In the matter of Italasia Pty Ltd [2017] NSWSC 811

In the matter of Italasia Pty Ltd [2017] NSWSC 811

The applicant's claim is time-barred because the loan agreements as pleaded are simply payable on demand, causing the limitation period to run from the dates the loans were advanced over six years ago, and therefore the plaintiff cannot be considered a creditor for purposes of reinstating the company. Reinstatement is thus refused as vexatious and of no utility.

Parties
Plaintiff: Hiromichi Kure; First Defendant: Italasia Pty Ltd (deregistered); Second Defendant: Australian Securities and Investments Commission; Third Defendant: Xin Mei He
Jurisdiction
Australia
Judgment Date
02 June 2017
Procedural Posture
Application for Reinstatement of Company / Originating Process; Ex Tempore Judgment
Outcome
Originating process dismissed with costs
Legal Topics
Reinstatement of Deregistered Company, Limitation Periods for Loan Contracts
Corporations Limitation of Actions Reinstatement of Deregistered Company Limitation Periods for Loan Contracts

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Parties

Hiromichi Kure

Plaintiff

Italasia Pty Ltd (deregistered)

First Defendant

Australian Securities and Investments Commission

Second Defendant

Xin Mei He

Third Defendant

Procedural Posture

Application for Reinstatement of Company / Originating Process; Ex Tempore Judgment

Legal Issues

  1. 1 Whether the company Italasia Pty Ltd should be reinstated under s 601AH(2) of the Corporations Act
  2. 2 Whether the applicant has a viable claim as a creditor against Italasia Pty Ltd or Xin Mei He
  3. 3 Whether the limitation period under s 14 of the Limitation Act 1969 bars the applicant's claim for repayment of loans

Ratio Decidendi

The applicant's claim is time-barred because the loan agreements as pleaded are simply payable on demand, causing the limitation period to run from the dates the loans were advanced over six years ago, and therefore the plaintiff cannot be considered a creditor for purposes of reinstating the company. Reinstatement is thus refused as vexatious and of no utility.

Court Disposition

Originating process dismissed with costs

Orders

  • Originating process dismissed with costs