(1) Tan v Australian Securities and Investments Commission(2) Comcare re Howard Smith& Patrick Travel Pty Ltd(3) Love v Australian Securities and Investments Commission [2011] NSWSC 58 (21 February 2011)

Last Updated: 27 May 2011

Supreme Court New South Wales

Case Title:	(1) Tan v Australian Securities and Investments Commission(2) Comcare re Howard Smith & Patrick Travel Pty Ltd(3) Love v Australian Securities and Investments Commission
Medium Neutral Citation:	[2011] NSWSC 58
Hearing Date(s):	(1) 31 January 2011(2) 21 February 2011(3) 21 February 2011
Decision Date:	21 February 2011
Jurisdiction:	Equity Division - Corporations List
Before:	Barrett J
Decision:	Reinstatement orders made under Companies (New South Wales) Code
Catchwords:	CORPORATIONS - defunct companies - where company deregistered under Companies (New South Wales) Code - where case made for reinstatement - question as to the legislation under which reinstatement should be ordered - need for law reform
Legislation Cited:	Companies (New South Wales) Code Companies (Application of Laws) Act 1981 Company Law Review Act 1998 (Cth) Corporations Law of New South Wales Corporations (New South Wales) Act 1990 Statute Law (Miscellaneous Provisions) Act 2008 Statute Law (Miscellaneous Provisions) Act 2009
Cases Cited:	Armitage v HXE Ltd [2010] NSWSC 1109 Baird v WJT Howes Investments Pty Ltd [2008] NSWSC 1232; (2008) 222 FLR 76 Best v Yellow Express Carriers Ltd [2004] NSWSC 666 Brown v Hodgkinson [2008] NSWSC 625 CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd [2006] NSWSC 690; [2006] NSWSC 690; (2006) 201 FLR 296 Re Data Tech Communications (Aust) Pty Ltd [2009] NSWSC 402 Foxman v Credex National Australian Trade Exchange Pty Ltd [2007] NSWSC 1422; (2007) 215 FLR 392 GIO General Ltd v Sabko Ltd [2007] NSWSC 251; (2007) 70 NSWLR 743 Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680 Parker v Australian Asbestos Pty Ltd [2002] NSWSC 520; (2002) 169 FLR 227 Shaw v Goodsmith Industries Pty Ltd [2002] NSWSC 406; (2002) 41 ACSR 556 White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; [2006] NSWSC 441; (2006) 200 FLR 125
Texts Cited:
Category:	Principal judgment
Parties:	(1) Donald Yew Kim Tan - Plaintiff Australian Securities and Investments Commission - Defendant (2) Comcare - Plaintiff (3) William Francis Love - Plaintiff Australian Securities and Investments Commission - Defendant
Representation
- Counsel:	Counsel: (1) Mr R Lyne - Plaintiff (2) Mr J Sheller - Plaintiff (3) Ms E Glover - Plaintiff
- Solicitors:	Solicitors: (1) DibbsBarker - Plaintiff (2) Australian Government Solicitor - Plaintiff (3) Marsdens Law Group - Plaintiff
File number(s):	(1) 2010/412939(2) 2011/32447(3) 2010/399297
Publication Restriction:

Judgment

1. In each of these unrelated proceedings, application was made for an order under the Companies (New South Wales) Code directing reinstatement of the registration of a company incorporated under that Code or earlier New South Wales companies legislation and later deregistered under the Code. The date of deregistration was 5 May 1989 in the first case, 13 December 1990 in the second and 18 August 1988 in the third.
   
2. The order sought was made in each case. I indicated that I would publish some brief reasons, as I now do.
   
3. The question of the correct approach, since the enactment of the Corporations Act 2001 (Cth), to cases of this kind concerning companies created and later struck off under pre-January 1991 State legislation has been considered at first instance on a number of occasions. Unfortunately, no clear consensus has been achieved.
   
4. The relevant cases are Shaw v Goodsmith Industries Pty Ltd [2002] NSWSC 406; (2002) 41 ACSR 556, Parker v Australian Asbestos Pty Ltd [2002] NSWSC 520; (2002) 169 FLR 227, City West Water Ltd v Mr D Investments Pty Ltd [2002] VSC 553; (2002) 171 FLR 392, Baird v WJT Howes Investments Pty Ltd [2008] NSWSC 1232; (2008) 222 FLR 76 and Armitage v HXE Ltd [2010] NSWSC 1109.
   
5. In the absence of submissions against the course the court was invited to take on the present applications (that is, that orders directing reinstatement should be made under the Companies (New South Wales) Code ), I considered it appropriate to proceed in that way - which accords with ASIC's Regulatory Guide 83 ("Reinstatement of Companies", paragraph 83.32) and with the last three of the cases just mentioned (as well as Best v Yellow Express Carriers Ltd [2004] NSWSC 666).
   
6. I am bound to say, however, that I have a distinct discomfort about continuing resort to the Companies (New South Wales) Code , given that its applicability and availability rest solely on the insubstantial foundation of s 85 of the Corporations (New South Wales) Act 1990 (NSW). The Companies (New South Wales) Code is otherwise not in force following repeal of the Companies (Application of Laws) Act 1981 (NSW) by the Statute Law (Miscellaneous Provisions) Act 2008 (NSW) which was itself repealed by the Statute Law (Miscellaneous Provisions) Act 2009 (NSW).
   
7. As regards a company deregistered under New South Wales companies legislation before 1 January 1991, a combination of:
   

(a) transitional provisions that came into effect upon the creation of the Corporations Law of New South Wales on 1 January 1991 by the Corporations (New South Wales) Act 1990 (NSW);

(b) insertion into the Corporations Law of New South Wales by the Company Law Review Act 1998 (Cth) of not only reinstatement provisions corresponding with those in the present s 601AH but also the particular transitional provision that became s 1362CH;

(c) non-inclusion of that s 1362CH in the Corporations Act 2001(Cth); and

(d) the wide-ranging but sometimes very generally and imprecisely expressed transitional provisions now in force through Division 6 of Part 10.1 of the Corporations Act 2001 (Cth)

does not seem to provide a basis for a conclusion that reinstatement of registration may be dealt with by the court and by ASIC under s 601AH of the present Corporations Act .

8. It is in my opinion desirable that Parliament enact legislation dealing in a clear and concise way with reinstatement of the registration of a company either deregistered or dissolved before 1 January 1991 under State or Territory legislation then in force.
   
9. Such cases arise fairly frequently. Identification of the correct basis on which to order and effect reinstatement is not something that is remote from practical affairs.
   
10. One of the applications to which these reasons relate concerned a company deregistered before 1 January 1991 apparently without the knowledge of its directors and shareholders which, after it had ceased to exist, purported to become the registered proprietor of land and to mortgage that land to a financial institution as security for moneys purportedly borrowed. The second application concerned the regrettably common case of a person with an asbestos induced illness who wished to see a former employer brought back into existence so that proceedings in which damages for bodily injury were sought might be properly and fully constituted. The company the subject of the third case was deregistered at its own request in circumstances where its ownership of a parcel of land was simply overlooked.
    
11. If law reform is undertaken in this area, it will usefully extend to other uncertainties arising from the Commonwealth legislation with respect to the recreation of deregistered companies: see White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441; (2006) 200 FLR 125, CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd

[2006] NSWSC 690; (2006) 201 FLR 296, GIO General Ltd v Sabko Ltd [2007] NSWSC 251; (2007) 70 NSWLR 743, Foxman v Credex National Australian Trade Exchange Pty Ltd [2007] NSWSC 1422; (2007) 215 FLR 392, Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680, Brown v Hodgkinson [2008] NSWSC 625 and Re Data Tech Communications (Aust) Pty Ltd [2009] NSWSC 402.