• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Judgment

1. The plaintiff Francis Lawrence Daniels wishes to bring proceedings in the Dust Diseases Tribunal against his former employer the first defendant company Jury & Spiers Proprietary Limited, which was incorporated in South Australia in 1950, and deregistered in 1983. By originating process filed on 23 March 2016 and amended on 9 May 2016, Mr Daniels seeks, in this Court's cross-vested jurisdiction, an order pursuant to s 459(6) of the Companies (South Australia) Code ("the 1981 SA Code") [1] for the reinstatement of the registration of the company, and an extension of time under s 539(4)(d) in which to make that application; an order that upon reinstatement a liquidator be appointed; and leave to commence proceedings in the Dust Diseases Tribunal against the company in liquidation.
2. The evidence - which is sparse, as the company search available contains limited detail - appears to establish the following. The company was incorporated in South Australia on 29 June 1950. Mr Daniels was employed by the company between 13 April 1959 and 31 May 1963, in the wholesale plumbers' hardware department. [2] During that period, he says that he was exposed to asbestos dust. The company was wound up on 28 July 1982 when A T Payne of 15-19 Bent Street, Sydney, was appointed liquidator; the winding up was a members' voluntary winding up. [3] The liquidator ceased to act on 15 March 1983, [4] and the company was deregistered on 15 June 1983. [5] Mr Daniels has recently been diagnosed with an interstitial lung disease which, in his consultant physician's opinion, is probably associated with exposure to asbestos. [6]
3. In Baird v WJT Howes Investments Pty Ltd, [7] Barrett J (as he then was) observed: 4 The fact that Howes is recorded as having been "deregistered" rather than "dissolved" warrants an inference that its existence came to an end pursuant to s 459(4) of the Companies (New South Wales) Code, rather than s 382(6) or s 411(5). Section 459(4) is concerned with striking off of companies by the National Companies and Securities Commission and is headed "Power of Commission to deregister defunct company". Sections 382(6) and 411(5), by contrast, are concerned with dissolution upon completion of winding up.
4. However, in the present case, it is known that there was a liquidation, and that the liquidator ceased to act precisely three months before the date of deregistration. Section 411 of the Code, which applied to a voluntary winding up, is relevantly in the following terms: Final meeting and dissolution 411(1) As soon as the affairs of the company are fully wound up, the liquidator shall make up an account showing how the winding up has been conducted and the property of the company has been disposed of and, when the account is so made up, he shall convene a general meeting of the company, or, in the case of a creditors' voluntary winding up, a meeting of the company and the creditors, for the purpose of laying before it the account and giving any explanation of the account. (2) The meeting shall be convened by an advertisement published in the Gazette at least one month before the meeting specifying the date, time, place and purpose of the meeting. (3) The liquidator shall, within 7 days after the meeting, lodge with the Commission a return of the holding of the meeting and of its date with a copy of the account attached to the return. (4) At a meeting of the company, 2 members constitute a quorum and, at a meeting of the company and of the creditors, 2 members and 2 creditors constitute a quorum and, if a quorum is not present at the meeting, the liquidator shall, in lieu of the return mentioned in sub-section (3), lodge a return (with account attached) stating that the meeting was duly convened and that no quorum was present and, upon such a return being lodged, the provisions of that sub-section as to the lodging of the return shall be deemed to have been complied with. (5) Subject to sub-section (6), on the expiration of the period of 3 months after the lodging of the return with the Commission the company is dissolved.
5. The circumstances that (a) there was a winding up, and (b) the date of deregistration appears to coincide with three months after the cessation of the appointment of the liquidator, supports an inference that in this case, the company was dissolved under s 411(5), not deregistered under s 459. As will appear, this has consequences for the proper basis of the present application.
6. Section 459 of the 1981 SA Code provided for the cancellation of the registration of defunct companies. Subsection (6) is in the following terms: 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 of the company had not been cancelled.
7. As the company was dissolved pursuant to s 411(5), and did not have its registration cancelled under s 459(4), reinstatement under s 459(6) is not available: it is available only in respect of a cancellation of registration under s 459. [8]
8. However, in s 458, the Code also contains provision for the avoidance of the dissolution of company which has been dissolved pursuant to s 382(6) or, relevantly, s 411(5): Power of Court to declare dissolution of company void 458(1) Where a company has been dissolved pursuant to sub-section 382(6) or 411(5), the Court may at any time, on application of the liquidator of the company or of any other person who appears to the Court to be interested, make an order declaring the dissolution to have been void, and the Court may by the order give such directions and make such provisions (including directions and provisions relating to the re-transmission 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 company had not been dissolved. (2) The person on whose application the order was made shall, within 14 days after the making of the order or such further time as the Court allows, lodge with the Commission an office copy of the order.
9. Unlike its predecessor (s 307 of the (SA) Companies Act 1961), and unlike s 459(6), s 458 contains no time limit for making an application.
10. Although there were suggestions in earlier authorities that the (CTH) Corporations Act 2001 ("the 2001 Corporations Act") could be invoked in respect of companies dissolved under pre-1989 companies legislation, [9] the prevailing view is that the 2001 Corporations Act - and in particular s 601AH - does not apply to such entities. [10] As Barrett J explained in Tan v ASIC: [11] [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 Pt 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.
11. However, such dissolved companies could be reinstated under the legislation under which they were dissolved, the operation of which in some respects survived the successor legislation. Section 6 of the (SA) Companies (Application of Laws) Act 1982 ("the 1981 SA Application Act") - which, as an aspect of the then co-operative scheme, was identical to the corresponding (NSW) Companies (Application of Laws) Act 1981 - provided that the Companies Act 1981 of the Commonwealth applied as a law of South Australia, as if amended as set out in Schedule 1, and subject to and in accordance with the (SA) Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981; so applied, it was the 1981 SA Code; similar provision was made in each other Australian jurisdiction.
12. Division 2 (Co-operative scheme laws) of the (SA) Corporations (South Australia) Act 1990 ("the 1990 SA Corporations Act") - which gave effect to the national companies scheme commencing on 1 January 1991 - defined "co-operative scheme laws" in terms which included the 1981 SA Application Act and the 1981 SA Code: [12] 84 Co-operative scheme laws For the purposes of this Act, the following are the co-operative scheme laws: Companies (Application of Laws) Act 1982 Companies (South Australia) Code … Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1981 Companies and Securities (Interpretation and Miscellaneous Provisions) (South Australia) Code …
13. Section 85 provided for the national scheme laws to supercede the co-operative scheme laws, which would continue to operate of their own force only in relation to matters arising before the commencement of the national scheme laws (which commenced on 1 January 1991), or matters arising out of such matters insofar as the national scheme laws did not deal with them: 85 National scheme laws prevail over co-operative scheme laws (1) This section provides for the national scheme laws of this jurisdiction to supersede the co-operative scheme laws, which are to continue to operate of their own force only in relation to - (a) matters arising before the commencement of this section; and (b) matters arising, directly or indirectly, out of such matters, in so far as the national scheme laws or the Corporations legislation do not deal with those matters. (2) Where a co-operative scheme law is inconsistent with a national scheme law of this jurisdiction, the national scheme law prevails and, to the extent of the inconsistency, the co-operative scheme law does not operate. (3) For the purposes of subsection (2), a co-operative scheme law is inconsistent with a national scheme law if it would be inconsistent within the meaning of section 109 of the Constitution of the Commonwealth of Australia if the national scheme law were an Act of the Commonwealth. (4) In this section - Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act 2001 of the Commonwealth applies.
14. Section 87 provides for the deemed repeal of the co-operative scheme laws to the extent that they are superceded by the national scheme laws as a result of s 85, but not otherwise: 87 Effect of sections 85 and 86 (1) To the extent that a co-operative scheme law ceases to operate because of section 85 or 86, the law is taken for the purposes of the Acts Interpretation Act 1915 to have been repealed by this Act.
15. Thus: 1. Section 85 of the 1990 SA Corporations Act (which remains in force) provides for the national scheme laws to supersede the co-operative scheme laws, except in relation to matters arising before 1 January 1991 and matters arising directly or indirectly out of such matters - in respect of which the co-operative scheme laws continued to operate of their own force; 2. The relevant co-operative scheme laws included the 1981 SA Code; 3. The deregistration of a company in 1983 is a matter arising before 1 January 1991, and the reinstatement of such a company is a matter arising out of it; 4. The national scheme laws do not deal with an application for reinstatement of a company dissolved under the 1981 SA Code; 5. For those reasons, s 458 and s 459(6) of the 1981 SA Code did not cease to operate, in respect of matters arising out of the deregistration of a company before 1 January 1991, because of s 85; 6. Therefore, pursuant to s 87, it is not to that extent taken to be repealed.
16. Accordingly, at least so long as the 1981 SA Code remains in force, a company dissolved or deregistered under the 1981 SA Code could still be reinstated by an order made under s 458 or s 459(6) respectively of the 1981 SA Code.
17. It was upon this basis that Senior Master Mahoney held in City West Water Ltd v Mr D Investments Pty Ltd [13] that the matter of reinstatement of the registration of a company that had existed under and been deregistered pursuant to the 1981 Companies (Victoria) Code was a matter that remained subject exclusively to the continuing provisions of that Code, notwithstanding provisions concerning transition from that Code to the 1990 Corporations Law of Victoria and subsequent transition to the 2001 Corporations Act. This was followed in this Court by Barrett J in Baird v WJT Howes, [14] a case which bears many similarities to the present. Baird had commenced proceedings against Howes in the Dust Diseases Tribunal; upon discovering that Howes had been deregistered on 9 July 1990 - when the 1981 NSW Code was the applicable companies legislation in New South Wales - he applied to have it reinstated. His Honour accepted (at [8]-[9]) that the reasoning in City West Water was correct and prevailed over his own earlier decision in Shaw v Goodsmith Industries Pty Ltd [15] and that of Austin J in Parker v Australian Asbestos Pty Ltd, [16] and was also consistent with National Australia Bank Ltd v Australian Securities Commission. [17] Deregistration of a company pursuant to the 1981 Code before 1 January 1991 was a "matter arising before" that date for the purposes of s 85 of the 1990 Corporations Act.
18. In Armitage v HXE Limited, [18] on an application to declare void a dissolution of a company dissolved in 1980 (before the commencement of the 1981 Code, when the 1961 Companies Act was still applicable), [19] White J said (at [9]): In Baird v WJT Howes Investments Pty Ltd [2008] NSWSC 1232; (2008) 68 ACSR 485, Barrett J followed City West Water Ltd v Mr D Investments Pty Ltd [2002] VSC 553; (2002) 43 ACSR 622 in holding that where a company had been deregistered under the Companies (New South Wales) Code, the provision of that Code remained applicable to applications for reinstatement. This was by virtue of s 85 of the Corporations (New South Wales) Act 1990 (NSW) pursuant to which the Code continued to apply by its own force in relation to matters arising directly or indirectly out of matters that arose before the commencement of that Act.
19. The continued application of this approach in New South Wales is now problematic - the Companies (New South Wales) Code is no longer in force as a consequence of the repeal of the 1981 NSW Application Act (which established the Code as law) by the (NSW) Statute Law (Miscellaneous Provisions) Act 2008. In Tan v ASIC, [20] in the absence of submissions to the contrary, and in accordance with City West Water, Best v Yellow Express Carriers Ltd, [21] Baird v WJT Howes and Armitage v HXE, Barrett J made an order under the 1981 Code for the reinstatement of a company which had been deregistered under that Code, but with the following expressed reservations: [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). … [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.
20. In In the matter of Rocha Pty Ltd, [22] sharing his Honour's discomfort, I concluded that as the 1961 NSW Act (which was also repealed by the (NSW) Statute Law (Miscellaneous Provisions) Act 2008) had been repealed, and the later legislation gave it no additional effect or operation, it was no longer possible for an order to be made under the repealed 1961 NSW Act: In my view, s 307 (and s 308) of the 1961 Act, having been repealed in 2008, are no longer available as a jurisdictional basis for the reinstatement of a company dissolved under that Act.
21. The same reasoning would lead to the conclusion that, having also been repealed in 2008, the provisions of the 1981 NSW Code are no longer available as a jurisdictional basis for the reinstatement of a company dissolved under that Code.
22. However, in the present case, the dissolution took place under the South Australian - not the New South Wales - Code, which applied pursuant to the 1981 SA Application Act. So far as I can ascertain, the position in South Australia does not suffer from the same difficulties as now obtain in New South Wales; unlike the 1981 NSW Code, the 1981 SA Code has not been repealed. Although the legislation website maintained by Parliamentary Counsel for South Australia indicates that the 1981 SA Code and the 1981 Application Act have "ceased", that is said to be so because they have been "superceded" by the 1990 national scheme legislation. However, as has been demonstrated above, such supercession is not complete: the 1981 co-operative scheme legislation was left to have effect of its own force in respect of matters arising before the commencement of the national scheme legislation. As the 1981 SA Code - unlike the corresponding NSW Code - has not been repealed, to that extent it continues to have effect "of its own force" in respect of matters arising before 1 January 1991, and matters arising from them, in respect of which the national scheme legislation did not make provision.
23. It would therefore be open to the plaintiff to apply to the Supreme Court of South Australia - being "the Court" referred to in s 458 of the 1981 SA Code - for an order declaring void the dissolution of the company, and that Court would have jurisdiction to make such an order. Section 4 of the (SA) Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Cross-Vesting Act") vests in this Court the jurisdiction of the Supreme Court of South Australia in respect of State matters. While the Cross-Vesting Act does not apply to the jurisdiction of courts which Part 9.6A, Div 1, of the 2001 Corporations Act deals with, that Division deals only with the jurisdiction of courts in respect of civil matters arising under "the Corporations legislation", which is relevantly defined as the 2001 Corporations Act and the relevant rules of court; it does not include the co-operative scheme legislation. An application under s 458 of the 1981 SA Code does not fall within that definition, but is a "State matter" within the meaning of the Cross-Vesting Act. Accordingly, this Court has and may exercise the jurisdiction of the Supreme Court of South Australia under the 1981 SA Code.
24. The plaintiff has an asbestos-induced disease which he contends was contracted in the course of his employment with the company.
25. The available evidence does not enable the directors or shareholders at the time of dissolution to be identified. However, the company has been wound up. Moreover, the plaintiff does not propose to issue any enforcement process against the company, but only against an insurer. At least one insurer with a policy that responds to the plaintiff's claim has been identified. Its solicitors have contended that, as it was not on risk for the entirety of the relevant period, it is inappropriate that one insurer be sued directly in place of the former employer, which should be reinstated. The interests of the directors and shareholders will be protected by an undertaking which I propose to require as a condition of relief, reflecting the plaintiff's avowed intention not to seek to enforce any judgment against the company, other than by resorting to the proceeds of insurance.
26. The right of direct action against the insurer, now given by the 2001 Corporations Act, s 601AG, is not available, because the company was never a "company" within the definition of s 9 of the 2001 Corporations Act, and will not become one if reinstated. [23] The earlier legislation contained no equivalent to s 601AG, which was introduced in 1998 by the (CTH) Company Law Reform Act 1998. [24] Although (NSW) Law Reform (Miscellaneous Provisions) Act 1946, s 6, gives a direct right of recourse against the insurer, and the prevailing view is that it applies to an action brought in a court in New South Wales (which would relevantly include the Dust Diseases Tribunal), [25] there is some residual doubt as to its availability where the proper law of the contract of insurance may be South Australian law. [26]
27. Accordingly, there is some potential advantage to the plaintiff in the reinstatement of the company, and no identifiable detriment to anyone. The entity most potentially affected - the insurer - proposed reinstatement. No person interested opposes it. ASIC has indicated that it does not oppose the application, subject to the usual conditions.
28. Section 458 confers powers enlarged from those in its predecessor (s 307 of the uniform 1961 Companies Acts), in that the Court may, under s 458, give "such directions and make such provisions (including directions and provisions relating to the re-transmission 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 company had not been dissolved". Immediately prior to its dissolution, the company had been wound up in a members' voluntary winding up.
29. In Kenney v McCann, [27] Owen J in the Supreme Court of Western Australia held that a company which had been dissolved upon completion of a voluntary liquidation would, upon the dissolution being declared void, be reinstated as a company in voluntary liquidation. While his Honour did not find it necessary to make a fresh appointment of a liquidator, he nonetheless included in his orders directions as to what the liquidator might do. In Stone v ACN 000 337 940 Pty Ltd, [28] Barrett J said: [24] Immediately before deregistration, however, Rigby Jones was subject to members voluntary winding up. A liquidator was in office. If and when reinstated, the company will again be a company in liquidation. However, the person who was the liquidator at the time of deregistration will not resume office as liquidator upon reinstatement: see J P Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433; (2008) 65 ACSR 636 and cases there discussed. It will be necessary, therefore, that a liquidator be appointed. This is another aspect of stewardship.
30. Thus, while reinstatement does not result in the automatic resumption of office by a liquidator who was in office at the time of deregistration, nonetheless upon the reinstatement of a company that was at the time of deregistration in liquidation, it remains in liquidation unless the Court otherwise orders. [29] Under s 458 (though not under its predecessor), the Court can, when declaring a dissolution void, reappoint the former liquidator or appoint a new liquidator; alternatively, it can remove the former liquidator, [30] or fill a vacancy in the office. [31] While, all other things being equal, reappointment of the former liquidator is preferable, [32] it will not be the appropriate course where there are considerations militating against it.
31. The plaintiff has not been able to trace the former liquidator. An official liquidator has consented to act as liquidator. In those circumstances, it is appropriate to direct under s 458 (or alternatively, by way of filling a vacancy in the office of liquidator, under Companies Code, s 404 or Corporations Act, s 502) that he be appointed liquidator.
32. Whether one refers to the 1981 Code or to the 2001 Corporations Act, proceedings against a company are not stayed by a members' voluntary winding up, and leave is not required to commence or maintain such proceedings. Such a restriction only applies in a court ordered winding-up [33] and a creditors' voluntary winding up. [34]