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Selected cases

Full Federal Court of Australia · [2026] FCAFC 9

Frigger v Professional Services of Australia

A Full Federal Court corporations case about company registration, ASIC records, section 1322 and why old formation defects rarely erase a...

Full Federal Court of Australia17 Feb 2026

Plain-English explainers, not legal advice. Check the linked official source before you rely on a specific section, and get advice for your situation.

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Quick read

  • Company registration records have real legal force.
  • A Full Federal Court corporations case about company registration, ASIC records, section 1322 and why old formation defects rarely erase a company.

Use this to check

  • A certificate of registration is powerful evidence that a company exists.
  • Section 1322 is not a simple tool for erasing corporate existence years later.
  • Old setup defects should be corrected early before transactions build on them.

Decision snapshot

  1. 1

    What happened

    • The appellants sought to challenge the existence of Professional Services of Australia Pty Ltd, formerly Liberty Oil (Australia) Pty Ltd.
    • The company had been registered in Western Australia on 5 June 1998 and issued with a certificate of registration.
    • The appellants asked for a declaration that the registration was invalid from the beginning and an order directing ASIC to remove the company from the register.
    • Their case relied on assumed facts about defects in the memorandum and articles of association.
  2. 2

    What the court had to decide

    • The Full Federal Court had to decide whether the primary judge was wrong to hold that the company was validly registered despite assumed memorandum defects, whether ASIC register and certificate provisions were conclusive, and whether section 1322 could support removing the company from the register with retrospective effect.
  3. 3

    What the court decided

    • The Full Court dismissed the further evidence application and dismissed the appeal with costs.
    • It ordered that $15,000 paid into Court as security for costs be paid to the respondents after costs were assessed or agreed, and referred consideration of possible vexatious proceedings orders to the presiding judge.

Practical impact

Practical read

  • Company registration records have real legal force.
  • If ASIC has registered a company and issued the certificate, a later complaint about historical formation defects will rarely be a practical way to erase the company years later.

Useful next steps

  • A certificate of registration is powerful evidence that a company exists.
  • Section 1322 is not a simple tool for erasing corporate existence years later.
  • Old setup defects should be corrected early before transactions build on them.
  • Company identity, former names and ASIC records should be checked in disputes and deals.
  • Repeated company-register litigation can become a serious costs and court-process risk.

Practical read

This case is not about an everyday company setup mistake. It is an extreme version of a question founders sometimes ask in smaller form: if something was wrong when a company was formed, can that undo everything later? The Full Court's answer was strongly against using historical formation defects to erase a registered company decades after ASIC's predecessor had registered it and issued a certificate.

The case turned on corporate registration machinery, conclusive evidence rules, the scope of section 1322 and the difference between fixing irregularities and depriving a company of corporate existence. The Court dismissed the appeal and also referred the question of possible vexatious proceedings orders for consideration, which shows how firmly it viewed the litigation history.

For small businesses, the practical point is more ordinary. Get company setup right at the start, keep ASIC records current, and fix errors promptly. But do not treat a company record issue as a magic undo button. Banks, customers, creditors, contracts, tax records, licences and court orders may all have relied on the company existing. If there is a real historical defect, the solution is usually targeted correction and advice, not pretending the company never existed.

Checks to run

Key points

  • Keep company registration, name-change and share records with the company minute book.
  • Check ASIC current and historical extracts before asserting a company does not exist.
  • Fix setup and register errors promptly rather than waiting until a dispute arises.
  • Do not rely on historical irregularities without advice on section 1322 and related provisions.
  • Budget for costs risk before challenging old company-register matters in court.

Key takeaways

  • A certificate of registration is powerful evidence that a company exists.
  • Section 1322 is not a simple tool for erasing corporate existence years later.
  • Old setup defects should be corrected early before transactions build on them.
  • Company identity, former names and ASIC records should be checked in disputes and deals.
  • Repeated company-register litigation can become a serious costs and court-process risk.

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