Campbell-Wilson v Australian Securities and Investments Commission

1. Pursuant to section 509(6) of the Corporations Act 2001 (Cth), the deregistration of Nalco Australia Pty Ltd (in liquidation) is to occur on 13 April 2018.
2. The plaintiffs and the defendant are granted liberty to apply to relist the matter on 3 days' written notice to one another.
3. The costs of this application are the plaintiffs' costs in the winding up of Nalco Australia Pty Ltd (in liquidation).
4. The plaintiffs are to notify the defendant of these orders by 5.00 pm on 12 April 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 This is an application by Philip Campbell-Wilson and Adam Paul Nikitins as liquidators of Nalco Australia Pty Ltd (in liquidation) (Nalco) under s 509(6) of the Corporations Act 2001 (Cth) (Corporations Act) for an order that the deregistration of Nalco is to occur on 13 April 2018. If the order is not made then, pursuant to s 509(5) of the Corporations Act, the defendant (ASIC) must deregister Nalco at the end of the three month period after a return of the holding of a general meeting of the company was lodged. In this case, that would require ASIC to deregister the company on 13 April 2017. 2 Section 509(6) of the Corporations Act is available to the liquidator or any other interested party. Pursuant to that section, the Court may make an order that ASIC deregister the company on a specified day. The Court is required to make the order before the end of the three month period after the return was lodged. This application is made by the liquidators of Nalco and any order must be made pursuant to s 509(6) before 13 April 2017. 3 It is relevant to note that, pursuant to the Insolvency Law Reform Act 2016 (Cth), s 509 was repealed and substituted. However, the transitional provisions inserted into the Corporations Act by that amending Act provide at s 1604 that: The repeal and substitution of section 509 by Schedule 2 to the Insolvency Law Reform Act 2016 applies where the external administration of the company ends during a financial year starting on or after 1 July 2017. 4 The evidence before me shows that the liquidators of Nalco lodged final accounts with ASIC on 13 January 2017, after the end of the external administration. It follows that the external administration of Nalco did not end during a financial year starting on or after 1 July 2017. Rather, it ended during a financial year starting before that period. On that basis, the former version of s 509 continues to apply. 5 Two affidavits are relied on in support of the application. The first is an affidavit sworn by Philip Campbell-Wilson, who is one of the liquidators. Mr Campbell-Wilson has set out in his affidavit the reason why the order is sought. In particular, it appears that Nalco was served with a subpoena on or about 6 October 2016 without the knowledge of the liquidators of Nalco. The existence of that subpoena only came to the liquidators' attention on 2 March 2017 when James Sullivan, a director of Nalco, requested a teleconference to discuss it. Mr Campbell-Wilson is aware that the subpoena relates to proceedings between SNF Australia Pty Limited and Ciba Speciality Chemical Water Treatments Limited (Ciba). He understands those proceedings involve the challenge of certain patents registered in Australia of which Ciba has the benefit. 6 It has also come to Mr Campbell-Wilson's attention that the subpoena served on Nalco has been dealt with by people who, but for the appointment of the liquidators, were ordinarily in control of Nalco, including Mr Sullivan. Lawyers have been engaged to act for Nalco in dealing with the subpoena and, again without the knowledge and instructions of the liquidators, the director of Nalco and employees of related entities continue to instruct those lawyers. It seems they were unaware that Nalco was in liquidation. 7 Mr Campbell-Wilson also provides evidence that the subpoena is the subject of significant dispute. From the bar table Mr McCrostie, who appeared on behalf of the liquidators, informed the Court that Nalco has the benefit of at least one costs order in its favour as a result of the dispute that has arisen in connection with the subpoena. 8 Mr Campbell-Wilson gives evidence that the liquidators bring the present application in order to allow the question of the subpoena addressed to Nalco to be finalised without adding the complexity that would necessarily occur if the company were deregistered. Currently, the subpoena has been stood over to 19 April 2017. 9 The second affidavit relied on by the liquidators is sworn by David Stuart McCrostie, the solicitor for the liquidators. Mr McCrostie gives evidence that on 7 April 2017 he caused an email to be transmitted to Paul Lettoof, a Compliance Officer, Small Business Compliance and Deterrence, at ASIC. That email attached a copy of the draft originating process commencing this proceeding and an unsworn copy of Mr Campbell-Wilson's affidavit. The liquidators had at that point wished to ascertain ASICs attitude to the application. 10 On 10 April 2017 Mr McCrostie had a telephone conversation with Mr Lettoof. During that conversation Mr McCrostie asked Mr Lettoof if the application which is now before me would usually be dealt with by him. Mr Lettoof informed Mr McCrostie that such an application was not one he would ordinarily deal with and that he could not think of anybody who might deal with such an application. His view was that it was necessary to get an order from the Court and lodge it with ASIC in the usual course. The conversation included the following exchange. Mr McCrostie: Yes, probably but I wanted to get something from ASIC to show the Court that ASIC doesn't wish to be heard and doesn't otherwise care about the application. Mr Lettoof: I can't answer that officially, but we probably have nothing to say one way or the other. Either the Court makes the order you want or it doesn't. 11 This morning when the matter was called Mr McCrostie informed me that, while ASIC was given notice of the liquidators' intention to make the application, it was not given notice of this morning's listing. 12 The Court has a discretion as to whether to make an order under s 509(6) of the Corporations Act. In Re Rosaub Pty Ltd (in liq) (2005) 54 ACSR 371; [2005] NSWSC 689 (Re Rosaub) Barrett J considered an application under s 509(6) of the Corporations Act. There, his Honour said of the discretion to be exercised at [10]: In relation to the substantive question, the legislation does not seek to define or qualify the court's discretion except in a timing sense (in that an order under s 509(6) can only be made before the end of 3 months after the lodgement of the s 509(3) return or, as here, the s 509(4) return). Case law provides little guidance as to considerations relevant to the exercise of the discretion. Judge Burley, a Master of the Supreme Court of South Australia, dealing with an earlier version of s 509(6) in Kerol Pty Ltd v Vergeld Engineering Pty Ltd (SASC, Burley J, No SCGRG-97-1497, 30 April 1998, unreported, BC9801788) expressed the opinion that the discretion is properly exercised where "the continued existence of the company is necessary in order to effect some proper purpose". To like effect is the decision of Austin J in Re Walker (as liq of SC Australia Pty Ltd) [1999] NSWSC 176 where an order was made because, if deregistration was not deferred, certain persons "would suffer a loss to which there is no particular reason to subject them". 13 At [12] Barrett J then expressed the view that he was satisfied that: … if some apparently beneficial purpose will, according to the evidence, be served by a deferral, the deferral should be granted, particularly where it is the liquidator who puts forward the need for deferral. 14 In Emergen-X Pty Limited (in liquidation) (ACN 114 579 510), in the matter of Emergen-X Pty Limited (in liquidation) (ACN 114 579 510) [2010] FCA 487 Jacobson J at [14] referred to the decision of Barrett J in Re Rosaub, noting his Honour's observations that "the case law provides little guidance as to the considerations that are relevant to the exercise of the discretion" and that earlier authorities "supported the proposition that the discretion is properly exercised to extend the date where the continued existence of the company is necessary in order to effect a proper purpose". 15 The evidence before me given by Mr Campbell-Wilson on behalf of the liquidators is that there is a beneficial purpose in deferring the deregistration of the company. First, it will allow the dispute that has arisen in relation to the subpoena to be resolved without the added complexity of the party to whom that subpoena is addressed being deregistered. Secondly, it may, although it is a matter that will need investigation, allow Nalco to have the benefit of at least one costs order which has to date been made in its favour. That is sufficient beneficial purpose to allow the order now sought to be made. 16 Insofar as ASIC is concerned, as the evidence of Mr McCrostie discloses, it was notified of the liquidators' intention to make this application. It was not notified of today's listing. However, given the terms of s 509; the pending expiration of the relevant three month period; and the liquidator's proposal that ASIC be notified of the making of any order within 24 hours and that liberty be reserved to it to apply to the Court in the event that there is any issue with the order, I am satisfied that the order can be made. 17 Having regard to the above, I make the following orders: (1) Pursuant to section 509(6) of the Corporations Act 2001 (Cth), the deregistration of Nalco Australia Pty Ltd (in liquidation) is to occur on 13 April 2018. (2) The plaintiffs and the defendant are granted liberty to apply to relist the matter on 3 days' written notice to one another. (3) The costs of this application are the plaintiffs' costs in the winding up of Nalco Australia Pty Ltd (in liquidation). (4) The plaintiffs are to notify the defendant of these orders by 5.00 pm on 12 April 2017. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.