In the matter of Azzurri Group Holdings Pty Ltd [2023] NSWSC 566

In the matter of Azzurri Group Holdings Pty Ltd [2023] NSWSC 566

The inclusion, in the ASIC register of companies, of references to court actions for winding up—based on proper notices but either misleading in context or not required by law, and proven to have substantial adverse commercial consequences—warrants rectification under s 1322(4)(b) of the Corporations Act. The Court has power to order removal of such information as it is not statutorily required and operates to the unfair prejudice of solvent, profitable companies when not the principal relief sought.

Parties
First Plaintiff: Azzurri Group Holdings Pty Ltd (ACN 650 941 352); Second Plaintiff: Azzurri Concrete Group Pty Ltd (ACN 132 759 650); Third Plaintiff: Azzurri Concrete Enterprises Pty Ltd (ACN 641 438 904); Fourth Plaintiff: Azzurri Concrete Pty Ltd (ACN 108 220 435); Fifth Plaintiff: MPD Developments Pty Ltd (ACN 647 337 988); Sixth Plaintiff: Balli Constructions Pty Ltd (ACN 647 338 912); First Defendant: Peter Martino; Second Defendant: 2B6 Enterprizes Pty Ltd (ACN 647 323 911); Third Defendant: Australian Securities and Investments Commission
Jurisdiction
Australia
Judgment Date
26 May 2023
Procedural Posture
Corporations List (equity) Application for Rectification of ASIC Register / Final Orders After Urgent Hearing
Outcome
Orders made for rectification of ASIC's register of companies to remove references to specific Form 519 winding up notices for each plaintiff company; costs reserved to follow outcome of related oppression proceeding.
Legal Topics
Rectification of Registers, Winding Up Applications, Shareholder Oppression, ASIC Registers
Corporations Law Equity Rectification of Registers Winding Up Applications Shareholder Oppression ASIC Registers

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Parties

Azzurri Group Holdings Pty Ltd (ACN 650 941 352)

First Plaintiff

Azzurri Concrete Group Pty Ltd (ACN 132 759 650)

Second Plaintiff

Azzurri Concrete Enterprises Pty Ltd (ACN 641 438 904)

Third Plaintiff

Azzurri Concrete Pty Ltd (ACN 108 220 435)

Fourth Plaintiff

MPD Developments Pty Ltd (ACN 647 337 988)

Fifth Plaintiff

Balli Constructions Pty Ltd (ACN 647 338 912)

Sixth Plaintiff

Peter Martino

First Defendant

2B6 Enterprizes Pty Ltd (ACN 647 323 911)

Second Defendant

Australian Securities and Investments Commission

Third Defendant

Procedural Posture

Corporations List (equity) Application for Rectification of ASIC Register / Final Orders After Urgent Hearing

Legal Issues

  1. 1 Whether the Court should order rectification of the ASIC register under s 1322(4)(b) to remove references to winding up applications lodged against plaintiff companies
  2. 2 Whether inclusion of court action information in the register is misleading or likely to mislead and is causing substantial prejudice
  3. 3 Scope of ASIC's power and statutory obligations in registering such information

Ratio Decidendi

The inclusion, in the ASIC register of companies, of references to court actions for winding up—based on proper notices but either misleading in context or not required by law, and proven to have substantial adverse commercial consequences—warrants rectification under s 1322(4)(b) of the Corporations Act. The Court has power to order removal of such information as it is not statutorily required and operates to the unfair prejudice of solvent, profitable companies when not the principal relief sought.

Court Disposition

Orders made for rectification of ASIC's register of companies to remove references to specific Form 519 winding up notices for each plaintiff company; costs reserved to follow outcome of related oppression proceeding.

Orders

  • Pursuant to s 1322(4)(b) of the Corporations Act 2001 (Cth), ASIC is to rectify the register of companies by removing, for each of the six plaintiff companies, all information and references derived from Form 519 Notifications of Court Action Relating to Winding-Up lodged on 12 May 2023 by or on behalf of the first...
  • Plaintiffs' originating process otherwise dismissed.