Plaintiff v Defendants

2 QBE makes the application because it seeks to continue to prosecute a proceeding it issued in the name of Malwa in the Victorian County Court. The proceeding is against two parties: the first defendant, Laverton Auto (2016) Pty Ltd ("Laverton Auto"), and the second defendant, Daimler Truck Australia Pacific Pty Ltd ("Daimler"). QBE is suing pursuant to its right of subrogation under a policy of insurance which it issued to Malwa and in respect of which QBE was the ultimate underwriter.

4 On or about 30 June 2020, Malwa purchased a new March 2020 model Mercedes-Benz prime mover bearing registration number XV35MY ("the truck").

6 Malwa held a policy of insurance with QBE. QBE responded to the damage suffered by Malwa due to the fire.

7 On 16 December 2021, QBE, through its subsidiary, Elders Insurance (Underwriting Agency Pty Ltd), indemnified Malwa.

8 On 26 July 2021, Malwa completed a motor vehicle claim report and submitted it to QBE.

9 On about 20 August 2021, Alistair Front, a loss assessor with AAMC, an experienced provider of specialist accident management and assessing services. Mr Front prepared a report which stated that, in the circumstances, it was uneconomical to repair the vehicle and he recommended that it be treated as a total loss with a corresponding cash settlement.

10 In November 2021, QBE carried out investigations into the cause of the fire. The consultant engaged by QBE concluded that "the cause of the fire was a failure within the ASAM module which resulted in localised overheating, combustion and the eventual short circuiting within the associated wiring looms".

11 Shortly after, QBE granted indemnity Malwa and paid $261,362.20 in a cash settlement of the insurance claim and also for forensic consulting services.

12 As a result of the grant of indemnity and the payment of the settlement, QBE became subrogated to all Malwa's rights of recovery arising from the fire damage to the truck.

13 On 28 July 2023, QBE, exercising its subrogated rights of recovery and standing in the shoes of Malwa, commenced a proceeding in the County Court. In summary, the amended statement of claim contained the following allegations:

(a) on about 30 June 2020, Malwa purchased a new Mercedes-Benz prime mover from Laverton Auto;

(b) at all material times, Daimler was the manufacturer of the truck;

(c) at the time of the purchase, several aftermarket accessories supplied by Laverton Auto were installed in the truck by Laverton Auto and were routed through the ASAM module within the truck;

(d) on 16 March 2021 there was a fire that occurred within the truck causing damage;

(e) the fire was caused by an electrical fault within the ASAM module located in the dashboard on the near side of the truck's cabin;

(f) as a result of the fire, Malwa suffered loss and damage; and

(g) the damage was caused as a result of breaches of the Australian Consumer Law by Laverton Auto and Daimler.

14 On 5 April 2024, Malwa was placed into liquidation.

15 On 31 July 2025, the liquidator submitted an "End of Administration Return (End of Creditors Voluntary Winding Up) - Form 5603D" to ASIC.

16 On 22 August 2025, Muller JR made orders setting down the County Court proceeding for trial on 18 August 2026 on an estimated duration of four days. He also ordered a mediation to occur by 17 October 2025.

17 The mediation, which took place on 21 October 2025, did not resolve the proceeding.

18 On about 18 August 2025, QBE first became aware that the appointment of the liquidator had ceased and that the "End of Administration Return" was submitted to ASIC.

19 On 27 August 2025, a solicitor on behalf of QBE emailed the liquidator of Malwa asking whether the deregistration process could be stopped. There has been no response to that enquiry.

20 On 10 September 2025, another lawyer on behalf of QBE emailed ASIC asking that it withhold deregistration of Malwa until a date not before September 2026. It was hoped that this would enable the County Court proceeding to be completed before that time.

21 Later the same day, ASIC emailed QBE's solicitors noting:

(a) the deferral request could not be granted as Malwa was being deregistered under s 509 of the Corporations Act;

(b) because an "End of Administration Return" form had been lodged, ASIC must deregister Malwa on 1 November 2025; and

(c) Malwa would need to make an application to the Supreme Court of Victoria to vary the date of registration before 1 November 2025.

22 QBE has filed an affidavit of service which satisfies me that it served the application and supporting material upon both ASIC and the liquidator of Malwa, and that both those parties have notice of the hearing of this application. The liquidator has indicated in writing that he neither consents to, nor opposes, the application. ASIC has not formally notified QBE of its attitude to the application. I infer that it will abide by any order of the Court.

23 Section 509(2) of the Corporations Act provides that:

On application by the liquidator or any other interested party, the Court may make an order that ASIC deregister the company on a specified day. The Court must make the order before the end of the deregistration period.

24 The provision accordingly has two components. The first addresses the question of standing. Any application under the provision must be made by the liquidator or any other interested party.

25 Secondly, the Court's power under the provision is discretionary. In Re Rosaub Pty Ltd ("Re Rosaub"),[1] Barrett J made the following observations in respect of an earlier version of the provision which was similar but not identical:

1. In relation to the substantive question, the legislation does not seek to define or qualify the court's discretion except in a timing sense ... Case law provides little guidance as to considerations relevant to the exercise of the discretion. Judge Burley, a Master of the Supreme Court of South Australia, dealing with an earlier version of s 509(6) in Kerol Pty Ltd v Vergeld Engineering Pty Ltd (unreported, SA Sup Ct, Burley J, 30 April 1998, SCGRG-97-1497, S6640) expressed the opinion that the discretion is properly exercised where "the continued existence of the company is necessary in order to effect some proper purpose". To like effect is the decision of Austin J in Application of Walker (as liquidator of SC Australia Pty Ltd) [1999] NSWSC 176 where an order was made because, if deregistration was not deferred, certain persons "would suffer a loss to which there is no particular reason to subject them". ...
2. I am satisfied that, if some apparently beneficial purpose will, according to the evidence, be served by a deferral, the deferral should be granted, particularly where it is the liquidator who puts forward the need for deferral. ...
3. There is an obvious statutory intention that the court should have regard to some particular proposal not only in deciding that an extension of time should be granted but also in fixing the further time. Its power is to order that deregistration be effected by ASIC "on a specified day" and that that day should thereby be substituted for the day fixed by s 509(5). The court must therefore form a view as to the amount of time appropriately required. That is something that can only be judged by reference to particular circumstances.[2]

26 I note that the principles addressed in Re Rosaub have been followed and applied in other cases, both in State courts and the Federal Court.[3]

27 The major points made in the authorities are as follows:

• it is proper to exercise the discretion where the continued existence of the company is necessary in order to effect a proper purpose;
• it can be appropriate to defer deregistration where, otherwise, persons would suffer unnecessary and unmerited loss;
• if the deferral will serve an appropriately beneficial purpose, then generally the Court should grant it in the absence of other countervailing factors; and
• because the discretion is wide, the purpose to be identified is not limited to one in which the company to be deregistered will necessarily benefit.

28 I am satisfied that QBE is an interested party within the meaning of s 509(2) of the Corporations Act in connection with the deregistration of Malwa.

29 QBE has a significant financial interest in Malwa remaining registered so that it is able to prosecute the County Court proceedings in its name pursuant to its right of subrogation under its insurance policy. The purpose is proper or beneficial because, if deregistration is not deferred, the County Court proceeding will likely be extinguished and QBE will be deprived of the opportunity of recovering its subrogated loss.

30 In this context, I note the decision of Re Miramax Projects Pty Ltd (in liq),[4] where McGrath J granted the order for deferral in circumstances where, without such an order, an insurer would have been unable to pursue a subrogated recovery action in the District Court of New South Wales.

31 For these reasons, I am satisfied that orders should be made deferring the deregistration of Malwa.

32 With respect to the date of the deferral, I am satisfied that it is appropriate in the first instance to allow nine months from the date of the scheduled trial. This contemplates that the trial will be completed and the trial judge will have ample time in which to deliver a judgment. However, I am content to provide liberty to apply on the basis that a further extension of time might possibly be required.

1. Pursuant to section 509(2) of the Corporations Act 2001 (Cth), the Court directs that the second defendant deregister the first defendant on 17 May 2027.

2. The plaintiff is to serve a copy of these orders on the first and second defendants by 4:00pm on 31 October 2025.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

[1] [2005] NSWSC 689; (2005) 192 FLR 395.

[3] Re Emergen-X Pty Ltd (in liq) [2010] FCA 487; (2010) 28 ACLC 10-028 at [14]; Re Falaren Pty Ltd (deregistered) v Australian Securities and Investments Commission [2012] FCA 368 at [17]; AJ Azzopardi Industries Pty Ltd v ACN 104 635 369 Pty Ltd (in liq) [2014] FCA 710 at [17]; Re Santos Petroleum Operations Pty Ltd (in liq) [2016] SASC 201 at [8]; Campbell-Wilson v Australian Securities and Investments Commission [2017] FCA 391 at [12]; Commonwealth v Castel Electronics Pty Ltd [2022] FCA 432 at [10].

[4] [2024] NSWSC 184.