Deputy Commissioner of Taxation v Australian Securities and Investments Commission, in the matter of Anttila Enterprises Pty Ltd

BACKGROUND 2 On 11 August 2010, an application for the winding up of Anttila was filed under s 459P CA. That application is currently before a Deputy District Registrar of this Court. The next hearing date in respect of that application is 16 March 2011 with the time in respect of which the application must be determined having been extended to 11 August 2011. 3 The reason for the extension is that on 13 October 2010 Anttila was deregistered by ASIC. 4 Consequently on 3 February 2011, the Commissioner made application under s 601AH(2) CA for the reinstatement of Anttila.

CONSIDERATION 5 The relevant provisions pursuant to which this application is made are as follows: 601AH Reinstatement Reinstatement by ASIC … Reinstatement by Court (2) The Court may make an order that ASIC 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. … 6 The application is supported by an affidavit of Mr Robert Bialowas, an Australian public servant authorised by the Commissioner to make this affidavit on his behalf. 7 Mr Bialowas deposes to the fact that on 13 April 2010, Anttila was indebted to the Commissioner in sum of $172,185.63. As at 2 February 2011, that sum was still due and outstanding. On that basis, the Commissioner is aggrieved by the deregistration of Anttila as the Commissioner, as a creditor, has been denied the opportunity to wind up Anttila in insolvency and claim the amount recoverable under the provisions of the Taxation Administration Act 1953 (Cth). 8 There is evidence before the Court that ASIC has been given notice of the intention to reinstate the deregistration of Anttila and has noted the return date. ASIC has indicated it will not oppose the application for reinstatement of Anttila as disclosed in the affidavit of support providing the following conditions are satisfied: 1. the order sought for reinstatement is to be in terms of s 601AH(2) CA requiring ASIC to reinstate the registration of Anttila; 2. the originating process is amended to include ASIC as a defendant in the proceeding, in which case ASIC's opposition or consent to the application will be a relevant matter to the Court's consideration; 3. that the Commissioner notifies the former officer holders of Anttila of the application; and 4. the Court order is lodged with ASIC so that ASIC can reinstate Anttila. 9 Additionally, a copy of a letter to Mr Peter Michael Anttila, a previous director and the previous secretary of Anttila, giving him requisite information of the application has been produced. There is proof of service by post of the communication to Mr Anttila in an affidavit sworn by the solicitor for the Commissioner. 10 I am satisfied on the state of the uncontradicted evidence that the Commissioner is a person aggrieved within the meaning of s 601AH and in all the circumstances, I am also satisfied that it is 'just' that Anttila's registration be reinstated. It is not apparent that there would be any injustice or prejudice caused by the reinstatement, whereas, injustice may be occasioned if there is not reinstatement: see Re Trim Perfect Australia Pty Ltd (2005) 55 ACSR 237 per Palmer J. 11 One of the factors considered by Austin J in Australian Competition & Consumer Commission v Australian Securities & Investments Commission (2000) 174 ALR 688 was the utility of a reinstatement order. As noted by Austin J, the Court is entitled to have regard to public interest. In that case, the public interest was in ensuring the relevant provisions of the Trade Practices Act 1974 (Cth), as it then was, were enforced. There are similar cases concerning claims for compensation where the ability to pursue such claims was taken into account in the exercise of discretion. The public interest in the Commissioner pursuing a claim for outstanding income tax, in my view, falls within a similar category (Re James Hardie Australia Finance Pty Ltd (Deregistered) (2008) 170 FCR 545 (at [16])). 12 While there is no evidence before the Court as to the capacity of the reinstated company to meet such a claim, it does not mean that the Commissioner should be deprived of the opportunity to pursue such a claim. 13 Originally the Commissioner sought an order appointing a liquidator. I do not consider it is appropriate to order the appointment of a liquidator (which necessarily involves making an order as to the winding up of Anttila). Those proceedings are still on foot separately and are not part of this particular proceeding. I will order the reinstatement of Anttila but not the winding up and the appointment of the liquidator. That will be dealt with by the Deputy District Registrar.

CONCLUSION 14 In all the circumstances, I am satisfied that reinstatement is appropriate and the following orders are made:

1. The Plaintiff be granted leave pursuant to Order 13 Rule 2 of the Federal Court Rules to amend the Originating Process filed in respect of these proceedings to include Australian Securities and Investments Commission as the Defendant.
2. The Australian Securities and Investments Commission do reinstate Anttila Enterprises Pty Ltd as a registered company pursuant to section 601AH(2) of the Corporations Act 2001 (Cth).
3. The company, Anttila Enterprises Pty Ltd, pay the Plaintiff's costs of this application fixed at $1,500.00 (excluding GST) to be reimbursed to the Plaintiff out of the winding up if any. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.