12 The present application is brought 30 years after the dissolution of the company. But there is a path under s 366(4) of the Companies Act to enlarge the time for bringing a proceeding under s 307 where the justice of the case so requires. Given the long period of latency of the disease from which the plaintiff suffers, justice requires that time be extended and that an order be made declaring the dissolution. However, as provided for by s 307, that order should be made on terms that it not affect any steps taken in the voluntary liquidation of the company including any distribution of assets to members.
13 Mr MacIntosh has since retired. The question arises as to what, if anything, should be done upon the making of the order under s 307. If nothing further is done, the company will remain subject to the members' voluntary winding-up. But circumstances will have changed. If the plaintiff's claim is well founded, presumably the defendant company will be insolvent. A new liquidator would have to consider calling a meeting of creditors. Without a new liquidator the company would be without governance.
14 In the circumstances, it is appropriate that the company be wound up on the just and equitable ground by order of the Court and that all steps requiring service of a winding-up application, and advertising of such an application, be dispensed with. Such dispensation is warranted as the company has not existed for 30 years. There is no-one who could reasonably be thought of as having an interest in opposing the application. Because the plaintiff has standing as a contingent creditor, s 462(4) of the Corporations Act also needs to be considered. In the circumstances of this case, no security for costs of the application is required. A prima facie case for winding up has certainly been established. Indeed I am satisfied that the company should be wound up.
15 Notice of this application has been given to the Australian Securities and Investment Commission. ASIC has stated that it does not oppose the application if certain conditions are satisfied. The conditions include that the order sought for reinstatement be in terms that s 307(1) of the Companies Act require ASIC to void the dissolution of the company and that the company be wound up pursuant to s 222 of the Companies Act.
16 Section 601AH of the Corporations Act provides that the Court may make an order that ASIC reinstate the registration of the company if certain conditions are satisfied. Section 307 of the Companies Act is in a different form. If an order is made under s 307 declaring the dissolution to have been void, the consequence of voidness flows from the making of the order and not from any subsequent step to be taken by ASIC. It is not appropriate to make the order in the terms sought by ASIC.
17 Nor do I consider that the winding-up application is to be made pursuant to s 222 of the Companies Act. The winding-up is a discrete matter from the dissolution of the company and the avoidance of that dissolution. Whilst the provisions of the Companies Act apply to the dissolution and avoidance of the dissolution, I do not consider that those sections govern the winding-up order to be made.
18 It appears that the liquidator should have no work to do otherwise than as arises from the plaintiff's claim. There would be no purpose in the liquidator spending money in preparing a preliminary report under s 476 of the Corporations Act or in advertising the claims.
19 I will give a direction under s 479 of the Corporations Act that the liquidator would be justified in not taking any steps in connection with the liquidation other than as may be necessary or desirable in relation to the plaintiff's claim.
20 The plaintiff will also be given leave to proceed against the company on terms that he take no steps to enforce any judgment obtained against the company without further leave of the Court. Costs of the present application should be costs in the South Australian proceedings.