Once a company is deregistered within Australia, it ceases to exist as a legal entity and can no longer trade. Should you meet certain criteria, you may be able to reinstate the company – effectively restoring it to its form prior to deregistration. It is possible to reinstate a deregistered company by either applying directly to the Australian Securities and Investments Commission (ASIC) or applying to a court to order ASIC to act.
What does it mean if a company is deregistered?
If a company is deregistered, its name and ABN/ACN are struck off ASIC records and the Australian Business Register (ABR). This effectively ceases the entity’s existence: it can no longer be party to any new or existing legal disputes, it can no longer trade, and all company property is inaccessible to directors. Any deregistered company still trading is acting unlawfully.
When would a company be deregistered?
There are a number of pathways that can lead to deregistration:
- Voluntary deregistration: if your company has asset holdings totalling under $1,000 and has not yet declared insolvency, you may be eligible to apply for voluntary deregistration. Lodged to ASIC through Form 6010;
- Winding up a solvent company: appropriate in instances where the company is solvent but fails to meet the eligibility criteria for voluntary deregistration e.g. has assets totalling over $1,000;
- Winding up an insolvent company: usually involves the appointment of an administrator or liquidator, who is designated to settle outstanding company debts or obligations of the insolvent entity according to ASIC regulations;
- ASIC-initiated deregistration: ASIC may independently assess the business to have ceased trading, or not paid fees such as the business review fee, and choose to commence the deregistration process externally;
Why might you want to reinstate a deregistered company?
You might apply for the reinstatement of deregistered company because you feel as though the business has a longer life to live and closed its doors too soon. Perhaps you made a retirement call too early, or perhaps you feel aggrieved as a result of the deregistration process implemented by ASIC. There are any number of reasons that former directors have chosen to attempt reinstating a company, often depending on why the business came to be deregistered in the first place.
How to reinstate a deregistered company
As a director, secretary or member of the company, you:
- “must have been a director, secretary or member of the company at the time of deregistration;
- must be able to confirm that upon reinstatement the company will be able to pay its debts as and when they fall due;
- cannot be disqualified from managing corporations; and
- provide supporting documentation as to why the company should not have been deregistered (where required).
If you applied for voluntary deregistration, you will need to prove that the declaration made on the application for voluntary deregistration was incorrect at the time the company was deregistered. If we deregistered the company, you may need to prove that it was an error.”
To apply to ASIC for reinstatement of a company as a third party, you must:
- “have started legal proceedings against the company before its deregistration; and
- be able to provide copies of court documentation to evidence the legal proceedings.”
You must then follow the steps below:
Step 1: Check the name
Use the ASIC Check Name Availability search function to ensure that the company name is still available for you to use.
Should the former name no longer be available for you to use, ASIC will reinstate the company (if successful in your application) with the Australian Company Number (ACN) followed by the legal elements as its name.
If the company name is still available after searching, you can lodge a form to reserve it so that it’s available if your reinstatement application is successful. To reserve the company name, fill and lodge Form 410 Application for reservation of a name (Form 410). This will reserve the name for a two month period if approved by ASIC.
Step 2: Get an estimate of the fee
Use the ASIC reinstatement calculator to generate an approximation of the fee required for reinstatement. You will need access to Microsoft Excel in order to complete this step.
Step 3: Request further fee details from ASIC
Once you’ve used the reinstatement calculator, if you wish to proceed then you can enquire for more information. To do this, send ASIC an online enquiry requesting a detailed estimate of the fees to be paid.
In your online enquiry, you will need to provide:
- “the deregistered company name and ACN
- your association with the company
- your registered agent number and firm name (if applicable), and
- the full name of the company director, secretary or member you are applying on behalf of.”
You will then, within 28 days, receive an email outlining the fees that will need to be paid for reinstatement. Additionally, this email will contain Form 581 Application for ASIC Reinstatement (Form 581).
Step 4: Submit the application
To formally apply for the reinstatement of the company, you will need to supply the filled Form 581, as well as the full payment of fees requested in step 3 by payment options including BPAY or cheque. Once the payment has been received and the application has been submitted, it may take ASIC up to 28 days to make a decision. If successful ASIC will commence reinstating ABN, name and so on. The company may not trade during this deliberation time.
What is the process for applying to a court to order ASIC to reinstate a deregistered company?
Any applications to have a court order for ASIC to reinstate a company must be made to a ‘superior court’ such as the Supreme Court, the Federal Court or the Family Court. As with an application directly to ASIC, the regulations governing this process are outlined in Regulatory Guide 83 Reinstatement of companies (RG 83).
Step 1: Apply to the court to serve ASIC with the application for reinstatement
A court will generally want to ascertain ASIC’s position before making their decision on the reinstatement of a company. They will, therefore, usually serve ASIC with the application for company reinstatement in order to make this position clear
“Applications in all State/Territory courts should be served on ASIC:
- by email to: firstname.lastname@example.org
- or by post (if email is unavailable) to:
Court Reinstatements c/o ASIC Property Law Group
GPO Box 9827
Brisbane QLD 4001
Step 2: Formally lodge the order with ASIC
Once you have obtained the court order, complete with an original stamped seal of the court, you must send it to ASIC along with a filled Cover page for office copy of a court order (Form 105).
Send the original court order and Form 105 to:
Australian Securities and Investments Commission
PO Box 4000
Gippsland Mail Centre VIC 3841
Once ASIC has received the court order, it will reinstate the company’s registration within five business days from when it received the order.
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