Legal proceedings involving a deregistered company

Can I continue legal proceedings started before deregistration?

Once a company is deregistered it ceases to exist as a legal entity. The legal proceedings, so far as they relate to the deregistered company, ended upon the company's deregistration. Anyone wishing to continue the proceedings against the company will need to have it reinstated. ASIC does not now assume conduct of the matter on behalf of the deregistered company. ASIC cannot execute any court document on behalf of the company.

If the deregistered company is the plaintiff/applicant

ASIC is not substituted as the plaintiff and will not pursue a cause of action on behalf of the deregistered company. The former officeholders need to reinstate the company to continue the proceedings.

If the deregistered company is the defendant/respondent

While ASIC/the Commonwealth is vested with the property of a deregistered company it does not stand in the shoes of the deregistered company for all purposes. Only in very limited cases (e.g. where no orders are actually sought against ASIC/the Commonwealth) will ASIC consent to it/the Commonwealth being substituted as the defendant/respondent, in place of the deregistered company. You should enquire with ASIC's Property Law Group at property.law@asic.gov.au before continuing any further.

You should also enquire with ASIC's Registry Services as to whether you are eligible to apply to ASIC for reinstatement to continue the legal proceedings against the company. They can be contacted:

online
asic.gov.au/question;

or

by post
Manager, Registry Services
Australian Securities and Investments Commission
PO Box 4000, Gippsland Mail Centre VIC 3841

If ASIC reinstatement is not available then you will need to obtain a court order for the company's reinstatement to continue the legal proceedings.

Can I start legal proceedings against a deregistered company?

Once a company is deregistered it ceases to exist as a legal entity. If you need to bring legal proceedings against the company then you need to have the company reinstated first.

Bringing legal proceedings against ASIC to assert a claim to deregistered company's property

Under the Corporations Act 2001, ASIC has discretionary powers to deal with the property of deregistered companies. Bringing legal action against ASIC to assert a claim to outstanding property of deregistered companies may not be necessary or appropriate and if you are unsuccessful ASIC may seek legal costs against you. It might be possible to avoid the expense and inconvenience of litigation by first contacting ASIC's Property Law Group to enquire about whether other options are available.

In some instances a secured creditor might require a court order/judgment prior to taking possession and exercising power of sale (e.g. a mortgagee or Council). In these circumstances – and if ASIC's conditions are satisfied – ASIC may consent to being substituted as the defendant in the proceedings (instead of the deregistered company).

For more information please see A deregistered company owes me money.

How to contact ASIC’s Property Law Group

When contacting the Property Law Group please ensure you identify the deregistered company by name and ACN and provide evidence of any property you believe is vested in ASIC (e.g. a recent title search for land). You can contact the Property Law Group:

by email
property.law@asic.gov.au (preferred);

or

by post
ASIC Property Law Group
GPO Box 9827
Brisbane Qld 4001.

Please do not post a copy of any document sent electronically unless requested.

This is only a general guide as to ASIC's approach to the property and rights that pass to ASIC and the Commonwealth on deregistration of a company. This document does not represent legal advice and should not be interpreted as such. Each application or enquiry will be considered on its facts and decided on its individual merits, based on all the information available to ASIC at the time. We encourage you to seek your own professional advice to find out how the law applying to deregistered companies affects your individual circumstances.

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Last updated: 24/01/2013 12:00