Lavercombe v Auscott Ltd - [2006] NSWSC 867

Reported Decision:
58 ACSR 586
202 ALR 390
(2006) 24 ACLC 1197

New South Wales

Supreme Court

CITATION: Lavercombe v Auscott Ltd [2006] NSWSC 867

HEARING DATE(S): 14/08/06, 21/08/06

JUDGMENT DATE :
29 August 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Order directing rectification of ASIC records refused. Defendant to pay plaintiff's costs of winding up proceedings.

CATCHWORDS: CORPORATIONS - supervision regulation and correction - registers and records kept by ASIC - lodgment of particulars of winding up application - lodgment of particulars of dismissal of winding up application - whether court may order expungement from ASIC records - whether lodgment results in entry in any register kept by ASIC - whether court's power to direct rectification of register kept by ASIC permits order directing removal of material regularly entered according to law - PROCEDURE - costs - application for winding up in insolvency on basis of unsatisfied statutory demand - debt paid after filing and service of winding up application - application dismissed by consent - appropriate costs order

LEGISLATION CITED: Corporations Act 2001, ss.118(2), 459C(2)(a), 459E, 459F, 459G, 459P, 459Q, 459S, 467A, 470(1), 1274, 1274(8), 1322(4)(b), 1322(6)(c)
Corporations Regulations 2001 (Cth), Reg 9.1.01
Uniform Civil Procedure Rules 2005 , Rule 42.1
Workplace Injury Management and Workers Compensation Act 1998, s.362(3)

CASES CITED: Company Number 1389920 v Registrar of Companies [2004] EWHC 60 (Ch)
igroup Ltd v Ocwen [2003] 4 All ER 1063
IOC Australia Pty Ltd v Mobil Oil Australia Ltd (1975) 11 ALR 417
Onesteel Reinforcing Pty Ltd v Westpoint Constructions Pty Ltd [2005] FCA 808
Re Calmex Ltd [1989] 1 All ER 485
Re Imperial Chemical Industries Ltd [1936] 2 All ER 463
Re Lanaghan Bros Ltd [1977] 1 All ER 265
Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Re National Bank of Wales (1897) 66 LJ Ch 222
Re Voxson Sales Pty Ltd [1989] 1 QdR 711

PARTIES: Kenneth Lavercombe - Plaintiff
Auscott Limited - Defendant

FILE NUMBER(S): SC 3781/06

COUNSEL: Mr J.W. Dodd - Plaintiff
Mr C. B.W. Bavin, Solicitor - Defendant

SOLICITORS: McCabe Partners Lawyers - Plaintiff
Hunt & Hunt - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 29 AUGUST 2006

3781/06 KENNETH LAVERCOMBE v AUSCOTT LIMITED

JUDGMENT

Background

1 The defendant, a company in respect of which an application for winding up has been dismissed by the court, seeks an order as follows:

“Direct that Australian Securities and Investments Commission remove from the records of the company maintained by the Commission all references to the winding up application having been made.”

2 ASIC is not a party to the proceedings but I directed that it be given notice of the application. By letter dated 18 August 2006, ASIC informed the defendant’s solicitor that it neither consents to nor opposes the making of this order and did not intend to appear on the hearing. ASIC thus took no interest in the question…

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: [2006] NSWSC 867
Decision Date: 29 August 2006

CaseChat Overview and Summary

The case of Lavercombe v Auscott Ltd involved a dispute regarding the lodgment of particulars of a winding up application with the Australian Securities and Investments Commission (ASIC). The plaintiff, Lavercombe, sought an order for the expungement of records from ASIC's register following the dismissal of a winding up application. The primary legal issue was whether the court had the authority to order the expungement of such records, considering that the lodgment of particulars of a winding up application did not result in an entry in any register maintained by ASIC. Additionally, the court had to determine whether the power to direct the rectification of a register under ASIC's control included the authority to remove material regularly entered in accordance with the law.

The court examined the relevant provisions of the Corporations Act, focusing on the role of ASIC in maintaining registers and records. It found that the lodgment of particulars of a winding up application did not create an entry in any register, and thus, there was no entry to rectify. The court held that the power to direct the rectification of a register did not extend to the removal of material regularly entered according to law. Consequently, the court concluded that it did not have the authority to order the expungement of records from ASIC's register.

Given the dismissal of the winding up application by consent, the court considered the appropriate costs order. It noted that the plaintiff's application was based on an unsatisfied statutory demand, and the debt had been paid after the winding up application was filed and served. The court determined that the costs of the application should be borne by the plaintiff, as the application was ultimately unsuccessful. The court's final order was that the plaintiff pay the respondent's costs of the application.

Orders