Parker v Australian Asbestos Pty Ltd - [2002] NSWSC 520

Reported Decision:
42 ACSR 138

New South Wales

Supreme Court

CITATION: Parker v Australian Asbestos [2002] NSWSC 520

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 1740/02

HEARING DATE(S): 30 May, 3 June 2002

JUDGMENT DATE: 11 June 2002

PARTIES :

Leonard James Parker (P)
Australian Asbestos Pty Ltd (D1)
Australian Asbestos (NSW) Pty Ltd (D2)
Asbestospray Fire Prf & Insul (NSW) Pty Ltd (D3)

JUDGMENT OF: Austin J

COUNSEL : D Trainor (Sol) (ex parte)

SOLICITORS: W G McNally & Co (P)

CATCHWORDS: CORPORATIONS - de-registration and re-instatement - companies de-registered more than 15 years ago - whether 15 year time limit for application to re-instate under s 459 of the Companies (NSW) Code applies

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 601AH, 1370, 1378, 1400
Corporations Law, s 1362CH
Companies (NSW) Code, s 459

DECISION: Orders for reinstatement made

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 11 JUNE 2002

1740/02 LEONARD JAMES PARKER V AUSTRALIAN ASBESTOS PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: This is an application, by originating process filed on 4 March 2002, for orders reinstating three deregistered companies, and for an order that leave be given to the plaintiff to commence proceedings against those three companies for damages for personal injuries in the Dust Diseases Tribunal of New South Wales.

2 The plaintiff claims that he was employed by one of the three companies, Australian Asbestos Pty Ltd, from 1961 to July 1966. He says that from late 1966 to early 1967 he was employed by Australian Asbestos (NSW) Pty Ltd, the second of the companies, and that from 1968 until October 1971 he was employed by Asbestos Fire Prf & Insul (NSW) Pty Ltd, the third company. He says that throughout the course of his employment with the three companies, he was exposed to asbestos on a daily basis. The first company was deregistered on 16 September 1970, the second on 2 November 1979 and the third on 19 September 1980. The plaintiff was admitted to hospital in January 2000 and was later diagnosed to have asbestos related pleural disease. In December 2001 that diagnosis was upheld by the Dust Diseases Board.

3 The plaintiff's solicitor has identified the workers compensation insurers of the first and second companies, but has not been able to identify the insurer for the third company. Nevertheless the plaintiff seeks the reinstatement of all three companies, undertaking not to execute any judgment against any of them without further leave of the Court, on the basis that the insurer may yet be identified for the third company. The Australian Securities and Investments Commission does not oppose the application, provided certain conditions are satisfied, one of which is that the order for reinstatement must be sought under the appropriate applicable legislation.

4 That condition has led the plaintiff to file an amended originating process, seeking either reinstatement under s 601AH of the Corporations Act, 2001 (Cth), which is the present corporations legislation, or under ss 459…

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: [2002] NSWSC 520
Decision Date: 11 June 2002

CaseChat Overview and Summary

The case of Parker v Australian Asbestos Pty Ltd involved a dispute over the validity of the de-registration of a company and its subsequent re-instatement. The plaintiff, Mr Parker, sought to have the company, Australian Asbestos Pty Ltd, reinstated under the provisions of the Companies (NSW) Code. The dispute was heard in the Supreme Court of New South Wales. The primary issue for the court to determine was whether the 15-year time limit specified in section 459 of the Companies (NSW) Code applied to the de-registered company which had been removed from the register more than 15 years prior to the application for reinstatement.

The court considered whether the 15-year time limit for applying for reinstatement was absolute and whether it applied to cases where the company had been de-registered for an extended period, in this instance over 15 years. The court examined the legislative intent behind the reinstatement provisions and the rationale for imposing a time limit on such applications. It was noted that the statutory language of section 459 did not explicitly state that the time limit was a jurisdictional bar, and the court considered whether the passage of time alone could bar an application for reinstatement in the absence of prejudice to other parties.

In reaching its decision, the court held that the 15-year time limit specified in section 459 of the Companies (NSW) Code was not an absolute bar to an application for reinstatement. The court found that the time limit was not intended to be a jurisdictional bar, but rather a consideration in determining whether it was just and equitable to reinstate the company. The court took into account the length of time since de-registration, the reasons for the de-registration, and any potential prejudice to other parties. In this case, the court found that there was no prejudice to other parties and that it was just and equitable to grant the application for reinstatement.

The court ordered the reinstatement of Australian Asbestos Pty Ltd on the register of companies, effective from the date of the judgment. The court also noted that any debts or liabilities incurred by the company prior to de-registration would remain unaffected by the reinstatement. This decision provides clarity on the application of the time limit for reinstatement under the Companies (NSW) Code and affirms the court's discretion to consider the circumstances of each case when determining whether to grant an application for reinstatement.

Orders