Soil and Contracting Pty Ltd v Boban Pty Ltd - [2014] WASC 402

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SOIL AND CONTRACTING PTY LTD -v- BOBAN PTY LTD [2014] WASC 402

CORAM: ACTING MASTER GETHING

HEARD: 27 OCTOBER 2014

DELIVERED : 30 OCTOBER 2014

FILE NO/S: COR 23 of 2014

BETWEEN: SOIL AND CONTRACTING PTY LTD
Plaintiff
AND
BOBAN PTY LTD
Defendant

FILE NO/S :COR 58 of 2014

BETWEEN :IAN RUSSELL LOCK as Joint and Several Administrator of PINEVIEW INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED)
Plaintiffs
AND
JOHN SHEAHAN as Joint and Several Administrator of PINEVIEW INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED)
Defendant

FILE NO/S :COR 59 of 2014

BETWEEN :IAN RUSSELL LOCK as Joint and Several Administrator of BOBAN PTY LTD (ADMINISTRATORS APPOINTED)
Plaintiff
AND
JOHN SHEAHAN as Joint and Several Administrator of BOBAN PTY LTD (ADMINISTRATORS APPOINTED)
Defendant

FILE NO/S :COR 60 of 2014

BETWEEN :ALLEN BRUCE CARATTI
Plaintiff
AND
BOBAN PTY LTD (ADMINISTRATORS APPOINTED)
First Defendant
PINEVIEW INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED)
Second Defendant
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Third Defendant
JAMIE KEVIN POLLOCK
Fourth Defendant
JOHN SHEAHAN AND IAN RUSSELL LOCK as Joint and Several Administrators of BOBAN PTY LTD
Fifth Defendant
JOHN SHEAHAN AND IAN RUSSELL LOCK as Joint and Several Administrators of PINEVIEW INVESTMENTS PTY LTD
Sixth Defendant

Catchwords:

Corporations Act - Winding up - Extension of time within which the application to be determined (Corporations Act s 459R) - Slip rule

Practice and procedure - Slip rule - Extension of time within which application to be determined

Legislation:

Corporations Act 2001 (Cth), s 459R
Rules of the Supreme Court 1971 (WA), O 21 r 10

Result:

Orders of 5 August 2014 amended to extend the time within which the application is to be determined until 30 October 2014

Category: A

Representation:

COR 23 of 2014

Counsel:

Plaintiff: Mr N Dillon
Defendant: Mr S Vandongen SC & Mr J Scovell

Solicitors:

Plaintiff: Roe Legal Services
Defendant: Mills Oakley Lawyers (Vic)

COR 58 of 2014

Counsel:

Plaintiffs: Mr R Lilly
Defendant: Not applicable

Solicitors:

Plaintiffs: Johnson Winter & Slattery
Defendant: Not applicable

COR 59 of 2014

Counsel:

Plaintiff: Mr R Lilly
Defendant: Not applicable

Solicitors:

Plaintiff: Johnson Winter & Slattery
Defendant: Not applicable

COR 60 of 2014

Counsel:

Plaintiff:     Mr N Dillon
First Defendant             :     Mr R Lilly
Second Defendant         :     Mr R Lilly
Third Defendant           :     Mr S Vandongen SC & Mr J Scovell
Fourth Defendant          :     Mr S Vandongen SC & Mr J Scovell
Fifth Defendant            :     Mr R Lilly
Sixth Defendant            :     Mr R Lilly

Solicitors:

Plaintiff:     Roe Legal Services
First Defendant             :     Johnson Winter & Slattery
Second Defendant         :     Johnson Winter & Slattery
Third Defendant           :     Mills Oakley Lawyers
Fourth Defendant          :     Mills Oakley Lawyers
Fifth Defendant            :     Johnson Winter & Slattery
Sixth Defendant            :     Johnson Winter & Slattery

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

Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd (2008) 26 ACLC 381
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 2] [2008] WASC 10 (S)
ASIC v Lanepoint Enterprises Pty Ltd (recs and mgrs apptd) [2011] HCA 18; (2011) 277 ALR 243
ASIC v Maxwell (2005) 52 ACSR 147
Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 232 CLR 314
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Brew v Whitlock (No 3) [1968] VR 504
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265
Edwards v Waterproofing Manufacturers (Chendu) Pty Ltd [2000] NSWSC 1227
Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Expile Pty Ltd v Jabb's Excavations Pty Ltd (2002) 194 ALR 138
Farrah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Flint v Richard Busuttil & Co Pty Ltd (2013) 305 ALR 522
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 271
Griffths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust Trading as Property People [2012] WASC 271 (S2)
Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Symes v Commonwealth (1987) 89 FLR 356
Timms v Dellaplus Pty Ltd (2008) 99 SASR 578
Westpac Banking Corporation v E & W Jury Pty Ltd (1998) 16 ACLC 547

ACTING MASTER GETHING: By application filed 12 February 2014, Soil and Contracting Pty Ltd ('SAC') sought to wind up Boban Pty Ltd ('Boban') in insolvency, in particular, due to Boban's failure to comply with a statutory demand (COR 23 of 2014). The amount claimed was $467,839.47, and is said to be for earthworks performed by SAC for Boban in 2003 and 2004. On 5 August 2014 the winding up application was listed for trial for four days commencing 27 October 2014. At the 5 August 2014 hearing, no application was made to extend the six‑month time limit within which the winding up application must be determined, set out in Corporations Act 2001 (Cth) ('CA') s 459R. Accordingly, the winding up application must be taken to have been dismissed on 12 August 2014: CA s 459R(3). For other reasons, the trial set to commence on 27 October 2014 was adjourned.
By application dated 24 October 2014, SAC sought an order pursuant to the slip rule to correct the orders made on 5 August 2014 to include an order extending the time within which the winding up application must be determined until 30 October 2014, the last day of the trial listed in those orders. I heard the extension application on 27 October 2014. It was opposed by Mr Allen Caratti. At the conclusion of argument I made the orders sought and stated that I would publish my reasons for so doing, which are set out below.
The dispute between SAC and Boban is part of a wider dispute between Mr Jamie Pollock and Mr Caratti. According to Australian Securities and Investments Commission ('ASIC') records, Mr J Pollock is the sole director of Boban. Mr Caratti and Mr Pollock's father, Kevin Pollock, were involved in a joint venture to develop land for sale in Gwelup between 2003 and 2004. The joint venture was carried out using two companies, Boban and Pineview Pty Ltd. According to ASIC records, Mr J Pollock is also the sole director of Pineview. The core issue in dispute is whether Mr Caratti or Mr J Pollock is entitled to control Boban and Pineview.
On 19 March 2014 Mr J Pollock, purporting to act as the sole director of both Boban and Pineview, signed an instrument for each company pursuant to CA 436A appointing John Sheahan and Ian Lock ('Administrators') as administrators of each company. Mr Caratti asserts that he, and not Mr J Pollock, is the validly appointed director of both Boban and Pineview. As a consequence, Mr Caratti asserts that the appointment of the Administrators was invalid.
The Administrators have commenced two applications, each filed 25 March 2014. In COR 58 of 2014 they seek an order pursuant to CA s 447C(2) declaring their appointment as joint and several administrators of Pineview to be valid. In COR 59 of 2014 they seek an order declaring their appointment as joint and several administrators of Boban to be valid.
The fourth related application was commenced by Mr Caratti on 26 March 2014 (COR 60 of 2014). He brings the application in his capacity as:
(a)a director of Boban;
(b)a shareholder of Boban;
(c)a director of Pineview; and
(d)through his shareholding in Boban, as a person who has an interest in the shares of Pineview.
The orders he seeks fall into two categories. The first suite of orders are orders declaring that the administration of Boban and Pineview end. The second suite is to rectify the ASIC registers maintained in respect of Boban and Pineview. The specific orders sought will require the court to consider the officers, registered office and principal place of business of both companies since 2002.
On 5 August 2014, COR 23 of 2014 was listed for trial for four days commencing 27 October 2014, along with COR 58 of 2014, COR 59 of 2014 and COR 60 of 2014 ('Proceedings'). On that occasion, Master Sanderson further ordered that evidence in each of the four applications be treated as evidence in each other of the Proceedings. To the extent that they are not specifically a party, both Mr Caratti and Mr J Pollock have leave to adduce evidence and make submissions in all four applications.

What issues arise for determination?

SAC seeks an order pursuant to the slip rule to correct the orders made on 5 August 2014 to include an order pursuant to CA s 459R(2) extending the time within which the winding up application must be determined until 30 October 2014.
The slip rule was recently described in the following terms by Allanson J in Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust Trading as Property People [2012] WASC 271 (S2) [10] ‑ [12]:
The orders have been formally recorded. The general rule is that a superior court of record, in the absence of a statutory provision, and subject to certain narrow exceptions, may not reopen an extracted order. The slip rule in O 21 r 10 of the Rules of the Supreme Court 1971 (WA) is one of the exceptions. The rule reflects the inherent jurisdiction of a court 'at any time to correct an error in a decree or order arising from a slip or accidental omission', regardless of whether the order has been drawn up, passed and entered: see Milson v Carter [1893] AC 638, 640.
Rules of the Supreme Court 1971 (WA) ('RSC') O 21 r 10 provides:
Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.
The power to extend the time within which an application for winding up a company in insolvency is to be determined is expressed in CA s 459R in narrow terms:
(1)An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.
(2)The Court may by order extend the period within which an application must be determined, but only if:
(a)the Court is satisfied that special circumstances justify the extension; and
(b)the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.
(3)An application is, because of this subsection, dismissed if it is not determined as required by this section.
(4)An order under subsection (2) may be made subject to conditions.
CA s 459R is one of a number of sections in the CA which reflect the 'evident policy of Pt 5.4 ... that there be a speedy resolution of applications to wind up in insolvency': ASIC v Lanepoint Enterprises Pty Ltd (recs and mgrs apptd) [2011] HCA 18; (2011) 277 ALR 243 [27], [33] (Gummow, Heydon, Crennan, Kiefel & Bell JJ); Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 232 CLR 314 [17] ‑ [18] (Gleeson, Hayne, Crennan & Keifel JJ). Another is CA s 459G which sets an 'absolute limitation' on the time within which a company served with a statutory demand may apply for an order setting it aside: Aussie Vic [17]. This section uses similar language to CA s 459R: 'An application many only be made within 21 days after the demand is so served' (emphasis added). In David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 278, Gummow J (with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed), held that the requirement that an application be made only within 21 days after service of the statutory demand should be treated as supplemented or qualified by the operation of CA s 1322(4). Specifically, CA s1 322(4)(d) could not be used to extend the time within which the application could be brought. By parity of reasoning, the power in CA s 1322(4)(d) would not be available to extend the time set out in CA s 459R within which the application must be determined: Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 389 (Lockhart J). Further, it must be accepted that the policy of speedy resolution in CA pt 5.4 may appear to operate harshly in certain cases: David Grant (279).
In this context, two issues arise for determination:
•Can the slip rule be used to extend the time within which an application may be determined pursuant to s 459R(2)?
•If the slip rule can be used, should it be used to extend the time in the present case?

Can the slip rule be used to extend the time within which an application may be determined pursuant to s 459R(2)?

In order to consider the interrelationship between the slip rule and CA s459R, it is first necessary to consider the scope and application of the slip rule generally. The principles governing the application of the slip rule are well established:
(a)there must be an order in need of correction: Flint v Richard Busuttil & Co Pty Ltd (2013) 305 ALR 522 [35] (Allsop CJ, Katzmann & Perry JJ);
(b)the purpose of the slip rule is to avoid injustice to litigants: Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 271, 274 ‑ 275 (Gibbs CJ, Wilson, Brennan & Dawson JJ); Orchard [11]; Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd[No 2] [2008] WASC 10 (S) [7] (Martin CJ);
(c)as a provision intended to have the beneficial effect of avoiding injustice, its potential application should not be constrained by a narrow or restrictive approach to the circumstances in which it might be applied: Orchard [11]; Areva [7];
(d)an order under slip rule 'is not available as a matter of course': L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590, 597 (Mason ACJ, Wilson & Deane JJ);
(e)the 'jurisdiction is to be exercised sparingly, lest it encourage carelessness by a party's legal representatives and expose to risk the public interest in the finality of litigation': Gould (275); Shaddock (597); Orchard [11].
(f)the rule is not confined to giving effect to the judge's intention at the time when the judgment or order was made, but extends to the intention which the court would have had but for the failure by reason of which there was an accidental slip or omission: Flint [26]; Symes v Commonwealth (1987) 89 FLR 356, 357 (Gallop J);
(g)an order carrying into effect the actual intention of the judge making the order, and making sure that the order did not have an unintended consequence, falls within the ordinary and natural meaning of the word 'correction', particularly as understood in the light of the overriding purpose of the rule: Flint [26]; Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411 [116] (Spigelman CJ, with whom Santow J and Handley AJA);
(h)there must be a causal connection between the accidental slip or omission and the error: Griffths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 [33] (Spender ACJ, Dowsett & Collier JJ); Areva [11];
(i)an application properly characterised as an 'afterthought', in distinction to an 'accidental slip or omission', falls outside the scope of the slip rule: Gould (274 ‑ 275); Areva [9] ‑ [11];
(j)the rule applies where the mistake or error is the result of inadvertence by a party's legal representative: Shaddock (594 ‑ 595); Symes (357);
(k)it does not apply to mistakes that are the product of a deliberate decision: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, 449 (McHugh JA);
(l)the correction should be such that, had the matter been drawn to the court's attention at the time, the correction would have been made at once: Storey & Keers (453) (McHugh JA, with whom Priestley JA and Clarke JA agreed on this point) ; Orchard [12];
(m)it applies where the proposed correction is one upon which no real differences of opinion can exist: Elyard (390 ‑ 391);
(n)it does not apply where the proposed correction is a matter of controversy: Elyard (391);
(o)it does not apply where the proposed correction would alter the substance of an order in a matter on which there might be a real difference of opinion: Orchard [12];
(p)a relevant consideration is whether there has been undue, unreasonable or unexplained delay in bringing the application: Gould (276); Shaddock (597); Areva [16];
(q)the types of orders that may be made pursuant to the slip rule include those requiring the exercise of a discretion, for example, the failure to seek an award of interest (Shaddock), the power to vary the statutory rate of interest on a judgment sum (Gould) and order varying a costs order so as to remove or change cost scale limits (Areva; Symes); and
(r)when an order is made under the slip rule the correction speaks as from the date of the original judgment or order: Elyard (391) (Lockhart J), (401) (Lindgren J), (Black CJ agreed with both Lockhart and Lindgren JJ).
The issue of the whether the slip rule could be used to extend the time within which an application must be determined pursuant to the Corporations Law ('CL') s 459R(2) was considered by the Full Court of the Federal Court in Elyard. In that case, the winding up application was commenced on 18 November 1994. On 21 April 1995, and again on 26 May 1995, a registrar made an order pursuant to CL s 459R(2) extending the time within which the application had to be determined, on the last occasion extending it until 9 June 1995. There was a hearing before a registrar on 9 June 1995. A further extension application was prepared, but through oversight, an order pursuant to CL s 459R was not in the orders sought, and ultimately made, on 9 June 1995. On that occasion, orders were made programming the application through to a hearing before Sheppard J on 16 June 1995. As this point in his recitation of the chronology, Lindgren J observed:
In consenting to these orders, Elyard as well as Needham necessarily contemplated that Needham's application for the winding up of Elyard would remain on foot and be capable of being determined after 9 June and at least down to 16 June 1995. Likewise, the registrar, in making the orders. Otherwise the consenting to and making of the orders were futile and nonsensical (396).
The omission came to light on 9 June 1995. Needham's solicitors sought orders pursuant to CL s 459R at the hearing on 16 June 1995. The extension application was heard by Sheppard J that day. His Honour delivered reasons for decision on 20 July 1995 and made orders on 9 August 1995. His Honour applied the slip rule to correct the orders made by the registrar on 9 June 1995 by adding an order that the time within which the application for winding up may be determined be extended to 30 November 1995. The Full Court dismissed the appeal. Both Lockhart J (389) and Lindgren J (406) distinguished the decision in David Grant, limiting it to its facts.
Two key principles emerge from the decision in Elyard:
(a)the language of CL s 459R(2), and thus CA s 459R(2) which is in identical terms, does not exclude the operation of the slip rule in its entirety; and
(b)the discretion in CL s 459R(2) (and again, CA s 459R(2)) may be exercised through the slip rule.

These principles are of application to the present case as the slip rule in Federal Court Rules 1979 (Cth), O 35 r 7(3) considered by the Full Court is in substantially identical terms to RSC O 21 r 10.
In relation to the first principle, Lockhart J did not consider that the evident purpose of the CL to require winding up applications to be dealt with promptly was undermined by allowing the slip rule to operate:
It may be trite, but it is worth repeating that the slip rule exists to avoid injustice: see Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524 per Malcolm CJ. The purpose of the rule would be denied if s 459R operated to achieve the result for which the appellant contends. It is irrelevant that the later order of Sheppard J, which corrected the earlier order, was made after the expiration of the statutory time limit. The earlier order as corrected, and speaking by operation of the later order from the earlier date, operated with full force from a time which was within the statutory time frame.
…
Provisions such as s 459R(2)(b) and (3) and s 459G of the Corporations Law, and s 52(3) and (5) of the Bankruptcy Act, reflect the intention of the Parliament that applications to wind up companies and petitions to sequestrate the estates of natural persons must be dealt with promptly. This evident purpose of the Parliament is not denied at all by the exercise by the court of its power under the slip rule to correct accidental slips when justice requires that this be done. The Court has a discretion which it would be loath to exercise except in clear cases. Prejudice to parties to the litigation, or to third parties, arising from uncertainty caused by delay in seeking to have the mistake corrected is one obvious matter which must be taken into account by the Court in the exercise of its discretion. But this says nothing about the power of the Court to make an order under the slip rule.
An exercise of the power of the court under the slip rule is ultimately to avoid injustice (392).
Lindgren J expressed a similar view:
It is a strong thing to hold that the rule is not available. Cases even more demanding of an order under the rule than the present one can be imagined. In submissions, Needham instanced the following. Assume that within the statutory period parties join in requesting a registrar to make an extension order under s 459R(2) by including provision for it in short minutes of orders signed by their legal representatives; that the registrar is asked by those appearing to delete from the short minutes an order providing for the filing of affidavits; that the registrar inadvertently deletes the order for extension of time instead and says 'I make orders in accordance with short minutes of orders as amended and signed by me and placed with the papers'; and that the error is discovered only after the statutory period expires. Take another case: assume that the registrar, intending to make an order by consent for extension to a particular date beyond the statutory period accidentally records a date still within that period and that the period expires without determination of the application … Elyard's submission must be that even in such cases, the inexorable effect of s 459R(2) and (3) is that upon expiry of the statutory period the application stands dismissed. I would attribute such an effect to those subsections only if it was clear that they and the slip rule cannot co‑exist.
…
The word 'only' in s 459R(2) and the provision for automatic dismissal in s 459R(3) are undoubtedly strong provisions. But I do not think that they or the policy which gave rise to them are set at nought in a situation in which the parties are before the Court on the last day of the statutory period; special circumstances exist justifying an extension; the parties and the Court intend that the application remain alive for a further seven days; orders are made by consent based upon and intended to give effect to that intention; even with the seven‑day extension, the statutory period will expire within one month of the expiry of the basic six‑month period; and the slip rule has to be invoked outside the current statutory period because full effect was not given to the Court's and the parties' intention by reason of the absence of an ancillary order under s 459R(2).
I conclude that the Court's slip rule found in O 35, r 7(3) is not rendered unavailable by s 459R of the Law (401 ‑ 402), (405).
In relation to the second principle, Lindgren J viewed the case as 'a strong one' for the exercise of the slip rule, commenting:
On 9 June 1995, both parties and the registrar intended that the application should remain alive down to at least 16 June; the consenting to and making of the orders on 9 June were otherwise exercises in futility. An affidavit was sworn on behalf of Needham solely to support the obtaining of an extension of time and through oversight an order to that effect was not included in the notice of motion or short minutes of orders which Needham's solicitors prepared; [Elyard's solicitors were] aware of Allens [Needham's solicitors'] oversight by, at the latest, the afternoon of 9 June when it remained possible for them to alert Allens and for Allens to approach the Court (outside normal Court hours if necessary) to obtain the order for extension.
I am not persuaded by Elyard's submission that as a matter of discretion an extension would not have been ordered on 9 June because, in terms of s 459R(2), the Court would not have been satisfied that 'special circumstances' justified the extension. Apparently, Elyard would have consented to the extension; the period of the extension was only seven days … and the procedural steps referred to in pars 4 ‑ 8 of the orders made on that date had to be taken in readiness for the hearing of the application. … The case was a particularly strong one for the making of an order under r 7(3) (400).
After analysing the operation of the slip rule, his Honour stated:
What this analysis emphasizes in the context of the facts of the present case is first, that there must have been an order made within the statutory period, and secondly, that an order under the slip rule in relation to such an order is appropriately seen not as varying it or setting it aside, but as merely correcting it by including an ancillary order which the Court and the parties intended to be included (404 ‑ 405).
His Honour also drew a distinction between the availability of the slip rule and its exercise:
It is of the greatest importance to distinguish between the availability of the slip rule and the exercise of discretion whether to make any order or a particular order under it. The terms and policy of s 459R as well as the special and limited scope of the slip rule must be borne in mind in any case where the Court is asked outside the statutory period to exercise its discretion to remedy the omission of an order within that period under s 459R(2). It is not possible to identify all the factors which may be relevant to the exercise of the discretion. Consistently with the policy underlying s 459R referred to earlier one factor will be the length of the period beyond expiry of the period of six months that the application for winding up will remain alive (405 ‑ 406).
Lockhart J generally agreed with Lindgren J on this issue, commenting that this 'is an obvious case for the exercise of the discretion in favour of applying the slip rule' (393). His Honour stated that the slip rule applies 'where the proposed amendment is one upon which no real difference of opinion can exist' (390 ‑ 391). His Honour also made it clear that the slip rule may operate where there has been inadvertence by a solicitor:
It was also argued by counsel for the appellant that this is not a case of inadvertent oversight by the solicitor for the respondent, because the evidence establishes that the solicitor intended to apply to the registrar on 9 June 1995 for an order for an extension of the relevant period under s 459R, but forgot to do so. There is no substance in this submission. The fact is that when the occasion arose on 9 June before the registrar for the seeking of an order for extension, through inadvertence on the part of the solicitor for the respondent, it was not made; and that properly invokes the slip rule (393).
Counsel for Mr Caratti invited me to depart from the decision in Elyard. In doing so, I would be following the approach taken by Hammerschlag J in Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd (2008) 26 ACLC 381. In that case, the application was commenced on 27 August 2007. The application came before Austin J on 26 November 2007 for the allocation of trial dates. The earliest available trial date was 28 February 2008, which was allocated. The application came on for hearing on 28 February 2008 before Hammerschlag J by which time the six‑month time period in CA s 459R has expired. His Honour commented:
I am satisfied that neither the plaintiff nor its legal advisors were conscious of the requirement for an extension until I raised it on 28 February 2008. They did not have s 459R(1) in mind at any time, including when Austin J fixed the matter for hearing on 28 February 2008. Neither party drew it to his Honour's attention when the matter was, on 27 November 2007, fixed for hearing. His Honour clearly never had it in mind either [8].
Amorin sought an order pursuant to the slip rule to amend the order made by Austin J on 27 November 2007 by including an order for extension under CA s 459R(2). The relevant rule of the Uniform Civil Procedure Rules 2005 (NSW) r 36.17 is in similar terms to RSC O 21 r 10. Hammerschlag J declined to make the order and dismissed the application.
Hammerschlag J agreed with the first of the principles from Elyard set out above, accepting that the slip rule could apply 'to permit an extension order to be made or an order to be corrected or supplemented to reflect the outcome of the exercise by the Court of its discretion where its orders do not reflect either its actions or intentions' and that to 'that extent, s 459R does not exclude operation of the slip rule' ([54]).
However, his Honour declined to follow the decision in Elyard on the second principle, being whether the discretion in CA s 459R(2) could be exercised through the slip rule. This was on the basis that the slip rule does not apply where the correction requires the exercise of an independent discretion:
It seems to me that it is equally important to distinguish between the exercise of a discretion to correct an error so as to reflect the intention of the Court – or the intention that the Court would have had but for the failure that caused the accidental slip or omission – on the one hand, with the exercise by the Court of an initial special statutory discretion which the earlier Court omitted to exercise on the other.
An outcome that permits the latter to occur under the guise of the slip rule would, in addition to the difficulties identified above, undermine the clear policy dictates of Pt 5.4 of the Act, which require winding up applications to be dealt with promptly [56] ‑ [57].
In doing so, His Honour followed the decision in Storey & Keers in which McHugh JA stated that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist: Storey & Keers (453). Hammerschlag J also quoted with approval comments to similar effect from the decision of the Full Court of the Supreme Court of Victoria in Brew v Whitlock (No 3) [1968] VR 504, 506 (Winneke CJ, Little & Gowans JJ).
The application of the decision in Elyard was also considered by the Full Court of the Federal Court in Griffths. That case concerned the application of the slip rule to the Bankruptcy Act 1966 (Cth) ('BA') s 52(4) and s 52(5). These subsections relevantly provided that a creditor's petition lapsed at the expiration of 12 months from its presentation, but the court could, at any time before the expiration of that period, order that the period be extended up to 24 months. In that case, the magistrate heard the creditor's petition within two months of its commencement and reserved the decision. It was not handed down until some 16 months later, well after the expiration of the initial 12‑month period. The Full Court allowed an appeal against the decision of the magistrate invoking the slip rule to extend the time. Specifically, Spender ACJ, Dowsett and Collier JJ held that the magistrate's reservation of judgment did not amount to a judgment or order for the purposes of the slip rule [63].
Their Honours did not wholeheartedly adopt the position in Elyard, but were not prepared to depart from it:
With all respect, we are a little uncomfortable with the view, inherent in Elyard, that the slip rule may be used to extend time notwithstanding the statutory requirement that such order be made within a period of time which has elapsed. However Elyard concerns the practice of the Court and has now stood for over ten years without legislative intervention. We are reluctant to reconsider it. Although it does not directly bind us in applying s 52 of the Bankruptcy Act, to take a different approach would cause substantial confusion in insolvency practice.
We wish to stress, however, the importance of the policy, evidenced in both the Corporations Act and the Bankruptcy Act, that insolvency proceedings be speedily resolved, presumably for commercial reasons and for reasons of fairness. Courts exercising jurisdiction in insolvency must recognize this policy by giving priority to the hearing and determination of such matters. The parties and their legal advisers, particularly those advising petitioning creditors, must be aware of the potential problem. The decision in Elyard should not be taken as establishing an unlimited power to avoid this statutory policy.
Order 35 rule 7(3) may be invoked only if there is, in a judgment or order:
•a clerical mistake; or
•an error, arising from an accidental slip or omission.
In the latter case, the rule contemplates a causal connection between the slip or omission and the error. If the rule is to be invoked in order to effect an extension of time beyond the time permitted by s 52 of the Bankruptcy Act or s 459R of the Corporations Act, then there must be a judgment or order to be corrected, and it must have been made within the prescribed time. The power is to correct, not to vary or set aside. There is no general power to relieve from the consequences of either section [30] ‑ [33].
The application of the decision in Elyard was considered more recently by the Full Court of the Federal Court in Flint. Again, this decision considered BA s 52. An order was made to extend the petition after the petition had lapsed using the slip rule. The 12‑month period lapsed in between when the application was heard and when the magistrate delivered his decision. The court (Allsop CJ, Katzmann & Perry JJ) held that the slip rule did not apply as there was 'no order in need of correction' ([35] ‑ [42]).
In relation to the decision in Elyard, the court went on to observe:
The above reasons make it unnecessary to reconsider Elyard in the light of the doubts expressed in Griffiths and the criticism of Hammerschlag J in Amorin.
We would, however, make the following observations. Notwithstanding the logical force of the proposition that there is no room for the operation of the slip rule where an independent discretion must be exercised and the support of the authorities of Storey & Keers and Whitlock v Brew, there are two difficulties with accepting the proposition.
First, in Shaddock the High Court invoked the slip rule to amend an order to include an award of pre‑judgment interest. Yet an award of interest is in the court's discretion. Reference was made to Shaddock in both Storey & Keers and Amorin, but not to this point. In Newmont Yandal Spigelman CJ thought that some of the reasoning in Whitlock v Brew could not stand with later authorities including Shaddock. We respectfully agree.
Second, if the surrounding circumstances are such (as they can be taken to have been in Elyard) that it can be concluded that proper attendance to the matter (had the error not occurred) could only have resulted in the discretion being exercised in one way, it is difficult to see why the rule should not apply in the same way that it would if the discretion had been exercised and there had been a mere failure to record it. As Lockhart J said in Elyard at 392, the purpose of the rule is to avoid injustice. The force of Storey & Keers and Whitlock v Brew can be accepted if there is any room for debate as to the exercise of the discretion. For instance, if there is any debate as to whether it would have been just and equitable to have made an order under s 52, in line with well‑established principle, the slip rule cannot apply [43] ‑ [46].
The decision in Elyard that the slip rule can be used to exercise the discretion in CA s 459R(2) has been followed in a number of cases, see for example: Westpac Banking Corporation v E & W Jury Pty Ltd (1998) 16 ACLC 547, 550 (Emmett J); Edwards v Waterproofing Manufacturers (Chendu) Pty Ltd [2000] NSWSC 1227 [12] (Hodgson CJ in Eq); Timms v Dellaplus Pty Ltd (2008) 99 SASR 578 [41] (Sulan J); ASIC v Maxwell (2005) 52 ACSR 147 [14] (Barrett J). The relevant issue is whether I should follow the decision.
'Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong': Farrah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ); Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).
The Full Court of the Federal Court in Griffiths declined an invitation to reconsider the decision in Elyard. The Full Court of the Federal Court in Flint did not seem to have the same doubts as were expressed in Griffiths. For my part, I am not satisfied that the decision in Elyard that the discretion in CA s 459R(2) may be exercised through the slip rule is plainly wrong. I should therefore follow it, and do so. There is a relevant order to correct, namely the order made by the master on 5 August 2014. The slip rule is available to correct this order, and, in appropriate circumstances, may be used to make an order pursuant to CA s 459R(2).

If it is available, how should the discretion be exercised in the present case?

A fuller chronology of the relevant facts is as follows:
(a)on 3 December 2013 SAC served a statutory demand on Boban;
(b)on 12 February 2014 SAC filed an originating process in (COR 23 of 2014) seeking to wind up Boban in insolvency;
(c)on 20 March 2014 I made orders in COR 23 of 2014 for the disclosure of documents, for any CA s 459S application for leave to be filed and for Boban to file any affidavits, and then adjourned the case to a directions hearing on 15 May 2014;
(d)on 25 March 2014 the Administrators filed two originating processes, being COR 58 of 2014 in respect of Pineview and COR 59 of 2014 in respect of Boban, to confirm the validity of their appointment;
(e)on 26 March 2014 Mr Caratti filed an originating process (COR 60 of 2014);
(f)on 27 March 2014, Master Sanderson made orders, among others, listing the Proceedings (that is, all four applications) for a directions hearing on 15 May 2014;
(g)on 31 March 2014 the parties filed consent orders in COR 58, 59 and 60, among others, restraining the Administrators from taking any steps in the administration of Boban and Pineview;
(h)on 10 April 2014, the parties filed minutes of consent orders in COR 58, 59 and 60 for procedural orders;
(i)on 10 April 2014 SAC and Boban filed minutes of consent orders in COR 23 of 2014, among others, seeking for the matter to be listed for a directions hearing on 15 May 2014;
(i)on 15 May 2014 Master Sanderson made orders, among others, listing the Proceedings for a directions hearing on 12 June 2014 and setting the matter down for trial on 28 and 29 July 2014 (that is, within the 6 month time period in CA s 459R);
(j)between 10 July 2014 and 22 July 2014 the parties corresponded regarding the timetable of the proceedings and vacating the trial date of 28 July 2014;
(k)on 22 July 2014 the parties filed consent orders to vacate the trial date and have the Proceedings listed for directions;
(l)on 5 August 2014 a directions hearing was held for the Proceedings at which Master Sanderson listed the Proceeding for trial on 27, 28, 29 and 30 October 2014 and made programming orders; and
(m)on 2 September 2014 Master Sanderson made orders in COR 58, 59 and 60 of 2014 adjusting the injunction on the Administrators.

In support of the application, SAC filed an affidavit of Michael Chapman sworn 23 October 2014. Mr Chapman is a solicitor employed by SAC's lawyers. Mr Chapman states that it was 'an accidental omission' that no order was sought extending the time within which the winding up application must be determined ([5]).
Mr Caratti did not file any affidavit specifically in opposition to the application. Nor did the Administrators.
Importantly, this is not a case like Elyard in which a previous extension order had been made or in which the solicitors for SAC had turned their mind to seeking the order, but had omitted to do so. It is an example of what I might call a bare omission: neither counsel nor the court turned their mind to the issue. In this context the following comments from the decision in Griffiths are apposite:
Even assuming that the magistrate made an order on that date, we consider that the conditions precedent to the invocation of the slip rule did not arise. The only possible 'error' would be the omission from the 'order' of an extension pursuant to s 52 of the Bankruptcy Act. In that case it would be necessary to identify the accidental slip or omission which caused the error. The primary responsibility for making an application for such order rested upon the present respondent. Whether there was a slip or omission is a question of fact. In some cases, such as in Elyard, there may be direct evidence of an intention to make a relevant application, steps taken to bring about that result and a failure to carry the intention into effect. In other cases it may be possible to infer that such a step should have been taken, and that the failure to do so can properly be seen as an accidental slip or omission. Where the petition is likely to expire very shortly after the hearing, and prior to the preparation of a reserved judgment, such an inference may be available [68].
The key factual issue is whether I can infer from all the circumstances that proper attendance to the matter (had the error not occurred) could only have resulted in the discretion being exercised in one way: Flint [46].
As Lindgren J observed in Elyard, both the 'terms and policy of s 459R as well as the special and limited scope of the slip rule must be borne in mind in any case where the court is asked outside the statutory period to exercise its discretion to remedy the omission of an order within that period under s 459R(2)': (405 ‑ 406). The discretion in CA s 459R(2) may only be exercised where 'the Court is satisfied that special circumstances justify the extension': CA s 459R(2)(a). An order under CA s459R(2) 'may only be made under the subsection if the court is satisfied that special circumstances exist and justify the extension' (original emphasis): Expile Pty Ltd v Jabb's Excavations Pty Ltd (2002) 194 ALR 138 [6] (Hamilton J). The 'essential meaning' of special 'is that it denotes a particular situation which can be regarded as distinguished from the ordinary or common runs of situations': Expile [5].
The most significant surrounding circumstance was that the winding up application was one of four related applications listed for trial together. As I have noted, the core issue in dispute is whether Mr Caratti or Mr J Pollock is entitled to control of Boban and Pineview. It is a complex case, with many lever arch volumes of affidavits and a projected trial length of four days. On these grounds, the present case can be readily distinguished from the ordinary or common run of applications to wind up a company in insolvency.
The trial was listed on 5 August 2014 to commence on the next available date for the court and counsel, being 27 October 2014. The special circumstances set out above also readily justify the extension. It would not have made any sense whatsoever to have excised the winding up application from the applications being listed for trial, or to have allowed it to be arbitrarily determined prior to trial by application of CA s 459R(3).
The overall length of the extension is a relevant consideration: Elyard (405). As at 5 August 2014, an extension until 30 October 2014 was the minimum amount of time required for the just determination of the Proceedings.
Counsel for Mr Caratti submitted that, unlike Elyard, this is not a case in which it can be inferred that, had an application pursuant to CA s 459R(2) been made on 5 August 2014, Mr Caratti would have consented to it. I agree. My limited involvement in the litigation leads me to observe that it may euphemistically be described as being 'hard fought'. However, this conclusion is by no means determinative. What is significant is that on 5 August 2014 both counsel for Mr Caratti and counsel for Mr J Pollock and SAC presented minutes of proposed orders to the court listing the Proceedings for trial on the first available dates, being four days commencing 27 October 2014.
Counsel also submitted that, unlike Elyard, no prior extension order had been made in the present case. That is, no judicial officer had previously exercised in the discretion in CA s 459R. Again, this is relevant, but by no means determinative.
Counsel for Mr Caratti further submitted that SAC had ample opportunity prior to, and at, the hearing on 5 August 2014 to make an application pursuant to CA s 459R. As I have noted, a relevant consideration is whether there has been undue, unreasonable or unexplained delay in bringing the application: Gould (276); Shaddock (597); Areva [16]. SAC is only entitled to an opportunity to bring the extension application sufficient to ensure the just resolution of the case: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98], [102] (Gummow, Hayne, Crennan, Kiefel & Bell JJ). I also note that the parties filed consent orders on 2 September 2014 to vary an injunction restraining the Administrators from proceeding with the administration of Boban and Pineview, which could have dealt with CA s 459R.
I am not told when the omission to seek an extension order came to light. The extension application was commenced on 24 October 2014. I was positioned to deal with the application on the first day of the trial and then proceed with either the full trial (if the extension was granted) or (if the extension was not granted) the trial of the remaining issues, in particular, the issue of who is entitled to control Boban and Pineview. As events transpired, there was an event outside the control of the parties which necessitated the trial being adjourned. I do not consider that there has been undue delay by SAC in bringing the application.
Counsel for Mr Caratti submitted that, had an application been made, he could have requested conditions on the grant of the extension pursuant to CA s 459R(4). An example was given that there be a springing order in relation to the filing of affidavits. I do not consider this to have been a likely outcome; if Mr Caratti had a genuine concern as to compliance with the orders programming the Proceedings through to trial, that concern would have been reflected in the minute of proposed orders sought. It was not.
Finally, counsel for Mr Caratti submitted that SAC now faces a 'problem of its own making'. If the trial had proceeded when first listed on 28 July 2014, it would have been determined within the six‑month time limit in CA s 459R. Counsel invited me to find from the correspondence attached to Mr Chapman's affidavit that it was delays by SAC which caused the first trial to be vacated. Whether or not it was the fault of SAC that the first trial was vacated, on 5 August 2014 both parties requested the court to list the Proceedings for trial on the first available date. This is the context in which the Master would have been called to exercise the discretion in CA s 459R on 5 August 2014, and the context in which I am asked to infer what would have occurred had the application been made.
In my view, the surrounding circumstances are such that proper attendance to the matter (had the omission not occurred) could only have resulted in the discretion being exercised in one way being the grant of the extension: Griffiths [46]. The proposed correction does not alter the substance of the order: Orchard [12]. Rather, the proposed correction carries into effect the intention of the master to list the Proceedings for trial for four days commencing 27 October 2014. The order eliminates the unintended consequence of the winding up application being dismissed by effluxion of time by reason of the allocated trial dates: Flint [26]; Newmont Yandal [116]. It 'supplies an element clearly implied by, but not explicitly stated in, the orders actually made': Maxwell [14]. I see no reason to doubt that had the matter been canvassed at the time of the 5 August 2014 hearing that the order now sought would have been made: Gould (276).
An order pursuant to CA s 459R(2) in the present case does not undermine the public interest in the finality of litigation: Gould (275). Rather, it enhances that public interest as it has the effect of ensuring that the entirety of the dispute between Messrs Caratti and J Pollock as set out in the Proceedings is able to be litigated in the one trial.
As I have observed, the purpose of the slip rule is to avoid injustice to litigants: Gould (274 ‑ 275); Orchard [11]; Areva [7]. There is another dimension to the interests of justice relevant to the exercise of the slip rule, being the public interest in the proper and efficient administration of justice: Aon [24], [30] (French CJ), [93], (Gummow, Hayne, Crennan, Kiefel & Bell JJ), [133]). In Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No5) (1997) 18 WAR 334, Franklyn, Owen and Parker JJ observed:
Access to justice is a critical factor in the functioning of a fair society. Court resources, both in terms of time and facilities are scarce and shrinking. This makes even more important for a court to ensure that public resources are applied in the best and most efficient means possible. The way in which parties to a dispute seek access to the public resources that the courts represent must be closely monitored … It is a question of balancing the private interests of the parties against the broader public interest considerations involved in the administration of justice (345).
The issue of impact on the public interest falls into sharp focus when the proposed exercise of a discretion would imperil trial dates: Aon [102] (contrast the decision in Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154 (Dawson, Gaudron & McHugh JJ) in which the trial was still six months away when the amendment application was made).
An important aspect of the slip rule is that is prevents the processes of the court being brought into disrepute, and public confidence in the administration is justice being undermined, by allowing orders and judgments to be corrected where there has been an accidental slip or omission. In the present case, if no correction is made, the orders on 5 August 2014 would program four related applications for trial commencing 27 October 2014, consuming four days of the court's scarce trial days, in circumstances in which one of those applications would be automatically dismissed on 12 August 2014. To use the words of Lindgren J in Elyard that would be 'futile and nonsensical' (396); see also Westpac Banking Corporation (551) (Emmett J). It would also be an outcome that, if left uncorrected, has the risk of bringing the court into disrepute. It is appropriate in all the circumstances of the present case that I correct the omission.
It is for these reasons that I made an order on 27 October 2014 amending the orders made by the court on 5 August 2014 to insert an order pursuant to CA s459R(2) that the time within which the winding up application had to be determined be extended to 30 October 2014.