Ryan v McDonald's Australia Limited (No 2)
[2018] NSWSC 150
•20 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: Ryan v McDonald’s Australia Limited (No 2) [2018] NSWSC 150 Hearing dates: 20 February 2018 Date of orders: 20 February 2018 Decision date: 20 February 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms of orders (1) to (3) of the motion filed on 13 February 2018.
Catchwords: PROCEDURE – notice of motion – order sought under s 601AH of the Corporations Act 2001 (Cth) – orders seeking to have a company registration reinstated – plaintiff aggrieved by its deregistration – orders sought made Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Ryan v McDonalds Australia Ltd [2017] NSWSC 1508
Shannon Anne Ryan by her tutor Sharon Lee Ryan v McDonald’s Australia Limited (Supreme Court (NSW), Lonergan J, 6 October 2017, unrep)Category: Procedural and other rulings Parties: Shannon Anne Ryan by her tutor Sharon Lee Ryan (Plaintiff)
McDonald’s Australia Limited (First Defendant)
Ourem Pty Ltd trading as McDonald’s Caringbah (Second Defendant)Representation: Counsel:
Solicitors:
Mr A Chen (Plaintiff)
Pryor Tzannes & Wallis (Plaintiff)
Sparke Helmore (First Defendant)
File Number(s): 2017/284119 Publication restriction: Nil
EX TEMPORE Judgment
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HER HONOUR: This is an application which comes forward by notice of motion filed by the plaintiff, Ms Ryan, by her tutor Sharon Lee Ryan, on 13 February. Thereby orders are sought in respect of the second defendant, Ourem Pty Limited, under s 601AH of the Corporations Act 2001 (Cth) to have the registration of that company reinstated. Pursuant to s 601AH(a)(i), the plaintiff being a person aggrieved by its deregistration.
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The application is supported by affidavits sworn by one of Ms Ryan's solicitors, Ms Constantopedos, in February 2018. Those affidavits establish that the proceedings which were originally commenced in the District Court in 2002, were in 2017 transferred to this Court. It was in November 2017 that Ms Ryan learned from the first defendant, McDonald’s Australia Limited, that the second defendant, Ourem had been deregistered several years after the proceedings were commenced in 2002. ASIC records in evidence establish that this, in fact, occurred.
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It is in those circumstances that steps were taken to have Ourem's registration reinstated, including by advice given to ASIC, of the application to this Court.
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In evidence is correspondence received from ASIC on 19 February 2018 by Ms Ryan’s solicitors, in which ASIC indicated that it would not oppose the application for reinstatement, if the following conditions are satisfied:
“1. The order sought for reinstatement is in terms of section 601AH(2) of the Act, requiring ASIC to reinstate the registration of the company;
2. The applicant notifies the former officeholder/s of the company of this application. If unable to be served, then upon reinstatement the company be wound up and a Liquidator be appointed;
3. The Court order is lodged with ASIC (see notes below) so that ASIC can reinstate the company.”
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As to points (2) and (3), an undertaking has been given to the Court by Ms Ryan, to take the steps necessary to give effect to those conditions.
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The orders otherwise sought, I am satisfied, accord with the first condition, namely that the order sought is in terms of s 601AH(2).
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In those circumstances and McDonald's not wishing to be heard on the application, I am satisfied that the Court's discretion to reinstate Ourem's registration should be exercised, that being just in the circumstances which are before the Court.
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In making that observation I have taken into account the matters dealt with in the judgments given by Lonergan J on 6 October and 8 November 2017 which recount the circumstances in which Ms Ryan came to be injured; the events which led to the bringing of the proceedings in the District Court; and how it was that the transfer of the proceedings to this Court was then ordered: see Shannon Anne Ryan by her tutor Sharon Lee Ryan v McDonald’s Australia Limited (Supreme Court (NSW), Lonergan J, 6 October 2017, unrep) and Ryan v McDonalds Australia Ltd [2017] NSWSC 1508.
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For these reasons, I make orders in terms of orders (1) to (3) of the motion filed on 13 February 2018.
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Decision last updated: 21 February 2018
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