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Folio iv · From ASIC

Reinstating a deregistered company

A deregistered company can sometimes be reinstated, either by ASIC or by order of a court, and is then treated as if it had never been deregistered. Only some people can apply, and only for some reasons.

General information only, not legal advice. ASIC’s page on reinstating a company after deregistration is the place to check.

What reinstatement does

Deregistered Registered

After a court-ordered reinstatement, ASIC says the company’s status changes to ‘registered’.

A reinstated company continues to exist as if it had not been deregistered. The directors before deregistration become directors again from the reinstatement, with the duties and obligations of directors. ASIC’s page on voluntary deregistration adds that all property vests back with the company.

The ATO says it treats a company reinstated by ASIC as if it had never been deregistered. Lodgments made during the period of deregistration must be re-lodged after reinstatement, unless a court order validates them.

When a company may be reinstated

ASIC gives these examples:

  • a procedural oversight or defect led to the deregistration, such as a company deregistered for an unpaid review fee that ASIC had in fact received in time;
  • an officeholder or member sought voluntary deregistration, and the application contained an incorrect declaration;
  • someone had begun legal proceedings against the company before its deregistration;
  • someone considers themselves aggrieved, meaning negatively affected, by the deregistration.

Who can apply

A person who was a director, secretary or member of the company when it was deregistered can apply, provided they are not disqualified from managing corporations and can confirm the company will be solvent when reinstated. A former liquidator, someone who started legal proceedings before deregistration, or someone aggrieved by it can also apply. ASIC gives a creditor, or someone who had a contract with the company, as examples of an aggrieved person.

Two paths back onto the register

Which path applies depends on why and how the company was deregistered.

Administrative reinstatement

Through ASIC

ASIC reinstates a company only in some cases: where it agrees the company should not have been deregistered, or where a company deregistered for an unpaid supervisory cost levy, or unpaid levy instalments for the Compensation Scheme of Last Resort, has since paid it and any penalties. A voluntary applicant has to prove the declaration was incorrect; where ASIC deregistered the company, the applicant has to prove it was an error.

For a former officeholder or member, ASIC sets out these steps:

  1. Check whether the company name is still available. If it is not, ASIC can still reinstate the company under its ACN.
  2. Estimate costs. The fees depend on the company type and how many years it has been deregistered, and cover an application fee, any fees outstanding at the time of deregistration, and the annual review fee for each year the company spent deregistered. ASIC offers a reinstatement calculator.
  3. Ask ASIC for a detailed estimate through its online enquiry; ASIC says the reply comes within 28 days.
  4. Complete Form 581, pay the estimated fees, and send the form to ASIC.
  5. ASIC may take another 28 days to decide once it has the application and payment.

ASIC’s reinstatement page says a third party applying to ASIC must have started legal proceedings before the deregistration and be able to provide copies of the court documents. ASIC’s page on how to apply says a third party must have evidence that legal proceedings were underway before the deregistration, or that the company had outstanding debts when it was deregistered.

Court order

Through a court

Only a former liquidator, or someone who believes they have been aggrieved by the deregistration, can go to court. ASIC’s examples of when a court order is the route include: ASIC cannot reinstate administratively; the company was in liquidation before deregistration; it will have no directors on reinstatement; or it was deregistered under earlier companies legislation.

ASIC’s steps:

  1. Lodge the application with a superior court (the Supreme Court, the Federal Court and the Federal Circuit and Family Court are examples). Each court may set different requirements.
  2. Prepare the application to meet Table 4 of ASIC’s Regulatory Guide 83, with evidence of why the order should be made.
  3. Serve a copy on ASIC so it arrives at least 28 days before the hearing, because courts generally seek ASIC’s opinion.
  4. If the order is made, post ASIC the sealed original with Form 105. ASIC then reinstates the registration and publishes a notice in the ASIC Gazette.

ASIC strongly recommends legal advice before applying to a court.

While it waits

ASIC warns that reinstatement takes time, and that the company cannot conduct business while it is deregistered. The ATO notes that it may itself apply to reinstate a deregistered company to pursue liabilities the company owed before deregistration.

What happened to the company’s property in the meantime is explained in what happens to company assets.