Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9

Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 is a Full Federal Court appeal about whether a company registered in 1998 could later be treated as having been invalidly registered from the start because of an assumed defect in its incorporation documents.

The appellants wanted a declaration that PSA's registration was invalid ab initio and an order under s 1322(4)(b) of the Corporations Act directing ASIC to remove PSA from the register. The Full Court dismissed the appeal, dismissed an application to adduce further evidence, ordered costs against the appellants, and directed that the $15,000 security for costs be paid to the respondents once costs were assessed or agreed.

For businesses, the practical message is that a registered company with a certificate of registration and a long corporate history will not easily be treated as if it never existed, even where there is an assumed defect in historical formation paperwork.

The commercial story started with a property sale, not with a technical company law point. In 2003, the appellants' company, Computer Accounting and Tax Pty Ltd, bought a property in Armadale, Western Australia, from PSA. The appellants claimed the purchase had been induced by false representations made by Mr Martin Banning, who was then PSA's sole director.

That dispute led to Supreme Court litigation in Western Australia. CAT obtained judgment against PSA, but PSA partly succeeded on appeal. The result was that the judgment sum in CAT's favour was reduced, and CAT had to repay more than $700,000 to PSA. PSA then applied to wind up CAT, and CAT was wound up on 6 May 2010. Later steps in related insolvency matters led to bankruptcy proceedings against the appellants personally.

Against that background, the appellants brought Federal Court proceedings seeking to attack PSA's existence at its foundation. Their amended originating process sought a declaration that PSA's registration was invalid ab initio and an order requiring ASIC to rectify the register by removing PSA.

The company had originally been registered as Liberty Oil (Australia) Pty Ltd. The agreed facts showed that a Form 201 application for registration was lodged on 5 June 1998, that the company was registered in Western Australia on that date, and that a certificate of registration was issued on 8 June 1998. The company later changed its name to Professional Services of Australia Pty Ltd on 7 July 1998. The ASIC records also showed a sequence of directors, notices about officeholders and shares, and later periods of administration and deed of company arrangement.

The key factual assumption made in the appellants' favour was serious. The separate questions were determined on the assumption that the document entitled Memorandum and Articles of Association of Liberty Oil (Australia) Pty Ltd was not prepared by Mr Boyle and was not signed by Mr Boyle or Mrs Boyle, but by an unknown person or persons simulating their signatures. In other words, the court considered the appeal on the footing that the memorandum and articles were defective in a fundamental way.

The Federal Court proceeding before the primary judge had a long procedural history. The final hearing began in March 2023 but was not completed within the time allocated. After adjournment, the appellants sought leave to adduce expert handwriting evidence, and orders were made to permit that on conditions and to allow the respondents to adduce their own handwriting evidence.

The primary judge then identified three common questions that could potentially dispose of the proceeding or at least narrow it significantly. Despite the appellants opposing that course, the court ordered that those questions be determined separately on a statement of agreed facts and on assumptions favourable to the appellants about certain disputed matters. The separate questions were heard in June 2023, with further written submissions directed on the effect of s 1378 of the Corporations Act.

On 26 April 2024, the primary judge answered each of the three separate questions in the negative. Because of those answers, the respondents were entitled to apply for judgment, and on 15 November 2024 the primary judge dismissed the amended originating process.

On appeal, the appellants also sought leave to adduce further evidence. The Full Court dealt with that application as part of the appeal and dismissed it.

The appeal raised several connected issues. First, could PSA's registration on 5 June 1998 be treated as invalid from the beginning because of assumed non-compliance with the requirements for the memorandum of association under the Corporations Law (WA) then in force? Secondly, what significance should be given to the fact that the company had been registered and issued with a certificate of registration? The catchwords show that the appeal specifically raised whether the certificate of registration was conclusive evidence of registration and whether the primary judge had wrongly applied s 1389 of the Corporations Act.

Thirdly, there was a standing or preclusion issue. The appellants argued that the primary judge erred in finding that they were precluded from challenging PSA's registration. Fourthly, the appeal raised a remedial question about s 1322(4)(b). The appellants wanted the court to direct ASIC to rectify the register by removing PSA. That required the court to consider the scope and extent of the power under s 1322(4)(b), including whether it could be used in a way that would deprive a company of corporate existence from the date of registration.

The assumed defect mattered because, under the 1995 Corporations Law provisions reproduced in the judgment, the memorandum had to be signed by the persons desiring the formation of the company. The appellants' case was that if those signatures were not genuine, the registration process was fundamentally defective. The court nevertheless had to decide whether that assumed defect was enough to undo registration after the company had been registered, issued with a certificate and then operated for many years.

The judgment explains that PSA was registered on 5 June 1998, so the relevant formation rules were those in the Corporations Law (1995), before the 1 July 1998 reforms. The extracted provisions included ss 114, 117, 118, 120, 121 and 123.

Those provisions matter because they set out the mechanics of company formation at the time. Section 114 dealt with formation of proprietary companies. Section 117 set out requirements for the memorandum, including that it be signed by the persons desiring the formation of the company. Section 118 dealt with the registration application and what had to accompany it. Section 120 dealt with registration by the Commission once satisfied that the application had been made in accordance with s 118. Section 121 required the Commission to prepare and issue a certificate stating that the company was registered and, because of that registration, was an incorporated company. Section 123 then dealt with incorporation from the day specified in the certificate.

The appeal also involved later Corporations Act provisions, including s 1322 and s 1389. The catchwords show that s 1389 was relevant to the question whether the certificate of registration was conclusive evidence of registration. In broad terms, a conclusive evidence rule is important because it limits later attempts to go behind the fact of registration by treating the certificate and registration status as legally decisive for certain purposes.

The Full Court's reasons, as summarised in the extract, support the practical point that registration and the certificate were central features of the legal analysis. That is why the case is significant for businesses relying on ASIC records and the apparent existence of a company.

The Full Court dismissed the appeal. It said the grounds of appeal lacked any merit, the application to receive further evidence did not warrant leave, and the findings and reasoning of the primary judge were unimpeachable.

The primary judge's conclusions, which the Full Court upheld, were summarised in the judgment. First, the registration of PSA was authorised, meaning valid. Secondly, the appellants were precluded from challenging the validity of the process by which PSA was registered in 1998. Thirdly, while there is power to remove a company from the register under s 1322(4)(b), the agreed and assumed facts did not disclose circumstances calling for the exercise of that power so as to deprive PSA of its corporate existence from the date of registration.

The separate questions were therefore answered as follows: the registration was not invalid ab initio, the court did not have power on the appellants' application to order ASIC to remove PSA from the register under s 1322(4)(b), and if the answer to that second question had been yes, the court did not have power to make such an order with retrospective effect.

The orders on appeal were also significant. The court dismissed the interlocutory application filed on 12 August 2025 for leave to file further evidence, dismissed the appeal, ordered the appellants to pay the respondents' costs subject to any application under the rules, directed that the $15,000 security for costs be paid to the respondents once costs were assessed or agreed, and referred consideration of possible vexatious proceedings orders under s 37AO of the Federal Court of Australia Act to the presiding judge.

For business owners, the case is a reminder that the law gives substantial weight to the fact of registration. Once a company has been registered, issued with a certificate, changed its name through recorded processes, had directors and shareholders recorded, and continued to operate over time, a court will be cautious about retrospectively erasing that corporate existence.

That caution makes commercial sense. Counterparties, lenders, employees, creditors, insolvency practitioners and regulators all rely on the existence of registered companies. If a company could easily be treated as never having existed because of a historical defect in formation paperwork, the consequences for transactions and enforcement would be severe.

At the same time, the case should not be read as saying formation documents do not matter. The assumed defect here was serious enough to justify extensive litigation and expert handwriting evidence. Poor record-keeping, missing signatures, inconsistent share records or unclear officeholder records can still create major disputes, especially in family companies, older proprietary companies and businesses with informal governance practices.

If your business is buying shares in an older company, lending to it, contracting with it or litigating against it, this case suggests a practical approach:

If your own company has patchy historical records, the case is also a warning to tidy them up where possible. Even if a defect does not destroy the company's existence, it can still generate years of cost and uncertainty.

The judgment highlights the kinds of documents and conduct that carried weight in the dispute. On the one hand, the appellants relied on the assumed defect in the Memorandum and Articles of Association. On the other hand, the agreed facts showed a formal registration application, registration on the ASIC record, a certificate of registration, a later name change, notices of officeholders, notices about shares, and a substantial later corporate history including administration and deed of company arrangement.

That contrast is important for businesses. Courts do not look only at one disputed historical document in isolation. They also look at the surrounding statutory process and the company's later existence as reflected in official records and corporate conduct over time.

In practical due diligence or dispute preparation, the following records are often critical:

Most businesses will never run a case like this, but the practical lessons are straightforward. Keep incorporation and governance records in order. If you inherit an older company with incomplete records, investigate the gaps early rather than waiting for a dispute. If you are considering litigation, focus on the remedy that actually addresses the commercial problem.

Where the issue is authority, ownership, misleading conduct, insolvency consequences or enforcement, a direct claim on those issues may be more realistic than trying to establish that the company never existed. And if a dispute does involve historical registration defects, expect the court to pay close attention to the ASIC record, the certificate of registration and the company's later corporate history.

The Full Federal Court delivered judgment on 17 February 2026. The appeal was from Frigger v Professional Services of Australia Pty Ltd (No 5) [2024] FCA 420. The company at the centre of the dispute was registered on 5 June 1998, with a certificate of registration issued on 8 June 1998, and its name was changed to Professional Services of Australia Pty Ltd on 7 July 1998.

The appeal outcome is final at the Full Court level as recorded in the published orders. The page below summarises the decision for business readers and should be read as a practical explainer rather than a substitute for legal advice on any specific dispute.