Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Reinstatement)

In Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Reinstatement) [2025] FCA 520, the Federal Court ordered ASIC to reinstate the registration of 1160 Glen Huntly Road Pty Ltd, a company that had been deregistered for non-payment of fees. The Court then ordered that, once reinstated, the company be wound up on just and equitable grounds and that joint and several liquidators be appointed immediately.

The case was not a final hearing of the whole underlying dispute. It was a focused application dealing with a practical obstacle in ongoing litigation. Westpac said the company needed to be restored to the register so that relief could be pursued and enforced against it in line with liability findings already made in related proceedings. The Court accepted that position.

This is an important corporations case for businesses because it shows two things clearly. First, administrative deregistration does not necessarily end a company’s relevance if there are still live claims, disputed assets or enforcement steps to be taken. Secondly, reinstatement can be paired with immediate liquidation where the company is likely to be insolvent or where the Court considers independent control is necessary.

The application concerned 1160 Glen Huntly Road Pty Ltd, one of the respondents in broader Federal Court proceedings involving Westpac and a number of parties connected with what the judgment describes as complex litigation involving systemic fraud. The reinstatement judgment assumes familiarity with the earlier liability judgment and adopts defined terms from that earlier decision.

By the time of this application, 1160 Glen Huntly Road had been deregistered by ASIC on 14 January 2024 under s 601AB of the Corporations Act for non-payment of fees. Westpac had not been notified of the impending deregistration. That mattered because Westpac said the company remained important to the litigation and to the practical enforcement of relief.

The Court recorded that 1160 Glen Huntly Road was a Tesoriero entity and that Vince Tesoriero had been a director. The Court also recorded that the company had benefited from the fraud by receiving $942,639.73 from Westpac. The judgment breaks that amount down between the two applicants: $705,943.56 from Westpac Banking Corporation and $236,695.17 from Westpac New Zealand Limited.

The commercial significance did not stop there. The evidence in the liability hearing had established that some of the Westpac funds received by the company had been traced to the purchase of the property at 1160 Glen Huntly Road, Glen Huntly, Victoria. That property had been sold, and the residual sale proceeds of $759,619 had been paid into the Supreme Court of Victoria and invested in the company’s name.

Westpac said reinstatement was needed so it could obtain effective and enforceable relief against the company in the substantive proceeding. The judgment records that Westpac claimed equitable compensation in excess of $300 million against the company and also sought orders to the effect that the funds held by the Supreme Court of Victoria were held on trust for Westpac. If those orders were made, Westpac intended to apply to the Supreme Court of Victoria for release of the funds.

ASIC was given notice of the application in accordance with the Federal Court (Corporations) Rules and confirmed by letter dated 17 April 2025 that it did not oppose the reinstatement application, provided no costs order was sought against it. Westpac did not seek costs against ASIC. The former officeholders, Vince Tesoriero and Giovanni Tesoriero, were also given notice and did not seek to be heard.

The Court had to decide whether the statutory conditions for reinstatement under s 601AH(2) of the Corporations Act were met. In practical terms, there were two main questions.

The first question was whether Westpac was a person aggrieved by the deregistration. The judgment explains that this expression is not defined in the Act and should not be read narrowly. The Court referred to authorities showing that an applicant does not need to prove the whole underlying case on a reinstatement application. But the claim cannot be hopeless or bound to fail. The applicant must show a genuine grievance and, where acting as a creditor or claimant, a real economic interest in the company being reinstated.

The second question was whether it was just that the company’s registration be reinstated. The Court described this as a broad discretionary judgment. Relevant considerations can include how the company came to be deregistered, the purpose of seeking reinstatement, whether anyone is likely to be prejudiced by reinstatement, the public interest, and the future stewardship of the company if it comes back into existence.

The Court also had to deal with a further practical issue. Westpac’s additional submissions addressed the position that, once reinstated, the company would in all likelihood be insolvent very shortly afterwards. That raised the question whether the company should be wound up immediately on just and equitable grounds and whether independent liquidators should be appointed straight away.

The judgment also notes an important legal consequence of reinstatement. If a company is reinstated, it is taken to have continued in existence as if it had not been deregistered. Directors immediately before deregistration are ordinarily reinstated as such, company property revests, and existing claims or interests remain attached. That is one reason the Court considered future stewardship carefully in this case.

Cheeseman J granted the application. The Court was satisfied that Westpac was a person aggrieved by the deregistration of 1160 Glen Huntly Road and had standing to bring the application. A key reason was that Westpac had already obtained a finding of liability against the company in the related liability judgment.

The Court was also satisfied that it was just to reinstate the company’s registration. Several factors supported that conclusion. The deregistration was administrative in nature because it resulted from non-payment of fees, not from the culmination of a winding up. The Court noted that authorities show a greater preparedness to order reinstatement in that kind of situation. Westpac had not been informed of the impending deregistration. There had been no examination of the company’s affairs before deregistration, which the Court regarded as significant given the complexity of the arrangements involving Mr Tesoriero, the Tesoriero entities and the fraudulent schemes referred to in the judgment. ASIC did not oppose the application. The former officeholders had notice and did not seek to be heard.

The Court then turned to what should happen once the company was restored to the register. It accepted that, because of the relief likely to be obtained by Westpac in consequence of the liability findings, there was a strong likelihood that the company would become insolvent very shortly after reinstatement. In those circumstances, the Court held that it was appropriate for the company to be wound up on the just and equitable ground.

The Court also considered who should control the company after reinstatement. It said it would not be appropriate for the former officers to resume office upon reinstatement, having regard to the factual findings made about Vince Tesoriero and the Tesoriero entities, including the company itself. The Court appointed Jason Craig Ireland and Jason Preston of McGrathNicol as joint and several liquidators. Their appointment was described as both efficient and appropriate because they were already acting as liquidators of many associated entities involved in the proceedings.

To avoid prejudice arising from the fact that the company had been deregistered for essentially administrative reasons, the Court ordered Westpac to pay ASIC all outstanding administrative fees relating to the company’s registration and reinstatement. The costs of the application were ordered to be costs in the liquidation.

This case is best read as a practical corporations and insolvency decision, not as a competition or consumer regulator case. Although one of the authorities cited in the reasons is ACCC v ASIC, this proceeding itself was not an ACCC enforcement matter. The real issue was whether a deregistered company should be restored so that relief could be pursued and enforced in ongoing litigation, and what should happen to that company once restored.

For business owners, the first lesson is that deregistration for unpaid ASIC fees is not a reliable way to close off risk. If the company still matters because it holds assets, received disputed funds, is part of a group structure, or is exposed to claims, a court may bring it back into existence. That is especially likely where the deregistration was purely administrative and there is a real commercial purpose in reinstatement.

The second lesson is about records and entity management. Many businesses use separate companies to hold property, run operations or isolate risk. That can be sensible, but each company needs its own compliance attention. A dormant company can still become central to a dispute if it received money, held title to property, or sat somewhere in the transaction chain. If annual review fees are missed and the company is deregistered, the result may be extra cost, delay and court intervention rather than a clean administrative tidy-up.

The third lesson is about control after reinstatement. Business owners sometimes assume that if a company is restored, former directors simply resume management. The legislation may point in that direction in the ordinary course, but the Court can make further orders. Here, the Court focused on future stewardship and ordered immediate winding up with independent liquidators. That can have major practical consequences for access to records, dealings with assets, communications with creditors and the conduct of related litigation.

The fourth lesson is that insolvency risk matters. The Court accepted that the company would likely become insolvent very shortly after reinstatement because of the relief likely to be obtained by Westpac. Where that is the likely position, the Court may consider liquidation the proper next step. Businesses facing reinstatement applications should therefore think not only about whether the company should be restored, but also about whether it can trade, defend claims or hold assets solvently once restored.

The judgment shows that reinstatement applications are often driven by practical evidence rather than abstract legal argument. Several pieces of conduct and documentation mattered here.

First, Westpac relied on the earlier liability findings and on evidence showing that 1160 Glen Huntly Road had received funds connected to the fraud. That gave the Court a concrete basis to conclude that Westpac had a genuine grievance and a real economic interest in reinstatement.

Secondly, the tracing evidence and the existence of sale proceeds held in the Supreme Court of Victoria in the company’s name gave the application a real commercial purpose. This was not a speculative attempt to revive a dead company in the hope that something might turn up later.

Thirdly, notice was important. ASIC was notified and did not oppose the application. The former officeholders were also notified and did not seek to be heard. The absence of opposition did not decide the case by itself, but it reduced the risk of prejudice and supported the Court’s conclusion that reinstatement and immediate winding up were appropriate.

Fourthly, Westpac filed further submissions specifically addressing the likely insolvency of the company upon reinstatement. That helped the Court deal with the practical consequence of restoration rather than leaving the issue unresolved.

Finally, the written consent of the proposed liquidators mattered. The Court noted that Jason Craig Ireland and Jason Preston had consented to act and were already involved with associated entities. That made their appointment efficient and workable in the context of the broader litigation.

The company was deregistered on 14 January 2024 for non-payment of fees. Westpac notified ASIC of the reinstatement application, and ASIC confirmed on 17 April 2025 that it did not oppose the application if no costs order was sought against it. The Court’s orders and reasons were given on 20 May 2025.

The judgment should be read together with the earlier liability decision, Westpac Banking Corporation v Forum Finance Pty Limited (in liq) (Liability) [2024] FCA 1176. This reinstatement decision does not finally determine the broader substantive relief Westpac sought in the underlying proceeding. It explains why the company had to be restored to legal existence and then placed into liquidation so that relief could be pursued and enforced in an orderly way.