Reported Decision:
68 ACSR 242
New South Wales
Supreme Court
CITATION: Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058 HEARING DATE(S): 07/10/08
JUDGMENT DATE :
9 October 2008JURISDICTION: Equity Division
Corporations ListJUDGMENT OF: Barrett J DECISION: Proceedings adjourned. CATCHWORDS: CORPORATIONS - deregistered company - application for order that ASIC reinstate registration - applicant wishes to pursue proceedings against company in Dust Diseases Tribunal - whether plaintiff may proceed direct against insured without reinstatement of company's registration - not shown that he can - various factors relevant to whether reinstatement "just" - company in liquidation immediately before deregistration - need to re-install liquidator - former liquidator should be appointed unless unable or unwilling to act LEGISLATION CITED: Corporations Act 2001 (Cth), ss 601AG, 601AH(2), 601AH(3). 601AH(5) CATEGORY: Principal judgment CASES CITED: Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148
Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; (2000) 34 ACSR 232
Del Borrello v Australian Securities and Investments Commission [2008] WASC 48
Gorman v Australian Securities and Investments Commission [2008] FCA 962
Hutchinson v Australian Securities and Investments Commission [2001] VSC 465; (2001) 40 ACSR 198
J P Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433; (2008) 65 ACSR 636
Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; (2003) 59 NSWLR 15
Pagnon v WorkCover Queensland [2000] QCA 421; [2001] 2 QdR 492
Ramantanis v G & M Excavations Pty Ltd [2003] NSWSC 250; (2004) 22 ACLC 22
Suncorp Metway Insurance Ltd v Clonmel Pty Ltd [2000] QSC 135; [2001] 2 QdR 94PARTIES: John Albert Stone - Plaintiff
ACN 000 337 940 Pty Ltd - DefendantFILE NUMBER(S): SC 5076/08 COUNSEL: Mr A P Cheshire - Plaintiff
Mr S Ingate - Former Director of DefendantSOLICITORS: Turner Freeman - Plaintiff
Ingate & Associates - Former Director of Defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST
BARRETT J
THURSDAY 9 OCTOBER 2008
5076/08 JOHN ALBERT STONE v ACN 000 337 940 PTY LTD
JUDGMENT
1 The plaintiff seeks an order under s 601AH(2) of the Corporations Act 2001 (Cth) directing Australian Securities and Investments Commission to reinstate the registration of the company formerly named Rigby Jones Pty Ltd which, in 2002, changed its name to correspond with its Australian Company Number (with the addition of “Pty Ltd”). It will be convenient to refer to it as “Rigby Jones”.
2 The application is opposed by Mr Ingate who was the sole director of Rigby Jones at the time of its deregistration.
3 Rigby Jones was deregistered on 20 May 2006 pursuant to s 509 of the Corporations Act upon completion of a members voluntary winding up.
4 The plaintiff is a former employee of Rigby Jones. By statement of claim filed on 13 June 2008, he commenced (or purported to commence) proceedings in the Dust…
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- Case
- [2008] NSWSC 1058
- Decision Date
CaseChat Overview and Summary
The court examined the relevant factors to determine whether reinstatement of the company's registration was "just" in the circumstances. It found that the company was in liquidation immediately before its deregistration. Consequently, the court considered it appropriate to reinstall the liquidator. The court concluded that the former liquidator should be appointed to the role, unless they were unable or unwilling to act. The court's decision hinged on the need to ensure that the liquidator's role was effectively reinstated to facilitate the proper conduct of any proceedings against the insured.
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