Basto, In the Matter of Torsif Pty Ltd [2003] FCA 675

FEDERAL COURT OF AUSTRALIA

Basto, In the Matter of Torsif Pty Ltd [2003] FCA 675 CORPORATIONS – application for reinstatement of a company pursuant to s 601AH – whether the plaintiff is a "person aggrieved" – plaintiff a shareholder – no evidence that shareholders would benefit from reinstatement of the company

Corporations Act 2001 (Cth), ss 601AB, 601AH Deputy Commissioner of Taxation v Lanstel Pty Ltd (1997) 15 ACLC 25 cited Re Lindsay Bowman Ltd [1969] 1 WLR 1443 cited Re Peter Conyers Holders Pty Ltd (in liq) (1996) 14 ACLC 1835 cited A Keay, McPherson: The Law of Company Liquidation (4th ed, 1999) RICHARD JOHN BASTO, IN THE MATTER OF TORSIF PTY LTD N3020 OF 2003 SACKVILLE J SYDNEY 4 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N3020 OF 2003

IN THE MATTER OF TORSIF PTY LTD

RICHARD J BASTO

PLAINTIFF

JUDGE: SACKVILLE J

DATE OF ORDER: 4 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2030 OF 2003

IN THE MATTER OF TORSIF PTY LTD & ANOR

RICHARD J BASTO

PLAINTIFF

JUDGE: SACKVILLE J

DATE: 4 JULY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 An application has been filed by Mr Richard John Basto ("the Plaintiff") seeking an order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) ("Corporations Act") for the reinstatement of the registration of Torsif Pty Ltd ("Torsif"). The application seeks a variety of orders other than the reinstatement of Torsif but, as Mr Basto acknowledges, these are dependent upon an order for reinstatement being made pursuant to s 601AH(2) of the Corporations Act. 2 It appears that Torsif carried on business as trustee of the Northern Mortgage Fund ("NMF"). It further appears that NMF operated as an unlisted mortgage trust without approval ever having been obtained for the trust deed. Indeed, it seems that no trust deed was ever executed. 3 The Plaintiff was a director of Torsif and remained so until it was deregistered on 18 February 2002. ASIC's records indicate that the Plaintiff was appointed as a director on 21 January 1997, but he says that he acted as a director from about 1985. 4 Torsif was deregistered by ASIC pursuant to s 601AB of the Corporations Act. That section gives ASIC power to deregister a company if, among other things, the company fails to lodge annual returns or other documents required by the legislation or if the company is being wound up and ASIC has reason to believe that the liquidator is no longer acting. It appears that the company was deregistered by reason of its failure to lodge annual returns. 5 Section 601AH of the Corporations Act relevantly provides as follows: "(2) The Court may make an order that ASIC reinstate the registration of a company if: