Stone v ACN 000 337 940 Pty Ltd - [2008] NSWSC 1058

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 2008

JURISDICTION: Equity Division
Corporations List

JUDGMENT 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 94

PARTIES: John Albert Stone - Plaintiff
ACN 000 337 940 Pty Ltd - Defendant

FILE NUMBER(S): SC 5076/08

COUNSEL: Mr A P Cheshire - Plaintiff
Mr S Ingate - Former Director of Defendant

SOLICITORS: 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…

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.

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Details

Case: [2008] NSWSC 1058
Decision Date: 9 October 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Stone, the plaintiff, brought an application against ACN 000 337 940 Pty Ltd, the defendant, seeking an order that the Australian Securities and Investments Commission (ASIC) reinstate the company's registration. The plaintiff sought to pursue proceedings against the company in the Dust Diseases Tribunal. The primary issue before the court was whether the plaintiff could proceed directly against the insured without the reinstatement of the company's registration. The court held that the plaintiff had not demonstrated that they could proceed directly against the insured.

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.

Orders