Endless Solar Corporation Limited v Australian Securities and Investments Commission, in the matter of Speedpanel Australia Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 30 June 2023
• Neutral Citation: [2023] FCA 720
• Date: 30 June 2023
• Court: Federal Court

Federal Court of Australia

Endless Solar Corporation Limited v Australian Securities and Investments Commission, in the matter of Speedpanel Australia Ltd [2023] FCA 720

File number(s):	NSD 172 of 2023
Judgment of:	O'BRYAN J
Date of judgment:	30 June 2023
Catchwords:	CORPORATIONS – application for review of order made by Judicial Registrar to reinstate the registration of a company pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) – where reinstatement sought by a shareholder of the company to enable pursuit of proceedings against and on behalf of the company – whether the requirements of procedural fairness have been satisfied on the hearing of the application for review – application for review adjourned to afford interested persons an opportunity to be heard
Legislation:	Australian Consumer Law, s 18 Corporations Act 2011 (Cth), ss 232, 233, 237, 436A, 437D, 439A, 442A, 447C, 601AB, 601AH Federal Court of Australia Act 1976 (Cth), s 35(5)-(6) Federal Court (Corporations) Rules 2000 (Cth), rr 2.13(4), 16.1(3)(b) Federal Court Rules 2011 (Cth), rr 1.39, 9.05
Cases cited:	AMP General Insurance Ltd v Victorian WorkCover Authority (2006) 15 VR 175 Bechara v Bates (2021) 286 FCR 166 Boys, in the matter of 38 Akuna Pty Ltd (Deregistered) v Australian Securities and Investments Commission [2019] FCA 320 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 CIP Group Pty Ltd v So [2022] FCA 1490 Dahozo Pty Ltd v Oz-Us Film Productions Pty Ltd (1997) 24 ACSR 739 Deputy Commissioner of Taxation v Australian Securities and Investments Commission; re Civic Finance Pty Ltd (Deregistered) [2010] FCA 1411; 91 ATR 456 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; 37 ACSR 672 Fletcher (as liquidators of Octaviar Administration Pty Ltd) v Anderson [2014] NSWCA 450; 292 FLR 269 Gardiner v National Australia Bank Ltd; National Australia Bank v Gardiner [2023] NSWSC 45 Grogan Pty Ltd v Australian Securities and Investments Commission, SIRA Pty Ltd (Deregistered) [2020] FCA 1832 Harris v Caladine (1991) 172 CLR 84 Hinz, in the matter of KEAD Pty Ltd (Deregistered) v KEAD Pty Ltd (Deregistered) [2022] FCA 270; 158 ACSR 444 Liberty International Underwriters v Australian Securities and Investments Commission, in the matter of Moore Murphy Holdings Pty Ltd [2021] FCA 103 Manny v David Lardner & Associates [2018] ACTSC 159 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262 Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Owners of Strata Plan No. 91349 v Australian Securities and Investments Commission [2020] NSWSC 685; 147 ACSR 456 Pilarinos v Australian Securities and Investments Commission [2006] VSC 301; 24 ACLC 775 Re Brockweir Pty Ltd [2012] VSC 225 Re ERB International Pty Ltd (deregistered) [2014] NSWSC 200; 98 ACSR 124 Scheuer (Trustee) v Endless Solar Corporation Limited [2023] FCA 299
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	81
Date of hearing:	26 May 2023
Counsel for the Applicant:	O Bigos KC with P E Annabel
Solicitor for the Applicant:	Altus Lawyers
Counsel for the Plaintiff:	G A Costello KC with B Solcum
Solicitor for the Plaintiff:	Quinn Emanuel Urquhart & Sullivan, LLP
Counsel for the Defendant	The Defendant did not appear.

ORDERS

		NSD 172 of 2023
IN THE MATTER OF SPEEDPANEL AUSTRALIA LTD ACN 107 723 240
BETWEEN:	ENDLESS SOLAR CORPORATION LIMITED ACN 122 708 061 Plaintiff
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Defendant
IN THE INTERLOCUTORY APPLICATION:
between:	NATHAN JOSEPH (NICK) SCHEUER Applicant
AND:	ENDLESS SOLAR CORPORATION LIMITED ACN 122 708 061 First Respondent ; AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Second Respondent

order made by:	O'BRYAN J
DATE OF ORDER:	30 June 2023

THE COURT ORDERS THAT:

1. Nathan Joseph (Nick) Scheuer, in his personal capacity and in his capacity as trustee of the Asher & Wald Trust), be joined as the second defendant to the proceeding.

2. By 4 pm on 7 July 2023, the plaintiff serve sealed copies of these orders and the accompanying reasons for decision on:

   1. all persons named as defendant in the writ dated 6 March 2023 and filed in the Supreme Court of Victoria proceeding ECI 2023 00852 (except Mr Nathan Joseph (Nick) Scheuer); and

   2. all persons named as defendant in the writ dated 17 March 2023 and filed in the Supreme Court of Victoria proceeding S ECI 2023 01060 (except Mr Nathan Joseph (Nick) Scheuer).

3. By 4 pm on 21 July 2023, any person on whom a copy of these reasons has been served in accordance with paragraph 2 of these orders and who opposes the reinstatement of the registration of Speedpanel Australia Ltd ACN 107 723 240 may indicate their opposition by filing and serving on the parties a notice of objection and sending a copy by email to the chambers of O’Bryan J.

4. The proceeding be listed for case management at 9.30 am on 28 July 2023.

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

REASONS FOR JUDGMENT

O’BRYAN J

Introduction

1. On 19 June 2022, Speedpanel Australia Ltd ACN 107 723 240 (SPA) was deregistered by the Australian Securities and Investments Commission (ASIC) pursuant to s 601AB of the Corporations Act 2011 (Cth) (Act), which empowers ASIC to deregister a company in certain circumstances including, relevantly, where a company fails to lodge documents required to be lodged under the Act or to pay certain fees. At the time of deregistration, SPA had no directors.

2. On 28 February 2023, the plaintiff (Endless Solar) filed an originating process in this proceeding seeking an order under s 601AH(2)(a)(i) of the Act that ASIC reinstate the registration of SPA. It is not in dispute that Endless Solar was a shareholder of SPA at the date of its deregistration. Other than joining ASIC to the proceeding, Endless Solar did not notify any other person of its application. ASIC indicated that it did not oppose the application and did not appear at the hearing of the application.

3. Mr David Craig is a director of Endless Solar. Mr Craig appears to be the person responsible for causing Endless Solar to bring the application for reinstatement. No other evidence has been adduced concerning Endless Solar.

4. The application for reinstatement was heard by Judicial Registrar Luxton on 2 March 2023. Judicial Registrar Luxton granted the application and made the following orders on that day:

1. The defendant (ASIC) reinstate the registration of Speedpanel Australia Ltd...