PLAINTIFF SEEKS FOR REINSTATEMENT OF THE REGISTRATION OF THE DEFENDANT IN ORDER TO CLAIM FOR DAMAGES

In the matter of Exfrig Pty Ltd (deregistered) [2021] NSWSC 84 (15 February 2021)

This is a proceeding against a deregistered company where the plaintiff seeks the reinstatement of the deregistered defendant in order to commence proceedings and claim for damages.

Facts:

The plaintiff in this proceeding, Mr Ronald Bainbridge, passed away on 5 July 2020. On 9 April 2020, Mr Bainbridge commenced proceedings in the Dust Diseases Tribunal of New South Wales (the  Tribunal) against Exfrig Pty Ltd (formerly Frigrite Limited) (the  Company) for the Company’s alleged negligence and/or breach of employment contract as a result of which he claimed to have been exposed to and inhaled asbestos dust and fibre whilst employed by the Company between January 1969 and November 1977 (the Tribunal proceedings). The damages claimed in Mr Bainbridge’s amended statement of claim filed in the Tribunal proceedings on 7 May 2020 include general damages for injury (mesothelioma and shock), pain and suffering and decreased life expectancy.

Mr Bainbridge commenced the present proceedings by originating process filed on 19 June 2020, seeking orders under that the Australian Securities and Investments Commission (ASIC) reinstate the registration of the Company, an order that the Company be wound up upon reinstatement, an order granting leave to Mr Bainbridge nunc pro tunc  to commence the Tribunal proceedings and an order that no step be taken by Mr Bainbridge to enforce any judgment or verdict obtained in the Tribunal proceedings except by resort to the indemnity provided by the Insurers Guarantee Fund (the  IGF) established under S.227 of the  Workers Compensation Act 1987

Issue: Should the registration of the company be reinstated?

Law:

• Corporations Act 2001 SS.601AG,  601AH

Analysis:

It is in the public interest that Mr Bainbridge’s estate should have an opportunity to pursue the cause of action against his former employer for allegedly negligently exposing him to asbestos, in circumstances where the cause of action was discovered many years after deregistration of the Company and a very short time before Mr Bainbridge’s death, the Company’s insurer is itself deregistered and the IGF has been established by the Workers Compensation Act for payment of claims, judgments or awards arising from or relating to policies of insurance issued by insolvent insurers.

It is just that the Company’s registration be reinstated and that it is appropriate to make an ancillary order under S.601AH(3) validating the commencement of the Tribunal proceedings so as to cure the obstacle that the Company’s deregistration otherwise presented to Mr Bainbridge’s commencement of those proceedings and will otherwise continue to present to the pursuit of the claims by his estate.

Conclusion: Court orders that ASIC reinstate the registration of Exfrig Pty Limited (formerly Frigrite Limited).

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