Federal Court of Australia

Price, in the matter of Advanced Polymer Recycling Pty Ltd v Australian Securities and Investments Commission [2022] FCA 20

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    This is an application for reinstatement of a company, Advanced Polymer Recycling Pty Ltd (APR), pursuant to s 601AH(2) of the Corporations Act 2001 (Cth). In addition, an order is sought pursuant to s 601AH(3) that the period between the date of deregistration (25 May 2008) and the date of reinstatement not be counted for the purposes of the applicable limitation of actions legislation.

2    The plaintiff is Mr Garry Price, who is a former director and shareholder of APR. The defendant is the Australian Securities and Investments Commission (ASIC). By letter dated 19 August 2020, ASIC indicated that it did not oppose the application for reinstatement provided certain conditions (set out below) were satisfied. ASIC also indicated that it did not propose to appear in relation to the application.

3    Mr Price seeks the reinstatement of APR to enable APR to pursue a claim against the Commonwealth for negligence and for breach of a research and development agreement entered into by APR and AusIndustry in January 2004 (or possibly March 2003) (the R&D Agreement).

4    For the reasons that follow, I am not satisfied that it would be appropriate to make either order sought by Mr Price.

The application

5    The present proceeding was commenced by originating process filed on 10 August 2020. It has subsequently been amended on two occasions. The current document is the amended originating process filed on 3 August 2021. The orders sought are as follows:

1.    An Order that ASIC reinstate the registration of the company, Advanced Polymer Recycling Pty Ltd and;

2.    An Order that the period between the date of deregistration of Advanced Polymer Recycling Pty Ltd (25 May 2008) and the date of reinstatement of the company shall not be counted for the purposes of the Limitation of Actions Act 1958.

3.    Such other order or orders the Court considers appropriate.

Although paragraph 2 of the proposed orders refers to the “Limitation of Actions Act 1958”, the submissions on behalf of Mr Price proceeded on the basis that the relevant limitation statute is the Limitation Act 1985 (ACT).

6    On 16 July 2021, a Registrar made an order that the application be referred for hearing by a judge on a date to be fixed.

7    Mr Price relies on the following affidavits in support of the application:

(a)    affidavit of Mr Price dated 29 July 2020;

(b)    affidavit of Mr Price dated 19 August 2020;

(c)    affidavit of Mr Price dated 26 August 2020; and

(d)    affidavit of Mr Price dated 16 December 2020.

8    Mr Price also relies on an unsworn affidavit of Mr Russell Mitchell, the solicitor acting for Mr Price, dated December 2021. This affidavit deals with service of the Court documents on the Commonwealth (in circumstances where the Commonwealth would be the defendant or respondent to the proposed claim). The affidavit is in unsworn form, consistent with the Court’s practice guidelines relating to the COVID-19 pandemic. Given the nature of the material dealt with in the affidavit, I am prepared to proceed on the basis of this affidavit, even though it is unsworn.

9    Mr Price has filed a notice of consent to act as liquidator of APR, signed by Ms Renée Di Carlo, a registered liquidator, dated 29 June 2021.

10    In the letter from ASIC dated 19 August 2020 referred to above, ASIC states that it will not oppose the application for reinstatement if the following conditions are satisfied:

(a)    the order sought for reinstatement is in terms of s 601AH(2), requiring ASIC to reinstate the registration of the company;

(b)    ASIC be formally notified of the bankruptcy of Gregory Shah;

(c)    the company attends to lodgement of all outstanding documents and payment of all outstanding fees and penalties upon reinstatement, that being $4,162.50; and

(d)    the Court order is lodged with ASIC, so that the company may be reinstated.

11    Mr Price states in paragraph 4 of his third affidavit that he undertakes to comply with these conditions if the company is reinstated.

Applicable principles

12    The key legislative provision for present purposes is s 601AH of the Corporations Act, which relevantly provides:

601AH Reinstatement

…

Reinstatement by Court

(2)    The Court may make an order that ASIC reinstate the registration of a company if:

(a)    an application for reinstatement is made to the Court by:

(i)    a person aggrieved by the deregistration; or

(ii)    a former liquidator of the company; and

(b)    the Court is satisfied that it is just that the company’s registration be reinstated.

(3)    If:

(a)    ASIC reinstates the registration of a company under subsection (1) or (1A); or

(b)    the Court makes an order under subsection (2);

the Court may:

(c)    validate anything done during the period:

(i)    beginning when the company was deregistered; and

(ii)    ending when the company’s registration was reinstated; and

(d)    make any other order it considers appropriate.

Note:    For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2).

…

Effect of reinstatement

(5)    If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

13    In Australian Competition and Consumer Commission v Australian Securities and Investments Commission (2000) 174 ALR 688, Austin J referred at [22] to the typical circumstances in which s 601AH is invoked. His Honour said that the section is usually invoked to permit a plaintiff to recover damages by bringing proceedings against a defunct company, in circumstances where the company’s risk has been covered by insurance and so the real defendant is the insurance company. His Honour stated at [27]-[28]:

27    The wording of the section is very broad, and the cases confirm that it gives the court a wide discretion. The court takes into account the circumstances in which the company came to be dissolved; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement: Re Kilkenny Engineering Pty Ltd (in liq) (1976) 1 ACLR 285; Drysdale v Australian Securities Commission (1992) 10 ACLC 1427; Re Steelmaster Pty Ltd (in liq) (1992) 6 ACSR 494.

28    These matters are only factors to be weighed in the exercise of the court’s discretion. They are not limits on the court’s power. ... It is appropriate for the court to take into account questions of public interest in exercising its discretion under s 601AH: Re Immunosearch Pty Ltd (1990) 2 ACSR 455.

14    After setting out s 601AH(5), his Honour stated at [49]:

A company may be deregistered in various circumstances set out in Ch 5A of the Corporations Law. The deregistration may follow a winding up (s 601AC(1)(c)), but it may occur in cases where no process of liquidation is on foot. Reinstatement puts the company back into the position in which it stood immediately before the deregistration occurred. If the company was under the control of its directors, reinstatement returns the company into their hands. If it was under the administration of a liquidator, reinstatement returns the company to the liquidator. The liquidator’s continuation in office is then governed by Pt 5.5 of the Corporations Law.

15    See also Wedgewood Hallam Pty Ltd v Australian Securities and Investments Commission [2011] FCA 439 at [5] per Gordon J; State of Western Australia v Australian Securities and Investments Commission [2020] FCA 810 at [13] per McKerracher J.

16    It is established that, in the context of an application for reinstatement under s 601AH(2), the Court has power under s 601AH(3) to order that the period between the date of deregistration of the company and the date of its reinstatement not be counted for the purposes of the applicable limitation of actions legislation: Pagnon v Workcover Queensland [2001] 2 Qd R 492 at [15], [17] per McPherson JA (Thomas JA agreeing); Re Regional Planners Developments Co Pty Ltd (2015) 110 ACSR 457 (Re Regional Planners) at [23], [28] per Brereton J. See also Re Donald Kenyon Ltd [1956] 1 WLR 1397; Re Lindsay Bowman Ltd [1969] 1 WLR 1443; Re Harule Pty Ltd; Ex parte Olita Super Readymixed Concrete Pty Ltd (in liq) (1994) 13 ACSR 500.

17    In Re Regional Planners, Brereton J referred at [19] to Skeates v Bruce [2008] NZCCLR 27, a judgment of Allan J in the High Court of New Zealand. In that case, the company to be reinstated was the intended plaintiff (rather than, as in many of the other cases, the intended defendant), and reinstatement was sought to enable the company to bring a proceeding (rather than to enable the claimants to bring a proceeding against the company). The company had been struck off the New Zealand register of companies on 17 October 2006. The limitation period subsequently expired on 1 December 2006. In the absence of evidence that as at 1 December 2006 the company had undertaken any preparatory work of the kind that must have been essential to the commencement of the type of proceedings envisaged, or of any communication of any kind between the parties, the plaintiff was unable to demonstrate that, but for the removal of the company from the register on 17 October 2006, it would have commenced proceedings before expiration of the limitation period. Accordingly, Allan J refused to make the order sought.

18    After discussing that case, Brereton J in Re Regional Planners observed that the case reinforces that one should focus on “the practical effect of the deregistration on any decision to commence proceedings before the limitation period expires”: at [19]. See also at [29], [31].

Background facts

19    The following statement of the background facts is based on the evidence in Mr Price’s affidavits. I note that none of this evidence has been tested, given the nature of the present application.

20    On 3 January 2003, APR was registered and Mr Price and Mr Shah became directors and shareholders of the company. Initially there was a third director and shareholder; he ceased being a director on 13 February 2003.

21    On 12 January 2004 (or possibly March 2003) APR entered into the R&D Agreement. An incomplete copy of the R&D Agreement is Annexure “GP8” to Mr Price’s first affidavit. The copy does not include the Schedule or the signing page. The agreement was between APR and the Commonwealth, acting through AusIndustry, which was part of the Department of Industry, Tourism and Resources (DITR). It seems that the agreement took the form of a deed – a number of the clauses refer to the document as a deed – see, eg, cl 2.1, 2.3. In relation to the date of execution, Mr Price states that this was 12 January 2004 in paragraph 7 of his first affidavit, but refers to March 2003 in paragraph 15 of that affidavit. Nothing turns on this for present purposes.

22    In or about August or September 2004, APR commenced the building of premises at 29-39 Gateway Boulevard, Epping, Victoria.

23    On 20 October 2004, a minor variation to the R&D Agreement was executed. This is referred to in paragraph 16 of Mr Price’s first affidavit. A copy of the variation is not annexed to any of the affidavits.

24    In early 2006 (or possibly August 2005), DITR received a communication containing an allegation that APR was not the owner of the intellectual property used, or to be used, by APR in the development of the project and that the grant funds were not being utilised to support the research and development of the project. As a result of this communication, DITR became concerned that APR might be in breach of the R&D Agreement. DITR communicated its concerns to the Australian Federal Police, which commenced an investigation into APR and its directors. In relation to the date when the communication was received, while Mr Price states that this was early 2006, the report of the Commonwealth Ombudsman (referred to below) suggests that this was in August 2005.

25    It appears from the Commonwealth Ombudsman’s report (discussed below) that the DITR engaged Ernst & Young, a firm of accountants, to investigate the matter before they decided to refer it to the Australian Federal Police. The report indicates that the DITR and Ernst & Young worked together, including conducting several telephone conversations with the informant.

26    During May and June 2006, officers of the Australian Federal Police, in the course of the investigation, conducted interviews with the bankers, suppliers and customers of APR. In the course of those interviews, the Australian Federal Police indicated that APR was under investigation.

27    On 25 May 2006, Ian Carson was appointed as the receiver and manager of APR.

28    On 7 July 2006, the Australian Federal Police conducted a raid on the premises of APR, Mr Shah and Mr Price.

29    On 30 May 2007, Mr Carson ceased acting as the receiver and manager of APR.

30    On 18 July 2007, Mr Shah was declared bankrupt. It appears that Mr Shah did not inform ASIC of this, and therefore he remained on ASIC’s records as a director of APR notwithstanding that he was bankrupt and therefore not qualified to be a director.

31    On 6 August 2007, Mr Price was declared bankrupt. He ceased to be a director of APR on that date. Therefore, from this date, both of the directors of APR (Mr Price and Mr Shah) were bankrupt and disqualified from being directors. No replacement directors were appointed.

32    On 25 May 2008, APR was deregistered by ASIC. In his third affidavit at paragraph 11, Mr Price indicates that APR was deregistered because the company did not have any directors and because the company had failed to comply with its obligations under the Corporations Act, in particular, the obligation to pay yearly registration fees.

33    The Australian Federal Police subsequently referred a brief of evidence to the Commonwealth Director of Public Prosecutions (the CDPP).

34    In February 2009, the CDPP decided that no charges should be laid against APR or its directors.

35    On 24 August 2010, Mr Price was discharged from bankruptcy. The administration of his bankrupt estate was finalised on 15 December 2011.

36    Mr Price gives evidence in his third affidavit that: upon being discharged from bankruptcy, he did not know that APR could be reinstated; he did not receive any advice that it could be reinstated; and he was encouraged to go down a different path in trying to seek redress.

37    On 2 September 2013, Mr Price and Mr Shah commenced a proceeding in this Court against the Department of Industry of the Commonwealth (being the successor department to the DITR) (the 2013 Proceeding). The applicants were ordered to file an amended statement of claim, but failed to do so. As a result, in 2014, the proceeding was dismissed.

38    In 2014, the solicitor acting for Mr Price and Mr Shah in the 2013 Proceeding (Anthony Chimonis) advised Mr Price that the proceeding had been dismissed and that he could make an application to have the matter reinstated. Mr Price states in paragraph 35 of his first affidavit that Mr Chimonis advised him that the statement of claim “would need to be amended because the proceeding may be unsuccessful given that it was commenced in the names of [Mr Price] and [Mr] Shah rather than in the name of APR”. Mr Price states: “I was unable to commit any further funds to the matter due to my poor financial circumstances at that time and therefore I was unable to make an application to reinstate the proceeding”.

39    In 2014, Mr Price explored other avenues to seek recourse against the Commonwealth Government. In September 2014, the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) agreed to assist him, and sent a request to the Commonwealth Ombudsman to investigate Mr Price and Mr Shah’s claims against the Commonwealth.

40    The Commonwealth Ombudsman agreed to investigate the matter and in due course provided a draft report to Mr Price for comment.

41    In August 2015, Mr Price sought legal advice from Mr Mitchell, who was then at Wilmoth Field Warne Lawyers (WFW). WFW sent a letter to the Commonwealth Ombudsman requesting an extension of time to respond to the draft report. However, the Commonwealth Ombudsman declined to provide any additional time.

42    On 20 August 2015, the Commonwealth Ombudsman handed down his report. A copy of the report is Annexure “GP2” to Mr Price’s first affidavit.

43    In October 2015, Mr Price sought compensation for detriment caused by defective administration by the DITR. His application was rejected.

44    In 2015 or 2016, after reviewing the Commonwealth Ombudsman’s report, WFW indicated to Mr Price that every effort should be made to obtain the files of Ernst & Young (the firm of accountants that had been engaged by the DITR to investigate the matter following the communication referred to above). WFW sent a letter to the ASBFEO requesting that the files be obtained. The ASBFEO obtained some documentation from Ernst & Young, but some was missing.

45    In August 2017, the ASBFEO sent a letter to the Commonwealth Ombudsman requesting that the Ombudsman investigate missing documentation (that is, documents that had not been provided by Ernst & Young), but the Ombudsman declined to investigate the matter.

46    Subsequently, WFW merged with Marshalls and Dent. Mr Price states that the merged firm was not prepared to conduct any further work on his behalf. Mr Price states that due to his inability to pay for legal services, he was not able to retain a solicitor until Mr Mitchell (who had left Marshalls and Dent and Wilmoth) agreed to assist him with this matter.

47    On or about 1 November 2019, Mr Shah applied to ASIC to reinstate APR. By letter dated 26 November 2019, ASIC refused the application. ASIC explained that at the time of deregistration the company’s directors were both disqualified from managing a corporation under Pt 2D.6 of the Corporations Act, leaving the company without any officeholders at the time of deregistration. ASIC stated that it will not ordinarily reinstate a company where, on reinstatement, the company would not have a director. ASIC pointed out that an application for reinstatement could be made to the Court.

48    In his first affidavit, Mr Price states at paragraph 5 that he believes “that APR would be solvent if its registration was reinstated” and that he is “not aware of any debts owed by APR to any creditors”. However, in his fourth affidavit, Mr Price states that as a result of further investigations he has undertaken, he has been informed that the Commonwealth Bank of Australia and CBFC Ltd (together, the Bank) was owed approximately $1.4 million. Mr Price states that he and Mr Shah have agreed to enter into an agreement with the Bank to repay the sum owed to the Bank if APR is reinstated, AFR brings the proposed claim against the Commonwealth, and the claim is successful. Annexure “GP12” is a proposed deed to give effect to this. The document that is annexed has been signed by Mr Price but not by Mr Shah or the Bank. Mr Price also annexes, as “GP13”, a letter from MinterEllison on behalf of the Bank supporting the reinstatement application.

Evidence relating to the purpose of reinstatement

49    Mr Price gives evidence in his first affidavit that he believes APR has a valid claim against the Commonwealth. He contends that the DITR, with the assistance of the Australian Federal Police, began a covert investigation of APR several months before the termination of the R&D Agreement. He contends that the Australian Federal Police conducted an investigation into APR and its directors over a period of three years. He contends that: the investigation undermined APR’s relationship with banks and clients, causing APR to sustain substantial losses; and, as a result, a receiver and manager was appointed to APR. He states in his affidavit that, after a three year investigation, the Australian Federal Police “could not establish any evidence to support charges against APR or the Directors” and closed the matter. In his third affidavit at paragraph 11, Mr Price states that he has been advised that APR has an arguable claim against the Commonwealth.

50    In his third affidavit, Mr Price states at paragraph 9 that he believes that APR could claim in excess of $150 million from the Commonwealth, and that in the event that APR is reinstated and successfully sues the Commonwealth, there would be a large surplus of assets in APR.

51    Mr Price annexes to his fourth affidavit (as annexure “GP18”) a draft statement of claim prepared by senior counsel. The document appears to be a preliminary draft, in the sense that some sentences have not been completed (see, for example, paragraph 22).

52    The affidavit material does not contain any evidence as to how the proposed proceeding against the Commonwealth would be funded. It is a substantial claim. Substantial funds would be required to mount such a proceeding. In response to a question from the Court, counsel for Mr Price stated that his understanding was that “Mr Cannon … [who is] a personal friend of Mr Price and Mr Shah … and/or others will fund it”. However, there is no material as to the identity of the other people. Nor is there any material about the capacity of Mr Cannon and the others to fund the proposed proceeding.

53    Mr Price states in paragraph 12 of his third affidavit that, in addition to the purpose of pursuing a possible claim against the Commonwealth, a reinstated APR “might also be a useful commercial vehicle” for his activities in the plastics recycling and plastics technology industry.

Consideration

54    There are two relevant elements that need to be satisfied under s 601AH(2). The first is that the applicant for reinstatement is a “person aggrieved” by the deregistration. The second is that it is “just” that the company’s registration be reinstated.

55    In relation to the first requirement, I am satisfied that Mr Price is a “person aggrieved” by the deregistration, given that he is a shareholder of APR, and has the potential to benefit from any surplus of assets that the company would have if successful in its proposed claim against the Commonwealth.

56    The real issue is whether it is “just” to order the reinstatement of APR, having regard to all relevant circumstances, including: the circumstances in which the company came to be deregistered; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement: see the cases discussed above.

57    In relation to the circumstances in which the company came to be deregistered, in his third affidavit, at paragraph 11, Mr Price indicates that APR was deregistered because it did not have any directors and because the company had failed to comply with its obligations under the Corporations Act, in particular its obligation to pay yearly registration fees. No explanation has been provided as to why Mr Price and Mr Shah did not take steps to have new directors appointed given that they were both bankrupt and unable to serve as directors. No explanation has been provided as to what steps, if any, were taken by Mr Price and Mr Shah to ensure that the company complied with its obligations regarding payment of fees. It is not clear whether the company failed to comply with other obligations, apart from the obligation to pay fees. It is unsatisfactory that this matter has not been properly explained and dealt with. I consider that the applicant for reinstatement, Mr Price, has failed to give a full and proper account of the circumstances in which the company was deregistered. This puts the Court in the difficult position that it is not apprised of all relevant information for the purposes of the application for reinstatement.

58    In relation to whether, if an order for reinstatement were made, good use could be made of it, the main purpose of the proposed reinstatement is to bring a claim against the Commonwealth. The proposed claim is based on causes of action in negligence and breach of contract (the relevant contract being the R&D Agreement). The draft statement of claim contains an allegation that it was an “implicit term” of the R&D Agreement that the only powers of AusIndustry to supervise the work performed by APR pursuant to the agreement were the powers contained in the agreement. These powers included the powers relating to inspection and audit contained in cll 4.19-4.21 of the R&D Agreement. The draft pleading alleges, in summary, that the Commonwealth was negligent or breached the implicit term by referring the allegations against APR to the Australian Federal Police rather than exercising its powers under the agreement.

59    My impression is that the claim is weak, but arguable. I have doubts about whether the alleged “implicit term” would be implied in the R&D Agreement. Implication of this term would have the surprising consequence that it was not open to the DITR (without breaching the R&D Agreement) to refer serious allegations (including of fraud) to the Australian Federal Police. It is open to doubt whether the inclusion of powers of audit and inspection in the R&D Agreement carries with it as a corollary that the DITR must use those powers in relation to serious allegations and cannot refer such allegations to the Australian Federal Police.

60    A further difficulty with the proposed claim is that the applicable limitation periods have likely expired. The governing law of the R&D Agreement is the law of the Australian Capital Territory, and Mr Price’s submissions proceed on the basis that the applicable limitation statute is the Limitation Act 1985 (ACT). I will proceed on that basis. The general limitation period under s 11(1) of the Limitation Act is six years from the date when the cause of action first accrued. There is a longer period for a cause of action founded on a deed – this is 12 years from the date when the cause of action first accrued: s 13. Insofar as the contract claim is concerned, in my view it is likely that the cause of action first accrued in May 2006, if not before. The alleged breach was the enlisting of the Australian Federal Police. On the evidence, this occurred by May 2006. Insofar as the negligence claim is concerned, in my view it is likely that the cause of action first accrued in or about May or June 2006. An element of the cause of action is damage. It seems likely that damage (namely financial damage to APR) occurred in May or June 2006 or shortly thereafter.

61    It is sufficient to focus on the contract claim, as this potentially has a longer limitation period. Mr Price contends that the contract claim is founded on a deed, the R&D Agreement having been executed as a deed. Although the signing or execution page has not been produced, the wording of the agreement supports the contention that it was executed as a deed. Focussing on the contract claim, and assuming that it is a cause of action founded on a deed, the 12 year limitation period likely expired in May 2018. In other words, unless the second order sought in the amended originating process is made, any claim against the Commonwealth would likely be out of time, in the sense that it would be open to the Commonwealth to plead a limitation defence. There is no reason to think that the Commonwealth would not plead such a defence if available to it; indeed, I consider it likely that it would.

62    Insofar as Mr Price indicated in his third affidavit, at paragraph 12, that a reinstated APR could be a “useful commercial vehicle” for his activities in the plastics recycling and plastics technology industry, no detail is provided about this. I do not regard this as providing a good reason for reinstatement.

63    It is convenient to defer any overall consideration of whether it would be “just” to reinstate the company until after I have considered whether (assuming the company were reinstated) I would make the second order sought by Mr Price, namely an order that the period between the date of deregistration of APR (25 May 2008) and the date of reinstatement of the company not be counted for the purposes of the applicable limitation period.

64    I will now consider that issue. Unlike many other cases where reinstatement is sought, here the company is the intended plaintiff rather than the intended defendant, and reinstatement is sought to enable the company to bring a proceeding (rather than to enable the claimants to bring a proceeding against the company). In these circumstances, the making of an order that the period between the date of deregistration and the date of reinstatement not be counted for the purposes of the applicable limitation period would advantage the company and disadvantage the defendant to the proposed proceeding. I therefore consider that caution needs to be exercised before making an order of the kind sought in such circumstances.

65    Adopting the approach taken by Brereton J in Re Regional Planners, I will focus on the practical effect of the deregistration on any decision to commence proceedings before the limitation period expires. Here, a proceeding was commenced in 2013 by Mr Price and Mr Shah against the Commonwealth. This proceeding was ultimately dismissed because Mr Price and Mr Shah did not file a document within the time prescribed by a Court order. Subsequently, they did not seek reinstatement of the proceeding. Mr Price gives evidence that he was advised (it would seem, in about 2014) by his then solicitor that the statement of claim would need to be amended “because the proceeding may be unsuccessful given that it was commenced in the names of [Mr Price] and [Mr] Shah rather than in the name of APR”. Thus, by this time, if not before, Mr Price was aware of the need to bring the proceeding in the name of APR. Mr Price states that he was unable to commit further funds due to his poor financial circumstances. He does not give any other explanation for the failure to bring a claim in the name of APR at that time. It is thus not clear whether the deregistration of APR had any effect on the failure to bring a claim in the name of APR at that time. The position may well be that, because of Mr Price’s financial circumstances, a claim would not have been brought in the name of APR even if it had been registered.

66    I note that Mr Price gives evidence that, when he was discharged from bankruptcy (in 2010) he did not know that APR could be reinstated and did not receive any advice that it could be reinstated. However, there is no evidence that a claim in the name of APR was otherwise in contemplation at that time. Therefore, it is not established that the deregistration of APR had any effect on the failure to bring a claim in the name of APR at that time.

67    I note that it is possible that the deregistration may have had an effect on the failure to bring a claim for part of the deregistration period. It appears that, at some point after August 2017, Mr Price received advice from Mr Nash QC that he needed to make an application to reinstate APR. By that time, Mr Nash had agreed to assist Mr Price “without fee” and Mr Russell had agreed to act for Mr Price in circumstances where Mr Russell’s former law firm had declined to act further for Mr Price due to his financial circumstances. If APR had not been deregistered at the time of Mr Nash’s advice, he may have advised that APR commence a proceeding against the Commonwealth; further, Mr Russell and/or Mr Nash may have offered to do so without fee (or for a reduced fee). However, the evidence does not enable any conclusion to be drawn about these matters, and thus they remain in the realm of speculation. Mr Price has not provided any clear evidence to support the view that, at a particular point in time before the expiry of any applicable limitation period, but for the deregistration, a proceeding would have been commenced in the name of the company.

68    In the circumstances of this case, as described above, I am not satisfied that it would be appropriate to make an order that all (or part) of the period of deregistration not be counted for the purposes of the Limitation Act.

69    In the course of argument, it was suggested by counsel for Mr Price that any suspension of the limitation period could be provisional, and subject to further contrary submissions by the Commonwealth in due course. The cases do not approach the issue in this way. In any event, for the reasons set out above, I do not consider it appropriate to make such an order.

70    I return to whether the first order sought by Mr Price should be made. Having regard to the facts and matters set out above, including the lack of clarity about the circumstances in which the company came to be deregistered, the apparent weakness of the proposed claim, and the likelihood that the applicable limitation periods have expired, I am not satisfied that it would be just to order the reinstatement of the company.

71    In light of this conclusion, it is not necessary to deal with certain other issues that would arise if an order for reinstatement were to be made. As noted above, immediately before the company’s deregistration it did not have any directors. Before the company could be reinstated, it would be necessary to ensure that it would have directors upon reinstatement. Further, the evidence suggests that upon reinstatement the company would or may be insolvent, in light of the debt due to the Bank. The company was not in liquidation immediately before its deregistration, and therefore the reinstated company would not be in liquidation, absent a resolution or an order that it be wound up. Mr Price has not sought such an order in his amended application (although I note that he has filed a consent to act from a liquidator). It would be necessary to address the question whether the company should be wound up, and the appropriate mechanism for achieving this.

Conclusion

72    For the reasons set out above, the application is to be dismissed. As the defendant, ASIC, did not appear, I will also make an order that there be no order as to costs.

Associate:

Dated:    21 January 2022