Federal Court of Australia

Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 12 August 2025 for leave to file further evidence is dismissed.

2.    The appeal be dismissed.

3.    Subject to any application pursuant to r 40.02 of the Federal Court Rules 2011 (Cth), the appellants pay the respondents’ costs of the proceeding, to be assessed in default of agreement.

4.    The sum of $15,000 paid into Court as security for the respondents’ costs be paid to the respondents, once the respondents’ costs are assessed or agreed.

5.    Consideration of the question whether to make vexatious proceedings orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) in respect of the appellants be referred to the presiding judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellants, Mr Hartmut Frigger and Mrs Angela Frigger, appeal from the decision of the primary judge in Frigger v Professional Services of Australia Pty Ltd (No 5) [2024] FCA 420, delivered on 26 April 2024 (primary judgment or PJ) determining separate questions relating to the validity of the registration of the first respondent, Professional Services Australia Pty Ltd (previously known as Liberty Oil (Australia) Pty Ltd) (PSA). In their amended originating process, the appellants sought a declaration that the registration of PSA was invalid ab initio and an order under s 1322(4)(b) of the Corporations Act 2001 (Cth) directing the Australian Securities and Investments Commission (ASIC) to rectify the Organisation and Business Names register by removing PSA.

2    The primary judge determined the separate questions as follows:

(1)    Was the registration of the company with the name Liberty Oil (Australia) Pty Ltd and Australian Company Number 082 879 641 invalid ab initio?

No.

(2)    On the proper construction of section 1322(4)(b) of the Corporations Act 2001 (Cth), has the Court power, on the application of the plaintiffs, to make an order directing the Australian Securities Investments Commission to rectify the register kept by ASIC under the Corporations Act 2001 (Cth) to remove Professional Services of Australia Pty Ltd (ACN 082 879 641) from that register?

No.

(3)    If the answer to question (2) is in the affirmative, has the Court power to make such an order with retrospective effect?

No.

3    The appellants, who were litigants in person, prepared an amended notice of appeal and a written outline of submissions. The appellants also, and with respect, ably presented oral submissions at the hearing of the appeal. Despite their admirable efforts, the notice of appeal and submissions were difficult to comprehend. As best as they could be understood, and allowing for the overlapping nature of the grounds, the grounds of appeal may be summarised as follows:

(a)    Ground 1: the primary judge erred in law by holding that the registration of PSA was not invalid ab initio and in mixed fact and law by assuming that there were subscribers and shareholders in PSA at the time of registration and “from time to time”;

(b)    Ground 2: the primary judge erred in law by incorrectly applying the conclusive evidence rule in s 1389 of the Corporations Act;

(c)    Ground 3: the primary judge erred in fact and law in finding that the appellants were precluded from challenging PSA’s registration;

(d)    Ground 4: the primary judge erred in law by concluding that the agreed and assumed facts do not disclose circumstances in which it would be appropriate to exercise the power in s 1322(4)(b) of the Corporations Act to deprive PSA of its corporate existence from 5 June 1998;

(e)    Ground 5: the primary judge made a jurisdictional and procedural error in denying the appellants final relief.

4    After filing the notice of appeal, on 31 July 2025, the appellants lodged an interlocutory application by which they sought an order pursuant to r 36.57 of the Federal Court Rules 2011 (Cth) permitting them to lead further evidence in the appeal. An amended version of that application was lodged on 11 August 2025. At the commencement of the hearing of the appeal, it was resolved (with the parties’ consent) that the Court would receive such submissions as the parties were minded to make (including as to the further evidence that was the subject of the application) on the footing that it would determine the application to adduce further evidence in the course of determining the appeal itself.

5    For the reasons that follow, the grounds of appeal lack any merit and the application for the Court to receive further evidence does not warrant the grant of leave. Furthermore, in our assessment, the findings and reasoning of the primary judge are unimpeachable. The appeal and the application should and will be dismissed, with costs.

Background

6    The dispute between the appellants and the respondents has a long and complex history, which was set out in Kitay v Frigger (No 2) [2024] WASC 113 (Hill J). The proceeding before the primary judge had a similarly complex history, which is set out in Frigger v Professional Services of Australia Pty Ltd (No 3) [2023] FCA 520 (Frigger (No 3)). The background to the dispute between the parties and the procedural history to the proceeding before the primary judge are relevant to understanding some of the arguments put by the appellants in the appeal and in support of the application.

The dispute between the parties

7    In 2003, the appellants’ company, Computer Accounting and Tax Pty Ltd (CAT), purchased a property in Armadale, Western Australia, from PSA. The appellants claimed that the purchase of the Armadale property was induced by false representations made by Mr Martin Banning, who was the sole director of PSA at the relevant time.

8    The appellants’ company, CAT, obtained judgment against PSA in the Supreme Court of Western Australia: Computer Accounting & Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133 (Simmonds J). PSA appealed against the judgment. The appeal was partially successful and the judgment sum in favour of CAT, which had been paid by PSA, was reduced: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183. That had the consequence that CAT was obliged to repay a sum in excess of $700,000 to PSA: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2011] WASCA 80 at [1]–[2] (Pullin JA).

9    Subsequently, PSA brought an application to wind up CAT and, on 6 May 2010, CAT was wound up by orders of the Court: Professional Services of Australia Pty Ltd (Administrator Appointed) v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 93 (Master Sanderson).

10    On 29 August 2016, the Liquidator of CAT caused a bankruptcy notice to issue to the appellants. The bankruptcy notice was founded on an order for indemnity costs made against the appellants by Master Sanderson on 12 June 2014, which costs were subsequently taxed in an amount of $61,000.42: Frigger v Kitay [2017] FCA 1278 at [2] (Siopis J).

11    The Liquidator of CAT, and CAT, subsequently petitioned the Court for sequestration orders in respect of the estates of the appellants. A number of intervening creditors supported the petition: Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Colvin J) (Kitay (No 2)).

12    On 11 July 2018, sequestration orders were made against the estates of the appellants: Kitay (No 2) at [4].

The proceeding before the primary judge

13    By an amended originating process filed on 31 August 2022, the appellants sought a declaration that the registration of PSA was invalid ab initio and an order under s 1322(4)(b) of the Corporations Act that ASIC rectify the Organisation and Business Names register by removing PSA.

14    On 12 October 2022, the primary judge listed the originating process for final hearing over two days and made orders for the parties to complete various interlocutory steps before the final hearing. The dates for the final hearing were later fixed for 2–3 March 2023.

15    The final hearing commenced on 2 March 2023, but was not completed within the two hearing days allocated. On 3 March 2023, the hearing was adjourned part heard and relisted for a further two days on 28–29 June 2023.

16    After the adjournment of the hearing, the appellants filed an interlocutory application for leave to adduce expert evidence. On 24 April 2023, the Court made orders permitting the appellants to adduce expert handwriting evidence, on certain conditions, and to facilitate the respondents adducing their own expert handwriting evidence at the resumption of the final hearing. The Court also extended the final hearing to include three further days.

17    On 26 April 2023, the appellants requested leave to issue a subpoena to a further witness to give oral evidence at the resumption of the final hearing.

18    On 19 May 2023, the proceeding was listed for a case management hearing for the parties to make submissions on the merits of determining three questions that the primary judge had identified as common questions that could be determined separately. The appellants opposed that course, submitting that it was undesirable to separate the issues after the final hearing had commenced and before they had had an opportunity to cross-examine the respondents’ witnesses and complete their evidence in the hearing.

19    On 23 May 2023, the primary judge made orders for the determination of three separate questions upon a statement of facts that was agreed between the parties and on the assumption that the appellants had proven or demonstrated certain other facts and matters that were in issue in the proceeding: Frigger (No 3) at [17]. The primary judge took this course because the resolution of the separate questions had the potential to dispose of the proceeding or, alternatively, narrow the issues and in circumstances where his Honour was not confident that the matter would be completed in the remaining three days allocated for the final hearing: Frigger (No 3) at [18].

20    The separate questions were listed for hearing on 28 June 2023. The parties filed written submissions before the date set for the hearing and made oral submissions on the separate questions at the hearing on 28 June 2023. At the conclusion of the hearing, the parties were directed to file written submissions addressing the effect of s 1378 of the Corporations Act. The appellants filed written submissions dated 5 July 2023 and the respondents filed written submissions dated 4 July 2023 in accordance with that direction.

21    On 26 April 2024, the primary judgment was handed down and each of the three separate questions was answered in the negative.

22    As a consequence of the answers to the separate questions, the respondents were entitled to apply for judgment under r 30.02 of the Rules.

23    On 15 November 2024, the primary judge dismissed the appellants’ originating process, as amended.

Separate questions determined on the basis of agreed and assumed facts and matters

24    As noted in the primary judgment, at PJ [1] and [15], the separate questions were answered on the basis of agreed facts and assumed facts and matters. The statement of agreed and assumed facts can be found at Annexure A of Frigger (No 3).

25    The agreed facts, which were also set out at PJ [16], were as follows:

(a)    On 5 June 1998, a Form 201 application for registration of an Australian company with the proposed name Liberty Oil (Australia) Pty Ltd was lodged with the Australian Securities Commission, a copy of which was annexed to the statement of agreed facts, marked “AF1” and is Exhibit 2.1/AF1, found in Frigger (No 3) at Annexure A.

(b)    Mr David John Boyle prepared and lodged the Form 201 with the ASC and both Mr Boyle and Mrs Mariangela Boyle signed that document before it was lodged and Mr Emilio Gerzic witnessed these signatures.

(c)    The companies register kept by ASIC records, amongst other things, the following:

Company registration and name

(i)    A company with the name Professional Services of Australia Pty Ltd and Australian Company Number 082 879 641 is registered.

(ii)    On 5 June 1998, the company was registered in Western Australia.

(iii)    On 8 June 1998, a certificate of registration for the company was issued.

(iv)    The former name of the company was Liberty Oil (Australia) Pty Ltd.

(v)    On 7 July 1998, notice of a resolution changing company name was given with respect to the company.

(vi)    On 7 July 1998, the company name on the register was changed to Professional Services of Australia Pty Ltd.

Company officers

(vii)    On 1 July 1998, notice of initial appointment of officeholders was given with respect to the company.

(viii)    Mr Boyle and Mrs Boyle were directors of the company from 5 to 8 June 1998.

(ix)    Mr Martin Paul Banning was a director of the company from 8 June 1998 to 8 September 2008.

(x)    Mr John Andrew Miller was a director of the company from 8 to 26 June 1998.

(xi)    Mrs Banning was a director of the company from 26 June 1998 to 4 June 2001.

(xii)    Mr Donald Campbell-Smith was a director of the company from 8 September 2008 to 10 May 2016.

(xiii)    The company was under administration of an administrator appointed under the Corporations Act between 17 November 2008 and 23 March 2009.

(xiv)    The company was under administration of an administrator appointed under a deed of company arrangement between 23 March 2009 and 6 November 2012.

(xv)    Mrs Banning is the sole director and secretary of the company and was appointed to those offices on 10 May 2016.

Company shareholders/members

(xvi)    On 11 June 1998, notice of redemption of redeemable preference shares was given with respect to the company.

(xvii)    On 1 July 1998, notice of issue of shares was given with respect to the company.

(xviii)    The company has share capital $2.00 comprised of two ordinary fully paid ordinary shares.

(xix)    Mr Banning was formerly a shareholder/member of the company and holder of one fully paid ordinary share.

(xx)    Mrs Banning is the sole shareholder/member of the company and holder of two fully paid ordinary shares.

26    The assumed facts and matters, which were also set out at PJ [17], were as follows:

(a)    The appellants are interested persons for the purposes of s 1322(4) of the Corporations Act.

(b)    For the purposes of s 1322(6) of the Corporations Act, the Court is satisfied that no substantial injustice has been or is likely to be caused to any persons.

(c)    The document entitled “Memorandum & Articles of Association of Liberty Oil (Australia) Pty Ltd Australian Company Number 082 879 641 A Company Limited By Shares Incorporated on 5 June 1998” (Exhibit A.1 in Annexure B to Frigger (No 3)) was not prepared by Mr Boyle and was not signed by Mr Boyle or Mrs Boyle, but by a person or persons unknown who simulated the signatures of each of Mr Boyle and Mrs Boyle.

27    As is apparent from the primary judgment, the main assumed fact was that the Memorandum and Articles of Association of PSA was not signed by the subscribers to the Memorandum, Mr and Mrs Boyle, as was required under Pt 2.2 of the Corporations Law of Western Australia.

28    Finally, annexed to the statement of agreed facts was a Form 201 application for registration of an Australian company with the proposed name “Liberty Oil (Australia) Pty Ltd”. A copy of Form 201 can be found at Annexure A of Frigger (No 3).

The primary judge’s reasons for judgment

29    The determination of the separate questions was made on the basis of the agreed and assumed facts mentioned above, which the primary judge considered comprised essentially all the facts upon which the appellants relied for the relief sought in the amended originating process: PJ [1].

30    In summary, the primary judge determined that the registration of PSA was authorised (i.e., valid) and that the appellants were precluded from challenging the validity of the process by which PSA was registered in 1998. Furthermore, that while there is power to remove a company from the register of companies under s 1322(4)(b) of the Corporations Act, the agreed and assumed facts did not disclose circumstances that called for the exercise of that power so as to deprive PSA of its corporate existence from the date of its registration: PJ [3].

31    The separate questions were answered, at PJ [109], as follows:

(1)    Was the registration of the company with the name Liberty Oil (Australia) Pty Ltd and Australian Company Number 082 879 641 invalid ab initio?

No.

(2)    On the proper construction of section 1322(4)(b) of the Corporations Act 2001 (Cth), has the Court power, on the application of the plaintiffs, to make an order directing the Australian Securities Investments Commission to rectify the register kept by ASIC under the Corporations Act 2001 (Cth) to remove Professional Services of Australia Pty Ltd (ACN 082 879 641) from that register?

No.

(3)    If the answer to question (2) is in the affirmative, has the Court power to make such an order with retrospective effect?

No.

32    The reasoning of the primary judge was as follows.

Legislative framework

33    After setting out the historical and statutory context of the legislation that dealt with the formation and registration of companies in England and Australia prior to the implementation of the Corporations Law in 1989 and the enactment of the Corporations Act in 2001, at PJ [20]–[31], the primary judge turned to the legislative framework that existed at the time PSA was registered.

34    As noted in the primary judgment, at PJ [30], in the period between the implementation of the Corporations Law and enactment of the Corporations Act, a number of reforms were made to the Corporations Law. This included several reforms, in 1998, which straddled the registration of PSA on 5 June 1998. We will adopt the primary judge’s approach of referring to the Corporations Law before and after 1 July 1998 as the “Corporations Law (1995)” and the “Corporations Law (1998)”: PJ [30].

35    Furthermore, as part of the 1998 reforms, the Australian Securities Commission (ASC) (which was established under the Australian Securities Commission Act 1989 (Cth)) became known as the “Australian Securities and Investments Commission”, but it remained the same body, and the act establishing that body was re-named the Australian Securities and Investments Commission Act 1989 (Cth) (ASIC Act 1989): ss 7(1) and 7(2) of the ASIC Act 1989; PJ [30].

Corporations Law (1995)

36    Because the Corporations Law (1998) was enacted on 1 July 1998, the provisions of the Corporations Law (1995) relating to the formation and registration of companies applied at the time of the registration of PSA on 5 June 1998. Those provisions, which were set out in full at PJ [32], are central to the appeal and bear repeating.

37    As of 5 June 1998, Pt 2.2 Div 1 of the Corporations Law (1995) relevantly provided:

Section 114.    Formation of companies

(1)    Proprietary companies

One or more persons may form a proprietary company by:

(a)    subscribing their name to a memorandum; and

(b)    complying with the registration requirements for proprietary companies set out in this Division.

…

Section 116.    Proprietary companies

(1)    A company must comply with subsection (2) if it is to:

(a)    be registered as a proprietary company; or

(b)    convert to a proprietary company; or

(c)    remain registered as a proprietary company.

(2)    A proprietary company:

(a)    must be either:

(i)    limited by shares; or

(ii)    an unlimited company that has a share capital; and

(b)    must have no more than 50 non-employee shareholders.

…

Section 117.    Requirements as to memorandum

(1)    The memorandum of a company shall be printed, divided into numbered paragraphs, dated, and signed by the persons desiring the formation of the company, and shall, in addition to other requirements, state:

(a)    the name of the company or that the company's name on registration is to be its registration number;

(b)    unless the company is an unlimited company--the amount of share capital (if any) with which the company proposes to be registered and the division of that share capital into shares of a fixed amount;

(c)    if the company is a company limited by shares--that the liability of the members is limited;

(d)    if the company is a company limited by guarantee or a company limited both by shares and by guarantee--that the liability of the members is limited and that each member undertakes to contribute to the company's property if the company is wound up while he, she or it is a member or within one year after he, she or it ceases to be a member, for payment of the company's debts and liabilities contracted before he, she or it ceases to be a member and of the costs, charges and expenses of winding up and for adjustment of the rights of the contributories among themselves, such amount as may be required not exceeding a specified amount in addition to the amount (if any) unpaid on any shares held by him, her or it;

(e)    if the company is an unlimited company--that the liability of the members is unlimited;

(f)    if the company is a no liability company--that the acceptance of shares in the company does not constitute a contract to pay calls in respect of the shares or to make any contribution towards the company's debts and liabilities;

(g)    the full names, addresses and occupations of the subscribers to the memorandum being natural persons, and the corporate names, and the addresses of the registered or principal offices, of the subscribers to the memorandum being bodies corporate; and

(h)    that those subscribers wish to form a company pursuant to the memorandum and (if the company is to have a share capital) respectively agree to take the number of shares in the capital of the company set out opposite their respective names.

(2)    The memorandum of a company may state the objects of the company.

(3)    Each subscriber to the memorandum shall:

(a)    if the company is to have a share capital--state in words:

(i)    the number of shares (being at least one) that the subscriber agrees to take; and

(ii)    if the shares in the company are divided into classes--the class or the respective classes in which the shares that the subscriber agrees to take are included; and

(b)    in any case--sign the memorandum in the presence of at least one witness (not being another subscriber).

(4)    A witness to the signature of a subscriber to the memorandum shall attest the signature and add his or her address.

(5)    A statement in the memorandum of a company limited by shares that the liability of members is limited means that the liability of the members is limited to the amount (if any) unpaid on the shares respectively held by them.

Section 118.    Registration application

(1)    Persons desiring the incorporation of a company may lodge an application in the prescribed form for the registration of the company under this Division.

(2)    The application must:

(a)    state that it is desired to incorporate the company under the Corporations Law of this jurisdiction; and

(b)    contain the prescribed information and matters; and

(c)    be accompanied by:

(i)    in any case--the prescribed documents (if any); and

(ii)    unless subsection (3) applies--the memorandum, and the articles (if any), of the proposed company.

(3)    If:

(a)    the proposed company's memorandum states the matters that are required to be stated under paragraphs 117(1)(a), (b), (c) and (g); and

(b)    the company is to be registered as a proprietary company;

the application must also set out those matters.

(4)    The application shall be signed by:

(a)    if subsection (3) applies--each subscriber; or

(b)    otherwise--at least one subscriber;

to the proposed company's memorandum, in the presence of at least one witness (not being another subscriber).

(5)    A witness to a signature that is required by this section shall attest the signature and add his or her address.

Section 119.    Power to require production of unlodged memorandum

(1)    Where an application under section 118:

(a)    is not accompanied by the proposed company's memorandum; and

(b)    purports to comply with subsection 118 (3);

the Commission may, even if it has no reason to suspect that the application was not made in accordance with that section, refuse to register the company under this Division unless and until the memorandum has been lodged.

(2)    Where:

(a)    a memorandum is lodged under subsection (1); and

(b)    the Commission registers the company but is not required to register the memorandum;

the Commission shall, when it issues a certificate to the company under section 121, give the memorandum to the company.

Section 120.    Registration

(1)    Subject to this Law, where the Commission is satisfied that an application has been made in accordance with section 118, it shall:

(a)    register the company by registering:

(i)    in any case--the application; and

(ii)    unless the company is registered as a company limited by shares and as a proprietary company--the company's memorandum and articles (if any); and

(b)    allot to the company a registration number distinct from the registration number of each body corporate (other than the company) already registered under this Part, Part 4.1 or a law corresponding to this Part or Part 4.1.

(2)    The Commission must not register a company under this Division by a particular name unless that name is available within the meaning of section 367.

(3)    Where an application under section 118:

(a)    is not accompanied by the proposed company's memorandum; and

(b)    purports to comply with subsection 118(3);

the Commission may, unless it has reason to suspect to the contrary, assume without inquiry that:

(c)    the application does so comply; and

(d)    the persons who signed the application are the subscribers to the memorandum.

Section 121.    Certificate of registration

(1)    On registering a company under this Division, the Commission shall prepare a certificate under its common seal that complies with this section and shall issue the certificate to the company.

(2)    The certificate shall state that the company:

(a)    is registered as a company under this Division of the Corporations Law of this jurisdiction; and

(b)    because of that registration, is an incorporated company;

and shall specify the day of commencement of the registration.

(3)    The certificate shall state that the company is:

(a)    a company limited by shares;

(b)    a company limited by guarantee;

(c)    a company limited both by shares and by guarantee;

(d)    an unlimited company; or

(e)    a no liability company;

as the case requires.

(4)    The certificate shall state that the company is a proprietary company or a public company, as the case requires.

(5)    The Commission shall keep a copy of a certificate issued under this section, and subsections 1274 (2) and (5) apply in relation to that copy as if it were a document lodged with the Commission.

…

Section 123.    Incorporation

(1)    Subject to this Law, on and from the day specified in a certificate under section 121 as the day of commencement of a company's registration under this Division, the subscribers to the company's memorandum, together with such other persons as from time to time become members of the company, are an incorporated company by the name stated in the memorandum.

(2)    A company registered under this Division:

(a)    is capable of performing all the functions of a body corporate;

(b)    is capable of suing and being sued;

(c)    has perpetual succession;

(d)    shall have a common seal; and

(e)    has power to acquire, hold and dispose of property.

Corporations Law (1998)

38    As noted by the primary judge, at PJ [33]–[39], the amendments to the Corporations Law in 1998 made several significant changes to the provisions relating to the formation, registration and incorporation of companies. Pt 2.2 Div 1 of the Corporations Law (1995) was repealed and replaced with Ch 2A and Ch 2B of the Corporations Law (1998).

39    The 1998 amendments included a number of transitional provisions, in Pt 11.2 Div 10 of the Corporations Law (1998), that gave effect to the changes introduced in, amongst others, Ch 2A and Ch 2B of the Law. Relevantly, s 1413(a) of the Corporations Law (1998) provided that a company that was registered or taken to be registered before the commencement of the Company Law Review Act 1998 (Cth) under Pt 2.2 of the old Corporations Law as a proprietary company limited by shares continued to be registered as a company of that type after commencement. In the Corporations Law (1998), “company” was defined to include a company registered or taken to be registered under the Corporations Law (1995). Consequently, the new provisions of Ch 2A and 2B applied to any company registered under the Corporations Law (1995) at the time the Corporations Law (1998) commenced.

40    The primary judge concluded, at PJ [39], by saying that:

The collective effect of the provisions of Pt 11.2 Div 10 of the Corporations Law (1998) was that a company registered under Pt 2.2 of the Corporations Law (1995) as a proprietary limited company continued to be registered as a company of that type under the Corporations Law (1998) on and from 1 July 1998. From that date the company assumed the features a registered proprietary company limited by shares had under the Corporations Law (1998). Thus, in effect, a company registered or taken to have been registered under Pt 2.2 of the Corporations Law (1995) was continued as and was taken to have been registered as a company under Pt 2A.2 of the Corporations Law (1998).

Corporations Act

41    The primary judge noted, at PJ [40], that the Corporations Act, at its commencement on 15 July 2001, largely re-enacted the Corporations Law as it stood immediately before 15 July 2001.

42    The primary judge noted and summarised, at PJ [42], the effect of ss 1373, 1378, 1408(1) and 1408(6) of the Corporations Act. Sections 1408(1) and 1408(6) relevantly provide that the transitional provisions in Pt 11.2 Div 10 of the Corporations Law (1998) have the same effect as if they were part of the Corporations Act and produce the same results or effects for the purposes of the Corporations Act as they produced for the purposes of the Corporations Law (1998). Further, s 1373 provides that if the effect of a provision of the Corporations Law (1998) was to take or to deem something to have happened or to be the case, or to have a particular effect for the purposes of the Corporations Law (1998), or to give something an effect for its purposes that it would not otherwise have had, and that effect was continuing immediately before commencement of the Corporations Act, then Pt 10.1 of the Corporations Act applies as if that thing had actually happened or were actually the case, or as if that thing actually had that other effect. As regards the operation of s 1378, the primary judge observed that a registration of a proprietary company limited by shares under Pt 2A.2 of the Corporations law (1998) has effect, and may be dealt with after commencement of the Corporations Act, as if it were a registration of a company under Pt 2A.2 of the Corporations Act.

43    The primary judge concluded, at PJ [43], by saying that:

The collective effect of the provisions of Pt 10.1 of the Corporations Act (2001) and Pt 11.2 Div 10 of the Corporations Law (1998) is that a proprietary company limited by shares registered under Pt 2.2 of the Corporations Law (1995) has effect and may be dealt with on and from 15 July 2001 as if it were a registration of a company under Pt 2A.2 of the Corporations Act (2001).

44    After referring to Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 at [50] [footnote (94)] (Hayne, Crennan and Kiefel JJ); Re Equiticorp Australia Ltd (In Liq) [2011] NSWSC 1368; (2011) 255 FLR 417 at [11], (Barrett J); and In the matter of Equiticorp Australia Ltd (in liq) [2020] NSWSC 143 at [14] (Gleeson J), where the relevant companies were incorporated before the commencement of the Corporations Act, and to which s 1413 of the Corporations Law (1998) (being the equivalent provision to s 1378 of the Corporations Act) must have applied, the primary judge concluded, at [46]:

Thus, by parity of reasoning, the registration of a company under Pt 2.2 of the Corporations Law (1995) is taken to have been a registration under Pt 2A.2 of the Corporations Law (1998) and that, in turn, is taken to have been a registration of the company under Pt 2A.2 of the Corporations Act (2001) on and from 15 July 2001.

45    The effect of the primary judge’s reasoning was that the registration of PSA, though made at the time the Corporations Law (1995) applied, had effect as if it were a registration made under the Corporations Act.

The register of companies

46    The primary judge noted, at PJ [38] and [47], that s 1274(1) of the Corporations Law (1998) provided that ASIC was to keep such registers as it considered necessary in such form as it thought fit and, under reg 9.1.01 of the Corporations Regulations 1990 (Cth), the prescribed register included the register of companies. Regulation 9.1.01(a) of the Corporations Regulations (2001) (Cth) provides that “the register of companies registered under section 118 or 601BD of the [Corporations] Act or the registration of which is continued by section 1378 of the Act” is prescribed for ss 1274A(2), (3) and (4): at PJ [49].

47    The primary judge noted, at PJ [51], that s 1399(1) of the Corporations Act relevantly provides that if:

(a)    before the Corporations Act’s commencement;

(b)    a thing was done under these provisions of the Corporations Law (1998) and Corporations Regulations (1990) (Cth); and

(c)    that thing had an “ongoing significance”,

then, that thing has effect (and may be dealt with) after commencement of the Corporations Act for the purposes of the Corporations Act and the Corporations Regulations (2001), as if it were done under the corresponding provision of that new legislation. His Honour observed that the establishment of a register was “a thing done” (s 1399(2)(f)) that, because it remained in existence until immediately before the new legislation, had “ongoing significance” (s 1399(4)(f)). Thus, his Honour concluded, at PJ [57], that the register of companies ASIC kept under the Corporations Law (1998) continued as a register of companies after the commencement of the Corporations Act: PJ [51].

48    After referring to Re Vouris (2003) 177 FLR 289; [2003] NSWSC 702 at [48] where Campbell J found that, because s 1405 of the Corporations Act extends the meaning of “Act” to include reference to the Corporations Law, s 1322 of the Corporations Act applied to events that took place at a time when the Corporations Law was in place, the primary judge concluded, at PJ [53]:

Adopting the same process of reasoning, s 1322(4)(b), which refers to ‘rectification of any register kept under this Act’ may apply, by operation of s 1405, to an entry made in a register kept at a time when the Corporations Law was in force.

49    The primary judge’s reasoning was that the register on which PSA was entered is the same register kept by ASIC and, specifically, the entry of PSA was capable of rectification, notwithstanding that it was entered before the Corporations Act commenced.

Summary

50    The primary judge summarised his conclusions that flowed from the preceding analysis, at PJ [54], as follows:

(1)    Upon registration of PSA as a company under Pt 2.2 of the Corporations Law (1995), a legal person separate from its members (the subscribers to its memorandum) came into existence.

(2)    Registration of PSA as a proprietary company limited by shares under Pt 2.2 of the Corporations Law (1995) has effect from 15 July 2001 as if it were a registration of that company under Pt 2A.2 of the Corporations Act (2001).

(3)    The register of companies that ASIC kept under the Corporations Law continues as the register of companies ASIC keeps under the Corporations Act (2001) and is a register to which s 1322(4)(b) of the Corporations Act (2001) may apply.

(4)    The register of companies may be rectified where the events that resulted in registration took place when the Corporations Law was in force and the entry was made in the register kept before the Corporations Act (2001) commenced.

51    The reference in PJ [54(3)] to the register kept by ASIC should be read as a reference to the register kept by ASIC or its predecessor, the ASC: see PJ [30], [47]–[49].

Was registration of PSA an authorised exercise of statutory power?

52    The primary judge addressed the first separate question, whether the registration of PSA was invalid ab initio, at PJ [55]–[62]. Before the primary judge, the appellants submitted that because, on the assumed facts, the Memorandum was not signed, the application was not compliant with ss 117(1) and 117(3)(b) of the Corporations Law (1995). By natural extension, because no one signed it, no one did so in the presence of at least one witness, which was in non-compliance with ss 117(3)(b) and 117(4). The effect of that assumed fact was, it was submitted, that the requirements of Div 1 of Pt 2.2 were not complied with – in particular, ss 117(1), 117(3)(b) and 117(4). On the appellants’ submission, because of this non-compliance, PSA was not “formed” in accordance s 114(1) and could not be registered: PJ [55].

53    The primary judge rejected this submission. The primary judge delineated between the requirements of the Memorandum, as set out in s 117 and which were the focal point for the appellants, and the requirements of the application itself, as set out in s 118 and about which no complaint was made. Because the Memorandum stated the matters required to be stated under ss 117(1)(a)–(c) and (g), and because PSA was to be a proprietary company, the primary judge found that the application was not required to be accompanied by the Memorandum: per s 118(2)(c)(ii).

54    The primary judge held, at PJ [58] and [62], that the only necessary precondition to registration of PSA was that the ASC was “satisfied” that the application was made in accordance with s 118 of the Corporations Law (1995). The non-compliance with the s 117 requirements of the Memorandum, on the assumed facts and on which the appellants focused, did not inform the ASC’s exercise of discretion provided by s 120(1)(a). Furthermore, as the ASC had evidently formed the relevant state of satisfaction that was the only necessary precondition to registration and registered PSA by registering the application, the registration of PSA was valid, in the sense of authorised, and in accordance with s 120 of the Corporations Law (1995). Accordingly, the registration of PSA on 5 June 1998 was an authorised (valid) exercise of statutory power notwithstanding, on the assumed facts, that the Memorandum was not signed.

Were the appellants able to challenge the validity of registration of PSA?

55    The second separate question concerned the Court’s power under s 1322(4)(b) of the Corporations Act to make an order directing ASIC to remove PSA from the register of companies. However, before the primary judge, the respondents contended that it was not open to the appellants to challenge the validity of the registration by virtue of s 1389(1) of the Corporations Act, which provides that a certificate of registration issued by ASIC in respect of PSA is conclusive evidence of PSA’s registration.

56    Before the primary judge, it was an agreed fact that the companies register kept by ASIC recorded that on 8 June 1998 a certificate of registration for PSA was issued.

57    The respondents’ submission before the primary judge raised the proper construction of s 1389(1) of the Corporations Act, which provides:

1389    Evidentiary certificates

(1)    A certificate by ASIC (whether issued before or after the commencement) stating that a company was registered under the old Corporations Law of a State or Territory in this jurisdiction is conclusive evidence that:

(a)    all requirements of that Law for the company’s registration were complied with; and

(b)    the company was duly registered as a company under that Law on the date (if any) specified in the certificate.

58    The primary judge stated, at PJ [68], that s 1389(1) applies to a certificate issued by the ASC. His Honour concluded, thus, s 1389(1) applies to the certificate of registration ASC issued for PSA on 8 June 1998.

59    Section 122 of the Corporations Law (1995), which applied at the time PSA was registered, provided:

Section 122.    Evidentiary certificates

A certificate under the Commission's common seal stating that a specified body corporate has been registered under Division 1 of Part 2.2 of the Corporations Law of this or another jurisdiction is conclusive evidence that:

(a)    all requirements of that Law in respect of:

(i)    registration of the body corporate as a company under that Division; and

(ii)    matters preceding or incidental to the registration;

have been complied with; and

(b)    the body corporate is duly registered as a company under that Division; and

(c)    the day of commencement of the registration is the day (if any) specified as such in the certificate.

60    The primary judge noted, at PJ [72]–[73], that the 1998 amendments to the Corporations Law repealed s 122 and introduced s 1274(7A), which was in similar terms to s 1389(1) of the Corporations Act.

61    However, s 122 and its replacements (s 1274(7A) and, in turn, s 1389) were not identical. The appellants’ submissions before the primary judge placed significance on the inclusion of the words “matters preceding or incidental to registration” in s 122 of the Corporations Law (1995), and the absence of those words in its ultimate replacement provision, s 1389(1) of the Corporations Act. The appellants submitted that they were not bound by the certificate of registration for PSA because the requirement under s 117(3)(b) of the Corporations Law (1995), being that the subscribers sign the Memorandum, was a matter “preceding or incidental to the registration” and did not fall within the meaning of “requirements of that Law for the company’s registration” in s 1389(1)(a) of the Corporations Act (emphasis added).

62    The primary judge noted, at PJ [74], that the conclusive evidence provisions in the legislation of England, Australia and other common law countries, both with and without the reference to “matters preceding or incidental to registration”, had been the subject of substantial judicial consideration. Further, with one exception, the conclusive nature of a certificate of registration (or incorporation) in respect of requirements of registration and matters preceding or incidental to registration was “well-established and without doubt”.

63    The authorities considered by the primary judge included In re Barned’s Banking Co (No 3) (1867) LR 2 Ch App 674 (Peel’s case), where Cairns LJ said at 681–2:

… according to the Act of Parliament, the certificate of incorporation given by the Registrar is not merely a prima facie answer, but a conclusive answer, to any such objection, … when once the certificate of incorporation is given, nothing is to be inquired into as to the regularity of the prior proceedings.

64    The primary judge, at PJ [75], observed and repeated the normative basis underpinning Lord Cairns’s finding (at 682):

… and when once the memorandum is registered, and the company is held out to the world as a company undertaking business, willing to receive shareholders, and ready to contract engagements, then it would be of most disastrous consequence if, after all that had been done, any person was allowed to go back and enter into an examination (it might be years after the company had commenced trade) of the circumstances attending the original registration, and the regularity of the execution of the document originally received by the Registrar.

65    The primary judge found, at PJ [76]–[79], that conclusions consistent with Lord Cairns’s were reached in subsequent United Kingdom decisions. The primary judge noted that Lord Chelmsford in Oakes v Turquand (1867) LR 2 HL 325 (at 354) rejected the argument that the memorandum of association had not been subscribed in the manner required under the Companies Act 1862 (UK) and said “I think the certificate prevents all recurrence to prior matters essential to registration … and that it is conclusive in this case, that all previous requisites had been complied with.” Lord Cranworth (at 369) also rejected the argument on the basis of the conclusiveness of the certificate and Lord Colonsay (at 378) agreed with the other Law Lords. Further, in Ariff v Ariff (1912) 28 TLR 505, Lord Macnaghten endorsed Lord Cairns’ reasons in Peel’s case and the observations of Lord Chelmsford in Oakes v Turquand. Finally, the House of Lords confirmed the conclusive nature of the certificate under the provisions of the Companies (Consolidation) Act 1908 (UK) in Cotman v Brougham [1918] AC 514.

66    The one exception referred to earlier was In re National Debenture and Assets Corporation [1891] 2 CH 505, where the English Court of Appeal expressed the opinion that the certificate was not conclusive evidence as to the number of persons who had signed the memorandum. In Ariff v Ariff, at 506, Lord Macnaghten disapproved National Debenture and observed that the “precedent and incidental” amendment which had followed National Debenture was unnecessary. Further, as the primary judge noted, at PJ [77], the appeal in National Debenture was upheld on a different ground in any case.

67    Turning to Australia, the primary judge noted, at PJ [80], that in HA Stephenson and Son Ltd (in liq) v Gillanders, Arbuthnot and Co (1931) 45 CLR 476, Evatt J surveyed Peel’s case, Oakes v Turquand, National Debenture, Ariff v Ariff and Cotman v Brougham. In HA Stephenson, at 498–500, Evatt J found that the certificate of registration was conclusive evidence of compliance with the requirement under the Companies Act 1893 (WA) that the memorandum contain a statement of the company’s objects. According to the primary judge, Evatt J reached that conclusion notwithstanding the absence in the relevant legislation of the additional words that were contained in s 122 of the Corporations Law (1995), and appears to have accepted that “all previous requisites”, the expression used by Lord Cairns, extended to “matters precedent and incidental” to registration, including the form of the memorandum.

68    The primary judge observed, at PJ [81], that there was nothing to suggest that the amendments made in 1998 and maintained from 2001 “were intended to change the long and well-established understanding of the intended operation of conclusive evidence provisions in companies legislation in England and Australia”.

69    On the issue of the proper construction of s 1389(1) of the Corporations Act, the primary judge found, at PJ [89], that the expression “all requirements of that Law for the company’s registration” must extend to any matters preceding or incidental to the registration that were requirements of the Corporations Law (1995) for registration of a company. His Honour further found, at PJ [91], that if a signed memorandum was a requirement of the Corporations Law (1995) in respect of a matter preceding or incidental to PSA’s registration within the meaning of s 122 of the Corporations Law (1995), it was also a requirement for PSA’s registration within the meaning of s 1389(1) of the Corporations Act (2001). Therefore, to the extent that a signed memorandum was a requirement for PSA’s registration under the Corporations Law (1995), the appellants were precluded from challenging that registration on the ground that the Memorandum was not signed by the subscribers to the Memorandum.

Was there power under s 1322(4)(b) to remove a company from the register and deprive it of corporate existence?

70    In relation to the second separate question, whether the Court had the power under s 1322(4)(b) of the Corporations Act to make an order directing ASIC to remove PSA from the register of companies, the primary judge, at [96], accepted the correctness of Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262 at [47]–[48] and [60]. In that decision, Spigelman CJ (Tobias and Campbell JJA agreeing at [102] and [103]) favoured a broader rather than narrower interpretation of the word “rectify” in s 1322(4)(b) (at [54]) and found that the power to rectify the register of companies under s 1322(4)(b) extends to removing a company from the register where the process by which the company was placed on the register was invalid.

71    In following Miltonbrook, at PJ [96], the primary judge accepted that there may be circumstances in which it would be appropriate to exercise the power under s 1322(4)(b) of the Corporations Act to remove a company from the register of companies. Furthermore, that the exercise of that power extended to circumstances in which the process by which the company was placed on the register was invalid.

72    The primary judge found, at PJ [97]–[98], that by operation of s 1389(1) of the Corporations Act, it was not open to the appellants to challenge the validity of the process by which any requirements under the Corporations Law (1995) for registration of PSA were satisfied. Furthermore, that even if he were to assume that s 1389 was not applicable and it was open to the appellants to go behind the certificate of registration, the registration of PSA was valid in any event, for the reasons given earlier. That is, his Honour found the Court has a power under s 1322(4)(b) to remove a company from the register of companies, but that the power was not enlivened in this case.

Power to deprive a company of corporate existence

73    In relation to the third separate question, whether the Court has the power to remove PSA from the register with retrospective effect, the primary judge considered the Court’s power to deprive a company of corporate existence in the circumstances of this case, commencing at PJ [99]. His Honour stated that he was to assume, notwithstanding the conclusive evidence provision and the validity of the process by which PSA was registered as a company under Div 1 of Pt 2.2 of the Corporations Law (1995), that s 1322(4)(b) confers power on the Court to remove PSA from the register of companies in the circumstances of this case, being if the relevant company did not have a memorandum signed by the subscribers at the time the application for its registration was lodged and the company was registered.

74    The primary judge, at PJ [102], agreed with the following reasoning, analysis and observations in Australian Securities Commission v SIB Resources NL (1991) 30 FCR 221 at 233, where Ryan J stated:

In my opinion having regard to its context and legislative history, s 1322(4) does not evince an intention that the court should have a power, on the application of the Commission, retrospectively to deprive a company of the corporate existence conferred by s 123 of the Law, in addition to and distinct from the express power to make a winding-up order having prospective operation conferred by ss 460 and 461. I consider that a grant of such a power would have been at the forefront of a substantive legislative provision and not merely conferred as part of a general facility to relieve from the consequences of procedural and other irregularities.

75    The primary judge concluded, at PJ [106], by saying that:

Taking into account the manifest preference of the Corporations Law and Corporations Act (2001) to favour regularity of registration and the specific provisions that may be utilised to unwind an irregular registration, on the proper construction of s 1322(4)(b), in circumstances in which the irregularity is non-compliance with the requirements of Div 1 of Pt 2.2 of the Corporations Law (1995) because the memorandum was not signed by the subscribers, the Court is not empowered to remove PSA from the register of companies so as to retrospectively deprive that company of its corporate existence from the moment of its registration. Moreover, if there were any continuing defect in the constitution of PSA arising from the manner in which it was registered, it would be more appropriate to afford the company an opportunity to correct that defect so as to make it conform to the current requirements of the Corporations Act (2001) in respect of a duly registered propriety company limited by shares under that Act, rather than deregister the company.

76    For those reasons, the primary judge answered each of the separate questions in the negative.

Application to receive further evidence

77    Before addressing the grounds of appeal, it is necessary to deal with the appellants’ application (being the interlocutory application of 31 July 2025, amended on 11 August 2025) to adduce further evidence. For the reasons that follow, the Court should not receive the further evidence that was the subject of the application.

Background

78    The evidence in question assumed the form of two affidavits. The first was an affidavit that the second appellant swore on 11 April 2024 in the proceeding from the judgment in which the present appeal is brought. The second was an affidavit that the second appellant swore on 31 July 2025 in support of the application.

79    We shall address, first, the application insofar as it concerned the affidavit sworn on 11 April 2024. At that time, judgment on the trial of the separate questions was reserved. No leave to file additional affidavit evidence had been granted but the appellants appeared, nonetheless, to have provided it on account of what they suggested to the primary judge were “developments” that might assist in the determination of the matter.

80    The primary judge addressed that affidavit (and the appellants’ attempt to rely upon it in the matter before him) in the primary judgment, at PJ [10]–[12]. In short, he declined to take account of it on the basis that no leave to adduce evidence in that form had been sought or granted and, in any event, its receipt into evidence was contrary to what he had already determined would be the process by which the trial of the separate questions would proceed (that is to say, the affidavit trespassed beyond the agreed and assumed facts upon which he had determined that the questions would be answered).

81    The second affidavit that the appellants asked the Court to receive into evidence in the appeal was the affidavit that the second appellant swore in support of the application of 31 July 2025. To that affidavit (sworn the same day) are attached two exhibits: the first is described as “a copy of Form 484 Document No. 029592103”; and the second comprises of two affidavits sworn by the second respondent, Ms Sandra May Banning, in the primary proceeding (in which Ms Banning was the second defendant).

82    All of the further evidence that the appellants sought to lead in the appeal was said to be relevant to establishing, factually, that PSA had no subscribers at the time that it was incorporated and, therefore, that it was not incorporated on the initiative of those who were then identified for that purpose.

Principles to be applied

83    Section 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers upon the Court a discretion to receive, on appeal, evidence that was not received at the trial of the matter from the judgment in which the appeal is brought. That discretion is fettered only by the requirement that, like any other, it be exercised judicially: Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme [2007] FCAFC 136; (2007) 245 ALR 389 at 403 [71] (Branson, Lindgren and Besanko JJ); Frigger v Trenfield (No 3) [2023] FCAFC 49 at [152] (Allsop CJ, Anderson and Feutrill JJ).

84    The Court’s power under s 27 is a power to receive “further” evidence. Its exercise is not restricted to the receipt of “fresh” evidence (such as material of which a party was not aware at the time of the trial and that could not have been obtained with reasonable diligence): Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74] (North, Barker and Katzmann JJ). Nonetheless, the fact that “further evidence” is not “fresh evidence” is a consideration that is material to the exercise of the discretion: August v Federal Commissioner of Taxation [2013] FCAFC 85; (2013) 94 ATR 376 at 398–9 [116] (Siopis, Besanko and McKerracher JJ).

85    Here, there could be no suggestion that the further evidence in respect of which the appellants move is properly to be described as “fresh” evidence. On the contrary, it was, for the most part, evidence that was sought to be adduced in the proceeding below; but that the primary judge, after determining that the matter would proceed to the consideration of the separate questions, determined not to receive (on the footing that those questions were appropriately to be answered solely on the basis of the factual matters that were agreed or assumed).

86    There is another consideration that relates to the materiality of the further evidence. The usual requirement is that the outcome very probably would have been different if the evidence had been adduced at trial: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ, Mortimer J agreeing at [34]).

87    Embedded within that consideration is an assumption that, had it been available, the evidence would properly have been received (in the sense that it was relevant and admissible). It is axiomatic that leave to adduce further evidence on appeal will only ever be granted in respect of evidence that was properly admissible at the trial: see, for example, August at 394 [88] (Siopis, Besanko and McKerracher JJ, albeit in obiter). It is difficult to conceive of circumstances in which material that is (or would have been) inadmissible – whether for want of relevance or otherwise – might nonetheless be adduced with leave on appeal.

Determination

88    The appellants’ application proceeds upon their concern about factual findings that, they maintain, the primary judge wrongly failed to make. It is unnecessary here to rehearse what they submitted his Honour ought to have but failed to find. Instead, there is benefit to be had in recounting the trajectory of the matter that was before him.

89    As already mentioned, by their amended originating application, the appellants moved the Court for declaratory relief concerning the incorporation (and subsequent registration) of “Liberty Oil (Australia) Pty Ltd” (as PSA was once known), and for mandatory injunctive relief to require that ASIC rectify its register of Organisation and Business Names so as to remove PSA’s name from it.

90    The progression of the matter to trial was the subject of what appears to have been orthodox case management. As mentioned earlier, the matter was listed for final hearing over two days in early March 2023. For reasons neither apparent nor material, that was insufficient to complete the trial. At the end of the second day of the two-day hearing, the matter was scheduled for hearing for a further two days in June 2023, which was later extended to a third day. In the days and weeks that followed that adjournment, there were initiated a series of interlocutory scuffles, the particulars of which need not be rehearsed and are, in any event, laid out in Frigger (No 3) at [9]–[12].

91    It was that interlocutory landscape that prompted the primary judge to change course somewhat. His Honour was concerned that, upon the resumption of the trial, the parties’ and the Court’s resources would very quickly be consumed by the array of interlocutory battles of which notice had been given; and so determined, instead, to pose for separate consideration the three discrete questions that were answered in the primary judgment.

92    His Honour’s reasons for preferring to separate the trial in that manner are outlined in detail in Frigger (No 3) at [15]–[18]. His Honour took the view that the separate questions that he proceeded to identify could be decided upon facts that, for that purpose, were either agreed or could be assumed in the appellants’ favour. Proceeding in that way, he reasoned, would potentially avoid the need to address the litany of interlocutory scuffles that emerged in the weeks following the first two days of the trial, almost all of which touched upon evidential concerns. As his Honour put it in Frigger (No 3) at [17]:

The separate questions can be determined on the agreed facts and on the assumption that the plaintiffs prove or demonstrate certain of the other facts and matters that are in issue in the proceedings. Therefore, determination of the separate questions on the agreed and assumed facts and matters is in the nature of resolving a demurrer plea.

93    When that context is properly understood, the appellants’ concerns about the factual findings to which the primary judge was drawn stand exposed. His Honour did not make any factual findings; and nor did he need to. Rather, he proceeded to pose the separate questions that he identified and to answer them solely on the basis of matters that were either agreed or assumed in the appellants’ favour. His attraction to that course is easily understood: depending upon the answers to the questions, proceeding in that way would potentially avoid the difficulties that inhered in his resolving what had become a bitterly contested thicket of factual disagreement.

94    By their appeal, the appellants challenged the wisdom of that course and invited the Court not only to undo the primary judge’s decision to separate the trial as he did; but also to make the factual findings upon which their claims to declaratory and injunctive relief rested. The further evidence to which their application was directed was, they said, relevant to those findings.

95    As it happens, and for the reasons set out below, we are not persuaded that there is any occasion on appeal to interfere with the primary judge’s decision to try the questions that were determined separately. But even if there were, it would not be an appropriate exercise of the Court’s appellate jurisdiction for it to make factual findings that have not been properly tested at a trial level. The matters in respect of which the appellants sought leave to adduce further evidence on appeal are factual matters that were in contest as between the parties. If they need to be resolved at all (and, for the reasons that follow, we do not consider that they do), they should be resolved in the usual way: by a trial judge, before whom evidence is led and tested in the usual ways.

96    In any event, the further evidence that the appellants hope to adduce was unnecessary. The appellants are disappointed by the primary judge’s failure to make findings, adverse to the respondents, about the circumstances that attended the initial incorporation and registration of the first respondent. That disappointment might or might not be understood; but the point of greater significance presently is that the resolution of the separate questions that the primary judge identified and answered did not turn upon the making of those findings. There was no need for him to consider that which the appellants now seek to adduce. For present purposes, then, the further evidence in respect of which the appellants sought leave is irrelevant.

97    That being the case, the interests of justice cannot sensibly be thought to warrant the grant of leave for which the appellants move. The application should and will be dismissed.

98    Before addressing the grounds of appeal, it is necessary to address one further matter raised by the appellants. The appellants stated, in their written submissions and at the hearing of the appeal, that they did not want to proceed with separate questions at all, or on the basis of agreed or assumed facts. The primary judge was aware that the appellants were opposed to the determination of separate questions in the proceedings: Frigger (No 3) at [15]. However, his Honour proceeded to pose the separate questions he identified and to answer them solely on the basis of matters that were either agreed or assumed in the appellants’ favour. The decision to proceed with separate questions was a matter on which the primary judge had a discretion. Beyond the assertion that the appellants did not want to proceed with separate questions, the appellants did not raise any argument as to why the discretion was not properly exercised. In any event, the appellants’ amended notice of appeal did not seek to raise or add a ground of appeal seeking to challenge the primary judge’s decision to proceed with separate questions. That is sufficient to dispose of that argument.

Grounds of appeal

99    Grounds 1 to 5 of the appeal are addressed in turn below.

Ground 1: the primary judge erred in law by holding that the registration of PSA was not invalid ab initio and by assuming that there were subscribers and shareholders in PSA at the time of registration and “from time to time”

100    By the amended notice of appeal, the appellants contended that the primary judge erred in law by holding that the registration of PSA was not invalid ab initio notwithstanding the absence of subscribers intending to form the company. The appellants relied on various “uncontested” evidentiary matters, including that one of the original subscribers, Mr Boyle, had stated on oath that he and his wife did not sign the Memorandum and did not intend to incorporate PSA. The appellants also pointed out various matters in the Form 201 which they said were “materially false or misleading”.

101    The appellants further contended that the primary judge erred “in mixed fact and law” by assuming that there were subscribers and shareholders in PSA at the time of registration and “from time to time”. The appellants submitted that the primary judge erred in finding that PSA was validly incorporated and comprised members “from time to time” because there were no agreed or assumed facts supporting that position and, furthermore, there was “uncontroverted” evidence to the contrary.

102    We will deal with the two contentions raised as part of Ground 1 separately below.

The registration of PSA

103    The appellants sought an order under s 1322(4)(b) of the Corporations Act that ASIC rectify the register kept by ASIC to remove PSA from the register.

104    Section 1322 of the Corporations Act relevantly provides:

1322    Irregularities

…

(4)    Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

…

(b)    an order directing the rectification of any register kept by ASIC under this Act;

…

and may make such consequential or ancillary orders as the Court thinks fit.

…

(6)    The Court must not make an order under this section unless it is satisfied:

…

(c)    in every case—that no substantial injustice has been or is likely to be caused to any person.

105    The primary judge found, at PJ [47]–[53], that the register of companies that ASIC kept under the Corporations Law is a register to which s 1322(4)(b) of the Corporations Act applies and that the power under s 1322(4)(b) of the Corporations Act to make an order directing “the rectification of any register kept by ASIC” applied to an entry in a register kept at a time when the Corporations Law was in force. Those findings were not challenged.

106    The primary judge diligently traced the changes and transitional provisions in the legislation since PSA was formed and registered. Relevantly, his Honour identified provisions in the Corporations Law (1998) and the Corporations Act and found that the collective effect of those provisions was that a company that was registered or taken to be registered under the Corporations Law (1995) continued to be registered and may be dealt with as if it were, and is taken to have been, a registration of a company under Pt 2A.2 of the Corporations Act on and from 15 July 2001: PJ [43]. Those findings were not challenged.

107    As already mentioned, the appellants contended that the primary judge erred in law “by holding that the registration of [PSA] was not invalid ab initio notwithstanding the absence of subscribers intending to form the company”. The appellants’ submissions focused on the requirements for an application for registration of a company to be accompanied by a memorandum of association and the requirements of a memorandum of association under s 117 of the Corporations Law (1995), in particular, the requirement under s 117(3)(b), that each subscriber to the memorandum sign it, and in the presence of a witness. Other than the requirement for the application to be accompanied by a memorandum signed by the subscribers, the appellants did not contend that the requirements of ss 117 and 118 of the Corporations Law (1995) had not been complied with.

108    However, the appellants’ submissions overlooked the opening words of s 118(2)(c)(ii), “unless subsection (3) applies”. Subsection 3 did apply. Accordingly, by operation of s 118(2)(c)(ii) of the Corporations Law (1995), the registration application was not required to be accompanied by a memorandum. Rather, to dispense with the need to include the memorandum, it was sufficient for the application for registration of PSA (the Form 201) to set out that, first, its memorandum of association “states the matters that were required to be stated under subsection 117(1)(a), (b), (c) and (g)”, and, second, that the company was to be registered as a proprietary company: s 118(3) of the Corporations Law (1995). Further, the application (the Form 201) had to be signed by each subscriber: s 118(4).

109    As the primary judge noted, at PJ [57], the Form 201 was an application in the prescribed form which complied with s 118 and was not required to be accompanied by the Memorandum as the Form 201 set out the matters required to be stated in the memorandum under ss 117(1)(a), (b), (c) and (g) and, therefore, s 118(3) applied. The appellants acknowledged this in their written submissions, at [8]. His Honour’s findings were correct as a matter of construction of ss 117 and 118 of the Corporations Law, on the agreed and assumed facts.

110    Section 120(1) of the Corporations Law (1995) provided that if the ASC was satisfied that the application for registration was made in accordance with s 118, it was obliged to register the company. Furthermore, on registering the company under Div 1 of Pt 2.2, the ASC was required to issue a certificate of registration: s 121(1). The effect of the certificate of registration was set out in s 123(1), which provided as follows:

Subject to this Law, on and from the day specified in a certificate under section 121 as the day of commencement of a company's registration under this Division, the subscribers to the company's memorandum, together with such other persons as from time to time become members of the company, are an incorporated company by the name stated in the memorandum.

111    As the primary judge found at PJ [58] and [62], the ASC had evidently formed the relevant state of satisfaction that was the only precondition to registration and registered PSA by registering the application and the registration of PSA was valid and in accordance with s 120 of the Corporations Law (1995). Accordingly, the registration of PSA on 5 June 1998 was an authorised (valid) exercise of statutory power notwithstanding, on the assumed facts, that the Memorandum was not signed.

Members “from time to time”

112    By the amended notice of appeal, the appellants contended that the primary judge erred in fact and in law by making findings that PSA was validly incorporated and lawfully comprised its members “from time to time”. The appellants submitted that the finding that PSA comprised members “from time to time” was not supported by the agreed and assumed facts, and was contrary to “uncontroverted” evidence adduced at the trial.

113    The finding which the appellants seek to impugn is at PJ [59]–[60], which states:

59    The ASIC register records that on 5 June 1998 PSA was registered. The ASIC register records that on 8 June 1998 a certificate of registration of PSA was issued in accordance with s 121 of the Corporations Law (1995). The effect of these facts is that, in accordance with s 123, on and from 5 June 1998 the subscribers to PSA’s memorandum together with such other persons as from time to time become members of the company were an incorporated company.

60    The ASIC register records that after 5 June 1998 there was a change in the share capital of the company, two ordinary shares were issued. Mrs Banning is currently the holder of all issued shares and the sole member of the company. It follows that, even if it could be said that Mr and Mrs Boyle were not ‘the subscribers to the company’s memorandum’ within the meaning of s 123, a company was incorporated on 5 June 1998 and it comprised its members from time to time. Currently, pursuant to s 114 of the Corporations Act (2001), a company that is registered needs to have at least one member. Therefore, whatever may have been the case in June 1998, on the assumed facts, the register cannot now be defective on the ground that PSA does not have at least one member.

[Emphasis in original]

114    With respect, the primary judge made no finding that PSA comprised members “from time to time”. The better construction of PJ [59]–[60] is that the italicised words were the necessary implication of the primary judge’s finding that PSA was validly incorporated.

115    To understand this, first and foremost, it is necessary to bear in mind the text of s 123(1), which is referenced in PJ [56], [59] and [60]. Section 123(1) provided, in effect, that on and from the date specified in the certificate of registration, there was an incorporated company that comprised “the subscribers to the company’s memorandum, together with such other persons as from time to time become members of the company” (emphasis added). Fairly read, the italicised words in PJ [59], which we have set out above, were a reference to the effect of, and an extract from, s 123 of the Corporations Law (1995).

116    Secondly, his Honour did not make any findings in regards to the persons who were “from time to time” members of PSA. The furthest the primary judge went, in this regard, was to infer that PSA has at least one member on the basis that it is currently registered and, pursuant to s 114 of the Corporations Act, a registered company has at least one member: PJ [60]. Thirdly, the factual matters referred to in PJ [60] were part of the agreed facts and were not findings as such. The key finding at PJ [59]–[60] was that the effect of the certificate of registration was that PSA was incorporated on 5 June 1998. That finding was correct as a matter of construction of ss 118, 120, 121 and 123 of the Corporations Law (1995), on the agreed and assumed facts.

117    For the reasons set out above, there was no error in the finding that PSA was validly incorporated.

Ground 2: the primary judge erred in law by incorrectly applying the conclusive evidence rule in s 1389 of the Corporations Act

118    The appellants’ notice of appeal contended that the primary judge erred in law by incorrectly applying the conclusive evidence rule in s 1389 of the Corporations Act. The appellants submitted that the conclusive evidence rule applies to “machinery provisions” and does not validate actions that could not lawfully be taken. The appellants further submitted that the primary judge erred in law in finding that only ASIC or the Crown were not bound by the conclusive evidence rule.

119    It was an agreed fact that a certificate of registration for PSA was issued on 8 June 1998. The primary judge inferred that the certificate contained the information required by s 121 of the Corporations Law (1995): PJ [65].

120    The respondents argued that the appellants were not entitled to go behind the certificate to challenge PSA’s registration, relying on s 1389 of the Corporations Act. There was no dispute that s 1389(1) applied to the certificate of registration that the ASC issued for PSA on 8 June 1998: PJ [68].

121    Section 1389 of the Corporations Act provides:

1389    Evidentiary certificates

(1)    A certificate by ASIC (whether issued before or after the commencement) stating that a company was registered under the old Corporations Law of a State or Territory in this jurisdiction is conclusive evidence that:

(a)    all requirements of that Law for the company’s registration were complied with; and

(b)    the company was duly registered as a company under that Law on the date (if any) specified in the certificate.

122    In order to fully understand the appellants’ argument, it is necessary to have regard to the equivalent provision in the Corporations Law (1995) when PSA was registered.

123    Section 122 of the Corporations Law (1995) provided as follows:

Section 122.    Evidentiary certificates

A certificate under the Commission's common seal stating that a specified body corporate has been registered under Division 1 of Part 2.2 of the Corporations Law of this or another jurisdiction is conclusive evidence that:

(a)    all requirements of that Law in respect of:

(i)    registration of the body corporate as a company under that Division; and

(ii)    matters preceding or incidental to the registration;

have been complied with; and

(b)    the body corporate is duly registered as a company under that Division; and

(c)    the day of commencement of the registration is the day (if any) specified as such in the certificate.

[Emphasis added]

124    The 1998 amendments to the Corporations Law repealed s 122 and introduced s 1274(7A) of the Corporations Law (1998), which was in substantially similar terms to s 1389(1) of the Corporations Act.

125    The appellants’ argument sought to place significance on the phrase “matters preceding or incidental to the registration” in s 122 of the Corporations Law (1995) and the absence of those words in s 1389(1) of the Corporations Act. However, as the primary judge observed, at PJ [74], the conclusive nature of a certificate of registration (or incorporation) in respect of requirements of registration has been confirmed by substantial judicial consideration, both in the context of legislation with and without the emphasised phrase.

126    As mentioned above in paragraphs [63]–[68], at PJ [75]–[80], the primary judge discussed the seminal authorities in England and Australia to the effect that the certificate of incorporation of a company was a conclusive answer to compliance with the requirements of the law prior to registration. His Honour observed, at PJ [81], that there was nothing to suggest that the amendments made in 1998 to the Corporations Law (1998) and maintained in 2001 in the Corporations Act were intended to change the long and well-established understanding of the conclusive evidence provisions in companies legislation in England and Australia.

127    With respect, we agree with the primary judge’s analysis of and conclusions of the relevant authorities and would adopt them as our own. To the authorities relied on by the primary judge we would add the remarks of Logan J (in dissent) in D Marks Partnership (by its General Partner Quintaste Pty Ltd) v Commissioner of Taxation (2016) 245 FCR 247; [2016] FCAFC 86, at [38], that matters “precedent and incidental” to registration are unimpeachable, even if the statutory provision for a conclusive evidence certificate does not expressly say so, which Evatt J appeared to accept in HA Stephenson at 498-500.

128    As the primary judge stated, at PJ [89], as a matter of statutory construction the expression “all requirements of that Law for the company’s registration” must extend to any matters preceding or incidental to the registration that were requirements of, relevantly, the Corporations Law (1995) for registration of a company. That must also extend to matters that precede, are incidental to, or directly form part of, the process of registration. This construction is consistent with the approach taken to similar provisions in a long line of authorities in England and Australia and gives effect to the apparent purpose of s 1389(1) of the Corporations Act, which is that the company from registration is held out to the world to be a legal entity, distinct from its members, with whom third parties may deal.

129    The appellants’ secondary argument was that the conclusive evidence rule does not validate actions which could not lawfully be undertaken. The appellants submitted that the rule could not be used by a person who lacked capacity to apply for registration, to validate their actions. Relevantly, so the argument went, the act that was required to be taken (the signing of the Memorandum by each subscriber) could not be validated by the same person applying for registration, because they lacked the requisite capacity.

130    The appellants relied on Brinsden J’s decision in Hugo Della Franca & Anor v The WA Teachers Financial Society Ltd (unreported, Supreme Court of Western Australia Full Court, 23 December 1998). Franca involved the registration of a credit union as a credit society, and subsequently a financial society, under the Credit Unions Act 1979 (WA). In other words, a legal entity (a credit union) that sought to transform and register as a different kind of entity (a credit society). Brinsden J’s decision in fact affirms the authorities referred to in the primary judgment, to the effect that the certificate of registration of a company is conclusive evidence that the requirements of the Credit Unions Act for, and in respect of, registration have been complied with. Brinsden J referred, at 20, to a passage from Griffith CJ’s decision in Carroll v Shillinglaw (1905-6) 3 CLR 1099 at 1108, which the appellants relied on, to the effect that “the acknowledgement of registration is only conclusive that the things which could lawfully be done have been done, and that it cannot have the effect of declaring that a thing which could not be lawfully done has been lawfully done”.

131    Carroll involved an amendment to the rules of an organisation registered as a friendly society under the Friendly Societies Act 1890 (Vic). That act contained a provision that allowed the registrar to issue an acknowledgment if satisfied that an amendment to a rule was not contrary to the act, which would be conclusive evidence that the same was duly registered. However, the friendly society sought to amend its rules in a way that was not authorised by the Friendly Societies Act. That is vastly different from the provisions under consideration here which concern mechanical steps such as those associated with the formalities of registration. Accordingly, the passage cited from Carroll does not assist the appellants.

132    Finally, the appellants’ submission that the primary judge erred in finding that only ASIC or the Crown are not bound by the conclusive evidence rule does not reflect the entirety of the primary judge’s reasons, at PJ [97]. As his Honour observed, the conclusivity rule is subject to exceptions and qualifications, however, none of those exceptions or qualifications were applicable to the separate questions or the proceeding brought by the appellants. The appellants did not establish that there was any error in his Honour’s findings or conclusion in that regard.

133    For those reasons, Ground 2 was without any merit.

Ground 3: the primary judge erred in fact and law in finding that the appellants were precluded from challenging PSA’s registration

134    The appellants’ notice of appeal contended that the primary judge erred in fact and law in finding, at PJ [97], that the appellants were precluded from challenging PSA’s registration. The appellants submitted that the primary judge erred by treating the appellants’ standing as an assumed fact and should have found, as was the fact, that the appellants had a sufficient legal interest and were “interested persons”. The appellants’ submissions suggested that Ground 3 was seeking to challenge a finding that the appellants lacked standing.

135    Ground 3 is misconceived. Having found that the certificate of registration was conclusive evidence that all requirements for its registration had been complied with, the primary judge found that, to the extent that a signed memorandum of association was a requirement for PSA’s registration under the Corporations Law, the appellants were precluded from challenging that registration on the ground that the Memorandum was not signed by the subscribers to the Memorandum: PJ [91].

136    The primary judge’s finding, at PJ [91], flowed from his Honour’s finding that the certificate of registration was conclusive evidence of PSA’s registration, which finding was unimpeachable for the reasons already mentioned. That conclusion was not reached because of any finding in relation to the appellants’ standing or lack thereof. Indeed, the primary judge expressly assumed the appellants did have standing as interested persons: PJ [17] (first assumed fact).

137    That is sufficient to dispose of Ground 3.

Ground 4: the primary judge erred in law by concluding that the agreed and assumed facts do not disclose circumstances in which it would be appropriate to exercise the power in s 1322(4)(b) of the Corporations Act to deprive PSA of its corporate existence from 5 June 1998

138    The appellants’ notice of appeal contended that the primary judge erred in law by concluding that the agreed and assumed facts do not disclose circumstances in which it would be appropriate to exercise the power in s 1322(4)(b) of the Corporations Act to deprive PSA of its corporate existence from 5 June 1998.

139    The appellants challenged the primary judge’s finding at PJ [108], where his Honour stated:

While I accept that there may be circumstances in which the power in s 1322(4)(b) may be used to remove a company from the register of companies, the agreed and assumed facts do not disclose circumstances in which it would be appropriate to exercise that power in this case. Even if there were such circumstances, the power in s 1322(4)(b) does not extend to depriving PSA of its corporate existence from 5 June 1998 on the ground that the company was not properly formed because the memorandum was not signed by the subscribers.

140    The appellants submitted that the finding at PJ [108] was to the effect that the removal of PSA from the register would be “disastrous” and contradicted the express assumption that no substantial injustice has been or is likely to be caused, for the purpose of s 1322(6), and amounted to a denial of procedural fairness. They effectively submitted that the primary judge failed to give proper weight to the assumed fact that the appellants were interested persons.

141    Paragraph 108 of the primary judgment is the penultimate paragraph of the primary judge’s reasons and has to be seen in the context of the reasoning that preceded it. As can be seen from his Honour’s reasoning as a whole, his Honour’s conclusion at PJ [108] was linked to his Honour’s finding that PSA was validly registered. Furthermore, his Honour considered that an irregularity in registration of the kind under consideration, being an irregularity in non-compliance with the requirements for registration because the Memorandum was not signed by the subscribers, did not warrant retrospectively depriving PSA of its corporate existence from the moment of its registration. Rather, his Honour considered that the correct approach would be to afford the company an opportunity to correct the defect, rather than to deregister the company, or to wind up the company: PJ [106].

142    The primary judge further found, at PJ [3] and PJ [108], that while there is power to remove a company from the register of companies under s 1322(4)(b), the agreed or assumed facts did not disclose circumstances that called for the exercise of that power so as to deprive PSA of its corporate existence from the date of its registration. There was no error in his Honour’s findings. That being said, it may be that the circumstances of another case might warrant retrospectively depriving a company of its corporate existence from the moment of its registration. For the avoidance of doubt, the primary judge’s observations at PJ [106] do not suggest otherwise, because his Honour was there dealing with the circumstances of the present case.

143    Ground 4 has no merit.

Ground 5: the primary judge made a jurisdictional and procedural error in denying the appellants final relief

144    By the amended notice of appeal, the appellants contended that the primary judge erred in denying the appellants final relief.

145    By this Ground, the appellants did not seek to raise any ground of error that was additional to the preceding grounds. The appellants effectively challenged the primary judge’s ultimate conclusion and submitted that, as his Honour was wrong, this Court should exercise the discretion under s 1322(4)(b) of the Corporations Act and grant final relief in favour of the appellants.

146    For the foregoing reasons, the reasoning of the primary judge is unimpeachable and Ground 5 has no merit.

Admission-based estoppel

147    Finally, and for completeness, the appellants submitted that the respondents were estopped from challenging certain facts on the basis that they had made deemed admissions in other proceedings. However, the “deemed admissions” were said to arise because the respondents had filed a “Notice to Abide” any order of the court in another proceeding. The filing of a “Notice of intention to abide” does not constitute or give rise to deemed admissions. Furthermore, the Court was informed that the other proceeding is subject to a stay order pending the provision of security for costs and there has not been a final determination in that other proceeding. For those reasons, the alleged estoppel argument was misconceived and/or premature.

PROCESS TO CONSIDER MAKING A VEXATIOUS PROCEEDINGS ORDER

148    Section 37AO of the FCA Act empowers the Court to make a vexatious proceedings order against a person, including an order that the person not commence proceedings in the Court: s 37AO(2)(b). The Court may make a vexatious proceedings order on its own initiative: s 37AO(3), but must not make such an order without hearing the person or giving the person an opportunity of being heard: s 37AO(4) of the FCA Act. The power is exercisable in respect of persons who have “…frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”: FCA Act, s 37AO(1)(a). For those purposes, “vexatious proceeding[s]” include proceedings that constitute abuses of process and proceedings that are pursued without reasonable grounds: FCA Act, s 37AM.

149    The Full Court can initiate a process of its own initiative to ascertain whether the Court could be satisfied that a litigant has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals and, if this is established, that a vexatious proceedings order could follow: Storry v Parkyn [2024] FCAFC 67 at [40]–[43] (Lee, Feutrill and Jackman JJ); Ferdinands v Registrar Burns [2024] FCAFC 105 at [140]–[141] (Cheeseman, Goodman and McEvoy JJ).

150    The proceeding before the primary judge consumed considerable time and resources of the Court. The appeal from the primary judgment lacked any merit. In the last decade, the appellants have appeared before at least 20 different judges and have been the subject of more than 80 judgments of this court alone. The vast majority (and possibly all) of those appearances and judgments—which, we note, have been overwhelmingly attended by failure—hark back to the 2003 transaction and the various insolvency processes that it has since spawned. It appears that that same transaction has featured in a raft of litigation in other jurisdictions as well, including in more than a dozen matters that the appellants have commenced in the Supreme Court of Western Australia.

151    In these circumstances, the Full Court proposes to refer for consideration by the presiding judge the question whether to make vexatious proceedings orders under s 37AO of the FCA Act in respect of the appellants.

Conclusion

152    For the foregoing reasons, the application to adduce further evidence and the appeal should be dismissed, with costs.

Associate:

Dated:    17 February 2026