In the Matter of DDS Investments Pty Ltd Galler, David & Ors v DDS Investments Pty Ltd

The case of David Galler and others versus DDS Investments Pty Ltd revolves around a winding-up application brought against the company, with the applicants seeking to be substituted in place of the original applicants. The matter was heard in the Federal Court of Australia, Victoria District Registry, before Justice North. The applicants originally named in the winding-up application were Ross Murray Tanner and Jennifer Anne Fleetwood, who sought to be replaced by the current applicants. The legal issues at the heart of this case centred on whether the application for winding up had become automatically dismissed due to the expiration of a six-month time period, and whether the slip rule could be applied to extend the time for determining the winding-up application.

The court had to determine whether the winding-up application had indeed lapsed due to the expiration of the six-month period under section 459R(1) of the Corporations Law, and whether the slip rule, as provided for in O 35 r 7 of the Federal Court Rules, could be invoked to correct the order made on 21 February 1997 to include an order for an extension of time for the determination of the winding-up application. The Full Court's decision in Elyard Corporation Pty Limited v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 was considered in the context of this case. Justice North concluded that the slip rule could be applied in the present case to correct the order made on 21 February 1997, as it was implicit in the orders that the time for determination of the winding-up application would be extended. The court rejected the argument that the slip rule was not applicable in this case, finding that the distinction between the present case and Elyard was not determinative.

Justice North ordered that the order made on 21 February 1997 be corrected by adding a paragraph that the time within which the application be determined be extended until the determination of the substitution application. The court also ruled that the costs of the hearings on 4 March 1997 and 7 March 1997 be paid by the respondent, as the argument put by Mr Jacobson against the application of the slip rule had been rejected. The application for substitution was adjourned until 10.15 on 24 March 1997, and the respondent was required to file and serve any further affidavits on which it intended to rely by 14 March 1997. The applicants for substitution were to file and serve any further material or any further affidavits in reply by 21 March 1997.