In the matter of Greenzan Pty Ltd (in liq) (de-registered)

[2017] NSWSC 489

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Greenzan Pty Ltd (in liq) (de-registered) [2017] NSWSC 489
Hearing dates:	24 April 2017
Date of orders:	24 April 2017
Decision date:	24 April 2017
Before:	Gleeson JA
Decision:	(1)   Grant leave to the plaintiff to file in court amended originating process joining Australian Securities and Investments Commission as the defendant. (2) Pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) the defendant reinstate the registration of Greenzan Pty Limited (in liq) ACN 060591666 (deregistered) (the company). (3) Pursuant to s 601AH(3) of the Corporations Act, that upon reinstatement of the registration of the company David Raj Vasudevan be appointed liquidator of the company. (4)   That the costs of and incidental to this application be costs of the winding up of the company. (5)   The plaintiff notify the defendant of these orders within 48 hours. (6)   Stand over the balance of the amended originating process to 15 May 2017. (7)   Direct that these orders be entered forthwith.
Catchwords:	CORPORATIONS – external administration – application to reinstate registration of a company – company in members voluntary winding up at time of its deregistration – accidental omission to transfer property prior to winding up – deregistered company remaining as legal owner of property that was intended to have been transferred to another company prior to the company’s winding up – only purpose for reinstatement is to transfer property to its intended owner – ultimate owner of the deregistered company consents to the reinstatement of the company and transfer of the property to its intended owner – former liquidator consents to his reappointment.
Legislation Cited:	Corporations Act 2001 (Cth), ss 411, 601AH, 601AH(2), 601AH(5)
Cases Cited:	Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 34 ACSR 232; [2000] NSWSC 316 In the matter of ERB International Pty Ltd (deregistered) (2014) 98 ACSR 124; [2014] NSWSC 200 JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu (2008) 65 ACSR 636; [2008] FCA 433 Re Richmate Pty Limited (in liq) (deregistered) [2015] NSWSC 2009 Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058
Category:	Principal judgment
Parties:	David Raj Vasudevan (Plaintiff) Greenzan Pty Limited (in liq)(deregistered) (Defendant)
Representation:	Counsel: P Silver (Plaintiff)   Solicitors: Kemp Strang (Plaintiff)
File Number(s):	2017/109499

Judgment

1. GLEESON JA: Before the court is an application by the plaintiff, Mr David Raj Vasudevan, for an order under s 601AH of the Corporations Act2001 (Cth) to reinstate Greenzan Pty Limited (in liq) (deregistered) (the company).

2. The company was wound up by resolution of its members on 19 January 2009 and Mr Vasudevan was appointed liquidator. At that time the company's sole shareholder was Dental Corporation Pty Limited. The purpose of the reinstatement of the company's registration is to enable the company to transfer a property located at Freshwater Place, Southbank, Victoria to Ashmell Pty Limited (Ashmell). Upon completion of the transfer of the Southbank property it is proposed that the liquidator will cause the company to be deregistered again.

3. The liquidator lodged a final form 524 (presentation of account and statements) with the Australian Securities and Investments Commission (ASIC) on or about 1 June 2009. As at that date it was the liquidator's understanding that all assets of the company of which he was then aware had been realised and all payments had been made to unsecured creditors. His remuneration had been paid and the balance of the company's assets had been distributed to members, either by a payment of cash or by a distribution in specie. The company was deregistered by ASIC on 1 November 2009.

4. Prior to the winding up of the company, the company had acted as the trustee of the Stein Property Trust. Dr Stein and his wife owned all of the units in that trust. Dr Stein, a dentist, and his wife each held 50 of the 100 issued shares in the company. One of the properties held by the company as trustee of the Stein Property Trust was the Southbank property. The company owned a number of other investment properties and also conducted a dental business.

5. In December 2007, a series of related transactions took place by which Ashmell replaced the company as trustee of the Stein Property Trust; the company transferred what the directors believed were all of the properties it held as trustee of that trust to Ashmell; and Dental Corporation Pty Limited purchased the shares in the company held by Dr Stein and his wife.

6. The evidence on the present application establishes that the Southbank property was inadvertently not transferred from the company to Ashmell in December 2007.

7. Subsequently, on 31 May 2013, the British United Provident Association Limited (Bupa) acquired all the shares in Dental Corporation under a scheme of arrangement under s 411 of the Corporations Act. There is evidence in the form of a letter from Bupa that it consents to the reinstatement of the company for the purpose of transferring the Southbank property to Ashmell. As I have indicated, the only purpose of the order sought is to permit the company to transfer the Southbank property to Ashmell and once that has occurred the liquidator will deregister the company again.

8. The Court has the power under s 601AH(2) to order ASIC, who has been joined as a defendant to the amended originating process, to reinstate the registration of the company on the application, relevantly, of a former liquidator of the company and where the court is satisfied that it is just that the company's registration be reinstated. In Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 34 ACSR 232; [2000] NSWSC 316, the relevant criteria were said to include the circumstances of the deregistration of the company, the fact that it would be put to good use upon restatement, any likely prejudice to third parties, and whether there is any public interest reason not to order reinstatement. (See also Re Richmate Pty Limited (in liq) (deregistered) [2015] NSWSC 2009 at [6]).

9. Mr Vasudevan has standing as a former liquidator of the company to bring the application. Undoubtedly it is just that the company's registration be reinstated. This will enable the company to transfer the Southbank property to Ashmell, the current trustee of the Stein Property Trust, in circumstances where the directors of the company had inadvertently failed to transfer that property in December 2007 upon the company ceasing to be trustee of that trust.

10. Section 601AH(5) provides that if a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. It is well established that upon reinstatement of a company which was in liquidation at the date of deregistration the company will return to that state. That means in the present case the company will return to the state of a members’ voluntary winding up: Australian Competition and Consumer Commission v Australian Securities and Investments Commission; Re Richmate Pty Limited (in liq) (deregistered) at [8]; Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058.

11. The balance of authorities indicate, although there has been some different views expressed over time, that an order for reinstatement does not automatically result in the appointment of the liquidator who was in office at the time of the company's deregistration; although the Court will typically appoint the liquidator who was in office by a specific order, if he or she is prepared to accept that position: JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu (2008) 65 ACSR 636; [2008] FCA 433; In the matter of ERB International Pty Ltd (deregistered) (2014) 98 ACSR 124; [2014] NSWSC 200 at [40].

12. There is evidence that Mr Vasudevan consents to his reappointment as liquidator and there is obviously advantage in his reappointment in circumstances where he is familiar with the administration.

13. Notice of the application has been given to ASIC and it has indicated that it does not oppose the orders sought. I am satisfied that an order for restatement should be made.

Orders

14. Accordingly, I make the following orders:

1. Grant leave to the plaintiff to file in court amended originating process joining Australian Securities and Investments Commission as the defendant.

2. Pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) the defendant reinstate the registration of Greenzan Pty Limited (in liq) ACN060591666 (deregistered) (the company).

3. Pursuant to s 601AH(3) of the Corporations Act, that upon reinstatement of the registration of the company David Raj Vasudevan be appointed liquidator of the company.

4. That the costs of and incidental to this application be costs of the winding up of the company.

5. The plaintiff notify the defendant of these orders within 48 hours.

6. Stand over the balance of the amended originating process to 15 May 2017.

7. Direct that these orders be entered forthwith.

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Decision last updated: 28 April 2017