Kay v Playup Australia Pty Ltd - [2018] NSWSC 1579

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kay v Playup Australia Pty Ltd [2018] NSWSC 1579
Hearing dates: 11, 12 October 2018
Date of orders: 12 October 2018
Decision date: 25 October 2018
Jurisdiction: Equity - Corporations List
Before: Parker J
Decision:
Application dismissed.

Catchwords:
CORPORATIONS – application for rectification of register maintained by ASIC – Corporations Act 2001 (Cth), s 1322(4)(b) – application to remove reference to company being wound up from ASIC database – whether records of particulars for each company forms part of a “register kept by ASIC” – whether documents lodged with ASIC form part of a “register kept by ASIC”
CORPORATIONS – application for rectification of register maintained by ASIC – Corporations Act 2001 (Cth), s 1322(4)(b) – application to remove reference to company being wound up from ASIC database – discretion of the Court to rectify ASIC register – application brought in circumstances where company did not apply to set aside statutory demand and subsequent winding up proceedings were settled – discretion not exercised
Legislation Cited: Acts Interpretation Act 1901 (Cth), s 29
Conveyancing Act 1919 (NSW), Part 23
Corporations Act 2001 (Cth), ss 9, 118, 348A, 348B, 348C, 348D, 465A, 467, 470, 489EA, 601AB, 601AH, 1274, 1274A, 1274B, 1322, 1392
Corporations Regulation 2001 (Cth), cl 1.0.20, 9.1.01, 9.1.02
Real Property Act 1900 (NSW), s 31B
Cases Cited: Demetriou v Gusdote Pty Ltd (2010) 78 ACSR 566; [2010] FCA 581
Lavercombe v Auscott Ltd (2006) 202 FLR 390; [2006] NSWSC 867
MIG Property Services Pty Ltd (2012) 92 ACSR 234; [2012] VSC 606
Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262; [2008] NSWCA 38
OneSteel Reinforcing Pty Ltd v Westpoint Constructions Pty Ltd (2005) 23 ACLC 1384; [2005] FCA 808
Re ABI Australia Holding Pty Ltd [2017] NSWSC 1822
Re Botanical Water Holdings Pty Ltd [2013] VSC 96
Re Centura Global Holdings Pty Ltd (2016) 111 ACSR 185; [2016] NSWSC 62
Re DJG Equities Pty Ltd (2014) 32 ACLC 14-008; [2014] NSWSC 194
Re Macquarie Americas Holdings Pty Ltd [2015] NSWSC 2073
Re Voxson Sales Pty Ltd [1989] 1 Qd R 711
Westbury Holdings Kiama Pty Ltd v ASIC (2007) 25 ACLC 710; [2007] NSWSC 466
Category: Principal judgment
Parties: Ryan Kay (Plaintiff/Respondent)
Playup Australia Pty Ltd (Defendant/Applicant)
Representation:
Counsel:
M Condon SC (Plaintiff/Respondent)
S Golledge/M Klooster (Defendant/Applicant)
Solicitors:
Price & Company Solicitors (Plaintiff/Respondent)
Yates Beaggi Lawyers (Defendant/Applicant)

File Number(s): 2018/277171
Publication restriction: Nil

Judgment

Company lawyers are familiar with the “company extracts” which can be obtained by searching the electronic database maintained by the Australian Securities and Investment Commission (“ASIC”). In these proceedings, questions arose as to whether, and in what circumstances, the Court could make orders removing entries from that database. At the end of the argument on 12 October, I refused the defendant’s application to have references to these proceedings removed from ASIC’s publicly searchable records. The following are my reasons for doing so.
The defendant, Playup Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1579
Decision Date: 25 October 2018

CaseChat Overview and Summary

Kay v Playup Australia Pty Ltd involved the plaintiff seeking to have a reference to a company being wound up removed from the Australian Securities and Investments Commission's (ASIC) database. The plaintiff argued that the records of particulars for the company, which were lodged with ASIC, formed part of a "register kept by ASIC" under section 1322(4)(b) of the Corporations Act 2001 (Cth). The court was tasked with determining whether these records constituted a register for the purposes of the Act, and whether documents lodged with ASIC were part of a register kept by ASIC.

The primary legal issue before the court was whether the records of particulars for a company, which were lodged with ASIC, constituted a "register kept by ASIC" within the meaning of section 1322(4)(b) of the Corporations Act 2001 (Cth). This question was crucial as it determined the court's jurisdiction to rectify the ASIC register. Additionally, the court had to consider whether documents lodged with ASIC were part of a register kept by ASIC. The court also had to assess whether it should exercise its discretion to rectify the ASIC register, given the circumstances of the case, including the fact that the company had not applied to set aside the statutory demand and the winding up proceedings were settled.

The court determined that the records of particulars for the company did not form part of a "register kept by ASIC" within the meaning of section 1322(4)(b) of the Corporations Act 2001 (Cth). Consequently, the court did not have jurisdiction to rectify the ASIC register. The court also found that documents lodged with ASIC were not part of a register kept by ASIC. Furthermore, the court considered the discretion to rectify the ASIC register and determined that it was not appropriate to exercise that discretion in the circumstances of this case. The application was brought despite the company not having applied to set aside the statutory demand and the winding up proceedings being settled.

In conclusion, the court dismissed the plaintiff's application for rectification of the ASIC register. The court found that the records of particulars for the company and the documents lodged with ASIC did not constitute a "register kept by ASIC" within the meaning of the Corporations Act 2001 (Cth). The court also declined to exercise its discretion to rectify the ASIC register, given the circumstances of the case.

Orders