Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182

New South Wales Supreme Court

CITATION : Reid v Action Insulation Engineers Pty Ltd [2009] NSWSC 1182

HEARING DATE(S) : 02/11/09

JUDGMENT DATE : 2 November 2009

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 2 November 2009

DECISION : Orders for reinstatement and winding up

CATCHWORDS : CORPORATIONS - deregistered company - application for order that ASIC reinstate registration- ASIC notified of application but insufficient time for its response to be received - particular urgency for company's existence to be recreated - order made despite absence of ASIC's response but recognising its susceptibility to be set aside

LEGISLATION CITED : Corporations Act 2001 (Cth), s 601AH(2) Law Reform (Miscellaneous Provisions) Act 1946, s 6

CATEGORY : Principal judgment

CASES CITED : BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262

Edward James Joseph Reid - Plaintiff PARTIES : Action Insulation Engineers Pty Limited - First Defendant HD (Air) Pty Limited - Second Defendant

FILE NUMBER(S) : SC 5149/09

COUNSEL : Mr A P Cheshire - Plaintiff

SOLICITORS : Turner Freeman - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

Barrett J

Monday 2 November 2009

5149/09 Edward Reid v action insulation engineers Pty Limited & ANOR

JUDGMENT

1 The plaintiff is pursuing proceedings in the Dust Diseases Tribunal. His solicitor's affidavit sworn today gives details of those proceedings and in particular steps that have recently been taken by the Tribunal to expedite them. 2 On 23 October 2009, the President of the Tribunal, Judge O'Meally, removed the proceedings from the claims resolution process on the grounds of urgency. In the following week, the matter was case managed by Judge Curtis and the plaintiff's evidence was taken at his home on 29 October 2009. 3 On 30 October 2009, an insurer moved to strike out the statement of claim against it as a nullity, as no leave had been granted under section 6 of the Law Reform (Miscellaneous Provisions) Act 1946. That claim was successful but Judge Curtis later granted leave to join the insurer on condition that the registration of the two companies, ostensibly insured by that insurer, be reinstated, each having been removed from the register of companies at an earlier time. Those companies were employers of the plaintiff at times related to the onset of his illness. 4 Earlier today, an order was made by Judge Curtis ostensibly joining the two companies as parties to the proceedings. This is despite the circumstance I have mentioned, namely, that they do not at the moment exist. 5 It is in order to rectify this aspect of the proceedings in the Dust Diseases Tribunal that the plaintiff now moves the court under section 601AH(2) of the Corporations Act 2001 (Cth) for an order that ASIC reinstate the registration of each of the companies. 6 As the chronology in the Dust Diseases Tribunal demonstrates, there is urgency in this case. It arises from the fact that the plaintiff's condition has deteriorated and he is now gravely ill. On 21 October 2009, Associate Professor Breslin informed the plaintiff's solicitors that the plaintiff's life expectancy was one to six weeks only. 7 It is this same urgency that has caused the present application to come on quickly and before receipt by the plaintiff's solicitors of a response to their notification to ASIC of the intention to bring this application. 8 ASIC were notified of the application this morning but understandably no response has yet been received. 9 In the normal course, the court would wish to have evidence of ASIC's position before it decided on an application such as this. An order under s 601AH(2) is, after all, an order directed to ASIC and on ordinary principles a person upon whom an order will operate or who otherwise has a material interest in the making of the order ought to have an opportunity to be heard before the order is made: see for example BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322. In circumstances of extreme urgency, however, the court may proceed in the absence of any such opportunity. 10 I am satisfied that because of the serious condition of the plaintiff and the expectation that he will not live much longer, it is appropriate that the orders directed to ASIC be made despite ASIC not having been afforded the opportunity to which I have referred. 11 In saying that, however, I recognise – and Mr Cheshire has indicated that the plaintiff also recognises – that, should ASIC seek to appear at a future time to argue that the orders should be set aside, that is an application that would have to be accepted as attended by very strong prospects of success: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262. Furthermore and as the case just mentioned makes clear, if the order directing ASIC to reinstate were later set aside and the reinstatement had already been completed, ASIC would have power to rectify the register by again removing the companies from it. 12 Because it cannot be expected that the former administration of each company will again effectively operate it is proposed by the plaintiff that winding up be ordered on the just and equitable ground. That is something commonly done in cases of this kind. It is appropriate that it be done in this case also. A liquidator's consent has been produced in respect of each company. 13 Upon the plaintiff's undertaking given by his counsel to the court to pay applicable ASIC fees, I make the orders in the short minutes of order which I initial and date. **********