Restoration of the names of registrable Australian bodies and foreign companies to the register

This guide is concerned with applications for restoration of names of registrable Australian bodies and foreign companies to the ASIC register and covers:

  1. Administrative restoration of a registrable Australian body (Body) or a foreign company to the register subsections 601CC(7) and 601CL(8) respectively.
  2. Applying for a court order to restore the name of a Body or a foreign company to the register under subsections 601CC(8) and 601CL(9) respectively.
  3. The effect of restoration of a name of a Body or a foreign company to the register.

A. Administrative restoration of the name of a Body or Foreign Company to the register

  1. ASIC will restore the name of a Body or a foreign company to the register under subsections 601CC(7) and 601CL(8) of the Corporations Act 2001(the Act) respectively (administrative restoration), if it is demonstrated to our satisfaction that a Body or a foreign company was struck off the register as a result of ASIC error.
  2. In most cases, ASIC will consider restoring the name of a Body or a foreign company to the register where ASIC is satisfied that, with the benefit of hindsight, deregistration occurred as a result of an error on its part where:
    1. there was an administrative oversight in the procedure leading to the strike off action; and
    2. the Body was carrying on business, or the foreign company was carrying on business in Australia, at the time its name was struck off the register.
  3. If satisfied that subparagraph 2(a) above applies to a particular Body or foreign company ASIC will, subject to being satisfied that subparagraph 2(b) above also applies, administratively restore the name of the body or foreign company to the register under subsections 601CC(7) or 601CL(8) whichever is applicable.
  4. Otherwise, if ASIC is satisfied that paragraph 2(b) applies to a particular Body or foreign company, ASIC will only restore the name of the Body or foreign company to the register under subsections 601CC(7) or 601CL(8), whichever is applicable, if the conditions in paragraph 18 have been satisfied.
  5. The information provided to ASIC must take the form of a statutory declaration. In the case of a Body, the statutory declaration must be made by a director (or equivalent) and, in the case of a foreign company, by a director or secretary or by a person who will be the local agent of the foreign company, if the name of the Body or the foreign company were to be restored to the register.
  6. In the case of a Body, if it originally had its name struck off the register on the basis of a written notice lodged under subsection 601CC(1) which advised ASIC that the Body was not carrying on business, an application for administrative restoration on the ground of error will not be considered by ASIC. In these circumstances an applicant should apply to a Court under subsection 601CC(8).
  7. In the case of a foreign company, if it originally had its name struck off the register on the basis of a written notice lodged under subsection 601CL(2) which advised ASIC that the foreign company was not carrying on business in Australia, an application for administrative restoration on the ground of error will not be considered by ASIC. In these circumstances an applicant should apply to a Court under subsection 601CL(9).

Underlying principles

  1. ASIC can only restore a name to the register in accordance with applicable provisions of the Act. Where paragraphs 8 or 9 apply, ASIC cannot exercise the power of restoration of a name merely because it suits the convenience of the applicant to have the name of the Body or foreign company restored to the register. An applicant in either case would need to apply to a Court under subsections 601CC(8) or 601CL(9) respectively.
  2. ASIC may write off any fees if the name of the Body or the foreign company was struck off because of an administrative error on ASIC’s part.
  3. The basis for ASIC to strike off the register the name of a Body or foreign company is because ASIC had reasonable cause to believe that, in the case of a Body, it was not carrying on business and, in the case of a foreign company, it was not carrying on business in Australia. This conclusion is on the basis that where ASIC has reasonable cause to believe that the Body or foreign company is not carrying on business or carrying on business in Australia respectively, a letter can be sent by ASIC to the Body or foreign in accordance with subsections 601CC(2) and 601CL(3). If no answer showing cause to the contrary is received, a notice is published in the Gazette with a view to striking the name of the Body or foreign company from the Register.
  4. In the case of a Body, there is no obligation under the Act to lodge financial statements as is required for a foreign company. The criteria for considering whether a Body is not carrying on business is therefore not as clear as for a foreign company. The only documents required to be lodged by Bodies are "change" documents, for example, those required under subsection 601CT(3) (change of registered office) and subsection 601CV(1) (changes in the constitution and directors). A failure to notify under these provisions may not render a Body to be considered as not carrying on business. However, a reference by a third party and subsequent investigation by ASIC could lead ASIC to have reasonable cause to believe that a Body is not carrying on business (subsection 601CC(2)). In any event, where ASIC has reasonable cause to believe the Body is not carrying on business and the Body fails to show cause to the contrary in accordance with subsections 601CC(2) and (3), ASIC will strike off the name from the register in accordance with subsection 601CC(4).
  5. In the case of a foreign company, ASIC can determine that it may not be carrying on business in Australia by its failure to lodge cash flow statements, balance sheets, profit and loss statements or an annual return (section 601CK), or other required documents under subsection 601CT(3) and subsection 601CV(1). On the grounds that ASIC has have reasonable cause to believe the foreign company is not carrying on business in Australia (subsection 601CL(2)), ASIC can proceed under subsections 601CL(3), (4) and (5) to strike the company's name off the register should the foreign company fail to show cause to the contrary.

Making application

  1. Where ASIC receives an application seeking the restoration to the register of a Body's name under subsection 601CC(7) or a foreign company's name under subsection 601CL(8), the Body’s or foreign company's name will not be restored to the register unless information in writing is provided sufficient to substantiate the claim that the name of the Body or foreign company was struck off the register as a result of an ASIC error.
  2. In general, this can be done by statutory declaration stating that the Body or the foreign company (as the case may be) was carrying on business or carrying on business in Australia (as the case may be) at, and subsequent to, the time the name of the Body or the foreign company was struck off the register and that the body or foreign company is currently carrying on business or carrying on business in Australia.
  3. In the case of a Body, the declaration must be made by a director (or equivalent) of the Body, or, in the case of a foreign company, by a director or secretary or by a person who will be the local agent of the company, if the name of the Body or the foreign company is to be restored to the register.
  4. 18. In addition all the following conditions must be satisfied:
    1. any outstanding, balance sheets, cash flow statements, profit and loss statements (for foreign companies), annual returns or other required documents are submitted to ASIC together with payment of all lodging and late fees arising from the late lodgement of the documents;
    2. any outstanding penalties due under penalty notices issued to either the Body (or any one or more of the Body's current or former officers) or foreign company (or its current or former local agent) have been paid in full;
    3. the prescribed application fees for restoration are paid;
    4. in the case of a foreign company claiming exemption under subsection 601CK(7) or, in the case of a Body, information in writing sufficient to satisfy ASIC that it is solvent. If the foreign company lodges financial statements with ASIC, it will often be enough to rely on them in satisfaction of the test of solvency; and
    5. payment of all lodging, late lodgement, penalty and application fees which are due under paragraphs (a), (b) and (c), must be paid.
  5. ASIC may write off the fees referred to in paragraph 18(c) if those fees were incurred as a result of an error on ASIC's part in striking off the name of the body or the foreign company from the register. However, the fees that would normally be paid had the name of the body or the foreign company not been struck off cannot be written off.
  6. Written applications for administrative restoration should be addressed to:

    Registration & Audit Team
    Information Processing Centre
    Australian Securities and Investments Commission
    PO Box 4000
    Gippsland Mail Centre VIC 3841

    You can contact us on 1300 300 630 for information and assistance.

  7. ASIC will consider each application for restoration of the name of a Body or foreign company to the register on its own merits. Partial satisfaction of the requirements outlined in this Information Sheet will not be sufficient to enable restoration of a name to the register.
  8. ASIC must form a view about the state of affairs at the time the Body or foreign company was deregistered and consider whether it is appropriate, under the Act, to restore the name to the register.

B. Applying for a court order to restore the name of a Body or a Foreign Company to the register

  1. Where the name of a Body or foreign company has been struck off the register by our error or otherwise, an aggrieved person may apply to the Court for an order restoring the name of the Body or foreign company to the register because the body the Body was carrying on business or the foreign company was carrying on business in Australia.
  2. An application for the restoration of the name of a Body or foreign company to the register can be made to the Supreme Court of any State or Territory, or the Federal Court of Australia.
  3. In part, the rules of the relevant court will govern the means of making an application to the court. These rules may not be uniform throughout Australia. In some jurisdictions, an applicant is required to serve a copy of all documents on ASIC and ASIC is required to be named as a respondent. Even in those jurisdictions that do not have such an obligation, the ordinary practice is to serve a copy of the documents on ASIC so ASIC can determine whether to make any submissions in relation to the application. You should check the relevant Rules of Court before drafting the court documents for the application.
  4. When an aggrieved person applies to a Court for restoration of the name of a Body or foreign company to the register under subsections 601CC(8) and 601CL(9) respectively ASIC will consider the material provided in support of the application.
  5. The application for restoration of the name of a Body or foreign company to the register is to be made to the Court. It is a matter for the Court to determine if it is satisfied that, at the time that the name of the Body or foreign company was struck off the register, the Body was carrying on business or the foreign company was carrying on business in Australia, or otherwise that it is 'just' for the name of the Body or foreign company to be restored to the register.
  6. Where application is made to the Court for restoration to the register of the Body’s or foreign company's name ASIC will not usually oppose the application, subject to our consideration of the material provided in support of the application, if:
    1. the application has been made under the appropriate provisions of the Act;
    2. the application falls within the time limit set by subsections 601CC(8) and 601CL(9) respectively, being within 15 years of the relevant strike off action;
    3. the applicant shows that it is "a person who is aggrieved" by the strike off action. This is a condition for applying under the Act. The applicant does not have standing unless this is made out;
    4. the application states the reasons/grounds on which the application is made, that is, in the case of a Body, it was carrying on business at the time its name was struck off the register or, in the case of a foreign company at the time its name was struck off the register, carrying on business in Australia, or that the court should be otherwise satisfied that it is just for the name of the Body or the foreign company to be restored to the register, and provides satisfactory material in support of the grounds;
    5. in the case of a Body, or foreign company which lodges financial statements with ASIC under a State law, the relevant applicant or local agent undertakes:
      1. to lodge notification of registered office, notification of change of officeholders and any outstanding annual returns, financial statements and other required documents with ASIC;
      2. to pay to ASIC any outstanding fees and penalties;
      3. to cause to be met any outstanding judgments against the Body or foreign company or officer of the Body or any officer or local agent of the foreign company in respect of the failure to lodge any document required to have been lodged with ASIC within 14 days of the applicant lodging the restoration order with ASIC; and
      4. in the case of a foreign company, a fresh appointment of a local agent should be made within 21 days of restoration (if applicable) and notice of the appointment being lodged with ASIC within the prescribed period; and
  7. the applicant pays our costs in considering the application. These costs must be paid either directly to ASIC before or immediately on the hearing of the application. Our costs will not usually be related to the success or otherwise of the application. The applicant must provide evidence of agreement to this arrangement.
  8. The above matters can generally be addressed in the affidavits filed in support of the application. ASIC cannot say whether it will oppose an application until it has considered the reasons/grounds set out in the affidavit referred to in paragraph 28(d) and any other material that may be provided to the court.
  9. Ordinarily, ASIC will not appear at the hearing where ASIC does not oppose an application for the restoration of a name of a Body or foreign company to the register. Instead, ASIC will provide a letter advising that ASIC has no objection to the application and does not propose to appear at the hearing of the matter. The letter must be tendered to the Court by the applicant at the hearing as an indication of our attitude to the application. It is unusual for a Judge, Master or Registrar to proceed to hear the application unless our views on the matter are made known.

Lodgement of Court Order with ASIC

  1. Under sections 601CC(9) and 601CL(10) the Court, if it decides to make an order restoring the name of the body or foreign company to the register, it does so by directing ASIC to restore the name to the register as ASIC keeps and maintains the register. For this reason, a copy of the order must be lodged with ASIC.
  2. The order directing ASIC to restore the name to the register must be accompanied by form 105 being a cover page identifying the legislative provision under which the order was made and the nature of the order.
  3. The Court has a wide discretion when determining whether the name should be restored to the register, and the fact that ASIC may not object to the restoration of the name to the register does not mean that the Court will automatically approve its restoration.

Restoration of the name of a Body or foreign company to the register which were struck off under the Companies ([State]) Code or previous companies legislation

  1. Subsections 601CC(8) and 601CL(9) do not apply to a Body or foreign company deregistered under the Companies Codes of the various States and Territories or previous companies legislation. The Body or foreign company can still be reinstated but application must be made to the Supreme Court of the jurisdiction in which the Body or foreign company was registered or must be accompanied by an application under the Jurisdiction of Courts (Cross-Vesting) Acts.
  2. ASIC will apply the conditions in paragraph 28 when considering applications under the Companies Codes or previous companies legislation.

C. Effect of restoration of the name of a Body or Foreign Company to the register

  1. When a Body’s or foreign company’s name has been restored to the register, either by administrative restoration under subsections 601CC(7) and 601CL(8) respectively, or by order of the Court under 601CC(10) or 601CL(11) respectively, the name of the Body or foreign company is taken to have never been struck off the register (subsections 601CC(10) and 601CL(11) respectively).
  2. The Body and foreign company are naturally subject to all the requirements of the Act once restored to the register.

For further information contact us on 1300 300 630.

This is Information Sheet 66 (INFO 66). Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.

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Last updated: 24/01/2013 12:00