[20] The two conditions are expressed in the past tense. The inference is that the time for determining whether the deregistered company had a liability to the person claiming, and whether the insurance contract covered that liability, is "immediately before deregistration" (being the phrase qualifying condition (b)). This was not disputed.
14 Whether the two conditions specified in s 601AG are satisfied at the time of deregistration in a particular case will depend, in the case of an action for damages, on both the time at which the relevant cause of action for damages became complete and the terms of the relevant insurance policy. It may be that, as in Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; (2003) 59 NSWLR 15, insurance will respond only when a cause of action completed by damage arises.
15 In the present case, there is no evidence of the terms of the relevant insurance. Indeed, it cannot be by any means certain that an insurance contract subsisted to cover the whole or any relevant part of the period of employment, whatever it may have been. The most that appears is a statement by a purported agent of an insurance company in liquidation that no underwriting documents exist but "claims records confirm that [that insurance company] was on risk in 1975". Nor is it possible to say when the cause of action the plaintiff asserts became complete.
16 The court is unable to conclude that circumstances are such as to allow the present plaintiff to by-pass Rigby Jones and sue Associated General Contractors Insurance Company Limited (in liquidation), relying on the statutory cause of action created by s 601AG. Nor, I might say, is it at all clear what that statutory cause of action, if existing, might be worth, in view of the winding up of the apparent insurer.
17 It is clear, in my view, that the availability and worth of a cause of action under s 601AG are matters relevant to be considered upon an application for an order for reinstatement under s 601AH: see, for example, Hutchinson v Australian Securities and Investments Commission [2001] VSC 465; (2001) 40 ACSR 198 at [36] - [37] and Arnold v Poltane Pty Ltd [2005] FCA 1418. In the latter case, Merkel J said at [8]:
"Section 601AG appears to permit the plaintiff to bring proceedings directly against Poltane's insurer. If GIO conceded that s 601AG applied because the conditions in (a) and (b) had been satisfied, there would be no need to reinstate Poltane."
18 If s 601AG clearly applied and the re-creation of the deregistered company would put the prospective claimant for damages in a position from which no outcome better than that made available by s 601AG might be expected, that prospective claimant would not be a "person aggrieved by" the deregistration.
19 That, however, has not been shown to be the position here. The existence of an insurance policy and the terms of any policy have not been established. In addition, it is not at all clear that a cause of action completed by damage had arisen before the deregistration of Rigby Jones.
20 That being so, it should be accepted that any prospect that the plaintiff has of obtaining satisfaction from an insurer of Rigby Jones depends on his bringing an action against Rigby Jones so as to establish liability of Rigby Jones. That, of itself, is sufficient to make the plaintiff a "person aggrieved" by the deregistration: see Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; (2000) 34 ACSR 232. The plaintiff's standing to bring the application for reinstatement is thus established: s 601AH(2)(a)(i).
21 The court must therefore decide whether it is "just" that the registration of Rigby Jones be reinstated: s 601AH(2)(b). It is necessary to consider the impact that restoration to the register would have on persons interested and affected.
22 From the plaintiff's perspective, restoration will be beneficial because it will enable him to pursue the damages action he wishes to pursue in the way already described.
23 One aspect of the inquiry into what is "just" concerns the future stewardship of the company, if and when it comes back into existence. As I have said, Mr Ingate was the sole director at the time of deregistration in May 2006. For more than three years before that, the company had been in liquidation as a result of a decision of its members that it should be wound up. Mr Ingate thus ceased to exercise the functions of director in January 2003, almost six years ago. He is now aged 83 and does not wish to have the responsibilities of directorship again.
24 Immediately before deregistration, however, Rigby Jones was subject to members voluntary winding up. A liquidator was in office. If and when reinstated, the company will again be a company in liquidation. However, the person who was the liquidator at the time of deregistration will not resume office as liquidator upon reinstatement: see J P Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433; (2008) 65 ACSR 636 and cases there discussed. It will be necessary, therefore, that a liquidator be appointed. This is another aspect of stewardship.
25 Generally speaking, it is desirable that the previous liquidator be put back into office: J P Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu (above), Ramantanis v G & M Excavations Pty Ltd [2003] NSWSC 250; (2004) 22 ACLC 22; Gorman v Australian Securities and Investments Commission [2008] FCA 962. As Stone J said in the J P Morgan case at [10]:
"[A]ll other things being equal, it is preferable that the same liquidator be appointed."
26 And as was said in the Ramantanis case at [8], s 601AH(3)(b) provides a basis for appointing a liquidator upon reinstatement where a liquidator was in office at the time of deregistration.
27 I shall return to this matter.
28 The inquiry whether reinstatement will be "just" requires that attention be given to another matter. The fact that the winding up was a members voluntary winding up implies the possibility of a surplus after the payment of the company's debts, which surplus was distributed among members according to their respective entitlements. That raises a question about the effect that s 601AH(5) will have if reinstatement is effected. If there were any prospect that the distribution might be recovered by the liquidator of the reinstated company, that would be a significant factor in the determination of what is "just" for the purposes of s 601AH(2)(b).
29 Section 601AH(5) lays down the general rule that, upon reinstatement, "the company is taken to have continued in existence as if it had been deregistered". The deemed continuity must, however, be continuity of existence in the form prevailing at the time of deregistration - in the present case, in the form of a company which had been duly subjected to members voluntary winding up and the surplus assets of which had been distributed pursuant to such a winding up. So far as the corporate entity is concerned, the section deems no more than continuity of existence. It does not purport to change anything done before or existing at deregistration.
30 It follows that members to whom distributions may have been made in the course of the members voluntary winding up will not be prejudiced by reinstatement of the registration.
31 My conclusion is that, provided proper provision is made for the appointment of a liquidator, it will be "just" that the registration of Rigby Jones be reinstated.
32 As I have said, it is generally desirable that the person who was the liquidator immediately before deregistration be put back into office. In the present case, there is no evidence that the former liquidator has been approached. He is still in practice and there is nothing before me to suggest that he is unable or unwilling to act. The plaintiff has produced the consent of another qualified person without advancing any reason why that person should be preferred.
33 If the true position is that the former liquidator is unwilling to be appointed, there is no reason why the person proposed by the plaintiff should not be appointed. The position the former liquidator does, however, need to be clarified.
34 I note, in conclusion, that ASIC has been notified of the present application and that it has, by letter dated 29 September 2008 addressed to the plaintiff's solicitors, indicated that it does not oppose the application, provided that certain conditions are satisfied. The conditions do not involve any matter that should cause the court to hesitate.
35 At this stage, I indicate that orders as follows will be made when the matter just mentioned concerning the previous liquidator has been attended to: