Chalker v Clark & Ors

[2008] VSCA 92

Victorian Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Deregistered companies
3. › Reinstatement to register
4. › Discretion under s 601AH(2) Corporations Act 2001 (Cth)
5. › Whether just to reinstate
6. › Position of secured creditor rendering reinstatement futile
7. › Proposed cause of action statute barred
8. › Application speculative
9. › Whether reinstatement power may be used to circumvent limitation period
1. Corporations
2. › Deregistered companies
3. › Reinstatement to register
4. › Power to make ancillary orders under s 601AH(3)(b)
5. › Whether power extends to disregarding limitation periods
6. › Purpose of reinstatement power
1. Appeal
2. › Appellate review of discretionary decisions
3. › Standard of review
4. › Whether discretion miscarried
5. › House v The King principles
6. › Whether irrelevant considerations taken into account
7. › Whether decision unreasonable
1. Practice and Procedure
2. › Costs
3. › Interveners
4. › Interested parties granted leave to intervene as contradictors
5. › Whether entitled to costs where opposition to appeal successful

Quick Take

An application for reinstatement of a deregistered company under s 601AH(2) of the Corporations Act 2001 (Cth) will be refused where the purpose is to circumvent a limitation period by using the reinstated company as a vehicle for reviving a statute-barred cause of action. The observation in Pilarinos v ASIC [2006] VSC 301 at [103] that standing as a person aggrieved leads to reinstatement being just is not an inflexible rule and does not preclude consideration of all relevant factors including the futility of reinstatement.