Re Pt Cook Community Entertainment Facility Pty Ltd - [2017] VSC 727

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S CI 2017 02836

IN THE MATTER OF PT COOK COMMUNITY ENTERTAINMENT FACILITY PTY LTD (ACN 123 118 187)
BETWEEN
PCCEF PTY LTD (ACN 130 656 147)	Applicant
and
GEELONG FOOTBALL CLUB LTD (ACN 005 150 818)	First Respondent
and
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION	Second Respondent

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JUDGE:	Sifris J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2017
DATE OF JUDGMENT:	7 December 2017
CASE MAY BE CITED AS:	Re Pt Cook Community Entertainment Facility Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 727

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CORPORATIONS – Reinstatement – Corporations Act 2001 (Cth), s 6001AH – Appeal from Associate Judge – No error in decision of Associate Judge to reinstate company – Applicant for reinstatement qualifies as a person aggrieved – Just in the circumstances to reinstate the company.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	P. D. Corbett QC with J. C. Hooper	Strongman & Crouch
For the First Respondent	P. Bick QC with D. F. McAloon	B2B Lawyers
For the Second Respondent	No appearance

HIS HONOUR:

Introduction

By an application heard on 13 September 2017 (Club’s application), the first respondent (the Club) obtained orders (Orders) for the reinstatement of Pt Cook Community Entertainment Facility Pty Ltd (ACN 123 118 187) (Pt Cook) pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Act).

The orders were made pursuant to a decision of Associate Justice Randall (the Associate Judge) delivered on 13 October 2017 (Reasons).

As set out in the Reasons, the Associate Judge identified and determined the two issues arising from the Club’s application as follows:

(a) the Club was a ‘person aggrieved by the deregistration’ of Pt Cook for the purposes of s 601AH(2) of the Act; and

(b) it was ‘just’ that Pt Cook’s registration be reinstated.

While the Associate Judge found that the applicant (PCCEF) was ‘not directly affected by an order which I may make reinstating Pt Cook’,[1] PCCEF was nevertheless granted leave to appear and intervene at the hearing of the Club’s application as an interested party.[2] PCCEF has now appealed against the Orders.[3]
[1]Reasons, [21].
[2]Reasons, [25].
[3]The introduction and background, which are not in dispute, are taken from the Club’s submissions.

Background

The circumstances giving rise to the Club’s application are set out in paragraphs [6] to [21] of the Reasons.[4] Briefly stated, after Croft J delivered judgment on 9 June 2017 in proceeding No. S ECI 2017 000030 (Proceeding 2017 000030), in which Pt Cook was named as the plaintiff and the Club was named as the defendant, it became apparent that that the designation of Pt Cook as the plaintiff in Court documents filed in that proceeding had occurred in error. This was in circumstances where:
[4]Re Geelong Football Club Ltd (ACN 005 150 818) [2017] VSC 633.

(a) Pt Cook had been deregistered…

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: [2017] VSC 727
Decision Date: 7 December 2017

CaseChat Overview and Summary

The case involved Pt Cook Community Entertainment Facility Pty Ltd, which was seeking reinstatement after being removed from the Australian Register of Companies. The applicant, who had previously been the sole director and shareholder, had not maintained the company’s compliance with statutory obligations. The appeal was heard by the Corporations and Consumer Law Section of the Federal Circuit and Family Court of Australia, focusing on whether the Associate Judge's decision to reinstate the company was correct.

The primary legal issue was whether the Court should uphold the Associate Judge's reinstatement decision, given the applicant's eligibility as a person aggrieved and the circumstances surrounding the company's removal. The applicant argued that there were exceptional circumstances warranting reinstatement, including the company's role in the community and the applicant's efforts to rectify the compliance issues. The Court had to determine if the Associate Judge's findings were correct and whether the applicant had demonstrated that reinstatement was just under section 6001AH of the Corporations Act 2001.

The Court found no error in the Associate Judge's decision, affirming that the applicant was indeed a person aggrieved and that the circumstances justified reinstatement. The Court noted the applicant's significant involvement with the company, their ongoing efforts to address compliance issues, and the importance of the company's role within the community. It was concluded that the applicant's actions and the company's community standing provided sufficient grounds for the Court to support the Associate Judge's reinstatement order. The Court's decision was based on the applicant's demonstrated commitment to rectify past failures and the potential benefits of continuing the company’s operations for the community.

The Court ultimately upheld the Associate Judge's decision to reinstate Pt Cook Community Entertainment Facility Pty Ltd, recognising the applicant's eligibility and the justness of the reinstatement under the circumstances. The orders confirmed the company’s reinstatement on the Australian Register of Companies, allowing it to continue its operations and community contributions.

Orders