Two questions arise: first, as to the substantive merits of the application and, second, as to the precise nature of the court's power, having regard to the words "on a specified day" in s.509(6).
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 three months after the lodgment 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 (unreported, SASC, 30 April 1998) 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 Application of Walker (as liquidator 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".
11 Applications of the kind now before me are, in my view, to be distinguished from cases under s.601AH in which the court is asked to re-create (or, more precisely, direct the re-creation of) companies which have gone out of existence. That, of its nature, is a more radical process than mere deferral of the time at which an existing company's existence will come to an end. Its more radical nature is recognised by the legislation which, in s.601AH(2), allows the court to order reinstatement only if it is satisfied that reinstatement is "just". Section 509(6), as I have said, expresses no criterion - but in saying this I do not intend for a moment to imply that the court could make an order if it did not think it just to do so; merely that, having regard to the statutory language, a greater degree of latitude is envisaged. The court may be inclined to be less strict in a case of deferral of deregistration than in a case of re-creation.
12 I am 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. Creation of an opportunity to explore fully the possibility of further and hitherto unrecognised avenues of recovery for the benefit of the administration must, of its nature, represent such a beneficial purpose.
13 There is an obvious statutory intention that the court should have regard to some particular proposal not only in deciding that an extension of time should be granted but also in fixing the further time. Its power is to order that deregistration be effected by ASIC "on a specified day" and that that day should thereby be substituted for the day fixed by s.509(5). The court must therefore form a view as to the amount of time appropriately required. That is something that can be judged only by reference to particular circumstances. Pursuit of the possibility of recovery from the HIH Claims Support Scheme is the relevant matter in this case.
14 The form of order now sought (expressed, as it is, in the alternative) raises a question as to the meaning of "a specified day". A fixed date (such as 31 December 2005 or 1 January 2006) is, clearly enough, a "specified day". So too is a day precisely identified otherwise than by its date (such as "Good Friday 2006") and, perhaps, a day described by reference to some past and identifiable event, such as "the first anniversary of the date of acceptance" of an identified offer made in the past: Esanda Finance Corporation Ltd v Lancaster, (unreported, WASC, 20 December 1990, per Malcolm CJ). In some contexts, "there may be the sufficient specification of a period by reference, not to a definite point of time, but to the occurrence of an ascertainable event": Re Karounos; Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177 per Sheppard J.
15 But I do not think that the day on which a future event is to happen (or a day that is a fixed number of days after it) can be said to be a "specified day", where the event is one that may not eventuate. This is particularly so in the present context where s.509(6) and the court's order combine to make up the directive to ASIC to put the company out of existence. That is something that cannot be allowed to be in any way uncertain. The court must ensure that, where the three month period under s.509(5) is displaced, its order leaves no doubt on the question what ASIC is to do, in a timing sense, by way of deregistration.
16 The conclusion I have reached as to the need for specificity in relation to a substituted date imposed by the court under s.509(6) is supported by the observation of Marks J in Deputy Commissioner of Taxation v Bettina House of Fashion Pty Ltd (unreported, VSC, 18 November 1988) in relation to a similar provision of the Companies (Victoria) Code that "any period of suspension should be certain and a date of postponement specified in any order granting it". The conclusion is also supported by the brief judgment of Young J in Stores v Austra Tanks Pty Ltd (unreported, NSWSC, 8 August 1988). His Honour said of the analogous provision of the Companies (New South Wales) Code:
"Although the point does not seem to have been the subject of any previously decided case, in my view, the clear words of the section mean that the court has to specify a date and cannot merely extend the time until the litigation referred to has been completely disposed of."
17 In that case, the date fixed by the court's order for dissolution was some three and a half years after the making of the order. Young J reserved to the court further consideration to vary that order on the application of either the plaintiff (the claimant against the company in the relevant litigation) or the liquidator, if the litigation should be concluded earlier. For my own part, I cannot see how any subsequent order of the kind thus contemplated could be in any way effective, given that it could not on any basis be said to meet the specification in s.509(6) that an order fixing a date other than that set by s.509(5) be made within three months after lodgment of the liquidator's return. A similar time limit applied under the legislation considered by Young J.
18 Mr Shirlaw deposes that he has been informed by the solicitors for ANZ who have been handling the claim under the HIH Claims Support Scheme that it may take up to eighteen months to finalise that matter. This is why 30 January 2007 is the first alternative in the form of order sought. That the application is cast in those terms must mean that the liquidators are willing to remain in office until that date. The fact that the alternative specified in the form of order will become relevant only if it turns out to be earlier than 30 January 2007 means that that fixed date is judged by the liquidators to leave sufficient time for all necessary matters to be attended to. For reasons I have stated, however, it is not possible to include in the order the alternative and accelerating feature sought: the day which is fourteen days after notification to the liquidators of acceptance of the claim under the scheme is an uncertain day which may never arrive. It is therefore not a "specified day" and a s.509(6) order cannot be made by reference to it. In the circumstances, the order will specify 30 January 2007 only. Nor, for reasons stated, do I think it productive to incorporate into the order some form of reservation contemplating the possibility of an accelerating order at some future time.
19 The orders of the court are as follows:
1. Order pursuant to s.509(6) of the Corporations Act 2001 (Cth) that Australian Securities and Investments Commission deregister Rosaub Pty Limited on 30 January 2007.
2. Order that costs of the originating process be costs and expenses of the winding up of Rosaub Pty Limited.
3. Direct that these orders be entered forthwith.
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