Shaw v Goodsmith Industries [2002] NSWSC 406

Reported Decision : 41 ACSR 556

New South Wales Supreme Court

CITATION : Shaw v Goodsmith Industries [2002] NSWSC 406 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2532/02 HEARING DATE(S) : 03/05/02, 06/05/02 JUDGMENT DATE : 6 May 2002

PARTIES : Richard Maxwell Shaw - Plaintiff Goodsmith Industries Pty Limited (formerly Newbold General Refractories Limited) - Defendant JUDGMENT OF : Barrett J

COUNSEL : Mr P.S. Braham - Plaintiff ex parte SOLICITORS : Turner Freeman ex parte CATCHWORDS : CORPORATIONS - reinstatement of registration - company deregistered under Companies Code - jurisdiction under Corporations Act to order reinstatement - reinstatement just if coupled with winding up - jurisdiction to order winding up Companies (New South Wales) Code LEGISLATION CITED : Corporations Law Corporations Act 2001 (Cth) National Australia Bank Ltd v Australian Securities Commission (1991) 5 ACSR 453 CASES CITED : Scott v Janniki Pty Ltd (1994) 14 ACSR 334 Re Sparad Ltd (1993) 12 ACSR 12 DECISION : Refer paragraphs 16 and 17

- 3 - IN THE SUPREME COURT REVISED OF NEW SOUTH WALES EQUITY DIVISION

Barrett J

MONDAY, 6 MAY 2002

shaw v Goodsmith Industries Pty Limited

JUDGMENT

1 The plaintiff seeks an order for the reinstatement of the registration of Goodsmith Industries Pty Limited (formerly Newbold General Refractories Limited). He does so in circumstances where he wishes to pursue proceedings against that company in the Dust Diseases Tribunal. 2 The plaintiff was an employee of the company between 1955 and 1967 and is now suffering from a serious illness, claimed to have been contracted in the course of that employment. His life expectancy is short. The claim he wishes to pursue will come before the Tribunal today. There is evidence that the company was at material times insured against risks of the relevant kind and I am informed that the insurer accepts, in a practical sense, the role of defendant before the Tribunal. The need the plaintiff faces is a need to have his employer formally before the Tribunal in what might be described as a nominal capacity. 3 There is in evidence a historical company extract provided by ASIC in respect of the company. It shows that the company was incorporated in New South Wales in 1920, which must mean that its existence as a legal entity was created by the Companies Act 1899. The extract also shows that the company was deregistered on 13 December 1990, that is, while the Companies (New South Wales) Code was in force. I infer from the extract that deregistration was effected pursuant to s 459 of that Code. 4 The first matter to be explored here is the question of jurisdiction - in short, whether the court has jurisdiction to reinstate such a registration. When the matter came before me on Friday, Mr Giurtalis, who appeared on that occasion for the plaintiff, submitted that jurisdiction could still be exercised under the reinstatement provisions of the Companies (New South Wales) Code. He referred me to the decision of McLelland J in National Australia Bank Ltd v Australian Securities Commission (1991) 5 ACSR 453. Upon examining the matter briefly, I thought that that course might be available but that, if it were taken, there would be problems with the second element of the relief the plaintiff seeks, namely, an order for the winding up of the reinstated company. In the result, I directed that the matter be stood over to today so that further submissions might be prepared. 5 Mr Braham of counsel has today appeared for the plaintiff. He has identified as the source of appropriate jurisdiction s.1362CH of the Corporations Law of New South Wales: "ASIC's powers under section 601AH extend to the reinstatment of the registration of a body corporate that: (a) was at some time before commencement incorporated or taken to be incorporated under a previous law of this jurisdiction corresponding to Chapter 2 of the old law; and (b) was deregistered before commencement. Section 601AH applies to the reinstatement with any modifications that the circumstances require."