintiffs’ application is to enable to them to complete their tasks as liquidators in the winding up of the Company.
In support of the application, the plaintiffs relied on three affidavits: an affidavit of Gregory Paul Quin filed 15 August 2024, as well as two affidavits of Brenda Powell, a solicitor employed by the plaintiffs’ solicitor.
Legal principles
Pursuant to s 601AH(1) of the Act, the court may make an order for the reinstatement of a company on the application by a former liquidator. In considering whether or not to grant the application, the court is required to consider whether it is ‘just’ that the registration of the company be reinstated.
In considering whether it is 'just' to order the reinstatement of the company, the court's discretion under s 601AH(2) of the Act is wide. The court is obliged to take into account all relevant circumstances, which include the circumstances in which the company came to be deregistered; whether, if an order was made, good use could be made of it; whether any person is likely to be prejudiced by the reinstatement; and the public interest generally.[2]
[2] The Bell Group Ltd v Australian Securities and Investments Commission [2018] FCA 884; 358 ALR 624 [72]; Re ERB International Pty Ltd (deregistered) [2014] NSWSC 200; (2014) 98 ASCR 124 [5].
Service on ASIC
I am satisfied on the evidence before me that the application has been served on ASIC, as well as the two former directors of the Company.[3] ASIC does not oppose the application, and has given notice that it does not intend to attend the hearing today. Neither of the former directors of the Company oppose the application.
[3] Affidavit of Brenda Powell filed 28 August 2024, 'BP-1'.
Disposition
The evidence before me is that if the company is reinstated, it will have assets of no more than $3,000 and liabilities greater than $2,000,000.[4] The plaintiffs do not consider there are any claims to be made by the Company or by them in their capacity as liquidators against any third parties or directors and/or officeholders of the Company.[5]
[4] Affidavit of Gregory Paul Quin filed 15 August 2024 [24] - [25].
[5] Affidavit of Gregory Paul Quin filed 15 August 2024 [20].
On the evidence before me, I accept that the Company was deregistered on 14 March 2024 as a result of an administrative error which was both honest and inadvertent. Since the Company’s deregistration, the plaintiffs have been unable to complete their required tasks as liquidators for the winding up of the Company.
While the Company’s liabilities are significant in comparison to its assets, for the following reasons, I am satisfied on the evidence before me that an order for reinstatement is not futile, and that the plaintiffs should be reappointed as liquidators of the Company.
First, on the evidence before me, I accept that the administrative error made in completing and returning the end of administration form was honest and inadvertent.
Second, there is no evidence of any delay in the plaintiffs bringing the reinstatement application. Upon becoming aware of the administrative error and the Company’s deregistration, the plaintiffs wrote directly to ASIC in relation to reinstating the registration of the Company.[6] It was only on being advised by ASIC that ASIC was unable to address the matter administratively that the plaintiffs became aware that it was necessary to bring an application to the court.
[6] Affidavit of Gregory Paul Quin filed 15 August 2024, 'GPQ-5'.
Finally, I accept that no party will be materially prejudiced if the orders sought by the plaintiffs are made.
Conclusion
For these reasons, at the conclusion of the hearing, I made orders in terms of Annexure ‘A’.
ANNEXURE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
9 SEPTEMBER 2024
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