Greig and Anor as liquidators of Australian Building Industries Pty Ltd (in liquidation) v Australian Building Industries Pty Ltd

The plaintiffs, the liquidators of Australian Building Industries Pty Ltd, brought a preference action against the company and Stramit Corporation Ltd. The liquidators sought an extension of time to bring the preference claim, which was granted by the court. Stramit Corporation Ltd then sought to set aside the order that granted the extension of time. The central legal issues were whether the order granting leave could be set aside, whether the applicant was entitled to notice of the application to extend time, and whether the principles of natural justice applied. Additionally, it was considered whether the failure to provide notice was a procedural irregularity and whether the delay in bringing the application disentitled the applicant from seeking relief.

The court examined the circumstances in which the order was made and the procedural fairness of the application process. It found that the applicant was not entitled to notice of the application to extend time as the application was made ex parte and the liquidators had already been granted leave to bring the preference action. However, the court held that the failure to provide notice was a procedural irregularity. Despite this, the court concluded that the delay in bringing the application did not disentitle the applicant from seeking relief. The court found that the applicant had a substantial interest in the proceedings and that the principles of natural justice required that they be given an opportunity to be heard before the order was made.

The court set aside the order of 7 September 2000 that extended time for the respondent to make applications under s 588FF(1) of the Corporations Act in so far as it applied to Stramit Corporation Ltd. The respondent was ordered to pay Stramit Corporation Ltd’s costs of and incidental to this application assessed on the standard basis.