💡Key Insight
- If your company has been deregistered, it has ceased to exist as a legal entity but you may be able to re-register it (reinstatement) so it is treated as if it was never deregistered, restoring its legal status.
- To re-register a deregistered company through ASIC, you typically need to be a former director, secretary, or member and submit a reinstatement application, pay outstanding fees, provide supporting documents, and explain why the deregistration should be reversed.
- If you do not meet ASIC’s criteria for administrative reinstatement, you can apply to a court for a reinstatement order, where the court considers factors such as the reasons for deregistration and whether reinstatement would produce a good outcome without unfair prejudice to others.
- Reinstating a deregistered company allows you to resume trading, pursue or continue legal proceedings in the company’s name, and regain control of assets that otherwise vest in the Australian Securities and Investments Commission upon deregistration.
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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