Reid v Action Insulation Engineers Pty Ltd - [2009] NSWSC 1182

CITATION: Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182

HEARING DATE(S): 02/11/09

JUDGMENT DATE :
2 November 2009

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 2 November 2009

DECISION: Orders for reinstatement and winding up

CATCHWORDS: CORPORATIONS - deregistered company - application for order that ASIC reinstate registration- ASIC notified of application but insufficient time for its response to be received - particular urgency for company's existence to be recreated - order made despite absence of ASIC's response but recognising its susceptibility to be set aside

LEGISLATION CITED: Corporations Act 2001 (Cth), s 601AH(2)
Law Reform (Miscellaneous Provisions) Act 1946, s 6

CATEGORY: Principal judgment

CASES CITED: BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322
Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262

PARTIES: Edward James Joseph Reid - Plaintiff
Action Insulation Engineers Pty Limited - First Defendant
HD (Air) Pty Limited - Second Defendant

FILE NUMBER(S): SC 5149/09

COUNSEL: Mr A P Cheshire - Plaintiff

SOLICITORS: Turner Freeman - Plaintiff

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

Barrett J

Monday 2 November 2009

5149/09 Edward Reid v action insulation engineers Pty Limited & ANOR

JUDGMENT

1 The plaintiff is pursuing proceedings in the Dust Diseases Tribunal. His solicitor's affidavit sworn today gives details of those proceedings and in particular steps that have recently been taken by the Tribunal to expedite them.

2 On 23 October 2009, the President of the Tribunal, Judge O'Meally, removed the proceedings from the claims resolution process on the grounds of urgency. In the following week, the matter was case managed by Judge Curtis and the plaintiff's evidence was taken at his home on 29 October 2009.

3 On 30 October 2009, an insurer moved to strike out the statement of claim against it as a nullity, as no leave had been granted under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946. That claim was successful but Judge Curtis later granted leave to join the insurer on condition that the registration of the two companies, ostensibly insured by that insurer, be reinstated, each having been removed from the register of companies at an earlier time. Those companies were employers of the plaintiff at times related to the onset of his illness.

4 Earlier today, an order was made by Judge Curtis ostensibly joining the two companies as parties to the proceedings. This is despite the circumstance I have mentioned, namely, that they do not at the moment exist.

5 It is in order to rectify this aspect of the proceedings in the Dust Diseases Tribunal that the plaintiff now moves the court under section 601AH(2) of the Corporations Act 2001 (Cth) for an order that ASIC reinstate the registration of each of the companies.

6 As the chronology in the Dust Diseases Tribunal demonstrates, there is urgency in this case. It arises from the fact that…

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.

Continue reading Reid v Action Insulation Engineers Pty Ltd

Details

AGLC: Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182
Case: [2009] NSWSC 1182
Decision Date: 2 November 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Reid applied for an order that the Australian Securities and Investments Commission (ASIC) reinstate the registration of Action Insulation Engineers Pty Ltd, a company that had been deregistered. The urgency of the application lay in the need to reestablish the company's existence for the purposes of a pending litigation involving a significant debt. The court had to determine whether it could grant the order without a response from ASIC, which had been notified of the application but did not have sufficient time to respond.

The primary issue before the court was whether it could proceed to make an order in the absence of ASIC's response, given the particular urgency of the situation. The court considered the circumstances surrounding the deregistration and the potential consequences of the delay in ASIC's response. It acknowledged that while the absence of a response from ASIC was a significant factor, the urgency and the potential impact on the company's ability to conduct its affairs warranted a different approach. The court recognised the possibility that ASIC's response could later set aside the order if it deemed it appropriate.

The court concluded that despite the absence of ASIC's response, the particular urgency of the situation justified making the order. The court emphasised that the order was made with the understanding that it could be set aside if ASIC later decided to do so. The court granted the order, allowing the registration of Action Insulation Engineers Pty Ltd to be reinstated, enabling the company to proceed with the litigation concerning the significant debt. The court's decision recognised the balance between the urgency of the application and the need for ASIC's input, while also providing a safeguard for ASIC to address any concerns it might have regarding the reinstatement of the company's registration.

Orders