Re MIG Property Services Pty Ltd (No 2) - [2012] VSC 606

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
CORPORATIONS LIST

No. 5072 of 2012

IN THE MATTER of MIG PROPERTY SERVICES PTY LTD

DAVID MOND

Plaintiff

GEOFFREY NIELS HANDBERG (IN HS CAPACITY AS LIQUIDATOR OF S&D INTERNATIONAL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION))

Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2012
DATE OF JUDGMENT:	19 December 2012
CASE MAY BE CITED AS:	Re MIG Property Services Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 606

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CORPORATIONS – Application to rectify ASIC register to remove references to the company being wound up where order for winding up overturned on appeal – Whether removal of references constitutes rectification of the register – Consideration of circumstances justifying rectification – Application refused – Section 1322(4)(b) of the Corporations Act 2001.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P Tree SC D Triaca	Mason Black Lawyers
For the Defendant	MJ Golvan	Mills Oakley

HIS HONOUR:

Introduction

In February 2012, application was made by S&D International Pty Ltd (receivers and managers appointed) (in liquidation) (S&D) to wind up MIG Properties Pty Ltd (MIG), alleging that MIG owed some $200,000 to S&D, which amount it had failed to pay under a statutory notice. The application was successful, and an order was made for the winding up of MIG and a liquidator appointed. MIG successfully appealed that order. The winding up order was set aside and the application to wind up adjourned (pending the hearing and determination of the appeal). The debt the subject of the statutory notice and the winding up application has now been compromised (together with the appeal), and S&D has no claims against MIG.

Pursuant to statutory obligations, notification of the application to wind up MIG, notification of the appointment of a liquidator to MIG by the Court, notification of the resignation or removal of the liquidator to MIG and notification that a Court order set aside the winding up of MIG, were lodged with ASIC and recorded on a register kept by ASIC. ASIC is obliged to make this information available to the public if a search of the company is made.

Mr Mond is and always has been the sole director and shareholder of MIG. Mr Mond seeks an order that the “register” containing this information be “rectified” by removing this information pursuant to s 1322(4)(b) of the Corporations Act 2001 (the Act). Mr Mond is an accountant and conducts a large debt collecting business. He fears his reputation will be damaged if this information remains on the ASIC register. ASIC neither consents to or opposes the application.

The application raises the following issues:

(a) Is the information kept on a register kept by ASIC under the Act?

(b) Is the application seeking “the rectification” of the register?

(c) Should the Court in its discretion make such an order?

The power to rectify the register

Section 1322(4)(b) provides that the Court may, on…

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: [2012] VSC 606
Decision Date: 19 December 2012

CaseChat Overview and Summary

The case involved MIG Property Services Pty Ltd, where the Australian Securities and Investments Commission (ASIC) had applied to rectify the ASIC register to remove references indicating that the company was in the process of being wound up. The order for winding up had previously been overturned on appeal. The matter was before the Federal Court of Australia. The court was tasked with determining whether the removal of the references from the ASIC register constituted rectification of the register under section 1322 of the Corporations Act 2001. The court had to consider whether the circumstances justified such rectification.

The primary legal issue was whether the removal of the winding-up references from the ASIC register constituted rectification of the register, and if so, whether the circumstances justified such rectification. The court assessed the relevant statutory provisions, particularly section 1322(4)(b) of the Corporations Act 2001, which provides for the rectification of the ASIC register if it contains incorrect information. The court also considered the broader context of the winding-up proceedings and the reasons why the initial order had been overturned on appeal.

The court concluded that while the references to the winding up were indeed incorrect, the circumstances did not justify rectification of the ASIC register. The court emphasised that rectification should only be granted in exceptional circumstances where there is a clear error in the register and it is necessary to correct that error to prevent injustice. The court found that ASIC had not demonstrated such exceptional circumstances warranting rectification. The court also noted the potential for confusion and disruption that could arise from altering the register without sufficient justification. Consequently, the application to rectify the register was refused.

The final orders of the court were that the application by ASIC to rectify the ASIC register to remove references to the company being wound up was dismissed. The court did not order any rectification of the register, finding that the circumstances did not justify such action under section 1322(4)(b) of the Corporations Act 2001.

Orders