NM Superannuation Pty Ltd v Young

NM Superannuation Pty Ltd v Young involved an application for the reinstatement of the registration of two companies, Tingara Pty Limited and Lakewell Pty Limited, which had been cancelled by the Australian Securities Commission. The applicants, Ian Russell Henry and Helene Anne Henry, sought reinstatement under section 574(3) of the Corporations Law. The court had to determine whether the applicants had a sufficient interest in the companies to be considered aggrieved by the cancellation and whether the companies were in operation at the time of cancellation.

The court examined the nature of the companies' activities, which were primarily as trustees under discretionary trusts, and whether this qualified them as being "in operation" under the law. The court also considered the reasons for the cancellation, which appeared to be due to the failure to lodge annual returns, and whether the applicants had provided a satisfactory explanation for this failure. The court referred to the decision in Gambol v Commissioner for Corporate Affairs, which had established that a person must be aggrieved in a particular sense to have standing to apply for reinstatement, and found that the applicants' interests as trustees provided the necessary grievance.

In delivering the judgment, Beaumont J found that the applicants had a legitimate interest in the reinstatement of the companies' registration and that the companies were indeed "in operation" as trustees. The court accepted the applicants' explanation for the failure to lodge returns and ordered the reinstatement of the companies' registration, subject to the applicants lodging any outstanding annual returns with the Commission. The court also ordered the applicants to pay the Commission's costs, totaling $800, with a refund of $400 if the $1200 already tendered was received.