Frigger v Professional Services of Australia Pty Ltd

1. Section 1322 of the Corporations Act (2001) provides, relevantly:

(4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

...

(b) an order directing the rectification of any register kept by ASIC under this Act;

...

and may make such consequential or ancillary orders as the Court thinks fit.

...

(6) The Court must not make an order under this section unless it is satisfied:

...

(c) in every case - that no substantial injustice has been or is likely to be caused to any person.

1. The separate questions, as formulated, are as follows.

(1) Was the registration of the company with the name Liberty Oil (Australia) Pty Ltd and Australian Company Number 082 879 641 invalid ab initio?

(2) On the proper construction of s 1322(4)(b) of the Corporations Act (2001), has the Court power, on the application of the plaintiffs, to make an order directing ASIC to rectify the register kept by ASIC under the Corporations Act (2001) to remove PSA from that register?

(3) If the answer to question (2) is in the affirmative, has the Court power to make such an order with retrospective effect?

1. The separate questions are to be answered on the basis of the agreed facts and assumed facts and matters.
2. The agreed facts are as follows.

(1) On 5 June 1998, a Form 201 application for registration of an Australian company with the proposed name Liberty Oil (Australia) Pty Ltd was lodged with the Australian Securities Commission, a copy of which was annexed to the statement of agreed facts, marked "AF1" and is Exhibit 2.1/AF1.

(2) Mr David John Boyle prepared and lodged the Form 201 with ASC and both Mr Boyle and Mrs Mariangela Boyle signed that document before it was lodged and Mr Emilio Gerzic witnessed these signatures.

(3) The companies register kept by ASIC records, amongst other things, the following:

(a) A company with the name Professional Services of Australia Pty Ltd and Australian Company Number 082 879 641 is registered.

(b) On 5 June 1998, the company was registered in Western Australia.

(c) On 8 June 1998, a certificate of registration for the company was issued.

(d) The former name of the company was Liberty Oil (Australia) Pty Ltd.

(e) On 7 July 1998, notice of a resolution changing company name was given with respect to the company.

(f) On 7 July 1998, the company name on the register was changed to Professional Services of Australia Pty Ltd.

(g) On 1 July 1998, notice of initial appointment of officeholders was given with respect to the company.

(h) Mr Boyle and Mrs Boyle were directors of the company from 5 to 8 June 1998.

(i) Mr Martin Paul Banning was a director of the company from 8 June 1998 to 8 September 2008.

(j) Mr John Andrew Miller was a director of the company from 8 to 26 June 1998.

(k) Mrs Banning was a director of the company from 26 June 1998 to 4 June 2001.

(l) Mr Donald Campbell-Smith was a director of the company from 8 September 2008 to 10 May 2016.

(m) The company was under administration of an administrator appointed under the Corporations Act (2001) between 17 November 2008 and 23 March 2009.

(n) The company was under administration of an administrator appointed under a deed of company arrangement between 23 March 2009 and 6 November 2012.

(o) Mrs Banning is the sole director and secretary of the company and was appointed to those offices on 10 May 2016.

(p) On 11 June 1998, notice of redemption of redeemable preference shares was given with respect to the company.

(q) On 1 July 1998, notice of issue of shares was given with respect to the company.

(r) The company has share capital $2.00 comprised of two ordinary fully paid ordinary shares.

(s) Mr Banning was formerly a shareholder/member of the company and holder of one fully paid ordinary share.

(t) Mrs Banning is the sole shareholder/member of the company and holder of two fully paid ordinary shares.

(4) The Friggers are interested persons for the purposes of s 1322(4) of the Corporations Act (2001).

(5) For the purposes of s 1322(6) of the Corporations Act (2001), the Court is satisfied that no substantial injustice has been or is likely to be caused to any persons.

(6) The document entitled 'Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd Australian Company Number 082 879 641 A Company Limited By Shares Incorporated on 5 June 1998' (Exhibit A.1) was not prepared by Mr Boyle and was not signed by Mr Boyle or Mrs Boyle, but by a person or persons unknown who simulated the signatures of each of Mr Boyle and Mrs Boyle.

1. Before the orders were made for determination of the separate questions, at a hearing on 19 May 2023, the parties agreed to an amendment to the statement of agreed facts to add the underlined words in paragraph (2) above. That amendment was not recorded in any orders, but an order will be made at the time of delivering these reasons to amend the statement of agreed facts to reflect that amendment and the intention of the Court.
2. Form 201 contains the following relevant information.

(a) The application was for incorporation of the company under the Corporations Law of Western Australia.

(b) The company had the proposed name 'Liberty Oil (Australia) Pty Ltd'.

(c) The type of company was a proprietary company.

(d) The application stated that 'if a proprietary company the constitution of the proposed company contains the matters that are required to be stated under paragraphs 117(1)(a), (b), (c) & (g) of the Corporations Law'.

(e) No class of company was specifically selected. However, the form stated that the company proposed to register $1,000,000 in share capital divided into seven classes of shares as per an annexure to the application. Therefore, it was evident that the class of company was a company limited by shares and the liability of the members was limited.

(f) The subscribers to 'the Memorandum of Association' were identified as Mr and Mrs Boyle. The form stated that they had each subscribed for one share and that the 'shares were fully paid at the date of signing the Memorandum'.

(g) On 5 June 1998 the application was signed by each of the Boyles and each signature was witness by Mr Emilio Gerzic.

1. At the time PSA was registered, companies in Western Australia, including their formation and registration, were regulated by the Corporations Law as set out in s 82 of the Corporations Act 1989 (Cth): s 7 of the Corporations (Western Australia) Act 1990 (WA).

1. Given the time that the continued registration of PSA is now governed by the provisions of the Corporations Act (2001), the time that has elapsed since PSA was registered and the issues raised, before considering the specific provisions of the Corporations Law that dealt with formation and registration of a company in June 1998, it is useful to place those provisions and the concept of formation, registration and incorporation of a company into an historical and statutory context. It is also necessary to have regard to relevant changes to the applicable law after June 1998 and relevant transitional provisions that deal with companies registered before those changes were made.
2. The following summary is largely taken from the discussion in Ch 2 of Ford, Austin & Ramsay's Principles of Corporations Law, LexisNexis (looseleaf, last reviewed July 2023). The accuracy of an earlier version of that discussion was apparently accepted in Saraceni v Jones [2012] WASCA 59; (2012) 42 WAR 518 at [114]- [141] (McLure P and Newnes JA agreeing).
3. The modern proprietary limited company has its origins in English law and the concept of a corporation aggregate. A corporation aggregate was a group of persons who associated for a common purpose. Before 1844 a corporation aggregate could only be incorporated to create a legal person separate from its members by grant of a Royal Charter or by a private Act of the English Parliament. Commercial pressures led to the development of large quasi-partnerships known as joint stock companies and a variant utilising a trust structure known as deed-of-settlement companies. Legislative attempts to prohibit these unincorporated associations were not successful. Then, in 1844 the English Parliament passed legislation providing for incorporation of such associations by registration: Joint Stock Companies Registration and Regulation Act 1844 (UK).
4. The Joint Stock Companies Registration and Regulation Act converted the deed-of-settlement company into a creature of statute. Registration had two stages: (1) completion of an application that resulted in the issue of a provisional certificate of registration; and (2) formation of the company by a deed-of-settlement and filing that with the registrar. That Act was followed by the Limited Liability Act 1855 (UK) that allowed companies to be formed on the principle of limited liability of its members. The legislative framework was then recast in the Joint Stock Companies Act 1856 (UK). The two stages of registration were replaced by a memorandum of association and articles of association. A company was formed by persons subscribing their names to the memorandum of association and complying with the formalities of registration. The legislation relating to joint stock companies was later consolidated in the Companies Act 1862 (UK).
5. The developments of company law in England were mirrored through legislation of the Parliaments of the various Australian colonies. In Western Australia the Joint Stock Companies Ordinance 1858 (WA) was enacted. That was replaced by the Companies Act 1893 (WA) which was based on the Companies Act 1862 (UK). Later, that Act was replaced by the Companies Act 1943 (WA): Saraceni at [123]-[126].
6. Attempts were made from the late 1950s to achieve uniform companies legislation across the States and Territories of the Commonwealth of Australia. Uniform legislation was passed in the States and Northern Territory during 1961 and 1962. Western Australia enacted the Companies Act 1961 (WA). Later, there was a co-operative scheme that resulted in the States and Northern Territory enacting legislation applying the Companies Act 1981 (Cth). The law in Western Australia was known as the Companies (Western Australia) Code (WA). The National Companies and Securities Commission was also created and it had responsibility for administering the scheme granted to it under the State and Commonwealth Acts.
7. In 1989 the Commonwealth Parliament passed the Corporations Act (1989) by which it sought to create a national law governing companies and securities. In New South Wales v Commonwealth [1990] HCA 2; (1990) 169 CLR 482 the High Court held that the Constitution did not permit the Commonwealth to make a law for the incorporation of trading or financial corporations. Subsequently, in June 1990, the Commonwealth, States and Northern Territory agreed on a new national scheme.
8. The new co-operative scheme was enacted to operate from 1 January 1991. It involved the Corporations Act (1989) enacting the Corporations Law as a law of the Australian Capital Territory and each State and the Northern Territory enacting a Corporations Act that adopted the Corporations Law as the law of that State or Territory. Further, the Australian Securities Commission Act 1989 (Cth) was enacted by which ASC was established. ASC was authorised to exercise powers conferred on it by legislation of the States and the Northern Territory. The scheme also involved cross-vesting jurisdiction in Corporations Law matters between Federal and State courts.
9. Cross-vesting of jurisdiction under a State Corporations Law was later held to be unconstitutional: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at [122] (Gummow and Hayne JJ). The validity of the scheme insofar as it involved States purporting to confer powers of Commonwealth officers was also called into question: R v Hughes [2000] HCA 22; (2000) 202 CLR 535. As a consequence, the 1991 scheme was abandoned and replaced with the Corporations Act (2001) and Australian Securities and Investments Commission Act 2001 (Cth). These Acts commenced from 15 July 2001. In substance, the 1991 scheme (as amended to 2001) was re-enacted in new legislation underpinned by the States referring powers to the Commonwealth Parliament under s 51(xxxvii) of the Constitution to remove any doubt about the constitutional validity of the laws of the scheme.
10. In the period between the implementation of the Corporations Law and enactment of the Corporations Act (2001), a number of reforms were made to the Corporations Law. Relevantly, the Corporate Law Simplification Act 1995 (Cth) simplified the register requirements and re-defined the concept of a proprietary company. The Company Law Review Act 1998 (Cth) abolished the requirement for memorandum and articles of association and 'Table A' articles and replaced them with the concept of a corporate constitution and 'replaceable rules'. The 1998 reforms straddled the registration of PSA on 5 June 1998. (For ease of reference, in these reasons the Corporations Law before 1 July 1998 is referred to as the 'Corporations Law (1995)' and after 1 July 1998 as the 'Corporations Law (1998)'.) As part of the 1998 reforms ASC became known as the Australian Securities and Investments Commission, but it remained the same body, and the Act establishing that body was renamed the Australian Securities and Investments Commission Act 1989 (Cth): ss 7(1) and 7(2) of the ASIC Act (1989).
11. It is axiomatic that a company is a legal fiction. It is a legal person which is separate from its members: Salomon v A Salomon & Co Ltd [1897] AC 22. That legal person has the characteristics of a natural person with legal capacity: e.g., s 124(1) of the Corporations Act (2001). In substance, a company is a set of rules. These rules are to be found in the Corporations legislation and in the company's constitution. As a legal fiction a company can only conduct its affairs through the rules and (or) agency of natural persons. There are legal principles that determine what acts or omissions of natural persons are attributed to the company as acts or omissions of the company (as a legal person) as opposed to acts or omission of a natural person for whom the company is legally responsible under some legal principle (e.g., as principal for the acts of an agent): see, e.g., the discussion in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] UKPC 5; [1995] 2 AC 500. In short, a company as a separate legal person can only exist by operation of the Corporations legislation that governs the formation and (or) continuing existence of that company.

1. As of 5 June 1998, Pt 2.2 Div 1 of the Corporations Law (1995) dealt with formation and registration of companies. It provided, relevantly, as follows:

Section 114. Formation of companies

(1) Proprietary companies

One or more persons may form a proprietary company by:

(a) subscribing their name to a memorandum; and

(b) complying with the registration requirements for proprietary companies set out in this Division.

...

Section 116. Proprietary companies

(1) A company must comply with subsection (2) if it is to:

(a) be registered as a proprietary company; or

(b) convert to a proprietary company; or

(c) remain registered as a proprietary company.

(2) A proprietary company:

(i) limited by shares; or

(ii) an unlimited company that has a share capital; and

(b) must have no more than 50 non-employee shareholders.

...

Section 117. Requirements as to memorandum

(1) The memorandum of a company shall be printed, divided into numbered paragraphs, dated, and signed by the persons desiring the formation of the company, and shall, in addition to other requirements, state:

(a) the name of the company or that the company's name on registration is to be its registration number;

(b) unless the company is an unlimited company--the amount of share capital (if any) with which the company proposes to be registered and the division of that share capital into shares of a fixed amount;

(c) if the company is a company limited by shares--that the liability of the members is limited;

(d) if the company is a company limited by guarantee or a company limited both by shares and by guarantee--that the liability of the members is limited and that each member undertakes to contribute to the company's property if the company is wound up while he, she or it is a member or within one year after he, she or it ceases to be a member, for payment of the company's debts and liabilities contracted before he, she or it ceases to be a member and of the costs, charges and expenses of winding up and for adjustment of the rights of the contributories among themselves, such amount as may be required not exceeding a specified amount in addition to the amount (if any) unpaid on any shares held by him, her or it;

(e) if the company is an unlimited company--that the liability of the members is unlimited;

(f) if the company is a no liability company--that the acceptance of shares in the company does not constitute a contract to pay calls in respect of the shares or to make any contribution towards the company's debts and liabilities;

(g) the full names, addresses and occupations of the subscribers to the memorandum being natural persons, and the corporate names, and the addresses of the registered or principal offices, of the subscribers to the memorandum being bodies corporate; and

(h) that those subscribers wish to form a company pursuant to the memorandum and (if the company is to have a share capital) respectively agree to take the number of shares in the capital of the company set out opposite their respective names.

(2) The memorandum of a company may state the objects of the company.

(3) Each subscriber to the memorandum shall:

(a) if the company is to have a share capital--state in words:

(i) the number of shares (being at least one) that the subscriber agrees to take; and

(ii) if the shares in the company are divided into classes--the class or the respective classes in which the shares that the subscriber agrees to take are included; and

(b) in any case--sign the memorandum in the presence of at least one witness (not being another subscriber).

(4) A witness to the signature of a subscriber to the memorandum shall attest the signature and add his or her address.

(5) A statement in the memorandum of a company limited by shares that the liability of members is limited means that the liability of the members is limited to the amount (if any) unpaid on the shares respectively held by them.

Section 118. Registration application

(1) Persons desiring the incorporation of a company may lodge an application in the prescribed form for the registration of the company under this Division.

(2) The application must:

(a) state that it is desired to incorporate the company under the Corporations Law of this jurisdiction; and

(b) contain the prescribed information and matters; and

(c) be accompanied by:

(i) in any case--the prescribed documents (if any); and

(ii) unless subsection (3) applies--the memorandum, and the articles (if any), of the proposed company.

(3) If:

(a) the proposed company's memorandum states the matters that are required to be stated under paragraphs 117(1)(a), (b), (c) and (g); and

(b) the company is to be registered as a proprietary company;

the application must also set out those matters.

(4) The application shall be signed by:

(a) if subsection (3) applies--each subscriber; or

(b) otherwise--at least one subscriber;

to the proposed company's memorandum, in the presence of at least one witness (not being another subscriber).

(5) A witness to a signature that is required by this section shall attest the signature and add his or her address.

Section 119. Power to require production of unlodged memorandum

(1) Where an application under section 118:

(a) is not accompanied by the proposed company's memorandum; and

(b) purports to comply with subsection 118 (3);

the Commission may, even if it has no reason to suspect that the application was not made in accordance with that section, refuse to register the company under this Division unless and until the memorandum has been lodged.

(2) Where:

(a) a memorandum is lodged under subsection (1); and

(b) the Commission registers the company but is not required to register the memorandum;

the Commission shall, when it issues a certificate to the company under section 121, give the memorandum to the company.

Section 120. Registration

(1) Subject to this Law, where the Commission is satisfied that an application has been made in accordance with section 118, it shall:

(i) in any case--the application; and

(ii) unless the company is registered as a company limited by shares and as a proprietary company--the company's memorandum and articles (if any); and

(b) allot to the company a registration number distinct from the registration number of each body corporate (other than the company) already registered under this Part, Part 4.1 or a law corresponding to this Part or Part 4.1.

(2) The Commission must not register a company under this Division by a particular name unless that name is available within the meaning of section 367.

(3) Where an application under section 118:

(a) is not accompanied by the proposed company's memorandum; and

(b) purports to comply with subsection 118(3);

the Commission may, unless it has reason to suspect to the contrary, assume without inquiry that:

(c) the application does so comply; and

(d) the persons who signed the application are the subscribers to the memorandum.

Section 121. Certificate of registration

(1) On registering a company under this Division, the Commission shall prepare a certificate under its common seal that complies with this section and shall issue the certificate to the company.

(2) The certificate shall state that the company:

(a) is registered as a company under this Division of the Corporations Law of this jurisdiction; and

(b) because of that registration, is an incorporated company;

and shall specify the day of commencement of the registration.

(3) The certificate shall state that the company is:

(a) a company limited by shares;

(b) a company limited by guarantee;

(c) a company limited both by shares and by guarantee;

(d) an unlimited company; or

(e) a no liability company;

as the case requires.

(4) The certificate shall state that the company is a proprietary company or a public company, as the case requires.

(5) The Commission shall keep a copy of a certificate issued under this section, and subsections 1274 (2) and (5) apply in relation to that copy as if it were a document lodged with the Commission.

...

Section 123. Incorporation

(1) Subject to this Law, on and from the day specified in a certificate under section 121 as the day of commencement of a company's registration under this Division, the subscribers to the company's memorandum, together with such other persons as from time to time become members of the company, are an incorporated company by the name stated in the memorandum.

(2) A company registered under this Division:

(a) is capable of performing all the functions of a body corporate;

(b) is capable of suing and being sued;

(c) has perpetual succession;

(d) shall have a common seal; and

(e) has power to acquire, hold and dispose of property.

...

1. As already mentioned, there were amendments to the Corporations Law in 1998. These amendments made significant changes to the provisions relating to formation, registration and incorporation of companies. Part 2.2 Div 1 of the Corporations Law (1995) was repealed and replaced with Ch 2A and Ch 2B of the Corporations Law (1998).
2. Part 2A.1 of the Corporations Law (1998) made new provisions for the types of company that could be registered under that Law. Section 112(1) provided that the types of company included a proprietary company limited by shares. Section 113 provided that a company could not be registered as a proprietary company unless it had 50 or less non-employee shareholders. Section 45A provided that a proprietary company was a company that was registered as such under the Corporations Law. Section 114 provided that a company must have at least one member. Part 2A.2 made new provisions for how a new company was to be registered under the Corporations Law (1998).
3. Part 2B.1 made new provisions dealing with the separate legal capacity and powers of a company. Part 2B.4 made new provisions dealing with the internal management of a company abolishing the concept of memorandum and articles and replacing it with the concept of replaceable rules and a company constitution. Parts 2B.5 and 2B.6 contained new provisions dealing with a company's registered office and name.
4. The expression 'company' was defined to mean a company registered or taken to be registered under the Corporations Law: s 9. Therefore, the new provisions of Ch 2A and Ch 2B applied to any existing company registered under the Corporations Law at the time the provisions of the Corporations Law (1998) commenced.
5. The 1998 amendments also included a number of transitional provisions in Pt 11.2 Div 10 of the Corporations Law (1998) that gave effect to the changes introduced in, amongst others, Ch 2A and Ch 2B of the Law. Amongst other things, the memorandum and articles of a company immediately before commencement of the Corporations Law (1998) were taken together to make up the company's constitution after commencement. The registered office, opening hours and name of a company were also continued: ss 1418, 1419 and 1420 of the Corporations Law (1998). Relevantly, s 1413(a) of the Corporations Law (1998) provided that a company that was registered or taken to be registered before commencement of the Company Law Review Act 1998 under Pt 2.2 of the old Corporations Law as a proprietary limited company continued to be registered as a company of that type after commencement.
6. Section 1274(1) of the Corporations Law (1998) provided that ASIC was to keep such registers as it considered necessary in such form as it thought fit. Section 1274A(2) provided that ASIC could permit a person to search a prescribed register. Regulation 9.1.01 of the Corporations Regulations 1990 (Cth) prescribed the register of companies registered under, relevantly, s 118 or the registration of which was continued by s 1413 of the Corporations Law (1998).
7. The collective effect of the provisions of Pt 11.2 Div 10 of the Corporations Law (1998) was that a company registered under Pt 2.2 of the Corporations Law (1995) as a proprietary limited company continued to be registered as a company of that type under the Corporations Law (1998) on and from 1 July 1998. From that date the company assumed the features a registered proprietary company limited by shares had under the Corporations Law (1998). Thus, in effect, a company registered or taken to have been registered under Pt 2.2 of the Corporations Law (1995) was continued as and was taken to have been registered as a company under Pt 2A.2 of the Corporations Law (1998).

Corporations Act 2001

1. As already mentioned, the Corporations Act (1989), including the Corporations Law, and the Corporations Acts of the various States and the Northern Territory were repealed and replaced with the Corporations Act (2001) which commenced on 15 July 2001. Although it has been amended numerous times since 2001, at the time it commenced, the Corporations Act (2001) largely re-enacted the Corporations Law as it stood immediately before 15 July 2001. The Corporations Act (2001) also includes transitional provisions in Pt 10.1 to give effect to the changes from the co-operative Corporations Law scheme to the Corporations Act (2001).
2. Section 1370 provides that the object of Pt 10.1 is to provide for a smooth transition from the regime provided for in the old Corporations Law to the regime provided for in the Corporations Act (2001) so that persons affected are, to the greatest extent possible, put in the same position immediately after commencement of the Corporations Act (2001) as they would have been in under the old Corporations Law (1998) as if that law had been valid Commonwealth legislation and the Corporations Act (2001) were a continuation of that old Commonwealth legislation.
3. Relevantly, the transitional provisions in Pt 11.2 Div 10 of the Corporations Law (1998) have the same effect as if they were part of the Corporations Act (2001) and produce the same results or effects for the purposes of the Act as they produced for the purposes of the Law: s 1408(1) and s 1408(6). Further, if the Corporations Law (1998) had effect before commencement of the Corporations Act (2001) to take or deem something to have happened or to be the case, or to have a particular effect for the purposes of the Law or to give something an effect for the purposes of that Law that it would not otherwise have had and that effect was continuing immediately before commencement of the Act, Pt 10.1 applies as if that thing had actually happened or were actually the case, or as if that thing actually had that other effect: s 1373. Additionally, a registration of, amongst others, a proprietary company limited by shares, under Pt 2A.2 of the Corporations Law (1998) has effect and may be dealt with after commencement of the Corporations Act (2001) as if it were a registration of a company under Pt 2A.2 of that Act: s 1378.
4. The collective effect of the provisions of Pt 10.1 of the Corporations Act (2001) and Pt 11.2 Div 10 of the Corporations Law (1998) is that a proprietary company limited by shares registered under Pt 2.2 of the Corporations Law (1995) has effect and may be dealt with on and from 15 July 2001 as if it were a registration of a company under Pt 2A.2 of the Corporations Act (2001). That conclusion is consistent with Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 at [50] [footnote (94)] (Hayne, Crennan and Kiefel JJ); Re Equiticorp Australia Ltd (In Liq) [2011] NSWSC 1368; (2011) 255 FLR 417 at [11], [17] (Barrett J); and In the matter of Equiticorp Australia Ltd (in liq) [2020] NSWSC 143 at [14] (Gleeson J).
5. In Weinstock v Beck there was no dispute that a company incorporated under the Companies Act 1961 (NSW) was a 'corporation' to which s 1322(4)(a) of the Corporations Act (2001) applied. The 1961 Act was repealed by the Companies (Application of Laws) Act 1981 (NSW) which applied the Companies Act (1981) known as the Companies (New South Wales) Code. By s 20 and s 21 the company was taken to have been incorporated under the Companies (NSW) Code. The 1981 Act was repealed by the Corporations (New South Wales) Act 1990 (NSW) which applied the Corporations Law in New South Wales. By s 126 of the Corporations Law and, following the amendments made by the Company Law Review Act 1998, by s 1362CA and s 1362CB, the company was taken to be a company registered under Pt 2.2 Div 2 of that Law. Section 1322(4)(a) of the Corporations Act (2001) was accepted to apply to the company by operation of s 1362CA and s 1362CB of the Corporations Law (1998) together with s 57A(1), 1378(1) and 1408 of the Corporations Act (2001).
6. In Equiticorp Australia (2011) and Equiticorp Australia (2020) each of Barrett J and Gleeson J came to the conclusion that companies incorporated under the Companies Act 1936 (NSW) and Companies Act (1981) as in force in the Australian Capital Territory and in New South Wales as the Companies (New South Wales) Code were taken to be companies registered under Pt 2A.2 of the Corporations Act (2001) on and from 15 July 2001. Barrett J (at [11]) was of the view that '[a]t the commencement of the [Corporations Act (2001)] each was registered under Part 2A.[2] of the Corporations Law of New South Wales' and the 'effect of s 1378 of the Corporations Act [(2001)] is accordingly that the pre-existing registration has effect as if it were a registration under Part 2A.2 of the Corporations Act [(2001)] itself'. Gleeson J agreed (at [14]) and elaborated on the provisions of the various legislation that resulted in that conclusion. That elaboration involved an analysis of largely the same provisions as those referred to in Weinstock v Beck.
7. Although no reference was specifically made to s 1413 in Weinstock v Beck, Equiticorp Australia (2011) or Equiticorp Australia (2020), s 1413 of the Corporations Law (1998) must have applied to the companies under consideration because, by operation of s 1362CA and s 1362CB to which reference was made, each company was taken to have been registered under Pt 2.2 of the Corporations Law (1995) before commencement of the Corporations Law (1998). Accordingly, those companies were in the same position as a company that was actually registered under Pt 2.2 of the Corporations Law (1995) to which s 1413 applied. Thus, by parity of reasoning, the registration of a company under Pt 2.2 of the Corporations Law (1995) is taken to have been a registration under Pt 2A.2 of the Corporations Law (1998) and that, in turn, is taken to have been a registration of the company under Pt 2A.2 of the Corporations Act (2001) on and from 15 July 2001.

1. As already mentioned, under s 1274(1) and s 1274A(2) of the Corporations Law (1998), ASIC was required to keep certain registers and under reg 9.1.01 of the Corporations Regulations (1990) the prescribed register included the register of companies. These provisions were (and are) re-legislated in Corporations Act (2001) and Corporations Regulations 2001 (Cth).
2. Section 1274(1) of the Corporations Act (2001) provides that, subject to the Act, ASIC must keep such registers as it considers necessary in such form as it thinks fit. Sub-sections 1274A(2), (3) and (4) make provision for ASIC to permit a person to search a prescribed register in order to obtain prescribed information from the register (meaning a register kept by ASIC under the Act).
3. Regulation 9.1.01(a) of the Corporations Regulations (2001) provides that 'the register of companies registered under section 118 or 601BD of the Corporations Act [(2001)] or the registration of which is continued by section 1378 of the Act' is prescribed for ss 1274A(2), (3) and (4). Regulation 9.1.02(a) provides:

For subsections 1274A(3) and (4) of the Act, the following information is prescribed:

(a) in relation to each company (other than a CCIV) registered under section 118 or 601BD of the Act or the registration of which is continued by section 1378 of the Act:

(i) its full name, the date of its registration and its registration number;

(ii) whether it is a public company or a proprietary company;

(iii) whether it is a company limited by shares, a company limited by guarantee, a company limited by both shares and guarantee, an unlimited company or a no liability company;

(iv) its contact address;

(iva) its principal place of business;

(v) its registered office;

(vi) its officers;

(vii) any scheme of arrangement it has entered into with its creditors, its placement under voluntary administration, a deed of company arrangement, restructuring or receivership, or its liquidation;

(viii) its paid-up and unpaid capital;

(ix) its deregistration;

(x) any charges on its property that have been lodged with ASIC or entered in the Australian Register of Company Charges;

1. It is convenient to refer to the register identified in reg 9.1.01(a) as the 'register of companies': In the matter of Azzurri Group Holdings Pty Ltd [2023] NSWSC 566 at [30]- [32] (Williams J). Further, it may be accepted that the ASIC 'database under s 1274A of the Corporations Act [(2001)]' typically referred to in ASIC company extracts is the register of companies prescribed under reg 9.1.01(a): Re MIG Property Services Pty Ltd (No 2) [2012] VSC 606; (2012) 92 ACSR 234 at [60]- [65] (Robson J); Kay v Playup Australia Pty Ltd [2018] NSWSC 1579; (2018) 339 FLR 193 at [45]- [49] (Parker J).
2. Section 1399(1) of the Corporations Act (2001), which is in Pt 10.1, provides that a thing that was done before the commencement by, under, or for the purposes of, these provisions of the Corporations Law (1998) and Corporations Regulations (1990) that had an ongoing significance before commencement for the purposes of that old legislation has effect (and may be dealt with) after commencement for the purposes of the Corporations Act (2001) and Corporations Regulations (2001), as if it were done by, under or for the purposes of the corresponding provision of that new legislation. Section 1399(2)(f) provides that the establishment of a register is as an example of 'a thing done'. Second 1399(4)(f) provides that a thing done had ongoing significance if it was the establishment of a register that remained in existence immediately before commencement of the new legislation. It follows that the register of companies ASIC kept under the Corporations Law (1998) continues as the register of companies after commencement of the Corporations Act (2001).
3. In Re Vouris [2003] NSWSC 702; (2003) 177 FLR 289 Campbell J concluded, through a different process of reasoning, that s 1322 of the Corporations Act (2001) applied to events that took place at a time when the Corporations Law was in force:

48 ... Though [s 1322] repeatedly makes reference to "this Act", section 1405 of the [Corporations Act (2001)] extends the reference to "this Act" to include a reference to the Corporations Law. Thus, even though the event concerning which the applicant seeks a validating order occurred at time when it was the Corporations Law which was in force, it is possible to make an order under section 1322 of the [Corporations Act (2001)] in relation to that event. ...

(Emphasis in the original.)

1. Adopting the same process of reasoning, s 1322(4)(b), which refers to 'rectification of any register kept under this Act' may apply, by operation of s 1405, to an entry made in a register kept at a time when the Corporations Law was in force.

1. Subject to resolution of the separate questions, the following conclusions flow from the preceding analysis:

(1) Upon registration of PSA as a company under Pt 2.2 of the Corporations Law (1995), a legal person separate from its members (the subscribers to its memorandum) came into existence.

(2) Registration of PSA as a proprietary company limited by shares under Pt 2.2 of the Corporations Law (1995) has effect from 15 July 2001 as if it were a registration of that company under Pt 2A.2 of the Corporations Act (2001).

(3) The register of companies that ASIC kept under the Corporations Law continues as the register of companies ASIC keeps under the Corporations Act (2001) and is a register to which s 1322(4)(b) of the Corporations Act (2001) may apply.

(4) The register of companies may be rectified where the events that resulted in registration took place when the Corporations Law was in force and the entry was made in the register kept before the Corporations Act (2001) commenced.

Was registration of PSA an authorised exercise of statutory power?

1. The plaintiffs contend that the registration of PSA was invalid ab initio (from the beginning) because, on the assumed facts, the memorandum was not signed by Mr and Mrs Boyle. Therefore, a proprietary company was not formed in accordance with s 114(1) because the Boyles had not subscribed their names to a memorandum and the Boyles had not complied with the registration requirements for proprietary companies set out in Div 1 of Pt 2.2 of the Corporations Law (1995). There had not been compliance with those requirements because the memorandum had not been signed by the Boyles as 'the persons desiring the formation of the company' in accordance with s 117(1) and s 117(3)(b). Also, as the Boyles had not signed the memorandum, they could not have signed it in the presence of at least one witness (not being another subscriber) and the witness(es) had not attested the Boyles' signatures. Therefore, there could not have been compliance with the requirements of s 117(3)(b) and s 117(4). As a consequence, so the plaintiffs contend, the company was not 'formed' and could not be registered.
2. Division 1 of Pt 2.2 of the Corporations Law (1995) contained three separate but connected concepts. First, formation of a company (s 114). Relevantly for a proprietary company, formation required an initial step involving one or more person(s) subscribing to a memorandum (s 114(1)(a)). At that point, there was no separate legal person from the subscriber(s). Second, registration of a company (ss 118, 120, 121). Registration is also a second step in the formation of a company (s 114(1)(b)). Third, incorporation of the company (ss 121, 123). On and from the day specified in a certificate under s 121 as the day of commencement of a company's registration, the subscriber(s) together with such other persons as from time to time become members of the company were an incorporated company with a separate legal personality from the subscriber(s) and other members (s 123).
3. Form 201 was an application in the prescribed form for the registration of a company under Div 1 of Pt 2.2 of the Corporations Law (1995) to which s 118(1) referred. Form 201 was in accordance with s 118 and was signed by Mr and Mrs Boyle who were identified in the form as the subscribers to the then proposed company's memorandum. On the face of the form, their signatures were witnessed by at least one witness who attested the signatures and added his address. On the face of the form, it was not required to be accompanied by the memorandum as Form 201 set out the matters required to be stated in the memorandum under ss 117(1)(a), (b), (c) and (g) and, therefore, s 118(3) applied.
4. The effect of s 119(1) was that, even in circumstances in which it was not necessary to lodge the memorandum with the application for registration, ASC could refuse to register the company until the memorandum was lodged. If so, the memorandum was to be returned to the company at the time of issuing the certificate of registration under s 121. Otherwise, the effect of s 120 was that if ASC was satisfied that an application had been made in accordance with s 118, it was required to register the company. As PSA was to be registered as a proprietary company limited by shares, it was registered by registering Form 201 alone and registration of the company did not require registration of the company's memorandum. Further, in accordance with s 120(3), in the circumstances of the lodgment of Form 201 in this case, ASC was entitled to assume without inquiry that the application complied with s 118(3) and the persons who signed the application (Mr and Mrs Boyle) were the subscribers to the memorandum.
5. The ASIC register records that on 5 June 1998 PSA was registered. The ASIC register records that on 8 June 1998 a certificate of registration of PSA was issued in accordance with s 121 of the Corporations Law (1995). The effect of these facts is that, in accordance with s 123, on and from 5 June 1998 the subscribers to PSA's memorandum together with such other persons as from time to time become members of the company were an incorporated company.
6. The ASIC register records that after 5 June 1998 there was a change in the share capital of the company, two ordinary shares were issued. Mrs Banning is currently the holder of all issued shares and the sole member of the company. It follows that, even if it could be said that Mr and Mrs Boyle were not 'the subscribers to the company's memorandum' within the meaning of s 123, a company was incorporated on 5 June 1998 and it comprised its members from time to time. Currently, pursuant to s 114 of the Corporations Act (2001), a company that is registered needs to have at least one member. Therefore, whatever may have been the case in June 1998, on the assumed facts, the register cannot now be defective on the ground that PSA does not have at least one member.
7. The Corporations Law (1995) conferred power on ASC to register PSA. ASC had no discretion but was required to register the company if satisfied that an application was made in accordance with s 118. In reaching that state of satisfaction, unless it had reason to suspect to the contrary, ASC was entitled to assume without inquiry that the application complied and the persons who signed the application were subscribers to the memorandum.
8. The only necessary preconditions to registration of PSA were that an application was lodged under s 118 and that ASC was 'satisfied' that the application was made in accordance with s 118. The actual existence of a memorandum signed by the Boyles, in the presence of a witness who attested to the signature, to which the Boyles had subscribed their names, and which complied with the other requirements of s 117(1) was not a necessary precondition to registration of PSA. Therefore, as ASC evidently formed the state of satisfaction that was a necessary precondition to registration and registered PSA by registering the application, the registration of PSA was 'valid', in the sense of authorised, and in accordance with s 120 of the Corporations Law (1995). It follows that the registration of PSA on 5 June 1998 was an authorised (valid) exercise of statutory power notwithstanding, on the assumed facts, the memorandum was not signed by Mr and Mrs Boyle.

Are the plaintiffs able to challenge the validity of registration of PSA?

1. The defendants contend that it is not open to the plaintiffs as private parties (as opposed to the Crown or ASIC) to challenge the validity of the registration because s 1389(1) of the Corporations Act (2001) provides that the certificate of registration of PSA is conclusive evidence that the requirements of the Corporations Law (1995) were satisfied.
2. The agreed facts include that the companies register kept by ASIC records that on 8 June 1998 a certificate of registration for PSA was issued. In accordance with s 121 of the Corporations Law (1995) the certificate was required to state that the company was registered as a company under Div 1 of Pt 2.2 of the Corporations Law (1995) and specify the date of that registration and state that because of that registration, that company was an incorporated company. Relevantly, the certificate was also required to state that the company was limited by shares and was a proprietary company.
3. Although the certificate was not tendered separately or as part of the agreed facts, I infer from the statement of agreed facts and s 121 of the Corporations Law (1995) that such a certificate was issued for PSA on 8 June 1998 and that it contained the information required by s 121 including a statement that the company was registered on 5 June 1998. Therefore, on the agreed facts, it is open to the defendants to contend that the plaintiffs are not permitted to go behind the certificate notwithstanding that it is assumed, for the purposes of the separate questions, that the memorandum was not signed by the subscribers as required by s 116(1) and 117 of the Corporations Law (1995).
4. The plaintiffs contend that they are not bound by the certificate of registration because the 'requirement' that the subscribers sign the memorandum was a matter preceding or incidental to the registration. They argue that a matter of that nature does not fall within the meaning of 'requirements of the Law for the company's registration' in s 1389(1)(a) of the Corporations Act (2001). The plaintiffs submit that the only requirements for registration of a company under the Corporations Law (1995) were those contained in s 118 of the Corporations Law (1995). The requirements of s 114(1), s 117(1), s 117(3) and s 117(4) were matters preceding or incidental to the registration and, therefore, not 'requirements of the Law for the company's registration'.

Section 1389(1) of the Corporations Act (2001)

1. The plaintiffs' submission raise the proper construction of s 1389(1) of the Corporations Act (2001) as an issue. Section s 1389(1), which is in Pt 10.1, provides:

(1) A certificate by ASIC (whether issued before or after the commencement) stating that a company was registered under the old Corporations Law of a State or Territory in this jurisdiction is conclusive evidence that:

(a) all requirements of that Law for the company's registration were complied with; and

(b) the company was duly registered as a company under that Law on the date (if any) specified in the certificate.

1. ASIC is defined in s 9 of the Corporations Act (2001) to mean the Australian Securities and Investments Commission. Pursuant to s 261 of the ASIC Act (2001), ASIC, as established under s 7 of the ASIC Act (1989), continues in existence as if it had been established under the ASIC Act (2001). Therefore, s 1389(1) applies to a certificate issued by ASC (known from 1 July 1998 as ASIC) established under the ASIC Act (1989) and continued in existence as if established under the ASIC Act (2001) from 15 July 2001. Thus, s 1389(1) applies to the certificate of registration ASC issued for PSA on 8 June 1998.
2. While the analysis of the meaning of a provision in a statute or legislative instrument starts and finishes with the text, the text must be considered in context and having regard to the legislative purpose: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The modern approach to statutory interpretation insists that context, in its widest sense, be considered in the first instance not merely when ambiguity might be thought to arise: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). Where different interpretations are open, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: s 15AA of the Acts Interpretation Act 1901 (Cth). To that end, material not forming part of the Act that is capable of assisting in the ascertainment of the meaning of the provision to be considered may be taken into account, either to confirm the ordinary meaning of the provision or to determine the meaning in cases where meaning is ambiguous, obscure, absurd or unreasonable: Interpretation Act, s 15AB.

1. Section 18 of the Companies Act 1862 (UK) provided that a 'certificate of the incorporation of any company, given by the Registrar, shall be conclusive evidence that all the requisitions of this Act in respect of registration, have been complied with'. In 1900 that Act was amended to enact a provision that 'the certificate shall be conclusive evidence that all the requisitions of the Companies Act in respect of registration and matters precedent and incidental thereto have been complied with, and that the association is a company authorised to be registered and duly registered under the Companies Acts'. The amendments were repeated in the Companies (Consolidation) Act 1908 (UK).
2. The conclusive evidence provisions of the Companies Act 1862 (UK) and the amendments of 1900 and 1908 were reflected in the Companies legislation in the colonies and later States of Australia. In Western Australia s 21 of the Companies Act 1893 (WA) was in substantially the same form as s 18 of the Companies Act 1862 (UK). Section 26(1)(b) of the Companies Act 1943 (WA) was in a form that contained the amendments made in the 1900 and 1908 English Acts. A provision in substantially the same form was preserved in s 372 of the Companies Act 1961 (WA) and s 93 of the Companies (Western Australia) Code. Likewise, at the time that the certificate of registration of PSA was issued, the Corporations Law (1995) provided:

Section 122. Evidentiary certificates

A certificate under the Commission's common seal stating that a specified body corporate has been registered under Division 1 of Part 2.2 of the Corporations Law of this or another jurisdiction is conclusive evidence that:

(a) all requirements of that Law in respect of:

(i) registration of the body corporate as a company under that Division; and

(ii) matters preceding or incidental to the registration;

have been complied with; and

(b) the body corporate is duly registered as a company under that Division; and

(c) the day of commencement of the registration is the day (if any) specified as such in the certificate.

1. The 1998 amendments to the Corporations Law repealed s 122 and introduced s 1274(7A) as follows:

(7A) A certificate issued by ASIC stating that a company has been registered under the Corporations Law of any jurisdiction is conclusive evidence that:

(a) all requirements of that Law for its registration have been complied with; and

(b) the company was duly registered as a company under that Law on the date specified in the certificate.

1. Section 1274(7A) of the Corporations Act (2001) is in the same terms with necessary amendments to reflect that it operates with respect to that Act and not the Corporations Law. Section 1389(1), which is in similar terms, addresses certificates issued under the Corporations Law and s 1389(2), again in similar terms, addresses certificates issued under pre-Corporations Law companies legislation.
2. In substance, the plaintiffs' submissions fix on and seek to make significance of the inclusion of the words 'matters preceding or incidental to registration' in s 122 of the Corporations Law (1995) and the absence of those words in s 1389(1) of the Corporations Act (2001). However, before the introduction of the form of words used in s 1274(7A) of the Corporations Law (1998) and s 1389(1) of the Corporations Act (2001) the form of the conclusive evidence provisions in the legislation of England, Australia and other common law countries both with and without reference to 'matters preceding or incidental to registration' had been the subject of substantial judicial consideration and, with the exception of one authority, the conclusive nature of a certificate of registration (or incorporation) in respect of requirements of registration and matters preceding or incidental to registration was well-established and without doubt.
3. In the case of In re Barned's Banking Co (No 3) [1867] UKLawRpCh 75; (1867) LR 2 Ch App 674 (Peel's case), Cairns LJ sitting as a single justice of the Court of Appeal considered s 18 of the Companies Act 1862 (UK) in circumstances in which unauthorised alterations had been made to the memorandum after it had been signed. The certificate was given in due form, but Mr Peel requested his name be removed from the list of contributories on the ground that unauthorised amendments were made to the memorandum and, consequently, the memorandum was not signed as required. Lord Cairns rejected Mr Peel's case on the ground that the certificate of incorporation was conclusive and said:

... according to the Act of Parliament, the certificate of incorporation given by the Registrar is not merely a prima facie answer, but a conclusive answer, to any such objection, and, as it seems to me, not only is that the express provision of the Act of Parliament, but there is sufficient reason for such a provision. Parliament requires, for obvious purposes of public policy, that a company of this description should begin by seven or more persons subscribing a memorandum which is to be registered; and when once the memorandum is registered, and the company is held out to the world as a company undertaking business, willing to receive shareholders, and ready to contract engagements, then it would be of most disastrous consequence if, after all that had been done, any person was allowed to go back and enter into an examination (it might be years after the company had commenced trade) of the circumstances attending the original registration, and the regularity of the execution of the document originally received by the Registrar. The Registrar, if he performs his duty carefully, will be the guardian of the public interest, by seeing that the memorandum is properly executed and properly brought for registration; but, whether he does so or not, when once the certificate of incorporation is given, nothing is to be inquired into as to the regularity of the prior proceedings. Of course that is quite consistent with the persons who were parties to the original memorandum, and executed it, retaining entirely intact any right which they may have against the Registrar, or any other persons, if a document executed by them in one form comes afterwards to be registered in another form, through having been altered without their sanction; but it is not necessary to express any opinion on the present occasion whether their legal rights remain entire, notwithstanding the 18th section. ...

1. In Oakes v Turquand [1867] UKLawRpHL 18; (1867) LR 2 HL 325 the House of Lords considered the same provision and an argument that the memorandum of association had not been subscribed by seven persons as was required under the Companies Act 1862 (UK). Lord Chelmsford (at 354) rejected that argument and said: 'I think the certificate prevents all recurrence to prior matters essential to registration, amongst which is the subscription of a memorandum of association by seven persons, and that it is conclusive in this case, that all previous requisites had been complied with'. Lord Cranworth also rejected the argument on the basis of the conclusiveness of the certificate (at 369). Lord Colonsay agreed with the other Law Lords (at 378).
2. Later, in the case of In re National Debenture and Assets Corporation [1891] UKLawRpCh 79; [1891] 2 Ch 505 the English Court of Appeal expressed the opinion that the certificate was not conclusive evidence as to the number of persons who had signed the memorandum. In that case the primary judge had found that the memorandum was subscribed by six persons and he declined to treat the certificate of incorporation as conclusive. In the appeal further evidence was admitted and the Court of Appeal found that the memorandum had in fact been subscribed by the required seven persons. While the appeal was upheld on that ground, in the course of the judgment the members of the Court of Appeal expressed the view that if there had been only six subscribers then the primary judge was correct to conclude that the certificate was not conclusive.
3. The Privy Council revisited the issue in Ariff v Ariff (1912) 28 TLR 505. The Board there assumed for the purposes of the appeal that the conditions of registration prescribed by the Indian Companies Act of 1882 were not complied with in that there were not seven subscribers to the memorandum of association and that the Registrar of Companies ought not to have granted a certificate of incorporation. However, as a matter of fact, a certificate had been granted. The Board held that the certificate of incorporation was conclusive for all purposes based on a conclusive evidence provision of the Indian Companies Act that was in the same terms as s 18 of the Companies Act 1862 (UK). Lord MacNaughten, who delivered the judgment and advice of the Board, endorsed Lord Cairns' reasons in Peel's case and the observations of Lord Chelmsford in Oakes v Turquand. His Lordship disapproved of the reasoning in National Debenture on the ground that the observations of the Court of Appeal were 'mere dicta' and that court had 'no jurisdiction to reverse Lord Cairns's decision' which in their Lordships' opinion 'was of unquestionable authority untouched by any subsequent decision and unimpaired by any dictum in any Superior Court'. His Lordship noted, however, that the English Parliament had thought fit 'to set the matter at rest by the Imperial Act of 1900, which put the words of Lord Cairns and Lord Chelmsford in a legislative enactment repeated in the Imperial Act of 1908.' In substance, the Privy Council was of the view that the amendments in the Acts of 1900 and 1908 (as reflected in s 122 of the Corporations Law (1995)) were not necessary because matters preceding or incidental to the registration were captured within the meaning of 'all the requisitions of this Act in respect of registration'.
4. The amendments in the English Acts of 1900 and 1908 were considered by the House of Lords in Bowman v Secular Society Ltd [1917] AC 406. Lord Finlay observed (at 420) that: 'This provision appears to have been introduced into the Act of 1900 to get rid of some doubts which had been raised by what was said in the case of In re National Debenture and Assets Corporation'. Lord Parker said (at 439) that the effect of the section was to 'preclude all His Majesty's lieges from going behind the certificate or from alleging that the society is not a corporate body with the status and capacity conferred by the Acts'. The House of Lords confirmed the conclusive nature of the certificate under the provisions of the 1908 Act in Cotman v Brougham [1918] AC 514.
5. In HA Stephenson and Son Ltd (in liq) v Gillanders, Arbuthnot and Co (1931) 46 CLR 476 Evatt J considered s 21 Companies Act 1893 (WA). Evatt J surveyed Peel's case, Oakes v Turquand, National Debenture, Ariff v Ariff and Cotman v Brougham. His Honour expressed the view that under the Western Australian Act, an essential requirement was that the memorandum contained a statement of the company's objects and that the certificate, notwithstanding the absence of the words in the 1900 and 1908 English amendments, was conclusive evidence of compliance with that requirement: HA Stephenson at 488-500. That is, Evatt J appears to have accepted that 'all previous requisites' extended to 'matters precedent and incidental' to registration, including, the form of the memorandum.
6. There is no explanation in the Explanatory Memorandum for the Company Law Review Bill 1998 of any reason for the change in the wording of the provision or the omission of words relating to 'matters preceding or incidental to registration'. Paragraph [7.18] of the Explanatory Memorandum indicated that s 1274(7A) was to operate to ensure that a certificate issued under the Corporations Law is 'conclusive evidence that the company was duly registered at the beginning of the day shown in the certificate'. There does not appear to be any authority that has specifically considered the construction of s 1274(7A) of the Corporations Law (1998) or Corporations Act (2001) or if its operation may be intended to differ from that of s 122 of the Corporations Law (1995). Otherwise, there is nothing to suggest that the amendments made in 1998 and maintained from 2001 were intended to change the long and well-established understanding of the intended operation of conclusive evidence provisions in companies legislation in England and Australia.
7. Conclusive evidence provisions are also common in legislation dealing with other kinds of registrations such as credit unions or friendly societies, incorporated associations, trade unions and limited partnerships. These involve associations that are not typically regulated under companies' legislation.
8. For example, in Bank of Beirut SAL v HRH Prince Adel El-Hashemite [2015] EWHC 1451 (Ch) Nugee J considered the effect of a conclusive evidence provision in the Limited Partnerships Act 1907 (UK). Section 8C(1) of that Act made provision for the issue of a certificate of registration of a limited partnership. The certificate was to be signed by the registrar: s 8C(2); and contain certain information: s 8C(3). The certificate was 'conclusive evidence that a limited partnership came into existence on the date of registration': s 8C(4). The issue arose because the Prince had fraudulently procured the registration of limited partnerships by, amongst other things, falsely claiming that certain banks had entered into limited partnership agreements with him. The Prince had also signed applications for registration on behalf of the banks on the basis of a false claim that he held a power of attorney from each bank. As the applications appeared to be in accordance with the Act, the limited partnerships were registered and the Registrar issued certificates of registration for them. The banks sought to obtain rectification of the register by requesting the court to order the Registrar to delete the registration of the non-existent limited partnerships on the ground that 'fraud unravels everything'.
9. Nugee J was of the view that, absent the conclusive evidence provision, the court had power to order rectification of the register (at [90]). After surveying the authorities concerning the conclusive evidence provisions regarding registration of companies (at [91]-[102]), Nugee J concluded (at [103]) that the principle that fraud unravels all was not a sufficient basis to go behind the conclusive evidence provision reasoning 'I do not think that section 8C can in effect be interpreted as if it read "the certificate is conclusive evidence that a limited partnership came into existence on the date of registration, save where the certificate has been procured by fraud".' Nugee J then considered the public policy to which s 8C was aimed reinforced the conclusion he had reached (at [104]-[105]).
10. Bank of Beirut was distinguished and not followed in D Marks Partnership v Federal Commissioner of Taxation [2016] FCAFC 86; (2016) 245 FCR 247. In that case, a limited partnership was registered under the Partnership (Limited Liability) Act 1988 (Qld). Relevant provisions of the taxation legislation permitted limited partnerships to be taxed on the same basis as a company if the limited partnership was an association of persons (other than a company) that carried on business as partners or that was in receipt of ordinary income or statutory income jointly, where the liability of at least one of those persons was limited. The taxpayers evidently accepted that, as a matter of fact, the entities constituting the registered limited partnership were not carrying on business with a view to profit and, as a consequence, were not partners in the sense required by the Queensland partnership legislation. However, the taxpayers contended that the certificate of registration of the limited partnership was conclusive evidence as to the formation and composition of that partnership.
11. Section 8(4) of the Partnership (Limited Liability) Act (Qld) provided:

(4) A certificate issued under subsection (3) -

(a) shall be conclusive evidence that the limited partnership to which it refers was formed on the date of registration referred to in the certificate; and

(b) shall be evidence and, in the absence of evidence to the contrary, conclusive evidence that the partnership to which it refers consists or consisted of the general partners and limited partners named in the certificate as such.

1. Pagone J (Griffiths J agreeing and Logan J in dissent) said, citing Mune v Centro Argentino of Victoria Incorporated [1996] VicRp 59; [1996] 2 VR 82 at 83, 89-90, 92 and 94, that s 8(4) as a conclusive evidence provision was to be construed strictly. Pagone J was of the opinion that conclusivity was confined, on the natural and ordinary meaning of the words of the provision, to the 'temporal aspect of formation and not otherwise to the fact that what was formed carried the legal characteristics of a partnership'. Further, the purpose of registration under the Partnership (Limited Liability) Act (Qld) was not to create a new fictional category of limited partnerships upon registration of an association which was not otherwise an existing partnership: D Marks at [145].
2. Pagone J distinguished Bank of Beirut on the grounds that s 8C(4) of the Limited Partnership Act (UK) was in different terms to s 8(4) of the Partnership (Limited Liability) Act (Qld). Also, that the certificate in Bank of Beirut was conclusive evidence of the existence of a limited partnership did not result in Nugee J treating the registered entity as a partnership for any purpose other than preventing removal of the registration. Therefore, Bank of Beirut was not authority for the proposition that registration gave legal effect to a falsely registered limited partnership: D Marks at [146]-[148].

1. Accepting that the text of s 1389(1) should be construed strictly, the expression 'all the requirements of that Law for the company's registration' must extend to any matters preceding or incidental to the registration that were requirements of the Corporations Law (1995) for registration of a company. There are six matters favouring that construction.

(1) In the context of s 1389(1), 'for' is used to mean 'in order to obtain'. The literal meaning of 'requirements of that Law [in order to obtain] the company's registration' extends to any 'requirement' whether it precedes, is incidental to, or directly forms part of, the process of registration. The relevant criterion of the section is merely that the requirements are for the company's registration. The relevant criterion is not the sequence or point at which any requirements arise in the process by which registration is obtained. Nor is the relevant criterion the nexus (incidental or direct) of the requirement with the registration.

(2) The construction is consistent with the evident purpose of s 1389(1) which is captured in the statement of Lord Cairns in Peel's case referred to earlier in these reasons. It is no hyperbole to describe the consequence of allowing any person to go back and enter into an examination of the circumstances attending registration which may, as here, be many years after the company has commenced trading as 'disastrous'. The company from registration is held out to the world as a legal person with whom third parties may deal so as to become members, creditors and counterparties to contractual or other arrangements.

(3) The construction is also consistent with the approach taken to similarly worded provisions that has prevailed in England and Australia for more than 150 years.

(4) There is no suggestion in the Explanatory Memoranda related to the legislation that introduced the relevant amendments to the provisions of the Corporations Law that there was any legislative purpose or intention to depart from the standard approach and to exclude matters preceding or incidental to the registration from the conclusive evidence provision.

(5) In any event, the change in the text between s 122 and s 1274(7A) made no substantive difference to the meaning or scope of the conclusive evidence provision. Section 122 used the expression 'all requirements of that Law in respect of: (i) registration of the body corporate as a company ... and (ii) matters preceding or incidental to the registration' (emphasis added). Section 1274(7A) used the expression 'all requirements of that Law for the company's registration' (emphasis added). Irrespective of whether a requirement in order to obtain registration under the Corporations Law (1995) was a requirement in respect of registration or a matter preceding or incidental to the registration, it meets the description of a requirement for registration.

(6) The construction for which the plaintiffs contend would, in substance, give effect to the reasoning in National Debenture that was obiter dictum and contrary to earlier English authority and has been disapproved and not followed in the Privy Council and not followed by at least one justice of the High Court. Departure from the standard approach would result in commercial uncertainty that amendments to the English legislation (replicated in Australian legislation) were intended to overcome.

1. While the conclusive nature of the certificate of registration extends to matters preceding or incidental to the registration that were requirements of the Corporations Law (1995) for registration, there are exceptions or qualifications to that conclusivity. Conclusivity is limited to the ministerial acts connected with registration: e.g., Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] NSWStRp 22; (1937) 37 SR (NSW) 242 at 252 (Jordan CJ, Davidson and Bavin JJ agreeing), but may extend to ministerial acts procured by fraud: e.g., Bank of Beirut. Conclusivity does not bind the Crown (or ASIC) which may institute proceedings to cancel a registration improperly or erroneously allowed: Bowman at 440 (Parker LJ), 436 (Dunedin LJ, agreeing), 478 (Buckmaster LJ, agreeing); R v Registrar of Companies; Ex parte Central Bank of India [1986] QB 1114 at 1169-1170 (Lawton LJ); R v Registrar of Companies; Ex parte Attorney General [1991] BCLC 476 at 477-478; Australian Securities Commission v SIB Resources NL [1991] FCA 261; (1991) 30 FCR 221 at 228 (Ryan J). Therefore, a certificate of registration does not necessarily prevent avoidance or removal of registration at the instigation of the Crown (or ASIC) if incorporation and registration of the company is contrary to another law or public policy (including registration procured by fraud). However, none of these qualifications or exceptions is applicable to the separate questions or proceedings brought by the plaintiffs, as private parties, in which they seek to challenge the conclusiveness of the certificate of registration.

1. Returning to the plaintiffs' submission, if a signed memorandum was a requirement of the Corporations Law (1995) in respect of a matter preceding or incidental to PSA's registration within the meaning of s 122 of the Corporations Law (1995) it was also a requirement for PSA's registration within the meaning of s 1389(1) of the Corporations Act (2001). Therefore, to the extent that a signed memorandum was a requirement for PSA's registration under the Corporations Law (1995) the plaintiffs are precluded from challenging that registration on the ground that the memorandum was not signed by the subscribers to the memorandum in these proceedings.
2. If a signed memorandum was not a requirement for PSA's registration, while the plaintiffs are not precluded from proving that the memorandum was not signed, the absence of any requirement for registration is inconsistent with and undermines the plaintiffs' case that the registration was invalid by reason of non-compliance with the Corporations Law (1995). If the non-compliance does not relate to a requirement of the Corporations Law (1995) for registration it could not affect the validity of the registration of the company on the register of companies. The extent to which non-compliance with a provision of the Corporations Law (1995) that was not a requirement for registration might affect the accuracy of other records on the register of companies or other registers as a result of such non-compliance is not a matter that need be explored in these proceedings.

Is there power under s 1322(4)(b) to remove a company from the register and deprive it of corporate existence?

1. The plaintiffs contend that the Court has a broad power to rectify the register of companies. Further, in reliance on Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262, they submit that the Court has power under s 1322(4)(b) to remove a company that has been invalidly registered.

1. In Miltonbrook Spigelman CJ (Tobias and Campbell JJA, agreeing) observed:
   1. "Rectify" is a protean word with a range of meanings: to correct, to remedy, to make right, to abolish. It should be given a scope that encompasses a response to the full range of circumstances that trigger the exercise of the power to rectify. Whether it is to be given a narrow or a wide scope requires attention to the purpose and subject matter of the legislative scheme.
   2. In the present case, the word rectify must be understood in its textual context, particularly s 1322, and the broader context of the legislative scheme, including the Corporations Act (Cth) and Corporations Regulations (Cth). The fact, if it be such, that the word "rectify" has been given a particular meaning in case law on rectifying the register of members (the word "rectify" has been replaced by "correct" in the most recent version in s 174 of the Corporations Act (Cth)) is of limited assistance.
2. After considering the applicable textual and legislative context (at [49]-[58]) Spigelman CJ favoured a broader rather than narrower interpretation of the word 'rectify' (at [54]) and giving the power to rectify 'an ambulatory operation which has regard to the different purposes served by different registers' (at [57]). Regarding the legislative sub-regime for the register of companies concerning registration and deregistration under ss 118, 119, 1364(2)(c) (and reg 9.1.02(a)) and 601AD of the Corporations Act (2001), Spigelman CJ concluded:
   1. The principal purpose of registration is to cause a company to exist as a legal entity and to establish that it is governed and regulated by the Corporations Act (Cth). A further purpose is to provide information, specified in the regulations, to persons who deal with a company.
   2. In my opinion, the power to rectify the register of companies under s 1322(4)(b) extends to removing a company from the register where the process by which the company was placed on the register was invalid. Where, as is here suggested, that process involved a denial of procedural fairness there would be a relevant invalidity. I do not find it necessary, for reasons discussed below, to treat the alleged non-disclosure as in some way constituting a separate basis to that of procedural fairness.
3. There is no reason to doubt the correctness of Miltonbrook and it should be followed: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492. Therefore, I accept that there may be circumstances in which it would be appropriate to exercise the power under s 1322(4)(b) of the Corporations Act (2001) to remove a company from the register of companies. Further, the exercise of that power extends to circumstances in which the process by which the company was placed on the register was invalid.
4. It is not possible or necessary to attempt to describe all the circumstances in which it may be appropriate to remove a company from the register of companies. However, examples from the authorities suggest that it may be appropriate in proceedings instituted by the Crown or ASIC to avoid or quash registration in circumstances in which the company was registered for an illegal purpose or a purpose otherwise contrary to public policy, or there has been misconduct on the part of ASIC in the process by which a company is registered: Bowman at 439-440; Bread Manufacturers at 252. It may also be appropriate to quash registration in the exercise of judicial review for administrative error in the process by which a company was registered: Ex parte Central Bank of India at 1169-1170 (Lawton LJ), 1176-1178 (Slade LJ), 1180-1182 (Dillon LJ). However, for the reasons given earlier, by operation of s 1389(1) of the Corporations Act (2001), it is not open to the plaintiffs to challenge the validity of the process by which any requirements under the Corporations Law (1995) for registration of PSA were satisfied.
5. Further, the power to remove a company from the register cannot be considered in the abstract and must be considered in the context of the agreed and assumed facts. Even if I were to assume that s 1389(1) of the Corporations Act (2001) is not applicable and it is open to the plaintiffs to go behind the certificate of registration, the process by which PSA was placed on the register of companies in 1998 was valid. For the reasons given earlier, there was nothing irregular in that process. ASC registered PSA upon reaching the state of satisfaction required by s 120 of the Corporations Law (1995). That was done and the registration of PSA was authorised (valid) notwithstanding that, on the assumed facts, the Boyles had not signed the memorandum. The transitional provisions described earlier in these reasons have the effect of maintaining and continuing the registration of PSA.

Power to deprive a company of corporate existence

1. To consider the issue of the power to deprive a company of corporate existence in the circumstances of this case, I must assume, notwithstanding the conclusive evidence provision and the validity of the process by which PSA was registered as a company under Div 1 of Pt 2.2 of the Corporations Law (1995), that s 1322(4)(b) confers power on the Court to remove PSA from the register of companies if it did not have a memorandum signed by the Boyles at the time the application for its registration was lodged and the company was registered. On those assumptions, the circumstances are similar to those confronting Ryan J in SIB Resources.
2. In SIB Resources an application for registration of the company was lodged under Div 1 of Pt 2.2 of the Corporations Law. A memorandum was lodged with the application. The then proposed company was to be a 'no liability' company. Section 115 of the Corporations Law (1995) provided that only a mining company could be a no liability company. ASC registered the company as a no liability company and issued a certificate of registration of the company indicating that it was a no liability company registered under Div 1 of Pt 2.2 of the Corporations Law of NSW and because of that registration it was an incorporated company. ASC brought proceedings to challenge the registration of the company as a no liability company because it was of the view that certain aspects of its memorandum meant that it was not a company of which its sole objects were mining purposes. As a consequence, it was not a mining company and not entitled to registration as a no liability company.
3. After determining that ASC was not bound by the conclusive evidence provision and could mount a direct attack on the validity of the registration of the company, Ryan J turned to consider if the power to rectify the register of companies in s 1322(4)(b) extended to removing a company from the register so as to retrospectively deprive the company of the corporate existence otherwise conferred by s 123 of the Corporations Law (1995) upon registration. Ryan J (at 231-233) concluded that it did not, reasoning:

Of more direct relevance to the present issue is the view taken of earlier Companies legislation that it did not provide a peremptory means of removing from the register companies whose incorporation was vitiated from the outset by non-compliance with a statutory requirement or whose right to remain on the register was lost as a result of supervening circumstances. Thus, in Princess of Reuss v Bos [1871] UKLawRpHL 10; (1871) LR 5 HL 176, Lord Hatherley LC pointed out (at 193):

"All we have to ask ourselves is this, my Lords: Has this company come into existence - has it been born? If it has been born, I think with regard to another question there can be no doubt, namely, that it ought to be, as speedily as possible extinguished.

The question is, therefore, simply whether it has been created. If created, there is no power given in this Act of Parliament, nor in any other Act of Parliament that I am aware of, by which through any result of a formal application, like an application by scire facias to repeal a charter, the company can be got rid of, unless it can be got rid of by being extinguished through the effect of the Aet of Parliament which provides for the winding up of companies when they ought, from any circumstances whatsoever, to be wound up. But your Lordships will remember that, in addition to various other specified causes for which a company may be wound up, it may be wound up when the court shall, for any reason, think it 'just and equitable' that it should be so wound up: 25 and 26 Viet, c 89, s 79(5). That question as to its being just and equitable has reference, of course, to what is just and equitable in a judicial point of view, regard being had to all the circumstances of the case."

"My Lords, it might have been a very wise provision of the legislature to say that in a case of that kind - a case where there was an abuse of the Act of Parliament going on, a case where, if it had been the matter of a Royal grant, there would have been what is termed a forfeiture of the franchise, by reason of nonuser or misuser - it might have been a very wise thing for the legislature to say that in a case of that kind there should be some summary, peremptory mode of reducing or getting rid of the incorporation, and putting an end to a state of things which was an abuse of, or a fraud upon, the Act of Parliament, and which ought not to be allowed to continue. However, the legislature has not thought fit to provide any means in the nature of a process of reduction, in the ordinary sense of the term, for getting rid of an incorporation in any such circumstances. But, it appears to me, the legislature has given powers under this very Act of Parliament quite large enough to deal with such a case, whether it was absolutely in the mind of those who framed these powers or not. I refer to the section which has been mentioned, which defines the circumstances under which a company ought to be wound up, or may be wound up."

In Scott v Frank F Scott (London) Ltd [1940] Ch 794 the Court of Appeal held that there was no implied power in the court to order rectification of the memorandum or articles of a company, noting (at 804) that:

"It was argued that in such a case the hardship on the ordinary shareholders must be capable of remedy by rectification. We think the short answer to such a case is that the proper remedy would be to petition the court for an order for the compulsory winding up of the company on the ground that it was in the circumstances just and equitable so to do. We respectfully agree with the refusal of Bennett J to make any order for rectification."

In my opinion having regard to its context and legislative history, s 1322(4) does not evince an intention that the court should have a power, on the application of the Commission, retrospectively to deprive a company of the corporate existence conferred by s 123 of the Law, in addition to and distinct from the express power to make a winding-up order having prospective operation conferred by ss 460 and 461. I consider that a grant of such a power would have been at the forefront of a substantive legislative provision and not merely conferred as part of a general facility to relieve from the consequences of procedural and other irregularities.

I therefore decline to make an order under s 1322(4)(b) on the present application. However, because I have concluded that SIB's objects are wider than those permitted to a no liability company, it cannot remain on the register as a company of that class if those objects are not amended. I propose, accordingly, to adjourn this application to a date to be fixed to enable SIB, of its own accord, or pursuant to a request of the Commission of the kind contemplated by s 1274(11), to amend its memorandum or to convert to a company limited by shares as allowed by s 167(1)(b). If the opportunity thus afforded be not availed of, SIB would be liable to be wound up on the application either of the Commission or the Attorney-General.

1. With respect, I agree with the reasoning, analysis and observations of Ryan J in SIB Resources. That reasoning applies equally to a company registered under Div 1 of Pt 2.2 of the Corporations Law (1995) the registration of which and corporate existence of which has been continued by operation of the transitional provisions referred to earlier in these reasons for more than 25 years. Further, nothing that was said in Miltonbrook detracts from the reasoning in SIB Resources.
2. It can be accepted that s 1322(4)(b) is to be given the broader construction Spigelman CJ (Tobias and Campbell JJA, agreeing) favoured in Miltonbrook and that it is a remedial provision and should be construed accordingly. Nonetheless, it is also to be construed in the context of the Corporations Act (2001) as a whole. Section 1322(4)(b) should not be construed so as to permit the removal of a company from the register in the absence of some other provision or circumstances that mandates or requires termination or extinguishment of the company as a separate legal person.
3. There are no provisions of the Corporations Law (1995 or 1998) that permit any irregularity in the process of incorporation to invalidate the original registration of the company. Likewise, there are no provisions of the Corporations Act (2001) that permit a company registered under the Corporations Law or Corporations Act (2001) to be extinguished due to an irregularity in its registration process. Indeed, to the contrary, the provisions of the Corporations Law and transitional and other provisions of the Corporations Act (2001) all favour an assumption of regularity in registration and the existence of a separate legal person on and from the formal act of registration.
4. On the other hand, there are specific provisions that may bring about deregistration and termination of the existence of a company after registration. These include various administrative provisions that empower ASIC to deregister a company: s 601AA, 601AB, 601AC. A company may also be deregistered after it has been wound up: s 480 and s 509. In circumstances in which it is in the public interest, a company may be wound up by ASIC on just and equitable or other grounds: s 461(1)(k). These grounds may include where there is a public interest in winding up a company where there have been contraventions of the Corporations Act (2001) and (or) failures to comply with the company's statutory and constitutional requirements resulting in a justifiable lack of confidence in the conduct and management of the company's affairs: e.g., Australian Securities Commission v AS Nominees Ltd [1995] FCA 915; (1995) 62 FCR 504 at 530G-531G (Finn J); Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561 at [95]- [98]. A company may also be wound up if it has no business or members: ss 461(1)(c), (1)(d). A company may be wound up where ASIC is investigating or has investigated a company under Div 1 of Pt 3 of the ASIC Act (2001) (including investigations of contraventions of the (2001)). A company ceases to exist upon deregistration: The prescribed information for and includes deregistration of a company that was registered: reg 9.1.02(a)(ix) of the (2001).
5. Taking into account the manifest preference of the Corporations Law and Corporations Act (2001) to favour regularity of registration and the specific provisions that may be utilised to unwind an irregular registration, on the proper construction of s 1322(4)(b), in circumstances in which the irregularity is non-compliance with the requirements of Div 1 of Pt 2.2 of the Corporations Law (1995) because the memorandum was not signed by the subscribers, the Court is not empowered to remove PSA from the register of companies so as to retrospectively deprive that company of its corporate existence from the moment of its registration. Moreover, if there were any continuing defect in the constitution of PSA arising from the manner in which it was registered, it would be more appropriate to afford the company an opportunity to correct that defect so as to make it conform to the current requirements of the Corporations Act (2001) in respect of a duly registered propriety company limited by shares under that Act, rather than deregister the company.

1. It follows that the registration of PSA was not invalid ab initio or at all. PSA was registered as a company under Div 1 of Pt 2.2 of the Corporations Law (1995) on 5 June 1998 in accordance with s 118 and s 120. A certification of registration was then issued in accordance with s 121 on 8 June 1998 stating that PSA was registered under the Corporations Law of Western Australia as a proprietary company limited by shares on 5 June 1998. PSA, as an incorporated company, came into existence as a separate legal person in accordance with s 123 on and from 5 June 1998. Further, in accordance with s 1389(1) of the Corporations Act (2001), the certificate of registration is conclusive evidence that all the requirements of the Corporations Law (1995) for PSA's registration were complied with and it was duly registered as a company under the Corporations Law (1995) on 5 June 1998. The plaintiffs are precluded from going behind that certificate or from alleging PSA is not a corporate body with the status and capacity conferred by the Corporations Act (2001).
2. While I accept that there may be circumstances in which the power in s 1322(4)(b) may be used to remove a company from the register of companies, the agreed and assumed facts do not disclose circumstances in which it would be appropriate to exercise that power in this case. Even if there were such circumstances, the power in s 1322(4)(b) does not extend to depriving PSA of its corporate existence from 5 June 1998 on the ground that the company was not properly formed because the memorandum was not signed by the subscribers.
3. Upon the statement of agreed facts and the facts and matters set out in the statement of assumed facts, the separate questions should be answered as follows.

(1) Was the registration of the company with the name Liberty Oil (Australia) Pty Ltd and Australian Company Number 082 879 641 invalid ab initio? No.

(2) On the proper construction of s 1322(4)(b) of the Corporations Act (2001), has the Court power, on the application of the plaintiffs, to make an order directing ASIC to rectify the register kept by ASIC under the Corporations Act (2001) to remove PSA from that register? No.

(3) If the answer to question (2) is in the affirmative, has the Court power to make such an order with retrospective effect? No.

I certify that the preceding one-hundred-and-nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.