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JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher

JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher

Case [2014] NSWCA 31 28 February 2014

Appeal

Jurisdiction

Statutory Construction

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher [2014] NSWCA 31
Hearing dates: 30 September 2013
Decision date: 28 February 2014
Before: Beazley P at [1];
Macfarlan JA at [149];
Gleeson JA at [166]
Decision:
1. Grant leave to appeal;
2. Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CORPORATIONS - insolvency - voidable transactions - Corporations Act 2001, s 588FF - whether only one application may be made under s 588FF(3)(b) for an extension of time - whether UCPR, r 36.16(2)(b) is picked up by the Judiciary Act 1903, s 79 - whether UCPR, r 36.16(2)(b) permits an order made extending time to be varied so as to permit a extension of time.
PROCEDURE - Uniform Civil Procedure Rules, r 36.16(2)(b) - whether the Court has the power to vary an order that has been made in the absence of a person affected by the order, when the absent party is not a party on the record.
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Judiciary Act 1903
Uniform Civil Procedure Rules 2005
Cases Cited: ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169
Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251
Air Link Pty Ltd v Paterson [2005] HCA 39; 223 CLR 283
Ansell Ltd v Davies [2008] SASC 2003; 67 ACSR 356
Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1
APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322
Bailey v Marinoff [1971] HCA 49; 125 CLR 529
Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
BP Australia Ltd v Brown [2003] NSWCA 216; 58 NSWLR 322
Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6; 166 FLR 393
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; 269 ALR 76
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265
De Vos v Daly [1947] HCA 12; 73 CLR 509
Douglass v Gillman (1990) 19 NSWLR 570
Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No 2) (1984) 9 ACLR 117
Gordon v Tolcher [2006] HCA 62; 231 CLR 334
Green v Chiswell Furniture Pty Ltd (In Liq) [1999] NSWSC 608
Greig v Australian Building Industries Pty Ltd (In Liq) [2002] QSC 298; 171 FLR 41
Greig v Stramit Corporation Pty Ltd [2003] QCA 298; 2 Qd R 17
In the Matter of Bauhaus Pyrmont Pty Ltd (In Liq) [2006] NSWSC 879; 67 NSWLR 289
Jacques v Harrison (1883) 12 QBD 136
Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 at 190
Law Society of New South Wales v Jackson [1981] 1 NSWLR 730
Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082
Macleod v Australian Securities and Investments Commission [2002] HCA 37; 211 CLR 287
Mansfield v DPP [2006] HCA 38; 226 CLR 486
Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411
Nicholson v Nicholson [1974] 2 NSWLR 59
Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257; 80 ACSR 186
R v Aubrey [2012] NSWCCA 254
R v Gee [2003] HCA 12; 212 CLR 230
R v Murray; ex parte Commonwealth [1916] HCA 58; 22 CLR 437
R v Wallis; ex parte Employers Association of Wool-Selling Brokers and H V Mackay Massey Harris Pty Ltd [1949] HCA 30; 78 CLR 529
Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96
Re Aura Commercial Interiors Pty Ltd [2002] NSWSC 380; 20 ACLC 904
Star v National Australia Bank Ltd (1999) 30 ASCR 583
Sutherland v Dexion Pty Ltd [2003] NSWSC 24; 173 FLR 123
Tagoori Pty Ltd (In Liq) v Lee [2001] 2 Qd R 98
Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; 175 CLR 514
Water Board v Moustakas [1988] HCA 12; 180 CLR 491
Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; 80 ACSR 1
Texts Cited: Peter Taylor and P W Young, Ritchie's Supreme Court Procedure (NSW) (1984- 2005) Butterworths
Category: Principal judgment
Parties: JPMorgan Chase Bank, National Association (First Applicant CA 2013/64153)
J P Morgan Securities Australia Limited (Second Applicant CA 2013/64153)
Grant Samuel Corporate Finance Pty Limited (Applicant CA 2013/71401)
William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) and Octaviar Administration Pty Ltd (In Liquidation) (First Respondent)
Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) (Second Respondent)
Octaviar Administration Pty Ltd (In Liquidation) (Third Respondent)
Representation: Counsel:
C R C Newlinds SC; S Nixon (JP Morgan)
A J L Bannon SC; G K J Rich (Grant Samuel Corporate Finance)
B A Coles QC; P J Dowdy; A K Flecknoe-Brown (Respondents)
Solicitors:
Corrs Chambers Westgarth Lawyers (JPMorgan Chase Bank, National Association and J P Morgan Securities Australia Limited)
Watson Mangioni Lawyers (Grant Samuel Corporate Finance)
Henry Davis York (Respondents)

File Number(s): CA 2013/64153; 2013/71401
Decision under appeal

Jurisdiction:

9111

Citation:

In the matter of Octaviar Limited (receivers and managers appointed) (in liquidation) and Octaviar Administration Pty Limited (in liquidation) [2013] NSWSC 62

Date of Decision:

2013-02-08 00:00:00

Before:

Black J

File Number(s):

2011/153330

HEADNOTE

[This headnote is not to be read as part of the judgment]

Pursuant to the Corporations Act 2001, s 588FF(3)(a) the liquidators of Octaviar Limited and Octaviar Administration (together the respondents) had 3 years from the relation-back day to bring an application under s 588FF(1) in respect of voidable transactions. The relevant relation-back date for Octaviar Limited was 4 June 2008 and the s 588FF(3)(a) period accordingly would expire on 4 June 2011.

Upon the application of the respondents, filed within time, on 30 May 2011 Hammerschlag J made an order under s 588FF(3)(b) extending the time for the making of an application under s 588FF(1) to 3 October 2011.

On the application of the respondents, on 19 September 2011, Ward J (as her Honour then was) varied the order of Hammerschlag J and extended the time for the making of an application to 3 April 2012. This application was outside the s 588FF(3)(a) period but within the extended time ordered by Hammerschlag J.

The respondents filed applications under s 588FF(1) against the appellants but those proceedings will have been commenced within time only if Ward J's variation of the extension of time order was validly made.

The appellants applied, by way of interlocutory application, to set aside Ward J's orders. Black J dismissed this application with costs on 8 February 2013: In the matter of Octaviar Limited(receivers and managers appointed) (in liquidation) and Octaviar Administration Pty Limited (in liquidation) [2013] NSWSC 62.

The appellants sought leave to appeal the decision of Black J. On appeal to this Court, two issues arose for determination:

(1) Whether the Court had power pursuant to UCPR, r 36.16 to make the order dated 19 September 2011 amending the order of Hammerschlag J. This issue raised two interrelated questions:

(a) whether only one application may be made under s 588FF(3)(b) for an extension of time;

(b) whether, pursuant to the Judiciary Act, s 79, UCPR r 36.16(2)(b) permits an order made extending time to be varied so as to permit a extension of time; and

(2) Whether the Court has power under UCPR, r 36.16(2)(b) to vary an order that has been made in the absence of a person affected by the order, when the absent party is not a party on the record.

The application for leave to appeal and the appeal were heard concurrently.

Leave to appeal was granted but the appeal was dismissed with costs.

Held:

In respect of (1)(a):

(i) Beazley P, Macfarlan JA and Gleeson JA: s 588FF(3) comprehensively governs the circumstances in which an application may be made for an extension of time: [84], [149], [166]. Those circumstances require that any application for an extension of time be made within the three year period specified in s 588FF(3)(b): [84], [149], [166].

Considered: BP Australia Ltd v Brown [2003] NSWCA 216; 58 NSWLR 322; Greig v Stramit Corporation Pty Ltd [2003] QCA 298; 2 Qd R 17; Gordon v Tolcher [2006] HCA 62; 231 CLR 334

In respect of (1)(b):

(i) Beazley P: The application made under UCPR, r 36.16(2)(b)was an application based on additional evidence calling for a fresh exercise of the discretion to extend time: [90]-[92]. To the extent that UCPR, r 36(2)(b) permits a new or fresh application to be made for an extension of time, where the period prescribed by the Corporations Act 2001, s 588FF(3) has expired, it is inconsistent with s 588FF(3)(b) and is not picked up by the Judiciary Act 1903, s 79: [89]-[93].

(ii) Macfarlan JA and Gleeson JA: The only restriction placed by s 588FF(3)(b) on the Court's power to extend the time for a liquidator to bring proceedings concerning a voidable transaction is that the Court's order be "on an application under this paragraph made by the liquidator during the paragraph (a) period": [152], [166]. The time limit prescribed by the section was satisfied when the liquidators originally applied for an extension of time: [152], [173]. Ward J's variation order, made pursuant to UCPR, r 36.16(2)(b), is properly characterised as an order made "on an application" under s 588FF(3)(b): [152], [166], [173]. This rule of court was consistent with s 588FF and is picked up by the Judiciary Act, s 79: [152], [166], [173].

In respect of (2):

(i) Beazley P, Macfarlan JA and Gleeson JA: The Court has power under UCPR, r 36.16(2)(b) to vary an order that has been made in the absence of a person affected by the order, when the absent party is not a party on the record: [147], [149], [162]-[164], [166].

Judgment

BEAZLEY P:

Introduction

These appeals raise the important question whether the time in which an order may be made under the Corporations Act 2001 (Cth), s 588FF(3)(b) may be extended beyond the period specified in s 588FF(3)(a) pursuant to the procedural rule in the Uniform Civil Procedure Rules 2005 (UCPR), r 36.16.

The appellants require leave to bring the appeals. Leave should be granted. The questions raised have a high degree of significance to the due administration of companies in liquidation. There are also substantial sums of money at stake for which the appellants may be liable to pay back as unfair preferences in the liquidation of Octaviar Limited (Receivers and Managers appointed) (In Liquidation) (Octaviar Limited).

Section 588FF makes provision for a liquidator of a company to make an application to the court in respect of voidable transactions: s 588FF(1). An application must be made, relevantly, within three years of the relation back date: s 588FF(3)(a), or within such longer period ordered by the court on application made by the liquidator during that three year period: s 588FF(3)(b).

In this case, the relation back date was 4 June 2008, so that, subject to any extension of time ordered under s 588FF(3)(b), proceedings under s 588FF(1) were required to be commenced by 4 June 2011. On 30 May 2011, Hammerschlag J, on the application of the liquidators (the respondents), made an order under s 588FF(3)(b) that the time for the making of an application under s 588FF(1) be extended to 3 October 2011.

The circumstances giving rise to the appeal relate to an extension of the time ordered by Hammerschlag J to 3 April 2012 that Ward J (as her Honour then was) ordered on 19 September 2011, under UCPR, r 36.16(2)(b). Applications made by the appellants to set aside the order made by Ward J were dismissed by Black J on 8 February 2013: In the matter of Octaviar Limited (receivers and managers appointed) (in liquidation) and Octaviar Administration Pty Limited (in liquidation) [2013] NSWSC 62. The appeals are from his Honour's dismissal of those applications.

The respondents claim that the appellants are parties to voidable transactions. Acting upon the extension ordered by Ward J, they have now filed applications under s 588FF(1) against the appellants. Those proceedings will have been commenced in time only if the order extending the time to 3 April 2012 made by Ward J was validly made. The appellants contend that the only valid period of extension was that ordered by Hammerschlag J, so that the proceedings brought by the liquidators needed to be commenced by 3 October 2011. As the proceedings were commenced after that date, it would follow, if this argument is correct, that they should be struck out.

The legislation

Sections 588FE and 588FF of the Corporations Act are contained in Pt 5.7B, "Recovering property or compensation for the benefit of creditors of insolvent company"; Div 2, "Voidable transactions".

Section 588FE prescribes certain transactions as voidable transactions.

Section 588FF(1) provides that where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of s 588FE, the court may make one of a number of specified orders including: an order requiring a person to pay money to the company in liquidation which represents the benefits of the transaction: para (c); and an order releasing or discharging wholly or partly a debt incurred by the company under or in connection with the transaction: para (e).

Section 588FF(3) specifies the time in which such proceedings must be brought. Its terms are as follows:

"588FF Courts may make orders about voidable transactions

...

(3) An application under subsection (1) may only be made:

(a) during the period beginning on the relation-back day and ending:

(i) 3 years after the relation-back day; or

(ii) 12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period."

The relevant provisions in this case are s 588FF(3)(a)(i) and s 588FF(3)(b).

The order, which is effectively under challenge in the present case, being that made by Ward J was made pursuant to UCPR, r 36.16(2)(b). The appeal calls for the proper construction and application of this provision and in particular, the meaning of the word "party" within its terms. As one of the arguments of the appellants is based upon the difference in language in para (b) and para (c) of r 36.16(2), it is convenient that both provisions are set out in this section of the judgment. Those two provisions provide:

"36.16 Further power to set aside or vary judgment or order

...

(2) The court may set aside or vary a judgment or order after it has been entered if:

...

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order."

Also relevant to the issues on the appeal is the Judiciary Act 1903, s 79 which provides:

"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

The order made by Hammerschlag J

On 30 May 2011, the respondents applied for an order under s 588FF(3)(b) that the time for the making of an application in respect of voidable transactions entered into by Octaviar Limited be extended to 3 October 2011. His Honour made the order sought. The appellants who were all potentially affected by that order were not parties to the application, nor were they present when the application was heard and the orders made.

In short reasons for granting the order, Hammerschlag J referred to the affidavit filed in support of the application together with written submissions. His Honour said that the affidavits revealed circumstances indicating that there were complex issues which itself would warrant the application being granted. His Honour also noted that the liquidators had been "significantly distracted by relevant endeavours in other directions" which he considered had, with justification, deflected their attention from the bringing of proceedings pursuant to s 588FF(1).

Order made by Ward J

On 19 September 2011, the respondents filed two forms of process. One was an amended originating process. The other process was an interlocutory process. Both processes were filed outside the three year period specified in s 588FF(3), which as I have said, in this case was 4 June 2011, but within the extended time ordered by Hammerschlag J.

Identical orders were sought in both forms of process. Only order 3 as sought is presently relevant, namely:

"The order made by Justice Hammerschlag on 30 May 2011 be varied to insert in lieu of '3 October 2011' the date '3 April 2012.'"

No person or entity was joined as a defendant to either of the forms of process before her Honour. Although the appellants had been advised by the respondents of their intention to seek the variation of Hammerschlag J's order, they did not attend on the hearing before her Honour, or upon the making of the orders by her Honour.

Her Honour accepted, at [15], that the explanation for the delay in bringing proceedings under s 588FF was such as to strongly favour an extension of time in favour of the liquidators. As Hammerschlag J had observed in his judgment, the reasons why the extension was sought related to the complexity of the administration. There were complex issues of accounting and intercompany loans that needed to be resolved and proofs of debt were still being received in the liquidation of Octaviar Limited, in the magnitude of billions of dollars. There was also a need to allow for the finalisation of the insolvency report for the determination of other claims that were not in the nature of voidable transactions.

One of the questions raised in the proceedings before her Honour was whether there was power to order an extension of time for the purposes of s 588FF(3) in circumstances where an extension had already been granted. As formulated by her Honour, the question was whether there was power to grant successive applications for an extension of time. Her Honour noted that there were authorities against that proposition, but referred to Nicholson v Nicholson (1974) 2 NSWLR 59 and Scott v Casual Life Furniture International Ltd [2005] VSC 463; 56 ACSR 218 which supported the power to make such an order. Her Honour did not refer to the authorities which were against the proposition.

Her Honour considered, at [20], that there was power pursuant to UCPR, r 36.16 for the court to vary the order and that the circumstances were such that she should exercise the discretion in favour of making an order extending the time ordered by Hammerschlag J in which proceedings could be commenced under s 588FF(1).

Accordingly, her Honour ordered, at [24]:

"... pursuant to Part 36 Rule 16 of the Uniform Civil Procedure Rules 2005 (NSW) that the order made by Hammerschlag J on 30 May 2011 in these proceedings be varied to insert in lieu of '3 October 2011', the date '3 April 2012'."

The proceedings before Black J

The appellants applied, by way of interlocutory application, to have her Honour's order set aside. The matter was heard and determined by Black J, who dismissed the applications with costs. The question in issue before his Honour was whether there was power for her Honour to have made the order extending the time ordered by Hammerschlag J in which proceedings could be commenced by the liquidators under s 588FF(1). There was no challenge to the manner in which her Honour had exercised her discretion, should there be power to extend the time pursuant to r 36.16(2)(b).

His Honour made two essential findings.

First, his Honour held, at [22]-[23], that the reference to "party" in UCPR, r 36.16(2)(b) extended to persons whose interests were affected by an order made by the court. Accordingly, the respondents were entitled to bring an application under that provision, subject to the question whether an application under UCPR, r 36.16 was precluded by s 588FF(3)(b).

Secondly, his Honour concluded, at [40], that a subsequent variation of an order properly made under s 588FF(3) could be made, pursuant to UCPR, r 36.16(2)(b). His Honour also concluded, at [41], that an application under UCPR, r 36.16(2)(b) could be made outside the time specified in s 588FF(3)(a).

Integral to his Honour's conclusion at [40] was that, in determining whether the application was brought in time, the relevant application to which regard was to be had was the original application to extend time, not the interlocutory process seeking a variation of the order made on the original application. In this case, that was the application in respect of which Hammerschlag J made his order: at [46]. See also judgment at [43] and [50].

In coming to this conclusion, his Honour took a different approach from that taken by Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 268; 61 ACSR 429. In Onefone Barrett J considered, at [37], that the relevant application to which regard was to be had was the application seeking the variation of the order.

Black J, at [47]-[50], also rejected the appellant's submission that UCPR was not picked up by the Judiciary Act, s 79. His Honour considered, at [49], that the High Court's decision in Gordon v Tolcher [2006] HCA 62; 231 CLR 334 was:

"... inconsistent with a contention that a procedural order that avoids the extinction of a cause of action which would otherwise occur under s 588FF(3) is inconsistent with that section, so as not to be 'picked up' by s 79 of the Judiciary Act."

Black J also considered, at [50], that the question of the application of s 79 to pick up the procedural rule was dependent upon a characterisation of the operative application for the extension of time as being the initial application.

Issues on the appeals

The following issues were raised on the appeals:

(1) Whether the Court had power pursuant to UCPR, r 36.16 to make the order dated 19 September 2011 amending the order of Hammerschlag J. This issue raised two interrelated questions:

(a) whether only one application may be made under s 588FF(3)(b) for an extension of time;

(b) whether, pursuant to the Judiciary Act, s 79, UCPR r 36.16(2)(b) permits an order made extending time to be varied so as to permit an extension of time; and

(2) Whether the Court has power under UCPR, r 36.16(2)(b) to vary an order that has been made in the absence of a person affected by the order, when the absent party is not a party on the record.

The case law

The parties were not able to find authority directly on the points raised by the appeal. However they contended that there was case law which supported their respective approaches to the construction and application of s 588FF. Three cases, in particular, were said to be relevant. BP Australia Limited v Brown [2003] NSWCA 216; 58 NSWLR 322; Greig v Stramit Corporation [2003] QCA 298; 2 Qd R 17; and Gordon v Tolcher. Within that case law, the parties placed differing interpretations on what was decided and the proper application of what was decided to the issues on the appeal. This was particularly so in respect of Gordon v Tolcher. It is necessary, therefore, to consider these three cases in more detail than might otherwise be the case.

(a) BP Australia v Brown

The appellants placed significant reliance upon BP Australia v Brown which concerned, inter alia, the proper construction and application of the time limit imposed upon liquidators seeking orders with respect to voidable transactions under s 588FF(1) (at [2]). The primary judge in that case had granted an extension of time by which an application under s 588FF(1) could be brought by utilising the provisions of the Corporations Act, s 1322(4)(d). That provision permitted the court to make:

"... an order extending the period for ... instituting or taking any proceeding under [the Corporations Act] (including an order extending a period where the period concerned ended before the application for the order was made) ..."

The principal judgment was given by Spigelman CJ (Mason P and Handley JA agreeing).

Spigelman CJ observed, at [41], that the contrast between s 588FF(3) and s 1322(4)(d) was apparent on the face of the sections. His Honour stated:

"Section 588FF(3) emphasises that an application under subs (1) of the section 'may only be made' within the specified periods, including that any application for an extension of time be made within the three year period. In contrast, the words in parentheses in s1322(4)(d) state that an order extending time under that section may be made even after the relevant period has expired." (emphasis in original)

His Honour considered, at [42], that the relevant principle of statutory construction was that a particular provision prevails over any general provision: see Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1, at 7, where the High Court observed:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

Spigelman CJ also referred to the remarks of Dixon J in R v Wallis; ex parte Employers Association of Wool-Selling Brokers and H V Mackay Massey Harris Pty Ltd [1949] HCA 30; 78 CLR 529 at 550 that:

"... an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction."

The principle stated in Anthony Hordern & Sons had been applied by the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 276. In that case, the High Court held that s 1322(4)(d) was not available to extend the time of 21 days within which a company that had been served with a statutory demand must apply to a court to set the demand aside pursuant to the Corporations Act, s 459G. Section 459G(1) provided that a company may apply to the court for an order setting aside a statutory demand. Section 459G(2) provided that "an application may only be made within 21 days after the demand" was served.

In David Grant, Gummow J (with whom the other members of the Court agreed) stated, at 277:

"... The force of the term 'may only' is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil (1922) 31 CLR 76 at 100-101, it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect ...

This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word 'only' in s 459G(2) if it does not mean what it says, which is that the application is to be made within twenty-one days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of twenty-one days specified in s 459G would deprive the word 'only' of effect (Cavetina Pty Ltd v Synthetic Dyeworks Industries Pty Ltd (1994) 14 ACSR 274 at 281; Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541 at 549)."

Spigelman CJ, at [48], then observed that the use of the word "only" in s 459G was comparable to use of the same word in s 588FF(3): viz "an application under [s 588FF(1)] may only be made" during the period specified or within an extended period ordered by the Court under s 588FF(3). His Honour also noted, at [50], that the reasoning in David Grant had been applied by analogy to s 588FF(3)(b) by a number of first instance courts in different jurisdictions, but that the trial judge in BP Australia had not done so.

Spigelman CJ returned to the meaning of the word "only" and its import for the operation of s 588FF(3), at [84]-[85]:

"It is the combined effect of the word 'only' and the express requirement that an application for an extension of the period must be made within the period, that gives the time limit force and indicates the significance for the legislative scheme of the three year period.

The time period identified in par (a) is itself subject to a specific power of extension under par (b). That is a comprehensive provision for extension of time which, in my opinion, is intended to cover the relevant field to the exclusion of s1322."

His Honour concluded on this point, at [89]:

"Of particular significance in this respect is the scope and purpose of Pt 5.7B of the legislative scheme and its legislative history. After consideration of such matters I have concluded that s 588FF(3)(b) was intended to cover the field of applications for extending the period specified as three years from the relation-back day under par (a)."

Spigelman CJ observed, at [103], that the Legislature, in s 588FF(3), had adopted "a single post-liquidation time period for bringing proceedings" under s 588FF(1). A reason for this approach may have been due to the criticism in the Harmer Report of the delays associated with the winding up of companies, as one of the principles stated in the Report had been that "[a]n insolvency administration should be impartial, efficient and expeditious": see at [104].

Spigelman CJ also noted that the Legislature, whilst accepting the Harmer Report recommendation that an extension of the time in which proceedings were to be brought could be ordered by the court, had enacted a more stringent condition in requiring in s 588FF(3)(b) that an application for extension be made during the period prescribed in s 588FF(3)(a). This caused his Honour to remark:

"110 ... That the Parliament went further than this comprehensive inquiry recommended does, however, indicate the weight to be afforded to the policy purpose of encouraging greater expedition in the conduct of a liquidation.

...

112 There is, in my opinion, a broader public interest to be served by allowing persons who have had dealings with companies which become insolvent to conduct their commercial affairs with a degree of certainty about their exposure to having past transactions unravelled."

His Honour considered, at [117], that "the legal policy in favour of certainty [was] manifest in the text of s 588FF(3)" and, at [118], concluded on this point:

"Section 588FF(3) does not have the effect of requiring all applications to be brought within a short period of time. It does, however, have the effect of requiring those who wish to keep open the option to do so, to determine that they do wish to do so within the three year period and to seek a determinate extension of the period. One thing that must be decided within the three year period is how long the process of deciding whether to pursue voidable transactions will take. Eventually, investigations to overcome deficiencies of information or the pursuit of funding must cease. Parliament has identified a reasonable time for such matters to occur, subject to a single determinate extension of time."

Spigelman CJ thus held, at [129], that s 588FF(3) governed the circumstances in which an extension of time for the bringing of an application under s 588FF(1) could be made. Recourse was not available to s 1322 for that purpose.

There was another issue in BP v Brown relating to the joinder of parties. It had been argued that the primary judge had erred in joining parties as defendants to the application to extend time after the three year period specified in s 588FF(3)(a). This turned upon the proper construction of the rules relating to the joinder of parties and upon the question whether a general order (a shelf order), that is, one seeking an extension of time generally for the bringing of an application under s 588FF(1) (not as against named creditors) could be made. His Honour, in resolving those issues, stressed that an application for an extension of time had to be made within the three year period specified in s 588FF(3).

(b) Greig v Stramit Corporation

In Greig v Stramit Corporation, the Queensland Court of Appeal, by majority, gave the same construction to s 588FF(3) as this Court in BP Australia v Brown. The Queensland Court of Appeal's decision was given on 18 July 2003, three weeks before the decision in BP Australia v Brown. It appears that this Court was not referred to the Queensland's Court of Appeal decision. A review of the reasons of the majority in that case reveals that it is to the same effect as that of Spigelman CJ in this Court. It is not necessary, therefore, and with respect to their Honours' reasoning, to engage in a lengthy analysis. However, the following passages in the reasons of Williams JA are relevant:

"[89] As would be evident from earlier passages in these reasons it is my view that the approach taken by the High Court to the construction of s 459G in David Grant applies to the proper construction of s 588FF(3). In my view that construction is supported by the legislative history (including the Harmer Report), the reasoning of Rolfe J in Star and Mullins J in this case. Given that construction the time prescriptions in s 588FF(3) constitute an insurmountable boundary which cannot be overcome by recourse to a general power such as conferred on the Court by s 81 [of the Supreme Court of Qld Act]. That is also consistent with the approach adopted in Tagoori Pty Ltd v Lee.

[90] On that approach, largely because of the inclusion of the word "only" any general power of amendment conferred on the court pursuant to s 81 would not permit the making of an amendment which effectively (though not in express terms) extended the time limited in s 588FF(3)."

It is useful to note at this point that these two appellate decisions had the effect of settling two lines of competing authorities in the respective jurisdictions. See Star v National Australia Bank Ltd (1999) 30 ASCR 583 per Rolfe J; Re Aura Commercial Interiors Pty Ltd [2002] NSWSC 380; 20 ACLC 904 per Barrett J; Greig v Australian Building Industries Pty Ltd (In Liq) [2002] QSC 298; 171 FLR 41 per Mullins J; Tagoori Pty Ltd (In Liq) v Lee [2001] 2 Qd R 98 per Williams J, all of which had taken the approach confirmed by the New South Wales and Queensland appellate courts in BP Australia Ltd v Brown and Greig v Stramit Corporation respectively. Contrast Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6; 166 FLR 393 per Austin J; Sutherland v Dexion Pty Ltd [2003] NSWSC 24; 173 FLR 123 at [13] per Barrett J; Green v Chiswell Furniture Pty Ltd (In Liq) [1999] NSWSC 608 per Austin J.

(c) Gordon v Tolcher

Gordon v Tolcher involved the question whether an order could be made extending the time for service of a statement of claim in which relief had been sought under s 588FF(1), by the liquidators of the second respondent, seeking the payment of monies from the appellant. The monies sought represented funds received by the appellant on the sale of mortgaged properties that had been owned by the second respondent. The allegation was that the second respondent had given the mortgages and charges over the properties in circumstances where it had received no benefit. The liquidator contended the transactions were voidable.

The statement of claim had not been served and consequently no action had been taken in respect of it, either by way of a defence being filed or by the entry of default judgment within six months and 28 days of filing, so that, pursuant to the District Court Rules 1973, Pt 18, r 9, the matter was "taken to have been dismissed". Whilst the liquidators could have commenced fresh proceedings, such proceedings would have been outside the three year time period specified in s 588FF(3)(a)(i). The liquidators unsuccessfully sought the rescission of the deemed dismissal. The New South Wales Court of Appeal, acting upon the general provision in the District Court Rules, Pt 3, r 2, for the extension of any time fixed by the rules to extend time, ordered that the service of the statement of claim be deemed to have been effected on a specified date. It is relevant to note that the District Court rule provided that an extension of time could be granted "as well after as before the time expires, whether or not an application for the extension is made before the time expires or at all".

On appeal to the High Court, the Court held, at [32], that the procedural regulation of the conduct of a matter initiated under s 588FF was a matter for the procedural law of the State which is picked up by the Judiciary Act, s 79. Relevantly for present purposes, however, the Court made a number of observations in relation to the construction of s 588FF and, in particular, s 588FF(3)(a).

At [32], the Court dealt with the placement of s 588FF in the scheme of the Act. As already noted, at [8], s 588FF is found in Pt 5.7B, which deals with "Recovering property or compensation for the benefit of creditors of insolvent company". Part 9.6A of the Act provides for the jurisdiction and procedure of courts. Jurisdiction is conferred on the District Court, being a lower court of a State, by s 1337E. In that context, the Court stated:

"Section 588FF does not deal with the investment of federal jurisdiction in any court or with the manner of exercise of that jurisdiction. The section is found in Pt 5.7B, whilst the jurisdiction of courts is provided for in Pt 9.6A. Section 588FF is silent respecting the procedures to be adopted by the court exercising federal jurisdiction in the present matter; this jurisdiction is conferred by s 1337E upon the District Court. Section 588FF evinces a two-fold legislative intention. First, conferral of federal jurisdiction is left to Pt 9.6A of the Corporations Act. Secondly, subject to any operation of other provisions of the Corporations Act, after the institution of an application the procedural regulation of the conduct of a matter is left for that particular State or territorial procedural law which is to be picked up by s 79 of the Judiciary Act."

That was sufficient for the Court to dispose of the appeal. However their Honours considered it appropriate to say something about the construction of s 588FF, including by reference to its context in Pt 5.7B and its relationship with the conferral of civil jurisdiction made by Div 1 of Pt 9.6A of the Corporations Act. The Court, at [34], noted that s 588FF "postulates the operation of s 588FE to render certain transactions voidable". That application had to be made within the three year period specified in s 588FF(3)(a) or within the longer period ordered by the court, provided the application to extend the time was made within the three years.

The Court then pointed out, at [35], that an application under s 588FF(3)(b) seeking a longer period in which to bring an application under s 588FF(1) was itself a distinct matter which could only be determined by a superior court. That was because of the language of s 588FF and, in particular, the difference between ss 588FF(1) and (3). Section 588FF(1) provides that upon application of the liquidator of a company, if a court is satisfied that a transaction is voidable, the court may make one of the orders specified in paras (a)-(j). Their Honours observed, at [15], that the term "a court" in subs (1) meant any court. (It should be noted that the reference to "the court" in subs (1) is a clear reference to "a court" in the first part of the provision.) By contrast, the Court noted that s 588FF (3)(b) referred to an order by "the Court", meaning a superior court only.

Their Honours observed, at [36], that there were two stipulations for the competent institution of an application under s 588FF(1). The first was that the application be made by the liquidator of the company. The second was that it be made within three years after the relation back day. Their Honours observed that "[t]hese stipulations were elements of the right of the respondents to have [the Court] consider the making of the order" they sought. Their Honours continued, at [37]:

"The provision in sub-s (3) of s 588FF as to the time of the making of the application is of the essence of the provision made by s 588FF; it is not to be characterised merely as a time stipulation of a procedural nature." (citation omitted)

Their Honours endorsed the observations of Spigelman CJ in BP Australia Ltd v Brown referred to above, at [46], and continued:

"40 Accordingly, s 588FF is dealing, as an essential aspect of the regime it creates, with the period within which the application must be made. An application may be made only to a court invested with federal jurisdiction by one or other of the provisions of Pt 9.6A. Thereafter, and subject to any other relevant provision of the Corporations Act, the conduct of the litigation is left for the operation of the procedures of that court. These procedures will vary from one State or Territory to another and within the court structures of those States and Territories. The scheme of the Corporations Act is not to impose a direct federal and universal procedural regime. Rather, s 79 of the Judiciary Act is left to operate according to its terms in the particular State or Territory concerned.

41 Thus the relationship between ss 588FF and 79 (and between Pt 9.6A and s 79) is not one of which it may be said that the former provision is a law of the Commonwealth which 'otherwise provides' so as to deny the operation of s 79 in this case to pick up so much of the Rules as supported the orders made by the Court of Appeal."

Additional matter on the authorities

Before leaving the authorities on s 588FF(3), it should be noted that there is a line of authority that the procedural rules of court may be utilised to allow an amendment of a claim, properly brought within the time prescribed by s 588FF(3), provided that the effect of the amendment does not add a new party against whom the claim would otherwise have been brought outside the three year period specified in s 588FF(3): Greig v Stramit Corporation; Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257; 80 ACSR 186. However, there is no question of amendment in issue in the present case. In this case, the procedural rules of court were used to extend the time prescribed by s 588FF(3) for the commencement of proceedings under s 588FF(1).

Section 79 authorities

The respondents' defence of the primary judges' orders was essentially based on the operation of s 79. It is convenient to consider the case law relating to that provision. The objective of s 79 has been described by Gleeson CJ and Gummow J in Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 as being to:

"... facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth ..."

Pursuant to s 79, the laws of a State will apply "except as otherwise provided by ... the laws of the Commonwealth". As Gleeson CJ and Gummow J explained in Northern Territory v GPAO, at [79], this requires an inquiry into whether the Commonwealth law is "to be regarded in any way as 'inconsistent' with the application of the State Act which [is] said to be 'picked up' by s 79": see De Vos v Daly [1947] HCA 12; 73 CLR 509 at 515 per Latham CJ and 518 per Starke J. In R v Gee [2003] HCA 12; 212 CLR 230, McHugh and Gummow JJ explained that:

"Provisions such as ss 64, 68(2) and 79 of the Judiciary Act do not operate to insert a provision of State law into a Commonwealth legislative scheme which is 'complete upon its face' where, on their proper construction, those federal provisions can 'be seen to have left no room' for the picking up of State law: Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 64."

Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 was concerned with a claim under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) by a widow for damages resulting from the death of her husband in an aircraft crash. Section 34 of the Act provided for the extinguishment of a right to a person to damages under the Act:

"... if an action is not brought ... within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination."

The plurality held, at [51], that the effect of s 34 was that it imposed:

"... a condition which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right."

The question in issue then became whether the two year period could be extended by the application of the Limitation of Actions Act 1958 (Vic), s 34, which permitted an extension of time.

The Court rejected that argument. Their Honours noted that as the Victorian limitation period did not apply of its own force, it would only have application by application of the Judiciary Act, s 79. As their Honours explained:

"59 The terms of s 79 indicate that this can only be so if the case in question is one in which the State law is applicable. Section 34 of the Carriers' Act, as indicated earlier in these reasons, is an integral part of the federal statutory right to damages. Section 34 is not a provision which adds a time limitation in respect of a right defined independently of s 34. Section 28 which creates the statutory right expressly does so '[s]ubject to this Part' and thus to s 34. It follows that, if an action was not brought by Mrs Hatfield or for her benefit within the two year period required by s 34, what ensued was not the expiry of a relevant period of limitation, but the removal of a prerequisite for the existence of the right sought to be litigated. In those circumstances, s 79 did not operate to 'pick up' the Victorian provision.

60 The same conclusion may be reached by another route. Were s 34 of the State statute to be picked up by s 79, it would provide otherwise than as required by s 34 of the Carriers' Act. It would have 'derogated from' the extinction wrought by s 34 of the federal statute." (citations omitted)

Submissions

The appellants submitted that upon its proper construction, s 588FF(3)(b) only permits an application to extend time, relevantly, in the three year period specified in s 588FF(3)(a)(i).

The appellants submitted, therefore, that s 588FF(3) envisaged one application for an extension of time which was required to be brought within the three year period specified in the section. In argument during the course of the appeal, the appellants accepted the possibility that more than one application may be brought, provided that it was brought within the three year period specified in s 588FF(3). However, the appellant's primary position was that s 588FF(3) only permitted "a single determinate application": see BP Australia Ltd v Brown at [118] per Spigelman CJ; Gordon v Tolcher at [41]. The appellants submitted that on this approach, UCPR, r 36.16 had no operation.

The appellants submitted that the construction for which they contended fulfilled the purpose and policy of the section, which was to provide for certainty in the conduct of commercial affairs and, in particular, those relating to the orderly winding up of corporations: BP Australia Ltd v Brown at [112], [118]-[119]. By contrast, the consequence of the approach of Black J would be that there will never be "a single determinate extension of time": see BP Australia Ltd v Brown at [118].

The appellants' position may thus be stated simply. They contend that BP Australia v Brown is authority for the proposition that there can be one only application for an extension of time and that application must be brought within the three year period specified in s 588FF(3). Alternatively, any application for an extension of time could only be made within the three year period specified in that section. Gordon v Tolcher, in its characterisation of s 588FF(3) as an element of the right to bring a claim under s 588FF(1), supported this construction. As the High Court stated, the time stipulation in s 588FF was not of a procedural nature. On that construction, UCPR, r 36.16 has no work to do. The time stipulation is contained within 588FF(3) itself.

The appellants submitted, therefore, that BP Australia v Brown and Gordon v Tolcher stand unequivocally for the proposition that the time specified by s 588FF(3) is a mandatory provision and that time cannot be extended other than in accordance with the power contained within it. To the extent that in Gordon v Tolcher the liquidator's statement of claim was allowed to be re-instated, that was in circumstances where the original s 588FF(1) application had been commenced within the three year period specified by s 588FF(3). Thus, whilst the procedural rules effected a deemed dismissal, other procedural rules of the Court were available to extend the time for service of the statement of claim. This rule was picked up by s 79 and was not inconsistent with s 588FF(3).

The appellants submitted that if they were wrong in their primary submissions that there can only be one application for an extension of time (or at the most, applications made within the three year period specified by s 588FF(3)(a)), they submitted, alternatively, that the Judiciary Act, s 79 did not "pick up" UCPR, r 36.16(2)(b) so as to permit, after the three year period specified in s 588FF(3)(a), a variation of an order originally made upon an application filed within the three year period: Gordon v Tolcher at [25], [30]; APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 at [230]; Agtrack (NT) Pty Ltd v Hatfield at [58]-[60]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [35]; Macleod v Australian Securities and Investments Commission [2002] HCA 37; 211 CLR 287 at [22], [23], [44]; Northern Territory v GPAO at [79]-[81].

The appellants pointed out that s 79 does not "pick up" provisions that are inconsistent with the substantive provision of law in respect of which the court is exercising jurisdiction. Accordingly, once the three year period had expired under s 588FF(3), procedural rules could not be used to further extend the period in which an application may be brought. In other words, it was submitted that the three year period in which the claim was to be brought, subject to an application for extension made within that time, was an integral part of the right to bring a claim under s 588FF: see Agtrack.

The appellants accepted in arguendo that UCPR, r 36.16 might be picked up by s 79 so as to apply if an application under the rule was made within the three year period specified by s 588FF(3), but not otherwise.

The respondents' primary submission was that time was properly extended by Ward J because the procedural rules of court, including r 36.16(2)(b), were picked up by the Judiciary Act, s 79. They formulated the question in issue as being whether a law of the Commonwealth, namely, s 588FF(3)(b), "otherwise provides" so as to exclude UCPR, r 36.16(2)(b) from being "picked up" in those proceedings by s 79. The respondents accepted that this question involved the proper construction of s 588FF(3)(b). The respondents submitted that on a proper understanding of Gordon v Tolcher, at [40]-[41], UCPR, r 36.16(2)(b) was picked up in this case.

The respondents pointed out that the rule relied upon by the Court in Gordon v Tolcher was the District Court Rules, Pt 3, r 2 was in the same terms as UCPR, r 1.12, which provides that subject to the rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. This may be done before or after the time expires. The court may make an order under this rule after the time expires even if an application for extension is made after the time expires.

The respondents referred to the High Court's conclusion in Gordon v Tolcher, at [32], that once a court was invested with jurisdiction with an application under s 588FF, the conduct of the matter was then a matter for the procedural rules of the court in which the application was brought. Accordingly, the procedural regulation of a matter was, they said, "a step away" from the conferral of jurisdiction and "two steps removed" from the subject of s 588FF itself.

The respondents submitted that contrary to the appellants' submission that the Court in Gordon v Tolcher endorsed the reasoning of Spigelman CJ in BP Australia v Brown, it had only done so to the extent that his Honour had referred to the policy behind the legislation, namely, that of certainty. They contended that the High Court did not say anything as to how s 588FF should be construed for the purposes of determining whether s 588FF(3) "otherwise provided" for the purposes of the Judiciary Act, s 79.

The respondents contended, therefore, that Gordon v Tolcher was authority for the proposition that as s 588FF does not make any provision as to the procedure to be adopted in bringing an application under s 588FF, the District Court Rules, Pt 3 r 2 was a matter of procedure which did not "otherwise provide" so as to deny the operation of s 79 in picking up "so much of the Rules as supported the orders made by the Court of Appeal". Reasoning by analogy, UCPR, r 36.16(2)(b) was a procedural rule picked up by s 79.

The respondents also submitted that the appellants' reliance on BP Australia v Brown was misconceived. They submitted that that decision was concerned with a question of joinder of parties to the application for an extension of time. I do not agree that is a correct summation of the reasons in the case. There was a question of joinder, as I have already noted. However, that arose as a distinct issue from the question whether the Corporations Act, s 1322(4)(d) enabled an application, filed outside the three year period specified in s 588FF(3), to be brought for an extension of time under s 588FF.

Nonetheless, the respondents contention that Spigelman CJ's reasoning in BP Australia v Brown is inapplicable still requires consideration. In short, the respondents argue that BP Australia v Brown was concerned with questions of statutory construction of two provisions in the same Act: s 588FF(3) on the one hand, and s 1322(4)(d) on the other. They contended that all that was decided in that case was that as a matter of statutory construction, a general provision must yield to a more particular provision. No question of the operation of the Judiciary Act, s 79 arose on that approach. This submission was, in effect, the respondents' answer to the appellants' primary contention that having regard to the proper construction of s 588FF(3), UCPR, r 36.16 has no role to play.

The respondents submitted that the Queensland Court of Appeal's decision in Greig v Stramit was also distinguishable. They pointed out that the matter in issue in that case was whether the Supreme Court Act (Qld), s 81, which provided a general power to amend, applied so as to enable parties to be joined to an application after the time prescribed in s 588FF(3) had expired. The majority, applying the decision of the High Court in Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514, held that s 81 was not available for that purpose. I do not entirely agree with this submission. Certainly, no question of s 79 arose in that case. However, Williams JA and Jerrard JA's reasoning as to the proper construction of s 588FF was consistent with the reasoning of Spigelman CJ in BP Australia v Brown and was a necessary step in determining whether s 81 applied.

Resolution of first issue on the appeal

BP Australia v Brown and Greig v Stramit Corporation both state that the power to extend time is contained within s 588FF(3) itself. Spigelman CJ in BP Australia v Brown, at [85], expressly stated that s 588FF(3)(b) was "a comprehensive provision for extension of time", although his Honour did so in the context of whether an extension was available under s 1322 of the same Act. The same approach was taken in Greig v Stramit in respect of a procedural provision of the Supreme Court of Queensland Act.

Thus, both intermediate appellate courts have construed s 588FF as the sole source of power for an extension of time beyond the three year period specified in s 588FF(3)(a). In other words, according to both decisions, the time stipulation and the availability of an extension are governed solely by the section. The statements in BP Australia v Brown and Greig v Stramit Corporation, albeit stated in contexts different from that which arises here, are of high and persuasive authority and should be followed.

Contrary to the submission of the respondent, I consider that Gordon v Tolcher endorsed this approach, the Court noting, at [36], that the stipulation of a three year time period in s 588FF(3) was an "element of the right ... to have [the court] consider the making of the order" in s 588F(1). In my opinion, that is a characterisation of the time provision in s 588FF(3). Accordingly, s 588FF(3) comprehensively governs the circumstances in which an application may be made for an extension of time. Those circumstances require that any application for an extension of time be made within the three year period specified in s 588FF(3)(a). In coming to that conclusion, I do not foreclose the possibility that more than one application for an extension may be brought, provided that each application is brought within the three year period. I appreciate that this approach is not in accordance with the view taken by Spigelman CJ in BP Australia v Brown that there can only be a single determinate application. However, as the appellants recognised, the absolutism of that statement may be debatable.

On the approach taken by Black J, however, there was no contravention of that principle in this case. In his Honour's view, the only application made in the matter was one brought within the three year period. What had happened subsequently was that an application had been brought under UCPR, r 36.16(2)(b) for a variation of the order made on the original application. I consider that characterisation to be correct. Although Black J considered that that was an answer to the appellant's case, I am of the view that that characterisation still calls for a consideration of whether UCPR, r 36.16(2)(b) is picked up by the Judiciary Act, s 79.

In Gordon v Tolcher the Court observed that pursuant to the Judiciary Act, s 79, after proceedings were commenced under s 588FF, conduct of the proceedings was governed by the procedural law of the particular state. It did not matter that the procedural rules of different states varied in their application to proceedings brought under the same provision of the Act. The only exception was where, in accordance with principle, the procedural rule was inconsistent with the Federal provision. The Court's reference was to the proceedings commenced under s 588FF(1). There could be no difference however, to an application under s 588FF(3)(b) for an extension of time. As the Court observed in Gordon v Tolcher, an application under s 588FF(3) was a distinct matter from an application under s 588FF(1). A court determining an application under s 588FF(3)(b) is, however, still exercising Federal jurisdiction, so that the same question arises, namely, whether the relevant procedural rule is 'picked up' by s 79.

Subject to the question whether a particular procedural rule is inconsistent with a provision of a federal statute, in this case, s 588FF(3), the procedural rules of the local jurisdiction govern an application made to the Court under the federal provision. A question as to the nature of the procedural rule thus arises. An application to vary an order made under s 588FF, if granted, may have a substantive effect, albeit of a procedural nature. Thus, if the Court intended to make an order until a particular date, but, by mistake in the expression of its order, stated a different date, that mistake could be remedied under the 'slip rule': UCPR, r 36.17, discussed below. On such an application, no new factual matter would arise for the Court's consideration so that, whilst the Court's order would be varied, it could not be said that the rule was inconsistent with the federal provision.

Another example is provided by the circumstances that arose in Gordon v Tolcher. In that case, proceedings to set aside a voidable transaction pursuant to s 588FF(1) had been commenced within the time prescribed by s 588FF(3). No extension of time was required. However, due to a failure to serve the process, the proceedings were dismissed by default by operation of the rules of court. There had been no determination of the proceedings. It was held that upon the operation of other rules of court that allowed any time prescribed by the rules to be extended, time for service of the statement of claim could be extended, so that the default provision did not operate. There was no inconsistency in that case between the procedural rules of the court and s 588FF(3). Rather, the rules of court had been used to maintain the proceedings which were on foot. In other words, the rules of court were used to facilitate what was permissible.

What then is the position in this case, where there exists a federal law which permits an extension of time in which to bring a proceeding but only within a specified time frame and a procedural rule of a State court that allows orders of the Court to be set aside or varied where the original order has been made in the absence of a party? Whilst I have not found this matter easy to resolve, I have come to the conclusion that UCPR, r 36.16(2)(b), to the extent that it permits a fresh or new or further application to be made for an extension of time, is inconsistent with s 588FF(3)(b) and is not picked up s 79.

My reason for this conclusion is based upon what is encompassed in an application under UCPR, r 36.16(2)(b) to vary an order made under s 588FF(3)(b). The application made in this case is likely to be typical, in that such an application would only be necessary where the liquidators were not able to commence the s 588FF(1) application within the time extended by the court on the original application. Such an application under UCPR, r 36.16(2)(b) would invariably be brought on new or additional facts upon which the court would be asked to exercise afresh the discretion to extend time. An application by a liquidator under UCPR, r 36.16(2)(b) based on the same facts as the original application would be unlikely to attract the favourable exercise of the court's discretion. Thus, to the extent that UCPR, r 36.16(2)(b) purports to be available where an application is brought outside the three year period to vary an earlier order made under s 588FF(3)(b), it would be inconsistent with that section.

In reaching this conclusion, I accept that the rules of court are intended to facilitate the procedural aspects of proceedings in the court. The rules should be given a construction that gives effect to their purpose. It is not unimportant in this context that UCPR, r 36.16(2)(b) invests the Court with a discretion as to whether to make an order. The discretionary aspect of the rule meets a concern that a liquidator could make multiple applications under the rule, outside the three year period, in respect of an application filed within the three year period. The Court in the exercise of its discretion would undoubtedly take into account that previous extensions had been granted and require that there be cogent reasons for the grant of further extensions.

However, these matters do not answer the fundamental proposition, namely, that an application under UCPR, r 36.16(2)(a) would invariably be substantive in nature in the sense that it would only be made on new or additional facts, as was the position in the matters before the Court. In effect, any such application is a new application calling for a fresh exercise of the discretion to extend time. As such I consider that it is a new application for an extension of time and falls outside of the time prescribed by s 588FF(3)(b). That is not to say that certain rules of court may not be available to a party in respect of an order made under s 588FF(3)(b). For example, corrections or amendments permitted by the slip rule: UCPR, r 36.17, discussed below, would not offend the rule that a substantive application for an extension of time must be made within the three year period specified in s 588FF(3)(a)(i).

It follows, therefore, in my opinion, that s 79 does not pick up UCPR, r 36.16(2)(b) so as to enable an application under that rule to be made seeking the variation of an earlier extension of the time ordered on an application brought within the three year period specified in s 588FF(3)(a).

UCPR, r 1.12

The respondents also submitted that if Black J was wrong in his determination that UCPR, r 36.16(2)(b) was available, an order nunc pro tunc could be made under UCPR, r 1.12 to achieve the same result as the order made by Ward J. This would have the effect that the order made by Hammerschlag J was extended to 3 April 2012, the same date as ordered by Ward J under UCPR, r 36.16.

UCPR, r 1.12 provides:

"1.12 Extension and abridgment of time

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."

Black J, at [53], did not consider that it was necessary for him to determine this question given the result he reached on the other grounds.

On appeal, the respondents did not file a notice of cross-appeal or a notice of contention in respect of r 1.12. The respondent did, however, place reliance on r 1.12 in the oral argument on the appeal. The appellants objected to this argument being raised.

In my opinion, the respondents' reliance on r 1.12 must fail for the same reason as its reliance on r 36.16(2)(b). As discussed above at [84], s 588FF(3) comprehensively governs the circumstances in which a liquidator may apply for an extension of time to make an application to the court in respect of voidable transactions. Section 79 will not operate to pick up a rule such as r 1.12 that allows a court to order an extension to any time fixed by a judgment or order of the court as the Corporations Act, s 588FF(3), otherwise provides.

For that reason, the appeals in these matters should be allowed.

The party issue

The remaining issue which arose on the appeal was whether UCPR, r 36.16 could be availed of by the respondents. This depended upon the meaning of "party" within the rule. Having regard to the conclusion I have reached, this question does not arise. However, in deference to the arguments of the parties and the likelihood that the matter may be subject to further appeal, I will express my conclusions on it.

The appellants contended that UCPR, r 36.16(2)(b) was not an available source of power that enabled the court to vary the order made by Hammerschlag J, as they were not parties to the proceedings at the time his Honour's order was made. It contended that "party" within the meaning of the rule meant "party to the proceedings", that is, persons who had been formally joined as parties to the proceedings: see R v Murray; ex parte Commonwealth [1916] HCA 58; 22 CLR 437 at 469.

The respondents submitted that "party" within UCPR, r 36.16(2)(b) meant a person: that is, "party" was used in the rule in a generic sense to mean any person who had an interest in the proceedings. They submitted that this construction was consistent with Nicholson v Nicholson which had been applied by courts both in New South Wales and elsewhere.

The primary judge rejected the appellants' argument. His Honour held, at [22]:

"In my view, the reference to 'party' in UCPR, r 36.16(2) should also be interpreted with regard to the principles as to the circumstances in which a party should be heard before an order is made that effects his or her interests. At general law, a person affected by an order of the Court, who has not had an opportunity to be heard, is entitled as of right to have that order set aside ..."

It is useful in respect of this ground to consider the respondents' submissions first. It can be noted, however, that both the appellants and the respondents accepted that that the meaning of the word "party" varies depending upon the context in which it appears. In some instances, it means a "party to the proceedings", that is, a party formally joined as a party. In other contexts, it has a broader meaning, to mean a person who has an interest in the proceedings.

"Party" is not defined in either the Civil Procedure Act 2005 or the UCPR (together referred to as the 2005 procedural legislation). The term had been defined in the Supreme Court Act 1970, s 19 in an inclusive manner as follows: "party includes any defendant and any person against whom a claim for relief is made under section 78". However, that definition was not carried over into the 2005 procedural legislation.

The respondents recognised that the word "party" appeared in various provisions of the Civil Procedure Act as a component of the phrase "party to proceedings". The following are examples:

(1) s 26(1):

"... the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned."

(2) s 27:

"It is the duty of each party to proceedings that have been referred for mediation to participate, in good faith, in the mediation."

(3) s 73(1)(a):

"(1) In any proceedings, the court:

(a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them ..."

If "party" was only used in this way, it would indicate that its meaning was confined to mean "party in proceedings". However, the respondents pointed out that there were other occasions in the Civil Procedure Act where the term "party" was not encompassed in the phrase "party in proceedings". Rather, it appeared on its own. They contended, therefore, that it was apparent that the meaning of the word extended beyond a party to a proceeding. The respondents referred to the Civil Procedure Act, s 28 and s 29 by way of example. Sections 28 and 29 are contained in Pt 4 "Mediation of proceedings", as are ss 26 and 27. The terms of ss 26 and 27 are referred to above. Section 28 provides:

"The costs of mediation, including the costs payable to the mediator, are payable:

(a) if the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify, or

(b) in any other case, by the parties in such proportions as they may agree among themselves."

In my opinion, the reference to "the parties" in this rule can only mean the parties that the court has ordered to mediation, that is, the party to the proceedings. This is the natural sense of the rule. That meaning is confirmed by the terms of the Civil Procedure Act, s 98, considered below. If, as the respondents contended, "parties" meant persons who engaged in the mediation, it would not be a natural meaning of that word to encompass those persons in the phrase "the parties". That would also not be consistent with the language of s 98.

Section 29 makes provision for giving effect to an agreement reached in a mediation. Its terms are, relevantly:

"29 Agreements and arrangements arising from mediation sessions

(1) The court may make orders to give effect to any agreement or arrangement arising out of a mediation session.

(2) On any application for an order under this section, any party may call evidence, including evidence from the mediator and any other person engaged in the mediation, as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement.

..."

The reference to "party" in this rule must be a reference to the party to the proceedings in respect of which the Court had ordered the mediation. The separate reference to "person" makes this clear, if it was not already apparent.

The respondents' submission that the informal mechanism of mediation need not be confined to those on the record, failed, in my opinion, to recognise the clear words and operation of these two provisions. The respondents' argument is thus not borne out by reference to ss 28 and 29.

The respondents also relied upon s 98 as supporting their argument. It provides, relevantly:

"98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

..."

The rule to which s 98 is subject is UCPR, Pt 42. For present purposes, it is sufficient to refer to UCPR, r 42.2 and r 42.4.

Those rules provide:

"42.2 General rule as to assessment of costs

Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.

...

42.4 Power to order maximum costs

(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.

(2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party:

(a) has failed to comply with an order or with any of these rules, or

(b) has sought leave to amend its pleadings or particulars, or

(c) has sought an extension of time for complying with an order or with any of these rules, or

(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap:

(i) progress of the proceedings to trial or hearing, or

(ii) trial or hearing of the proceedings.

..."

It is important to note that in these rules, the reference is to "a party" or to "a person". The different terminology can only be reference to a party to the proceedings and a person not a party to the proceedings. The remaining provisions of UCPR, Pt 42 bear this out. Again, it follows, in my opinion, that the respondents' argument is not made out by reference to s 98.

The respondents next relied upon various provisions in UCPR, Pt 36 itself and, in particular, rr 36.15, 36.17 and 36.18. UCPR, r 36.15(2) provides:

"A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent."

This rule is confined by its express terms to the parties to the proceedings, the respondents' point being that when the procedural legislation intended to refer to a party or parties to a proceeding, it did so expressly. However, having regard to the provisions already considered, that is not self-evidently correct.

UCPR, r 36.17 provides:

"If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."

The respondents submitted that it could be assumed that only persons with 'a real interest in the proceedings' would invoke this rule. In other words, "party" in UCPR, r 36.17 could include a person not a party to the proceedings. Unfortunately, this submission assumes the answer and further analysis is required. In the normal course, only a party to proceedings is affected by an order of the court and would be the only entity concerned as to the accuracy or correctness of a court order.

There are, however, occasions whereby someone not a party is or may be affected by the court's orders. Proceedings relating to the possession of land are one example. Another is the court's power under s 98 to make costs orders against persons who are not parties. It would seem that such a person would have a right to apply under UCPR, r 36.17 for the correction of a mistake or error in an order affecting them. A person responding to a subpoena who becomes subject to an order of the court likewise, it would seem, would be entitled to make an application under this rule: see Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No 2) (1984) 9 ACLR 117 at 119.

UCPR, r 36.18(1) provides:

"In any proceedings in which judgment has been given, or an order made, against a person under a business name, the court may vary the judgment or order so as to make it a judgment or order against the person in the person's own name."

This rule is intended to deal with the specific circumstance where proceedings are brought against a business which is not incorporated. A business name is not a legal entity. This is not always appreciated by those who bring proceedings. The rule is a convenient provision that allows the court to make its order or judgment against the person who owns the business, being the appropriate defendant, without the need for pleadings to be amended or the relevant person to be formally joined. I do not consider that this provision aids in the construction of UCPR, r 36.16(2)(b).

In my opinion, the various provisions to which the respondents referred do not compel the conclusion for which the respondents contend. Nor do they deny it. The question, therefore, by reference to the respondents' submissions, remains unanswered.

The appellants contended that in order to ascertain the meaning of "party" in UCPR, r 36.16(2)(b), it was necessary to look at the UCPR as a whole. They submitted that the Legislature had made it clear when it intended to refer to a party to proceedings, that is, a party who was formally joined as a party to proceedings, and when it intended to make reference to a person who was not a party. The appellants submitted that this was apparent from the different language used in UCPR, r 36.16(2)(b) itself as compared to para (c) of the rule. Para (b) refers to the making of an order "in the absence of a party", whereas para (c) refers to an order made in proceedings for possession of land "in the absence of person whom the court has ordered to be added as a defendant".

The respondents submitted that this argument was not maintainable, as there are special rules relating to possession cases which explained the language used in UCPR, r 36.16(2)(c). They contended, therefore, that no point of distinction could be made by reference to the difference in language in the two paragraphs. The appellants said this was no answer to their submission and that if all the Legislature meant in para (c) was a person who had an interest in the proceedings, the language used in that paragraph was completely unnecessary. The only reference required was to "a party".

The appellants also argued that it was not correct, as the respondents contended, that there was a long line of authority to the effect that "party" meant a person with sufficient interest in the proceedings. The appellants argued that upon a proper understanding of the authorities, their construction of the rule was correct or, alternatively, the rules under consideration in the various cases upon which the respondents relied were in different terms from UCPR, r 36.16 and, therefore, not of assistance or, at the least, not determinative of the meaning of "party" in para (b).

The case law on meaning of "party"

The appellants referred first to the remarks of Gavan Duffy and Rich JJ in R v Murray who stated, at 469:

"... the word 'party' must be given the meaning which lawyers ordinarily attach to it when speaking of litigious proceedings in a Court of Record, namely, 'party to the record'"

as being the appropriate starting point to a consideration of the meaning of "party".

The appellants next analysed each of the cases to which the respondents had referred.

It will be recalled that Ward J relied upon Nicholson v Nicholson and Scott v Casual Life Furniture International as supporting the availability of UCPR, r 36.16 to extend the time that had been ordered by Hammerschlag J. To the extent that Scott v Casual Life Furniture International is relevant to this question, no more needs to be noted than that there, Mandie J, applied Nicholson v Nicholson as authority for the proposition that the comparable Victorian rule was not confined to only permitting the 'absent party' to bring an application under the rule. The party who obtained the order could also do so.

In Nicholson v Nicholson an order for the sale of jointly owned property had been made pursuant to the Conveyancing Act 1919, s 66G. The order had been made in the absence of the respondent although he had notice of the application. Before the property had been sold, the plaintiff applied to the court for an order to prevent the sale.

The order made under s 66G was a final order of the court so that there was no inherent power in the court to set it aside: see Bailey v Marinoff [1971] HCA 49; 125 CLR 529 at 530. Jenkyn J observed, however, at 63, that the power to set aside or vary an order could be conferred either by statute or by the rules of court. His Honour considered that the Supreme Court Rules 1970, Pt 40, r 9(3)(a), which is in similar terms to UCPR, r 36.16(2)(b), was the only basis upon which such an order preventing the sale could be made. That then raised the question whether the rule was only available to the person who had not been in court when the order was made. His Honour, at 64, was of the opinion that the language of r 9(3) was wide enough to permit an application to be made by the person who had obtained the order in the first place. In his Honour's opinion:

"... r.9(3)(a) ... should be construed so as to extend the court's power to cover applications by all interested persons, and should not be limited so as to apply only to the one against whom the order in substance operates."

Nicholson v Nicholson does not assist, in my opinion, in the determination of the question in issue here, namely, whether the time period may be extended by an application under UCPR, r 36.16(2)(b), made outside the period specified in s 588FF(3). Nicholson v Nicholson supports the entitlement of the respondents to utilise UCPR, r 36.16(2)(b) if the rule otherwise extends to an order that has already been made under s 588FF(3). It does not assist in determining the meaning of the words "party" in the rule.

In Garden Mews-St Leonards v Butler Pollnow, at 119, McLelland J noted that it was not necessary that a person with a sufficient interest in challenging the appointment or activities of a receiver should be or become a party to the substantive proceedings in which the receiver was appointed, before he could apply to the court in those proceedings for appropriate relief in relation to the receiver. His Honour made the general observation, at 119, that:

"There are many circumstances in which interlocutory applications may be made by or against persons who are not parties to proceedings, for example, applications by a court-appointed receiver who is not a party, applications against persons, not parties, alleged to be in contempt of court, applications by persons, not parties, to set aside subpoenas, and applications of the kind exemplified in Jacques v Harrison and Nicholson v Nicholson ..." (citations omitted)

Jacques v Harrison (1883) 12 QBD 136, referred to by McLelland J in Garden Mews-St Leonards, concerned O XXVII, r 15 of the Supreme Court Rules (UK) which provided:

"Any judgment by default, whether under this order or under any other of these rules, may be set aside by the Court or a judge, upon such terms as to costs or otherwise as such Court or judge may think fit."

Grove J, at 140, noted that this rule did "not say on whose application" the judgment may be set aside. Hawkins J, at 141, said that "[t]here is in that rule no limitation as to the persons who may apply to set it aside". These observations are consistent with what was later decided in Nicholson v Nicholson. For the same reason, it does not assist in construing the meaning of "party" in r 36.16(2)(b).

Douglass v Gillman (1990) 19 NSWLR 570 at 571 also involved an application under the Supreme Court Rules, Pt 40, r 9, made in proceedings brought under the De Facto Relationships Act 1984. Needham J, at 571, applied Nicholson v Nicholson and permitted the plaintiff to apply under the rule to vary the order that had been made in the absence of the defendant. The other aspect of the case, as to whether the term "vary" in the rule allowed a completely different order or merely the amendment of an existing order, does not assist in the resolution of the issues in this case.

In Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; 80 ACSR 1 Barrett J, at [6], held that an application under UCPR, r 36.16(2)(b) could be brought by a non-party "with a clear interest in the subject matter": see Nicholson v Nicholson and Douglass v Gillman, which his Honour considered stood for that proposition. The defendant company had been wound up on the basis of the presumption of insolvency arising by operation of the Corporations Act, s 459C(2)(a) for failing to comply with a statutory demand. The applicant to set aside the order was a 50 per cent shareholder, a director and creditor of the defendant company.

His Honour noted that under the Corporations Act, s 471A, the company subject to the winding up could move to set it aside only with the approval of the liquidator or the court. His Honour observed, at [10], the only factual pre-condition to the exercise of the discretion conferred by UCPR, r 36.16(2)(b) was that the order in question was "made in the absence of a party". His Honour noted that the defendant company had been "absent" when the winding up order was made, so that the precondition for the exercise of the discretion under the rule had been satisfied.

Although on his Honour's construction of UCPR, r 36.16(2)(b), the applicant was a proper party to make the application, he refused the application on discretionary grounds. His Honour then considered the applicant's alternative claim under the Corporations Act, s 482 based upon his status as a creditor and contributory of the defendant company. As his Honour was satisfied of the company's solvency, an order was made under that section.

In my opinion, this decision, if anything, supports the appellants' argument that the relevant order must have been made in the absence of a party joined to the proceedings.

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; 269 ALR 76 was concerned with an application by non-parties to the proceedings to set aside a subpoena. The respondents contended that Yates J, at [66], followed Nicholson v Nicholson in relation to O 35, r 7(2)(a), the equivalent Federal Court rule. It is not clear whether that is so. His Honour referred to the rule and to a submission to that effect. His Honour then, at [67], referred to O 35, r 7(2)(c), that permitted an interlocutory order to be set aside, noting that the order in question was interlocutory. His Honour then referred generally to the nature of the discretion conferred by r 7(2), without stating specifically which rule he was proceeding under, although the better reading is that it was likely to have been r 7(2)(c). Therefore, the comment at [86] of the judgment, that Barnes and Hawksley (the applicants) had standing "under O 35 r 7(2)" (without expressly referring to subparas (a) or (c) of that rule) cannot be read, as the respondents submit, as a finding by Yates J that the non-party applicants had sufficient standing to apply for orders under the Federal Court's equivalent of r 36.16(2)(b). This case does not, therefore, take the question in issue any further.

A case not referred to by either party was In the Matter of Bauhaus Pyrmont Pty Ltd (In Liq) [2006] NSWSC 879; 67 NSWLR 289, which concerned the question whether an entity who had been subpoenaed to produce documents but had contested their production on the ground of privilege could be subject to a costs order. This question involved a consideration of s 98 and UCPR, r 42.3 (now repealed) which provided that the rule did not permit the making of an order for costs "against a person who is not a party". There were stated exceptions to the rule in UCPR, r 42.3(2) including in the case of "a person who has committed contempt of Court or an abuse of process of the court". An order for the payment of costs "of a party to proceedings" could be made against that person. There was also excepted from the rule the power of the Court to make an order against a person who failed to attend in response to a subpoena, either to give evidence or to produce documents: see UCPR, r 42.27.

A company, having been subpoenaed to produce documents, attended Court but claimed privilege. After a contested hearing, the claim for privilege was dismissed. Austin J held that a subpoenaed person who contests access to the documents but fails is a party for the purposes of UCPR, r 42.3(1). In reaching that conclusion, Austin J relied significantly upon the judgment of Rolfe AJ in ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169. Rolfe AJ in turn had relied upon Law Society of New South Wales v Jackson [1981] 1 NSWLR 730 where Samuels JA, with whom Reynolds and Mahoney JJA agreed, said, at 735:

"A party, essentially, is a person who takes part in legal proceedings, and that is the definition to be found in Jowit's Dictionary of English Law, at p 1302."

Their Honours added there was no doubt that the Council of the Law Society had taken part in the proceedings. Austin J considered that this concept of a "party" was consistent with the observations of Mason CJ and Deane J in Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 at 190 in which their Honours stated that the word "party" was not confined to a person on the record in the proceedings. However, in that case, the Court was concerned with O 91.1 of the Rules of the Supreme Court of Queensland (Qld), which provided, relevantly, that the costs were to be in the discretion of the court or judge. There was no reference in the rules to a "party" or to "party to the proceedings" or to "person".

Resolution

The meaning of a word in a legislative provision depends upon its text, context and purpose. There are, relevantly, three expressions used in the procedural legislation: "party [or parties] to proceedings"; "party" and "person". As I have already indicated, "party [or parties] to proceedings" is clear and can have only one meaning. "Party", when used in many of the provisions of the procedural legislation, often means "party or parties to the proceedings". However, as the references to some of the rules makes apparent, that is not invariably the case.

The language of the provision as a whole must, of course, be considered. Thus, the rule provides that an order, that has been entered, may be varied if "given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order". It thus refers to "the absence of a party" and "the absent party". Although the language of "party" tends to suggest that the rule is directed to a party joined to the proceedings, there are sufficient occasions in the procedural legislation where that is not the case. Accordingly, the matter is not concluded by reference solely to the text of the provision.

As I have also sought to analyse, context often provides the answer as to the proper construction of a legislative provision, but not always. It does not do so for UCPR, r 36.17, nor, in my opinion, for UCPR, r 36.16(2)(b). The difference in language between UCPR, r 36.16(2)(b) and UCPR, r 36.16(2)(c), although useful also does not provide the answer as to the proper construction of UCPR, r 36.16(2)(b). The purpose of para (c) explains the particular language used in that provision.

If one then looks at the purpose of the UCPR, r 36.16(2(b), it is a procedural provision which recognises that orders may be made in the absence of "a party" (to use the language of the section) which require variation. This may be at the instance of the party who obtained the order. As the authorities recognise, this may be because circumstances have changed so that some other order than that originally made may be needed or warranted. Nicholson v Nicholson was such a case. An application under the rule may also be made by the "absent party" who may, on being heard, establish that an order, or aspects of it, ought to be varied.

When regard is then had to the position that, as McLelland J recognised in Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No 2), there are a variety of circumstances in which a person, not a party formally joined to proceedings, may challenge orders that have been made by the court, then it would seem that UCPR, r 36.16(2)(b) ought to be available to such persons.

Accordingly, I propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside orders made by Black J on 8 February 2013.

4. Order that order 2 made by Ward J on 19 September 2011 be set aside.

5. Order that the respondents pay the costs of the appellants, both of the hearing before Black J and of the appeal.

MACFARLAN JA: I agree with Beazley P's reasoning other than that contained in [89]-[93] of her Honour's judgment. My view on the issue there addressed leads me to the conclusion that the appeal should be dismissed with costs.

Whether Ward J's order was made on the extension application filed within time

My disagreement with her Honour is as to whether r 36.16(2)(b) of the UCPR validly authorised the order of Ward J (as her Honour then was) that Hammerschlag J's order of 30 May 2011 be varied by substituting an extended date for the liquidators to commence proceedings against the appellants seeking orders concerning allegedly voidable transactions.

In my view Ward J's order was validly made, as Black J subsequently held on 8 February 2013. My reasons are as follows.

The only restriction placed by s 588FF(3)(b) on the Court's power to extend the time for a liquidator to bring proceedings concerning a voidable transaction is that the Court's order be "on an application under this paragraph made by the liquidator during the paragraph (a) period". The provision does not require that the order, as distinct from the application, be made during the paragraph (a) period. An application was made here during the paragraph (a) period, but Ward J's order, which had the effect of extending the period (by varying the order made by Hammerschlag J), was made outside the period. This did not conflict with the section if the application made within time was on foot when Ward J made her order. If it was, she made her order "on an application" filed in conformity with s 588FF(3)(b).

The nub of JP Morgan's argument is that, once Hammerschlag J made an extension order, the application for extension ceased for all time to be on foot, as its purpose was fulfilled.

The High Court decision in Gordon v Tolcher [2006] HCA 62; 231 CLR 334 establishes that once an application for extension of time is made in conformity with s 588FF(3)(b), "the conduct of the litigation is left for the operation of the procedures of [the court in which the application was filed]" (at [40]). In that case, proceedings under s 588FF in the District Court of New South Wales were taken by the court's rules to be dismissed because certain procedural steps had not been taken within specified times. On appeal, this Court extended the time for taking the steps, with the consequence that the application could continue to be prosecuted. On further appeal, the High Court affirmed this Court's decision and held, in effect, that the extension application revived because the Court of Appeal's order was made in accordance with the governing rules of court. Thus the dismissal in the District Court of the s 588FF application was reversed by a subsequent (appellate) order made in accordance with the rules of court.

In my view there is an analogy between what occurred in Gordon v Tolcher and what occurred in the present case. Hammerschlag J's order extending time implicitly brought the application for extension of time to an end because what was sought by the application was achieved. However, that termination was subject to the rules of court which were able to, and effectively did, provide for its revival in certain circumstances. One circumstance was that which occurred in the present case where a judge exercised the amendment power conferred by r 36.16(2)(b) to vary the earlier order. To the extent that the rule of court permitted the making of the variation order, the rule implicitly provided for the application for extension of time to be revived, as the variation order could not be made in the absence of process invoking the Court's jurisdiction.

The position would be the same if an application were made for variation of this, or any other, order under the slip rule (r 36.17), or under the inherent jurisdiction to correct an order that did not truly represent the order that the court intended to pronounce (Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411 at [77] - [83]). For the court to have a foundation for the exercise of its jurisdiction, the application pursuant to which the earlier order was made would have to be regarded as subsisting, or at least revived, when the variation order was made.

The same position would apply if at first instance an application for extension of time under s 588FF(3) was rejected and the extension application formally dismissed, but an appeal was allowed and an order for extension made. The orders allowing the appeal and granting an extension would have the effect of reviving the application to enable it to form the basis for the extension order. In the words of s 588FF(3)(b), that order would be made "on an application" filed in accordance with that provision.

JP Morgan submitted that the fact that the extension application as filed sought an extension to a particular identified date which was different from that to which Ward J granted an extension indicated that Ward J's variation order, which had the effect of extending time, was not made on the original application.

The first answer to this submission is that the Court is not confined in the orders that it may make by the precise terms of the application before it. Subject to procedural fairness being afforded to the parties, it may depart from that court process, for example, in a s 588FF(3) application for extension of time by specifying a different date to which the relevant period is extended. Strictly, the court process should be amended to conform with the Court's decision (see by way of analogy, Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497) but not doing this will not affect the validity of the Court's order. In such a case, the process should be regarded as implicitly amended. In the case of a s 588FF(3)(b) extension of time application, such an amendment, whether explicit or implicit, may validly be made outside the period specified in s 588FF(3) so long as the application was brought within that period (see [4] above and by analogy Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251; Air Link Pty Ltd v Paterson [2005] HCA 39; 223 CLR 283 at [11]).

The present question is different from that of whether an amendment power conferred by rules of court can be used to extend the period specified in s 588FF(3)(b) for the making of an application for extension of time. Authority requires a negative answer to the latter question (see Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; 175 CLR 514 at 561 - 2; David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 278 - 9; Greig v Stramit Corporation Pty Ltd [2003] QCA 298; [2004] 2 Qd R 17 at [90]; BP Australia Ltd v Brown [2003] NSWCA 216; 58 NSWLR 322 at [129]). However, the question in the present case is not whether the time for making an extension application may be extended after the period specified by the legislature but whether an application filed within time was on foot on the date after expiry of that period when the order for variation of Hammerschlag J's order was made. As I have indicated, that is a question to be answered by reference to the rules of court.

I should add that I do not see Spigelman CJ's reference in BP Australia v Brown at [118] to s 588FF(3) providing for a "single determinate extension of time" as precluding the view that I have taken as there was no issue in that case, as there is here, of use of the amendment power in r 36.16(2)(b).

The ambit of r 36.16(2)(b)

I agree with Beazley P's view that this rule provided a proper foundation for Ward J's order but add the following observations.

First, as her Honour demonstrates, no clear indication can be obtained from other rules in the UCPR as to the sense in which the word "party" is used in r 36.16(2)(b). In other rules, the word, whether in a singular or plural form, is sometimes used in a broad sense and sometimes in a narrow sense. However the rule is remedial in that it permits the Court to exercise a discretion to correct a judgment or order that it considers requires correction and the appellants did not identify any good reason why the rule makers would have intended the Court to have only a narrow discretion in this respect. A broad construction, enlarging the Court's discretion to act in cases it considers appropriate, conforms with s 56 of the Civil Procedure Act 2005 which requires the Court, in interpreting any rule of court, to give effect to the overriding purpose of the Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Such a construction also conforms with the principle that powers to be exercised judicially should be construed liberally (Mansfield v DPP [2006] HCA 38; 226 CLR 486 at [10]; Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082 at [56], [141]).

Secondly, some support for this construction can be obtained from the fact that r 36.16(2)(b) was promulgated as part of the UCPR when for some years previously the view of Jenkyn J in Nicholson v Nicholson [1974] 2 NSWLR 59 at 64 that a similarly expressed rule in the Supreme Court Rules 1970 extended "to cover applications by all interested persons" was treated as authoritative by Peter Taylor and P W Young, Ritchie's Supreme Court Procedure (NSW) (1984 - 2005) Butterworths. An inference is available that when the rule makers adopted the same language in the UCPR they intended it to have the meaning already judicially attributed to the word "party" in that earlier rule (Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 at 106; R v Aubrey [2012] NSWCCA 254 [39] - [47]).

Conclusion

For these reasons, I propose that leave to appeal be granted but the appeal be dismissed with costs.

GLEESON JA: I have had the advantage of reading in draft the judgments of Beazley P and Macfarlan JA. Like Macfarlan JA, I am in agreement with Beazley P's reasoning other than that contained in [89]-[93] of her Honour's judgment. I otherwise agree with the reasons of Macfarlan JA. In these circumstances, it is unnecessary to determine the liquidators' alternative argument that an order nunc pro tunc could be made under UCPR, r 1.12 to achieve the same result as the order made by Ward J: see [94]-[99] of the reasons of Beazley P. The various appeals should be dismissed with costs.

I would add the following observations on the issue concerning whether Ward J's order under UCPR r 36.16(2)(b) was made "on an application" under s 588FF(3)(b) of the Corporations Act 2001 (Cth).

It is to be accepted that the time stipulation in s 588FF(3) imposes a condition which is of the essence of the right created by s 588FF(1) for a liquidator to make application to a court for orders in respect of transactions which are voidable because of s 588FE: Gordon v Tolcher [2006] HCA 62; 231 CLR 334 at [37].

The time stipulation may only be extended beyond the three year period by "the Court", being a superior court, "on an application" that is made within the original stipulated period. This includes the Federal Court, the Supreme Court of a State or Territory and the Family Court of Australia: s 58AA(1) Corporations Act.

An application for the fixing of a "longer period" under s 588FF(3)(b) is a "matter" arising under the Corporations Act in respect of which federal jurisdiction is conferred by s 1337B(2) of the Corporations Act upon, relevantly, the Supreme Court of each State and Territory. An extension application is a "matter" distinct from that seeking an order under s 588FF(1) with respect to voidable transactions: Gordon v Tolcher at [35]. An extension application is made when it is filed in the registry: Ansell Ltd v Davies [2008] SASC 2003; 67 ACSR 356 at [49] per Doyle CJ.

Section 588FF is silent in relation to the procedures to be adopted by the Court when exercising federal jurisdiction in respect of an extension application under s 588FF(3)(b). Subject to any operation of other provisions of the Corporations Act (and none were identified in the present case), after the institution of an extension application the procedural regulation of the conduct of such matter is left for the particular State or Territorial procedural law which is to be picked up by s 79 of the Judiciary Act: Gordon v Tolcher at [32].

In the present case, the liquidators of Octaviar Limited (in liq) made an application for an extension of time in conformity with s 588FF(3)(b), during the original stipulated period of three years after the relation-back day. An order fixing a "longer period" was made "on that application" by Hammerschlag J on 30 May 2011 and was later varied by Ward J on 19 September 2011.

Although procedurally the variation order made by Ward J on 19 September 2011 relied on the Court's power under UCPR r 36.16(2)(b), as a matter of jurisdiction that order is properly characterised as an order made "on an application" under s 588FF(3)(b). It is not to the point that as a matter of procedure the variation order under r 36.16(2)(b) was sought in an interlocutory process, or for that matter in an amended originating process, which were both filed in the proceedings below on 19 September 2011. When the variation order was made, Ward J was exercising federal jurisdiction in respect of an "application" under s 588FF(3)(b) for the fixing of a "longer period" for making an application under s 588FF(1). The time limit for the making of such an application by the liquidators had been satisfied when the application was made to the Court on 10 May 2011 by way of an originating process filed in the registry (Consolidated White Book 25): BP Australia Ltd v Brown & Ors [2003] NSWCA 216; 58 NSWLR 323 at [151] per Spigelman CJ (Mason P and Handley JA agreeing); Ansell Ltd v Davies at [45] and [49] (Doyle CJ).

**********

Amendments

28 August 2014 - correction to second sentence of paragraph

Amended paragraphs: 20

Details

AGLC: JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher [2014] NSWCA 31
Case: [2014] NSWCA 31
Decision Date: 28 February 2014

CaseChat Overview and Summary

JPMorgan Chase Bank, National Association and Grant Samuel Corporate Finance Pty Limited appealed to the Court of Appeal of New South Wales against orders made by a single judge of the Supreme Court of New South Wales. The dispute concerned an application by Mr Fletcher for an extension of time to make application under section 588FF of the Corporations Act 2001 (Cth) for orders setting aside certain transactions as voidable. The primary judge had granted Mr Fletcher an extension of time, and the appellants sought to appeal this decision.

The central legal issues before the Court of Appeal were whether section 588FF(3)(b) of the Corporations Act permits only one application for an extension of time, and whether Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which allows for the variation of judgments or orders, was picked up by section 79 of the Judiciary Act 1903 (Cth) and therefore applicable in federal jurisdiction. Relatedly, the Court considered whether Rule 36.16(2)(b) permitted the variation of an order extending time, particularly where the variation sought would effectively permit a further extension of time, and whether the Court had the power to vary an order made in the absence of a party not on the record.

The Court of Appeal held that section 588FF(3)(b) does not limit the number of applications that can be made for an extension of time. It further determined that Rule 36.16(2)(b) of the UCPR, which permits the variation of judgments or orders, was applicable in federal jurisdiction by virtue of section 79 of the Judiciary Act. The Court reasoned that the rule allows for the variation of an order extending time, and that the primary judge had the power to vary the earlier order to permit a further extension of time, even though the appellants were not parties on the record at the time of the variation application.

The Court of Appeal granted leave to appeal but dismissed the appeal with costs.

Orders

Orders of the court

1. Grant leave to appeal;

2. Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher [2014] NSWCA 31

Most Recent Citation

Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55

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Citation 1 (Para 118)

…Doyle CJ (Anderson and David JJ agreeing); JPMorgan Chase Bank National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher [2014] NSWCA 31 at [170] per Gleeson JA. The Originating Process which was filed by the Deputy Commissioner on 18 April 2016 was expressed to make, and did make, an…
Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd [2025] NSWCA 16
Citation 2 (Para 1)

…n Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31, considered.…
Gong v Nipps (liquidator), in the matter of i-Prosperity Pty Ltd (in liq) [2024] FCAFC 102
Citation 3 (Para 12)

…f time under s 588F(3)(b) which considered the question of whether leave to appeal is required: JP Morgan Chase Bank, National Association v Fletcher [2014] NSWCA 31; 85 NSWLR 644 (Beazley P, Macfarlan and Gleeson JJA) and Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148; 87 NSWLR 728…
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Citation 4 (Para 25)

…r was made. [10] 10. JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 at [129]-[131] (Beazley P).…
Pacific National Pty Ltd v Baldacchino [2018] NSWWCCPD 12
Citation 5 (Para 11)

…similar effect Williams v Pisano [2015] NSWCA 177; 90 NSWLR 342 (per Emmett JA), [99], and JPMorgan Chase Bank National Association v Fletcher [2014] NSWCA 31; 85 NSWLR 644 (per Macfarlan JA, Gleeson JA agreeing), [164] .…
Tran v R [2017] NSWCCA 93
Citation 6 (Para 15)

…76 NSWLR 148; [2009] NSWCA 284 at [39] per Giles JA (with whom Ipp and Tobias JJA agreed) and in JP Morgan Chase Bank v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 at [140]-[147] per Beazley P (with whom Gleeson JA and I relevantly agreed). In the last mentioned case the Court found that companies that had not b…
Randall v City of Canada Bay Council [2017] NSWCA 1
Citation 7 (Para 26)

…and in different circumstances, provides little assistance in relation to the question of standing under r 36.15(1). 19. (2014) 85 NSWLR 644; [2014] NSWCA 31. 20. Grant Samuel Corporate Finance Pty Ltd v Fletcher (2015) 254 CLR 477; [2015] HCA 8.…
Randall v City of Canada Bay Council (No.4) [2015] NSWSC 1759
Citation 8

…1959) 101 CLR 298 JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31; (2014) 85 NSWLR 644 Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited [1915] AC 705 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 McHugh & Anor v Ea…
Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450
Citation 9 (Para 1)

…e was revived pro tanto upon the making of Young AJ's order (see JPMorgan Chase Bank, National Association v Fletcher (as liquidator of Octaviar Ltd) [2014] NSWCA 31; 85 NSWLR 644). That potential question should not be pre-empted. Secondly, it is by no means clear to me that Mr Anderson and Mr White, in their sub…
Re Metal Storm Ltd (subject to deed of company arrangement) [2014] NSWSC 813
Citation 10 (Para 1)

…meaning depending on its context: JP Morgan Chase Bank, National Association v Fletcher (as liquidator of Octaviar Ltd) (recs & mgrs apptd) (in liq) [2014] NSWCA 31; (2014) 306 ALR 224 at [100]ff. An extended meaning of that term is supported by cl 1.11(b) of the Security Trust Deed which provides that a Benefici…
Fortress Credit Corporation (Australia) Ii Pty Ltd v Fletcher [2014] NSWCA 148
Citation 11 (Para 1)

…td) (in liq) and Others; Grant Samuel Corporate Finance Pty Ltd v Fletcher (as liquidators of Octaviar Ltd) (recs and mgrs apptd) (in liq) and Others [2014] NSWCA 31; (2014) 306 ALR 224 ( JP Morgan v Fletcher ) at [84] Beazley P, with whom Macfarlan and Gleeson JJA agreed on this point, stated that the absolutism…
In the matter of Kisimul Holdings Pty Limited [2014] NSWSC 525
Citation 12 (Para 1)

…ad been dismissed, although that would have the practical effect of extending time for compliance with the demand. In JP Morgan Chase Bank v Fletcher [2014] NSWCA 31; (2014) 306 ALR 224, the Court of Appeal held by majority that an order extending the time for the making of an application under Corporations Act s…
High Court Bulletin [2015] HCAB 1
Citation 13

…Appealed from NSWSC (CA): [2014] NSWCA 31.…
High Court Bulletin [2014] HCAB 8
Citation 14

…Appealed from NSWSC (CA): [2014] NSWCA 31.…
High Court Bulletin [2014] HCAB 7
Citation 15

…Appealed from NSWSC (CA): [2014] NSWCA 31. Listed: 12 November 2014. Return to Top Criminal Law Henderson v State of Queensland B22/2014 : [2014] HCATrans 102. Date heard: 16 May 2014 – Special leave granted . Catchwords: Criminal law – Procedure – Confiscation of proceeds of crime – Criminal Proceeds Confiscation…
High Court Bulletin [2014] HCAB 6
Citation 16

…Appealed from NSWSC (CA): [2014] NSWCA 31.…
Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55
Citation 17 (Para 95)

…” extends to a non-party with an interest in the judgment or order: JPMorgan Chase Bank, National Association v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 at [101], [104], [147], [162]-[164], [166].…

Cases Cited

Statutory Material Cited

Lee v New South Wales Crime Commission [2013] HCA 39
Citation 1 (Para 1)

…to be exercised judicially should be construed liberally ( Mansfield v DPP [2006] HCA 38; 226 CLR 486 at [10]; Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082 at [56], [141]).…
In the matter of Octaviar Limited (receivers and managers appointed) (in liquidation) and Octaviar Administration Pty Limited (in liquidation) [2013] NSWSC 62
Citation 2 (Para 1)

…2013: In the matter of Octaviar Limited (receivers and managers appointed) (in liquidation) and Octaviar Administration Pty Limited (in liquidation) [2013] NSWSC 62. The appeals are from his Honour's dismissal of those applications.…
R v Aubrey [2012] NSWCCA 254
Citation 3 (Para 1)

…ule ( Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 at 106; R v Aubrey [2012] NSWCCA 254 [39] - [47]).…
Onefone Australia Pty Ltd v One.Tel Ltd [2011] NSWSC 59
Citation 4 (Para 1)

…ng to this conclusion, his Honour took a different approach from that taken by Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 268; 61 ACSR 429. In Onefone Barrett J considered, at [37], that the relevant application to which regard was to be had was the application seeking the variation of t…
Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257
Citation 5 (Para 1)

…se have been brought outside the three year period specified in s 588FF(3): Greig v Stramit Corporation ; Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257; 80 ACSR 186. However, there is no question of amendment in issue in the present case. In this case, the procedural rules of court were used to exten…
Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056
Citation 6 (Para 1)

…In Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; 80 ACSR 1 Barrett J, at [6], held that an application under UCPR, r 36.16(2)(b) could be brought by a non-party " with a clear interest in the subject matter ": see Nicholson v Nicholson and Douglass v Gillman , which his Honour c…
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398
Citation 7 (Para 1)

…Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; 269 ALR 76 was concerned with an application by non-parties to the proceedings to set aside a subpoena. The respondents contended that Yates J, at [66], followed Nicholson v Nicholson in relation to O 35, r 7(2)(a), the equivalent F…
Ansell Ltd v Davies [2008] SASC 203
Citation 8 (Para 1)

…able transactions: Gordon v Tolcher at [35]. An extension application is made when it is filed in the registry: Ansell Ltd v Davies [2008] SASC 2003; 67 ACSR 356 at [49] per Doyle CJ.…
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc [2007] NSWCA 195
Citation 9 (Para 1)

…correct an order that did not truly represent the order that the court intended to pronounce ( Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411 at [77] - [83]). For the court to have a foundation for the exercise of its jurisdiction, the application pursuant to which the earlier…
Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 268
Citation 10 (Para 1)

…In coming to this conclusion, his Honour took a different approach from that taken by Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 268; 61 ACSR 429. In Onefone Barrett J considered, at [37], that the relevant application to which regard was to be had was the application seeking the variation of…
Gordon v Tolcher [2006] HCA 62
Citation 11 (Para 1)

…ubmission that UCPR was not picked up by the Judiciary Act , s 79. His Honour considered, at [49], that the High Court's decision in Gordon v Tolcher [2006] HCA 62; 231 CLR 334 was:…
In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879
Citation 12 (Para 1)

…A case not referred to by either party was In the Matter of Bauhaus Pyrmont Pty Ltd (In Liq) [2006] NSWSC 879; 67 NSWLR 289, which concerned the question whether an entity who had been subpoenaed to produce documents but had contested their production on the ground of privilege could be subject to a costs order. Th…
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38
Citation 13 (Para 1)

…ceedings. Such a construction also conforms with the principle that powers to be exercised judicially should be construed liberally ( Mansfield v DPP [2006] HCA 38; 226 CLR 486 at [10]; Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082 at [56], [141]).…
J Aron Corporation v Newmont Yandal Operations Pty Ltd [2005] NSWSC 1159
Citation 14 (Para 1)

…hat did not truly represent the order that the court intended to pronounce ( Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411 at [77] - [83]). For the court to have a foundation for the exercise of its jurisdiction, the application pursuant to which the earlier order was mad…
APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44
Citation 15 (Para 1)

…ginally made upon an application filed within the three year period: Gordon v Tolcher at [25], [30]; APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 at [230]; Agtrack (NT) Pty Ltd v Hatfield at [58]-[60]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [35]; Macleod v Aus…
Air Link Pty Ltd v Paterson [2005] HCA 39
Citation 16 (Para 1)

…was brought within that period (see [4] above and by analogy Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251; Air Link Pty Ltd v Paterson [2005] HCA 39; 223 CLR 283 at [11]).…
Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38
Citation 17 (Para 1)

…Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 was concerned with a claim under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) by a widow for damages resulting from the death of her husband in an aircraft crash. Section 34 of the Act provided for the extinguishment of a right to a person to…
BP Australia Ltd v Brown [2003] NSWCA 216
Citation 18 (Para 1)

…pective approaches to the construction and application of s 588FF. Three cases, in particular, were said to be relevant. BP Australia Limited v Brown [2003] NSWCA 216; 58 NSWLR 322; Greig v Stramit Corporation [2003] QCA 298; 2 Qd R 17; and Gordon v Tolcher . Within that case law, the parties placed differing inter…
Greig v Stramit Corporation Pty Ltd [2003] QCA 298
Citation 19 (Para 1)

…588FF. Three cases, in particular, were said to be relevant. BP Australia Limited v Brown [2003] NSWCA 216; 58 NSWLR 322; Greig v Stramit Corporation [2003] QCA 298; 2 Qd R 17; and Gordon v Tolcher . Within that case law, the parties placed differing interpretations on what was decided and the proper application…
R v Gee [2003] HCA 12
Citation 20 (Para 1)

…Act which [ is ] said to be 'picked up' by s 79 ": see De Vos v Daly [1947] HCA 12; 73 CLR 509 at 515 per Latham CJ and 518 per Starke J. In R v Gee [2003] HCA 12; 212 CLR 230, McHugh and Gummow JJ explained that:…
Sutherland v Dexion Pty Ltd [2003] NSWSC 24
Citation 21 (Para 1)

…orporation respectively. Contrast Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6; 166 FLR 393 per Austin J; Sutherland v Dexion Pty Ltd [2003] NSWSC 24; 173 FLR 123 at [13] per Barrett J; Green v Chiswell Furniture Pty Ltd (In Liq) [1999] NSWSC 608 per Austin J.…
Greig v Australian Building Industries Pty Ltd (in liq) [2002] QSC 343
Citation 22 (Para 1)

…ura Commercial Interiors Pty Ltd [2002] NSWSC 380; 20 ACLC 904 per Barrett J; Greig v Australian Building Industries Pty Ltd (In Liq) [2002] QSC 298; 171 FLR 41 per Mullins J; Tagoori Pty Ltd (In Liq) v Lee [2001] 2 Qd R 98 per Williams J, all of which had taken the approach confirmed by the New South Wales a…
Greig v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298
Citation 23 (Para 1)

…er Rolfe J; Re Aura Commercial Interiors Pty Ltd [2002] NSWSC 380; 20 ACLC 904 per Barrett J; Greig v Australian Building Industries Pty Ltd (In Liq) [2002] QSC 298; 171 FLR 41 per Mullins J; Tagoori Pty Ltd (In Liq) v Lee [2001] 2 Qd R 98 per Williams J, all of which had taken the approach confirmed by the New S…
Macleod v Australian Securities and Investments Commission [2002] HCA 37
Citation 24 (Para 1)

…Hatfield at [58]-[60]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [35]; Macleod v Australian Securities and Investments Commission [2002] HCA 37; 211 CLR 287 at [22], [23], [44]; Northern Territory v GPAO at [79]-[81].…
Re Aura Commercial Interiors [2002] NSWSC 380
Citation 25 (Para 1)

…horities in the respective jurisdictions. See Star v National Australia Bank Ltd (1999) 30 ASCR 583 per Rolfe J; Re Aura Commercial Interiors Pty Ltd [2002] NSWSC 380; 20 ACLC 904 per Barrett J; Greig v Australian Building Industries Pty Ltd (In Liq) [2002] QSC 298; 171 FLR 41 per Mullins J; Tagoori Pty Ltd (In Liq…
Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6
Citation 26 (Para 1)

…and appellate courts in BP Australia Ltd v Brown and Greig v Stramit Corporation respectively. Contrast Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6; 166 FLR 393 per Austin J; Sutherland v Dexion Pty Ltd [2003] NSWSC 24; 173 FLR 123 at [13] per Barrett J; Green v Chiswell Furniture Pty Ltd (In Liq…
ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169
Citation 27 (Para 1)

…rposes of UCPR, r 42.3(1). In reaching that conclusion, Austin J relied significantly upon the judgment of Rolfe AJ in ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169. Rolfe AJ in turn had relied upon Law Society of New South Wales v Jackson [1981] 1 NSWLR 730 where Samuels JA, with whom Reynolds and Mahoney JJA ag…
Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608
Citation 28 (Para 1)

…166 FLR 393 per Austin J; Sutherland v Dexion Pty Ltd [2003] NSWSC 24; 173 FLR 123 at [13] per Barrett J; Green v Chiswell Furniture Pty Ltd (In Liq) [1999] NSWSC 608 per Austin J.…
Bass v Permanent Trustee Co Ltd [1999] HCA 9
Citation 29 (Para 1)

…Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 at [230]; Agtrack (NT) Pty Ltd v Hatfield at [58]-[60]; Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [35]; Macleod v Australian Securities and Investments Commission [2002] HCA 37; 211 CLR 287 at [22], [23], [44]; Northern Territory v…
Northern Territory v GPAO [1999] HCA 8
Citation 30 (Para 1)

…to consider the case law relating to that provision. The objective of s 79 has been described by Gleeson CJ and Gummow J in Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 as being to:…
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43
Citation 31

…uld deprive the word 'only' of effect ( Cavetina Pty Ltd v Synthetic Dyeworks Industries Pty Ltd (1994) 14 ACSR 274 at 281; Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541 at 549)."…
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34
Citation 32 (Para 1)

…ributed to the word "party" in that earlier rule ( Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 at 106; R v Aubrey [2012] NSWCCA 254 [39] - [47]).…
Wardley Australia Ltd v Western Australia [1992] HCA 55
Citation 33 (Para 1)

…ter the time prescribed in s 588FF(3) had expired. The majority, applying the decision of the High Court in Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514, held that s 81 was not available for that purpose. I do not entirely agree with this submission. Certainly, no question of s 79 arose i…
Knight v FP Special Assets Ltd [1992] HCA 28
Citation 34 (Para 1)

…. Austin J considered that this concept of a " party " was consistent with the observations of Mason CJ and Deane J in Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 at 190 in which their Honours stated that the word " party " was not confined to a person on the record in the proceedings. However, in…
Water Board v Moustakas [1988] HCA 12
Citation 35 (Para 1)

…eriod is extended. Strictly, the court process should be amended to conform with the Court's decision (see by way of analogy, Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497) but not doing this will not affect the validity of the Court's order. In such a case, the process should be regarded as implicit…
Bailey v Marinoff [1971] HCA 49
Citation 36 (Para 1)

…The order made under s 66G was a final order of the court so that there was no inherent power in the court to set it aside: see Bailey v Marinoff [1971] HCA 49; 125 CLR 529 at 530. Jenkyn J observed, however, at 63, that the power to set aside or vary an order could be conferred either by statute or by the rules…
R v Wallis [1949] HCA 30
Citation 37 (Para 1)

…CJ also referred to the remarks of Dixon J in R v Wallis; ex parte Employers Association of Wool-Selling Brokers and H V Mackay Massey Harris Pty Ltd [1949] HCA 30; 78 CLR 529 at 550 that:…
De Vos v Daly [1947] HCA 12
Citation 38 (Para 1)

…" to be regarded in any way as 'inconsistent' with the application of the State Act which [ is ] said to be 'picked up' by s 79 ": see De Vos v Daly [1947] HCA 12; 73 CLR 509 at 515 per Latham CJ and 518 per Starke J. In R v Gee [2003] HCA 12; 212 CLR 230, McHugh and Gummow JJ explained that:…
Anthony Hordern & Sons Ltd v Amalgamated Clothing And Allied Trades Union of Australia [1932] HCA 9
Citation 39 (Para 1)

…a particular provision prevails over any general provision: see Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1, at 7, where the High Court observed:…
The Crown v McNeil [1922] HCA 33
Citation 40

…f the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil (1922) 31 CLR 76 at 100-101, it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect ..…
R v Murray and Cormie; Ex parte the Commonwealth [1916] HCA 58
Citation 41 (Para 1)

…eant " party to the proceedings ", that is, persons who had been formally joined as parties to the proceedings: see R v Murray; ex parte Commonwealth [1916] HCA 58; 22 CLR 437 at 469.…
Nicholson v Nicholson [1995] HCATrans 299
Citation 42 (Para 1)

…e applications for an extension of time. Her Honour noted that there were authorities against that proposition, but referred to Nicholson v Nicholson (1974) 2 NSWLR 59 and Scott v Casual Life Furniture International Ltd [2005] VSC 463; 56 ACSR 218 which supported the power to make such an order. Her Honour did not r…
Cavetina Pty Ltd v Synthetic Dyeworks Industries Pty Ltd [1994] QCA 302
Citation 43

…the period of twenty-one days specified in s 459G would deprive the word 'only' of effect ( Cavetina Pty Ltd v Synthetic Dyeworks Industries Pty Ltd (1994) 14 ACSR 274 at 281; Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541 at 549)."…
Scott v Casualife Furniture International Ltd [2005] VSC 463
Citation 44 (Para 1)

…ere authorities against that proposition, but referred to Nicholson v Nicholson (1974) 2 NSWLR 59 and Scott v Casual Life Furniture International Ltd [2005] VSC 463; 56 ACSR 218 which supported the power to make such an order. Her Honour did not refer to the authorities which were against the proposition.…

AI Chat coming soon

Medium Neutral Citation:	JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher [2014] NSWCA 31
Hearing dates:	30 September 2013
Decision date:	28 February 2014
Before:	Beazley P at [1]; Macfarlan JA at [149]; Gleeson JA at [166]
Decision:	1. Grant leave to appeal; 2. Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CORPORATIONS - insolvency - voidable transactions - Corporations Act 2001, s 588FF - whether only one application may be made under s 588FF(3)(b) for an extension of time - whether UCPR, r 36.16(2)(b) is picked up by the Judiciary Act 1903, s 79 - whether UCPR, r 36.16(2)(b) permits an order made extending time to be varied so as to permit a extension of time. PROCEDURE - Uniform Civil Procedure Rules, r 36.16(2)(b) - whether the Court has the power to vary an order that has been made in the absence of a person affected by the order, when the absent party is not a party on the record.
Legislation Cited:	Civil Procedure Act 2005 Corporations Act 2001 (Cth) Judiciary Act 1903 Uniform Civil Procedure Rules 2005
Cases Cited:	ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169 Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 Air Link Pty Ltd v Paterson [2005] HCA 39; 223 CLR 283 Ansell Ltd v Davies [2008] SASC 2003; 67 ACSR 356 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1 APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 Bailey v Marinoff [1971] HCA 49; 125 CLR 529 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 BP Australia Ltd v Brown [2003] NSWCA 216; 58 NSWLR 322 Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6; 166 FLR 393 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; 269 ALR 76 David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 De Vos v Daly [1947] HCA 12; 73 CLR 509 Douglass v Gillman (1990) 19 NSWLR 570 Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No 2) (1984) 9 ACLR 117 Gordon v Tolcher [2006] HCA 62; 231 CLR 334 Green v Chiswell Furniture Pty Ltd (In Liq) [1999] NSWSC 608 Greig v Australian Building Industries Pty Ltd (In Liq) [2002] QSC 298; 171 FLR 41 Greig v Stramit Corporation Pty Ltd [2003] QCA 298; 2 Qd R 17 In the Matter of Bauhaus Pyrmont Pty Ltd (In Liq) [2006] NSWSC 879; 67 NSWLR 289 Jacques v Harrison (1883) 12 QBD 136 Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 at 190 Law Society of New South Wales v Jackson [1981] 1 NSWLR 730 Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082 Macleod v Australian Securities and Investments Commission [2002] HCA 37; 211 CLR 287 Mansfield v DPP [2006] HCA 38; 226 CLR 486 Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411 Nicholson v Nicholson [1974] 2 NSWLR 59 Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 Park & McIntosh v Lanray Industries Pty Ltd [2010] QCA 257; 80 ACSR 186 R v Aubrey [2012] NSWCCA 254 R v Gee [2003] HCA 12; 212 CLR 230 R v Murray; ex parte Commonwealth [1916] HCA 58; 22 CLR 437 R v Wallis; ex parte Employers Association of Wool-Selling Brokers and H V Mackay Massey Harris Pty Ltd [1949] HCA 30; 78 CLR 529 Re Alcan Australia Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96 Re Aura Commercial Interiors Pty Ltd [2002] NSWSC 380; 20 ACLC 904 Star v National Australia Bank Ltd (1999) 30 ASCR 583 Sutherland v Dexion Pty Ltd [2003] NSWSC 24; 173 FLR 123 Tagoori Pty Ltd (In Liq) v Lee [2001] 2 Qd R 98 Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; 175 CLR 514 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd [2010] NSWSC 1056; 80 ACSR 1
Texts Cited:	Peter Taylor and P W Young, Ritchie's Supreme Court Procedure (NSW) (1984- 2005) Butterworths
Category:	Principal judgment
Parties:	JPMorgan Chase Bank, National Association (First Applicant CA 2013/64153) J P Morgan Securities Australia Limited (Second Applicant CA 2013/64153) Grant Samuel Corporate Finance Pty Limited (Applicant CA 2013/71401) William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) and Octaviar Administration Pty Ltd (In Liquidation) (First Respondent) Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) (Second Respondent) Octaviar Administration Pty Ltd (In Liquidation) (Third Respondent)
Representation:	Counsel: C R C Newlinds SC; S Nixon (JP Morgan) A J L Bannon SC; G K J Rich (Grant Samuel Corporate Finance) B A Coles QC; P J Dowdy; A K Flecknoe-Brown (Respondents) Solicitors: Corrs Chambers Westgarth Lawyers (JPMorgan Chase Bank, National Association and J P Morgan Securities Australia Limited) Watson Mangioni Lawyers (Grant Samuel Corporate Finance) Henry Davis York (Respondents)
File Number(s):	CA 2013/64153; 2013/71401
Decision under appeal	Jurisdiction: 9111 Citation: In the matter of Octaviar Limited (receivers and managers appointed) (in liquidation) and Octaviar Administration Pty Limited (in liquidation) [2013] NSWSC 62 Date of Decision: 2013-02-08 00:00:00 Before: Black J File Number(s): 2011/153330