Creditor of a deregistered company

Unsecured creditors wishing to recover any money owed by the deregistered company should seek legal advice with the view to reinstating the company. Common examples of unsecured creditors are body corporates/owners corporations (with outstanding fees/levies) and former suppliers (with outstanding invoices).

Unsecured creditors who have a court order against a company which is then deregistered do not have any right to seek payment out of property vested in ASIC. Such creditors (also known as judgment creditors) need to have the company reinstated in order to enforce the judgment.

ASIC will not oppose secured creditors enforcing their security (i.e. taking possession and selling the secured property), to recover their debt. If there are surplus proceeds payable to the deregistered company, then (unless the company has been reinstated) they should be forwarded to ASIC's Unclaimed Monies Unit.

Information on how to lodge funds and contact the Unclaimed Monies Unit can be found here Unclaimed money - how to lodge money unclaimed under the Corporations Act. Follow the links to s601AD(2) [if the company was not acting as a trustee] or s601AD(1A) [if the company was acting as a trustee of a trust].

ASIC is not liable for any shortfall owing to the creditor if proceeds from the sale of secured property is not enough to discharge the debt. Secured creditors should seek legal advice with the view to reinstating the company if they wish to recover any shortfall.

Mortgagees and Councils

Deregistration of a registered proprietor does not prohibit:

• mortgagees from exercising any rights under their mortgage, or  
• local councils selling property for rate arrears or using any other power under their relevant Local Government Act (e.g. accepting a transfer of property in lieu of outstanding rates and charges in some jurisdictions).

Any notices that need to be served on the deregistered company before exercising power of sale can be served on the company c/- ASIC via email.  Please ensure a recent title search is also provided as ASIC requires evidence that the property is in fact registered in the deregistered company's name and therefore, vesting in ASIC (or the Commonwealth if it was trust property).

While ASIC (in its own right and on behalf of the Commonwealth) is vested with the company's interest in the property, ASIC is not in actual possession of the property. If a mortgagee or council requires a court order for possession to sell the property, then provided they agree to ASIC's terms and conditions, ASIC may consent to being named defendant in proceedings and sign consent orders. This would negate the requirement for the reinstatement of the registered proprietor. Please contact the Property Law Team for more information, including ASIC's terms and conditions, before commencing such proceedings.