Deregistered company books and records
While books and records of a deregistered company may vest in ASIC, they should not be sent to ASIC. Any books and records sent to ASIC will be returned unless we specifically requested them.
Who should hold the books and records?
Under the Corporations Act 2001 (the Act):
- the directors of the company immediately before deregistration must keep the company’s books for three years after deregistration (see s601AD(5) of the Act) and
- a liquidator of the company must generally keep the company's books and records for a period of five years from the end of the external administration (see s70-35(1) of Schedule 2 – Insolvency Practice Schedule (Corporations) to the Act).
Details of a company's former directors or liquidators can be obtained by purchasing an historical company extract.
Accessing documents from the Australian Taxation Office (ATO)
ASIC generally has no objection to officeholders at the date of deregistration obtaining a copy of the deregistered company's documents from the ATO. However, ASIC understands that the ATO's current position is that only the company itself can obtain such documents. Thus the company would need to be reinstated.
If you wish to query or discuss the ATO's position then please contact the ATO directly (contact details for the ATO are available at ato.gov.au).
Service of subpoenas/notices to produce on ASIC to obtain documents belonging to deregistered companies
ASIC is not normally in possession of the books and records of a deregistered company. Nor does ASIC grant access to a deregistered company's books in another party's possession.
If a litigant seeks the books and records of a deregistered company, they may wish to consider requesting the documents directly from the party in actual possession of them. A copy of the subpoena/notice to produce may be served on ASIC by email property.law@asic.gov.au for our information. Please note that ASIC does not require it be joined as a party to the court proceedings and can provide a letter outlining ASIC's position, which may be provided to the court.
Alternatively, a litigant may consider applying for reinstatement of the deregistered company and then seek the books and records from the company directly.
Legal professional privilege over documents belonging to deregistered companies
It is ASIC's policy to neither assert nor waive privilege on behalf of deregistered companies – to the extent that the company's privilege vests in ASIC. This is because:
- while ASIC may be vested with a company's books due to deregistration, it has no specific knowledge of the circumstances surrounding the creation of the documents
- it is not appropriate for ASIC to determine whether or not the nature of the documents is such as to attract the privilege
- other remedies are available and more appropriate e.g. reinstatement of the company (for it to waive or assert the privilege itself) and/or apply for a court order that the documents sought do not attract privilege and that the party in possession produce those documents to the applicant.
If you are a former officeholder or member of a deregistered company and wish to claim privilege over any documents on behalf of the deregistered company, then you should seek your own legal advice.
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.