Federal Court extends deed lodging deadline despite solicitor errors

The firm’s principal included the following as parties to the deed: the plaintiffs, a company registered in Australia, and a company registered in New Zealand. On or about 24 June 2026, the plaintiffs and these additional companies executed the deed. 

On 26 June 2026, the principal lodged with ASIC what he assumed was a complete copy of the deed and the related documents. 

ASIC’s rejection

On 3 July 2026, ASIC informed the principal that it had refused to accept the deed for lodgement because: 

• The deed apparently did not include the signatures of the required number of directors and officers on each company’s behalf 
• The NZ company was not registered as a foreign company in Australia 

ASIC’s rejection prompted the plaintiffs’ present application. 

Solicitor’s errors

The principal acknowledged that he had made unintentional and inadvertent errors.

First, the principal explained that the copy of the deed with ASIC contained only the odd-numbered pages because the deed was scanned as if it were a single-sided document despite having been executed with pages printed on both sides. 

Second, the principal had not appreciated that ASIC required the registration of foreign companies in Australia. 

Federal Court’s orders

Under s 1322(4)(d) of the Corporations Act, the Federal Court extended to 30 September 2026 the deadline for lodging with ASIC the deed of cross-guarantee and the associated documents to enable the plaintiffs to comply with s 6(1)(m) of the ASIC instrument. 

The Federal Court allowed anyone with a sufficient interest to timely apply to vary or set aside the extension order. 

The Federal Court confirmed that the plaintiffs were each an “interested person” under s 1322(4) of the Corporations Act because they had a real financial interest in the outcome of the application. 

Reasons for granting relief

The Federal Court listed the following matters in favour of granting the plaintiffs’ requested relief: 

• The extension of time would enable the plaintiffs to obtain an exemption that would significantly benefit them in line with the ASIC instrument’s purpose 
• Despite the lodging of the deed before 30 June 2026, the plaintiffs did not meet the deadline due to their then solicitor’s unintentional and inadvertent errors 
• Upon discovering the errors, the plaintiffs acted promptly enough in pursuing a remedy 
• If the court denied relief, the prejudice to the plaintiffs would be substantial and disproportionate to the deed’s omissions 
• According to ASIC’s delegate, ASIC had received the originating process and the affidavits from the plaintiffs 
• ASIC neither consented to nor opposed the plaintiffs’ application 

Citing s 1322(6)(c) of the Corporations Act, the Federal Court noted that it should find no substantial injustice to any person before making an order under s 1322(4)(d). 

The Federal Court saw: 

• no evidence that the plaintiffs’ failure to lodge the deed in a satisfactory form might have prejudiced any third party 
• no evidence that granting the plaintiffs’ requested relief might prejudice a third party 
• no apparent reason to deny the relief sought 

More cases on Australian Securities and Investments Commission

Here are some other recent decisions by the Federal Court of Australia involving ASIC. 

ASIC highlighted the court’s 23 July 2026 sentencing judgment providing that a director of three companies would remain in prison for 23 months. 

After ASIC’s investigation, the court issued 13 July 2026 orders to wind up an unregistered managed investment scheme under s 601EE(2) of the Corporations Act 2001 (Cth) and the second defendant in the proceeding under s 461(1)(k) of the Corporations Act. 

On 26 June 2026, the court agreed to hear ASIC’s case against a mining corporation separately from and subsequently to ASIC’s case against a director and a senior manager on liability for alleged contraventions of the Corporations Act. 

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