Ansell Ltd v Davies
[2008] SASC 203
•23 July 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ANSELL LIMITED & ORS v DAVIES & ORS
[2008] SASC 203
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice David)
23 July 2008
CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - EFFECT OF WINDING UP ON OTHER TRANSACTIONS
CORPORATIONS - WINDING UP - LIQUIDATORS
Two appeals against decisions of a single Judge of the Supreme Court dated 16 May 2007 and 14 March 2008 - original liquidators parties - original liquidators resign and new liquidators appointed - whether the new liquidators can be substituted for the retired liquidators in the proceedings.
Whether liquidators can pursue application to extend limitation period in s 588FF(3) of Corporations Act - whether "unidentified creditors" need to be joined as defendants - whether application can be pursued without joinder.
Held: appeals dismissed. Judge had power under r 31.02 of the Supreme Court Rules 1987 to order that new liquidators be substituted for retired liquidators. Current liquidators may apply for an order joining each of the relevant creditors as a defendant.
Corporations Act 2001 (Cth) s 588FF(1), s 588FF(3), s 588FE; Supreme Court Rules 1987 (SA) r 27.05, r 28.01, r 28.02, r 28.05, r 31, r 31.02, r 63.04, r 103; Corporations Rules 2003 (SA) r 2.7; Administration and Probate Act 1919 (SA) s 69; Supreme Court Rules 2006 (SA) r 206, referred to.
BP Australia Ltd v Brown (2003) 58 NSWLR 322; Gordon v Tolcher (2006) 81 ALJR 507, applied.
Greig v Stramit Corporation Pty Ltd [2004] 1 Qd R 17, distinguished.
Harris Scarfe (In Liq) & Harris Scarfe Wholesale Pty Ltd (In Liq) (No 2) [2007] SASC 186; Harris Scarfe (In Liq) & Harris Scarfe Wholesale Pty Ltd (In Liq) (No 3) [2008] SASC 74, discussed.
New Cap Reinsurance Corporation v Reaseguros Alianza SA (2004) 186 FLR 175; Harris Scarfe Ltd (In Liq) (2006) 203 FLR 46; O'Brien v Komesaroff (1981-1982) 150 CLR 310; Tolcher v Capital Finance Australia Ltd (2005) 52 ACSR 328; Re McGrath; HIH Insurance Ltd (In Liq) (2004) 205 ALR 643; ASIC v Karl Suleman Enterprises Pty Ltd (2004) 52 ACSR 103, considered.
ANSELL LIMITED & ORS v DAVIES & ORS
[2008] SASC 203Full Court: Doyle CJ, Anderson and David JJ
DOYLE CJ. The Court has before it appeals against orders made by a Judge of this Court in these proceedings. One appeal (the first appeal) is an appeal against orders made on 16 May 2007. The other appeal (the second appeal) is against orders made on 14 March 2008.
The orders in each case were made on the application of the liquidators of Harris Scarfe Limited (“HSL”) and Harris Scarfe Wholesale Pty Ltd (“HSW”). The two companies are being wound up in a voluntary winding up.
The period for the making of an application under s 588FF(1) of the Corporations Act 2001 (Cth) to recover payments made by HSL or HSW, in transactions which are alleged to be voidable because of s 588FE of the Corporations Act, expired on 2 April 2004.
Each set of orders was made in proceedings in this Court commenced on 31 March 2004. The proceedings were instituted by the liquidators of HSL and HSW. The liquidators sought an order under s 588FF(3) extending the period within which they could apply for an order under s 588FF(1), in respect of transactions made voidable by s 588FE.
A Master of this Court made an order on the liquidators’ application on 14 April 2004, extending the period for the making of an application under s 588FF(1), to 2 October 2005. The order was made in respect of claims against unidentified creditors of HSL and HSW. In a supporting affidavit the liquidators explained that they had not yet been able to identify all of the creditors against whom grounds might exist for the making of a claim.
This order has led to a prolonged procedural battle between the liquidators and certain creditors who were subsequently identified as creditors against whom the liquidators wished to bring proceedings under s 588FE and s 588FF(1), being creditors who were not able to be identified at the time of the making of the order on 14 April 2004.
The issue raised by the first appeal is whether the liquidators who have replaced the liquidators who instituted the proceedings and obtained the orders of 14 April 2004 (those liquidators retired) can now be substituted for the retired liquidators in the proceedings commenced on 31 March 2004.
The second appeal raises the issue of whether the liquidators can now pursue the application under s 588FF(3) for the fixing of a longer period for the making of an application under s 588FF(1). They wish to pursue the application as against 19 creditors, now identified, but when the order of 14 April 2004 was made, being unidentified creditors. The issue is whether that application can now be prosecuted as against these 19 creditors, with or without them being joined as defendants, with a view to orders being made for the fixing of a longer period that will bind them. How this issue arises will need to be explained in due course.
Facts
My summary of the facts is taken from the reasons of the Judge: Harris Scarfe (In Liq) & Harris Scarfe Wholesale Pty Ltd (In Liq) (No 2) [2007] SASC 186 and Harris Scarfe Ltd (In Liq) & Harris Scale Wholesale Pty Ltd (In Liq) (No 3) [2008] SASC 74.
On 3 April 2001 Mr Dwyer and Mr Maxsted were appointed administrators of HSL and HSW.
On 3 January 2002 a meeting of creditors carried a resolution for the voluntary winding up of HSL and HSW. Mr Dwyer and Mr Maxsted were appointed as liquidators. I will refer to them as “the original liquidators”.
The relation-back day for the purposes of s 588FF of the Corporations Act is 3 April 2001. The period for the making of an application under s 588FF(1) would expire on 2 April 2004, unless the Court made an order under s 588FF(3) fixing a “longer period”.
On 31 March 2004 the original liquidators issued proceedings in this Court. They applied for an order under s 588FF(3)(b) fixing a longer period within which they could make an application for orders under s 588FF(1).
The defendants to the application were a number of named creditors. They were called “the ascertained creditors”. But the order fixing a longer period was also sought as against unidentified creditors, the creditors in relation to whom the original liquidators had not completed their investigations and in relation to whom the original liquidators were not in a position to say whether or not a claim would be made against them.
On 14 April 2004 a Master of this Court made an order extending the period within which the original liquidators could make an application under s 588FF(1) with respect to voidable transactions “not being transactions with identified creditors”, to 2 October 2005.
On 11 November 2004 Mr Maxsted resigned as liquidator. On 4 January 2005 Mr Dwyer applied to be removed as liquidator.
On 21 January 2005 a Master of this Court made an order removing Mr Dwyer as liquidator of HSL and HSW, and appointing Mr Nicol and Mr Davies as joint and several liquidators of both companies. I will refer to them as the current liquidators.
The current liquidators then instituted proceedings for orders under s 588FF(1) against 19 creditors who were not, for the purposes of the order of 14 April 2004, “identified creditors”. In other words, they were said to be unidentified creditors for the purposes of the order of 14 April 2004. The proceedings were instituted, in most cases, on 30 September 2005, not long before the longer period fixed by the Master was due to expire.
A number of issues were then raised before and dealt with by the Judge below.
As to the unidentified creditors against whom proceedings had been instituted, the Judge held that because the order of 14 April 2004 was made without them being served or heard, they were entitled to have the order set aside as a matter of course. The Judge set aside the order as against those creditors. That decision has not been challenged by the current liquidators.
On 15 November 2006 the current liquidators made an application to the Court in the proceedings in which the order fixing a period had been made under s 588FF(3). The original liquidators were still named as the plaintiffs. The current liquidators applied for an order that they be joined as plaintiffs or that they be substituted for the original liquidators. They wished to be in a position to pursue the application with which the proceedings began, that is, the application for an order fixing a period for the purposes of s 588FF(3), but now as against the 19 formerly “unidentified creditors” against whom proceedings had already been instituted, relying on the order of 14 April 2004.
The Judge treated the application by the original liquidators for an order under s 588FF(3) as an application made to the Court by the original liquidators within the required period. He treated the application as not yet determined or disposed of (the Master’s order of 14 April 2004 having been set aside as against the 19 creditors), and as yet to be determined on the application of the current liquidators, but now to be determined only after hearing the relevant creditors: see Harris Scarfe (No 2) at [10] and Harris Scarfe (No 3) at [22].
The Judge decided that the current liquidators were entitled to pursue the application under s 588FF(3), being the application which had been initiated by the original liquidators. He did not rely upon r 31 of the Supreme Court Rules 1987 (SA).
The Judge directed that his order operate from 21 January 2005, the date of appointment of the current liquidators: Harris Scarfe (No 2) at [15].
On 6 December 2007 the current liquidators applied in the same proceedings to join the 19 formerly “unidentified creditors” as defendants to the application under s 588FF(3) for an order fixing a period within which orders might be sought under s 588FF(1). This was on the basis that the application originally made to a Master was now to be renewed, the relevant defendant creditors being heard in opposition, if they so wished: Harris Scarfe (No 3) at [13].
The Judge was asked to rule initially whether the Court had power to join the creditors as defendants to the proceedings, deferring the issue of whether to make an order fixing a longer period for the making of an application under s 588FF(1): Harris Scarfe (No 3) at [13].
The Judge held that the current liquidators were entitled to have their application under s 588FF(3) heard and determined as against each of the creditors, without the need to join the creditors as a defendant or respondent party to the application. As I have already mentioned, he treated the application as being as yet undisposed of, the Master’s order having been set aside: Harris Scarfe (No 3) at [22] and [23].
The Judge held in the alternative that it was open to him to make an order joining the creditors, if it were necessary to do so. The Judge said (Harris Scarfe (No 3) at [24]):
[24]…For these reasons, a fresh application by the current liquidators to join additional creditors made after 3 April 2004 will be defeated by s 588FF(3). The question is whether this application to join these 19 creditors is a fresh application made after 3 April 2004. I do not think it is.
He went on to say that the application to join the 19 creditors was not a fresh application because the application for an order fixing a longer period for the making of the application under s 588FF(1) had been made to the Court, although as against unidentified creditors, when the proceedings were first instituted. His conclusion was as follows: Harris Scarfe (No 3) at [29]:
[29]For these reasons, there are two answers to the liquidator’s application. The first is that the current liquidators are entitled to a re-hearing of the application as against these 19 creditors so that it is not necessary for the liquidator to join them as defendants. The second is that, even if it is necessary to apply to join them, the application has been made within time. It is sufficient if I make an order in the nature of a declaration that the liquidators are at liberty to have the application against these 19 creditors re-heard. If I have erred in reaching that conclusion, the current liquidators would be entitled to an order joining the 19 creditors as defendants.
The first appeal
It is convenient to summarise the position.
The period for the making of an application for an order under s 588FF(1) expired on 2 April 2001. The original liquidators applied under s 588FF(3)(b) for an order fixing a longer period, before 2 April 2001. The order made by the Master fixing a longer period has been set aside. Assuming that leaves the application on foot and not disposed of (I will return to this issue), can the current liquidators now be joined as plaintiffs or substituted for the original liquidators, and then pursue the application (now against persons who were unidentified creditors) for an order fixing a longer period?
The Judge considered that the current liquidators are entitled to the benefit of any orders obtained by, or any application made by, the original liquidators: Harris Scarfe (No 2) at [10]. I agree. The Judge noted that it was not appropriate simply to join the current liquidators in the proceedings, because that would leave the original liquidators as plaintiffs. Again, I agree. The Judge then said at [14]:
[14]In my view, notwithstanding that the terms of Rule 31 do not provide for substitution in the particular circumstances of this case, it is appropriate to make an order for substitution. Shortly put, my reason for that conclusion, as I have already mentioned, is that the term “liquidator” means the person for the time being holding that office. The whole purpose of this application is to ensure that the current liquidators are able to prosecute whatever applications are available to them in place of the original liquidators. What is sought is simply to replace one set of liquidators with another. On any ordinary usage of the English language, that is a substitution of one party for another. To the extent necessary, I will therefore make an order dispensing with the terms of the rules and then make an order substituting the current liquidators for the original liquidators.
I agree that the Judge had power to act as he did, if no other way of achieving the result of replacing the original liquidators with the current liquidators could be achieved.
To my mind the Court must have the power to replace the original liquidators by the current liquidators.
The result achieved by the Judge can be reached by a different route, and one that is perhaps simpler. Rule 28.01 of the Supreme Court Rules provides:
Proceedings not to be defeated by mis-joinder or non-joinder
28.01No proceedings shall be defeated by reason of mis-joinder or non-joinder of any person as a party, and the Court may determine the issues in dispute so far as they affect the rights and interests of the parties actually before it.
This rule indicates that technicalities should not prevent the Court from bringing the appropriate parties before it.
I consider that the joinder of the current liquidators can be ordered under r 27.05, which relevantly provides:
Circumstances in which the Court may join additional parties
27.05The Court may upon application, or of its own motion, join any person to the proceedings as a party upon such terms and conditions as the Court may prescribe at any time including after the determination of the plaintiff’s entitlement to relief, but before the grant of remedy, if:
Person claiming an interest
(a) that person claims an interest in the subject matter of the proceedings;
…
Person with a right under a Statute or a Rule
(d) that person has a right to joinder under an enactment or Rule;
…
In my opinion the current liquidators can rely on subpara (a) and on subpara (d). The Court can then order that the original liquidators cease to be a party, exercising the power conferred by r 28.02.
In the alternative, I consider that an order can be made that the current liquidators be substituted for the original liquidators, exercising the power conferred by r 31.02 which provides as follows:
Court may substitute a party or add a party where the interest of a party has passed to another person
31.02Where the interest or liability of any party is assigned, transmitted or devolved upon some other person, an application may be made to the Court for an order:
(a) that the other person be substituted as a party in the place of an existing party to the action; or
(b) that the other person be added as an additional party and the proceedings be carried on thereafter with him as a party.
Nothing in this Rule affects the operation of Section 60 of the Bankruptcy Act l966 of the Parliament of the Commonwealth.
The Judge apparently took the view that the power conferred by this rule was not available, because in the circumstances there was no assignment, transmission or devolution of an interest or right: Harris Scarfe (No 2) at [12]. In doing so, he took the same approach as he had earlier taken in Harris Scarfe Ltd (In Liq) [2006] SASC 277; (2006) 203 FLR 46 at [36].
I respectfully disagree. The terms “transmission” and “devolution” are often used to refer to a legal consequence that flows from an involuntary act, as Mason J noted in O’Brien v Komesaroff (1981-1982) 150 CLR 310 at 320-321. But in their ordinary meaning each of those terms is capable of having a wider meaning, one that is capable of embracing a situation in which a right or interest passes as a result of something that is not an involuntary act. In my opinion there is no reason to read r 31.02 in a narrow sense. As a matter of ordinary language, the interest of the original liquidators in the proceedings, or in the subject matter of the proceedings, can be said to have been transmitted to or devolved upon the current liquidators, once the current liquidators were appointed in place of the original liquidators. It now falls to the current liquidators to deal with the proceedings and with the claims made in the proceedings.
For those reasons I consider that the Judge had the power under r 31.02 to make an order that the current liquidators be substituted for the original liquidators. The appeal against this decision should be dismissed.
The second appeal
Once again, it is convenient to summarise the position.
Having been substituted for the original liquidators, the current liquidators have before the Court the application (made by the original liquidators), in proceedings begun on 31 March 2004. That application is for an order under s 588FF(3), fixing a “longer period” for the making of an application for orders under s 588FF(1). That application has not been disposed of. The order made by the Master in relation to unidentified creditors has been set aside, as against the 19 creditors. That leaves the application before the Court and undisposed of. The application can still be pursued.
The Judge noted that the application for an order fixing a “longer period” was made before the period fixed under s 588FF(3) had expired. Accordingly, the application was validly made: Harris Scarfe (No 3) at [22].
Certain formerly unidentified creditors are now before the Court, by virtue of the application made by the current liquidators on 22 November 2007. The current liquidators have applied in the action commenced by the original liquidators for an order joining the 19 creditors as defendants so that the application for an order fixing a “longer period” in relation to each of them can be heard and decided.
The Judge held that the application could now be pursued without the individual creditors being joined as defendant parties in the proceedings. Each creditor would be heard, and the application against each creditor would be decided separately: Harris Scarfe (No 3) at [23]. However, it was not necessary for this purpose to join the creditors.
The Judge also held that if it was necessary to join the creditors as defendants, the Court has power to do this, even though the period for making an application under s 588FF(3)(a) has expired and cannot be extended. It had been argued before the Judge that a creditor could not now be joined because the period for making the application had expired, and to join the creditor would be to defeat a valid defence based on the expiry of that period.
In relation to this point the Judge adopted the approach of Spigelman CJ in BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [149]-[152]. That approach is that the time limit under s 588FF(3)(a) does not apply to a particular creditor as a person. The time limit is a limit for the making of an application for an order fixing a “longer period”, and that time limit had been satisfied when the application was made, even though the creditor was not then joined. Accordingly, the Judge reasoned, the relevant creditors could now be joined under r 28.05 of the Supreme Court Rules even though that rule states that when a person is added as defendant “… the proceedings as against such parties shall be deemed to have begun from the date of such service being effected”. Applying the reasoning of Spigelman CJ, the Judge in the decision under appeal reasoned that the date on which the proceedings are deemed to have begun as against the particular creditor is irrelevant. The only relevant time is the time at which the application for a “longer period” is made to the Court: see Spigelman CJ in BP Australia Ltd v Brown at [150]-[152].
The Judge summarised his conclusions in Harris Scarfe (No 3) at [29]:
[29]For these reasons, there are two answers to the liquidator’s application. The first is that the current liquidators are entitled to a re-hearing of the application as against these 19 creditors so that it is not necessary for the liquidator to join them as defendants. The second is that, even if it is necessary to apply to join them, the application has been made within time. It is sufficient if I make an order in the nature of a declaration that the liquidators are at liberty to have the application against these 19 creditors re-heard. If I have erred in reaching that conclusion, the current liquidators would be entitled to an order joining the 19 creditors as defendants.
It is convenient to begin with the second answer given by the Judge.
I agree with the Judge. Like the Judge, I agree with the approach taken by Spigelman CJ on this issue, and with the approach that he took to a similar rule of the Supreme Court of New South Wales in BP Australia Ltd v Brown at [149]-[152]. I have summarised that reasoning above. The other members of the Court of Appeal of New South Wales agreed with Spigelman CJ: at [215] and [216].
Rule 28.05 of the Supreme Court Rules provides:
Proceedings against a person joined as an additional defendant deemed to have begun only upon service upon him
28.05Every person who is added as a defendant shall be served with the amended summons or with notice in lieu thereof as the case may require, and the proceedings as against such party shall be deemed to have begun from the date of such service being effected.
As Spigelman CJ said, the issue for this Court is whether an application was made under s 588FF(3) within the required period. The issue is not whether the proceedings in which the application is made are deemed by the Rules to have been commenced against the relevant creditor within that period. The distinction might seem subtle. But in my opinion it is real. The application by the original liquidators under s 588FF(3) was made when it was filed in the Registry. Accordingly, as my summary of the facts demonstrates, it was filed and made within the required time. The application is not to be treated as made only when it is served on the creditor in relation to whom the order fixing a longer period is sought, or only when that creditor is joined as a party to the proceedings.
Even if I disagreed with Spigelman CJ, I would apply his approach in the interests of consistency of decision making in relation to the Corporations Act. Although the decision to be made by this Court calls for a consideration of the impact of the Rules of this Court, there is nothing in the Rules of this Court that in my opinion dictates a different answer. I note that a similar approach has been taken (although in the case in question the issue was joinder of an additional defendant) by a Judge of the Federal Court in Tolcher v Capital Finance Australia Ltd [2005] FCA 108; (2005) 52 ACSR 328 at [29]-[33].
It is implicit in this approach that the application made by the original liquidators when they instituted proceedings on 31 March 2004 is a valid application under s 588FF(3), to the extent that application was made in relation to unidentified creditors. To be more precise, it is implicit in this approach that the application is a valid application even though an order was sought against creditors who were not identified and who were, obviously, not then parties to the proceedings, nor were they served with the proceedings.
In BP Australia Ltd v Brown Spigelman CJ decided that such an application was a valid application. The relevant circumstances are not distinguishable. The central part of his reasoning appears in the following part of his reasons:
[170]The power to extend the time limit for commencing proceedings is intended to provide for the circumstance in which a liquidator is not in a position to commence proceedings within three years of the relation-back day, for whatever reason, subject to the assessment of the court of all relevant circumstances, including the liquidator's conduct. It is not difficult to envisage a circumstance in which a liquidator is still ascertaining the identity of the recipients of benefits under possible voidable transactions and cannot give the court an indication of the creditors to be targeted. The power should be broad enough to allow, in those circumstances, for an order granting an extension of time in general terms.
[171]The requirement of commercial certainty on the part of those who have had past dealings with the corporation is to be balanced against the conflicting interest of the creditors of the company. The court, through the discretions it exercises under s 588FF(3) and s 588FF(1), is in a position to control unwarranted delay by liquidators. Subject to reasonable expedition on the part of a liquidator, and to adopt the reasoning of Doyle CJ in Pegulan Floor Coverings Pty Ltd v Carter (1997) 24 ACSR 651 at 659; 15 ACLC 1293 at 1300, the creditors are entitled to: "... the benefit of having the affairs of an insolvent company properly investigated and administered in an orderly fashion in terms of the provisions of the law".
I respectfully agree.
As Spigelman CJ observes, it is likely that there will be situations in which a liquidator cannot identify within the required period persons against whom claims can or should be made under s 588FF(1). It would be surprising if there were no remedy for that situation. Making due allowance for the desirability of a liquidation being dealt with expeditiously, there is no reason why the Court should strain against a reading of s 588FF(3) that permits an application of the kind made here to be made. Proceedings involving an application to which there is no defendant or respondent are contemplated by r 2.7 of the Corporations Rules 2003 (SA) which requires the service of originating process and any supporting affidavit, as soon as practicable after filing the process, on “… each defendant (if any) to the proceeding …”. Proceedings before the Court to which there is no defendant or responding party are not unknown. An application of the kind in question has some similarities to an application under s 69 of the Administration and Probate Act 1919 (SA), and under s 63.04 and r 103 of the Supreme Court Rules, and r 206 of the Supreme Court Rules 2006.
Once again, even if I did not agree with this reasoning I consider that this aspect of the decision in BP Australia Ltd v Brown should be followed in the interests of consistency. That decision has been followed in a number of later decisions: see Re McGrath; HIH Insurance Ltd (In Liq) [2004] NSWSC 164; (2004) 205 ALR 643 at [6]-[12], [15]-[21]; ASIC v Karl Suleman Enterprises Pty Ltd [2004] NSWSC 1244; (2004) 52 ACSR 103 at [6]; New Cap Reinsurance Corporation v Reaseguros Alianza SA [2004] NSWSC 787; (2004) 186 FLR 175 at [17]-[27]; Tolcher v Capital Finance Australia Ltd at [21]-[28]. I add that I am not persuaded that the decision of the Court of Appeal of the Supreme Court of Queensland in Greig v Stramit Corporation Pty Ltd [2003] QCA 298; [2004] 2 Qd R 17 is to the contrary. In any event, if necessary I prefer and would follow the approach of Spigelman CJ.
For those reasons I agree that the Judge below was right to conclude that if necessary an order joining the 19 creditors as defendants can and should be made.
I turn now to the first answer that the Judge gave (see above). Was the Judge correct in deciding that it is not necessary to join creditors as defendant parties to an application for an order fixing a “longer period”? Mr Hoffmann QC submits that the Judge was wrong, and that a creditor against whom such an application is made must be joined.
Once an application is made under s 588FF(3), provided it is made within time, the conduct of the application is left to the rules of this Court, subject to any relevant provision of the Corporations Act: Gordon v Tolcher [2006] HCA 62; (2006) 81 ALJR 507 at [40].
I accept Mr Hoffmann’s submission that the interests of a creditor against whom or in relation to whom an order is sought, are affected. In particular, unless an order is made fixing a longer period, such a creditor has a sound defence to a claim under s 588FF(1). It follows that the creditor is entitled to be heard in opposition to the making of the order, is entitled to challenge the evidence of the liquidators, and is entitled to present its own evidence.
It does not follow that the creditor must be joined. The Court could hear a creditor in opposition to the making of an order, without joining the creditor as a defendant. I consider that the Court could hear and decide such an application, and could make any necessary procedural orders, including orders for discovery and costs, without the need to join the relevant creditor as a defendant. But I prefer not to express a final view on this point. It is not necessary to decide the point. There is no reason why the Court should refrain from making each of the relevant creditors a defendant party to the proceedings.
The Judge’s second answer is a sufficient answer, and is supported by the decisions of other Courts.
I would dismiss the second appeal. In light of these reasons, it is open to the current liquidators to apply for an order joining each of the relevant creditors as a defendant.
Conclusion
For those reasons both appeals should be dismissed.
ANDERSON J. I agree that both appeals should be dismissed for the reasons given by the Chief Justice.
DAVID J. I would dismiss the appeals for the reasons given by the Chief Justice.
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