Sodexo Australia Pty Limited v Australian Securities and Investments Commission
[2024] WASC 265
•24 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SODEXO AUSTRALIA PTY LIMITED -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2024] WASC 265
CORAM: COBBY J
HEARD: ON THE PAPERS
DELIVERED : 24 JULY 2024
FILE NO/S: COR 95 of 2024
BETWEEN: SODEXO AUSTRALIA PTY LIMITED
Plaintiff
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Defendant
Catchwords:
Corporations law - Application to reinstate deregistered company - Whether plaintiff is a 'person aggrieved' - Whether 'just' to reinstate deregistered company - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 601AD(2), s 601 AE(2), s 601AH (1), s 601AH(2)
Result:
Order for reinstatement made
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Fairweather Litigation |
| Defendant | : | No appearance |
Case(s) referred to in decision(s):
The Bell Group Limited v Australian Securities and Investments Commission [2018] FCA 884; (2018) 358 ALR 624
Zare v Australian Securities and Investment Commission [2024] WASC 82
COBBY J:
The plaintiff applies for an order that the Australian Securities and Investment Commission (ASIC) reinstate the registration of Altys Multi-Services Pty Ltd (ACN 097 636 470) pursuant to s 601AH(2) of the Corporations Act 2001 (Cth).
The plaintiff was the sole shareholder in Altys prior to its deregistration on 20 April 2009. Altys was deregistered pursuant to s 601AA,[1] which provides for the voluntary deregistration of non-trading corporations with assets of less than $1,000 and no outstanding liabilities.
[1] All references to legislation are to the provisions of the Corporations Act 2001 unless otherwise stated.
ASIC's Moneysmart website shows that $52,674.10 is held as unclaimed money in Altys' name. It seems likely that amount represents a tax refund to which Altys became entitled, but did not claim, prior to its deregistration.
The plaintiff seeks the reinstatement of Altys to enable Altys to claim that amount and to distribute it to the plaintiff by way of dividend. ASIC's Unclaimed Money unit has declined a request that the amount simply be paid to the plaintiff and ASIC has also declined to reinstate Altys administratively pursuant to s 601AH(1).
The principles regarding an application for reinstatement of a deregistered corporation under s 601AH(2) were recently summarised by Hill J in Zare v Australian Securities and Investment Commission,[2] which summary I gratefully adopt without repeating here.
[2] Zare v Australian Securities and Investment Commission [2024] WASC 82 [5] - [10].
I find that the plaintiff, as the sole shareholder in Altys prior to its deregistration, is relevantly 'aggrieved' by the deregistration of Altys, because the assets of the plaintiff have been reduced by $52,674.10, being the diminution in the net value of the shares in Altys at the time of its deregistration arising from Altys' failure to secure payment of that amount.
There is a suggestion that the Australian Taxation Office may have paid the $52,674.10 to ASIC after Altys' deregistration. That does not affect the position, because the assets of Altys at the time of deregistration included the entitlement to receive the amount in question, but even if that was not the case, a person may be aggrieved as a result of events which occur after the deregistration of the company in question.[3]
[3] The Bell Group Limited v Australian Securities and Investments Commission [2018] FCA 884; (2018) 358 ALR 624 [49].
Further, as identified by Hill J in Zare,[4] there is no temporal limitation in the term 'person aggrieved', such that there need only be a causal link between the grievance and the deregistration of the company.
[4] Zare v Australian Securities and Investment Commission [9].
I am satisfied that the application has been served on ASIC, and that ASIC does not wish to be heard in opposition to the application.
The plaintiff proposes that the directors of Altys at the time of its deregistration be removed and replaced by a person nominated by the plaintiff, who is willing to accept that appointment. As the plaintiff will be the sole shareholder in Altys if the application is granted, and I am satisfied that the former directors of Altys do not oppose the application, I consider that it is open to the court to order the reinstatement of Altys.
Further, Altys has no liabilities, and it would seem that its only asset upon reinstatement would be the amount held by ASIC. The reinstatement of Altys would therefore enable the plaintiff to realise the full value of the shares in its subsidiary.
In determining the application, I have had regard to s 601AD(2), to the effect that Altys' assets vested in ASIC upon its deregistration, and s 601AE(2), which entitles ASIC to deal with the unclaimed amount as it sees fit, including by applying that amount to defray its expenses.[5]
[5] See s 601AE(2)(b)(i).
As ASIC suggested that the plaintiff might need to apply for the reinstatement of Altys in the course of communicating that it was not satisfied that Altys should be reinstated pursuant to s 601AH(1) and has indicated that it does not wish to be heard in relation to the application, I have inferred that ASIC does not wish to retain the benefit of the unpaid amount.
The orders proposed by the plaintiff include provision for the payment to ASIC of any fees outstanding and payable in respect of the registration or reinstatement of Altys.
In the circumstances, I accept that there is a benefit to the plaintiff in having Altys reinstated, and that doing so is unlikely to cause any detriment to any third party, such that it is 'just' to order its reinstatement.
I will accordingly make orders substantially in terms of the plaintiff's minute of proposed orders filed 25 June 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
24 JULY 2024
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