In my view whatever may be the circumstances in which it is appropriate to make an order under s.539(4)(b) for rectification of a register kept by the Commission it is not appropriate in the circumstances disclosed upon this application for me to do so."
22 In the Onesteel case, Finkelstein J distinguished Voxson on the basis that different discretionary considerations applied and that the order sought was different. In Onesteel, his Honour said, the applicant under s.1322(4)(b) did not seek destruction of records lodged with the Commission.
Is there a relevant "register kept by ASIC"?
23 With these two decisions in mind, I return to the questions which, in my view, must be addressed upon any application under s.1322(4)(b), being the three questions referred to at paragraph [16] above. The first question is whether the application truly relates to a "register kept by ASIC under this Act".
24 Various provisions contemplate that ASIC will establish and maintain registers (for example, ss.601CB, 601CE, 1274AA and 1285). There are also particular provisions with respect to the Australian Register of Company Charges in Chapter 2K. Regulation 9.1.01 of the Corporations Regulations 2001 (Cth) causes certain registers to be "prescribed registers" for the purposes of certain provisions of the Act. It therefore identifies a number of registers which are, in the words of s.1322(4)(b), "kept by ASIC under this Act". Regulation 9.1.01 is as follows:
" Prescribed registers
For subsections 1274A (2), (3) and (4) of the Act, the following registers are prescribed:
(a) the register of companies registered under section 118 or 601BD of the Act or the registration of which is continued by section 1378 of the Act;
(b) the register of Disqualified Company Directors and Other Officers kept under section 1274AA of the Act;
(c) the Australian Register of Company Charges kept under section 265 of the Act;
(d) the register of registered Australian bodies kept under Division 1 of Part 5B.2 of the Act;
(e) the register of foreign companies registered under Division 2 of Part 5B.2 of the Act;
(f) the register of names reserved under section 152 of the Act;
(g) the Register of Licence Holders kept under section 789 of the Act;
(h) the register of managed investment schemes registered under section 601EB of the Act;
(i) the Register of Futures Licensees kept under section 1155 of the Act;
(j) the Register of Auditors kept under section 1285 of the Act;
(k) the Register of Liquidators kept under section 1286 of the Act;
(l) the Register of Official Liquidators kept under section 1286 of the Act;
(m) the register in respect of financial services licensees mentioned in subsection 922A (2) of the Act;
(n) the register in respect of authorised representatives of financial services licensees mentioned in subsection 922A (2) of the Act;
(o) the register in respect of persons against whom a banning order or disqualification order is made mentioned in subsection 922A (2) of the Act."
25 Some provisions of the Act contemplate "registration" by ASIC, apparently without reference to any register, but on the basis that ASIC will make and keep a "record" of the registration. Examples are ss.601EB and 118, although it is to be noted that regulation 9.1.01 assumes that there is, in each of these cases, a register as such. In the latter case, certain subsections of s.1274 are declared to apply to the record "as if it were a document lodged with ASIC": see s.118(2). Other provisions contemplate no more than lodgment of documents and, while, as already noted, s.1274(8) says that ASIC may "refuse to register or receive" a document "submitted for lodgment", it does not follow from that provision that every document "submitted for lodgment" in relation to which that power is not exercised is both "received" and "registered". Only those which, under some particular provision, are to be "registered" will be "registered" in consequence of lodgment. Others will be merely "received".
26 The requirement in relation to Form 519 is, as already noted, that it be "lodged": see ss.465A(a) and 470(1)(a). No provision of the Act appears to contemplate or require that the information notified by means of lodgement of a completed Form 519 will be extracted from the form and entered in a "register". Nor does there appear to be any provision causing a lodged Form 519 to be, by virtue of or in consequence of its lodgement, itself "registered" or incorporated into or added to a "register". If, as no doubt routinely happens, ASIC makes an image of the form and includes that in the "national database" (a thing mentioned in ss.601PA(3)(a), 601PB(2)(c) and 1274B(2) but, since the amendment of s.1274B(1) by item 406 of Schedule 2 to the Company Law Review Act 1998 (Cth), apparently no longer defined), there is not thereby inclusion of the content of the form in any "register kept by ASIC under this Act".
27 In the Onesteel case, there was an implicit assumption by the court that there existed some "register" separate and distinct from the lodged Forms 519 and any reproductions or images made by ASIC of the content of the lodged Forms 519. It was that apparent assumption that caused Finkelstein J to refer to reformation of such a register "by the removal of an entry". As I read the legislation, the true position remains, in relevant respects, as described by Ambrose J in Voxson. I do not accept the point of distinction relied upon by Finkelstein J in Onesteel (see paragraph [22] above). In the case of a Form 519 and its content, any concept of "removal of an entry" really entails destruction of the document and elimination of stored images of its content. This is because the document itself and stored images of its content represent the only relevant record maintained by ASIC. In those circumstances, I, like Ambrose J, am unpersuaded that it is open to the court to exercise the s.1322(4)(b) power. That power is exercisable only in relation to a "register kept by ASIC under this Act". Here, there is not identifiable from the Act itself any relevant "register" as such; nor is there evidence of the existence of a register in which the particulars in question are entered. The court's power under s.1322(4)(b) does not extend in such a way to enable it to require that documents - whether paper, electronic or other - be destroyed. ASIC itself has power to destroy and dispose of documents under s.1274(10). The court plays no part in the destruction process.
28 For these reasons, I am not satisfied that the first of the conditions for the exercise of the s.1322(4)(a) jurisdiction mentioned at paragraph [16] above is satisfied in this case.
Rectification
29 I proceed nevertheless to consider the second relevant matter, that is, whether, assuming that a relevant register exists and that the content of the Forms 519 is entered in it, an order in the terms set out in paragraph [1] above would be one for the "rectification" of the register.
30 The word "rectify" is most often associated by company lawyers with a company's register of members - although it is to be noted, in that connection, that "rectified", the word appearing in s.35 of the Companies Act 1862 (Eng) and carried into subsequent Australian legislation was, after more than 130 years of currency, replaced in 1995 by "corrected": see the present s.175. This change was made by the First Corporate Law Simplification Act 1995 (Cth), which, according to the relevant explanatory statement, was "written in line with the principles of plain English". "Corrected" may thus be the plain English synonym of "rectified".
31 The concept of "rectification", as applied to the register of members, has been the subject of extensive judicial consideration. Where rectification took the form of removing something contained in the register, it was a reflection of a decision by the court that the matter in question should never have been entered or, at least, that it should not have remained beyond some past time. The rectification process has long been regarded as one by which the court causes the register to omit things which the law does not permit to be there and to include things that the law requires to be included. The first part of the concept is explained in the following passage in the judgment of Lindley LJ in Re National Bank of Wales (1897) 66 LJ Ch 222 at p.227 concerning s.35 of the Act of 1862:
"That section only comes into operation when the company improperly puts on the register a name which ought not to be on it, or improperly refuses to put on the register a name which ought to be on it."
32 The second part of the concept was referred to in Re Imperial Chemical Industries Ltd [1936] 2 All ER 463 where Clauson J said (at p.469):
"I understand that the section means that if without sufficient cause a name stands on the register, the court has jurisdiction under this section to take it off."
33 The relevant notions of sufficient cause and propriety look to legal rights and legal obligations. A register of members is to be kept in accordance with certain statutory provisions and legal rules. The court's power to rectify or correct is exercisable to ensure that effect is given to those provisions and rules.
34 The relevant concept of rectification as it applies to records kept by a body similar to ASIC has been considered in some English cases. In Re Calmex Ltd [1989] 1 All ER 485, it was held that the court could order the removal from a register kept by the Registrar of Companies of an entry in respect of a winding up order which the court itself had afterwards declared to be a nullity. This was because the order was to be regarded as never made, so that there was nothing to which the statutory provisions relating to recording and registration could attach. In that case, however, the jurisdiction exercised by the court was a general supervisory jurisdiction, not a jurisdiction created by statute. The court had power to ensure that the registrar kept records in conformity with the law.
35 In igroup Ltd v Ocwen [2003] 4 All ER 1063, the court considered a statutory power to order rectification of the register of charges kept by the Registrar of Companies. It was held that, in terms of the relevant section, the court's power was limited to correcting mistakes of commission or omission in the entry of any particular entered in the register. Reference may also be made to Company Number 1389920 v Registrar of Companies [2004] EWHC 60 (Ch).
36 These cases emphasise that publicly available registers and records of the kind typically kept by a registrar or similar official under companies legislation are creations of statute and that the content of those registers and records is entirely a statutory matter. Provisions with respect to the rectification or correction of registers and records exist to ensure that they are kept as the statute requires them to be kept.
37 Mr Bavin submitted on behalf of the defendant, however, that the concept of rectification reflected in s.1322(4)(b) includes reformation in a wider sense. In that respect, he relied on the passage in the judgment of Finkelstein J in the Onesteel case set out at paragraph [19] above and to his Honour's observation that one meaning of "rectify" is to "reform". According to that approach, the court may, in exercise of a wider reformatory jurisdiction, direct expungement of content that results from due and faithful adherence to the statutory scheme. Such expungement would, it seems, be directed according to criteria found outside that scheme.
38 In a case such as the present involving dismissal of a winding up application, it would be necessary, according to the wider reformatory approach, to identify the non-statutory criteria distinguishing cases meriting expungement from those not meriting expungement. The court would, it seems, employ some general notion of fairness in drawing the distinction. In cases where the winding up application was dismissed because the defendant company had succeeded in proving its solvency so as to displace a prima facie presumption of insolvency created by s.459C, one can only assume that the court would be required to make a judgment about the degree of ease or difficulty with which the company had discharged the onus. Cases in which solvency was resoundingly proved would presumably be viewed differently from those in which the probabilities were almost evenly balanced, with references to the former being removed from ASIC records and references to the latter remaining. In cases such as the present where the application was dismissed by consent, the court would presumably have to inquire into the details of the underlying circumstances in a search for some balance of merit grounding some qualitative assessment for the purposes of the general reformatory jurisdiction.
39 Section 1322(4)(b) does not create any general reformatory jurisdiction. It allows the court to make orders ensuring that the content of registers kept by ASIC under the Corporations Act accords with the statutory requirements with respect to such content. Every decision as to whether such an order should be made will be informed by the statutory requirements regarding register content. If the register does not contain something that the legislation requires it to contain, the jurisdiction to order rectification is enlivened. If the register contains something that the legislation says it must not contain, the jurisdiction to order rectification is also enlivened (also, perhaps, where something not required to be included is included). But if a particular thing is in the register and its presence there represents precise compliance with a requirement imposed by the statute, the jurisdiction to order rectification is not enlivened. Nor is the jurisdiction enlivened if there is absent from the register something that the legislation does not require to be there.
40 In the present case, the plaintiff made an application for winding up. The application was not a nullity. When the application came before the court, the defendant showed that the plaintiff's debt had been paid and that the plaintiff consented to dismissal of his application. It was thereupon dismissed. The order of dismissal was not a nullity. These are the simple facts. I am unable to see any basis on which the ordinary consequences of the filing of the application and its dismissal, in terms of content introduced into ASIC records by the two Forms 519 required in the circumstances, could or should be disturbed. This is not a case in which something was recorded by ASIC without reasonable cause. Records were regularly and properly made in accordance with the statutory requirements and in consequence of lodgments reflecting undisputed facts. There is nothing to rectify.
41 The conclusions I have expressed with respect to the first and second matters identified at paragraph [16] above make it unnecessary for me to consider the third matter so identified.
The question of costs
42 It remains to consider the question of the costs of the winding up proceedings. Rule 42.1 of the Uniform Civil Procedure Rules 2005 embodies the well-recognised principle that costs should follow the event unless good reason exists for the making of another order. In the present case the parties take different views as to the "event" for these purposes. The defendant says that because the winding up application was dismissed it is the successful party and should have a costs order against the plaintiff. The plaintiff, on the other hand, says that, since the proceedings resulted in its receiving payment of its debt, it has enjoyed success and deserves a costs order accordingly.
43 The true position, it seems to me, is that there is no relevant "event". The proceedings were disposed of by consent. There was no determination on the merits. In cases of that kind, the general expectation is that there should be no order as to costs, with the result that each side is left to bear its own costs. That is subject to some exceptions, which are conveniently summarised in the judgment of McHugh J in the case of Re Minister For Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at p.624-5 (citations omitted):
"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.