Bryant (Liquidator) v L.V. Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (In Liq) (Receivers and Managers Appointed)

In the matter of Gunns Limited (in liq), the Federal Court was asked to determine several preliminary questions related to voidable preference claims under the Corporations Act 2001 (Cth). The liquidators, Bryant, sought to amend the statements of claim to include additional claims for unfair preferences made between 30 March 2012 and 25 September 2012, a period prior to the relation-back day of 25 September 2012. The defendants argued that the amendment was statute barred under s 588FF(3) of the Corporations Act. The central issues before the Court were whether the amendment of the pleadings was barred by statute and whether the conditional leave to amend should be granted despite the statutory bar.

The Court held that the statutory bar in s 588FF(3) did not apply to the amendment of pleadings to include additional claims against existing defendants within the prescribed period. The Court distinguished between the amendment of existing proceedings and the extension of time within which to commence proceedings. It reasoned that while s 588FF(3) was concerned with the commencement of proceedings, the statutory bar did not preclude amendments to add new causes of action against existing defendants within the limitation period. The Court concluded that the powers of amendment were picked up by s 79 of the Judiciary Act and that the amendment of pleadings to add new material facts was permissible under the Federal Court Rules.

The Court answered the preliminary questions as follows: each of the companies listed in Annexure 1 was insolvent from 30 March 2012 to 25 September 2012, none of the claims added by the plaintiffs were statute barred by s 588FF(3), and the conditional leave to amend should be granted. The Court's decision allows the liquidators to proceed with the amended claims for unfair preferences within the prescribed period, despite the statutory bar on extending the time for commencing proceedings.