When a company is deregistered it no longer exists from that point in time onwards. If you want that company to start operating again, you will need to have it reinstated. This will return the company to its previous position as a legally registered company. There are two ways in which you can do this.
Application to ASIC
In order to have a deregistered company reinstated, you can make an application to ASIC. There are regulatory guidelines that detail the circumstances in which they will reinstate a deregistered company. Generally, reinstatement will occur where ASIC is satisfied that the company should not have been deregistered in the first place. Additionally, they will consider applications where you pay any outstanding penalties associated with the deregistered company.
The guidelines provide some examples of when ASIC will reinstate deregistered companies. These include where:
- A procedural error leads to deregistration
- Not every member agreed to the voluntary deregistration
- Upon deregistration there was more than $1000 in assets
- Outstanding liabilities
- The company was carrying on a business at the time of deregistration
- Legal proceedings were on foot at the time of deregistration
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How to Lodge an Application
To apply to ASIC, you need to have been a director, secretary or member of the company when it was deregistered. Applying involves the following:
- Complete the reinstatement form
- Pay the application fee and any related amounts owing to ASIC
- Include any supporting documents that explain why deregistration should not have occurred
- Provide a statement that all directors are aware of the application
Application to the Court
Courts also have the power to reinstate companies. This is an option if you do not meet the above criteria for an application, or it was rejected. The court will consider 4 key factors when deciding whether to reinstate your company. These are:
- The circumstances surrounding the company’s ending
- Whether reinstating the company will have a good outcome
- Whether reinstatement will prejudice anyone
- Overall public interest
You will need to show the Court why the company should be reinstated. Add any documents or information that supports your reasoning. You also need to provide proof that all directors are aware of the application. You may want to seek the advice of a company lawyer to help with the process. Showing the Court how your company will survive may also be helpful.
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