This post discusses how a company, which existed and was deregistered before the Corporations Act 2001 (Cth) and before the Corporations Act 1989 (Cth) can be reinstated.
s601AH of the Corporations Act provides for the reinstatement of a company that has been deregistered. s601AH provides as follows:
Reinstatement by ASIC
(1) ASIC may reinstate the registration of a company if ASIC is satisfied that the company should not have been deregistered.
Reinstatement by Court
(2) The Court may make an order that ASIC reinstate the registration of a company if:
(a) an application for reinstatement is made to the Court by:
(i) a person aggrieved by the deregistration; or(ii) a former liquidator of the company; and(b) the Court is satisfied that it is just that the company's registration be reinstated.
(3) If the Court makes an order under subsection (2), it may:
(a) validate anything done between the deregistration of the company and its reinstatement; and(b) make any other order it considers appropriate.
Note: For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2).
ASIC to give notice of reinstatement
(4) ASIC must give notice of a reinstatement in the Gazette . If ASIC exercises its power under subsection (1) in response to an application by a person, ASIC must also give notice of the reinstatement to the applicant.
Effect of reinstatement
(5) If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.The definition of 'company' under the Corporations Act is 'a company registered under this act...'. This immediately gives the impression that s601AH will not apply to companies registered under previous companies legislation which applied before 2001. However, s1378 Corporations Act provides for the carrying over of companies registered under previous companies legislation, and therefore the application of the Corporations Act to those companies. Unfortunately, s1378 does not apply to companies that have been registered and deregistered under old companies acts.
s1378 provides as follows:
In Parker v Australian Asbestos  NSWSC 520 this was recognised as a problem for reinstatement of old companies which have been deregistered under previous companies legislation, particularly pre-1991 corporations legislation. At  to  Austin J discussed the issue:(a) before the commencement, a company was registered under Part 2A.2 of the old Corporations Law of a State or Territory in this jurisdiction; andthe registration of the company has effect (and may be dealt with) after the commencement as if it were a registration of the company under Part 2A.2 of this Act as a company of whichever of the company types listed in subsection (2) corresponds to its previous class and type.
(b) that registration was still in force immediately before the commencement;
8 The first question to consider is whether the Court can order the reinstatement of the three companies under s 601AH of the present Corporations Act. Section 601AH (2) permits the Court to make an order that the Commission reinstate the registration of a company if, relevantly, the application for reinstatement is made to the Court by a person aggrieved by the deregistration, and the Court is satisfied that it is just that the company's registration be reinstated. Section 601AH of the present Corporations Act is in substance identical with s 601AH of the previous Corporations Law. Section 601AH was introduced into the Corporations Law by the Company Law Review Act 1998, which commenced on 1 July 1998. The 1998 Act also introduced the transitional provision in s 1362CH, to which I shall refer.For that reason recent authorities have formed the view that s601AH is not the appropriate route for reinstatement of a company that was registered and deregistered under pre-1991 corporations legislation. However there have been diverging authorities on whether the Corporations Act empowers the Court to reinstate a company deregistered under pre-1991 corporations legislation.
9 The Court's jurisdiction to make a reinstatement order under s 601AH is available only in the case of a "company". The word "company" is defined in s 9 of the Corporations Act, to mean a company registered under the Corporations Act. Section 1378 has the effect that if a body was registered as a company under the former Corporations Law and the registration was still in force immediately before the commencement of the Corporations Act on 15 July 2001, then as from 15 July 2001 the body is treated as if it were registered as a company under the new Corporations Act. Consequently, the body is a "company" for the purposes of the definition in s 9 of the Corporations Act, and if it is deregistered after the new Act commenced on 15 July 2001, the Court has jurisdiction to reinstate it under s 601AH (2).
10 For the sake of clarity, consider next the case of a body that was a company formed and registered under the Corporations Law of New South Wales, and was deregistered before 15 July 2001. That body is not a "company" within the definition in s 9 of the Corporations Act, since it has not been registered under the Corporations Act and is not deemed by s 1378 to have been so registered. Therefore the present power of the Court in s 601AH (2) of the Corporations Act could not be used to reinstate that body, absent any supplementation from the transitional provisions to which I shall refer below.
In the next post I will discuss the avenues for reinstatement for such companies and the state of the authorities.