Allianz Australia Insurance Ltd v Viksne

Salient facts

1. Marynen Manufacturing was registered in New South Wales on 27 June 1969. The company was deregistered on 9 July 1990. The ASIC extract tendered by the plaintiff did not identify the directors of the company at the time of deregistration, or the reason for the company's deregistration. However, the ASIC extract did refer to records relating to the company that are available on microfiche and that were received by ASIC on 31 December 1990. As referred to later in these reasons, the plaintiff's solicitor gave evidence on 20 October 2023 that she wrote to the directors of Marynen Manufacturing on 26 September 2023 notifying them of these proceedings. I infer that the plaintiff's solicitors reviewed the microfiche records in order to identify the persons to whom she wrote those letters as the directors of Marynen Manufacturing at the time of its deregistration, and that she satisfied herself that those persons are alive and that the addresses to which those letters were sent are the last known addresses of those persons. I draw those inferences because the evidence does not reveal any other potential source of information from which the solicitor might have identified those directors, and it would have been a futile exercise to send those letters if she had not taken each of the steps that I have inferred.
2. Inmart Investments was registered in New South Wales on 1 June 1959. The company was initially known as Rendell Investments Pty Ltd, before changing its name to Cabeng-Rendell Pty Ltd, and was then known as Inmart Investments Pty Ltd from about 22 September 1976 until the date of its deregistration on 10 July 1999. According to an ASIC extract for Inmart Investments that was annexed to the affidavit of the plaintiff's solicitor sworn on 17 August 2023, the company was deregistered pursuant to "SECTION 601AB". I assume that this is a reference to s 601AB of the Corporations Law, which was in force as at 10 July 1999, as discussed further below. At the time of its deregistration, Inmart Investments had two directors - Mr Emmanuel Althaus and Mr Joseph Isaac Gutnick.
3. In 2023, the plaintiff commenced proceedings number 2023/159330 in the Dust Diseases Tribunal of New South Wales at Sydney against various defendants, including Inmart Investments (the third defendant in those proceedings) and Marynen Manufacturing (the fourth defendant in those proceedings) (the DDT proceedings).
4. According to the plaintiff's Amended Statement of Claim filed in the DDT proceedings on 24 May 2023, the plaintiff was employed by Marynen Manufacturing as a sheet metal worker during the periods from about 1971 to 1974 and 1981 to 1983, and was employed by Inmart Investments as a sheet metal worker during the period from about 1974 to 1977. The plaintiff claims to have been exposed to, and to have inhaled, asbestos dust and fibre during his employment with both Marynen Manufacturing and Inmart Investments. The plaintiff claims that his exposure resulted from the negligence, breach of statutory duty, and/or breach of contract on the part of, relevantly, Marynen Manufacturing and Inmart Investments. The plaintiff claims to have suffered pleural plaques, asbestos-related pleural disease, asbestos related diffuse pleural thickening, and shock, and claims damages and out of pocket expenses against Marynen Manufacturing, Inmart Investments, and the other defendants.
5. A report of Dr Anthony Johnson records the plaintiff's history of occupational exposure to asbestos, including during his periods of employment with Marynen Manufacturing and Inmart Investments (then known as Cabeng-Rendall). Dr Johnson's report describes occupational exposures during a total period from between about 1960 to 1999, and states that the plaintiff does not recall any occupational exposure after 1999 and does not recall any non-occupational exposure. Dr Johnson opined that a computerised tomography scan of the plaintiff's chest revealed typical features of pleural plaques and diffuse pleural thickening, and recorded that the plaintiff has symptoms of impaired lung functioning arising from the diffuse pleural thickening. Dr Johnson opined that the plaintiff would require ongoing monitoring for any further deterioration in the diffuse pleural thickening or development of other asbestos-related disease.
6. I note that there is evidence from the plaintiff's solicitor to the effect that some of the employment dates referred to in Dr Johnson's report are incorrect, that the plaintiff has subsequently clarified and corrected the approximate dates of his employment with each employer, and that the correct dates are those pleaded in the Amended Statement of Claim filed in the DDT proceedings to which I have referred above.
7. William Roberts Lawyers acts for the State Insurance Regulatory Authority (SIRA) in relation to claims on the Insurers' Guarantee Fund (IGF) which is under the direction, control and management of SIRA. The IGF is established under s 227 of the Workers Compensation Act 1987 (NSW), and funds the payment of workers' compensation claims relating to policies of insurance that were issued by insurers who subsequently became insolvent. That Act empowers SIRA to finalise claims against insolvent insurers (s 231), and to enable the IGF "to make reimbursement in respect of the prior satisfaction of claims either by the employer or the liquidator of the insolvent insurer" (s 232). [1] Where an insolvent insurer has been dissolved, s 236(1) provides that compensation which would have been payable but for such dissolution "shall continue and be paid out of the [IGF] by the [SIRA]." Section 236(2) preserves the entitlement to payment out of the IGF by persons who would, but for the insurer's dissolution, have been entitled to payment under a policy. Persons so entitled may make a claim against SIRA, as manager of the IGF, per s 236(3) "in respect of an entitlement to payment of an amount under [s 236(2)]". SIRA is empowered under s 236(4) to deal with and finalise such claims. [2]
8. On 8 April 2022 and 17 October 2023, William Roberts Lawyers advised the plaintiff's solicitors that, according to the IGF's records, Marynen Manufacturing held a workers compensation insurance policy with National Employers Mutual General Insurance Association Limited (NEM) during at least part of the period in which the plaintiff has instructed his solicitors that he was employed by Marynen Manufacturing. William Roberts Lawyers informed the plaintiff's solicitors that NEM became insolvent and was deregistered. William Roberts Lawyers reserved the IGF's position in relation to indemnifying the plaintiff, pending proof of the plaintiff's employment with Marynen Manufacturing and the period of that employment.
9. On 9 November 2022, William Roberts Lawyers advised the plaintiff's solicitors that, according to the IGF's records, Inmart Investments (under its former name, Cabeng-Rendell) held a workers compensation insurance policy with Bishopsgate Insurance Australia Limited (Bishopsgate) during the period from 1974 to 1977, and that Bishopsgate is an insolvent insurer. William Roberts Lawyers reserved the IGF's position in relation to indemnifying the plaintiff, pending proof of the plaintiff's employment with Inmart Investments and of the period of that employment.
10. The plaintiff's solicitor has given evidence that, if the plaintiff is successful against Marynen Manufacturing and/or Inmart Investments in the DDT proceedings, he intends to enforce his rights to payment out of the IGF. The plaintiff does not intend to seek to enforce any judgment in his favour against any property of Marynen Manufacturing or Inmart Investments. That is reflected in the orders sought by the plaintiff, as referred to below.

Relief sought in relation to Marynen Manufacturing

1. The plaintiff seeks the following relief in prayers 1 to 6 of the originating process filed on 17 August 2023: "1. An order pursuant to s.539(4)(d) of the Code that the time for the plaintiff to make an application under s.459(6) of the Code for the reinstatement of Marynen Manufacturing Pty Ltd (ACN 000 700 032) be extended up to and including 24 May 2023. 2. Order pursuant to s.459(6) of the Code that the registration of Marynen Manufacturing Pty Ltd (ACN 000 700 032) be reinstated. 3. An order that upon reinstatement of its registration, Marynen Manufacturing Pty Ltd (ACN 000 700 032) be wound up pursuant to the provisions of s.461(1)(k) of the Corporations Act 2001 (Cth) and that Andrew John Scott and William Anthony Honner of PricewaterhouseCoopers, One International Towers, Sydney, Watermans Quay, Barangaroo NSW 2000 be appointed as liquidators. 4. An order that upon reinstatement of the registration of Marynen Manufacturing Pty Ltd (ACN 000 700 032), the plaintiff have leave nunc pro tunc to commence and proceed with the Dust Diseases Tribunal proceedings numbered 2023/00159330 at Sydney against Marynen Manufacturing Pty Ltd (ACN 000 700 032). 5. An order that no step to enforce any judgment or verdict obtained in the Dust Diseases Tribunal of NSW in the proceedings numbered 2023/00159330 at Sydney shall be taken by the plaintiff against Marynen Manufacturing Pty Ltd (ACN 000 700 032), otherwise than by resort to the indemnity provided by the Insurers' Guarantee Fund established under s.227 of the Workers Compensation Act, without the further leave of the Court. 6. An order that the costs of this application and these proceedings be costs in the proceedings numbered 2022/69130 in the Dust Diseases Tribunal of NSW at Sydney against Marynen Manufacturing Pty Ltd (ACN 000 700 032)."
2. I infer that the date of 24 May 2023 in prayer 1 of the originating process is a typographical error, and that the date is intended to read 17 August 2023.
3. The evidence relied on by the plaintiff includes a consent signed by Mr Andrew John Scott and Mr William Honner of PricewaterhouseCoopers to be appointed by the Court, and to act as the joint liquidators, of Inmart Investments.
4. The plaintiff's solicitor has notified ASIC and William Roberts Lawyers of these proceedings. As I have already mentioned, the plaintiff's solicitor has also sent notice of these proceedings to two persons whom the plaintiff's solicitor has identified as the former directors of Marynen Manufacturing. In her affidavit affirmed on 20 October 2023, the plaintiff's solicitor deposed that those former directors have not responded to her correspondence. ASIC advised the plaintiff's solicitors that it does not oppose the application. No other person sought to be heard in relation to the application.

Consideration and determination of the application relating to Marynen Manufacturing

1. As the Court of Appeal explained in In the matter of Richards Contracting Co Management Pty Ltd, [3] the Code came into force by virtue of the provisions of the Companies Act 1981 (Cth) as applicable as a law of New South Wales by the operation of the Companies (Application of Laws) Act 1981 (NSW). [4]
2. The Code applied in New South Wales until the commencement of the Corporations (New South Wales) Act 1990 (NSW) on 1 January 1991, [5] which provided that the Corporations Law set out in s 82 of the Corporations Act 1989 (Cth) applied as a law of New South Wales (the Corporations Law). [6]
3. Thus, the Code was in force at the time that Marynen Manufacturing was deregistered on 9 July 1990.
4. Section 459 of the Code gave the Commission the power to register defunct companies. The effect of deregistration was that the company was dissolved. [7]
5. It is implicit in the plaintiff's submissions in relation to the application to reinstate the registration of Marynen Manufacturing, and in ASIC's correspondence with the plaintiff's solicitors concerning that application, that Marynen Manufacturing was deregistered pursuant to s 459 of the Code. I proceed on that basis, noting that the microfiche records referred to at [5] above have been available to the plaintiff's solicitors, and to ASIC, to satisfy themselves of the correctness of that contention.
6. Section 459(6) of the Code provided: "(6) If a person is aggrieved by the cancellation of the registration of a company, the Court, on an application made by the person at any time within 15 years after the cancellation, may, if satisfied that the company was, at the time of the cancellation, carrying on business or in operation or otherwise satisfied that it is just that the registration of the company be reinstated, order the reinstatement of the registration of the company and, upon an office copy of the order being lodged with the Commission, the company shall be deemed to have continued in existence as if its registration had not been cancelled, and the Court may by the order give such directions and make such provisions (including directions and provisions relating to the re-transfer of property vested in the Commission under section 461) as seem just for placing the company and all other persons in the same position as nearly as may be as if the registration had not been cancelled."
7. Section s 539(4)(d) of the Code provided: "(4) Subject to the following provisions of this section and without limiting the generality of any other provision of this Code, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: … (d) an order extending the period for doing any act, matter or thing or instituting or taking and proceeding under this Code or in relation to a corporation (including an order extending a period where the period concerned expired before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding."
8. On 1 July 2008, the Companies (Application of Laws) Act 1981 (NSW) - which established the Code in New South Wales - was repealed by s 4 and Schedule 4 of the Statute Law (Miscellaneous Provisions) Act 2008 (NSW). [8] As the Court of Appeal held in Richards, any accrued right of the plaintiff as at 1 July 2008 to apply to the Court for an extension of time under s 539(4)(d) of the Code for the making of an application under s 459(6) of the Code, and to apply to the Court under s 459(6) of the Code to have the registration of Marynen Manufacturing reinstated, has been preserved by s 30(1)(c) of the Interpretation Act 1987 (NSW). [9]
9. In the present case, taking notice of the notoriously long time periods of time that may elapse before a person who has been exposed to asbestos may experience the symptoms of any impairment to their health resulting from such exposure, I am satisfied that the plaintiff is a person who was aggrieved by the deregistration of Marynen Manufacturing at the time of its deregistration, or at least as at 1 July 2008. Although he may not yet have been aware of his impairment as at 1 July 2008, the plaintiff had a claim against the company at that time, and the company's deregistration has affected his legal right to pursue that claim by precluding him from validly commencing the DDT proceedings against Marynen Manufacturing. Upon being lodged with ASIC, an order under s 459(6) of the Code has the effect that the company is deemed to have continued in existence as if its registration had not been cancelled. Accordingly, an order for reinstatement of the registration of Marynen Manufacturing will validate the commencement of the DDT proceedings. [10] I am therefore satisfied that the plaintiff had an accrued right as at 1 July 2008 to apply to the Court under ss 459(6) and 539(4)(d) of the Code for an order reinstating the registration of Marynen Manufacturing, and for an extension of time to make that application. Accordingly, the Court has power to grant an extension of time under s 539(4)(d) and to order the reinstatement of the company under s 459(6) of the Code.
10. I am satisfied that it is just to grant that extension of time and to order that the registration of Marynen Manufacturing be reinstated, taking into account the following matters: [11] 1. the purpose of the reinstatement is to enable the plaintiff to make a claim for payment out of the IGF in respect of his claim against Marynen Manufacturing in the DDT proceedings, in circumstances where his former employer's insurer is an insolvent insurer that has been deregistered; 2. the only route for the plaintiff to prosecute his claims in the DDT proceedings insofar as they concern Marynen Manufacturing is to proceed against that company and, if that company's liability is established in the DDT proceedings, to make a claim against SIRA (as the manager of the IGF) for compensation pursuant to ss 231-236 of the Workers Compensation Act; [12] 3. restoring the ability of the plaintiff to make such a claim in respect of the injuries that he claims to have suffered as a result of occupational asbestos exposure - including during the period of his employment with Marynen Manufacturing - is in the public interest; 4. no person is likely to be prejudiced by the reinstatement, given that the company will immediately be placed into liquidation, liquidators will be appointed, and the plaintiff does not intend to make any claim against any property of the company; and 5. no person has sought to be heard against the reinstatement of the registration of the company.

Relief sought in relation to Inmart Investments

1. As I have already mentioned, the plaintiff originally sought an order for reinstatement of Inmart Investments under s 459(6) of the Companies (New South Wales) Code 1981 (NSW). After correspondence with ASIC, the plaintiff amended its originating process on 6 September 2023 to seek that order under s 601AH of the Corporations Act. At the hearings on 25 September 2023 and 23 October 2023, the plaintiff sought orders in the following terms: "1. Pursuant to s.601AH(3) of the Corporations Act 2001 (Cth) (the Act) the time for the plaintiff to make an application under s.601AH(2) of the Act for the reinstatement of Inmart Investments Pty Ltd (ACN 000 269 385) is extended up to and including 24 May 2023. 2. Pursuant to s.601AH(2) of the Act, the registration of Inmart Investments Pty Ltd (ACN 000 269 385) be reinstated. 3. Immediately upon reinstatement of its registration, Inmart Investments Pty Ltd (ACN 000 269 385) be wound up pursuant to the provisions of s.461(1)(k) of the Corporations Act 2001 (Cth) and Andrew John Scott of PricewaterhouseCoopers, One International Towers, Sydney, Watermans Quay, Barangaroo, Sydney in the State of New South Wales be appointed liquidator of the Company. 4. Immediately upon reinstatement of the registration of Inmart Investments Pty Ltd (ACN 000 269 385), the plaintiff has leave nunc pro tunc to commence and proceed with the Dust Diseases Tribunal of New South Wales proceedings numbered 2023/159330 at Sydney against Inmart Investments Pty Ltd (ACN 000 269 385). 5. No step to enforce any judgment or verdict obtained in the Dust Diseases Tribunal of New South Wales in the proceedings numbered DDT 2023/159330 at Sydney shall be taken by the plaintiff against Inmart Investments Pty Ltd (ACN 000 269 385), otherwise than by resort to indemnity provided by the IGF established under s.227 of the Workers Compensation Act 1987 (NSW), without the further leave of the Court. 6. The costs of this application be costs in the proceedings numbered DDT 2023/159330 at Sydney in the Dust Diseases Tribunal of New South Wales."
2. I infer that the date of 24 May 2023 in prayer 1 of the originating process is a typographical error, and that the date is intended to read 6 September 2023, being the date on which the amended originating process was filed.
3. The evidence relied on by the plaintiff includes a consent signed by Mr Andrew John Scott of PricewaterhouseCoopers to be appointed by the Court, and to act as the liquidator, of Inmart Investments.
4. The plaintiff's solicitor has notified ASIC, William Roberts Lawyers, and the former directors of Inmart Investments of these proceedings. ASIC advised the plaintiff's solicitors that it does not oppose the application. No other person sought to be heard in relation to the application. The former directors did not respond to the correspondence from the plaintiff's solicitors.
5. In the written submission received from counsel for the plaintiff on the afternoon of 24 October 2023, counsel submitted that the source of the Court's power to reinstate the registration of Inmart Investments was s 574(3) of the Corporations Law, and that the plaintiff's right to apply to reinstate the registration of the company under that section has been preserved by s 85 of the Corporations Act 1989 (Cth) and s 30(1) of the Interpretation Act 1987 (NSW). Counsel foreshadowed a further amendment to the amended originating process to refer to those statutory provisions. For the reasons explained below, I respectfully disagree with counsel's analysis, and I have concluded that the Court has power under s 601AH of the Corporations Act to reinstate the registration of Inmart Investments.

Consideration and determination of the application relating to Inmart Investments

1. The Corporations Law was in force at the time of the deregistration of Inmart Investments on 10 July 1999. [13] Pursuant to ss 1362CA and 1362CB of the Corporations Law, [14] Inmart Investments was taken to have been registered under Division 2 of Part 2.2 of the Corporations Law. As I have mentioned earlier in these reasons, the ASIC extract for Inmart Investments records that the company was deregistered pursuant to s 601AB. As at 10 July 1999, s 601AB of the Corporations Law provided (emphasis in original): "601AB Deregistration - ASC initiated Circumstances in which the [Australian Securities Commission (ASC), as ASIC then was] may deregister (1) The ASC may decide to deregister a company if: (a) the company's annual return is at least 6 months late; and (b) the company has not lodged any other documents under this Law in the last 18 months; and (c) the ASC has no reason to believe that the company is carrying on business. (2) The ASC may also decide to deregister a company if the company is being wound up and the ASC has reason to believe that: (a) the liquidator is no longer acting; or (b) the company's affairs have been fully wound up and a return that the liquidator should have lodged is at least 6 months late; or (c) the company's affairs have been fully wound up under Part 5.4 and the company has no property or not enough property to cover the costs of obtaining a Court order for the company's deregistration. Deregistration procedure (3) If the ASC decides to deregister a company under this section, it must give notice of the proposed deregistration: (a) to the company; and (b) to the company's liquidator (if any); and (c) to the company's directors; and (d) on the ASC database; an (e) in the Gazette. When 2 months have passed since the Gazette notice, the ASC may deregister the company. (4) The ASC does not have to give a person notice under subsection (3) if the ASC does not have the necessary information about the person's identity or address. (5) The ASC must give notice of the deregistration to everyone who was notified of the proposed deregistration under paragraph (3)(b) or (c)."
2. Section 601AH of the Corporations Law provided (notes omitted; emphasis in original): "601AH Reinstatement Reinstatement by ASC (1) The ASC may reinstate the registration of a company if the ASC is satisfied that the company should not have been deregistered. Reinstatement by Court (2) The Court may make an order that the ASC reinstate the registration of a company if: (a) an application for reinstatement is made to the Court by: (i) a person aggrieved by the deregistration; or (ii) a former liquidator of the company; and (b) the Court is satisfied that it is just that the company's registration be reinstated. (3) If the Court makes an order under subsection (2), it may: (a) validate anything done between the deregistration of the company and its reinstatement; and (b) make any other order it considers appropriate ASC to give notice of reinstatement (4) The ASC must give notice of a reinstatement in the Gazette. If the ASC exercises its power under subsection (1) in response to an application by a person, the ASC must also give notice of the reinstatement to the applicant. Effect of reinstatement (5) If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from time to time when the ASC or the Court reinstates the company. Any property of the company that is still vested in the ASC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim."
3. Sections 601AB and 601AH had been introduced into the Corporations Law by Schedule 1 of the Company Law Review Act 1998 (Cth), which commenced on 1 July 1998. Section 574 of the Corporations Law was repealed at that time and replaced by s 601AH. [15] Thus, s 574 had ceased to apply by the time Inmart Investments was deregistered on 10 July 1999. Any person aggrieved by that company's deregistration under s 601AB of the Corporations Law had a right to apply to the Court for a reinstatement order under s 601AH of the Corporations Law.
4. As counsel for the plaintiff submitted, s 601AH of the Corporations Act, which commenced on 15 July 2001, [16] is in relevantly identical terms to s 601AH of the Corporations Law, with references to ASIC being substituted for references to its predecessor, the ASC.
5. Section 1400 of the Corporations Act relevantly provides (emphases in original): "1400 Creation of equivalent rights and liabilities to those that existed before the commencement under carried over provisions of the old corporations legislation (1) Subject to subsection (4), this section applies in relation to a right or liability (the pre-commencement right or liability), whether civil or criminal, that: (a) was: (i) acquired, accrued or incurred under a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and (ii) in existence immediately before the commencement; or (b) … However, this section does not apply to a right or liability under an order made by a court before the commencement. (2) On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre-commencement right or liability, under the corresponding provision of the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability). …"
6. The term "old corporations legislation" is relevantly defined in s 1371 of the Corporations Act as meaning the Corporations Law that applied in New South Wales, as in force prior to the commencement of the Corporations Act on 15 July 2001. The term "carried over provision" refers to a provision of the Corporations Law as in force immediately before 15 July 2001 that corresponds to a provision of the Corporations Act. Section 601AH of the Corporations Law is a carried over provision because it corresponds to s 601AH of the Corporations Act.
7. For present purposes, the effect of ss 1400(1) and (2) of the Corporations Act is that, if the plaintiff had an accrued right to apply for reinstatement of the registration of Inmart Investments under s 601AH of the Corporations Law immediately prior to the commencement of the Corporations Act on 15 July 2001, then he has acquired a new, equivalent right under s 601AH of the Corporations Act.
8. Again, taking notice of the notoriously long time periods of time that may elapse before a person who has been exposed to asbestos may experience the symptoms of any impairment to their health resulting from such exposure, I am satisfied that the plaintiff is a person who was aggrieved by the deregistration of Inmart Investments as at 15 July 2001. Although he may not have been aware of his impairment at that time, the plaintiff had a claim against Inmart Investments in respect of his occupational exposure to asbestos, and the company's deregistration had affected his legal right to pursue that claim by precluding him from validly commencing the DDT proceedings against the company unless and until the company's registration was reinstated. I am therefore satisfied that the plaintiff had an accrued right as at 15 July 2001 to apply to the Court under s 601AH of the Corporations Law for an order reinstating the registration of Inmart Investments, and for an extension of time to make that application. The plaintiff now has an equivalent right under s 601AH of the Corporations Act by reason of s 1400 of that Act.
9. Thus, this Court has power to order the reinstatement of the registration of Inmart Investments under s 601AH of the Corporations Act. The route to that conclusion explained above differs from the route by which the same conclusion was reached in previous cases referred to in the plaintiff's submissions. [17] The routes differ because those previous cases concerned companies that had been deregistered under the Corporations Law, prior to the commencement of ss 601AB and 601AH of the Corporations Law.
10. I am satisfied that it is just to order that the registration of Inmart Investments be reinstated, taking into account the following matters: [18] 1. the purpose of the reinstatement is to facilitate the plaintiff ultimately making a claim to be indemnified by the IGF in respect of his claim against Inmart Investments in the DDT proceedings, in circumstances where his former employer's insurer became insolvent; 2. the only route for the plaintiff to prosecute his claims in the DDT proceedings insofar as they concern Inmart Investments is to proceed against that company and, if that company's liability is established in the DDT proceedings, to make a claim against SIRA (as the manager of the IGF) for compensation pursuant to ss 231-236 of the Workers Compensation Act; [19] 3. restoring the ability of the plaintiff to make such a claim in respect of the injuries that he claims to have suffered as a result of occupational asbestos exposure, including during the period of his employment with Inmart Investments, is in the public interest; 4. no person is likely to be prejudiced by the reinstatement, given that the company will immediately be placed into liquidation, a liquidator will be appointed, and the plaintiff does not intended to make any claim against any property of the company; and 5. no person has sought to be heard against the reinstatement of the registration of the company.

Conclusion and orders

1. For the reasons at [19]-[28] above, the orders of the Court in proceeding 262233 of 2023 concerning Marynen Manufacturing are: 1. Order pursuant to s 539(4)(d) of the Companies (New South Wales) Code 1981 (NSW) that the time for the plaintiff to make an application under s.459(6) of the Companies (New South Wales) Code 1981 (NSW) for the reinstatement of Marynen Manufacturing Pty Ltd (ACN 000 700 032) be extended up to and including 17 August 2023. 2. Order pursuant to s 459(6) of the Companies (New South Wales) Code 1981 (NSW) that the registration of Marynen Manufacturing Pty Ltd (ACN 000 700 032) be reinstated. 3. Order that upon reinstatement of its registration, Marynen Manufacturing Pty Ltd (ACN 000 700 032) be wound up pursuant to the provisions of s 461(1)(k) of the Corporations Act 2001 (Cth), and that Andrew John Scott and William Anthony Honner of PricewaterhouseCoopers, One International Towers, Sydney, Watermans Quay, Barangaroo, NSW 2000 be appointed as liquidators. 4. Order that upon reinstatement of the registration of Marynen Manufacturing Pty Ltd (ACN 000 700 032), the plaintiff have leave nunc pro tunc to commence and proceed with the Dust Diseases Tribunal of New South Wales proceedings numbered 2023/159330 at Sydney against Marynen Manufacturing Pty Ltd (ACN 000 700 032). 5. An order that no step to enforce any judgment or verdict obtained in the proceedings numbered 2023/159330 in the Dust Diseases Tribunal of New South Wales at Sydney shall be taken by the plaintiff against Marynen Manufacturing Pty Ltd (ACN 000 700 032), otherwise than by resort to the indemnity provided by the Insurers' Guarantee Fund established under s 227 of the Workers Compensation Act 1987 (NSW), without the further leave of the Court. 6. Order that the costs of this application and these proceedings be costs in the proceedings numbered 2022/159330 in the Dust Diseases Tribunal of New South Wales at Sydney against Marynen Manufacturing Pty Ltd (ACN 000 700 032).
2. For the reasons at [34]-[43] above, the orders of the Court in proceeding 262215 of 2023 concerning Inmart Investments are: 1. If and to the extent necessary, order pursuant to s 601AH(3) of the Corporations Act 2001 (Cth) that the time for the plaintiff to make an application under s 601AH(2) of the Act for the reinstatement of Inmart Investments Pty Ltd (ACN 000 269 385) is extended up to and including 6 September 2023. 2. Order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities and Investments Commission reinstate the registration of Inmart Investments Pty Ltd (ACN 000 269 385). 3. Order that immediately upon reinstatement of its registration, Inmart Investments Pty Ltd (ACN 000 269 385) be wound up pursuant to the provisions of s 461(1)(k) of the Corporations Act 2001 (Cth), and that Andrew John Scott of PricewaterhouseCoopers, One International Towers, Sydney, Watermans Quay, Barangaroo, Sydney, NSW 2000 be appointed liquidator of the company. 4. Order that immediately upon reinstatement of the registration of Inmart Investments Pty Ltd (ACN 000 269 385), the plaintiff has leave nunc pro tunc to commence and proceed with the Dust Diseases Tribunal of New South Wales proceedings numbered 2023/159330 at Sydney against Inmart Investments Pty Ltd (ACN 000 269 385). 5. Order that no step to enforce any judgment or verdict obtained in the proceedings numbered 2023/159330 in the Dust Diseases Tribunal of New South Wales at Sydney shall be taken by the plaintiff against Inmart Investments Pty Ltd (ACN 000 269 385), otherwise than by resort to the indemnity provided by the IGF established under s 227 of the Workers Compensation Act 1987 (NSW), without the further leave of the Court. 6. Order that the costs of these proceedings be costs in the proceedings numbered 2023/159330 in the Dust Diseases Tribunal of New South Wales at Sydney.

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Endnotes

1. ICI Australia Operations Pty Ltd (now known as Orica Australia Pty Ltd) v Workcover Authority of New South Wales (2004) 60 NSWLR 18; (2004) 1 DDCR 259; [2004] NSWCA 55 at [310] (McColl JA, Mason P and Meagher JA agreeing), referred to in In the matter of Richards Contracting Co Management Pty Ltd (2021) 104 NSWLR 385; (2021) 391 ALR 122; (2021) 151 ACSR 300; [2021] NSWCA 34 (Richards) at [36] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
2. See Richards at [29]-[51] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
3. Note 1 supra at [59] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
4. See Companies (Application of Laws) Act 1981 (NSW) s 6, as enacted.
5. New South Wales Government Gazette, No 180, 14 December 1990, at 11457.
6. Corporations (New South Wales) Act 1990 (NSW) s 7.
7. Richards at [56] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
8. Richards at [68] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
9. Richards at [69]-[114] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
10. Allianz Australia Insurance Ltd v Viksne (2021) 106 NSWLR 306; (2021) 154 ACSR 657; [2021] NSWCA 268 (Viksne) at [20]-[42] (Meagher JA, White JA and Simpson AJA agreeing) in relation to the equivalent provision in s 601AH(5) of the Corporations Act.
11. Richards at [105] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing) and the authorities there referred to.
12. Richards at [19]-[54] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing).
13. See [20] above.
14. Sections 1362CA and 1362CB had been introduced by the Company Law Review Act 1998 (Cth), which commenced on 1 July 1998.
15. See Richards at [64] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing); see also Re Austral Bronze Co Pty Ltd (2020) 149 ACSR 221; [2020] NSWSC 1633 (Austral Bronze) at [27] and [33] (Rees J).
16. Commonwealth of Australia Government Gazette, No S 285, 13 July 2001.
17. Austral Bronze (noting that the analysis of Rees J was not challenged in the subsequent appeal in Viksne); In the matter of Lysaght Civil Products Pty Ltd [2021] NSWSC 1459 (Williams J, applying the analysis of Rees J in Austral Bronze).
18. Richards at [105] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing) and the authorities there referred to.
19. Richards at [19]-[54] (Bathurst CJ, Bell P, Meagher and Payne JJA, and Emmett AJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2023