Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson

The appeal concerned liquidators of Octaviar Administration Pty Ltd and their application to extend the time for bringing proceedings under section 588FF of the *Corporations Act 2001* (Cth). The liquidators had obtained an *ex parte* "shelf" order extending time for all proceedings against all persons. This order was later set aside by a judge of first instance, specifically in relation to proceedings against the Commissioner of Taxation. The liquidators sought to challenge this setting aside order.

The primary legal issues before the Court of Appeal were whether the directors of Octaviar Administration Pty Ltd, who would be liable under a statutory indemnity to indemnify the Commissioner for any loss arising from a voidable transaction order, were entitled to an opportunity to be heard before the extension of time order was made. The Court also considered the nature of the "right, interest or expectation" that would give rise to such a right to be heard, and the implications of the directors' liability under section 588FGA of the *Corporations Act 2001* (Cth).

The Court of Appeal reasoned that the directors possessed a sufficient interest in the outcome of the *ex parte* application for an extension of time, given their potential liability under section 588FGA. This interest, the Court held, gave rise to a right to be heard, and the failure to provide this opportunity constituted a breach of the duty of candour owed to the court. Consequently, the order setting aside the "shelf" order as against the Commissioner was varied to clarify its application to proceedings brought against the Commissioner in relation to liabilities under section 588FGA.

The Court granted leave to appeal and directed that a notice of appeal be filed. It varied the previous order to specify that the setting aside of the "shelf" order applied in respect of proceedings brought against the Commissioner of Taxation under section 588FF to the extent that such proceedings were based on payments of liabilities referred to in section 588FGA(1). The appeal was otherwise dismissed, and the matter was remitted for determination of the remaining aspects of the original application. The applicants were ordered to pay the costs of two respondents, with no order for costs in favour of or against the Commissioner.