In the matter of Austral Bronze Pty Limited; In the matter of John Darlington Pty Limited; In the matter of John Darlington Pty Limited (No 2) (NSWSC 2020)

LINK TO DECISION

Key Takeaways

The NSWSC has held that a deregistered company can be retrospectively re-registered to preserve damages. The Court reinstated two previously deregistered companies and made ancillary orders declaring that proceedings commenced by two deceased claimants were ‘validly commenced and pending’ against the respective employer as at the time of each of the deceased claimant’s death.

Brief Facts

Mr John Viksne and Mr Barry Fletcher were diagnosed with mesothelioma in July 2019 and September 2019, respectively. To preserve their positions, Mr Viksne and Mr Fletcher commenced proceedings in the Dust Diseases Tribunal (Tribunal) against their former employers prior to their deaths. The named defendants in the tribunal proceedings, Austral Bronze Pty Limited and John Darlington Pty Limited (Employer Companies) had both been deregistered.

The Plaintiffs (being the representatives of Mr Viksne’s and Mr Fletcher’s estates) sought orders under s601AH of the Corporations Act 2001 (Cth) (the Act) to reinstate the registration of the Employer Companies for the purpose of validating proceedings commenced against the deregistered companies.

Judgment

Her Honour Judge Rees made orders that the Employer Companies be reinstated and, immediately upon registration, be wound up and a liquidator subsequently appointed to each Employer Company. Her Honour made ancillary orders that the proceedings commenced by the Deceased Claimants were ‘validly commenced and pending’ against the Employer Companies as at the time Mr Viksne and Mr Fletcher died. This entitled the estates of the Deceased Claimants to make a claim for general damages.

The Plaintiffs gave undertakings not to enforce any judgment obtained in the Tribunal against the Employer Companies but only against the insurer which would ensure there would be no prejudice caused to the Employer Companies on account of their inability to do anything whilst deregistered.

Implications

The findings of the NSWSC will assist to preserve damages for the Estates of plaintiff’s who have unfortunately died due to asbestos related diseases. By retrospectively re-registering companies, claims will be ‘validly commenced and pending’ against a respective employer as at the time of a claimant’s death.