(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)
[2]
On 15 September 2025, Mad Hatter WA Pty Ltd (Company) was deregistered by the Australian Securities and Investments Commission (ASIC) pursuant to s 601AB of the Corporations Act 2001 (Act).[1]
On 13 March 2026, the plaintiff, a former director and secretary of the Company, filed an originating process seeking an order pursuant to s 601AH of the Act directing ASIC to reinstate the Company. He also sought an order under s 601AH(3)(c) validating and giving effect to a special resolution to voluntarily wind up the Company made under s 491(1) of the Act.
At the time the originating process was filed, the plaintiff also filed a certificate of urgency certifying the application was of such an urgent nature that it required hearing 'at the next available opportunity'. For this reason, the application was listed before me today on an urgent basis.
In support of the application, the plaintiff relied on his affidavit filed 12 March 2026, as well as an affidavit of Ms Wu dated 16 March 2026.
I am satisfied the application has been served on ASIC in compliance with r 2.8 of the Supreme Court (Corporations) (WA) Rules 2004, and that notice of the application has been given to the Australian Taxation Office (ATO). The ATO has informed the plaintiff that it does not oppose the application and did not intend to appear at today's hearing.
ASIC's position is that it requires 28 days to consider the application and requested an adjournment of the hearing. For reasons that I will come to, the plaintiff did not seek to adjourn the matter, but pressed for orders to be made today, subject to ASIC having liberty to apply.
[3]
Mr Hatton, the plaintiff, was a director and secretary of the Company from the time of its registration until its deregistration on 15 September 2025.[2] The Company was deregistered by ASIC following its failure to pay its annual review fee.[3]
Mr Hatton's evidence is that the sole purpose of the Company was to act as trustee for the Mad Hatter Unit Trust and that the business conducted by the Company failed. At the time of its deregistration, the Company was not carrying on any active trading activities.[4]
On 5 February 2026, Mr Hatton received three director penalty notices in relation to the Company issued by the ATO pursuant to s 269-25 of sch 1 to the Taxation Administration Act 1953 (Cth) (Penalty Notices). The total amount of the penalties in respect of all Penalty Notices is $94,527.04.[5]
The Penalty Notices provide for the conditional remittance of their penalties if any one of four specified conditions are satisfied within the statutory period of 21 days of the date of issue. One of the conditions is that the Company begins to be wound up within the meaning of the Act. The relevant date for compliance with these conditions is tomorrow, 18 March 2026. If one of the specified conditions is not complied with by 18 March 2026, Mr Hatton will become personally liable for the penalties.[6]
Mr Hatton's evidence is that he intends to comply with the condition that the Company begins to be wound up on or before 18 March 2026, but that this cannot occur while the Company is deregistered.[7]
Mr Hatton has arranged for a registered liquidator, Mr Kitay of Worrells, to be appointed as liquidator of the Company if the orders sought in this application are made. Documents have been prepared by Mr Kitay to place the Company into creditor's voluntary liquidation immediately upon the reinstatement of the Company.[8]
[4]
Should an order be made to reinstate the Company?
[5]
Pursuant to s 601AH(2) of the Act, the court may make an order for the reinstatement of a company. The application can be made by a person who is aggrieved by the deregistration or a former liquidator of the company.
In considering whether or not to grant the application, the court is required to consider whether it is 'just' that the registration of the company be reinstated. The court retains a residual discretion whether to make the order sought.[9]
[6]
Is Mr Hatton a 'person aggrieved' by the Company's deregistration?
[7]
The term person 'aggrieved' is not expressly defined in the Act and should not be construed narrowly.[10] In determining whether a plaintiff is a person aggrieved by the deregistration of the company, the court considers whether the plaintiff has shown that the deregistration has deprived them of something, or injured or damaged them in a legal sense, or that they became entitled in a legal sense to regard the deregistration as the cause of dissatisfaction.[11]
There is no temporal limitation in the term 'person aggrieved', and there need only be a causal link between the grievance and the deregistration of the company.[12] A person can become aggrieved as a result of events which occur after the time of deregistration.[13]
On the evidence before me, I accept that by reason of the Penalty Notices, Mr Hatton is exposed to personal liability if the conditions are not complied with. He cannot comply with these conditions while the Company is deregistered.
On this basis, and consistent with previous decisions of this and other courts,[14] I accept that Mr Hatton is a person aggrieved by the deregistration of the Company.
[8]
In considering whether it is 'just' to order the reinstatement of the company, the court has a wide discretion under s 601AH(2) of the Act. In exercising its discretion, the court takes into account all relevant circumstances. These include the circumstances in which the company came to be deregistered; whether, if an order is made, good use can be made of it; and whether any person is likely to be prejudiced by the reinstatement.[15] The court also takes into account the public interest generally.[16]
For the following reasons, I consider that it would be just to order the reinstatement of the Company.
First, Mr Hatton's evidence is that the business carried on by the Company had failed prior to its deregistration, and that at the time of its deregistration the Company was not trading.[17] In my view, the reinstatement of the Company would serve a legitimate purpose, namely for the Company to be placed into a creditors' voluntary liquidation.
Second, I accept that the application has been brought promptly after Mr Hatton became aware it was necessary for the Company to be reinstated in order to address the Penalty Notices.
Finally, there is no evidence that suggests anyone is likely to be prejudiced by the reinstatement of the Company. Any possible prejudice to ASIC can be met by the order proposed by the plaintiff that he pay all administrative fees outstanding and payable in respect of the registration or reinstatement of the Company. The only other party that may be prejudiced by the orders, namely the ATO, does not oppose orders being made by the court.
Given the timeframes required by the Penalty Notices, I also consider it appropriate to make an order to validate and give effect to a special resolution to voluntarily wind up the Company pursuant to s 491(1) of the Act. Put simply, there is insufficient time for the reinstatement of the Company to occur prior to this resolution being passed.
[9]
In relation to the costs of the application, Mr Hatton submits the appropriate order is there be no order as to costs. I accept this submission.
I also accept that the ancillary order sought by Mr Hatton in terms of allowing ASIC to apply to the court to vacate these orders adequately protects ASIC's position as set out in its correspondence to the plaintiff's solicitors. However, in my view, the timeframe for this order should be extended to 21 days, consistent with ASIC's policy.
For these reasons, it is my view that it is appropriate to make orders broadly in terms of the proposed orders filed 12 March 2026.
[10]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[11]
[1] Affidavit of Matthew Adam Hatton dated 13 March 2026, 'MAH-1'.
[12]
[2] Affidavit of Matthew Adam Hatton dated 13 March 2026 [1].
[13]
[3] Affidavit of Matthew Adam Hatton dated 13 March 2026 [4] - [6], 'MAH-2'.
[14]
[4] Affidavit of Matthew Adam Hatton dated 13 March 2026 [14] - [16].
[15]
[5] Affidavit of Matthew Adam Hatton dated 13 March 2026 [18] - [20], 'MAH-5' - 'MAH-7'.
[16]
[6] Affidavit of Matthew Adam Hatton dated 13 March 2026 [20], [26].
[17]
[7] Affidavit of Matthew Adam Hatton dated 13 March 2026 [24].
[18]
[8] Affidavit of Matthew Adam Hatton dated 13 March 2026 [28] - [32], 'MAH-8'.
[12] The Bell Group Ltd v Australian Securities and Investments Commission [49].
[23]
[13] Pilarinos v Australian Securities and Investments Commission [2006] VSC 301 [49].
[24]
[14] Perrin v Australian Securities and Investments Commission [2024] WASC 38; Teffaha v Australian Securities and Investments Commission [2010] NSWSC 511 [11].
[25]
[15] ACN 009 009 072 (in liquidation) v Australian Securities & Investments Commission [2022] WASC 221 [47] and the authorities cited there.
[26]
[16] Jit Sun Investments Pte Ltd (Singaporean Unique Entity Number: 200308432W) v Australian Securities and Investments Commission [2021] WASC 235 [8] and the authorities cited there.
[27]
[17] Affidavit of Matthew Adam Hatton dated 13 March 2026 [16].