Removal from the register is not always the end. Division 4 of Part XII provides two routes back, one administrative and one judicial, and the choice depends on why and when the association was removed.
Route one: restoration by the Registrar after annual return default
The Registrar must, on the application of a qualifying person, restore to the register an association removed under section 108(a) for failing to file an annual return. The application must be filed within two years after removal, in the prescribed form, accompanied by all outstanding annual returns and the associated filing fees including late fees and penalties.
Under section 115(3) of the Associations Incorporation Act 2023 the application may be made by anyone who, at the time of removal, was a member, committee member, creditor or entitled person of the association, a party to legal proceedings against it, a person with an undischarged claim against it, its liquidator, or a receiver of its property. The Registrar has no discretion to refuse a complying application, but does have discretion under section 115(4) to waive the requirement of all outstanding returns, or accept partially completed ones, where it is not practical for the applicant to comply, which helps a creditor or member who lacks the association’s records. The same regime applies to overseas associations under section 131(2) and (3), and to existing associations removed for failing to re-register under section 168(2) and (3).
Route two: restoration by the National Court
Section 116 covers every other case: removal on grounds (b) to (j) of section 108, removal more than two years ago, or an application by a person outside section 115(3). The National Court may order restoration if satisfied that, at the time of removal, the association was still carrying on business or had other reason to continue, was a party to a legal proceeding, was in receivership or liquidation, or the applicant was a creditor, member, entitled person or claimant; or that “for any other reason it is just and equitable” to restore it. The Registrar, a member, committee member, creditor or entitled person, or any other person with the Court’s leave, may apply (section 116(2)). The Court may make restoration conditional on compliance with any provisions the association had breached before removal (section 116(3)) and may give any directions necessary for the restoration (section 116(4)); a typical condition is filing the outstanding returns and financial statements within a set time. There is no time limit on a section 116 application, but delay weighs against the applicant on the “just and equitable” question.
Effect of restoration
Under section 117 an association is restored when the Registrar registers a notice stating that it is restored, and “is treated as having continued in existence as if it had not been removed from the register”. Contracts made in the gap, proceedings commenced or continued, and filings due during it are all validated retrospectively. Section 118 applies section 381 of the Companies Act 1997 so that property which vested in the Registrar on removal revests in the association, subject to any dealings the Registrar lawfully made with it in the meantime; land will need the Registrar of Titles to note the revesting.
Why people seek restoration
- The association itself, whose committee let the returns lapse and now finds it cannot operate its bank account or hold its land.
- A creditor who needs a defendant to sue: section 114 preserves liabilities, but the association must exist to be sued and to hold assets.
- A litigant whose case against the association was under way.
- A funder or landlord with a claim against the association’s property, which vests in the Registrar on removal.
- A member whose faction was outmanoeuvred by a request for removal filed under section 109(1)(b) by a single committee member.
Starting again instead
Where restoration is unavailable or unattractive, the members may incorporate a new association under Part II. The new body is a different legal person: it does not inherit the old one’s property, which vests in the Registrar, or its contracts, and the name may be available only if the old association’s name has been released. For an association with land or continuing contracts, restoration is almost always the better course.
Administrative restoration costs the outstanding fees and penalties and takes as long as the Registrar takes to process it. Court restoration costs a National Court application, which section 162(3) allows to carry a costs order against any party other than the Registrar. Apply within two years if the ground was the annual return; the difference in cost is considerable.
Sources
- Associations Incorporation Act 2023 — ss 108, 109, 113–118, 131, 162(3), 168
- Companies Act 1997 — ss 372–375, 381
Before relying on anything here, read the current text of the Associations Incorporation Act 2023 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.