Plaintiff v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

1. Mr Downey has filed and relies upon the following:

(a) affidavit of Mr Downey sworn 13 February 2026 (Downey Affidavit);

(b) affidavit of Mr Franklin sworn 13 February 2026 (Franklin Affidavit);

(c) affidavit of Paul Buitendag sworn 9 April 2026;

(d) proposed form of orders dated 9 April 2026; and

(e) written submissions dated 9 April 2026.

1. On 17 November 2016, the Company was registered with Mr Graham White (Mr White) as its sole director, secretary and shareholder.
2. The Company operated a 'recycling' and transport business.
3. The Company leased and maintained various warehouse premises across Victoria at which it is alleged chemicals were stored (Warehouse Premises).
4. Mr White was also associated with two other companies:

(a) Bradbury Industrial Services Pty Ltd (Bradbury); and

(b) Valen Pty Ltd (Valen),

each of which was involved in the 'recycling' business.

1. On or around 30 August 2018, an industrial fire occurred at a warehouse operated by the Company in West Footscray.
2. On or around 11 June 2019, WorkSafe Victoria commenced proceedings in this Court[1] against Mr White and the Company alleging that 'Mr White and Delacor stored large quantities of dangerous goods, primarily Class 3 flammable liquids, at multiple sites in Victoria; and these goods were stored in unsafe conditions, including damaged and leaking containers, without ventilation, and in a manner that posed an immediate danger to persons and property due to the risk of uncontrolled fire'.
3. A 2019 report in The Age alleged that a property at Kaniva, owned by Mr White, (the Lemon Springs Site) was used by him to store 'millions of litres of chemicals and tonnes of asbestos-contaminated products brought by the truckload' as part of 'an illegal dumping syndicate whose operations grew so large they distorted the national market in toxic waste disposal'. The 'syndicate' referred to in the report included Mr White and Bradbury, but it would also appear to be apt to describe the activities of the Company.
4. On 15 November 2019, Bradbury appointed Mr Hancock of PKF Sydney as its administrator.
5. On 26 July 2021, Bradbury was placed into liquidation with Mr Hancock as its liquidator. Mr Hancock was replaced by Mr Thorn, upon the retirement of the former.
6. On 4 August 2021, default judgment was entered against the Company and in favour of WorkSafe in the sum of $35,981,112.21 (WorkSafe Judgment).
7. On 20 April 2022, the Company was wound up by order of the Supreme Court of Victoria, and Mr Downey was appointed as its liquidator for the purposes of the winding up.
8. In his role as liquidator of the Company, Mr Downey:

(a) identified creditors of the Company totalling $36,760,708.48 which includes the amount of the WorkSafe Judgment; and

(b) was unable to identify any realisable assets of the Company.

1. Mr Downey has noted that the Environmental Protection Authority (EPA) may be a creditor of the Company, but did not recall the debt being lodged by it.
2. On 11 April 2023, Mr Downey ceased to be liquidator of the Company.
3. On 14 July 2023, the Company was deregistered pursuant to s 509 of the Act.
4. On 21 January 2025, Mr Downey had a conversation with Mr Mitchell Stewart, Senior Manager of PKF Melbourne, concerning potential claims that the Company had against Mr White and some of his associates. Mr Downey advised Mr Stewart that he was not prepared to resume his role as liquidator so as to pursue the claims on a speculative basis, but would support an application for reinstatement of the Company and appointment of Mr Franklin and Mr Stone as its liquidators.
5. Mr Franklin and Mr Stone have indicated that pending completion of further investigations into the affairs of the Company, they intend to obtain legal advice about whether Mr White breached his fiduciary duties to the Company (amongst other companies with which Mr White is associated), in order to understand and assess potential claims that might be brought by the Company against Mr White in this regard, and/or any third parties who might have liability claims (Claims).
6. The focus of an investigation is whether Mr White was engaged in unlawful conduct, in using the Company 'as a corporate vehicle for the deposit of toxic and dangerous materials for his own personal gain' resulting in the WorkSafe Judgment of $35,981,112.21[2] as well as potential liability to the EPA.
7. On 13 February 2026, the plaintiff filed the Originating Process.
8. On 10 April 2026, I heard the application.

1. Section 601AH(2) of the Act provides the Court may make an order that ASIC reinstate the registration of a company if an application for reinstatement is made to the Court by either a person aggrieved by the deregistration or a former liquidator of the company and the Court is satisfied that it is just that the company's registration be reinstated.
2. Three matters are required to be considered before exercising the power under s 601AH(2) of the Act to reinstate a company's registration:

(a) first, whether the plaintiff has standing to seek reinstatement;

(b) second, whether it is 'just' that the company's registration be reinstated; and

(c) third, whether it is appropriate for the Court to exercise its discretion to make the order - which is sometimes referred to as the Court's 'residual discretion'.[3]

1. An applicant bears the onus of establishing that the power ought to be exercised.[4]

1. The plaintiff is the former liquidator of the Company, and accordingly, he is a person with standing to bring the application.[5]

Whether 'just' that Company's registration be reinstated

1. In Australian Competition and Consumer Commission v Australian Securities and Investments Commission,[6] Austin J considered the nature of the discretion under s 601AH(2) of the Act:

The wording of the section is very broad, and the cases confirm that it gives the court a wide discretion. The court takes into account the circumstances in which the company came to be dissolved; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement [...]

These matters are only factors to be weighed in the exercise of the court's discretion. They are not limits on the court's power. Here, the reinstatement is likely to lead to the company being joined in proceedings in which the ACCC will seek orders for pecuniary penalties against it. The company may therefore be prejudiced. The court may nevertheless conclude that it is just that the company's registration be reinstated, having regard (for example) to the strong public interest which is involved. It is appropriate for the court to take into account questions of public interest in exercising its discretion under s 601AH [...]

1. Mr Downey has deposed that, as the former liquidator of the Company, and having regard to the matters in the Franklin Affidavit, he considers that the reinstatement of the Company and appointment of Mr Franklin and Mr Stone as joint and several liquidators of the company is just and in the interest of its creditors.
2. I consider that it is 'just' to reinstate the Company's registration:

(a) The matters that are the subject of The Age reporting demonstrate a strong public interest in the investigation of the activities of the Company, including allegations of illegal dumping that resulted in the WorkSafe Judgment of nearly $36M.

(b) The Company's activities as part of the alleged syndicate involving both Bradbury and Valen also warrant investigation in the public interest.

(c) Reinstatement is a necessary first step to any investigation into the affairs of the Company, and before claims can be prosecuted.

(d) WorkSafe, a significant creditor of the Company, has informed the plaintiff that it does not object to the relief sought in the application.

(e) Having regard to the evidence in the Downey Affidavit and the Franklin Affidavit, I am satisfied that the Claims are more than speculative.

(f) 'Reinstatement will not necessarily result in the institution of proceedings against the directors .... But it will enable the possibility of such proceedings to be investigated.'[7]

(g) The proposed liquidators are in negotiations to secure litigation funding which would give them and the Company an ability to investigate the Claims.

(h) I do not consider that any person would be relevantly prejudiced by reinstatement - for example, Mr White, the previous director, in circumstances where I propose to appoint liquidators to the Company.

(i) Both public policy and the public interest favour the making of reinstatement orders so that the Claims can be investigated, and if appropriate, prosecuted.

1. As was the case in James Hardie, there are no special considerations militating against the making of an order in addition to the matters already addressed.

1. There can be no question that the Court has the power to appoint a liquidator to the Company upon its reinstatement, including a person or persons other than its previous liquidator.[8]
2. Because of the deregistration of the Company, Mr Downey no longer holds the office of liquidator, and it would not be appropriate to speak of him being replaced.[9] Further, Mr Downey does not seek his own reappointment. He applies for the appointment of Mr Franklin and Mr Stone as liquidators. Each of them has consented to the appointment.
3. Mr Thorn has expressed the view that the appointment of Mr Franklin and Mr Stone as liquidators would not create a conflict for him or them. Each of those persons is a member of the firm PKF Australia. I do not consider that there is any real, as opposed to theoretical,[10] conflict of interest apparent on the facts that are known. Nevertheless, each of the insolvency practitioners will need to be vigilant to ensure that conflicts are identified and addressed. Mr Franklin has deposed that he and Mr Stone intend to work closely with Mr Thorn to investigate the circumstances the subject of the Claims. There is a benefit to all parties in an investigation that would shed light on the nature and operation of the alleged syndicate.
4. In the premises, I am satisfied that it is appropriate to appoint Mr Franklin and Mr Stone as liquidators. Their appointment will ensure that the Company is subject to appropriate stewardship, enable the Claims to be investigated and, if appropriate, prosecuted, in the interest of creditors and the public.

1. In the premises, I consider that it is 'just' to make orders reinstating the registration of the Company and that it is appropriate for Mr Franklin and Mr Stone to be appointed as joint and several liquidators for the purposes of the winding up. I shall order that the costs of the application be costs in the winding up. I will make orders in terms of the draft orders handed up by the plaintiff, subject to minor modifications.

[2] Orders made by Connock J on 4 August 2021, Order 1.

[3] Deputy Commissioner of Taxation, Re; James Hardie Australia Finance Pty Ltd (deregistered) [2008] FCA 1181; (2008) 170 FCR 545 (James Hardie), [13] (Lindgren J).

[4] Westpac Banking Corporation v Forum Finance Pty Ltd (in liq) (Reinstatement) [2025] FCA 520, [16]-[23] (Cheesman J).

[5] Corporations Act 2001 (Cth), s 601AH(2)(a)(ii) (Act).

[6] [2000] NSWSC 316; (2000) 174 ALR 688.

[7] In the matter of ERB International Pty Limited (deregistered) [2014] NSWSC 200, [16] (Brereton J).

[8] Sections 601AH(3)(b) and (d) of the Act. In the matter of ERB International Pty Limited (deregistered) [2014] NSWSC 200, [40] and [44] (Brereton J).

[10] Compare Re Chilia Properties Pty Ltd, (admin apptd) (1997) 154 ALR 179 at 180 (Lehane J).