Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de-registered) [2024] FCA 144

Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de-registered) [2024] FCA 144

The plaintiffs (at least Erbin and Rawbin) are persons aggrieved within s 601AH(2) as they have arguably subsisting scheme-based claims against Shield, which cannot be pursued while Shield is deregistered. Although the Binetter Entities' Deed provides for releases and covenants not to sue, it is at least arguable on current evidence that such deed could be set aside for breach of fiduciary duty. It is just to reinstate Shield due to the administrative nature of its deregistration, the public interest in pursuing recoveries in insolvency, absence of sufficient prejudice, and no disentitling delay. Shield should be reinstated and wound up, but Mr Sheahan should not be appointed as...

Parties
First Plaintiff: Ligon 158 Pty Limited (in liquidation); Second Plaintiff: Erma Nominees Pty Limited (in liquidation); Third Plaintiff: Erbin Finances Pty Limited (in liquidation); Fourth Plaintiff: Rawbin Finances Pty Limited (in liquidation); Fifth Plaintiff: John Sheahan (as liquidator of the first to fourth plaintiffs); First Defendant: Shield Holdings Australia Pty Limited (de-registered); Second Defendant: Australian Securities and Investments Commission; Interested Party: Mr Andrew Binetter; Interested Party: Mr Michael Binetter
Jurisdiction
Australia
Judgment Date
06 March 2024
Procedural Posture
Corporations – Application for Reinstatement of De Registered Company / Judgment After Contested Application
Outcome
Application granted in part; Shield Holdings Australia Pty Limited to be reinstated and wound up, but a liquidator other than Mr Sheahan to be appointed. Limitation period suspended as ordered. Costs and appointment to be determined subsequently.
Legal Topics
Reinstatement of Deregistered Company, Winding Up on Just and Equitable Ground, Liquidator Appointment, Effect of Releases and Deeds, Suspension of Limitation Periods
Corporations Law Corporate Insolvency Reinstatement of Deregistered Company Winding Up on Just and Equitable Ground Liquidator Appointment Effect of Releases and Deeds Suspension of Limitation Periods

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Parties

Ligon 158 Pty Limited (in liquidation)

First Plaintiff

Erma Nominees Pty Limited (in liquidation)

Second Plaintiff

Erbin Finances Pty Limited (in liquidation)

Third Plaintiff

Rawbin Finances Pty Limited (in liquidation)

Fourth Plaintiff

John Sheahan (as liquidator of the first to fourth plaintiffs)

Fifth Plaintiff

Shield Holdings Australia Pty Limited (de-registered)

First Defendant

Australian Securities and Investments Commission

Second Defendant

Mr Andrew Binetter

Interested Party

Mr Michael Binetter

Interested Party

Procedural Posture

Corporations – Application for Reinstatement of De Registered Company / Judgment After Contested Application

Legal Issues

  1. 1 Whether plaintiffs are persons aggrieved within s 601AH(2)(a)(i) of the Corporations Act 2001 (Cth)
  2. 2 Whether it is just to reinstate the company's registration under s 601AH(2)(b)
  3. 3 Whether a winding up order should be made upon reinstatement and, if so, who should be appointed as liquidator

Ratio Decidendi

The plaintiffs (at least Erbin and Rawbin) are persons aggrieved within s 601AH(2) as they have arguably subsisting scheme-based claims against Shield, which cannot be pursued while Shield is deregistered. Although the Binetter Entities' Deed provides for releases and covenants not to sue, it is at least arguable on current evidence that such deed could be set aside for breach of fiduciary duty. It is just to reinstate Shield due to the administrative nature of its deregistration, the public interest in pursuing recoveries in insolvency, absence of sufficient prejudice, and no disentitling delay. Shield should be reinstated and wound up, but Mr Sheahan should not be appointed as...

Court Disposition

Application granted in part; Shield Holdings Australia Pty Limited to be reinstated and wound up, but a liquidator other than Mr Sheahan to be appointed. Limitation period suspended as ordered. Costs and appointment to be determined subsequently.

Orders

  • Parties to provide proposed minutes of order within 14 days.
  • Parties to confer on costs and submit minutes or propose timetable if not agreed.