96 What his Honour said was quoted with approval by the Full Court of Western Australia in the decision of Salter v NCSC.[21]
97 In GIS Electrical Pty Ltd v Melsom,[22] the Full Court of Western Australia considered what was meant by the words "person aggrieved" and there is a helpful summary of the cases at pp.492-494. Judges in the past have sought to define the phrase. For example, some judges have referred to the word "aggrieved" as connoting some legal grievance, while others have described it as being a person who is injured or damaged in a legal sense, or being a person who had "a real and direct interest in the decision and is dissatisfied with it". Burt CJ referred to a person who will suffer or may suffer "financial loss".
98 There is nothing in the provision or the Act which leads to the conclusion that it was the intention of the Legislature that the grievance must be of a particular type. What is important is that there is a causal link between the deregistration and the grievance. The fact that judges in the past have differed in their opinion as to the nature of the grievance demonstrates, in my respectful opinion, that it is fraught with danger to speculate as to the legislative intent that the grievance must be qualified in a way as, for example, being a financial grievance or a legal grievance.
99 Adopting what the Privy Council said in the Gambia case, supra, the phrase should not be given a restrictive interpretation. While I respectfully agree with the judgment of Burt CJ, I would not confine the grievance to a financial loss. The words have an every day meaning and are not difficult to apply to a set of facts. If, after considering the facts relied upon, the conclusion is that the person is aggrieved by the deregistration in a way which is genuine and real, and not merely theoretical, petty or fanciful, then that person does satisfy the test that he is a person aggrieved. In my opinion, to seek to restrict the grievance to a particular type by some formula would defeat the legislative intention. The question is, on the facts as proven, is the person aggrieved by the deregistration?
100 Mr Garde relied upon the observations of Buckley J concerning the "officious interloper". His Lordship's observations were not necessary to his decision. But I have difficulty with his Lordship's reasoning. The mere fact that one knows that a company has been deregistered and enters into an agreement acquiring a valuable right, does not mean that that person is not aggrieved thereafter by the company being deregistered. I do not see how it can be said that he does not have a genuine grievance, even though the conduct which brought the grievance into play occurred post-deregistration and as a result of steps taken by the person. I would not confine the word "aggrieved" to any particular set of circumstances, other than to say that in considering the facts, the grievance must be real, genuine and not merely theoretical, petty or fanciful.
101 Applying those principles, in my view, each of the first and third plaintiffs is an aggrieved person. The first plaintiff and the third plaintiff have a common interest and wish to be able to enforce an equitable right against the State of Victoria, namely, an agreement for a lease for 60 years. They will acquire the right by the deed of sale of shares upon reinstatement. They would be entitled to seek to enforce that if the company is reinstated. They say on that simple ground that if the company remains deregistered, they are aggrieved by that fact. The deregistration deprives them of the valuable right which they claim and which they seek to prove. In my view, their grievance is genuine and real.
102 On the other hand, I do not think that Mr Lesley Hyams is a person who is aggrieved because of the deregistration. The deed of sale of shares would result in him receiving a proportion of $100. He gains no other benefit under the deed of sale of shares and, further, there are terms in the deed which seek to ensure that he is not in any way involved or liable after the company is reinstated. In my view, the loss of something less than $100 could not be described as a real loss so that it could be said that he is a person aggrieved by the deregistration. Dr Pannam submitted that one should not focus on the amount at stake, but rather should consider the question if he was to receive a substantial consideration, for example, $1m. I think, with all due respect to Dr Pannam, that the argument lacks substance. If there was a substantial consideration involved in the deed of sale of shares, then one might readily infer that Mr Hyams was a person aggrieved by the deregistration. He could not be said to be genuinely aggrieved by a financial loss of something less than $100 if the company remains deregistered.
Just that company be reinstated
103 No argument was put to the Court that if the Court came to the view that any of the plaintiffs was a person aggrieved within the meaning of the sub-section, it would not in the circumstances be just that the company's registration be reinstated. Indeed, in my view, it follows, once the Court comes to the view that the first and third plaintiffs are persons aggrieved by the deregistration, in that there is a valuable right which each wishes to establish in a court or tribunal, that in the circumstances it would be just that the company's registration be reinstated.
Discretion - futility
104 The Court does have a discretion to refuse reinstatement. An example of the exercise of the discretion is the decision of Buckley J in the New Timbiqui Gold Mines Ltd case, where his Honour held that if he was wrong in relation to the date when a person must be aggrieved, in the exercise of the discretion he would not reinstate the company. He gave a number of reasons, for example, the company had never prospered, it was the subject of bankruptcy proceedings in the country in which all of its assets existed, five years had passed, a very long period had elapsed since there was any real control by the directors, and it would be difficult to identify the large number of small shareholders.
105 Counsel on behalf of the State of Victoria contended that the Court should, in the exercise of its discretion, refuse to reinstate the company because the proposed action by the company to enforce a right, namely, that it had a lease for 60 years, was doomed to fail.
106 The question of whether the proposed action was doomed to fail is a question which involves complex factual matters, and inferences that are to be drawn from the factual matters. Some of the facts and some of the inferences are very much disputed between the parties and involve reasonably complex questions of law. It is not appropriate in those circumstances for this Court to attempt to determine the likely outcome of any proceeding. That is best left to a Court hearing. Some of the matters raised are "fact sensitive" and it is inappropriate to attempt to resolve those on affidavit material. Mr Garde also raised the question of the proceeding being statute barred and also precluded by laches. The interest claimed is an equitable one. This involves interesting questions relating to limitations and, further, laches is a matter that is fact sensitive.
107 I am not prepared to dismiss this application on the ground that any proposed proceeding may be futile. For reasons earlier stated, I do not think, on the material before the Court, that one could say that the proceeding is hopeless.
108 In addition, the State argued that the Court should, in its discretion, in any event refuse the order for reinstatement, and many of the matters relied upon were relied upon on the question of whether the plaintiffs were persons aggrieved. Reference was made to the fact that Mr Pilarinos and Bradto knew that the company had been deregistered when the share sale agreement was entered into. I have already dealt with that. Further, it was argued that any action by Palais de Danse was a speculative one. Again, that merely repeats the other discretionary factor relied upon. It was also emphasised that Palais de Danse has been out of possession of the land and business for 23 years, that its former shareholders and directors have no interest in occupying the land, and that the dealings in the land since 1983 are totally inconsistent with the Palais de Danse having any interest in the land, separate from that which was sold to Alamar. These latter matters go to the question of the cause of action. Further, it was submitted that the dealings are contradicted by the interest which Palais de Danse asserts, and that it has never asserted a separate interest in the past. Again, however, those two matters are matters which can be raised in any court proceeding. It is asserted that Palais de Danse was wound up on the footing that it did not have such an interest, but the mere fact that somebody may have overlooked the interest does not seem to me to be a basis for refusing the relief. It is further stated that Palais de Danse has no assets to pursue such interest, but if I might say so, with respect, that fails to take into account what will happen, namely, that the company will acquire assets in order to pursue the interest.
109 Further, it is said that the trial of any proceeding will cover events that occurred over many years and that the trial will be based almost exclusively on documentary evidence. However, that may or may not be correct and it does not seem to me to be a basis for refusing the relief. Finally, the State raised the question of the State being sued by an insolvent body, and the question of litigation costs. Reference was made to what Young CJ in Equity observed in Casali v Crisp[23], where his Honour observed that reinstatement would permit an insolvent company to mount speculative litigation with little prospect of financial reward at the end of the day. I note what his Honour said, but his Honour's comments do not apply in the present matter. I do not believe that is speculative litigation. The State will have whatever is available to it to seek to protect itself against costs orders. VCAT can make an order for security for costs.[24]
110 In my opinion, there are no discretionary grounds for refusing the relief sought.
Conclusion
111 I find that the first and third plaintiffs are aggrieved persons within the meaning of s.601(AH)(2) of the Corporations Act 2001, that it would be just that the company Palais de Danse Pty Ltd's registration be reinstated and that there are no grounds for exercising the discretion against the relief sought. It follows that the appeal must be allowed. I will hear the parties on the question of appropriate orders giving effect to the reinstatement, and the question of costs.