Brownlie v TTPM Pty Ltd [2003] NSWSC 480

Reported Decision : (2003) 21 ACLC 1204

New South Wales Supreme Court

CITATION : Brownlie v TTPM Pty Ltd [2003] NSWSC 480 HEARING DATE(S) : 23 May 2003 JUDGMENT DATE : 27 May 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : If company was in liquidation when deregistered and its liquidator remained in office at that time, upon restoration to the register it remains in liquidation and the liquidator is again in office.

CATCHWORDS : CORPORATIONS [270] - Winding up - Conduct and incidents of liquidation - Dissolution - Restoration of defunct company to register - In general - Deregistration - Company in liquidation and liquidator in office at time of deregistration - Effect of restoration to register. LEGISLATION CITED : Corporations Act 2001 (Cth) s 601AH ASIC Policy Statement 83 par 19(e) Bianchi v Crewe & Sons Pty Ltd (1996) 135 FLR 15 CASES CITED : Civil & Civic Pty Ltd v R W Bass Pty Ltd (1996) 20 ACSR 16 Kenney v McCann (1992) 7 WAR 329 McPherson, The Law of Company Liquidation (4th ed, 1999) 678 PARTIES : Elizabeth Brownlie (P) TTPM Pty Limited (D) FILE NUMBER(S) : SC 2952/03 COUNSEL : R Winarczyk, Solicitor (P) No appearance (D) SOLICITORS : RTW & Associates (P) No appearance (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 27 MAY 2003

2952/03 ELIZABETH BROWNLIE v TTPM PTY LTD JUDGMENT 1 HIS HONOUR: This was an application made urgently last Friday for reinstatement of the registration of a company under s 601AH of the Corporations Act 2001 (Cth). The application was made for the purpose of making the company a defendant to an action for personal injuries in the District Court at the suit of the plaintiff. The application was made as a matter of great urgency as it was thought that a limitation period in favour of the company in relation to the cause of action expired that day. The requisite matters having been established, I made the order that day and indicated that I should give reasons for judgment subsequently. These are those reasons. 2 The company was in liquidation at the time of its deregistration. The purpose of the application and the intent to which the company's registration was reinstated and leave was granted to begin and continue proceedings against it, although in liquidation, was to permit the plaintiff to have the benefit of any insurance policy held by the company in respect of the circumstances in which the plaintiff suffered injury. Thomas Javorsky was the liquidator of the company at the time of its deregistration. Upon being approached by the plaintiff's solicitor, Mr Javorsky indicated that he would consent to acting again as the liquidator of the company if it were restored to the register. 3 Curiously, the question of the status of a company restored to the register which was in liquidation when it was removed is not entirely clear, although restoration of deregistered companies is a common occurrence. Prior to 1998 there were two procedures by which a company left the register. The first was dissolution, which was the formal act at the end of a winding up. Usually associated with dissolution was the release of the liquidator, which had the effect of the liquidator leaving office. The other method was administrative deregistration, which was used in the case of companies which, whether in liquidation or not, had simply become defunct and ceased to function. In 1998, the process of dissolution was abolished and, since then, there has been only one process for the removal of companies from the register, being deregistration, which is used even where a winding up has been completed. The company was deregistered in 2001 under this uniform procedure. 4 In McPherson, The Law of Company Liquidation (4th ed, 1999) it is stated at 678: "It is likely that, as under the previous law, if a company that is reinstated had been wound up, the liquidator would be restored to office on reinstatement, if not released before deregistration."