FEDERAL COURT OF AUSTRALIA
James v Leighton Holdings Limited [2013] FCA 1115
Citation: James v Leighton Holdings Limited [2013] FCA 1115 Parties: THOMAS JAMES v LEIGHTON HOLDINGS LIMITED (ACN 004 482 982) and LEIGHTON SUPERANNUATION PTY LIMITED (ACN 001 002 035) IN ITS CAPACITY AS TRUSTEE OF THE LEIGHTON SUPERANNUATION FUND File number: NSD 1688 of 2013 Judge: WIGNEY J Date of judgment: 23 October 2013 Catchwords: CORPORATIONS LAW – Application for reinstatement of a deregistered company Legislation: Corporations Act 2001 (Cth) Cases cited: ACCC v ASIC (2000) 174 ALR 688
Arnold v Poltane Pty Ltd [2005] FCA 1418
Arnold World Trading Proprietary Limited v ACN 133 427 335 Proprietary Limited (2010) 80 ACSR 670
Wedgewood Hallam Proprietary Limited v Australian Securities and Investments Commission [2011] FCA 439Date of hearing: 23 October 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr L T Livingston Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondents: Mr J R Williams Solicitor for the Respondents: Herbert Smith Freehills
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1688 of 2013
BETWEEN: THOMAS JAMES
ApplicantAND: LEIGHTON HOLDINGS LIMITED (ACN 004 482 982)
First RespondentLEIGHTON SUPERANNUATION PTY LIMITED (ACN 001 002 035) IN ITS CAPACITY AS TRUSTEE OF THE LEIGHTON SUPERANNUATION FUND
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
23 OCTOBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to s 601AH(2) of the Corporations Act, the Australian Securities and Investments Commission reinstate the registration of Leighton Superannuation Proprietary Limited.
2.The costs of the interlocutory application filed on 12 September 2013 be costs in the cause.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1688 of 2013
BETWEEN: THOMAS JAMES
ApplicantAND: LEIGHTON HOLDINGS LIMITED (ACN 004 482 982)
First RespondentLEIGHTON SUPERANNUATION PTY LIMITED (ACN 001 002 035) IN ITS CAPACITY AS TRUSTEE OF THE LEIGHTON SUPERANNUATION FUND
Second Respondent
JUDGE:
WIGNEY J
DATE:
23 OCTOBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By interlocutory application filed on 12 September 2013, the applicant, Thomas James, seeks an order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Corporations Act) that the Australian Securities and Investments Commission (ASIC) reinstate the registration of Leighton Superannuation Proprietary Limited (the Company).
Section 601AH(2) of the Corporations Act relevantly provides as follows:
601AH(2) Reinstatement by Court. 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; or
(ii) a former liquidator of the company; and
(b)the Court is satisfied that it is just that the company’s registration be reinstated.
The applicant’s application for reinstatement of the Company is supported by evidence contained in two affidavits that have been filed and…
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- Case
- [2013] FCA 1115
- Decision Date
CaseChat Overview and Summary
The key issue for determination is whether the second condition, that the applicant notify former officeholders of the Company of the application, has been met. The applicant has provided evidence in the form of letters from the applicant’s solicitors to Carlos Mendes and Ashley Moir, dated 11 September 2011, notifying them of the application. There is no evidence of a response to those letters. The applicant has also provided evidence in the form of an ASIC historical extract that demonstrates that Messrs Mendes and Moir were the directors of the Company immediately prior to deregistration.
The Court is satisfied that the applicant has met the second condition. The letters from the applicant’s solicitors are sufficient evidence that the two former directors have been notified of the application. The Court is also satisfied that it is just that the Company’s registration be reinstated. In these circumstances, the Court makes the following order: That the Australian Securities and Investments Commission reinstate the registration of Leighton Superannuation Proprietary Limited in accordance with the order of the Court.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
By interlocutory application filed on 12 September 2013, the applicant, Thomas James, seeks an order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Corporations Act) that the Australian Securities and Investments Commission (ASIC) reinstate the registration of Leighton Superannuation Proprietary Limited (the Company). Section 601AH(2) of the Corporations Act relevantly provides as follows:601AH(2) Reinstatement by Court. 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; or(ii) a former liquidator of the company; and (b)the Court is satisfied that it is just that the company’s registration be reinstated. The applicant’s application for reinstatement of the Company is supported by evidence contained in two affidavits that have been filed and read in these proceedings. They are; firstly, the affidavit of Michael John Doherty dated 12 September 2013, and secondly, the affidavit Hanna Schutz dated 3 October 2013. By letter dated 18 September 2013 sent to the applicant’s solicitors (annexure HS-1 to the affidavit of Ms Schutz) ASIC has indicated that it will not oppose the application for reinstatement if three conditions are satisfied. Those conditions, which are set out in the letter, are as follows: (1)The order for reinstatement is in terms of section 601AH(2) of the Act, requiring ASIC to reinstate the registration of the company;(2)The applicant notifies the former officeholder/s of the company of this application; and (3)The Court order is lodged with ASIC so that ASIC can reinstate the company. In relation to the first of the conditions referred to in the ASIC letter, I am satisfied that the order that the applicant seeks is in terms of s 601AH(2). In relation to the second condition, there is evidence that two persons who were directors of the Company immediately prior to deregistration have been notified of the application. That evidence is contained in letters from the applicant’s solicitors to Carlos Mendes and Ashley Moir. Those letters, both of which are dated 11 September 2011, are annexed to Mr Doherty’s affidavit. Mr Doherty’s evidence in his affidavit is that there has been no response to those letters. There is evidence in the form of an ASIC historical extract that demonstrates that those two gentlemen, Mr Mendes and Mr Moir, were the directors of the Company immediately prior to its deregistration. In relation to the third condition set out in the ASIC letter, lodgement of the order is obviously a matter that can only be attended to once an order under s 601AH(2) is made. No doubt that is a matter that the applicant will attend to if the order is made so that ASIC can then take steps to reinstate the Company’s registration in accordance with the order. I note also that the first respondent to the application, Leighton Holdings Limited, which was the parent company of the Company, does not oppose the application other than in relation to the appropriate costs order. That is evidenced by a letter annexed to Ms Schutz’s affidavit. Mr Williams of counsel appeared for the first respondent on the hearing of the application today and confirmed that there was no opposition to the application by the first respondent other than in relation to costs.