GH1 Pty Ltd (in Liquidation) v Bazzo - [2025] WASC 351

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GH1 PTY LTD (IN LIQUIDATION) -v- BAZZO [2025] WASC 351
CORAM:   SOLOMON J
HEARD:   18 JUNE 2025
DEFENDANTS' FURTHER SUBMISSIONS 25 JUNE 2025 & 9 JULY 2025
PLAINTIFFS' FURTHER SUBMISSIONS 2 JULY 2025

DELIVERED          :   27 AUGUST 2025
FILE NO/S:   CIV 2143 of 2021
BETWEEN:   GH1 PTY LTD (IN LIQUIDATION)
First Plaintiff
WILLIAM JAMES HARRIS AND ROBERT MICHAEL KIRMAN as joint and several liquidators of GH1 PTY LTD (IN LIQUIDATION)
Second Plaintiff
AND
TINA MICHELLE BAZZO
First Defendant
LILIC INVESTMENTS PTY LTD
Second Defendant

FILE NO/S: CIV 2145 of 2021
BETWEEN: GH1 PTY LTD (IN LIQUIDATION)
First Plaintiff
WILLIAM JAMES HARRIS AND ROBERT MICHAEL KIRMAN as joint and several liquidators of GH1 PTY LTD (IN LIQUIDATION)
Second Plaintiff
AND
TINA MICHELLE BAZZO
First Defendant
GHT (WA) PTY LTD in its own capacity and as trustee for THE GUCCE HOLDINGS TRUST
Second Defendant
119 NICHOLSON ROAD PTY LTD
Third Defendant
220 ST GEORGE'S TERRACE PTY LTD
Fourth Defendant
ABERNETHY LAND COMPANY PTY LTD
Fifth Defendant
GOLD CLASS NOMINEES PTY LTD
Sixth Defendant
PRADA PTY LTD
Seventh Defendant

Catchwords:

Corporations Law - Application to Set Aside Orders Extending Validity of Writ - Order made by Master - Interpretation of Supreme Court (Corporations) Rules 2013 r 1.10 and r 2.7 - Rules of the Supreme Court 1971 (WA) O 7 r 1 and O 3 r 5 - Discretion to extend time for service - De novo review of ex parte orders - Factors in considering extension of time in proceedings under s 588FF of the Corporations Act 2001 (Cth)

Legislation:

Corporations Act 2001 (Cth), s 79, s 180, s 181, s 182, s 545, 588FB, 588FC, 588FDA, 588FE, 588FF, s1317, s 1317H, s 1322
Rules of Supreme Court 1971 (WA), O 2 r 1(3), O 3 r 5, O4 r 1(a), O 7 r 1, O 7 r 2
Supreme Court (Corporations) Rules 2013, r 1.3(1)(a), r 2.2(1)(a), r 2.2(3)(a), r 2.4(1)
Supreme Court (Corporations) Rules 2023 (Vic), r 1.10, r 2.7
Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 3.02

Result:

Application refused

Category: B

Representation:

CIV 2143 of 2021

Counsel:

First Plaintiff	:	Ms J Taylor SC
Second Plaintiff	:	Ms J Taylor SC
First Defendant	:	Mr S Penglis SC & Ms B Tariq
Second Defendant	:	Mr S Penglis SC & Ms B Tariq

Solicitors:

First Plaintiff	:	HWL Ebsworth Lawyers (Perth)
Second Plaintiff	:	HWL Ebsworth Lawyers (Perth)
First Defendant	:	Alan Rumsley
Second Defendant	:	Alan Rumsley

CIV 2145 of 2021

Counsel:

First Plaintiff	:	Ms J Taylor SC
Second Plaintiff	:	Ms J Taylor SC
First Defendant	:	Mr S Penglis SC & Ms B Tariq
Second Defendant	:	Mr S Penglis SC & Ms B Tariq
Third Defendant	:	Mr S Penglis SC & Ms B Tariq
Fourth Defendant	:	Mr S Penglis SC & Ms B Tariq
Fifth Defendant	:	Mr S Penglis SC & Ms B Tariq
Sixth Defendant	:	Mr S Penglis SC & Ms B Tariq
Seventh Defendant	:	Mr S Penglis SC & Ms B Tariq

Solicitors:

First Plaintiff	:	HWL Ebsworth Lawyers (Perth)
Second Plaintiff	:	HWL Ebsworth Lawyers (Perth)
First Defendant	:	Alan Rumsley
Second Defendant	:	Alan Rumsley
Third Defendant	:	Alan Rumsley
Fourth Defendant	:	Alan Rumsley
Fifth Defendant	:	Alan Rumsley
Sixth Defendant	:	Alan Rumsley
Seventh Defendant	:	Alan Rumsley

Case(s) referred to in decision(s):

89 Burswood Road Pty Ltd v William James Harris and Robert Michael Kirman as joint and several liquidators of GH1 Pty Ltd (In Liq) (ACN 099 191 714) [2021] WASCA 178
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Barnes v Addy (1874) LR 9 Ch App 244
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158
Cussen v Sinoace Holdings Ltd [2024] FCA 716
Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95
Entyr Ltd v Eastman [2023] WASC 469
Erpen v IG Markets Ltd [2016] WASC 35
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Great Southern Ltd (In liq) v Young [2014] WASC 481
H2 Migration & Education Pty Ltd v Gu [2023] WASC 199
Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; 54 VR 325
In the matter of Globaltech Corporation Pty Ltd [No 2] [2024] WASC 259
Litmus Australia Pty Ltd v Canty [2006] NSWSC 196
Mighty River International v Mineral Resources [2017] WASC 298
Mineral Resources Limited v Vlajsavljevich [2023] WASC 415
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Polodna v Mattiaccio [2017] WASC 294
Polodna v Mattiaccio [2019] WASCA 21
Popovic v Panagoulias [2014] WASCA 86
R v King (1936) 55 CLR 499
Re Australian Property Custodian Holdings Ltd (in liq) [2015] VSC 745
Robert Michael Kirman as liquidator of ACN 142 745 337 (In Liq) [2020] WASC 129
Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213

SOLOMON J:

These reasons concern two separate actions; CIV 2143 and CIV 2145, each of 2021 (Actions). As will be explained in more detail, the defendants apply by summons dated 13 November 2023 to set aside orders made by the Master in October 2022 to extend the validity of the writs in each of the Actions.

Factual and legislative background

In May 2017, following a period of external administration, liquidators (the liquidators) were appointed to GH1 Pty Ltd (GH1) and five other related companies, that is, six companies in total. GH1 is the first plaintiff in each of the Actions. The liquidators are the second plaintiff in each of the Actions. Tina Michelle Bazzo (Ms Bazzo) is the first defendant in each of the Actions. The other defendants in both Actions are companies associated with Ms Bazzo and Mr Allen Caratti.
In order to understand the procedural background to the present applications, it is necessary to outline the relevant statutory framework. In these reasons, references to any statutory provisions are references to provisions of the Corporations Act 2001 (Cth) (Corporations Act) unless otherwise stipulated.
Division 2 of pt 5.7B of ch 5 (div 2) of the Corporations Act is headed 'Voidable transactions' and sets out various types of transactions. Section 588FE provides that a transaction may be voidable if it comes within one of the various types of transactions set out in div 2. Section 588FF(1) provides for the making of an application by a company's liquidator for various remedies on the basis that a transaction was a voidable transaction under s 588FE. Section 588FF(3)(a) provides that an application under s 588FF(1) must be made within a finite time. Section 588FF(3)(b) provides that on an application of the liquidator, the court may extend the time in which to commence an application under s 588FF(1). In short, an application challenging a transaction under div 2 as a voidable transaction must be made within the prescribed time or such longer time as the court may order.

Under s 588FF(3)(a), the liquidators of GH1 were required to commence an application under s 588FF(1) by 4 April 2020.[1] By applications dated 13 December 2019 and 9 January 2020, the liquidators of all six companies, including GH1, applied under s 588FF(3)(b) to extend the time for the making of any application under s 588FF(1) to 31 October 2021.
[1] 'Defendants' substituted outline of submissions in support of application to set aside extension of validity of writ', 10 March 2025 [6] (Defendants' Substituted Submissions); 'Plaintiffs' outline of responsive submissions in opposition to application to set aside extension of validity of writ', 22 May 2025 [4] (Plaintiffs' Responsive Submissions); Robert Michael Kirman as liquidator of ACN 142 745 337 (In Liq) [2020] WASC 129 [4] (Kirman).
On 16 January 2020, the court ordered service of the applications to any person or entity that may be affected by the proposed orders. Ms Bazzo, Mr Caratti and entities associated with them (interested parties) were served with the application. The matter was heard by the Master on 16 March 2020. The interested parties were represented at the hearing and opposed the applications. The interested parties included the defendants in the Actions (ts 20).[2]
[2] Transcript, Supreme Court of Western Australia, 18 June 2025, 20.
On 30 March 2020, the Master made the orders sought, extending time to bring an action under s 588FF(1) to 31 October 2021. The orders were made in general terms in respect of all six companies. The specific defendant and the proposed content of any particular claim was not identified.
On 23 April 2020, the Master published reasons in respect of the orders of 30 March 2020. The reasons include the following observations:
Whilst an extension order under s 588FF(3)(b) will generally specify the transactions and persons in respect of which it is made, it is now clear that where a liquidator cannot by the end of the three year period identify all transactions and parties to be pursued under s 588FF, the court can grant an extension in general terms without notice or reference to any particular or identified defendant or any particular section 588FF(1) transaction. These are so called 'shelf' orders.[3]
…
The fact is the plaintiffs are dealing with a very complex business or businesses. They have been appointed only over eight entities of a potential of one hundred or more entities involved in the business. For reasons which I will come to below. The liquidators have so far had access in the course of their employment to a very limited range of books and records. It is clear from the affidavit evidence the liquidators have not as yet been able to identify, investigate and assess potential voidable transactions arising from the dealings of the liquidation entities.
As matters stand at present, the liquidators calculate the liabilities of the liquidation entities at over $310 million. Of that amount just under $150 million is claimed by the Australian Tax Office. The extent of the insolvency gives some indication of the size and complexity of the business.[4]
…
In this case the volume of evidentiary material and the investigations still to be undertaken in my view make it impractical for any party to take a final decision as to whether or not proceedings should be issued. As counsel for the interested parties pointed out the length of the extension is unusual - effectively 18 months when the limitation period itself is only three years. But what is clear from the evidence in this case is that much further work is needed before any final decision to institute proceedings is taken. To refuse an extension of time at this stage because funding in all its aspects is not guaranteed is not appropriate.[5]
[3] Kirman [10].
[4] Kirman [14] - [15].
[5] Kirman [23].
The interested parties appealed the decision of the Master. On 8 October 2021, the Court of Appeal published reasons dismissing the appeal.[6] The Court of Appeal's reasons included references to unchallenged findings of the Master, including the delays and difficulties arising from the significant complexity and scale of the issues and the limited access to information, books and records.[7]
[6] 89 Burswood Road Pty Ltd v William James Harris and Robert Michael Kirman as joint and several liquidators of GH1 Pty Ltd (In Liq) (ACN 099 191 714) [2021] WASCA 178 (Appeal decision).
[7] Appeal decision [49].
The Court of Appeal also observed that it would be unreasonable to expect the liquidators to secure sufficient funding for the inevitably lengthy and complex litigation before making a final decision on the prospects of success and the overall costs. Any litigation funder would require advice as to prospects of success and overall costs before agreeing to finance lengthy and complex litigation.[8]
[8] Appeal decision [79].
While those matters are not directly relevant to the considerations applicable on these applications, they constitute important background.
Pursuant to the orders made by the Master on 30 March 2020, the Actions were commenced by writ of summons dated 29 October 2021, that is, two days before the expiry of the extended time period.
By August 2022, the liquidators had not served the writs. On or about 4 August 2022, the liquidators (through their lawyers) wrote to Ms Bazzo. At around the same time, the liquidators also communicated with the lawyer who continued to represent the interested parties. Those communications continued in the following months.
In contrast to the broad sweep of the 'shelf' orders of March 2020, in the communications of August and September 2022, the liquidators provided to Ms Bazzo and the lawyers for the interested parties (and thereby the defendants to the Actions) details of the allegations advanced in the Actions. In those communications, the liquidators' lawyers advised that they had filed writs in respect of the Actions. The liquidators' lawyers went on to advise that they were instructed not to serve the writs but to seek a resolution without the need to progress the Actions. To that end, the liquidators invited proposals for resolution.
By letter dated 8 August 2022 to the lawyers for the interested parties (and, it appears, Ms Bazzo), the liquidators' lawyers sought to advance settlement negotiations. The letter concluded by advising that they were instructed to continue to pursue the Actions until a resolution was reached, either by settlement or by court order.[9]
[9] Affidavit of William Harris, 21 October 2022, 295.
Over the following weeks, the parties to the Actions and their lawyers arranged and agreed to attend a formal mediation before a retired judge of the Federal Court of Australia. The mediation was set for 4 November 2022.[10]
[10] Affidavit Tina Bazzo, 21 November 2024 [9].
In the meantime, the writs in respect of the Actions were due to become stale, unless served by 28 October 2022.
On 14 September 2022, a lawyer for the liquidators wrote to the lawyer for the defendants in the Actions regarding the mediation. In that email, the lawyer also asked if the defendants would consent to an extension of time for service of the writs. There appears to have been no response to that query. On 29 September 2022, a lawyer for the liquidators wrote again to the lawyer for the defendants in the following terms:[11]
We also take this opportunity to query a final time, whether your clients will agree to consent to an extension of time for service of the Claims. In the absence of agreement in that regard, we will take instructions on an application to extend time for service and/or to serve the documents within the existing timeframes.
[11] Affidavit William Harris, 31 January 2025, 5.
There appears to have been no response. On 5 October 2022, a lawyer for the liquidators telephoned the lawyer acting for the defendants to discuss preparation for the mediation. In that call, the liquidators' lawyer again sought the consent of the interested parties to the liquidators' foreshadowed application to extend the validity of the writs. The response from the interested parties' lawyer was that he was instructed not to consent, but he noted that it was up to the liquidators to apply, that such an application was usually made ex parte, and that his consent was therefore not required. He added that he thought it would be more cost and time‑effective to serve the writs and adjourn the Actions until after the mediation.[12]
[12] Affidavit of William Harris, 21 October 2022 [27].
The liquidators elected not to serve the writs. Rather, in each of the Actions, the liquidators made an ex parte application by letter dated 21 October 2022 to extend the writ against all defendants until 28 October 2023. The applications were supported by an affidavit of one of the liquidators, Mr William Harris, the first‑named second plaintiff.
In his affidavit, Mr Harris explained the background and annexed the correspondence with the lawyers for the interested parties of August 2022. Mr Harris also explained that a mediation before a retired judge had been agreed and scheduled for 4 November 2022. In respect of the delay, Mr Harris deposed to the following:[13]
[13] Affidavit of William Harris, 21 October 2022 [15] - [19].
The liquidators were significantly delayed in accessing books and records of the Liquidation Entities and, consequently, in conducting the requisite statutory investigations. Those considerations largely informed the Liquidators' application to Court for an extension of the limitation period for voidable transaction claims in relation to the Liquidation Entities (excluding IME and PT Sueisan). The relevant proceedings in relation to that application, which was successful in obtaining a 'shelf order' extension to 31 October 2021 were proceedings COR 248 of 2019 and COR 2 of 2020 for Whitby. Attached to this affidavit and marked 'WJH3' are copies of those orders.
Following the ultimate dismissal, in proceedings COR 104 of 2018, CACV 38 of 2019 and CACV 39 of 2019, of appeals by Ms Bazzo (in respect of GH1) and Mr Caratti (in respect of ACN) in relation to the examination summonses that were caused to be issued to them by the Liquidators, the Liquidators were able to conduct the examinations of:
(a)Mr Caratti in relation to ACN on 16 March 2021 and 17 March 2021; and
(b)Ms Bazzo in relation to GH1 across 11 hearings heard between 19 July 2021 and 29 September 2021.
The limitation period in relation to the cause of action that these proceedings concern was due to expire on 31 October 2021. In order to preserve the claims that had been identified (i.e. being those described in the Writ of Summons in this action), I instructed HWL Ebsworth Lawyers to file the Writ in this action.
In order to reduce costs and given the Liquidators':
(a)then funding position;
(b)expectation that other claims relevant to GH1 and the other Liquidation Entities might be identified against Mr Caratti, Ms Bazzo and their other entities; and
(c)expectation that the identification of broader claims might be relevant to and have some bearing upon the Liquidators' ability to obtain litigation funding
the Liquidators instructed HWL Ebsworth to defer service of the Writ of Summons in this action.
That approach was taken in order to afford the Liquidators time to:
(a)consider and identify all potential claims for/in relation to each of the Liquidated Entities;
(b)conduct further investigations to 'prove up' the identified claims; and
(c)assess commercial considerations (including the capacity of defendants to satisfy any judgment against them),
with a view to the Liquidators ultimately approaching Mr Caratti, Ms Bazzo and other entities (once the above matters had been attended to) to discuss, on a without prejudice basis, a possible global resolution of all claims for each of the Liquidated Entities.
On 26 October 2022, orders were made by the Master extending the writ against all defendants until 28 October 2023. There was no hearing; the orders were made on the papers.
The writs were ultimately served on the defendants between 13 and 26 October 2023 after orders for substituted service on Ms Bazzo were obtained.
The relevant history of the proceedings may be summarised as follows:
1.The liquidators were appointed in May 2017;
2.The applications under div 2 in respect of voidable transactions were required to be made by 4 April 2020;
3.On 13 December 2019 and 9 January 2020, the liquidators applied under s 588FF(3)(b) to extend the time to bring applications;
4.On 30 March 2020 the Master extended time to bring the applications to 31 October 2021, that is, an extension of approximately 18 months;
5.The Actions were commenced by writ on 29 October 2021;
6.The validity of the writs was due to expire on 28 October 2022;
7.On 21 October 2022 the liquidators applied for an extension of the validity of the writs;
8.On 26 October the Master extended the validity of the writs until 28 October 2023;
9.The writs were served on the defendants between 13 and 26 October 2023;
10.An application to set aside the orders of 26 October 2023 was made by summons of 13 November 2023.

It is apparent from this summary that the writs were filed some 18 months after the initial deadline prescribed by s 588FF(3) and were served approximately a further two years later - that is, three and a half years after the initial deadline.

Applications

The defendants to the Actions bring these applications to set aside the Master's orders extending the validity of the writ in each action. The applications to set aside the Master's orders for extension of the writs were opposed by the liquidators.
Ms Bazzo swore an affidavit in support of these applications dated 21 November 2024. Ms Bazzo confirmed having received the letters of August 2022 referred to by Mr Harris in his affidavit but said that they came with 16 separate items of correspondence, were overwhelming and could not be answered by the deadline provided of 18 August 2022. Ms Bazzo also advised that the mediation before the retired judge had not resulted in any agreement.
Ms Bazzo advised that she will be prejudiced by orders permitting the continued validity of the writs. She explained that the relevant events took place nine years ago, and that her access to historical records is limited. Ms Bazzo deposed to her medical condition which included post‑traumatic stress disorder. Her medical condition was a significant impediment to her being able to deal with litigation. She also deposed to matters which she contended amounted to evidence of a good defence to the actions.
The defendants also relied upon the 11 March 2024 affidavit of Mr Benjamin Mick Caratti, a solicitor employed by the defendants' lawyer, which set out some of the background. That affidavit also annexed financial statements of GH1 lodged by the liquidators, which disclosed indemnity payments from the Australian Taxation Office. It is apparent from the Master's reasons in the application to extend time under s 588FF(3) that the Australian Taxation Office is GH1's largest creditor.
The liquidators relied upon the affidavit of Mr Harris of 21 October 2022 filed in support of the application to the Master. Mr Harris swore a further affidavit dated 31 January 2025 in response to the defendants' applications. Mr Harris referred in that affidavit to the letter of 4 August 2022 to reiterate that the defendants have been aware of the proceedings since at least 4 August 2022. He also deposed to communications between the parties in August and September of 2022 as explained at [14] ‑ [15] above.
Mr Robert Kirman, the second-named second plaintiff and liquidator, swore a further affidavit dated 13 June 2025 in response to the defendants' application. The affidavit annexed a draft statement of claim for the respective actions, settled by senior counsel.

The Actions

It is convenient at this point to provide a brief overview of the Actions.
In CIV 2143, the plaintiffs' claim concerns two properties comprising the 'Gnarda Farm'. The writ alleges that in September 2016, Ms Bazzo caused the sale of the Gnarda Farm from GH1 to the second defendant for no or inadequate consideration. The writ alleges that Ms Bazzo's conduct was in breach of her duties to GH1, the first plaintiff. Those breaches are alleged to constitute contraventions of s 180, s 181 and s 182 of the Corporations Act. This, it is claimed, gives rise to compensation under s 1317H, and constituted breaches of fiduciary, tortious and 'general equitable duties' giving rise to damages, equitable compensation and an account of profits.
As against the second defendant, the writ alleges that the sale was a related party uncommercial transaction under s 588FE(4) of the Corporations Act, an insolvent transaction under s 588FC, an unreasonable director‑related transaction under s 588FDA, liability under the two limbs in Barnes v Addy,[14] and that the second defendant procured, aided and abetted Ms Bazzo's alleged breach of duties within the meaning of s 79 of the Corporations Act. The plaintiffs seek relief against the second defendant in the form of declarations that the relevant transactions were insolvent, uncommercial, voidable and unreasonable director-related transactions as those terms are defined in the the Act, orders for payment under s 588FF, a declaration of the second defendant's involvement under s 79 of the Corporations Act, compensation under s 1317H of the Corporations Act, and general damages, equitable compensation and an account of profits.
[14] Barnes v Addy (1874) LR 9 Ch App 244.
The writ in CIV 2145 relates to the transfer of shares in 2017 in five companies (which are the third to seventh defendants) from GH1 to Ms Bazzo in respect of shares in the seventh defendant, and to the second defendant in respect of shares in the third, fourth, fifth and sixth defendants. The writ alleges that the transfers were ineffective and alternatively were uncommercial transactions under s 588FB, unreasonable director‑related transactions under s 588FDA, and voidable transactions under s 588FE. The writ alleges that, by the transfers, Ms Bazzo breached her duties to GH1 and that the other defendants were knowingly concerned with and assisted those breaches.
The writ claims against each of the various defendants a declaration of ownership in respect of the relevant shares. In the alternative it claims for relief under s 588FF and s 1317, and seeks a raft of declarations and remedial orders relating to involvement and/or assistance with alleged breaches of various provisions of the Corporations Act and breaches of fiduciary duties. The writ also seeks damages, equitable compensation and an account of profits.
Other than the references to s 79, s 180 and s 181, the provisions of the Corporations Act referred to at [33] ‑ [36] above appear in div 2. As will be explained, that is significant because it impacts on the regulatory regime that applies to the commencement and the maintenance of the Actions. I turn now to that regulatory framework.

Regulatory framework

As noted, the Actions were each commenced by writ. Order 7 r 1 of the Rules of Supreme Court 1971 (WA) (RSC) provides that a writ is valid in the first instance for 12 months beginning with the date of its issue. Order 7 r 2 provides that where a writ has not been served on a defendant, the court may by order extend the validity of the writ for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire.

Basis of the application – de novo review

Order 58 r 23 provides that the court may set aside any order which has been made ex parte. The parties agreed that the application to extend the writ is heard de novo and that it is not necessary to demonstrate any error or non-disclosure in the original decision, nor is there any need to adduce additional material.
A review of the authorities suggests the matter is not quite that straightforward. In Bell Group NV (in liq) v Aspinall,[15] it was held that in order to enliven the court's jurisdiction to set aside an ex parte order under O 58 r 23, it is necessary for the applicant to adduce additional material which throws a new and different light on the situation of the parties involved.[16] In Popovic v Panagoulias,[17] the Court of Appeal doubted the correctness of the decision in Bell v Aspinall. The Court of Appeal went on to say:[18]
In Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639, the Court of Appeal of Victoria expressly declined to follow it and it is also inconsistent with the approach taken by the Court of Appeal of New South Wales in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104. In both of those cases, the court took the view that it was unnecessary to demonstrate error on the part of the initial judge or to put additional material before the court. Rather, the matter was to be heard de novo.
As ex parte orders are, by definition, made in denial of basic principles of procedural fairness, that approach would appear to be more consistent with principle than the jurisdictional threshold imposed in Bell v Aspinall on the exercise of the power to set aside such orders. Pending re‑consideration of Bell v Aspinall, it would therefore be prudent for judges at first instance to deal with applications under O 58 r 23 on the alternative bases that the position is as stated in Bell v Aspinalland upon a broader review of the issues de novo. If there are circumstances where there would be a different outcome depending on which approach is taken, the issue of principle can then be resolved by this court.
[15] Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 (Bell v Aspinall).
[16] Bell v Aspinall (569).
[17] Popovic v Panagoulias [2014] WASCA 86 (Popovic).
[18] Popovic [54] - [55].
In Erpen v IG Markets Ltd,[19] Master Sanderson made the following observations:[20]
An order extending the validity of a writ made on an ex parte basis is provisional in the sense that it may be set aside pursuant to O 58 r 23 of the Rules of the Supreme Court 1971 (WA). The traditional view has been to set aside an ex parte order a party must either adduce additional material evidence or establish there was material non-disclosure by the party who obtained the order. This is the effect of the Full Court's decision in Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561. Recently that approach has been questioned. In Popovic v Panagoulias [2014] WASCA 86 it was suggested a broader review of the issues de novo was required to reflect the fact that ex parte orders are made in denial of basic procedural fairness. At present it seems to be an open question which of these two approaches is proper.
[19] Erpen v IG Markets Ltd[2016] WASC 35 (Erpen).
[20] Erpen [8].
Adopting the direction of the Court of Appeal in Popovic, the Master concluded:[21]
In the event I have considered not only whether there was material non-disclosure by the plaintiff and whether the defendant has adduced additional material but also considering the matter afresh whether the validity of the writ should in fact have been extended.
[21] Erpen [8].
Just one year later, in Polodna v Mattiaccio,[22] the Master appears to have, in effect, adopted the position that the approach taken in Bell v Aspinall could be overlooked. In Polodna vMattiaccio,[23] the Court of Appeal considered an appeal against the Master's decision and noted that the Master approached the question of whether to set aside the earlier orders on the basis that the hearing before him was a review de novo. The Master had referred to and adopted without qualification the observations in Popovic, concluding that the law had shifted since the decision of Bell v Aspinall. The Court of Appeal noted that there was no challenge to the Master's position that the question of whether to set aside the earlier ex parte orders was to be determined on the basis that the hearing before him was a review de novo.[24] The Court of Appeal thus proceeded on that basis. Whilst the Court of Appeal did not expressly overrule the decision in Bell v Aspinall, it was content to proceed on the basis (agreed by the parties) of what it plainly regarded in Popovic as the preferable position, contrary to Bell v Aspinall.
[22] Polodna v Mattiaccio [2017] WASC 294 (Polodna).
[23] Polodna vMattiaccio [2019] WASCA 21 (Mattiaccio).
[24] Mattiaccio [31].
The approach of the Master, which was left undisturbed by the Court of Appeal in Mattiaccio, appears to be the position adopted by Strk J in In the matter of Globaltech Corporation Pty Ltd[No 2].[25] Somewhat contrastingly, in Mineral Resources Limited v Vlajsavljevich, Acting Master McDonald adopted the 'dual approach recommended in Popovic', noting that the applicant had in any event adduced evidence beyond the evidence provided in the ex parte application.[26]
[25] In the matter of Globaltech Corporation Pty Ltd[No 2] [2024] WASC 259 [230].
[26] Mineral Resources Limited v Vlajsavljevich [2023] WASC 415 [46].
Subsequently, the matter was considered by Howard J in Entyr Ltd v Eastman.[27] His Honour noted the parties' agreement that while the Court of Appeal in Popovic questioned the approach in Bell v Aspinall, it did not overrule it. Nevertheless, Howard J stated that Popovic was 'to the effect that the preferable approach is [the applicant] can apply for a re‑hearing (de novo) of the applications for the extensions of the writ without needing to put new material before the Court or to show a material non-disclosure'.[28]
[27] Entyr Ltd v Eastman[2023] WASC 469 (Entyr).
[28] Entyr [62].
Like Strk J and Howard J, I am persuaded that the decisions in Popovic and Savcor Pty Ltd v Cathodic Protection International APS[29] reflect the preferable course. Nevertheless, I am inclined to the view that the approach of Acting Master McDonald was strictly correct - to adopt at first instance the 'dual approach' set down in Popovic. And, as in the matter before Acting Master McDonald, here too there was evidence put before the court that was additional to evidence before the Master on the ex parte application. As noted above, Ms Bazzo swore an affidavit dated 21 November 2024 in support of the applications. That affidavit provided further material information that was not before the Master when the orders for extension of the writs were made. In addition, each of Mr Harris (31 January 2025) and Mr Kirman (13 June 2025) swore affidavits in opposition to this application and effectively in support of their position on any de novo consideration of the matter. That material too included information that was not previously before the Master. In my view, the additional information provided is sufficient to throw some new light on the situation. Accordingly, I should consider the matter de novo and on the basis of the evidence now before the court.

Initiating process

[29] Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 (Savcor). As discussed in Popovic at [54] ‑ [55] and at [40] of these reasons.

Order 4 r 1(a) of the RSC provides that subject to the provisions of any act and the RSC, every action must be commenced by a writ. Thus ordinarily, claims for breach of fiduciary duty, damages and equitable compensation such as those made in these actions, would be required to be commenced by writ of summons.
In contrast, r 1.3(1)(a) of the Supreme Court (Corporations) Rules 2013 (Corporations Rules) is in the following terms:
(1)Unless the Court otherwise orders –
(a)these rules apply to a proceeding in the court under the Corporations Act or the ASIC Act, that is commenced on or after the commencement of these rules; (emphasis added)
Rule 2.2(1)(a) of the Corporations Rules provides that:
(1)Unless these rules otherwise provide, a person must make an application required or permitted by the Corporations Act to be made to the Court —
(a)if the application is not made in a proceeding already commenced in the Court — by filing an originating process;
Rule 2.2(3)(a) then provides that an originating process must be in accordance with Form 2. Pursuant to r 2.4(1) the Form 2 must be supported by an affidavit stating the facts in support of the process and annexing a record of a search of the records maintained by ASIC.
Thus, claims advanced 'under the Corporations Act' are governed by the Corporations Rules and an application permitted by the Corporations Act must be commenced by an originating process supported by affidavit. In these actions, the plaintiffs advance causes both under the Corporations Act and more broadly in law and equity. In those circumstances, a question arises as to whether the claims are made 'under the Corporations Act' and thus are governed by the Corporations Rules. If that is so, then they were required to be commenced by originating motion supported by affidavit, not by writ of summons.
In Litmus Australia Pty Ltd v Canty, albeit in a different context, Barrett J said:[30]
A proceeding will be a 'proceeding … under the Corporations Act or the ASIC Act' if the claims made and relief sought have their source wholly within the relevant Act. But a proceeding will not fail to be a 'proceeding … under the Corporations Act or the ASIC Act' just because it also advances claims and seeks relief that have some other source.
[30] Litmus Australia Pty Ltd v Canty [2006] NSWSC 196 [43].
Adopting the observations of Barrett J, each of Hill J in Destec Pty Ltd v Mineral Resources Limited[31] and Seaward J in H2 Migration & Education Pty Ltd v Gu,[32] held that a hybrid claim advancing matters under both the general law and the Corporations Act are proceedings 'under the Corporations Act' and are therefore governed by the Corporations Rules and must be commenced by originating process supported by affidavit.[33] In each of those cases it was held that the commencing of such a proceeding by writ of summons was an error.
[31] Destec Pty Ltd v Mineral Resources Limited [2020] WASC 95 (Destec).
[32] H2 Migration & Education Pty Ltd v Gu [2023] WASC 199 (H2 Migration).
[33] Destec [13] - [15]; H2 Migration [30].
On the basis of those authorities, the plaintiffs conceded that the Actions the subject of these applications ought to have been commenced by an originating process under the Corporations Act supported by affidavit and not by writ of summons.
On the basis of the conclusions in Destec and H2 Migration, the parties also agreed that the error in commencing the actions by writ of summons did not render the proceedings a nullity. As Seaward J observed in H2 Migration, to conclude otherwise would be contrary to the plain wording of O 2 r 1(3) of the RSC and potentially also contrary to s 1322 of the Act.
It is plain that the proceedings are not a nullity. The appropriate course, in the event that these applications are dismissed, is to order that the writs of summons stand as Form 2 originating processes nunc pro tunc and that the matter proceed by way of pleadings.[34]
[34] H2 Migration [55].
The parties also agreed that in the ordinary course, extension of the validity of a writ is governed by O 7 r 2 of the RSC which provides:
Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow.
If an extension of time is required in respect of a document that is not a writ, then the application is governed by O 3 r 5 which provides a general power to extend time as follows:
(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.
(3)The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.
There was no dispute that:
1.had the matter been properly and regularly commenced by writ, the extension of its validity would have been governed by O 7 r 1; and
2.had an extension of time been required in respect of a proceeding commenced under the Corporations Act, such an application would have been governed by O 3 r 5.

Competing positions

The defendants contended, in effect, that:
1.had the application been governed by O 3 r 5 in respect of a proceeding under s 588FF of the Corporations Act, the principles governing an extension of time would have been more restrictive than those that apply to the extension of a writ under O 7 r 1;
2.the plaintiff cannot have the benefit of its own error. On a de novo review of the application, the application ought to be governed by the more restrictive principles applying under O 3 r 5 rather than O 7 r 1;
3.that is particularly so as the appropriate order in the circumstances is that the writs of summons stand as Form 2 originating processes.

The plaintiffs contend that as the initiating process was in fact a writ of summons, the application should be governed by O 7 r 1 but that in any event, there is no substantive difference whether the application is determined by O 7 r 1, or O 3 r 5.
It is therefore necessary to determine which rule governs the de novo consideration of the application to extend the validity of the writ and whether there is any substantive difference between the rules.
In Horne v Retirement Guide Management Pty Ltd,[35] the Victorian Court of Appeal considered whether time should have been extended for service of an originating process under the Corporations Act. The circumstances were as follows.
[35] Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; 54 VR 325 (Horne).
In 2010, the applicants were appointed as liquidators to a group of companies. In March 2012, the liquidators sent letters of demand to the then putative respondents. The limitation period in respect of the liquidators' claims expired on 18 October 2013. On 17 October 2013, the liquidators filed an originating process supported by affidavit for claims under s 588FE and s 588FF. The hearing was fixed for 15 November 2013 and then adjourned to 20 December 2013. The day before, on 19 December 2013, the liquidators applied to extend the time for service of the originating process until 12 December 2014. The reasons were that there were related proceedings based on the same factual matrix that had been filed but not served, and the liquidators were without funds and were exploring avenues of funding. The application was largely successful and on 20 December 2013 the court extended the validity of the originating process and the time for service until 1 December 2014. The respondents became aware of the proceedings through their own inquiries; one respondent in October 2013 and the other in May 2014. The liquidators secured funding in November 2014 and served the respondents by 1 December 2014.
In December 2014, the respondents applied to have the orders extending time to 20 December 2014, set aside. On 10 July 2015, the application was dismissed. The respondents appealed that decision. In December 2015, Judd J upheld the appeal, holding that the court did not have the power to extend time and that in any event the exercise of the court's discretion to extend the date of service miscarried.[36]
[36] Re Australian Property Custodian Holdings Ltd (in liq) [2015] VSC 745 [107].
In Horne, the Court of Appeal considered an appeal against the decision of Judd J. In short, the Court of Appeal held that Judd J erred in that the court did have the power to extend time, but that Judd J was correct in that the discretion to extend time had miscarried.
A number of court rules were central to the decision of Judd J and the Court of Appeal in Horne. It is convenient to set them out.
First, r 3.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Victorian Supreme Court Rules) provided:
Extension and abridgement
(1)The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time.
(2)The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires.
(3)Unless the Court otherwise orders, any time fixed by these Rules or by any order fixing, extending or abridging time may be extended by consent without an order of the Court.
It will immediately be observed that r 3.02 of the Victorian Supreme Cout Rules is materially identical to O 3 r 5 of Western Australia's equivalent legislation, the RSC.
Secondly, the following provisions of the Supreme Court (Corporations) Rules 2023 (Vic) (Victorian Corporations Rules) were relied upon:
1.10
Unless the Corporations Act, the ASIC Act, or these Rules otherwise provide, the rules of this Court that provide for the extension or abridgment of a period of time fixed for the doing of any act or thing in relation to a proceeding apply to a proceeding to which these Rules apply.
…
2.7
(1)As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on—
(a)each defendant (if any) to the proceeding; and
(b)if the corporation to which the proceeding relates is not a party to the proceeding—the corporation.
(2)As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on—
(a)each respondent (if any) to the application in the interlocutory process; and
(b)if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process—the corporation.
The Victorian Corporations Rules are identical to the Corporations Rules in Western Australia, save that in r 1.10 the reference to 'these Rules' is a reference, in Western Australia, to the RSC.
The Court of Appeal in Horne began by considering whether the court had power under r 3.02 of the Victorian Supreme Court Rules to extend the time for service provided for in in r 2.7 of the Victorian Corporations Rules. The Court of Appeal first concluded that r 3.02 is a rule that provides for the extension of a period of time fixed for the doing of any act or thing in relation to a proceeding, and is therefore a rule to which r 1.10 of the Victorian Corporations Rules applies. Secondly, the Court of Appeal also concluded that r 2.7 of the Victorian Corporations Rules does not preclude extensions. Therefore, the Victorian Corporations Rules do not 'otherwise provide'. Thirdly, the Court of Appeal held that r 2.7 of the Victorian Corporations Rules fixes a time for service. The requirement to serve 'as soon as practicable', although a term which will vary dependant on the facts of each case, still amounts to a fixing of time, and in any event the words 'at least 5 days before the date fixed for hearing', plainly fix a time.[37] The Court of Appeal therefore concluded that r 3.02 of the Victorian Supreme Court Rules conferred a power to extend time to serve an originating process of a proceeding under the Corporations Act.
[37] Horne [108].
It follows that O 3 r 5 of RSC confers the same power.
Having established that the court has the power to extend time for service, the Victorian Court of Appeal then turned to the question of the exercise of discretion.
It is important to appreciate that unlike these applications, the Court of Appeal's consideration of the decision of Judd J was not a de novo review. It was necessary in the appeal to establish error in the exercise of the discretion in the sense explained in R v King.[38]
[38] R v King (1936) 55 CLR 499 as discussed in Horne at [72].
The Court of Appeal observed:[39]
In proposed ground 8 the applicants argued that Judd J erred in concluding that there was not a good reason for an extension. As the applicants have failed to establish any particular error in Judd J's discretionary decision, there is no occasion for this Court to consider for itself whether there was a good reason for granting an extension in this case. In any event, had it been up to us to exercise the discretion afresh, for the reasons given above, like Judd J, we would have refused the extension application.
[39] Horne [191].
In respect of the exercise of the court's discretion by Judd J, the Court of Appeal concluded:[40]
Judd J decided that in the circumstances of this case the applicants' reasons for seeking an extension, namely awaiting the outcome of another proceeding and seeking litigation funding, did not justify an extension. The applicants failed to establish any error in the judge's exercise of discretion. Leave to appeal should be refused in respect of proposed grounds 4 to 8.
[40] Horne [193].
In the course of its review of the history of the matter and the decision of Judd J, the Court of Appeal recorded that 'Judd J summarised the principles from the legislative provisions, rules and case law'. The Court of Appeal then set out the fourteen point summary of Judd J.[41]
[41] Horne [55].
Significantly, that summary included the following principles:
(6)The Corporations Rules impose a mandatory obligation to serve the Originating Process as soon as practicable.
(7)The regulatory context (statute and rules) informs the exercise of any discretion to extend time for service, including under r 5.12.
(8)On commencement of a proceeding, the liquidators must verify a proper basis for the allegations made in the proceeding.
(9)An extension under r 5.12 would not usually be granted to enable a plaintiff to further investigate the merits of the claims or obtain litigation funding.
(10)It is the duty of a plaintiff to serve legal process promptly. The obligation is more acute in the case of a proceeding commenced under s 588FF, arising directly under r 2.7 in relation to an Originating Process, and more generally under s 25 of the Civil Procedure Act.
(11)Even in the absence of a requirement under the rules to serve as soon as practicable, an applicant for an extension under r 5.12 would be required to demonstrate reasonable steps had been taken to serve the court process.
(12)A decision not to serve, made by a plaintiff for forensic or strategic purposes, is antithetical to the duty to serve promptly.
(13)An extension will not ordinarily be granted to facilitate a plaintiff's decision not to serve process on a defendant, whose whereabouts were known and who might readily be served.
(14)A delay in service of a proceeding commenced under s 588FF, in contravention of the applicable rules, is particularly serious if it occurs after
An issue arose in this application as to whether the Court of Appeal adopted, as authoritative, the principles of that summary. The principles articulated at subparagraphs (6), (7) and (10) are of particular relevance to a proper understanding of how the discretion ought to be exercised on a proper application of the relevant rules in this matter.
In Cussen v Sinoace Holdings Ltd,[42] it was said that the Court of Appeal in Horne 'adopted' Judd J's summary. If that is correct, then the principles articulated through Judd J's summary represent appellate level authority as to the proper understanding of the legislative provisions. That is all the more significant as the provisions are part of uniform national legislation with identical provisions applicable in Western Australia. I do not consider that the decision in Horne is plainly wrong. It would therefore follow that I should not depart from what was said in that decision.[43]
[42] Cussen v Sinoace Holdings Ltd [2024] FCA 716 [165].
[43] Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 [492]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 [135].
It must be said that the Court of Appeal's fulsome setting out of the summary of Judd J appears to be significant and to indicate at least some degree of approval. On the other hand, the Court of Appeal sets out the summary in its review of the background and it stops short of expressly endorsing the summary. I would not go so far as to accept the contention of the liquidators/plaintiffs that Horne at [110] is necessarily inconsistent with subparagraph (6) of the summary. However, neither do I consider that it can be said with confidence that the Court of Appeal adopted the summary. I doubt that is what the Court of Appeal intended by setting out the summary.
Rather, in my view, the Court of Appeal's position is better understood by its observation at [189]:
[Judd J] did, however, consider that the expedition required in proceedings under s 588FF and the requirement under the Rules for prompt service were factors to be taken into account when exercising the discretion to extend time for service.
The Court of Appeal found there was no error in that approach. In my view it follows that taking account of those matters is, on a proper construction of the legislative regime, an appropriate matter to consider in the exercise of the court's discretion under r 3.02 of the Victorian Supreme Court Rules. It follows that in exercising the discretion under O 3 r 5 in Western Australia, in respect of a proceeding under s 588FF of the Corporations Act, on the authority of Horne, it is appropriate to take into account the expedition required in proceedings under s 588FF and the requirement under the RSC for prompt service. To that extent, it may also fairly be distilled from Horne that the principles governing an application under O 3 r 5 in a proceeding under s 588EF and s 588FF may call for a somewhat different consideration that would ordinarily apply to an application under O 7 r 1. The expedition required in proceedings under s 588FF and the express requirement for prompt service under r 2.7 of the Corporations Rules are not matters that in the ordinary course would necessarily weigh upon the discretion to be exercised under O 7 r 1.
At the same time, it seems to me that the factors identified as appropriate considerations in Horne are applicable irrespective of whether the discretion is exercised formally under O 3 r 5 or O 7 r 1. That is particularly so in respect of the 'expedition required in proceedings under s 588FF'. A proper exercise of the discretion ought to turn upon an understanding of the substantive legislative regime rather than the happenstance of which particular rule the party adopted to commence its application. That is especially so where the process adopted by a party was an error.
The parties were strenuously at odds as to the basis for the de novo review. The defendants contended that it should be undertaken under O 3 r 5 as it was common cause that the commencement by writ was an error and the plaintiffs ought not to benefit from that error. The liquidators contended that the review should be undertaken under O 7 r 1 because the simple reality is that the proceedings were in fact commenced by writ and the proceedings so commenced remain valid.
Given that divergence of opinion, it is convenient at this point to consider the general principles that govern an application under each of those rules.
It was common cause that the discretion under O 3 r 5 is a remedial provision which confers on a court a broad power to relieve against injustice. An application under O 3 r 5 is ultimately to be determined having regard to the interests of justice in all the circumstances of the case, including taking into account case management considerations.[44]
[44] Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [105].
It also not in dispute that the applicable principle governing the exercise of the discretion under O 7 r 1 is by reference to the general justice of the case and by taking into account all the relevant circumstances.[45] In Entyr at [100], Howard J summarised factors governing an extension to the validity of a writ. This helpful summary of factors is not, however, exhaustive and is a list of factors that guide the assessment of the ultimate question; the interests of justice in the particular circumstances.
[45] Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158, see [52] and [54]; Great Southern Ltd (In liq) v Young[2014] WASC 481 [51] ‑ [54].
Ultimately, the interest of justice in all the circumstances determines the exercise of discretion under either O 7 r 1 or O 3 r 5. In my view and for the reasons explained above, in this application regardless of whether the formally enabling rule is O 3 r 5 or O 7 r 1, the de novo review should be undertaken exercising the court's discretion mindful of the expedition required in proceedings under s 588FF and the express requirement under r 2.7 of the Corporations Rules for prompt service. It matters not, in my view, that in Horne the proceedings were not commenced by writ.

Factors to consider in the exercise of the discretion

Against that legislative background, it is necessary to turn to the factors to be considered in the exercise of the court's discretion.
As explained by the Master on the application under s 588FF(3)(b), this is a large, complex and multifaceted liquidation.[46] The plaintiffs contend further that they are not ordinary plaintiffs. They are professional liquidators undertaking a complex and important function for the benefit of creditors. That means, in accordance with s 545(1) of the Corporations Act, they are not able to incur the expense of prosecuting the claim unless they can be satisfied that there is sufficient available property.[47] It also means that against any prejudice to the defendants, it is appropriate to consider the competing prejudice to creditors if the extension is not granted, being the loss of valuable claims that may produce recoveries for creditors. Although the delays relied upon for the application under s 588FF(3) are no longer directly relevant, the matter is to be considered against the delay that previously occurred in the context of a liquidation of very considerable scale and complexity.
[46] Kirman [9].
[47] Kirman [20].
The plaintiffs also point to delays in concluding the public examinations of Ms Bazzo and Mr Caratti due to legal challenges and to accommodate the circumstances of Ms Bazzo's medical condition. The delays meant that the examinations were not completed until September 2021. Thus, when the proceedings were filed out of necessity on 29 October 2021 just before the extended limitation period was due to expire, it was only a month after the liquidators had been able to conclude the examinations which had been delayed - primarily due to the defendants themselves.
At the time of making the application in October 2022, given the funding constraints faced by the liquidators and the expectation that other claims might be identified which might be relevant to the prospects of funding, the liquidators thought it prudent to defer service of the proceedings. The ongoing investigation and consideration of further claims would also inform the liquidators' commercial assessment of the proceedings.
Further, when the liquidators applied for an extension of the validity of the writs in October 2022, a mediation with senior counsel and before a retired judge had been arranged for 4 November 2022.[48]
[48] Plaintiffs' Responsive Submissions [35].
In those circumstances it was submitted to be reasonable for the liquidators not to serve the writs and incur contingent liabilities before the funding position was known.
The defendants emphasised that the period of three and half years from the standard statutory time limit is a very significant delay.
The defendants emphasised that the liquidators' conduct of the Actions was inconsistent with the legislative policy applicable to matters under the Corporations Act as explained in Horne. In particular, the defendants pointed to the liquidators having in effect arrogated to themselves the stay of the proceedings until a time of their choosing. This is not only inimical to the policy discussed in Horne, it also contrary to well‑established authority. It is the court that ought to determine the appropriateness of a stay. The court ought not to permit liquidators to engineer that outcome for themselves.
The defendants also submitted that the reasons advanced by the liquidators do not warrant an extension. The authorities make clear that ongoing funding investigations and settlement discussions are not generally sufficient to warrant an extension of time to serve the proceedings. The defendants also pointed to the financial statements produced in the affidavit evidence which, they contended, disclosed that in truth significant funds have been available to the liquidators.[49]
[49] Defendants' Substituted Submissions [48].

The defendants also submitted that it was significant that it was not until August 2022 that the defendants were made aware of the substance of the claims.
The defendants pointed also to both actual and presumptive prejudice. The actual prejudice relates to the impact on Ms Bazzo's medical condition, which is likely to be exacerbated by the maintenance of the Actions. The presumptive prejudice arises inevitably by reason of the time that has elapsed since the events the subject of the Actions.[50]
[50] Defendants' Substituted Submissions [59] ‑ [61].
In Savcor, the Victorian Court of Appeal considered an appeal in relation to the extension of time for the validity of a writ. Gillard AJA (with whom Ormiston and Buchanan JJA agreed) said at [41]:
The principles which guide a court on an application to extend the period for service have been (citations omitted) discussed in Van Leer Australia Pty Ltd v. Palace Shipping K.K. and Simsmetal Pty Ltd, Irving v. Carbines especially at p.865, Ramsay v. Madgwicks (a firm) and the Kleinwort Benson case. Those cases establish the following general propositions:
(i)It is the duty of the plaintiff to serve the writ promptly.
(ii)There must be a good reason for the grant of an extension and if the application is made after the period has expired the reason must be one of substance.
(iii)It is not possible and indeed is unwise to attempt to define the circumstances which amount to a good reason. It is trite observation but not very helpful that whether or not it is a good reason must depend upon all the circumstances of the particular case. As a general proposition difficulties serving the writ within the 12 months' period will usually establish a good reason. By way of example where the defendant is evading service, his whereabouts are unknown or some other difficulty is experienced in serving the defendant.
(iv)By reference to decided cases it is possible to compile a list of the circumstances which constitute a good reason. The cases also provide examples where the circumstances have not been a good reason to extend the period of validity. For example, it is not a good reason that negotiations are continuing between the parties, or legal aid has not been granted and the plaintiff is waiting for the grant. There are cases which say that the latter proposition is not a good reason. But in Waddon v. Whitecroft‑Scovill Ltd it was said delay caused by the authorities to grant aid may be a good reason. Other examples which have not found favour are difficulty tracing witnesses or obtaining evidence.
Those principles were also adopted by the Court of Appeal in Horne at [187]. In this jurisdiction it has also been said that continuing negotiations are not a good reason for an extension.[51]
[51] Mighty River International v Mineral Resources[2017] WASC 298 [56].

Disposition

In my view, the matter is finely balanced. The period of delay is significant. Two of the principal reasons relied upon by the liquidators have generally been regarded as insufficient: ongoing settlement negotiations and the lack of funding. There is undoubted force in the defendants' submission that the liquidators have in effect managed the progress (or more accurately, the lack of progress) of the Actions to suit their own purposes.
However, the overriding criterion is the interests of justice. An assessment of where that lies is driven by a careful analysis of all the circumstances. Factors that may be insufficient or even fatal in one case may not have the same force in other circumstances. None of the various 'good reasons' or 'insufficient reasons' referred to in the authorities discussed above has statutory or determinative force. Rather they are all elements in the overall evaluation of the interests of justice in the particular circumstances.
In this matter, the scale and complexity of the task that has faced the liquidators, as explained by the Master in April 2020 and subsequently by the Court of Appeal, looms large. Of course, those comments were made in the context of a different application, brought under s 588FF(3)(b). But the size, the complexity and the stakes involved in these liquidations did not diminish with the success of the application under s 588FF(3)(b). It is appropriate to observe in that context that both the Master and the Court of Appeal accepted that by the end of the usual three‑year period, it had still not been possible to articulate a claim.
To some extent, those difficulties appear subsequently to have been exacerbated with the challenges to the examinations which delayed their conclusion until shortly before the expiry of the extended period granted by the court under s 588FF(3)(b).
The delay from the time the writs were issued until the communications in August 2022 was certainly significant. But again, that is to be considered against the developing and ongoing complexity of the proceedings and yet the necessity to issue them by the court's extended deadline. In the explanation provided to the Master in October 2022, funding issues and ongoing negotiations were advanced as principal justifications. It may be accepted that such factors are not ordinarily persuasive. In this matter, however, the inevitable scale and cost of the proceedings shed a different light on those considerations. The breadth and complexity of the investigations, the challenges of funding and the pressing desirability of a mediated outcome were of an order of magnitude that differed from the circumstances to which the legislative regime is more commonly directed. The same may be said for the funds provided by the Australian Taxation Office as disclosed in the financial statements. In my assessment, those amounts would likely be dwarfed by the expenditure required to prosecute the proceedings.
I consider that the communications between August and October 2022 are also a significant factor in balancing the interests of justice, and a feature that distinguishes this case from some others. The communications of early August 2022 advised the defendants not only of the Actions but of their content in some detail. The liquidators were open and candid regarding the Actions and the need to obtain orders for the extension of the writs. The defendants' lawyer's response is referred to above at [19]. The defendants' lawyer told the liquidators his consent was not required but that he thought it would be more efficient to serve the writs and then adjourn the Actions. That is not the course the liquidators chose. But the information the liquidators provided and the open candour with which they approached the matter is not diminished by the path they chose having been told by the defendants' lawyer that his clients' consent was not required.
In respect of the ongoing negotiations, it is significant that this was not a case where the applicant for extension advanced a generalised commitment or desire for mediation or that the parties were simply engaged in that process. The formality of the process and the eminence of the mediator with all the attendant preparation and expense indicated a very serious commitment to a mediated outcome. The imminence of the mediation conference was a further factor.
That was the position that prevailed when the liquidators brought their application in October 2022. It might fairly be said that the extension for the maximum permitted period of 12 months was unduly generous, particularly with the mediation set for 4 November 2022. Further, it is the case that service was not effected until almost a year after the mediation of 4 November 2022 which was some three and a half years after the initial limitation period prescribed by s 588FF(3). In my view, however, the matter is appropriately assessed at the time the plaintiffs made the application for extension in October 2022. That is the time when the applicants obtained the orders that are now sought to be set aside. The time that elapsed with the imprimatur of the court ought not to weigh decisively against the plaintiffs. The defendants accepted as much in oral submissions.
I accept that there is both presumptive and some actual prejudice to the defendants. I do not consider that in this matter, that factor is decisive. There will inevitably be delay in liquidations of this scale. The delay has been exacerbated to some extent by the defendants themselves. There is little evidence that material documents or witnesses are no longer available. In addition, I accept the submission that it is appropriate to consider the prejudice to creditors should the proceedings be brought to an end.

Conclusion

I have broadly accepted the defendants' submission that the matter ought not to be assessed by the principles ordinarily applicable under O 7 and that, consistently with its legislative policy, proceedings under s 588FF ought generally to be conducted with a greater degree of promptitude. Nevertheless, in this finely balanced application I have concluded that the interests of justice are best served by allowing the orders of October 2022 to stand. The applications will therefore be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
27 AUGUST 2025