In the matter of Precision Panel Proprietary Limited; State of Victoria v Australian Securities and Investments Commission [2013] NSWSC 2040 (17 December 2013)

Last Updated: 9 July 2014

Supreme Court New South Wales

Case Title:	In the matter of Precision Panel Proprietary Limited; State of Victoria v Australian Securities and Investments Commission
Medium Neutral Citation:	[2013] NSWSC 2040
Hearing Date(s):	17 December 2013
Decision Date:	17 December 2013
Jurisdiction:	Equity Division - Corporations List
Before:	Brereton J
Decision:	Order reinstating deregistered company declined.
Catchwords:	COMPANIES - internal administrator - deregistration - re-registration - where sufficient remedy provided by s 601AG
Legislation Cited:	(Cth) Corporations Act 2001, s 601AG s 601AH
Cases Cited:	Almario v Allianz Australia Workers' Compensation [2005] NSWCA 19; (2005) 62 NSWLR 148; (2005) ACSR 422 Del Borrello v ASIC [2008] WASC 48 Hutchinson v ASIC [2001] VSC 465; (2001) 167 FLR 90; (2001) 40 ACSR 198 Langridge v Insurance Commission of Western Australia [2003] WASC 24; (2003) 27 WAR 504; (2003) 21 ACLC 878 Pagnon v Work Cover Queensland [2000] QCA 421; [2001] 2 Qd R 492 Suncorp Metway Insurance Ltd v Clonmel Pty Ltd [2000] QSC 135; [2001] 2 Qd R 94
Category:	Principal judgment
Parties:	State of Victoria (plaintiff) Australian Securities and Investments Commission (defendant)
Representation
- Counsel:	Counsel: Mr T Kerr (solicitor) (plaintiff)
- Solicitors:	Solicitors: Lander & Rogers (plaintiff)
File Number(s):	2013/371338

JUDGMENT - EX TEMPORE

1. HIS HONOUR: By originating process filed on 10 December 2013, originally returnable before the Court on 4 February 2014, the State of Victoria as plaintiff, seeks an order pursuant to (Cth) Corporations Act 2001, s 601AH that the defendant Australian Securities and Investments Commission reinstate the registration of the company Precision Panel Pty Limited.

2. The plaintiff was sued by one Mr Ljubas in the Dust Diseases Tribunal. That claim was recently settled. Mr Ljubas was allegedly exposed to asbestos dust during his employment for a period of about six months by the company in 1968.

3. The plaintiff wishes to recover contribution or indemnity from the company. The company was deregistered, pursuant to s 601AB, on 12 September 2009. At all relevant times, the company was insured for workers compensation purposes by CML Fire & General Insurance Company Limited, the workers compensation liabilities of which had been assumed by the Victorian WorkCover Authority Fund. The Victorian WorkCover Authority has instructed solicitors to accept service of proceedings once the company has been reinstated.

4. However, s 601AG provides that a person may recover from the insurer of a deregistered company an amount payable to the company under the insurance contract if the company had a liability to the person and the insurance contract covered that liability immediately prior to deregistration. This section permits a claimant to proceed directly against the insurer of a deregistered company without seeking that company's reinstatement [Suncorp Metway Insurance Ltd v Clonmel Pty Ltd [2000] QSC 135; [2001] 2 Qd R 94, Hutchinson v ASIC [2001] VSC 465; (2001) 167 FLR 90; (2001) 40 ACSR 198, Langridge v Insurance Commission of Western Australia [2003] WASC 24; (2003) 27 WAR 504; (2003) 21 ACLC 878, Del Borrello v ASIC [2008] WASC 48]. The purpose of the section has been said to be to require the insurer of a deregistered company to stand in the shoes of the company, to the extent necessary, to allow creditors to recover from the insurer whatever amounts they were entitled by force of law to recover from the company had it not been deregistered [Pagnon v Work Cover Queensland [2000] QCA 421; [2001] 2 Qd R 492; Almario v Allianz Australia Workers' Compensation [2005] NSWCA 19; (2005) 62 NSWLR 148; (2005) ACSR 422].

5. A reinstatement order should ordinarily not be sought or made where s 601AG applies to avoid the requirement for reinstatement of a company's registration [Hutchinson v ASIC (supra) 36]. Prior to the introduction of s 601AG, a claimant would ordinarily have been unable to maintain a claim directly against an insurer of a deregistered company, and could proceed only by having the company reinstated or by leave of the court under provisions such as (NSW) Law Reform Miscellaneous Provisions Act 1946. But since the enactment of s 601AG, its use should be the ordinary course, unless there is some reason for thinking that the rights of the plaintiff would be in some way better advanced if the company were reinstated.

6. Nothing has been put before the Court in this case, at least at this stage, to indicate that there is any requirement or benefit in reinstating the company under 601AH, rather than in leaving the plaintiff to proceed under 601AG. As I am under the impression that those appearing for the plaintiff, today, have not encountered this issue previously, rather than dismissing the matter forthwith, I will adjourn it to the date upon which it was originally returnable, when it can be dismissed unless the position has by then changed. If something arises which warrants an urgent application prior to that date, the matter can be raised with my associate.

7. I decline to make the order sought in the originating process. I adjourn the proceedings to 4 February 2014 at 9.15am before the Registrar.

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