Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd

The appeal concerned an order made by Barrett J in the Supreme Court of New South Wales, which had reinstated Westbury Holdings Kiama Pty Ltd (the second respondent) to the register of companies following its voluntary winding up. Miltonbrook Pty Ltd (the appellant) sought to challenge this reinstatement.

The central legal issues before the Court of Appeal were whether the primary judge erred in ordering the reinstatement of the company, and consequently, whether the court had the power to rectify the register to undo the effect of that reinstatement. This involved considering the requirements for setting aside an order under rule 36.15 of the Uniform Civil Procedure Rules 2005, specifically whether an irregularity had occurred, and the scope of the court's powers under section 601AH and section 1322(4) of the Corporations Act 2001 (Cth). The court also had to determine the significance of an observing solicitor's presence in court proceedings and whether procedural fairness had been denied.

The Court of Appeal found that the primary judge's order for reinstatement was irregular, particularly in light of the failure to disclose material information to the court and the denial of procedural fairness to an affected party. Applying the principles of rule 36.15 and section 1322(4) of the Corporations Act, the court held that it possessed the power to set aside the reinstatement order and to direct the Australian Securities and Investments Commission (ASIC) to rectify the register accordingly. The court reasoned that the reinstatement had been procured irregularly and that rectification was necessary to correct the register and restore the parties to their original positions.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders made by Barrett J. The court directed ASIC to rectify the register by vacating the reinstatement of the second respondent and remitted the first respondent's application for reinstatement. The respondents were ordered to pay the appellants' costs.