Supreme Court New South Wales Medium Neutral Citation: In the matter of Exfrig Pty Ltd (deregistered) [2021] NSWSC 84 Hearing dates: 8 February 2021 Date of orders: 15 February 2021 Decision date: 15 February 2021 Jurisdiction: Equity - Corporations List Before: Williams J Decision: Order that the first defendant be reinstated; ancillary order that the Dust Diseases Tribunal proceedings were validly commenced and pending as at the plaintiff's death. Catchwords: DUST DISEASES – proceedings commenced against deregistered company in Dust Diseases Tribunal – claim for general damages – claimant died – s 12B Dust Diseases Tribunal Act 1989 (NSW) – proceedings not commenced and pending before the Tribunal at the person's death – reinstatement of company pursuant to s 601AH Corporations Act 2001 (Cth) – ancillary order validating Tribunal proceedings nunc pro tunc. CORPORATIONS – reinstatement and ancillary orders under s 601AH Corporations Act 2001 (Cth) – company in liquidation prior to deregistration continues in liquidation upon reinstatement – ancillary order appointing liquidator. Legislation Cited: Corporations Act 2001 (Cth) ss 601AG, 601AH Dust Diseases Tribunal Act 1989 (NSW) s 12B Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2 Uniform Civil Procedure Rules 2005 (NSW) r 7.10 Workers Compensation Act 1987 (NSW) ss 227, 231-236 Cases Cited: Re Austral Bronze Pty Ltd; In the matter of John Darlington Pty Limited; In the matter of John Darlington Pty Limited (No. 3) [2020] NSWSC 1633 Re ERB International Pty Limited (deregistered) [2014] NSWSC 200 Category: Principal judgment Parties: Ronald Blake Bainbridge (Plaintiff/ Applicant) Exfrig Pty Ltd (formerly Frigrite Limited) (ACN 004 224 080) (First Defendant/First Respondent) Australian Securities and Investment Commission (Second Defendant/Second Respondent) Representation: Counsel: Mr M Robinson (Plaintiff/Applicant) N/A (Defendants/Respondents) Solicitors: Turner Freeman Lawyers (Plaintiff/Applicant) N/A (Defendants/ Respondents) File Number(s): 2020/182443 Publication restriction: N/A Judgment 1. The plaintiff in these proceedings, Mr Ronald Bainbridge, passed away on 5 July 2020. 2. On 9 April 2020, Mr Bainbridge commenced proceedings in the Dust Diseases Tribunal of New South Wales (the Tribunal) against Exfrig Pty Ltd (formerly Frigrite Limited) (ACN 004 224 080) (the Company) for the Company's alleged negligence and/or breach of employment contract as a result of which he claimed to have been exposed to and inhaled asbestos dust and fibre whilst employed by the Company between January 1969 and November 1977 (the Tribunal proceedings). The damages claimed in Mr Bainbridge's amended statement of claim filed in the Tribunal proceedings on 7 May 2020 include general damages for injury (mesothelioma and shock), pain and suffering and decreased life expectancy. 3. The Company was deregistered on 25 October 2009. 4. Mr Bainbridge commenced the present proceedings in this Court by originating process filed on 19 June 2020, seeking orders under s 601AH of the Corporations Act 2001 (Cth) that the Australian Securities and Investments Commission (ASIC) reinstate the registration of the Company, an order that the Company be wound up upon reinstatement, an order granting leave to Mr Bainbridge nunc pro tunc to commence the Tribunal proceedings and an order that no step be taken by Mr Bainbridge to enforce any judgment or verdict obtained in the Tribunal proceedings except by resort to the indemnity provided by the Insurers Guarantee Fund (the IGF) established under s 227 of the Workers Compensation Act 1987 (NSW). The Company was named as the first defendant and ASIC was named as the second defendant. 5. Subject to the operation of s 12B(2) of the Dust Diseases Tribunal Act 1989 (NSW) (the DDT Act), Mr Bainbridge's estate has no entitlement to pursue his claim for general damages following his death by reason of s 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (the Law Reform Act). 6. Section 2 of the Law Reform Act relevantly provides: "(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate ... (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person: … (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person's expectation of life. … (7) This section has effect subject to section 12B of the Dust Diseases Tribunal Act 1989." 1. Section 12B of the DDT Act provides (emphasis added): "12B Damages for non-economic loss after death of plaintiff (1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death. (2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition." 1. In Re Austral Bronze Pty Ltd; In the matter of John Darlington Pty Limited; In the matter of John Darlington Pty Limited (No. 3) [2020] NSWSC 1633 (Austral Bronze), two former employees of two deregistered companies had commenced proceedings in the Tribunal against those deregistered companies. Legal personal representatives of the deceased estates of the former employees commenced proceedings in this Court seeking orders under s 601AH(2) of the Corporations Act that ASIC reinstate the registration of the two companies together with ancillary orders to validate the commencement of the Tribunal proceedings nunc pro tunc. The former employees had died shortly after the commencement of the Tribunal proceedings. 2. Rees J held, with reference to authority, that proceedings commenced against a corporate defendant that is deregistered at the time of commencement are a nullity because the defendant does not exist. The reinstatement of that defendant after the death of the plaintiff pursuant to s 601AH of the Corporations Act does not, without more, retrospectively validate the commencement of the proceedings so as to satisfy the requirement in s 12B of the DDT Act that the proceedings were commenced and pending before the Tribunal at the time of the plaintiff's death: Austral Bronze at [50]-[68]. 3. However, her Honour also held that, where the Court has made an order pursuant to s 601AH(2) of the Corporations Act that ASIC reinstate the registration of a company, the power conferred on the Court by s 601AH(3)(c) to validate anything done during the period in which the company was deregistered extends to validating nunc pro tunc the commencement of legal proceedings purportedly commenced against the company at a time when it was deregistered: Austral Bronze at [60]-[125]. 4. Following delivery of judgment in Austral Bronze, the originating process in the present proceedings was amended on 15 December 2020 to seek an order validating the commencement of the Tribunal proceedings in lieu of an order granting leave to Mr Bainbridge nunc pro tunc to commence the Tribunal proceedings. 5. The orders sought in the amended originating process are: 1. An order pursuant to section 601AH(2) of the Corporations Act 2001 (Cth) that the second defendant reinstate the registration of Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080) 2. An order that upon reinstatement Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080) be wound up pursuant to section 601AH(2) or section 461(1)(k) of the Corporations Act 2001 (Cth) and Mr Andrew Scott of PriceWaterhouseCoopers be appointed liquidator thereof. … 4. An order that no step to enforce any Judgment or verdict obtained in the Dust Diseases Tribunal of NSW in proceedings numbered 102 of 2020 shall be taken by the plaintiff as against Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080), otherwise than by resort to indemnity provided by the Insurers' Guarantee Fund established under section 227 of the Workers Compensation Act, without further leave of the court. 5. An order that the costs of this application and these proceedings be costs in proceedings number 102 of 2020 in the Dust Diseases Tribunal of NSW against Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080). 6. An order pursuant to section 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that the Dust Diseases Tribunal proceedings numbered 102 of 2020 were validly commenced and pending as against Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080) as at the Late Ronald Bainbridge's death on 5 July 2020. 1. On 8 February 2021, I made orders pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) appointing Mr Gary Robert Banbridge (Mr Bainbridge jnr) to represent the estate of Mr Bainbridge and amending the title of the proceedings so that the plaintiff is noted as "Gary Robert Bainbridge appointed by order dated 8 February 2021 to represent the estate of the late Ronald Bainbridge, deceased". Mr Bainbridge jnr is the son of Mr Bainbridge and an executor of his estate. Mr Bainbridge jnr swore an affidavit on 21 August 2020 consenting to his appointment and confirming that he was aware that he would be responsible for instructing the plaintiff's solicitors in these proceedings. 2. After these orders were made, I heard the plaintiff's application for the relief sought in the amended originating process. Mr Robinson of counsel appeared for the plaintiff. There was no appearance for any defendant. 3. The plaintiff read three affidavits of Ms Ann-Maree Pascoli, a partner of Turner Freeman Lawyers (the plaintiff's solicitors). 4. Those affidavits establish that: 1. the Company was deregistered on 25 October 2009, as I have noted above; 2. the Company was in liquidation under a members' voluntary winding up immediately prior to its deregistration. The liquidators were Mr David Laurence McEvoy and Mr Stephen Graham Longley, both of PricewaterhouseCoopers. They were appointed on 27 January 2006 and their appointments ceased on deregistration of the Company; 3. Mr Bainbridge was diagnosed with mesothelioma in March 2020; 4. Mr Bainbridge commenced the Tribunal proceedings on 9 April 2020, as I have referred to above; 5. Ms Pascoli has ascertained that the Company was insured by National Employers Mutual General Insurance Association Limited (NEM) as at November 1977, and that NEM is deregistered. That information was provided by the solicitors appointed by the State Insurance Regulatory Authority (SIRA) to provide claims management services for IGF, which was established pursuant to s 227 of the Workers Compensation Act to finance the payment of workers compensation claims when an insurer becomes insolvent; 6. because the IGF is not an insurer, the Tribunal proceedings could not be commenced against the IGF pursuant to s 601AG of the Corporations Act. The plaintiff's only means of prosecuting the claims in the Tribunal proceedings is therefore to prosecute those claims against the Company and request SIRA (as manager of the IGF) provide indemnity in accordance with ss 231-236 of the Workers Compensation Act; 7. following the death of Mr Bainbridge on 5 July 2020, the Tribunal extended the time for service of the pleading in the Tribunal proceeding until 9 April 2021; 8. a copy of the originating process and amended originating process in these proceedings has been provided to the former liquidator Mr McEvoy, who has notified the plaintiff's solicitors that he has no objection to the relief sought (including the appointment of Mr Scott as liquidator upon reinstatement of the Company) and does not wish to appear or be heard; 9. a copy of the originating process and amended originating process has also been provided to the former liquidator Mr Longley, but Mr Longley has not responded nor sought to contact Ms Pascoli or the claimant; 10. a copy of the originating process and amended originating process has also been sent to ASIC, which in response advised that ASIC will not oppose the application for reinstatement of the Company if the below conditions are satisfied: "1. The order sought for reinstatement is in the terms of section 601AH(2) of the Corporations Act, requiring ASIC to reinstate the registration of the company; 2. The company (if ordered to be reinstated) continues to be in liquidation (section 601AH(5) of the Act) and the previous Liquidators resume their roles or the Court appoints a new Liquidator/s; 3. The Court order is lodged with ASIC … so that the company may be reinstated; 4. The Liquidator notifies ASIC upon conclusion of the winding up." 1. a copy of the originating process and amended originating process has also been sent to SIRA's solicitors, who notified the plaintiff's solicitors that SIRA has no objection to the filing of the amended originating process and does not wish to be heard (noting that the IGF, in the interests of NEM, reserves its rights in relation to indemnity). 1. Mr Andrew John Scott of PricewaterhouseCoopers, registered liquidator, signed an instrument consenting to being appointed by the Court and acting as liquidator of the Company. 2. Section 601AH(2) of the Corporations Act provides: "(2) The Court may make an order that ASIC reinstate the registration of a company if: (a) an application for reinstatement is made to the Court by: (i) a person aggrieved by the deregistration; or (ii) a former liquidator of the company; and (b) the Court is satisfied that it is just that the company's registration be reinstated." 1. The test for whether Mr Bainbridge's estate constitutes a person aggrieved was summarised by Rees J in Austral Bronze (at [127]): "As Gleeson JA explained in Re European Metal Recyclers Pty Ltd (in liquidation) (deregistered) [2018] NSWSC 946 at [17]-[18], the expression 'aggrieved person' is of wide import and should be construed liberally and includes a person who has been damaged in the legal sense. As Brereton J observed in Re Regional Planners Developments Co, a person is aggrieved by the deregistration of a company if they are thereby precluded from suing the company and it may be just for the company's registration to be reinstated for the purpose of enabling the applicant to pursue its remedies: at [11]. Similarly, in Pilarinos v Australian Securities and Investments Commission (2006) 24 ACLC 775; [2006] VSC 301 at [103], Gillard J observed: '… 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.'" 1. In my opinion, Mr Bainbridge's estate is an aggrieved person in the requisite sense because deregistration precluded Mr Bainbridge from validly commencing the Tribunal proceedings and preserving his claims for general damages against the Company for the benefit of his estate in accordance with s 12B of the DDT Act. 2. In assessing whether it would be just to reinstate the registration of the Company, I must have regard to: 1. the circumstances in which the Company came to be deregistered; 2. the plaintiff's purpose in seeking reinstatement; 3. whether any person is likely to be prejudiced by reinstatement; 4. whether, if the order for reinstatement were made, good use could be made of it; and 5. whether reinstatement is in the public interest generally. 1. The Company came to be deregistered following a members' voluntary winding up. The plaintiff's purpose in seeking reinstatement is to enable Mr Bainbridge's estate to pursue claims against the Company in circumstances where Mr Bainbridge was not aware of those claims until he was diagnosed with mesothelioma in March 2020, many years after the Company had been deregistered. The estate will be able to make good use of a reinstatement to pursue those claims if the Court also makes the ancillary order sought under s 601AH(3) validating the commencement of the Tribunal proceedings. 2. There is no evidence that any person is likely to be prejudiced by the deregistration. On the contrary: 1. the Company, having been in liquidation immediately prior to its deregistration, will continue in liquidation and a liquidator has consented to being appointed: see Re ERB International Pty Limited (deregistered) [2014] NSWSC 200 at [20]-[40] (Brereton J); 2. the plaintiff's solicitor has undertaken to the Court to meet the reasonable fees of the appointment of the proposed liquidator; and 3. an order in terms of prayer 4 of the Amended Originating Process will prevent the plaintiff from taking any steps to enforce any judgment in the Tribunal proceedings against the Company, otherwise than by resort to indemnity provided by IGF, without further leave of this Court. 1. In my opinion, it is in the public interest that Mr Bainbridge's estate should have an opportunity to pursue the cause of action against his former employer for allegedly negligently exposing him to asbestos, in circumstances where the cause of action was discovered many years after deregistration of the Company and a very short time before Mr Bainbridge's death, the Company's insurer is itself deregistered and the IGF has been established by the Workers Compensation Act for payment of claims, judgments or awards arising from or relating to policies of insurance issued by insolvent insurers. 2. For those reasons, I am satisfied that it is just that the Company's registration be reinstated and that it is appropriate to make an ancillary order under s 601AH(3) validating the commencement of the Tribunal proceedings so as to cure the obstacle that the Company's deregistration otherwise presented to Mr Bainbridge's commencement of those proceedings and will otherwise continue to present to the pursuit of the claims by his estate. 3. The order sought in prayer 2 that the Company be wound up is not necessary, as the Company will continue in liquidation upon reinstatement. However, I will make orders under s 601AH(3) appointing Mr Scott as liquidator in addition to the ancillary orders in terms of prayers 4 and 6. Although re‑appointment of the former liquidators is generally preferable, there would be little advantage in doing so in this case where eleven years have passed since the former liquidators ceased to hold office and one of them has failed to respond to correspondence concerning these proceedings. I note that the other liquidator raised no objection to the plaintiff's proposed course of appointing Mr Scott as liquidator upon reinstatement of the Company. I am satisfied that the costs order sought in prayer 5 is appropriate. 4. I therefore make the following notation and orders: 1. Order pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the second defendant reinstate the registration of Exfrig Pty Limited (formerly Frigrite Limited) (ACN 004 244 080). 2. Order pursuant to s 601AH(3)(d) of the Corporations Act 2001 (Cth) that Andrew John Scott, registered liquidator, of PricewaterhouseCoopers, be appointed as liquidator of Exfrig Pty Limited (formerly Frigrite Limited) (ACN 004 244 080). 3. Note the undertaking to the Court of Armando Gardiman, Managing Partner of Turner Freeman Lawyers, to pay the reasonable fees of the appointment of Andrew Scott, Registered Liquidator, as Liquidator of Exfrig Pty Limited (formerly Frigate Limited) (ACN 004 244 080). 4. Order pursuant to s 601AH(3)(c) and (d) of the Corporations Act 2001 (Cth) that the Dust Diseases Tribunal proceedings numbered 102 of 2020 were validly commenced and pending as against Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080) as at the late Ronald Bainbridge's death on 5 July 2020. 5. Order pursuant to s 601AH(3)(d) of the Corporations Act 2001 (Cth) that no step shall be taken to enforce any judgment or verdict obtained in the Dust Diseases Tribunal of NSW in proceedings numbered 102 of 2020 by the plaintiff as against Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080), otherwise than by resort to indemnity provided by the Insurers' Guarantee Fund established under s 227 of the Workers Compensation Act 1987 (NSW), without further leave of this Court. 6. Order that the costs of these proceedings be costs in proceedings numbered 102 of 2020 in the Dust Diseases Tribunal of NSW against Exfrig Pty Limited (Formerly Frigrite Limited) (ACN 004 244 080). ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2021