FEDERAL COURT OF AUSTRALIA

Air Austral SA (deregistered) v Australian Securities and Investments Commission, in the matter of Air Austral SA (deregistered) [2018] FCA 216

ORDERS

THE COURT ORDERS THAT:

1.    The plaintiffs have leave to file the amended originated process dated 5 February 2018 electronically by 5 pm on 8 February 2018.

2.    The plaintiffs have leave to file the interlocutory process dated 5 February 2018 electronically by 5 pm on 8 February 2018.

3.    The plaintiffs have leave to file the affidavit of Kassandra Suzann Adams dated 5 February 2018 electronically by 5 pm on 8 February 2018.

4.    Pursuant to s 601CL(10) of the Corporations Act 2001 (Cth), the first plaintiff’s name be restored to the register and directs the Australian Securities and Investments Commission to restore the first plaintiff’s name to the register.

5.    The first plaintiff pay the costs of the proceeding.

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

REASONS FOR JUDGMENT

GLEESON J:

1    On 8 February 2018, I made an order that Air Austral SA’s name be restored to the register pursuant to s 601CL(10) of the Corporations Act 2001 (Cth) (“Act”) and ancillary orders. These are my reasons for making those orders.

2    The plaintiffs sought the orders to enable them to obtain access to funds in a bank account located in Australia.

3    Section 601CL(9) provides:

A person who is aggrieved by a foreign company’s name having been struck off the register may, within 15 years after the striking off, apply to the Court for the foreign company’s name to be restored to the register.

4    Section 601CL(10) provides:

If, on an application under subsection (9), the Court is satisfied that:

(a)    at the time of the striking off, the foreign company was carrying on business in this jurisdiction; or

(b)     it is otherwise just for the foreign company’s name to be restored to the register;

the Court may, by order:

(c)    direct the foreign company’s name to be restored to the register; and

(d)    give such directions, and make such provision, as it thinks just for placing the foreign company and all other persons in the same position, as nearly as practicable, as if the foreign company’s name had never been struck off.

Background

5    On 5 February 1982, the first plaintiff (“foreign company”) was registered as a Société anonyme entity in Réunion Island and allocated identification number TGI 323 650 945.

6    On 25 March 2009, the foreign company was registered with the Australian Securities and Investments Commission (“ASIC”) as a “foreign company” under Pt 5B.2 Div 2 of the Act. It was allocated Australian Registered Body Number (“ABRN”) 136 104 964.

7    The foreign company operated an airline in Australia, chartering flights between Réunion Island, Sydney and Noumea. It ceased operations in Australia, effective 15 January 2014.

8    By s 601CL(1), within seven days after ceasing to carry on business in this jurisdiction, a registered foreign company must lodge written notice that it has so ceased. In about May 2014, lawyers for the foreign company, Baker McKenzie (then Baker & McKenzie), filed a “Notification of cessation, winding up or dissolution of a foreign company or registered Australian body” dated 9 May 2014 with ASIC. The form was signed by the second plaintiff (“Mr Malé”), in his capacity as a director of the foreign company. Although the notice was not lodged in time, and incorrectly identified the relevant event as “The registered Australian body ceased to carry on business”, rather than “The foreign company ceased to carry on business in Australia”, I am satisfied that the notice was written notice that the foreign company ceased to carry on business in this jurisdiction for the purposes of s 601CL(1).

9    An ASIC “Current & Historical Organisation Extract” shows that the foreign company was “deregistered” on 21 October 2014. The extract includes the words “Reason Deregistered”, with no reason specified. By s 601CL(7), where a foreign company’s name is struck off the register under s 601CL(5), the foreign company ceases to be registered under Pt 5B.2 Div 2 of the Act. It does not appear that the foreign company was deregistered under any other provision of the Act. Accordingly, I infer that the foreign company’s name was struck off the register under s 601CL(5).

10    On 14 February 2017, Mr Malé became aware that a bank account in the name of the foreign company and held with the Australia and New Zealand Banking Group Limited remained open. The bank account, which is numbered 8355-64314, had a credit balance of $1,239,973.42 as at 6 October 2017.

11    On 20 February 2017, Mr Malé appointed Mr Remi de Cambiaire as Air Austral’s agent, to “proceed to any transfer and close the bank account”.

12    On 31 May 2017, the bank sent an email to Mr de Cambiaire saying:

As discussed the company is de-registered in Australia and we don’t have any valid instructions to act upon. Unfortunately we are unable to provide any information for the customer account.

13    There is evidence, on information and belief, that the bank will not transfer funds from an account belonging to a deregistered company.

14    The originating process and supporting affidavits of Mr Malé and Mr de Cambiaire were provided to ASIC. By letter dated 22 December 2017, ASIC wrote to Baker McKenzie under the heading “Section 601CL(9) Corporations Act 2001 (the Act) – Application to Reinstate Deregistered Foreign Company”). ASIC stated that it would not oppose the application “for reinstatement” if certain conditions were satisfied, including that the originating process be amended to include ASIC as a defendant. By the amended originating process dated 5 February 2018, ASIC has been included as a defendant.

Restoration of Air Austral to the register

Person aggrieved

15    A director of a deregistered company may be a person aggrieved by the deregistration for the purposes of an application for reinstatement if the director has a real and direct interest in the deregistration and is dissatisfied with it: Arnold World Trading Pty Ltd v ACN 133 427 335 Pty Ltd [2010] NSWSC 1369; (2010) 80 ACSR 670 at [43] per Barrett J. A deregistered company has sufficient existence for the purpose of making an application for reinstatement as a “person aggrieved” notwithstanding that under the Act it ceased to exist upon deregistration: Re Piccoli Tesori Pty Ltd (Deregistered); Ex parte Bertuol [2006] FCA 462; (2006) 151 FCR 109 at [19].

16    By parity of reasoning, both a director of a foreign company that has been struck off the register and the foreign company itself may be a “person aggrieved” in appropriate circumstances.

17    In this case, the foreign company is aggrieved by the fact that its name has been struck off the register because this prevents it from taking steps (that it wishes to take) to recover its property, being the proceeds of the bank account. In turn, Mr Malé, as a director of the foreign company unable to recover the bank account proceeds while deregistered, also has a real and direct interest in the company’s deregistration. As such, both plaintiffs had standing under s 601CL(9) to bring this application.

Whether it is just for the company’s name to be restored to the register

18    The language of s 601CL(10) is relevantly similar to s 601AH(2), which has been described as conferring a “very wide” discretion: JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433; (2008) 167 FCR 212 at [4] (“JP Morgan”). As discussed in JP Morgan at [4], for a court to be satisfied that it is just to reinstate the registration of a deregistered company under s 601AH(2), relevant factors include:

(1)    the circumstances surrounding the company’s deregistration;

(2)    the use that might be made of any reinstatement; and

(3)    whether a reinstatement would be likely to prejudice any person.

19    Again by parity of reasoning, similar considerations apply in relation to s 601CL(10).

20    In this case, the company was deregistered after it ceased operating a business in Australia and was therefore required to notify ASIC of its cessation of business.

21    The plaintiffs have now become aware that the company has a significant asset in Australia in the form of a bank account with a substantial credit balance, and it seeks access to the proceeds of the account. The company apparently cannot gain access to those proceeds unless it is restored to the register.

22    Mr Malé’s affidavit states that there are no outstanding judgment debts made against or liabilities outstanding by the company and, should any judgment be made against the company or any liabilities incurred by the company, they will be paid as and when they arise.

23    There was no reason to doubt that the funds held in the bank account are more than enough to cover:

(1)    the costs of the proceeding;

(2)    ASIC’s costs of restoring the company to the register; and

(3)    any other costs and expenses associated with restoring the company to the register.

24    Finally, ASIC indicated that it has no opposition to the “reinstatement” provided, relevantly, that the order sought is “in terms of section 601CL(9) of the Act, requiring ASIC to reinstate the registration of the foreign company”. The order sought by the plaintiffs was in these terms.

25    In the circumstances set out in above, I was satisfied that an order of the kind sought was necessary to enable the foreign company to recover an asset to which it is entitled and, in the absence of any consideration to the contrary, it was just for the foreign company’s name to be restored to the register. In particular, there was no reason to suspect that restoring the company to the register would be likely to cause prejudice to any person.

Conclusion

26    For these reasons, I made an order in terms of s 601CL(10)(c). For the avoidance of doubt, I directed ASIC to restore the company’s name to the register, pursuant to s 601CL(10)(d).

Associate:

Dated:    2 March 2018