Jason Preston on behalf of ABB Service Pty Limited (Deregistered) v Australian Securities and Investments Commission
[2025] WASC 47
•19 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JASON PRESTON on behalf of ABB SERVICE PTY LIMITED (DEREGISTERED) -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2025] WASC 47
CORAM: HILL J
HEARD: 14 FEBRUARY 2025
DELIVERED : 14 FEBRUARY 2025
PUBLISHED : 19 FEBRUARY 2025
FILE NO/S: COR 13 of 2025
BETWEEN: JASON PRESTON on behalf of ABB SERVICE PTY LIMITED (DEREGISTERED)
Plaintiff
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Defendant
Catchwords:
Corporations - Application to reinstate deregistered company - Whether it is 'just' that the registration of the company be reinstated - Turns on own facts
Corporations - Application to terminate winding up of company on reinstatement - Where company solvent on reinstatement - Turns on own facts
Legislation:
Corporations Act 2001 (Cth) s 482, s 601AH
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | J J Allison |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Thomson Geer - Perth |
| Defendant | : | In person |
Case(s) referred to in decision(s):
ACN 009 009 072 (in liquidation) v Australian Securities & Investments Commission [2022] WASC 221
Jit Sun Investments Pte Ltd v Australian Securities and Investments Commission [2021] WASC 235
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.)
On 7 May 2020, ABB Service Pty Ltd (Company) was deregistered pursuant to s 509 of the Corporations Act 2001 (Cth) (Act).
On 28 January 2025, the plaintiff, one of the former liquidators of the Company, filed an originating process seeking an order pursuant to s 601AH of the Act directing that the Australian Securities and Investments Commission (ASIC) reinstate the Company. The plaintiff also applies for the winding up of the Company to be terminated pursuant to s 482(1) of the Act, or alternatively, s 90.15 of the Insolvency Practice Schedule (Corporations).
In support of its application, the plaintiff has filed three affidavits: his affidavit filed 28 January 2025; an affidavit of Julian Adam Bechini, a former director of the Company, filed 28 January 2025; and, finally, an affidavit of James Jordan Allison, an associate for the plaintiff's solicitors, filed on 10 February 2025.
Factual background
Briefly, the factual background to the application can be summarised as follows.
On 7 March 2019, the members of the Company resolved to appoint the plaintiff and Katherine Sozou as voluntary liquidators of the Company as part of the corporate restructure of the ABB Group.[1] At that time, the ABB Group comprised the Company, ABB Australia Proprietary Limited (ABB Australia), and ABB EPT Management Proprietary Limited.[2]
[1] Affidavit of Jason Preston filed 28 January 2025 'JP-1'.
[2] Affidavit of Julian Adam Bechini filed 28 January 2025 [6].
Prior to its deregistration, the Company had two directors, Julian Bechini and Slavko Planinic. Both have consented to act as directors of the Company if it is reinstated.[3]
[3] Affidavit of Julian Adam Bechini [16], 'JAB‑2' - 'JAB‑3'.
On 29 January 2020, Mr Preston's role as liquidator ceased.[4] On 7 February 2020, he caused an end of administration return to be filed with ASIC.[5] As a consequence of the filing of this return, pursuant to s 509(1) of the Act, the Company was automatically deregistered three months later, on 7 May 2020.[6]
[4] Affidavit of Jason Preston filed 28 January 2025 [5] ‑ [6].
[5] Affidavit of Jason Preston filed 28 January 2025 'JP‑2'.
[6] Affidavit of Jason Preston filed 28 January 2025 [7].
On about 3 September 2024, Mr Bechini was informed by the property division of ABB Australia that the Company is the registered proprietor of the property known as 1129 and 1130 Cherratta Road, Karratha Industrial Estate, also described as Lots 1129 and 1130 on Deposited Plan 175820, being the whole of the land described in Certificate of Title Volume 1418 Folio 327 (Property).[7] Until this time, Mr Bechini mistakenly believed that the Property was owned by ABB Australia and not by the Company.[8]
[7] Affidavit of Jason Preston filed 28 January 2025 [7].
[8] Affidavit of Julian Adam Bechini filed 28 January 2025 [12].
The plaintiff seeks the reinstatement of the Company so that the Company can deal with its interests in the Property.[9]
[9] Affidavit of Julian Adam Bechini filed 28 January 2025 [9].
Service of the application
I am satisfied on the evidence before me that ASIC has been served with the application. ASIC has indicated that it does not oppose the application or seek to be heard, subject to the condition that no order for costs is sought against them. ASIC has not attended the hearing of the application.[10]
[10] Affidavit of James Jordon Allison filed 10 February 2025, 'JJA-1', 'JJA-4'.
Ms Sozou, who was previously joint liquidator of the Company, has also consented to the application.[11]
[11] Affidavit of James Jordan Allison filed 10 February 2025 [9] ‑ [11], 'JJA‑6'.
Should an order be made to reinstate the Company?
Pursuant to s 601AH(2) of the Act, the court may make an order for the reinstatement of a company. The application can be made by a former liquidator of the company. 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.
On the evidence before me, I accept that the plaintiff has standing, as the former liquidator of the Company, to bring this application.
In considering whether it is 'just' to order the reinstatement of the company, it is unarguable that the court has a wide discretion over under s 601AH(2) of the Act. In exercising its discretion, the court takes into account all relevant circumstances, which include: the circumstances in which the company came to be deregistered; whether, if an order is made, good use can be made of it; and whether any person is likely to be prejudiced by the reinstatement.[12] The court will also take account of the public interest more generally.[13]
[12] ACN 009 009 072 (in liquidation) v Australian Securities & Investments Commission [2022] WASC 221 [47] and the authorities cited there.
[13] Jit Sun Investments Pte Ltd v Australian Securities and Investments Commission [2021] WASC 235 [8] and the authorities cited there.
In this case, the plaintiff says that the Company should not have been deregistered prior to its interest in the Property being dealt with.[14] The reason this did not occur was because at the time of the Company's deregistration, the plaintiff was unaware that the Company was the registered proprietor of the Property and mistakenly believed that the Company no longer held any assets. The plaintiff seeks reinstatement of the Company so that its interest in the Property can be dealt with.[15] The plaintiff believes that the Company was insolvent at the time of its deregistration and would remain solvent if reinstated.[16]
[14] Affidavit of Jason Preston filed 28 January 2025 [14].
[15] Affidavit of Julian Adam Bechini filed 28 January 2025 [11], [15].
[16] Affidavit of Jason Preston filed 28 January 2025 [10] - [11], [13] ‑ [14].
For the following reasons, it is my view that it would be just to order the reinstatement of the Company.
First, on the evidence before me, I accept that at the time the relevant form was lodged with ASIC, the plaintiff was unaware that the Company had an interest in the Property.
Second, if the Company is reinstated, I accept that good use can be made of it, as it will enable the Company to deal with its interest in the Property.
Third, I accept that on its reinstatement, the Company will be solvent, if for no other reason than because of its interest in the Property.
Finally, there is no evidence that suggests that anyone is likely to be prejudiced by the reinstatement of the Company.
In all of these circumstances, I am satisfied it is just to order the reinstatement of the Company and that the orders sought by the plaintiff ought be made.
Should the winding up of the Company be terminated?
I then turn to the question as to whether the winding up of the Company should be terminated.
Pursuant to s 482 of the Act:
(a)at any time during the winding up of a company, the Court may, on application, make an order terminating the winding up on a day specified in the order;[17] and
(b)this application may be made by a liquidator of the company.[18]
[17] Act s 482(1).
[18] Act s 482(1A).
The power of the court to make an order under s 482 is a discretionary power. The onus is on the applicant to make out a positive case for the termination or stay of the winding up.
While it is not necessary for the court to make findings as to special reasons for the termination of the winding up, there must be a valid reason for the discretion to be exercised in favour of an applicant. In considering the application, the court takes into account the interests of the creditors, the liquidator and the members of the Company, as well as the public interest more generally.
The factors that the court will take into account include:
(a)the attitude and interests of creditors, including any future creditors;
(b)the interests of the liquidator and whether the proposal will include payment of their costs;
(c)the company's current trading position and general solvency; and
(d)any explanation if there has been non‑compliance with directors with their statutory duties and the circumstances leading to the winding up of the company.
In this case, I am satisfied that it is appropriate to make the orders sought by the plaintiff. On the evidence that has been filed by the plaintiff, I am satisfied that:
(a)there were no creditors of the Company on its deregistration;
(b)the Company will be solvent on reinstatement;
(c)the application is brought by the liquidator, who has not raised any issue as to why the orders sought should not be made, including in relation to the payment of their costs;
(d)ABB Australia, who is the only possible creditor of the Company, has signed an undertaking not to recover the holding costs paid on the mistaken belief that it was the registered proprietor of the Property;
(e)there is no evidence that the directors failed to comply with their duties prior to the winding up of the Company; and
(f)the Company's business will be limited to ownership of the Property and any dealings with it.
Conclusion
On the basis of these reasons, I consider that it is appropriate for an order to be made pursuant to s 601AH(2) of the Act that the defendant forthwith reinstate the registration of the Company.
I will also make an order pursuant to s 482(1) of the Act that the winding up of the Company be terminated.[19]
[19] 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.
KS
Associate to the Hon Justice Hill
19 FEBRUARY 2025
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