Robert Jason Harding v Westfield Shopping Centre Management Co (ACT) Pty Ltd

[2013] ACTSC 258

ROBERT JASON HARDING v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (ACT) PTY LTD & ORS
[2013] ACTSC 258 (4 December 2013)

CORPORATIONS – reinstatement under s 601AH of the Corporations Act 2001 (Cth) – deregistered company – plaintiff a person aggrieved by deregistration – corporation reinstated

Corporations Act 2001 (Cth), s 601AD, 601AH

Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 34 ACSR 232
Donmastry Pty Ltd v Albarran (as vol liq of Project Management, Architecture, Construction, Interior (PACI) Pty Ltd) (2004) 49 ACSR 745
Kenney v McCann (1992) 7 WAR 329
Re Austral Family Homes Pty Ltd (in liq) (1992) 28 NSWLR 247
Taylor v Sanders [1937] VLR 62

Murray, M, Keay’s Insolvency: Personal and Corporate Law and Practice (Lawbook Co, 6th ed, 2008)

EX TEMPORE JUDGMENT

No. SC 967 of 2009

Judge:             Refshauge J
Supreme Court of the ACT

Date:              4 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 967 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:ROBERT JASON HARDING

Plaintiff

AND:WESTFIELD SHOPPING CENTRE MANAGER CO (ACT) PTY LTD

ACN 008 612 002

FirstDefendant

KENTUCKY FRIED CHICKEN PTY LTD

ACN 000 587 780

SecondDefendant

WESFARMERS GENERAL INSURANCE LTD t/as LUMLEY INSURANCE

ACN 000 036 279

ThirdDefendant

GALLAGHER HAULAGE PTY LTD

ACN 111 043 817

FourthDefendant

REFLECTIONS CLEANING PTY LTD (Receivers and Managers appointed)(in liquidation)

ACN 111 043 817

FifthDefendant

ORDER

Judge:  Refshauge J
Date:  4 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The registration of Gallagher Haulage Pty Ltd be reinstated under s 601AH of the Corporations Act 2001 (Cth).

1. The costs of this application be costs in the cause.

1. The plaintiff, Robert Jason Harding, claims in these proceedings that, on 12 January 2007, he was delivering products of a soft drink manufacturer when the trolley he was using and which was loaded with goods, became stuck in grease and dirt in an area of the shopping centre said to be owned and operated by the first defendant.  Mr Harding alleges that, in attempting to push the trolley through the grease and dirt, he slipped and suffered injury.

1. He commenced proceedings on 25 November 2009 against various corporations said to be responsible for the injury he suffered in ways pleaded in the statement of claim.  The fourth defendant, Gallagher Haulage Pty Ltd, was Mr Harding’s employer, and has been sued by him in that capacity.  It did not deny that relationship, but raised various defences based on the claimed facts that Mr Harding worked for it substantially in New South Wales, whose law, it was said, applied to Mr Harding’s claim.  Gallagher Haulage Pty Ltd has taken an active part in the proceedings since then.

1. The records of the Australian Securities and Investment Commission show, however, that on 7 February 2013, Gallagher Haulage Pty Ltd was deregistered. Deregistration, under section 601AD(1) of the Corporations Act 2001 (Cth), destroys the corporate existence of the company, extinguishing its debts and obligations. See Taylor v Sanders [1937] VLR 62; Re Austral Family Homes Pty Ltd (in liq) (1992) 28 NSWLR 247.

1. Without a corporate existence, the present proceedings cannot be maintained against Gallagher Haulage Pty Ltd, even if any claim successfully made against it were payable under a policy of insurance entered into by the company, and even if the indemnity under such a policy extended to cover the claim actually made in this case.

1. A person aggrieved by the deregistration of a company, however, may apply, under section 601AH of the Corporations Act, to have the company reinstated. Mr Harding, through his counsel, has made such an application. Section 601AH(2) of the Corporations Act provides:

(2)       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.

1. There is a body of jurisprudence about this issue, but I do not need to delve into it in detail.  It seems clear to me that a party who has commenced proceedings against a company which becomes deregistered during the pendency of the proceedings is a person aggrieved.  So much may be discerned from what Barrett J said in Donmastry Pty Ltd v Albarran (as vol liq of Project Management, Architecture, Construction, Interior (PACI) Pty Ltd) (2004) 49 ACSR 745 at 746; [4].  See also Australian Competition and Consumer Commission v Australian Securities and Investment Commission (2000) 34 ACSR 232.

1. Often an insurer will be standing behind a company, and access to that indemnity provided will be an important reason for reinstatement.  The interests of the insurer would not be prejudiced in relation to existing proceedings, for it will have already had notice of the incident the subject of the claim, and of the proceedings, which have been on foot since 2009.  See Kenney v McCann (1992) 7 WAR 329 at 332.

1. There is, in this case, no direct evidence of the fact that an insurer stands behind Gallagher Haulage Pty Ltd.  It does not seem to me that evidence of that fact is determinative, however, as even if there were such a policy, the insurer may deny liability for some reason. 

1. I note that the company does not appear to have been through a winding up.  Where a company has been through such a process, it is suggested, in Michael Murray, Keay’s Insolvency: Personal and Corporate Law and Practice (Lawbook Co, 6th ed, 2008) at 423, that a court will be less inclined to reinstate the company.

1. In the circumstances, however, I am satisfied that it is just that the registration of Gallagher Haulage Pty Ltd be reinstated, and I will so order. 

   I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date:      

Counsel for the plaintiff:  Mr R Montagnino
Solicitor for the plaintiff:  United Legal
Counsel for the first defendant:  Ms S Avery
Solicitor for the first defendant:  DibbsBarker
Counsel for the second defendant:                No appearance
Solicitor for the second defendant:               No appearance
Counsel for the third defendant:                   Mr R Crowe SC
Solicitor for the third defendant:                   DLA Piper Australia
Counsel for the fourth defendant:                 Ms A Gilkes
Solicitor for the fourth defendant:                Moray & Agnew
Counsel for the fifth defendant:  Mr N Kitchin
Solicitor for the fifth defendant:                   Ken Cush and Associates as agent for
  Lee and Lyons Lawyers
Date of hearing:  4 December 2013
Date of judgment:  4 December 2013