In the matter of Loreno Pty Ltd

[2024] NSWSC 1081

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Loreno Pty Ltd [2024] NSWSC 1081

Hearing dates:

19 August 2024

Date of orders:

27 August 2024

Decision date:

27 August 2024

Jurisdiction:

Equity - Corporations List

Before:

Nixon J

Decision:

See [75]

Catchwords:

CORPORATIONS – deregistration by ASIC – application for reinstatement – where company was deregistered by ASIC pursuant to s 601AB of Corporations Act 2001 (Cth) at a time when the sole director was in aged care – where company held substantial assets at time of deregistration – reinstatement ordered – ancillary orders made for appointment of directors – where potential capital gains tax liability as a result of divestment and revesting of property – ancillary orders sought deeming company to have remained owner of property during period of deregistration – whether orders are within power and should be made

Legislation Cited:

Corporations Act 2001 (Cth), ss 601AB, 601AD, 601AE, 601AH

Cases Cited:

In the matter of Garfox 86 Pty Ltd [2019] NSWSC 442

In the matter of LCW Property Holdings Pty Ltd (deregistered) [2020] NSWSC 71

In the matter of Likehart Pty Ltd (deregistered) [2017] NSWSC 884

Liberty International Underwriters v Australian Securities and Investments Commission, in the matter of Moore Murphy Holdings Pty Ltd [2021] FCA 103

Nicholls (Trustee) v Australian Securities and Investments Commission, in the matter of Lawson [2023] FCA 1368

Owners of Strata Plan No 91349 v Australian Securities and Investment Commission [2020] NSWSC 685

Pherous Holdings Group Pty Ltd, in the matter of Pherous Holdings Group Pty Ltd [2022] FCA 613

Re ERB International Pty Ltd (deregistered) (2014) 283 FLR 223; [2014] NSWSC 200

The Bell Group Limited v Australian Securities and Investments Commission [2018] FCA 884

White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441

Yi Li v Australian Securities and Investments Commission [2024] NSWSC 514

Category:

Principal judgment

Parties:

Giorgio Donazzolo (Plaintiff)
Australian Securities and Investments Commission (Defendant)

Representation:

Counsel:
E Finnane (Plaintiff)

Solicitors:
Gallagher Solicitors & Conveyancers (Plaintiff)

File Number(s):

2024/168619

Publication restriction:

Nil

JUDGMENT

1. By Originating Process filed on 12 March 2024, the Plaintiff, Mr Giorgio Donazzolo, seeks an order under s 601AH of the Corporations Act 2001 (Cth) (the Act) for the reinstatement of the registration of Loreno Pty Ltd (ACN 001 432 453) (Loreno).

2. Mr Donazzolo also seeks various ancillary orders under s 601AH of the Act, including:

1. orders that, upon the reinstatement of Loreno, he and his brother, Mr Valerio Donazzolo, be appointed as directors of the company; and

2. an order that Loreno is deemed to have remained the legal and beneficial owner of certain property that it held at the time of its registration.

3. Mr Donazzolo swore an affidavit in support of the application, and also relied on affidavits of his brother and of his solicitor.

4. The Defendant (ASIC) was served with this material and confirmed that it did not oppose the relief sought and did not wish to be heard on the application, on the basis that no order for costs would be sought against ASIC (and no such order has been sought).

5. In addition, as I explain below, the Originating Process and affidavits were also provided to the Commissioner of Taxation, with particular attention being drawn to the ancillary orders sought by the Plaintiff. The Commissioner also indicated that he did not intend to participate in the proceedings.

Factual background

6. Loreno was registered on 21 February 1977.

7. Loreno was established by the Plaintiff’s parents, Mr Gelindo and Mrs Severina Donazzolo. Each of them was a shareholder and director of the company.

8. Mrs Severina Donazzolo died in November 2002. A Change to Company Details form which was lodged with ASIC on 17 July 2003 recorded that she ceased to be a director on the date of her death and that her shares in Loreno had passed to her husband, Mr Gelindo Donazzolo.

9. Loreno’s articles of association provided that, until otherwise determined by the company in a general meeting, the number of the directors “shall not be less than two”. There is no evidence as to whether the company at any time “otherwise determined … in a general meeting”. However, Mr Gelindo Donazzolo remained the sole director of Loreno until its deregistration.

10. Loreno was deregistered on 21 July 2013. According to the ASIC extract for Loreno, the deregistration was effected pursuant to s 601AB of the Act. That provision gives ASIC the power to deregister a company where, for example, it has not lodged any documents under the Act in the previous 18 months, or it is at least 6 months late in responding to a return of particulars given to the company, or it has not paid certain fees or levies.

11. The evidence does not reveal the precise basis on which ASIC exercised the power under s 601AB. However, it is relevant to note that, at the time of deregistration:

1. the sole director, Mr Gelindo Donazzolo, was 91 years old and was living in an aged care facility, having moved there around one year earlier because he was unable to continue with unassisted living; and

2. the registered office for Loreno was the former office of a chartered accountant who had died in 2007.

12. At the time of Loreno’s deregistration, there were five classes of shares on issue, which were held as follows:

1. Management Shares: 8 shares on issue, held by Mr Gelindo Donazzolo;

2. Ordinary A Class Shares: 10 shares on issue, held by Mr Gelindo Donazzolo;

3. Ordinary B Class Shares: 10 shares on issue, held by Mr Gelindo Donazzolo;

4. Ordinary C Class Shares: 100 shares on issue, held by the Plaintiff’s brother, Mr Valerio Donazzolo; and

5. Ordinary D Class Shares: 100 shares on issue, held by the Plaintiff.

13. Pursuant to article 11 of the articles of association of Loreno, the holders of management shares were entitled to attend and vote at meetings of the company; and the holders of ordinary shares were not so entitled, unless otherwise provided by the terms of issue. There is no evidence as to the terms of issue of the four classes of ordinary shares.

14. Mr Gelindo Donazzolo died on 16 July 2016. The Plaintiff is the executor of the estate of his father and is the sole beneficiary.

15. The Plaintiff and Mr Valerio Donazzolo are the only surviving children of Mr Gelindo and Mrs Severina Donazzolo. Neither the Plaintiff nor his brother had any involvement in Loreno during their parents’ lifetime. The Plaintiff was not aware he was a shareholder in Loreno until some time after his father’s death.

16. As at the date of its deregistration, Loreno was the registered proprietor of a residential property located at 46 Fry Street, Grafton, New South Wales (Property). According to a recent title search for the Property, Loreno continues, despite its deregistration some 11 years ago, to be named as the registered proprietor. An appraisal for the Property prepared in May 2023 estimated its market value to be between $580,000 and $600,000.

17. The Property has been managed by a rental agent. The Plaintiff deposes that any expenses relating to the Property have been paid by the managing agent from rental income, with the balance being deposited into the Plaintiff’s bank account. The Plaintiff deposes that this arrangement was put in place before his father’s death and with his father’s consent. The Plaintiff’s brother has been informed of this arrangement. The Plaintiff further deposes that he understands that, following reinstatement of Loreno, it will be necessary to account to Loreno for the moneys which he has received.

18. Despite Loreno being deregistered by ASIC in July 2013, financial statements and tax returns continued to be prepared. The last tax return lodged with the Australian Taxation Office was for the year ended 30 June 2019. This tax return declared rental income and also dividends.

19. As at the date of its deregistration, Loreno held a parcel of shares in Telstra Corporation Limited. A statement issued by Link Market Services shows that, as at 6 May 2022, 477 shares in that entity were recorded as held in Loreno’s name. The Link statement also lists dividends paid in respect of those shares in the previous two years. Subsequent to this statement being issued, there was a restructure of the Telstra Group. I deal with this further below.

20. The only liabilities of Loreno which the Plaintiff has been able to identify are:

1. a loan liability to the estate of Mr Gelindo Donazzolo, which is shown in the 2019 financial statements as being in the sum of $59,686. There are no notes in the financial statements regarding this loan, and the Plaintiff does not have any further details in relation to it; and

2. possibly, a liability for unpaid income tax. In that regard, the Plaintiff notes that the amount of tax assessed in respect of the last year for which a return was lodged (ending 30 June 2019) has been paid, but that no tax returns have been lodged since then and there may be some income tax payable, having regard to any rental and dividends received from the assets held in Loreno’s name.

21. At the hearing of this application, the Plaintiff proffered, by his counsel, an undertaking to the Court that, if the registration of Loreno is reinstated and he is appointed as its director, he will attend with all proper diligence to the administration of its affairs including the lodging of all outstanding returns with the Australian Taxation Office (ATO), and causing the company to pay its debts, including any fees and fines that may be payable to ASIC, and he will engage accountants and solicitors so far as necessary to assist him in attending to the affairs of Loreno.

Application for reinstatement

22. Section 601AH(2) of the Act relevantly provides as follows:

(2)    The Court may make an order that ASIC reinstate the registration of a company if:

(a)    an application for reinstatement is made to the Court by:

(i)    a person aggrieved by the deregistration; …

and

(b)    the Court is satisfied that it is just that the company's registration be reinstated.

23. The principles relevant to reinstatement applications were conveniently summarised by McGrath J in the recent decision of Yi Li v Australian Securities and Investments Commission [2024] NSWSC 514 at [25] as follows:

“(1) The question whether an applicant under s 601AH(2) is a ‘person aggrieved by the deregistration’ is considered by reference to legal rights and legal interests: Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Ltd [2010] NSWSC 1369; (2010) 80 ACSR 670, Barrett J at [43], approved in Re LCW Property Holdings Ltd (deregistered) [2020] NSWSC 71, Gleeson J at [17].

(2)   The concept of a ‘person aggrieved by the deregistration’ includes a person who has a genuine grievance because a company’s dissolution has extinguished a right of some value or potential value, including a right to bring proceedings against the company or to bring a claim by the company against a third party: Re Likehart Pty Ltd (deregistered) [2017] NSWSC 884, Black J at [18]; LCW Property at [21]; In the matter of Human Group Pty Ltd; In the matter of A.C.N. 137 384 662 Pty Ltd [2023] NSWSC 28, Black J at [7].

(3)   The question of whether it is just that the company’s registration be reinstated involves a broad discretionary judgment of the court, the relevant considerations for which include the circumstances in which it was deregistered, the purpose of the person aggrieved in seeking its reinstatement, whether any person is likely to be prejudiced by its reinstatement and the public interest generally: Re ERB International Pty Ltd (deregistered) (2014) 283 FLR 223; [2014] NSWSC 200, Brereton J at [5]; LCW Property at [16] and [22]–[28]; Human Group at [9].

(4)   On an application for reinstatement, the court is concerned with the justice of reinstating the company, not the justice of any proceedings which it is proposed that the reinstated company might institute or resume: ERB International at [10] citing the Victorian Court of Appeal in AMP General Insurance Ltd v Victorian WorkCover Authority [2006] VSCA 236 at [35]; applied in LCW Property at [22].

(5)   It is often not appropriate in an application for reinstatement to go into factual matters which may be the subject of dispute: Pilarinos v Australian Securities and Investments Commission [2006] VSC 301; (2006) 24 ACLC 775, Gillard J at [22]; Deputy Cmr of Taxation v Australian Securities and Investments Commission; Re Civic Finance Pty Ltd (deregistered) [2010] FCA 1411; (2010) 81 ATR 456, Jagot J at [14], applied in LCW Property at [20].

(6) The effect of reinstatement is that the former directors and secretary automatically resume office as directors and secretary of the company by reason of the operation of s 601AH(5) of the Corporations Act: LCW Property at [27], citing Mitzev v Foxman [2007] NSWCA 273, Basten JA (Tobias and McColl JJA agreeing) at [25].

(7) The power of the court in s 601AH(3)(d) of the Corporations Act to ‘make any other order it considers appropriate’ must be exercised having regard to all of the circumstances of the particular case and the broader context of the operation of the Corporations Act: Federal Cmr of Taxation v Iannuzzi (No 3) [2024] FCA 45, Markovic J at [215].”

24. The expression “person aggrieved” is of wide import and is to be construed liberally: Owners of Strata Plan No 91349 v Australian Securities and Investment Commission [2020] NSWSC 685 at [61] (Bell P). What must be shown is that the plaintiff has a genuine grievance because the deregistration has extinguished a right of some value or potential value: In the matter of Likehart Pty Ltd (deregistered) [2017] NSWSC 884 at [18] (Black J); In the matter of LCW Property Holdings Pty Ltd (deregistered) [2020] NSWSC 71 at [20]-[21] (Gleeson JA).

25. If the Court determines that the applicant for the reinstatement of the company’s registration is a “person aggrieved”, the Court must also be satisfied that it is just that the company’s registration be reinstated. Where those matters are established, the Court has a residual discretion as to whether an order should be made: LCW Property Holdings at [15]. Relevant matters include the circumstances in which the company was deregistered; the purpose of the reinstatement; the solvency of the company; whether any person is likely to be prejudiced by the reinstatement; and the public interest generally: ibid at [16], citing Re ERB International Pty Ltd (deregistered) (2014) 283 FLR 223; [2014] NSWSC 200 at [5] (Brereton J).

26. I am satisfied that the Plaintiff is a person aggrieved by the deregistration of Loreno. In particular, on the evidence before the Court:

1. the Plaintiff was a shareholder at the time of Loreno’s registration;

2. the Plaintiff is the executor of the estate of Mr Gelindo Donazzolo, who was also a shareholder (and possibly a creditor) at the time of Loreno’s deregistration;

3. the Plaintiff is the sole beneficiary of the estate of Mr Gelindo Donazzolo;

4. Loreno held significant assets (and in particular, the Property) at the time of its deregistration;

5. other than a debt to Mr Gelindo Donazzolo (if such a debt is established), Loreno appears not to have had any significant liabilities; and

6. consequently, at the time of its deregistration, Loreno likely had substantial net assets.

27. The circumstances in which Loreno was deregistered are unclear. However, on the limited evidence available, this appears to have occurred as the result of some failure to lodge forms or pay fees or respond to notices, in circumstances where the sole director of Loreno was 91 years old and in aged care, and where the registered office of Loreno was an accounting business that had ceased to operate some years earlier.

28. The purpose of the reinstatement is so that Loreno, which was a passive investment vehicle, can be revested with the investments that it held at the time of its deregistration (including, in particular, the Property) for the benefit of its shareholders, namely, the Plaintiff and his brother.

29. There is nothing to indicate that Loreno was insolvent at the time of its deregistration, or might be insolvent upon its reinstatement. Loreno received rental income and dividends, and, according to its last tax return, appears to have met its expenses out of its income.

30. The shareholders of Loreno seek its reinstatement. No interested party opposes its reinstatement. Loreno does not appear to have had any creditors, other than Mr Gelindo Donazzolo (and the Plaintiff is executor of his estate). The Plaintiff accepts that, if Loreno is reinstated, he will need to account for moneys which he received from the balance of the rental income of the Property, after expenses, and his brother is aware of this issue.

31. There is nothing to indicate that the reinstatement of Loreno would be contrary to the public interest. No person is likely to be prejudiced by the reinstatement. ASIC has reviewed the material on this application and does not oppose the relief sought. The Commissioner also does not oppose the relief sought.

32. Although there has been significant delay in bringing this application (and, as the Plaintiff’s counsel frankly conceded, that delay is not satisfactorily explained in the Plaintiff’s affidavit), the Plaintiff has proffered the undertaking to the Court which I have outlined above, including that if Loreno is reinstated and he is appointed as director, he will attend with all proper diligence to the administration of its affairs including the lodging of all outstanding returns with the ATO, and causing the company to pay its debts, including any fees and fines that may be payable to ASIC.

33. Having regard to those matters, I am satisfied that it is just that Loreno’s registration be reinstated, and that the Court should exercise its discretion to make the order for reinstatement sought by the Plaintiff.

Application for ancillary orders

34. The Plaintiff seeks a number of ancillary orders under s 601AH(3)(d) of the Act, which relevantly provides as follows:

(3) If:

…

(b)    the Court makes an order under subsection (2);

the Court may:

…

(d)    make any other order it considers appropriate.

35. In particular, the Plaintiff seeks orders regarding the appointment of directors to Loreno, and various orders regarding the property held by Loreno as at the date of its deregistration.

36. In considering the ancillary relief sought, it is necessary to have regard to the terms of s 601AH(5) of the Act, which provides as follows:

(5)    If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

Appointment of directors

37. Pursuant to s 601AH(5), a “person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company”. The sole director of Loreno as at the time of its deregistration was Mr Gelindo Donazzolo, who is deceased. Accordingly, if Loreno is reinstated, it would be reinstated without any director to manage its affairs.

38. The Court has the power to make orders appointing directors to a company upon its reinstatement, pursuant to its power under s 601AH(3)(d): In the matter of Garfox 86 Pty Ltd [2019] NSWSC 442 at [20]-[25] (Rees J); Nicholls (Trustee) v Australian Securities and Investments Commission, in the matter of Lawson [2023] FCA 1368 at [20]-[21] (Halley J).

39. I am satisfied that it is appropriate to exercise this power in circumstances where Loreno, upon reinstatement, would not have a director; where the only two persons who have an interest in the issued shares of Loreno are both willing to be appointed as directors; where each of them consents to the other being a director; where ASIC does not oppose the proposed orders; and where each of the Plaintiff and his brother has deposed, in affidavits in support of this application, that he will attend with all proper diligence to the administration of Loreno’s affairs (and, in addition, the Plaintiff has proffered the undertaking to the Court outlined above).

Ancillary order – the Property

40. Section 601AD(2) of the Act provides that, on deregistration, “all the company’s property (other than any property held by the company on trust) vests in ASIC”.

41. Where a company is reinstated, it is taken to have continued in existence as if it had not been deregistered: s 601AH(5). However, this provision has been described as providing only “a limited measure of retrospectivity concerning title to the property of the company”: White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441 at [115] (Campbell J). In particular, s 601AH(5) provides that any “property of the company that is still vested in the Commonwealth or ASIC revests in the company.” It follows that “the property revests in it only from the time of reinstatement”: White v Baycorp at [115].

42. The operation of ss 601AD(2) and 601AH(5) gives rise to the following concern on the part of the Plaintiff: “there is a real possibility of a CGT [capital gains tax] consequence for the Company, arising only because the effect of s 601AD(2) is not completely reversed by s 601AH(5)”.

43. I do not need to determine whether or not the operation of the provisions would give rise to a capital gains tax consequence so far as the Property is concerned. Instead, the issue is whether the Court should exercise its power under s 601AH(3)(d) to make an order removing the risk of such a consequence. In particular, the Plaintiff sought the following order in his Originating Process:

“An order pursuant to subsection 601AH(3)(d) of the Corporations Act that Loreno Pty Ltd is deemed and taken at all times to have remained the legal and beneficial owner of the land and building at 46 Fry Street Grafton, being the lands described in folio identifier 14/264599, during the period from 21 July 2013 until the date of these orders (inclusive).”

44. In The Bell Group Limited v Australian Securities and Investments Commission [2018] FCA 884, certain companies in the Bell Group had been deregistered in around 2002 (the Deregistered Companies). The Deregistered Companies held, at the time of their deregistration, shares in other companies in the Bell Group, which had tax losses. The plaintiffs (comprising companies in the Group which were in liquidation and the liquidator) sought orders for reinstatement of the Deregistered Companies. In addition, the plaintiffs sought ancillary orders under s 601AH(3)(d) which were intended to achieve the effect that the shares held by the Deregistered Companies were deemed and taken at all times from the date of deregistration to have been beneficially owned by the Deregistered Companies. The purpose in seeking such relief was so that the companies, the shares in which had been held by the Deregistered Companies, could be included in the tax consolidated group.

45. The Commissioner issued a private ruling that the reinstatement of the Deregistered Companies would not make the affected companies part of the tax consolidated group for the period during which the Deregistered Companies had been deregistered, and that the affected companies would only be eligible to be part of the tax consolidated group from the date of reinstatement of the Deregistered Companies.

46. The Commissioner appeared at the hearing before McKerracher J, and opposed the ancillary relief sought by the plaintiffs.

47. McKerracher J carried out a detailed review of the authorities in relation to s 601AH(3). His Honour concluded that: “The power has always existed to achieve the primary purpose of treating a company upon reinstatement as though it had continued in existence from the date of deregistration, that is to say, the ‘as-you-were’ position” (at [136]).

48. His Honour rejected the Commissioner’s submission that the proposed orders would be “inconsistent with the limited form of retrospectivity provided for by s 601AH(5) because they seek to restore beneficial ownership of the property to the Deregistered Companies during the period of deregistration” (at [137]). His Honour continued that:

“It is true that the adjective ‘limited’ has been used by the courts in relation to the retrospectivity described in the first sentence of s 601AH(5), but in my view, that retrospectivity underlies the whole purpose of reinstatement. Section 601AH(5) provides for a fictional deemed continuation of the company‘s corporate existence during the period of deregistration. There are no other automatic retrospective legal consequences, but that is why there is the facility within the Corporations Act to make both validating provisions and any other orders considered appropriate in the circumstances in conjunction with the reinstatement. Section 601AH(3)(d) clearly permits an ancillary order which has significant, not merely incidental, retrospective consequences.”

49. Further, his Honour said (at [144]) that:

“An order under s 601AH(3)(d), which revests part of a company’s property at an earlier time, even for a limited purpose, does not in any way contradict or make redundant, or nugatory, the provisions of s 601AD(4) and s 601AE(2) of the Corporations Act. Those provisions are directed to the time prior to reinstatement and the powers of ASIC, whilst vested with the property of a deregistered company. ASIC is, at that stage, prior to any reinstatement application, empowered as an owner. Once the company is reinstated, ASIC no longer needs those powers. I am unable to discern an inconsistency on the face of the statute in recognising, consistently with the first sentence of s 601AH(5), that the powers that ASIC has during the period of deregistration ceased to have relevance on reinstatement and hence no practical impact on the Court’s power under s 601AH(3)(d).”

50. McKerracher J determined that the order sought by the plaintiffs was within power. As to whether the power should be exercised, and the appropriate form of the order, his Honour commented as follows (at [146]):

“As to discretionary considerations, I note that:

(a)    the plaintiffs’ objectives are on their face entirely lawful and reasonable;

(b)    if the Commissioner wishes to oppose the tax consequences of the ancillary orders, there remains ample opportunity in other administrative or judicial proceedings to do so. These orders simply allow the plaintiffs to contend for such consequences. The outcome of that debate awaits another day; and

(c)    making the ancillary orders is more consistent with the primary statutory objective (described above as the ‘as-you-were’ effect) than not making them.”

51. This reasoning was applied by Wigney J in Pherous Holdings Group Pty Ltd, in the matter of Pherous Holdings Group Pty Ltd [2022] FCA 613. At the time of its deregistration, Pherous Holdings had owned a parcel of shares referred to as the “CTM shares”. There was (as here) a concern that the operation of the provisions concerning the divesting and revesting of property might give rise to consequences in terms of capital gains tax. This concern was put in the following terms (at [11]):

“The potential problem for Pherous Holdings is that, if s 601AH(5) does not relevantly operate retrospectively so that there was, in effect, a change in ownership of the CTM shares when the company was deregistered, the result would be that a relevant capital gains tax ‘event’ occurred – specifically, a ‘CGT event A1’ as defined in s 104-10(1) and (2) of the Income Tax Assessment Act 1997 (Cth). That may, in turn, mean that at some point in the future Pherous Holdings might incur a capital gains tax liability.”

52. Wigney J noted that it was unnecessary to go into further detail as to how the potential capital gains tax liability might arise (at [12]). Pherous Holdings sought an order under s 601AH(3)(d) that it was deemed and taken at all times to have remained the legal and beneficial owner of the CTM shares during the period of its deregistration. Pherous Holdings notified the Commissioner of the relief sought. The Commissioner advised that it neither consented to, nor opposed, the order and did not seek to be heard in respect of the application.

53. Wigney J referred to the reasoning in the Bell Group decision, and concluded that the power in s 601AH(3)(d) is “sufficiently wide to permit the making of the order sought by Pherous Holdings” (at [21]). His Honour also determined (at [22]-[23]) that the order sought should be made:

“I am also satisfied that it would be an appropriate exercise of the Court’s discretion to make the order sought by Pherous Holdings. Pherous Holdings was deregistered for only a very short period of time – a total of 18 days – as a result of an administrative oversight. The purpose of the order is to effectively put Pherous Holdings in the position it would have been in had it not been deregistered, at least insofar as its ownership of the relevant CTM shares is concerned. That will avoid Pherous Holdings having to potentially engage in litigation with the Commissioner, either now or at some point in the future, about whether a CGT event A1 occurred in respect of the CTM shares when it was deregistered.

There is no indication that the making of the order would affect any third party, other than perhaps the Commissioner. Pherous Holdings engaged with the Commissioner from a very early stage and the Commissioner does not oppose the making of the order. It should also be noted in that context that the order does not directly determine or declare Pherous Holdings’s prospective or potential tax liability. Rather, it has the effect of retrospectively deeming a certain state of affairs to have existed. What flows from that in terms of Pherous Holdings’s tax liability remains a matter for the Commissioner to potentially determine at some point in the future.”

54. Having regard to those decisions, I am satisfied that there is power to make the order sought by the Plaintiff in respect of the Property.

55. Although the period of deregistration in this case (over a decade) is much longer than it was in Pherous Holdings (18 days), the following matters are relevant to the exercise of the Court’s discretion as to whether or not to deem the Property to have remained owned by Loreno during the period of deregistration:

1. the Property has remained registered in the name of Loreno since its deregistration;

2. there is evidence before the Court that Clarence Valley Council continued, following Loreno’s deregistration, to issue notices which were addressed to Loreno in respect of council rates and water consumption, and these appear to have been paid; and

3. tax returns continued to be lodged in the name of Loreno up to and including the financial year ending 30 June 2019, which declared rental income from the Property.

56. Having regard to those matters, there is no indication that the making of the order would adversely affect any third party, other than perhaps the Commissioner. In that regard, the Plaintiff’s solicitor sent a letter to the Commissioner on 16 May 2024, in which she provided the Commissioner with copies of the Originating Process and the affidavits of each of the Plaintiff and his brother, and stated as follows:

“We draw your attention, in particular, to prayers 5, 6 and 7 of the originating process. We note that those prayers are similar in effect to the relief granted in Pherous Holding Group Pty Ltd [2022] FCA 613, where the Commissioner of Taxation had been notified of the proceedings ATO but did not oppose the relief nor seek to be heard.

Would you please advise whether the Commissioner of Taxation wishes to be heard on this application or to be added as a party. If there are any concerns with the wording of the relief, we would be grateful if you would raise them with us in the first instance, so that we can see if they can be addressed.

We note the matter is listed for directions at 9am on 20 May 2024. We intend to request an adjournment for four weeks to 17 June 2024 so that you will have time to respond.”

57. On 26 July 2024, a litigation officer from the Officer of the Chief Tax Counsel responded to the Plaintiff’s solicitor, acknowledging the correspondence and the provision of further documents, and stating:

“We confirm the Commissioner of Taxation does not intend to participate in these proceedings.”

58. The form of order sought here is the same as the form of order sought, and granted, in Pherous Holdings.

59. As Wigney J observed in Pherous Holdings, this form of order does not directly determine or declare the Plaintiff’s prospective or potential tax liability, but instead it has the effect of retrospectively deeming a certain state of affairs to have existed in respect of the Property. What flows from that in terms of any tax liability of the Plaintiff remains a matter for the Commissioner to potentially determine at some point in the future.

60. For those reasons, I am satisfied that the ancillary order sought by the Plaintiff in respect of the Property is within power and should be made.

Ancillary order – Telstra shares

61. The Plaintiff also sought the following ancillary orders:

“6. An order pursuant to subsection 601AH(3)(d) of the Corporations Act that Loreno Pty Ltd be taken to have disposed, legally or beneficially, of any shares that it held in Telstra Corporation Limited (ACN 051 775 556) on 21 July 2013 by reason only of the deregistration of Loreno Pty Ltd on that date and the consequent vesting of such shares in ASIC pursuant to s 601AD of the Corporations Act.

7. An order pursuant to subsection 601AH(3)(d) of the Corporations Act that any shares in Telstra Corporation Limited (ACN 051 775 556) or Telstra Group Limited (ACN 650 620 303) that were purportedly issued to or acquired by Loreno Pty Ltd between 21 July 2013 and the date of these Orders be deemed to have been issued to or acquired, legally and beneficially, by Loreno Pty Ltd.”

62. The basis for seeking these orders was put as follows in the Plaintiff’s written submissions:

“Orders 6 and 7 are framed so as to take into account the following matters:

●   A corporate reorganisation of Telstra as described [in a Half-Year report dated 16 February 2023] … (note 1.2), as a consequence of which the precise form of order in Pherous would not be appropriate; and

●   The prospect that some shares in Telstra may have been issued, purportedly to the Company, under dividend reinvestment plans, during the period of deregistration.”

63. The report which was issued by Telstra Group Limited on 16 February 2023 for the half-year ended 31 December 2022 includes the following information about this restructure at Note 1.2 to the financial statements:

“During the reporting period, Telstra Corporation Limited implemented a scheme of arrangement (Scheme) to support the restructure of the Telstra Group (Restructure) first announced in November 2020. The Restructure was an internal legal reorganisation and did not, by itself, result in any immediate change to the underlying assets or business activities of the Telstra Group.

The Scheme was comprised of two components: the top hat component which established the Telstra Entity as the parent entity of the Telstra Group, and the business restructure component which was used to transfer certain assets and liabilities within the Telstra Group. The Restructure also involved certain other steps in addition to the Scheme. While these steps were completed over a period of time, for accounting purposes, all the steps should be considered together as they were undertaken in contemplation of the Restructure as a whole.

The top hat component of the Scheme was implemented on 31 October 2022 and the business restructure component of the Scheme was implemented on 1 January 2023 (i.e. after the reporting date).

On implementation of the top hat component, all of the shares in Telstra Corporation Limited (11,554,427,353 in total) were transferred to the Telstra Entity in exchange for the issue of 11,554,427,353 shares in Telstra Group Limited to eligible Telstra Corporation Limited shareholders under the Scheme.

…

On 31 October 2022, Telstra Group Limited became the new head entity of the Australian tax consolidated group.”

64. There was, otherwise, no evidence before the Court regarding the terms of the scheme of arrangement or the terms of any material provided to shareholders in respect of the scheme. For example, there was no evidence regarding who were “eligible Telstra Corporation Limited shareholders under the Scheme”, or regarding what steps were taken in respect of shares which were held by persons who were not “eligible” shareholders under the scheme, or whether (and if so what) information was provided to shareholders in any Explanatory Memorandum or other document regarding the taxation implications of the scheme (including the terms of any class ruling sought or obtained in respect of the effect of the “top hat” component of the scheme).

65. Similarly, there was no evidence before the Court regarding the terms of any dividend reinvestment plans, which may have applied during the period of Loreno’s deregistration. There is a statement from Link Market Services dated 6 May 2022 (prior to the restructure described above) which describes Loreno, which by then had been deregistered for almost 9 years, as owning 477 shares in that entity, and which also shows some dividends paid from September 2020 to April 2022. The Plaintiff gives, in respect of these dividends, the following evidence of his belief:

“I believe that the dividends have been withheld pending provision of details of a bank account for the Company, as the dividends were historically paid to [the Plaintiff’s father] directly, and his bank account was closed following his death. This would be a modest amount.”

66. I accept having regard to, in particular, the decision of McKerracher J, that s 601AH(3)(d) provides the Court with a broad power to make ancillary orders on the reinstatement of a deregistered corporation, so as to achieve “the primary purpose of treating a company upon reinstatement as though it had continued in existence from the date of deregistration, that is to say, the ‘as-you-were’ position”.

67. The exercise of the power to make the order sought by the Plaintiff in respect of the Property is, for the reasons I have given above, in keeping with this “as-you-were” aim, since it treats the Property (which has remained registered in the name of Loreno throughout the period of deregistration) as having remained the property of Loreno during that period. Further, the order in respect of the Property has been sought so as to address a particular concern regarding potential capital gains tax consequences of the operation of the provisions of the Act, in circumstances where the only person identified as potentially affected by the proposed order (the Commissioner) has had an opportunity to consider the relief sought and the supporting evidence, and has not opposed the relief.

68. In contrast, the orders sought in respect of Loreno’s shares in Telstra Corporation Ltd are not designed to maintain “the ‘as-you-were’ position” (that is, the position as at the date of deregistration). Instead, the focus of the orders is on matters which may have occurred in the period during which Loreno has been deregistered, and in particular, any issue of shares in Telstra Group Ltd in exchange for shares in Telstra Corporation Ltd under a scheme of arrangement, or any issue of shares in either entity under a dividend reinvestment plan. Further, the orders in respect of the Telstra shares are sought in circumstances where I do not have any information, beyond the brief overview in the notes to Telstra’s financial statements, of the terms of the scheme of arrangement (and, in particular, any terms identifying the requirements in order to be an eligible shareholder or any terms in respect of the consequences of ineligibility) or the terms of any applicable dividend reinvestment plan.

69. In those circumstances, it is not apparent to me whether any persons might be adversely affected by the proposed orders – and in particular the proposed order deeming Loreno to have acquired certain shares during the period of its deregistration – let alone the identity of such persons or the manner in which such persons might be affected.

66. In addition to the power in s 601AH(3)(d), pursuant to which the orders in respect of the Telstra shares were sought, the Court has a power under s 601AH(3)(c) to “validate anything done during the period” that Loreno was deregistered. Insofar as the Plaintiff seeks an order that any Telstra shares “that were purportedly issued to or acquired by Loreno” during the period of its deregistration be “deemed to have been issued to or acquired, legally and beneficially, by Loreno”, then it would appear that s 601AH(3)(c) might be an alternative source of power to make such an order.

67. As McKerracher J observed in Liberty International Underwriters v Australian Securities and Investments Commission, in the matter of Moore Murphy Holdings Pty Ltd [2021] FCA 103 at [15], “the nature of the validating orders sought will bear upon the assessment of what is just in the circumstances”. The proposed order, in the present case, is framed in terms of “any shares” in either Telstra entity that “were purportedly issued to or acquired by Loreno”. The order does not identify any transaction pursuant to which shares may have been issued or acquired. Further, and relatedly, there is no material before the Court identifying the terms of any such transactions, or any other material which might provide a sufficient basis to identify the persons potentially affected by the proposed orders or the potential consequences of the proposed orders. In those circumstances, the Court is not in a position to assess whether the proposed orders are just in the circumstances of this case.

68. For those reasons, I decline to make the orders sought by Loreno in respect of the Telstra shares. It should be noted that, upon reinstatement, s 601AH(5) will operate so that:

1. Loreno “is taken to have continued in existence as if it had not been deregistered”;

2. any property of Loreno “that is still vested in the Commonwealth or ASIC revests” in Loreno; and

3. if Loreno held any particular property, such as shares, “subject to a security or other interest of claim”, then Loreno takes that property subject to that interest or claim.

73. Following the reinstatement of Loreno, it will be a matter for the directors of Loreno, with the benefit of any legal or accounting advice, to determine the effect of s 601AH(5) so far as concerns any shares in Telstra Corporation Ltd that were held by Loreno as at the time of its deregistration, or any unpaid dividends in respect of such shares, or any rights that may (or may not) have existed under the terms of any scheme of arrangement or any dividend reinvestment plan in respect of such shares, and whether or not any further steps need be taken in relation to any such rights. I do not consider that there is a sufficient basis, in the absence of evidence regarding the terms of any scheme of arrangement or dividend investment plan, to make deeming orders of the type sought, particularly where there is no contradictor and where it is not known whether any third parties might be affected by such orders, let alone the identity of those persons or the manner in which they might be affected.

Orders

74. The Plaintiff also sought an order that his costs of this application be paid from the assets of Loreno. The only other shareholder of Loreno, Mr Valerio Donazzolo, deposed that he consented to the relief sought by the Plaintiff in the Originating Process, including this proposed order as to costs. I am satisfied that this order should also be made.

75. For the reasons given above, I make the following orders.

1. The Court orders, pursuant to s 601AH(2) of the Corporations Act 2001 (Cth), that the Defendant reinstate the registration of Loreno Pty Ltd (ACN 001 432 453).

2. The Court orders, pursuant to s 601AH(3)(d) of the Corporations Act 2001 (Cth), that upon the reinstatement of the registration of Loreno Pty Ltd (ACN 001 432 453), the Defendant record Giorgio Donazzolo and Valerio Donazzolo as the directors of Loreno Pty Ltd (ACN 001 432 453).

3. The Court orders, pursuant to s 601AH(3)(d) of the Corporations Act 2001 (Cth), that Loreno Pty Ltd (ACN 001 432 453) is deemed and taken at all times to have remained the legal and beneficial owner of the land and building at 46 Fry Street, Grafton, New South Wales, being the lands described in folio identifier 14/264599, during the period from 21 July 2013 until the date of the reinstatement of the registration of Loreno Pty Ltd (ACN 001 432 453).

4. The Court orders that the Plaintiff’s costs of the Originating Process filed on 12 March 2024 be paid from the assets of Loreno Pty Ltd (ACN 001 432 453).

5. The Court notes the undertaking by the Plaintiff to the Court that, if Loreno Pty Ltd (ACN 001 432 453) is reinstated and he is appointed as its director, he will attend with all proper diligence to the administration of its affairs, including the lodging of all outstanding returns with the Australian Taxation Office, and causing Loreno Pty Ltd (ACN 001 432 453) to pay its debts, including any fees and fines that may be payable to the Australian Securities and Investments Commission, and he will engage accountants and solicitors so far as necessary to assist him in attending to the affairs of Loreno Pty Ltd (ACN 001 432 453).

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Decision last updated: 27 August 2024