Deputy Commissioner of Taxation v Australian Securities and Investments Commission [2011] FCA 219

Deputy Commissioner of Taxation v Australian Securities and Investments Commission [2011] FCA 219

The application failed because the deregistered companies had no legal existence when the reinstatement and winding-up orders were made and therefore were not persons whose rights were directly affected and could not be necessary parties. The orders reinstated the companies and, upon reinstatement, wound them up at the same moment, so the White City Tennis Club principle did not apply. O 35 r 7(2)(a) was not engaged because the companies were not actual parties, and Mr Binetter's status as an interested person heard under r 2.13(1)(c) did not make him a person whose rights were directly affected or entitle him to have the orders set aside.

Jurisdiction
Australia
Judgment Date
11 March 2011
Procedural Posture
Corporations Application to Set Aside Orders for Reinstatement of Registration and Winding Up of Companies / Interlocutory Application Filed and Heard on 9 March 2011 After Orders Made on 16 December 2010
Outcome
Gary Robert Binetter's application was dismissed with costs.
Legal Topics
['reinstatement of Deregistered Companies' 'winding Up' 'necessary Parties' 'interested Person Heard Without Becoming a Party' 'setting Aside Entered Orders']
['corporations Law' 'civil Procedure'] ['reinstatement of Deregistered Companies' 'winding Up' 'necessary Parties' 'interested Person Heard Without Becoming a Party' 'setting Aside Entered Orders']

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Procedural Posture

Corporations Application to Set Aside Orders for Reinstatement of Registration and Winding Up of Companies / Interlocutory Application Filed and Heard on 9 March 2011 After Orders Made on 16 December 2010

Legal Issues

  1. 1 ['Whether Advance Finances Pty Ltd and Civic Finance Pty Ltd were necessary parties to any winding-up order made in relation to them when they were deregistered and did not exist at the time the orders were made.' 'Whether Gary Robert Binetter, as an interested person and former director, had sufficient interest or entitlement to apply to set aside the winding-up orders.' 'Whether O 35 r 7(2)(a) of the Federal Court Rules applied on the basis that the orders were made in the absence of a party.' 'Whether the winding-up orders should be stayed pending reinstatement of the registration of the companies.']

Ratio Decidendi

The application failed because the deregistered companies had no legal existence when the reinstatement and winding-up orders were made and therefore were not persons whose rights were directly affected and could not be necessary parties. The orders reinstated the companies and, upon reinstatement, wound them up at the same moment, so the White City Tennis Club principle did not apply. O 35 r 7(2)(a) was not engaged because the companies were not actual parties, and Mr Binetter's status as an interested person heard under r 2.13(1)(c) did not make him a person whose rights were directly affected or entitle him to have the orders set aside.

Court Disposition

Gary Robert Binetter's application was dismissed with costs.

Orders

  • ['The application of Gary Robert Binetter filed in Court on 9 March 2011 be dismissed.' "Gary Robert Binetter pay the Deputy Commissioner of Taxation's costs of the application as agreed or assessed."]