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ACN 009 009 072 Pty Ltd (In Liquidation) vs. Australian Securities and Investments Commission - (01 Jul 2022)

Court can make a winding up order on the just and equitable ground by reason of mismanagement or lack of confidence in the conduct and management of the company's affairs


By originating process which was amended on 14 February 2022, the Plaintiff seeks orders under the Corporations Act ,2001 for the reinstatement of Infra Tech Projects Pty Ltd. (Infra Tech), the appointment of liquidators to Infra Tech and for leave to proceed against Infra Tech, a company in liquidation.

It is the usual position that when a company is reinstated, it is reinstated in the form in which it existed prior to its deregistration. However, it is open to the court to make orders for the winding up of the company on reinstatement, if there is a basis for such an order to be made. It is apparent from the company search of Infra Tech that the sole director and company secretary ceased to be a director and secretary on 24 July 2017. There is no evidence to suggest that any person will act as director and company secretary of Infra Tech in the event the company is reinstated.

In this case, the plaintiff relied on Section 461(1)(k) of the Act, that 'the Court is of an opinion that it is just and equitable that the company be wound up'. It is well-established that the court can make a winding up order on the just and equitable ground by reason of mismanagement, misconduct or lack of confidence in the conduct and management of the company's affairs.

It is not in dispute that if reinstatement is ordered, there are no directors of the company or any likelihood that any will be appointed. In present circumstances, given the purpose for which the company is to be reinstated, present Court is satisfied that it is just and equitable for the company to be wound up on reinstatement. Present Court consider it is appropriate to make an order winding up the company and to appoint the liquidator who has consented to act. It is appropriate for leave to be granted to the plaintiff to pursue the proceedings against Infra Tech pursuant to Section 471B of the Act.


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