Carter, in the matter of Spec FS NSW Pty Ltd (In Liquidation)

In the Federal Court of Australia, the liquidator of Spec FS NSW Pty Ltd (In Liquidation) sought leave to amend the originating application and statement of claim to bring proceedings in his capacity as liquidator of additional companies, including claims outside the limitation period. The Commissioner of Taxation did not oppose the grant of leave to amend, but two directors, Messrs Willett and Wentworth, who were against whom indemnity was sought under s 588FGA of the Corporations Act 2001 (Cth), did oppose the grant of leave to amend. The court had to decide whether the directors had standing to oppose the grant of leave to amend, and if the leave to amend should be granted under Federal Court Rules 2011 (Cth) r 8.21. The court also had to consider whether the proposed amended pleadings were deficient, and whether material facts of agency were pleaded.

The court held that the directors had standing to oppose the grant of leave to amend because they would be affected by the potential increase in liability if the amendments were allowed. However, the court held that the leave to amend should be granted if the deficiencies in the proposed amended pleadings were remedied. The court found that there were some material deficiencies in the proposed amended pleadings, but if those deficiencies were remedied, leave to amend should be granted. The court made directions to allow the liquidator to remedy the pleading deficiencies and obtain leave to amend without the need to file a further interlocutory application.

The court refused leave to amend the originating application and statement of claim in the form proposed. However, the court made directions to allow the liquidator to remedy the deficiencies in the proposed amended pleadings and obtain leave to amend without the need to file a further interlocutory application. The court ordered the Commissioner to provide particulars of the taxation liabilities to which the payments were applied, and the liquidator to serve a further draft amended statement of claim and originating application. If any party opposed the leave to amend, they had to file written submissions, and if leave to amend was not opposed, the parties had to prepare draft consent orders. The interlocutory application was adjourned for further directions following compliance with the orders.