Federal Court of Australia

Seal v Australian Securities and Investments Commission, in the matter of Berwick South Enterprises Pty Ltd (Deregistered) [2026] FCA 1441

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) (Corporations Act), the Defendant (ASIC) is directed to reinstate the registration of Berwick South Enterprises Pty Ltd (Deregistered) (ACN 121 313 148) and Cranbourne North Enterprises Pty Ltd

(Deregistered) (ACN 165 228 464) (together, the Companies).

2.    Pursuant s 90-15 of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Corporations Act, the winding up of the Companies be terminated upon their reinstatement by ASIC in accordance with paragraph 1 of these orders.

3.    Pursuant to s 1317S(4) of the Corporations Act, the Plaintiff be relieved from liability to which he would otherwise be subject because of a contravention of s 1308(4) or (5) of the Corporations Act arising from his failure to declare or disclose that the Companies were respondents to proceedings in the Federal Court of Australia numbered SAD127/2022 and VID1029/2023 (together, the Proceedings) to the former liquidator of the Companies, Roger Grant, or ASIC.

4.    The Plaintiff forthwith serve a copy of these orders on the ASIC and the applicants in the Proceedings.

5.    There is 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

BENNETT J:

introduction and summary

1    This is an application by the Plaintiff for orders reinstating the registration of two companies, Berwick South Enterprises Pty Ltd (ACN 121 313 148) (Deregistered) and Cranbourne North Enterprise Pty Ltd (Deregistered) (ACN 165 228 464) (the Companies).

2    The Plaintiff was the sole director and shareholder of the Companies until they were wound up and then deregistered on 2 August 2025.

3    On 4 March 2025, a Form 520 Declaration of Solvency (Form 520) was lodged in respect of each of the Companies. On 7 March 2025, a members’ meeting was held in which the members passed resolutions including a resolution to wind up the Companies.

4    In each Form 520, the Plaintiff failed to disclose to the Companies’ former liquidator, Orange Tree Insolvency Pty Ltd (the Former Liquidator) that the Companies were respondents to two proceedings in this Court (proceedings SAD127/2022 and VID1028/2023 together, the Proceedings). Because of that non-disclosure, the Former Liquidator finalised the liquidations and caused the Companies to be deregistered without reference to those matters.

5    The Plaintiff now seeks orders that:

(1)    pursuant to s 601AH(2) of the Corporations Act 2001 (Cth), that the Defendant (ASIC) be directed to reinstate the registration of the Companies;

(2)    pursuant to s 90-15 of the Insolvency Practise Schedule (Corporations), being sch 2 to the Corporations Act (IPSC), that the winding up of the Companies be terminated; and

(3)    pursuant to s 1317S(4) of the Corporations Act, that the Plaintiff be relieved from liability under s 1308(4)-(5) of the Corporations Act arising from his failure to disclose to ASIC and the Former Liquidator that the Companies were respondents to the Proceedings.

6    The Plaintiff relies upon his affidavit affirmed on 19 May 2026 (the Seal Affidavit), the affidavit of his solicitors, Ms Natasha Guthrie affirmed on 16 September 2026 addressing service of the originating process and affidavit material, and two affidavits of Ms Mustafa-Ay that were affirmed on 17 September 2026 and 18 September 2026, each of which were read in the course of the proceedings. The affidavit of Ms Mustafa-Ay deposed to service of the Plaintiff's submissions and the processes concerning this application.

7    ASIC elected not to participate in the present proceedings but was notified of it and provided a letter stating that:

Subject to the strict understanding that no order for costs will be sought against the Australian Securities Investment Commission (ASIC), ASIC does not oppose the Application and will not attend the hearing of the matter.

8    The evidence of Ms Guthrie makes clear that notice of this application was given to:

(1)    Lieschke & Weatherill Lawyers (the solicitors for the Shop, Distributive and Allied Employees’ Association (SDA) in the Proceedings);

(2)    Shine Lawyers (the lawyers for group members in the Proceedings); and

(3)    the Former Liquidator.

9    There was evidence before the Court of a Mimecast notification that the materials relevant to the present application had been accessed by the parties listed above. I was informed from the bar table that there was acknowledgment from the Former Liquidator but no other substantive response or acknowledgment from the solicitors in the Proceedings.

10    No party sought to be heard against the orders sought or to make any submission whatsoever.

11    For the reasons which I will briefly explain, I have decided it is appropriate to make the orders sought.

FACTUAL BACKGROUND

12    The Plaintiff is 73 years’ old, a retiree and was director and shareholder of the Companies until 2 August 2025. The Companies operated McDonald's franchise restaurants until 30 June 2022, on which date the franchises were sold to McDonald's Australia Limited (MAL). The Plaintiff sold the franchises so that he could retire, which he did after finalising their affairs.

13    The Proceedings were commenced in around July 2022 and 6 December 2023 respectively, by the SDA and others. In the Proceedings, it is alleged that McDonald's franchisees, including the Companies, contravened their obligations to employees to provide paid breaks or payment for work before and after their rostered start time. Orders were made by Lee J on 15 March 2024 and 22 July 2024 to the effect that all respondents, other than MAL and the participating respondent franchisees, were relieved of all obligations to take any action in the Proceeding prior to the determination of issues at an initial trial, at which common issues would be determined.

14    Following the sale of the businesses, the Plaintiff took steps to finalise the affairs of the Companies, including paying all outstanding liabilities and having them wound up.

15    As part of that process, he signed a Form 520 for each Company on 4 March 2025 (the Declarations). In each of the Declarations, the Plaintiff specified that the relevant Company had “Nil” liabilities.

16    The Plaintiff's evidence is that the Proceedings did not cross his mind and nothing on the face of the Form 520s prompted him to consider the Proceedings to be relevant. His evidence was that:

The Proceedings did not cross my mind and nothing in the Form 520 prompted me to consider that the Proceedings were relevant. Given my stores had not been selected for the “initial trial”, I only ever received infrequent communications in relation to the Rest Breaks Proceedings and the Managers Proceedings. I had earlier received copies of the orders made by Lee J on 15 March 2024 (in the Managers Proceeding) and 22 July 2024 (in the Rest Breaks Proceeding) which provided that the Companies were relieved of all obligations to take any action in the proceeding. I had also received the notices sent to the respondents in the Proceedings, and based upon them, I believed that the Companies had a choice as to whether to participated in the Proceedings, and I chose not to.

I now understand that my belief was incorrect, as the Proceedings was then on foot against the Companies, and while I deny any wrongdoing, there is a possibility that the Proceedings may give rise to liabilities against the Companies. The Declarations were not intended to mislead the Companies’ liquidator or ASIC and they were made in what I now accept was error. I did not understand the legal effect of deregistration and I did not obtain legal advice prior to signing the Declarations. I did not think advice was necessary because the Companies were, essentially, ‘defunct’.

17    Of course, there were potential or contingent liabilities that ought to have been disclosed, being the Proceedings in this Court.

legal principles

Reinstatement

18    Section 601AH of the Corporations Act sets up two alternative procedures by which a company may be reinstated. By sub (1A) and (1B), ASIC may reinstate a company if applicable levies and penalties are paid in full to ASIC. Subsection 601AH(2) relevantly provides:

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

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

(i)    a person aggrieved by the deregistration … and

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

19    If positive findings are made in relation to the preconditions set out in the statute, then an order for reinstatement may be made.

The “person aggrieved”

20    The expression “a person aggrieved by the deregistration” under s 601AH(2) is not defined. The applicant must have a genuine grievance that the dissolution of the company affected his or her interests because, for example, a right of some value or potential value has gone out of existence.

21    It was said in in Teffaha v Australian Securities and Investments Commission [2010] NSWSC 511 (at [10] (Barrett J)) that:

… the normal position would be that someone occupying a position of shareholder or director, or both those positions, was not relevantly “aggrieved” by the non-existence of the company: see Casali v Crisp [2001] NSWSC 860; (2001) 165 FLR 79 and several later cases to that effect. Something more is needed, at least where the company is insolvent.

22    It is said in this case that a director's apprehension of exposure to a claim or penalty ought to be considered sufficient. In Callegher v Australian Securities and Investments Commission [2007] FCA 482; 218 FCR 81, the plaintiff was a director of a company that had been deregistered due to the director's failure to pay an ASIC lodgement fee. Lander J held that the director was a “person aggrieved” by reason of his exposure to penalty. His Honour said (at [51]):

The authorities suggest, as the applicant contended, that merely because a person is a shareholder or a director that is not enough to establish that a person is a person aggrieved. In this case, the first plaintiff is merely a director. However, upon his own evidence, the first plaintiff is the person who, by his own inaction, caused deregistration of ACMF. There is presently no suggestion that the first plaintiff might be prosecuted for a contravention of s 188 of the Corporations Act. As the secretary of ACMF, it was his responsibility to attend to the various matters in s 188(1) of the Corporations Act. Although there is presently no suggestion that any proceedings might be brought against the first plaintiff in relation to whatever breach of duty he committed, that is a risk, it seems to me, which would entitle the first plaintiff to say that he is a person aggrieved. The first plaintiff's conduct might have put some sort of legal burden on him that would be partly relieved by ACMF's reregistration: Ealing Corporation [1959] 1 QB at 391. In those circumstances, notwithstanding that the first plaintiff is a director and secretary only, in my opinion, he is a person aggrieved because he has a real and direct interest in the reregistration of ACMF: Denis & Ors v McMahon (1989) 7 ACLC 283.

23    Similarly in this case, there is no suggestion that the Plaintiff is to be actively pursued or is being actively pursued or prosecuted. However, having identified the failing which attracts penalty under the Corporations Act, and having an interest in seeking relief from that potential liability, is sufficient to engage the standard required by s 601AH(2).

24    I am therefore satisfied that the Plaintiff is relevantly a person aggrieved.

Whether it is “just” that the company's registration be reinstated

25    Section 601AH(2)(b) also requires that the Court be “satisfied that it is just that the company's registration be reinstated”. The section confers a wide discretionary power (Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316; 174 ALR 688 (ACCC v ASIC) at [27]-[28] (Austin J); Ligon 158 Pty Ltd (In Liq) v Shield Holdings Australia Pty Ltd (De-reg’d) [2024] FCA 144 (Ligon)at [29] and [35] (Cheeseman J), citing Yeo v Australian Securities and Investments Commission, in the matter of Ji Woo International Education Centre Pty Ltd (deregistered) [2017] FCA 1480 at [23] (Gleeson J). In In the matter of ERB International Pty Ltd (deregistered) [2014] NSWSC 200; 283 FLR 223, Brereton J said (at [5]):

The provision that the court “may” order reinstatement if satisfied that it is “just” to do so has been said to confer a broad discretionary judgment on the court. Relevant considerations include the circumstances in which the company was de-registered, the purpose in seeking its re-instatement, whether any person is likely to be prejudiced by reinstatement, and the public interest generally [Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316, [27]–[28]; (2000) 174 ALR 688 at 693; 34 ACSR 232; Promnitz v ASIC [2004] FCA 22, [19]–[20]; JP Morgan Portfolio Services Ltd v Deloitte Touche Tohmatsu [2008] FCA 433, [4]; (2008) 167 FCR 212; (2008) 65 ACSR 636; AMP General Insurance Ltd v Victorian Workcover Authority [2006] VSCA 236].

26    The decision to order reinstatement involves the application of a very general standard – what is “just”. That requires consideration by the Court of various matters. The process was identified and explained by Austin J in ACCC v ASIC (at [27]-[28]) as follows:

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 ASC (1992) 10 ACLC 1427; Re Steelmaster Pty Ltd (in liq) (1992) 6 ACSR 494.

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. Here, the reinstatement is likely to lead to the company being joined in proceedings in which the ACCC will seek orders for pecuniary penalties against it. The company may therefore be prejudiced. The Court may nevertheless conclude that it is just that the company's registration be reinstated, having regard (for example) to the strong public interest which is involved. 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.

27    Subsection 601AH(5) provides that a person who was a director immediately before deregistration becomes a director again from the time when ASIC or the Court reinstates the company. That means the Plaintiff will become director if the orders are made. The Court will usually need to be satisfied that the reinstated company will have an appropriate director and, on the material before me, I am so satisfied.

28    I am informed that the Companies do not intend to trade. This is relevant in some respect to the question of solvency, to which I will now turn.

29    The solvency of a company is a relevant consideration, given the Court will be apprehensive about enabling an insolvent company to continue trading (Ligon at [31] (Cheeseman J), citing Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058; 69 ACSR 242 at [23] (Barrett J)).

30    In the circumstances before me, the liquidator, Mr Grant of Orange Tree Insolvency, called in the cash assets of the Companies. He placed an advertisement in relation to a dividend and sought tax clearance to determine if any amounts were owing to the Commissioner. On the materials before me, the position upon reinstatement would be that the Companies would have no assets and no liabilities. There were no unsatisfied creditors in the liquidation and therefore no relevant prejudice can be identified arising from the reinstatement of the Companies at this stage.

31    I am satisfied that the reinstatement of the Companies does not pose a risk of insolvent trading or relevant unfairness. I am therefore satisfied that this does not tell against the making of the order sought.

Termination of liquidation

32    Section 482(1) of the Corporations Act provides that, at any time during the winding up of the company, the Court may, on application, make an order staying the winding up either indefinitely or for a limited time or terminating the winding up on a day specified.

33    However, s 482 does not apply to liquidation of the Companies because they were wound up voluntarily. Under the present statutory regime, s 90-15 of the IPSC may be relied upon to terminate a members’ voluntary liquidation (Re The Thoroughbred Consultants Pty Ltd [2021] VSC 627 at [92]-[93] (Osborne J); Re Australian Institute of Professional Photography Ltd (in Liq) [2025] VSC 71 at [29] (Hetyey AsJ)).

34    Section 90-15 relevantly provides:

Court may make orders in relation to external administration

Court may make orders

(1)    The Court may make such orders as it thinks fit in relation to the external administration of a company.

Orders on own initiative or on application

(2)    The Court may exercise the power under subsection (1):

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90-20.

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the external administration of the company;

(b)    an order that a person cease to be the external administrator of the company;

(c)    an order that another registered liquidator be appointed as the external administrator of the company;

(d)    an order in relation to the costs of an action (including court action) taken by the external administrator of the company or another person in relation to the external administration of the company;

(e)    an order in relation to any loss that the company has sustained because of a breach of duty by the external administrator;

(f)    an order in relation to remuneration, including an order requiring a person to repay to a company, or the creditors of a company, remuneration paid to the person as external administrator of the company.

35    Standing is conferred, by s 90-20, on an officer of the company or “a person with a financial interest in the external administration of the company”, which includes a member in a members’ voluntary winding up (see s 5-30). That is plainly satisfied in the present case.

36    The powers conferred by s 90-15 are wide and I am satisfied cover an order of the kind sought. The same factors which support the reinstatement of the Companies likewise support the termination of the liquidation, and I am satisfied for the same reasons that the termination of the liquidation is appropriate.

The relieving orders

37    Section 1317S makes provision for the relief of persons who have or may have contravened a civil penalty provision. By sub-s 1317S(4), a person who thinks an “eligible proceeding”, including applications for compensation orders and pecuniary penalties under ss 1317H and 1317G respectively, “will or may be begun against them” may apply for relief.

38    Section 1317S involves a number of inquiries that were identified in Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; 196 FCR 430 (Healey (No 2)) at [84] (Middleton J) as follows:

(1)    First, whether the applicant for relief has acted honestly;

(2)    Second, whether having regard to all the circumstances, the applicant ought fairly be excused; and;

(3)    Third, whether the applicant be relieved from liability wholly or in part and, if partly, to what extent.

39    Generally speaking, a person acts honestly if the person's conduct is without moral turpitude, without deceit or conscious impropriety, without intent to gain improper benefit or advantage, and without carelessness or imprudence that negates the performance of the duty in question. Middleton J in Healey (No 2) observed (at [85]-[86]):

As I have said, s 1317S is substantially similar to, and is derived from s 1318. Chief Justice Spigelman in Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152 at [44]–[45], stated that:

[44] Plainly, with respect to the power to impose pecuniary penalties, and probably also with respect to the power to make a disqualification order, parliament proceeded on the basis that the interpretation of s 1318 either required a clear extension of the reference to “civil proceedings” in s 1318 itself or a new parallel provision. Parliament chose the latter course. In so doing parliament proceeded on the assumption that s 1318 would not, of its own force, apply to proceedings for a penalty even if, by statute, any such “penalty” was recoverable by civil proceedings.

[45] No doubt this choice was made, in part, as a matter of convenience in order to have all of the civil penalty provisions together in Pt 9.4B of the Act. The separate provision, now found in s 1317S, which operates in parallel with s 1318, may reflect the objective of establishing a regime involving a clear pyramid of enforcement containing a hierarchy of sanctions, increasing in seriousness from civil liability to civil penalty liability to criminal liability. The legislation was based on this regulatory philosophy as expounded by the Senate Standing Committee on Legal and Constitutional Affairs Report, Company Directors Duties: Report on the Social and Fiduciary Duties and Obligations of Company Directors 1989 (called the “Cooney Committee Report”): see generally H Bird, “The Problematic Nature of Civil Penalties in the Corporations Law” (1996) 14 C & SLJ 405; V Comino, “The Enforcement Record of ASIC Since the Introduction of the Civil Penalty Regime” (2007) 20 AJCL 183 esp at pp 185–91.

Neither ss 1317S nor 1318 operate to remove the breach, rather they operate as a dispensing power to excuse the contravener. In Dick, Santow J said at [78]:

What is salient is that in the United Kingdom, dating back from s 32 of the English Companies Act 1907 (UK), later adopted in the Australian States, there is a consistent theme that the court should have power to relieve, in order that penal provisions or quasi penal provisions should not operate unfairly or harshly. Relief so extended does not strictly speaking exonerate the person in question by removing the breach; rather it operates as a dispensing power excusing the contravenor. “Exonerate” used in this s 1318 context has therefore the sense of taking a burden from a person who has committed a breach. It does not mean that the breach is deemed never to have occurred. Rather the person concerned seeks to satisfy the court that “having regard to all the circumstances of the case” he or she “ought fairly to be excused” so as to receive dispensation.

40    An evaluative judgement follows as to whether or not a person ought fairly be excused. The authorities highlight that the relevant considerations include the degree to which the person's conduct fell short of the statutory standard of care and diligence, the seriousness of the contravention, the potential or actual consequences of such contravention, impropriety such as deceptiveness or personal gain and contrition, and the degree of the unreasonableness of the conduct.

41    The failure, in this instance, was the failure to properly complete a Form 520 for the purpose of s 494, which states:

(1)    Where it is proposed to wind up a company voluntarily, a majority of the directors may, before the date on which the notices of the meeting at which the resolution for the winding up of the company is to be proposed are sent out, make a written declaration to the effect that they have made an inquiry into the affairs of the company and that, at a meeting of directors, they have formed the opinion that the company will be able to pay its debts in full within a period not exceeding 12 months after the commencement of the winding up.

(2)    There must be attached to the declaration a statement of affairs of the company showing, in the prescribed form:

(a)    the property of the company, and the total amount expected to be realised from that property; and

(b)    the liabilities of the company; and

(c)    the estimated expenses of winding up;

made up to the latest practicable date before the making of the declaration.

(3)    A declaration so made has no effect for the purposes of this Act unless:

(a)    the declaration is made at the meeting of directors referred to in subsection (1); and

(b)    the declaration is lodged before the date on which the notices of the meeting at which the resolution for the winding up of the company is to be proposed are sent out or such later date as ASIC, whether before, on or after the first-mentioned date, allows; and

(c)    the resolution for voluntary winding up is passed within the period of 5 weeks after the making of the declaration or within such further period after the making of that declaration as ASIC, whether before or after the end of that period of 5 weeks, allows.

(4)    A director who makes a declaration under this section (including a declaration that has no effect for the purposes of this Act by reason of subsection (3)) without having reasonable grounds for his or her opinion that the company will be able to pay its debts in full within the period stated in the declaration is guilty of an offence.

(5)    If the company is wound up pursuant to a resolution for voluntary winding up passed within the period of 5 weeks after the making of the declaration or, if pursuant to paragraph (3)(c) ASIC has allowed a further period after the end of that period of 5 weeks, within that further period, but its debts are not paid or provided for in full within the period stated in the declaration, it is to be presumed, unless the contrary is shown, that a director who made the declaration did not have reasonable grounds for his or her opinion.

42    I have set out above those parts of Mr Seal's affidavit which explain why he did not apprehend that it was necessary to disclose the Proceedings, being in particular that he had been notified by solicitors acting for the parties in the Proceedings that it was not necessary to take any step in the Proceedings. Therefore, I interpolate that the Proceedings were not front of mind for him in his conduct of the business of the Companies.

43    Mr Seal's affidavit goes on to frankly and clearly identify the nature and extent of his conduct and gives evidence as to his intentions, including that he did not intend to mislead ASIC or Mr Grant or to take any other action to interfere with the Proceedings. The Seal Affidavit states (at [34]):

I also make this application as I accept that I ought to have disclosed the Proceedings in the Declaration, or that I otherwise ought to have disclosed them to Mr Grant or ASIC. The deregistration of the Companies was inadvertent and occurred without any intention to affect the ongoing Proceedings. I did not intend to mislead ASIC or Mr Grant, and nor did I seek to take any action to interfere with the Proceedings. I am concerned that I have inadvertently breached the provisions of the Corporations Act in failing to disclose the Proceedings and, because of that, I may be exposed to a penalty or liability. I also seek as part of this application that I be relieved of any liability that I might otherwise have arising from my failure to disclose the Proceedings to ASIC or Mr Grant.

44    Directors are rightly held to high standards. Carelessness and imprudence are raised on the facts of this case, and they cause me concern. That concern was heightened in circumstances where there was non-compliance with this Court's orders for the preparation of evidence and submissions. However, the explanation proffered by the solicitor was clear and arose from understandable circumstances. I am satisfied that those matters do not reflect poorly on either the solicitor or the Plaintiff and I therefore afford those matters no weight.

45    Relieving orders of the kind sought are a significant matter. They are not granted as a matter of course or out of an abundance of caution. They are granted where the statutory criteria are properly satisfied.

46    Based on the evidence before me, I have concluded that:

(1)    In relation to the degree to which the Plaintiff’s conduct fell short of the statutory standard of care and diligence, I accept the submission that the Plaintiff's conduct can be seen to have been mitigated by the fact that notices were issued in the Proceedings making clear that parties were relieved of their obligations to take steps in relation to the Proceedings. In that sense, it is understandable that they were not immediately in the mind of the Plaintiff at the time that he was completing the relevant forms. He had not been actively engaged in the Proceedings, his instructions were not sought and he had taken no relevant steps in relation to them. In many respects, his status as a party to the Proceedings was inactive at the time that he completed the Form 520s.

(2)    The declaration of solvency (being a Form 520) is an important form required to be completed under s 494. However, I am satisfied that the nature and extent of the failure is at the less serious end. The Companies did not have any property to satisfy any claims. There were no outstanding creditors and the applicants in the Proceedings are not deprived of the opportunity to lodge any proof of debt against the assets of the Companies because there were no such assets.

(3)    Relatedly, the potential or actual consequences of the failure are not significant for the reasons that I have identified.

(4)    I am positively satisfied, based on the material before me and the proactive manner in which the present application has been pursued, that there was no impropriety, deceptiveness or personal gain in the Plaintiff’s conduct.

(5)    I am likewise satisfied, based on the affidavit material, that the Plaintiff is relevantly contrite and he took proactive steps to address the default as soon as reasonably practicable after he became aware of it.

47    I have been concerned about the utility of the orders sought. This overlaps somewhat with the issue raised by s 1317S(4) and the requirement that a person may make application for a relieving order if “a person thinks that eligible proceedings will or may be begun against them”.

48    In this case, there is reason to think that proceedings will not be commenced because ASIC provided a letter indicating that they do not wish to be heard against the provision of the relief sought. However, there is a circularity to that logic, because the assurance only arises because these proceedings were commenced and is connected in any event with the relieving orders that have been sought.

49    In addition, there is an argument over whether the Plaintiff’s conduct would reach the standard required for a breach of s 1308(4) or (5). There is an overlap in this respect with the reasons that it is appropriate to make the orders itself. That is, it is relatively minor misconduct for which the Plaintiff has given an adequate explanation. However, I do not consider that should be disentitling. The application has been made in good faith on the basis of an apprehension that I am satisfied on the evidence before me is genuinely held by the Plaintiff. He is well advised by legal practitioners and has put forward adequate and cogent reasons for his concerns.

50    I therefore am satisfied that the requirements of s 1317S(4) are satisfied. I am also satisfied that all parties with a potential interest in the relief have had the opportunity to be heard and that no issues against the granting of relief have been made. In regard to all the above matters, it is therefore appropriate that I make the orders sought. These reasons were delivered ex tempore and were revised in accordance with Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 272 CLR 329 at [30]-[31] (Steward J, Kiefel CJ, Keane, Gordon and Edelman JJ agreeing).

Associate:     

Dated:    1 October 2026