Background
This interlocutory application followed the Federal Court’s substantive judgment in Page v Conneely [2025] FCA 1646, in which Justice Cheeseman made findings regarding the validity of certain director and secretary appointments at Tallywalker Pty Ltd (a company in receivership). The applicant, Tallywalker itself, sought to rectify the ASIC register to reflect the Court’s earlier findings that several purported director and secretary appointments were invalid under Tallywalker’s constitution, despite being recorded on the ASIC register.
The substantive proceedings involved complex corporate disputes affecting multiple companies in trust structures. In those proceedings, the Court found that Maria Comino, Charles Comino, and Prudence Pickstone had not been validly appointed as directors and/or company secretaries in contravention of Tallywalker’s constitutional procedures. By contrast, the Court had found that Mr Brooks was validly appointed as director on 12 March 2017 through a general meeting, although this appointment had never been notified to ASIC. Tallywalker sought orders correcting the ASIC register to remove the invalid appointments and record the true directorship position.
The Court was satisfied that notice had been given to the affected individuals and parties, though none sought to be heard, and determined the application on the papers.
The Court’s Holding
Justice Cheeseman made orders to rectify the ASIC register pursuant to section 1322(4)(b) of the Corporations Act 2001 (Cth), removing the recorded appointments of: (1) Maria Comino as director and secretary on 5 April 2017; (2) Maria Comino as director on 1 June 2018; (3) Charles Comino as director and secretary on 11 December 2017; and (4) Prudence Pickstone as director on 16 March 2018. The Court found that the relief sought was consistent with its earlier findings on the validity of these appointments and that the statutory criteria for rectification under section 1322(6) were satisfied—specifically, that no substantial injustice had been or was likely to be caused to any person.
The Court noted that the orders regularised the ASIC register to reflect the true position: that only Mr Brooks held a valid directorship during the relevant periods (12 March 2017 to 18 March 2019). Although this created a technical contravention of Tallywalker’s constitutional requirement for two directors, the Court found it just and equitable to relieve against invalidity. Justice Cheeseman emphasised that Mr Brooks acted honestly in circumstances where he was the subject of the conduct giving rise to the defect, the impugned acts were procedural rather than substantive, and any third-party prejudice was hypothetical and not particularised. The Court also observed that rectifying the register had utility in reducing the risk that the public be misled as to the identity of valid directors.
Key Takeaways
- The Federal Court can rectify the ASIC register under section 1322(4)(b) of the Corporations Act where the register contains information that does not accord with factual findings about the validity of director or secretary appointments made in substantive proceedings.
- A rectification order will be made where the factual findings support the correction and the statutory criteria under section 1322(6) are satisfied—critically, that no substantial injustice has been or is likely to be caused to any person.
- Technical procedural contraventions of constitutional requirements (such as the requirement for multiple directors) may be relieved against under section 1322 where the relevant officer acted honestly and no substantial prejudice to third parties can be identified or particularised.
- Public confidence in the accuracy of the ASIC register is a significant consideration in deciding whether to grant rectification orders.
Why It Matters
This decision clarifies the Federal Court’s approach to correcting the ASIC register when earlier judgments establish that the register contains inaccurate information about corporate officer appointments. For companies in receivership or facing contested corporate disputes, it provides a mechanism to correct the public record following adverse findings about the validity of appointments made under company constitutions. The decision confirms that such rectification orders serve a public interest function by ensuring the ASIC register accurately reflects the true position regarding valid officeholders.
The judgment also illuminates the interplay between procedural defects and substantive corporate governance. While Tallywalker’s constitution required two directors, the Court did not invalidate the acts undertaken by the single valid director; instead, it granted relief under section 1322 against the technical invalidity. This pragmatic approach balances the need to maintain accurate public records with practical justice where an officer has acted honestly and in good faith despite constitutional defects. For practitioners, the decision reinforces the critical importance of ensuring proper procedures for director appointments and timely notification to ASIC, and confirms the availability of curative orders under section 1322 to address documentary errors where the substantive position has been determined by the Court.