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

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.