Onesteel Reinforcing Pty Ltd v Westpoint Constructions Pty Ltd, in the matter of Westpoint Constructions Pty Ltd [2005] FCA 808

Onesteel Reinforcing Pty Ltd v Westpoint Constructions Pty Ltd, in the matter of Westpoint Constructions Pty Ltd [2005] FCA 808

In the unusual circumstances, the Court had power under s 1322(4)(b) to order rectification by removing public ASIC register entries concerning the winding up application and related forms, because the order would reform the register rather than destroy ASIC records. The discretion should be exercised for Westpoint because the statutory demand had not come to its attention, the debt was paid once the proceedings were served, Westpoint was plainly solvent, and the public entries were causing real financing and credit difficulties. The order was conditioned to operate only when the winding up application was discontinued.

Jurisdiction
Australia
Judgment Date
07 June 2005
Procedural Posture
Corporations Winding Up Proceeding and Application to Rectify ASIC Register Under Corporations Act 2001 (cth) S 1322(4)(b) / Orders Made on Westpoint's Application After One Steel Agreed to Discontinue the Winding Up Application
Outcome
Application granted; ASIC directed to remove specified public register references upon discontinuance of the winding up proceedings, with ASIC given liberty to apply for reimbursement of compliance costs and Westpoint ordered to pay ASIC's fixed costs.
Legal Topics
['winding Up' 'asic Register' 'rectification of Register' 'statutory Demand' 'discontinuance of Winding Up Application']
['corporations Law'] ['winding Up' 'asic Register' 'rectification of Register' 'statutory Demand' 'discontinuance of Winding Up Application']

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Procedural Posture

Corporations Winding Up Proceeding and Application to Rectify ASIC Register Under Corporations Act 2001 (cth) S 1322(4)(b) / Orders Made on Westpoint's Application After One Steel Agreed to Discontinue the Winding Up Application

Legal Issues

  1. 1 ['Whether the Court had power under Corporations Act 2001 (Cth) s 1322(4)(b) to direct ASIC to remove public register references to a winding up proceeding and related forms without destroying ASIC records.' 'Whether the discretion to order rectification should be exercised where the winding up application resulted from an unreceived statutory demand, the debt had been paid, Westpoint was solvent, and public register entries were causing financing and credit difficulties.' 'Whether any rectification order should commence only after the winding up application was discontinued.']

Ratio Decidendi

In the unusual circumstances, the Court had power under s 1322(4)(b) to order rectification by removing public ASIC register entries concerning the winding up application and related forms, because the order would reform the register rather than destroy ASIC records. The discretion should be exercised for Westpoint because the statutory demand had not come to its attention, the debt was paid once the proceedings were served, Westpoint was plainly solvent, and the public entries were causing real financing and credit difficulties. The order was conditioned to operate only when the winding up application was discontinued.

Court Disposition

Application granted; ASIC directed to remove specified public register references upon discontinuance of the winding up proceedings, with ASIC given liberty to apply for reimbursement of compliance costs and Westpoint ordered to pay ASIC's fixed costs.

Orders

  • ['Upon the filing of a notice of discontinuance by the plaintiff, or the plaintiff in any other way discontinuing these proceedings, the Court directs the Australian Securities and Investments Commission to remove from any publicly-available register which it keeps pursuant to the Corporations Act 2001 (Cth) as soon...