Re James Hardie Australia Finance Pty Ltd (Deregistered)

The case of Re James Hardie Australia Finance Pty Ltd (Deregistered) involves the Australian Securities and Investments Commission (ASIC) seeking the reinstatement of James Hardie Australia Finance Pty Ltd (JHAF) and the appointment of a liquidator. JHAF had been deregistered, and ASIC, acting on behalf of the public interest, applied for the reinstatement of JHAF's registration and the appointment of a liquidator to investigate three significant financial transactions that occurred in 2001 and 2003. These transactions involved substantial reductions in JHAF's capital and payments to its parent company, James Hardie Finance BV (JHFBV), raising concerns about potential tax evasion and asset stripping.

The primary legal issues were whether ASIC had standing to apply for the reinstatement of JHAF's registration and whether it was just to reinstate the registration to allow for a liquidator to investigate the financial transactions. ASIC argued that it had standing as a person aggrieved by the deregistration, drawing parallels with the standing of the Australian Competition and Consumer Commission in similar circumstances. Furthermore, ASIC contended that the reinstatement was just because it aimed to investigate the possibility of replenishing JHAF's assets to cover potential tax liabilities.

The court found that ASIC did indeed have standing to apply for the reinstatement of JHAF's registration, based on its public responsibilities akin to those of the Australian Competition and Consumer Commission. The court also determined that it was just to reinstate the registration to enable a liquidator to investigate the financial transactions, which had significantly depleted JHAF's assets and potentially affected its ability to pay taxes. Consequently, the court ordered the reinstatement of JHAF's registration, appointed Max Christopher Donnelly as liquidator, and granted ASIC the right to apply for costs from JHAF within two months.

In summary, the court's decision reinstated the registration of JHAF and appointed a liquidator to investigate the financial transactions, thereby addressing ASIC's concerns about potential tax evasion and asset depletion. The orders included the reinstatement of JHAF's registration, the appointment of a liquidator, and the provision for ASIC to apply for costs from JHAF.