NM Superannuation Pty Ltd v Young

[1993] FCA 91

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	)

BETWEEN:  IAN RUSSELL HENRY & ANOR.
Applicants

AND	AUSTRALIAN	SECURITIES
COMMISSION
Respondent

No. NG 3 2 8 9 of 1 9 9 2

IN THE MATTER OF TINGARA PTY LIMITED

AUSTRALIAN COMPANY NUMBER 0 0 1 9 0 7 4 2 8

BETWEEN:	IAN RUSSELL HENRY AND HELENE ANNE HENRY
Applicants
AUSTRALIAN SECURITIES COMMISSION
Respondent

CORAM: BEAUMONT J.

:I.	M\
U'

m: 5 FEBRUARY 1993

EX TEMPORE REASONS FOR JUDGMENT

I wrll deal wlth Tingara and Lakewell together. In

each of these matters, an application was made under S. 574(3) of the Cor~orations Law for the reinstatement of regrstration of the company. The evidence discloses that the registration was cancelled on 27 February 1 9 9 2 in circumstances whlch are

. no,; entirely clear. However, there rs a suggestion in the

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evfdence that the cancellatron may have occurred by reason of .,*

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the failure of the companies to lodge annual returns in the period commencing for the year ended 30 June 1988 and subsequent years. Although complaint about this was made by the Commission in writing, that message was not recelved at its lntended destination by reason of a change of the registered offlce of the companies.

The matter has a somewhat unusual feature because it appears that each of the companies is a trustee under a discretionary trust arrangement in whlch, apart from the exercise of the dlscretions required or permitted under the terms of the trust, no actlve business activlty is in fact embarked upon by elther of the companies or indeed requlred to be embarked upon. In this context, the Comrnisslon has referred me to the decislon of Olney J ln Gambol v

Commissioner for Corporate Affairs (1987) 5 ACLC 378 in which

his Honour held that an appllcant was not a person aggrieved

within the meaning of the subject provision ln the following	circumstances.
A company had been acqulred as a shelf company and had three lssued shares. The company acted as a trustee for the applicant's family trust pursuant to a deed of trust, and under the deed, the appllcant was given the power to appolnt any new or additional trustees. At the date of deregistration, the company was stlll actlvely involved in the
trust in its capacity as trustee, but his Honour held that the
applicant's former status as a director andlor shareholder of
the company was insufflclent on its own to show that the
applicant was a person "aggrieved within the meanlng of the
sectlon" . Reading his Honour's reasons as a whole, I am of the opinion that that declslon may be extlngulshed for present purposes.
I have already dealt with a related matter of Glensaugh Proprietary Limited ("Glensaugh") ln whlch the present applicants were also persons aggrieved. It appears from the evidence in the present matters, and ln the earller matter of Glensaugh, that the affalrs of the two companies, the subject of the present application, and of Glensaugh, are related and as I have already held in the Glensaugh matter, a clear case for reinstatement has been made out. The lnterest that the present applicants have in the reinstatement of the
two trustee companies is, I think, equally plain.
It is true that nelther of the companies, the subject of the present application, is actively conducting a business, but it does not follow that at the date of
cancellation, nelther of those companies could be sald to be not "in operation" within the meanlng of s.574(3) of the Corporations Law. It may be accepted that the only function requlred to be carrled out by the company in each case is the
exercise, where appropriate, of the discretlons conferred
under the terms of their respective trust instruments. That function itself is, in my vlew, sufficient to justify the characterisatlon of their posltion as being "in operation".
As I have already indicated in the Glensaugh matter, the explanation grven by the applicants for the failure to lodge returns and for the consequential cancellation of their registration has been explained to my satisfaction. In the exercise of my discretion, subject to the imposition of the usual conditions to which I wlll shortly refer, I propose to order the relnstatement of registration of the company in each case.
I note that in each of the present matters the applicants undertake to the court that they will as soon as practicable lodge with the Commission annual returns
outstanding if any. Upon that undertaking berng given, I
order the relnstatement of the registration of each of the companies.
I further order that in respect of the three matters I have dealt with the applicant pay the Commission's costs in the total sum of $800. I note that a sum of $1200 has already been tendered and if that amount has been in fact paid and

r ece ived a t t h i s s t a g e , t h e consequence w i l l be t h a t t h e

Commission would have t o refund t h e sum of $400 .

I hereby c e r t i f y t h a t t h i s and t h e f o u r ( 4 )

p reced ing pag	f	t h e Reasons	f o r
Judgment of M r  Assoc ia te  Dated: