Re Cenco Holdings Pty Ltd

[2005] NSWSC 293

Reported Decision: 53 ACSR 484
(2005) 23 ACLC 1089

New South Wales

Supreme Court

CITATION:	Danich Pty Ltd re Cenco Holdings Pty Ltd [2005] NSWSC 293
HEARING DATE(S):	29/03/05
JUDGMENT DATE :	8 April 2005
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Order directing reinstatement of registration refused

CATCHWORDS:	CORPORATIONS - reinstatement of registration after deregistration - transitional regime where deregistration effected under pre-1998 Corporations Law - company acted as trustee - reinstatement application by beneficiary - whether company had ceased to be trustee before deregistration - trust property vested in ASIC subject to trusts and other third party interests - ASIC's power to apply for order appointing new trustee - whether applicant beneficiary aggrieved by deregistration
LEGISLATION CITED:	Companies (New South Wales) Code Corporations Act 2001 (Cth), ss.601AH, 1403(1) Corporations Law, ss.574, 576(1), 601AD, 601AE,1439
CASES CITED:	Bastion v Gideon Investments Pty Ltd (2000) 35 ACSR 466 City West Water Ltd v Mr D Investments Pty Ltd (2002) 43 ACSR 622 Costa and Duppe Properties Pty Ltd v Duppe [1986] VR 90 GIS Electrical Pty Ltd v Melson (2002) 43 ACSR 481 King of Hanover v Bank of England (1869) LR 8 Eq 350 Parkes v Australian Asbestos Pty Ltd (2002) 42 ACSR 138 Re Commercial Bank Corporation of India and the East (1870) LR 5 Ch App 314 Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556 Whitton v ACN 003 266 886 Pty Ltd (1996) 42 NSWLR 123 WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (2004) 51 ACSR 102
PARTIES:	Danich Pty Ltd - Plaintiff
FILE NUMBER(S):	SC 1841/05
COUNSEL:	Mr M.K. Condon - Plaintiff Mr J.T. Johnson - ARM Rental Finance Pty Ltd
SOLICITORS:	Musgrave Peach - Plaintiff Kemp Strang - ARM Rental Finance Pty Ltd

LOWER COURT JURISDICTION:

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

BARRETT J

FRIDAY, 8 APRIL 2005

1841/05 – DANICH PTY LTD RE CENCO HOLDINGS PTY LTD

JUDGMENT

1 By originating process filed on 9 March 2005, Danich Pty Limited (“Danich”) seeks an order under s.601AH of the Corporations Act 2001 (Cth) directing Australian Securities and Investments Commission to reinstate the registration of Cenco Holdings Pty Limited (“Cenco”). The application is supported by ARM Rental Finance Pty Limited (“ARM”) which, by interlocutory process filed on 15 March 2005, seeks an order that it be joined as defendant, an order that upon any reinstatement of the registration of Cenco the whole of that company’s assets and undertaking be held by it upon and subject to the terms of a registered charge created by Cenco in favour of ARM in 1990 and an order affecting the running of time under the Limitation Act 1969 against ARM in respect of its claim against Cenco. ARM also asks the court to note an agreement between ARM and Danich.

2 Cenco came into existence on 10 June 1982 by virtue of registration under the Companies (New South Wales) Code. On 31 December 1982, it became party to a deed of that date by which a unit trust known as the “Centrelease Trust” was established. Cenco became the sole trustee under that trust deed. Between 1986 and 1990, Cenco created various charges. By 1 November 1990, the only subsisting charge was a charge of that date by which Cenco charged the whole of its assets and undertaking in favour of ARM by way of fixed and floating charge to secure all moneys from time to time owing by Cenco to ARM. That charge was duly registered under the Companies (New South Wales) Code. On 7 October 1992, ARM, in exercise of powers conferred by the charge, appointed a receiver in respect of the whole of the assets and undertaking of Cenco.

3 There is some controversy between Danich and ARM as to the amount that was outstanding under and secured by the charge when the receiver retired, as he did on 23 September 1993. ARM says that $613,653.42 was outstanding. Danich says that nothing was outstanding. For reasons that will emerge, I do not need to determine this question.

4 Cenco was deregistered on 4 March 1996. The reason disclosed by the ASIC search in evidence is “section 574” which is obviously a reference to s.574 of the Corporations Law then in force. That, plus the fact that the search shows annual returns due in respect of the 1991, 1992 and 1993 years to have been outstanding, suggests that deregistration was effected because of failure to lodge returns.

5 Matters would have rested here had it not been for an event that occurred on 7 February 2005. On that date Mr Moses, who was a director of Cenco at the time of deregistration (and is also a director of Danich), received a letter from Mr Buttrell, liquidator of another company, Cenco Corporation Pty Ltd, saying that Cenco was entitled to a distribution of approximately $1,125,620 in the winding up of Cenco Corporation in respect of a debt owed by Cenco Corporation to Cenco. That prompted Danich (which holds units of the Centrelease Trust) to seek an order for the reinstatement of Cenco, no doubt in the expectation that Cenco would resume office as trustee of the Centrelease Trust, and receive the distribution in the winding up of Cenco Corporation foreshadowed by Mr Buttrell.

6 Needless to say, the events I have just mentioned rekindled the interest of ARM. The contest that might have eventuated between ARM (secured creditor) and Danich (trust beneficiary) with respect to the proceeds of the payment foreshadowed by Mr Buttrell was overtaken by an agreement which the court is asked to note, should it decide to make an order directing the reinstatement of the registration of Cenco. The agreement – or proposed agreement – is an agreement between Cenco and ARM to the effect that $520,936 remains secured by ARM’s charge but there is otherwise no secured indebtedness, so that the balance of the receipt from the liquidator of Cenco Corporation will be held upon the trusts of the deed of 31 December 1982.

7 Danich appears from the evidence to be the only extant holder of units of the unit trust. After August 1994 or thereabouts, there were two unit holders, being Danich and a company called Bronwyn Properties Pty Ltd. The evidence shows that Bronwyn Properties was deregistered on 2 September 1994, in consequence of which it may be accepted that its units vested in ASIC pursuant to s.576 of the Corporations Law as then in force. The evidence does not disclose that any application has been made to resurrect Bronwyn Properties Pty Ltd.

8 The last matter to be mentioned by way of background concerns provisions of the trust deed dated 31 December 1982. Clause 20 of the trust deed is as follows:

“THE Trustee covenants with the Unit Holders jointly and severally as follows:-
(a) That it will act continuously as Trustee under the trusts herein set forth until such trusts are determined as herein provided or the Trustee has retired from the trusts in the manner herein provided.
(b) That it may retire from the trusts hereof upon giving not less than thirty (30) days notice thereof to the Unit Holders.
(c) That it will retire from the Trust in any of the following events, namely if being a Company such Trustee shall go into liquidation (except for the purpose of amalgamation or reconstruction or some similar purpose) or if a receiver shall be appointed of the undertaking of the Trustee or any part thereof.
(d) On the retirement of a Trustee pursuant to paragraph (b) hereof the retiring Trustee shall be entitled to appoint a substitute Trustee.
(e) On the retirement of a Trustee pursuant to paragraph (c) hereof or should a retiring Trustee pursuant to paragraph (b) hereof fail to appoint a substitute Trustee prior to the date of its retirement the Unit Holders shall be entitled by means of an instrument in writing signed by or on behalf of Unit Holders holding not less than 51% of units then on issue, to appoint a substitute Trustee.
(f) A Trustee shall on retirement take such action as is necessary to vest the Trust Fund or cause it to be vested in any new Trustee or Trustees and shall deliver to such new Trustee or Trustees all books documents records and other property relating to the Trust Fund.
(g) A new Trustee so appointed shall execute a deed in such form as is submitted whereby such new Trustee shall undertake to the Unit Holders jointly and severally all of the obligations of the retiring Trustee hereunder and from the date of the Deed the retiring Trustee shall be released from all further obligations under this Deed.
(h) The costs charges and expenses of and in connection with the retirement and replacement of any Trustee or the appointment of any additional Trustee shall be recouped from the Trust Fund.

9 A threshold question is as to the jurisdiction to order reinstatement of the registration of Cenco, assuming that a positive case is made out. Several cases have addressed (with somewhat different results) the availability of the s.601AH jurisdiction in relation to companies deregistered pursuant to the Companies Codes: see Shaw v Goodsmith Industries Pty Ltd (2002) 41 ACSR 556, Parkes v Australian Asbestos Pty Ltd (2002) 42 ACSR 138 and City West Water Ltd v Mr D Investments Pty Ltd (2002) 43 ACSR 622. But those cases are of no real assistance where, as here, the deregistration was effected pursuant to s.574 of the Corporations Law as in force in 1996.

10 At the time of deregistration under s.574 in March 1996, Cenco was a company deemed registered under the Corporations Law. On 1 July 1998, s.574 and allied provisions were superseded by a new Chapter 5A inserted into the Corporations Law by the Company Law Review Act 1998. That chapter contained as s.601AH a provision with respect to reinstatement of registration in the same terms as s.601AH of the Corporations Act 2001 (Cth) now in force. The transitional provisions inserted into the Corporations Law by the Act of 1998 did not say, in terms, that deregistration under the provisions in force before 1 July 1998 might form the basis of reinstatement under s.601AH of the Corporations Law as in force after 1 July 1998. But there is a clear indication that that was the legislative intention. The indication is found in s.1439 of the Corporations Law (one of the transitional provisions I have mentioned) which, dealing with an application for an order for reinstatement under s.571 or s.574(3) of the provisions superseded on 1 July 1998 that was pending but undetermined on that day, said that the application had effect, after that day, “as if it were an application for an order for reinstatement of the registration of the company under section 601AH of the new Law”, that is, the Corporations Law as in force after 1 July 1998. The capacity of s.601AH of the Corporations Law as in force after 1 July 1998 to bring about reinstatement of the registration of a company deregistered pursuant to s.574 of the Corporations Law as in force before that date was thus expressly recognised. (Section 1362CH of the Corporations Law which declares that ASIC’s powers under s.601AH as existing after 1 July 1998 extend to reinstatement of a company deregistered before 1 January 1991 is irrelevant to the present case, given that deregistration occurred after 1 January 1991).

11 Because of the recognition in the transitional provisions of the Corporations Law, as enacted with effect from 1 July 1998 and existing immediately before 15 July 2001, of the availability of s.601AH of the Corporations Law as a basis for reinstatement of the registration of a company deregistered in circumstances amenable to the restoring jurisdiction under s.601AH of the Corporations Law in force on and after 1 July 1998, the deregistration that occurred in 1996 pursuant to s.574 of the Corporations Law then in force was, upon commencement of the Corporation Act 2001 (Cth) on 15 July 2001, an “event” or “circumstance” that, in terms of s.1403 of that Act, had a particular “significance, status or effect” for the purposes of s.601AH of the Corporations Law (a “carried over provision” as defined by s.1371(1) of the Act), being the significance, status or effect of attracting the reinstatement jurisdiction under that s.601AH. By virtue of s.1403(1) of the Corporations Act, therefore, the deregistration under s.574 in 1996 has the same significance, status or effect for the purposes of the provision of the Corporations Act corresponding with s.601AH of the Corporations Law, being, of course, s.601AH of the Corporations Act. The lastmentioned section therefore represents a source of jurisdiction for the court to make the reinstatement order Danich seeks.

12 The next matter to be addressed is the status of Cenco in relation to the Centrelease Trust. Danich makes the present application on the obvious assumption that, if reinstatement of the registration of Cenco is effected, Cenco will then again be the trustee of that trust.

13 When, in 1992, ARM appointed a receiver under its charge over the whole of the assets and undertaking of Cenco, an event contemplated by clause 20(c) of the trust deed occurred. As a result, Cenco was obliged by its clause 20 covenant with the unit holders to “retire from the Trust”. Nothing in the evidence suggests that Cenco did anything towards fulfilling that obligation. Is such positive action required, or is the situation one in which the office of trustee has been vacated by reason of the happening of the clause 20(c) events?

14 In Whitton v ACN 003 266 886 Pty Ltd (1996) 42 NSWLR 123, Bryson J considered the effect of a provision very similar to clause 20. His Honour accepted (at p.157) a submission that a covenant by a trustee that it will retire in defined circumstances does not provide for or bring about automatic retirement. There, as here, later subclauses recognised a possibility that retirement would occur in the context of contemporaneous appointment of a new trustee (see the present clause 20(d)). Bryson J said:

“Although unit holders are entitled to seek enforcement of the covenant in the event that the trustee does not retire they may omit to seek enforcement, and they may decide that the covenant
should not be enforced, leaving the covenant unperformed and the trustee still in office.”

15 The approach taken by Bryson J is, in my respectful opinion, correct. It leads to the conclusion that clause 20(c) of the trust deed did not cause automatic vacation of the office of trustee by Cenco upon appointment of the receiver in 1992, but that Cenco was in continuing breach of covenant thereafter by not retiring as trustee. In the absence of evidence of any other relevant event after the appointment of the receiver, the conclusion must be that Cenco was still the trustee of the Centrelease Trust when Cenco was deregistered on 4 March 1996.

16 Upon that deregistration, Cenco was dissolved. That was the effect of s.574(1). Its existence as a juristic entity therefore came to an end on 4 March 1996. Because non-existent, it was then no longer the trustee of the Centrelease Trust.

17 Upon deregistration of Cenco, its property (including the chose in action that caused Mr Buttrell to write the letter of 7 February 2005) was dealt with by s.576(1) of the Corporations Law as it stood in 1996:

“Where, after a company has been dissolved, there remains in this jurisdiction or elsewhere outstanding property of the company, the estate and interest in the property, at law or in equity, of the company or its liquidator at the time when the company was dissolved, together with all claims, rights and remedies that the company or its liquidator then had in respect of the property vests by force of this section in the Commission.”

18 When s.576(1) and related provisions in Division 8 of Part 5.6 of the Corporations Law were superseded by the new Chapter 5A of the Corporations Law on 1 July 1998, s.1438(1) of the Corporations Law dealt with the status of property previously vested in the Commission by s.576(1):

“If property vested in ASIC before commencement under Division 8 of Part 5.6, ASIC may deal with the property under Chapter 5A as if the property were vested in it under section 601AD.”

19 Section 601AD of the Corporations Law as in force on and after 1 July 1998 dealt with property in two ways. Sub-sections (2) and (3) provided for the vesting of property in ASIC and dealt with the nature of ASIC’s rights and interests. Sub-section (4) said:

“ASIC has all the powers of an owner over property vested in it under subsection (2).”

20 Later provisions of Chapter 5A were concerned with dealings by ASIC with property vested in it. In particular, s.601AE(1) provided:

“If property vested in ASIC under subsection 601AD(2) was held by the company on trust, ASIC may:
(a) continue to act as trustee; or
(b) apply to a court for the appointment of a new trustee.”

21 Section 601AE(2) dealt with property not held by the company on trust and provided for it to be dealt with as unclaimed moneys under Part 9.7. Section 601AE as a whole made more explicit the message in the former s.577 that ASIC’s powers of dealing and disposal, as well as ultimate resort to the unclaimed moneys provisions, did not apply to property held in trust by the dissolved company. That property was to remain in ASIC indefinitely, impressed still with the relevant trusts.

22 The effect of s.1438(1) of the Corporations Law was to cause ASIC, on and from 1 July 1998, to have, in relation to the property of the Centrelease Trust vested in ASIC on 4 March 1996, “all the powers of an owner” (s.601AD(4)) and to have the powers mentioned in s.601AE(1). By virtue of either or both of ss.1400 and 1403 of the Corporations Act 2001 (Cth), the ownership of and rights, powers and duties in relation to the relevant property arising in ASIC by virtue of the Corporations Law provisions became the equivalent ownership, rights, powers and duties under corresponding provisions of the Corporations Act 2001 (Cth).

23 The position today is closely analogous with that which would have pertained had the trustee of the Centrelease Trust been an individual who died. The situation in those circumstances is summarised at paragraph 1574 of the sixth edition (1997) of “Jacobs’ Law of Trusts” by R P Meagher and W M C Gummow:

“Any trustee is clothed with the office of trustee and an estate in the trust property. Upon the death of a trustee, whether he be a sole trustee or one of a number of trustees, the office does not devolve on his legal representatives. No one can legally execute a trust unless he is nominated so to do by the settlor or testator is appointed so to do by or by direction of such settlor or testator, by Act of Parliament or by the court.
Therefore, if the deceased trustee was the sole or last surviving trustee, the office, where the trust is an active trust, becomes vacant; …
In regard to the estate vested in a trustee, where the deceased trustee was the sole or last surviving trustee, the estate passes to his legal representative in the same way as the deceased’s beneficial property and he will be obliged to hold the property until new trustees are appointed and the trust property vested in them.”

24 The office of trustee of the Centrelease Trust has remained vacant since the dissolution of Cenco, unless it can be seen that ASIC has positively exercised the power under s.601AE(1)(a) to act as trustee. Nothing in the evidence suggests that it has. The trust property has, however, devolved upon ASIC in such a way that pre-existing charges, rights and interests are preserved. The vesting therefore did nothing to defeat or dismiss the rights of ARM and the unitholders under the Centrelease Trust, so far as the trust assets now vested in ASIC are concerned.

25 The situation is not one in which, as contemplated by s.71(1) of the Trustee Act 1925, a legal estate in property has determined by reason of the dissolution of a corporation so that a vesting order under that section may be made; but it is one in which a vesting order may be made under s.71(2)(h), that is, “where a trustee being a corporation is dissolved”. The court’s inherent jurisdiction to appoint a new trustee in place of a dissolved corporation is, in any event, clearly activated (see, for example, King of Hanover v Bank of England (1869) LR 8 Eq 350) and the jurisdiction to appoint a receiver may also be activated (Bastion v Gideon Investments Pty Ltd (2000) 35 ACSR 466). Indeed, the former possibility is expressly recognised by s.601AE(1)(b).

26 There is no application before the court for the appointment of a new trustee of the Centrelease Trust. There is only an application directed towards reinstatement of Cenco’s registration. It is therefore appropriate to consider the consequences that any such reinstatement would have in relation to trusteeship of the Centrelease Trust and the trust property.

27 The consequences of reinstatement are stated in s.601AH(5):

“If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.”

28 The first part of s.601AH(5) must mean that, upon reinstatement of the registration, the company is to be viewed as if it had never ceased to exist, so that both the initial cessation of existence and the ongoing absence of existence are retrospectively obliterated. While not all consequences of the initial cessation of existence are to be disregarded (for example, the section itself makes it clear, by saying that a person “becomes a director again”, that it does not effect retrospective continuity of the tenure of directors), there is to be unbroken continuity of corporate existence as such.

29 It must follow that, if the registration of Cenco were reinstated, the cessation of existence and dissolution that caused it to cease to be the trustee of the Centrelease Trust would become invisible in the eyes of the law. That, coupled with the automatic revesting of property still vested in ASIC (subject to outstanding securities and other interests and claims), would cause Cenco to hold the remaining trust property subject to the rights of ARM and the claims or interests of unitholders under the Centrelease Trust and therefore upon the trusts created by the deed of 31 December 1982, so that it was again the trustee.

30 I have considered the position Cenco would occupy in relation to the trust and the trust property in the event of its reinstatement as a necessary prelude to a consideration of Danich’s application under s.601AH(2). That section is as follows:

“The Court may make an order that ASIC reinstate the registration of a company if:
(a) an application for reinstatement is made to the Court by:
(i) a person aggrieved by the deregistration; or
(ii) a former liquidator of the company; and
(b) the Court is satisfied that it is just that the company's registration be reinstated. “

31 The first question posed by the section is whether Danich is a “person aggrieved by” deregistration of Cenco. The meaning of that expression in the present context was considered by Steytler J (with whom Templeman J and Miller J agreed) in GIS Electrical Pty Ltd v Melson (2002) 43 ACSR 481 at pp.492-494:

“In Re Lindsay Bowman Ltd [1969] 1 WLR 1443, a company had been struck off the register of companies and dissolved under s 353 of the Corporations Act 1948 (UK). A contributory and the company petitioned the court for the restoration of the company’s name to the register under s 353(6) of the Companies Act, pursuant to which a company or any member or creditor thereof, if it felt aggrieved by the company having been struck off the register, could apply to have the company restored to the register. There was no real prospect that either the contributory or the company would obtain any financial return from the reinstatement of the company. Megarry J, at 1448, was unable to see what grievance the company or the contributory had. He said, in that respect (ibid):

‘If there were real prospects of a surplus to be snatched from the fate of bona vacantia, it would be different; but here there is not only no hope of a surplus, but also merely the most cautious of assertions in the petition that if it is granted “some of” the assets “may be” available for the benefit of creditors. In my judgment there are no grounds whatever which would suffice for the exercise of the court’s powers of restoration and resurrection under the subsection, and I dismiss the petition.’
In Attorney-General of Gambia v N’Jie [1961] AC 617 at 634; [1961] 2 All ER 504 at 511, the Privy Council (Lords Radcliffe, Denning and Guest) said:
‘The words “person aggrieved” are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.’
Earlier, in Ealing Corp v Jones [1959] 1 QB 384, Donovan J said, at 392:

‘I think it is true that if one came to the expression without reference to judicial decision one would say that the words “person aggrieved by a decision” mean no more than a person who had had the decision given against him; but the courts have decided that the words mean more than that, and have held that the word “aggrieved” is not synonymous in this context with the word “dissatisfied”. The word “aggrieved” connotes some legal grievance, for example, a deprivation of something, an adverse effect on the title to something, and so on.’
Similar tests have been applied in Australia. In Re G A and R J Elliot Pty Ltd; Ex parte Mitcham ( 1978) 3 ACLR 523 , Young CJ said, at 525:
‘The expression “person aggrieved” and similar expressions are, of course, very familiar. They have given rise to many authorities: see Stroud’s Judicial Dictionary , 4th ed, vol 1, pp 89–94. Speaking generally a person aggrieved is I think a person who is injured or damaged in a legal sense or who has suffered a legal grievance: see Ex parte Sidebotham (1879) 14 Ch D 458; [1874–80] All ER Rep 588 in the judgment of James LJ at 465, although as the Privy Council said in A-G of the Gambia v N’Jie [1961] AC 617 at 634; [1961] 2 All ER 504 at 511, the dictum of James LJ in that case is not to be regarded as exhaustive.’

Then, in Denis v McMahon (1989) 7 ACLC 283, Demack J said, of the words “person … aggrieved” in s 459(6) of the Companies (Qld) Code, that it seemed to him that one of the tests considered by the Full Court of Victoria in National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592 at 604 and following, covered the present situation, being a test whether the person in question had “a real and direct interest in the decision and is dissatisfied with it”: see also Re K P Wee Investments Pty Ltd (1993) 32 NSWLR 745; 12 ACSR 620.

In Northbourne Developments , above, McLelland J, at NSWLR 437–8; ACSR 82, quoted what had been said by James LJ in Ex parte Sidebotham; Re Sidebotham (1880) 14 Ch D 458 at 465 in respect of s 71 of the Bankruptcy Act 1869 (UK) as follows:
‘ … but the words “person aggrieved” do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A “person aggrieved” must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.’
McLelland J went on to say (at NSWLR 438; ACSR 82):
‘In other contexts, particularly where the public interest is affected, this statement may well be too restrictive: see, eg, Attorney-General of Gambia v N’Jie [1961] AC 617 at 634.’

Even in the area of insolvency administration James LJ’s remarks should not be treated as an exhaustive definition: see Ex parte Official Receiver; Re Reed Bowen and Co (1887) 19 QBD 174 at 178 per Lord Esher MR. Nevertheless the concept encapsulated in the phrase “legal grievance” is I think sound in principle (see, eg, Ex parte Official Receiver; Re Reed Bowen and Co; Re Burn [1932] 1 Ch 247 and Re E and L Homes Pty Ltd [1974] Qd R 102), although its application to particular facts may not be without argument. It should not be overlooked that the wider the class of persons entitled to appeal to the court in respect of an act, omission or decision of a liquidator (or provisional liquidator) the greater the scope for potential disruption of an orderly administration.

These last comments were made in the context of the use of the words “person aggrieved” in s 538 of the Companies (NSW) Code, which gave to a person aggrieved by any act, omission or decision, inter alia, of a liquidator, the right to appeal to the court. Even in that context his Honour concluded that it had not been shown by the applicant that it was a “person aggrieved” because it had not shown that it had “any legal right or interest” which was affected by the liquidator’s decision or that the decision “constituted a breach of any legal duty owed” by the liquidator to it. All that the applicant had lost in that case was the chance that, if the liquidator had not contracted with a third party, he might have contracted with it. That, McClelland J said (at 438), was not a “legal grievance” sufficient to give standing to the applicant under s 538.
More recently, in Australian Competition and Consumer Commission v ASIC (2000) 174 ALR 688; 34 ACSR 232, Austin J, applying Re Proserpine Pty Ltd [1980] 1 NSWLR 745; (1980) 5 ACLR 603, found that the applicant in that case was a person aggrieved because its legal rights had been affected and because it had a genuine grievance that the dissolution had affected its interests: at [24]–[26].”

32 To determine whether Danich is “a person aggrieved by” the deregistration of Cenco, one must therefore ask whether the interests of Danich have been affected by the circumstance that Cenco ceased to exist on 4 March 1996 – in other words, whether Danich was thereby deprived of something, or injured or damaged in a legal sense, or became entitled, in a legal sense, to regard the dissolution as a cause of dissatisfaction.

33 The trust created by the deed of 31 December 1982 appears to be a unit trust of the usual kind under which the beneficial interest in the trust fund is declared to be held by the unit holders from time to time in proportion to the numbers of units held by them. Each unit holder may therefore be taken to have an interest in each asset subject to the trust: Costa and Duppe Properties Pty Ltd v Duppe [1986] VR 90. Each such interest continued to subsist after the trust property became vested in ASIC upon the deregistration of Cenco: the vesting in ASIC was, in terms of the former s.576(1), only as to Cenco’s estate and interest. The deregistration therefore did not deprive Danich of anything or make it unable to assert or obtain satisfaction of its rights in full. In that respect and for that reason, it should be concluded that Danich is not “aggrieved” by the deregistration of Cenco. This case is distinguishable from the common case where there is a need for the deregistered company to be a party to litigation so that the person seeking reinstatement may obtain redress otherwise unavailable. Here, the rights and interests of Danich in respect of the trust property were unaffected and undiminished by the demise of Cenco.

34 Danich nevertheless points to another circumstance which, it says, makes it a person aggrieved by the deregistration. Mr Smith, a former director of Cenco, deposes to a conversation he had with Mr Buttrell about the entitlement of Cenco of which Mr Buttrell had previously informed Mr Moses. In the context of discussion of the possibility of appointment of a new trustee, Mr Buttrell said to Mr Smith that he had received advice that he should only pay Cenco as it is the party showing on the report as to affairs of Cenco Corporation as being owed the relevant debt by that company. Mr Smith further deposes to having been told by Mr Peach, Danich’s solicitor, of a conversation in which Mr Buttrell said to Mr Peach:

“I am on notice of the charge in favour of ARM Central Finance Pty Ltd which has been granted by Centrelease Holdings Pty Ltd [a former name of Cenco]. As the charge document does not of itself refer to the Centrelease Trust, I consider that the dividend payable by Cenco Corporation should be paid to Cenco and not to any other trustee of the trust.”

35 Danich says that there should be drawn from this an inference to the effect that Danich, as one of the unitholders under the unit trust, will be denied the benefits flowing from receipt of the dividend in the winding up of Cenco Corporation unless Cenco is brought back to life and thereby enabled to play the role to which Mr Buttrell apparently thinks can only be played by Cenco. This simply cannot be so. If a creditor who has proved in a winding up dies (and therefore ceases to exist) before a final dividend is paid by the liquidator, the liquidator must pay the dividend to the creditor’s executor upon production of the grant of probate: Re Commercial Bank Corporation of India and the East (1870) LR 5 Ch App 314. As one would expect, the right to the dividend devolves according to the law of succession and the liquidator, upon production of appropriate proof, is bound to recognise that.

36 In the present case, the liquidator of Cenco Corporation, upon production of appropriate evidence, will be bound to recognise the entitlement of ASIC to dividends in respect of the debt of Cenco. And if a new trustee of the Centrelease Trust were appointed by order of the court in the exercise of its inherent jurisdiction (whether upon application by ASIC under s.601AE(1)(b) or otherwise) and a vesting order were made under s.71(2)(h) of the Trustee Act, the liquidator would be both bound and entitled to pay dividends to the new trustee.

37 This is not a case in which the existence of Cenco is essential to the pursuit and fulfilment of Danich’s rights. In this respect, the circumstances of the present case differ from those that were before the Court of Appeal in WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (2004) 51 ACSR 102. That case involved a company that, before deregistration, had failed to maintain insurance in accordance with workers compensation legislation. The WorkCover Authority met a claim by an employee of the company and, with the employer company having been deregistered apparently without assets, wished to obtain reimbursement from a person who had been a director of the company at material times before registration. An essential step in that statutory process was service of a notice on the company. It had been held at first instance that the WorkCover Authority was not a person aggrieved by the deregistration. Sheller JA (with whom Mason P and Ipp JA agreed) rejected that conclusion:

“WorkCover had a plain interest in obtaining from the culpable director of Picton reimbursement for the payments it had made to Picton’s employee and that interest was adversely affected by the deregistration.”

The existence of the company was, in that case, an essential element of the procedure WorkCover needed to follow in order to obtain the reimbursement sought.

38 Here, by contrast, Danich is the passive holder of an equitable interest in property, with the rights of a beneficiary under the Centrelease Trust in respect of that property, and the property, whatever it may be, is vested in ASIC. To the extent, if any, that the position of someone in Danich’s situation is in need of protection or improvement, re-creation of the corporate existence of Cenco does not form part of any necessary or appropriate process.

39 In the circumstances of this case, the provisions of Chapter 5A, coupled with general law principles, adequately cover Danich’s situation. The trust property, including the chose in action which is the source of the entitlement to a dividend in the winding up of Cenco Corporation, is held by ASIC subject to the rights and interests of Danich and others having rights and interests in it. A gap in the tenure of a trustee has occurred but it is in the hands of ASIC or Danich or anyone else with the requisite standing to seek from the court an order for the appointment of a new trustee, which order would no doubt readily be made. The dissolution of Cenco has not diminished the rights of Cenco. Those rights remain exercisable in respect of the property vested in ASIC and are subject to protection by equity in the same way as if the trust property were vested in any other person. The stated intention of the liquidator of Cenco to pay dividends to no one but Cenco is no more than a reflection of the fact that the liquidator has not been presented with evidence of his right and duty to pay otherwise than to Cenco.

40 I have, to this point, made only brief reference to the agreement between ARM and Danich that ARM asks the court to note. The agreement is dated 29 March 2005 and is expressed to be “subject to and in all respects conditional upon” reinstatement of the registration of Cenco. Subject to that, ARM and Danich have agreed, first, that the amount owing by Cenco to ARM upon the security of the charge is $$520,936; second, that Cenco will lodge a proof of debt in the winding up of Cenco Corporation for $2,501,378 and, third, that ARM and Cenco will irrevocably authorise and direct the liquidator of Cenco Corporation to pay the dividend in respect of the proof to ARM as to $520,936 and to Cenco as to the balance. Danich has thus promised to cause Cenco, if and when Cenco again becomes the trustee of the Centrelease Trust, to exercise its powers as trustee in certain ways. How Danich, as a mere unitholder (and only one of two at that) would cause Cenco to perform as contemplated by the agreement is unexplained; as is the question of how it might be thought that performance of the agreement would represent prudent and diligent action by Cenco as trustee. The other unitholder was Bronwyn Properties but, following its deregistration, its units are no doubt vested in ASIC. There can therefore be no suggestion that, if Cenco again became the trustee of the Centrelease Trust and acted in the way the agreement contemplates, it would be giving effect to the expressed wishes and directions of sui juris beneficiaries, acting unanimously and in a reasonably informed way.

41 I mention these matters because they indicate that, even if Danich had been regarded as a “person aggrieved” for the purposes of s.601AH(2)(a), the very clear possibility that it would, after restoration of its registration, be manipulated to give effect to an agreement formed for it by others would militate against any view that restoration was “just” as contemplated by s.601AH(2)(b).

42 The originating process of Danich will be dismissed and, because that will mean that the foundation for AMR’s interlocutory process does not come into existence, that interlocutory process will also be dismissed.

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