Appellant v Respondent

Hartley Poynton Ltd v. Ali [2005] VSCA 53; (2005) 11 VR 568

1 This is an appeal from an order of Master Efthim made 20 June 2006, whereby he dismissed an application by Aussie Vic Plant Hire Pty Ltd ("Aussie Vic Plant Hire") to set aside a statutory demand served on it by Esanda Finance Corporation Ltd ("Esanda Finance"). Master Efthim extended the time for compliance with the statutory demand until 4 July 2006. Since then, no further extension of time for compliance has been obtained. No such extension was sought until an interlocutory process was filed on 26 July 2006 to which I will refer.

2 The matter originally came on for hearing on 21 July 2006. Mr Frenkel, who appeared as counsel for Esanda Finance, indicated that he wished to contend, amongst other things, that this Court was bound by the Court of Appeal decision in Buckland Products Pty Ltd v. Deputy Commissioner of Taxation[1] to hold that the appeal was incompetent because the time for compliance with the statutory demand had already expired and there was no further content to the appeal in those circumstances.

3 Mr Selimi, who appeared as counsel for Aussie Vic Plant Hire, sought an adjournment of a week in order to consider this matter. During that week an interlocutory process was filed on behalf of Aussie Vic Plant Hire seeking an extension of time for compliance with the statutory demand nunc pro tunc; that is, now for then. The extension sought is until 14 days after the hearing and determination of the appeal. The interlocutory process states that the application is made under s.459F(2)(a), which is the provision specifically addressing extensions of time for compliance, and s.1322(4)(d), which is the general extension provision in the Corporations Act 2001.

4 Before embarking upon a hearing on the merits of the appeal, I heard argument upon the contention that by virtue of the Buckland Products decision, I was bound to hold that the appeal was incompetent. Mr Frenkel on behalf of Esanda Finance submitted that this case was on all fours with Buckland Products and that in the circumstances I had no choice but to hold that the appeal was incompetent and to dismiss the appeal.

5 Mr Selimi, in a very detailed submission with reference to a number of authorities in related areas, submitted that the Court of Appeal decision in Buckland Products does not mean that an order cannot be made extending time nunc pro tunc. He submitted that no such order had been sought in Buckland Products itself, and that that was the critical point of distinction between Buckland Products and the position before me. He referred to a number of decisions in related areas, including the decision in David Grant & Co Pty Ltd v. Westpac Banking Corp[2], in Australasian Memory Pty Ltd v. Brien[3], and the very recent High Court decision in Mansfield v. Director of Public Prosecutions for Western Australia[4], in support of a submission that the powers of extension upon which he relied should be construed liberally and that there was no reason for adopting the approach that an extension nunc pro tunc could not be granted.

6 The critical aspect of the decision in Buckland Products appears in the passage at paragraph 9 of the judgment of Phillips JA, with which Chernov and Eames JJA agreed. After setting out the relevant facts, his Honour said:

"If the company was wishing to appeal it could do so, but unless the appeal was heard and determined before the expiry of the period for compliance otherwise fixed, an extension of the time for compliance had to be obtained. Without it, there could be no point in the continued prosecution of the appeal, for, the period of compliance having ended before the appeal was heard and determined, the consequence prescribed by s.459F(1) attached, with all that followed under the statute. There can be no occasion, in my opinion, for adopting a construction of s.459F(2)(a)(ii) that would require that the consequence prescribed by sub-s.(1), having once attached, should then be undone because of the exercise of some right of appeal. Once that consequence attached, it remained attached (as indeed Gummow, J was disposed to suggest in David Grant, albeit in a slightly different context)."

7 Section 459F(1) provides:

"If, as at the end of the period for compliance with a statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand at the end of that period."

8 Thus, when Phillips JA refers to the consequence prescribed by s.459F(1) attaching, he is referring to the fact that a failure to comply with the demand is taken to have occurred.

9 I think I am bound by the decision in Buckland Products[5] to find that this appeal must fail. The point is not whether an extension of time can or should be granted, the point is that the consequence provided for by s.459F(1) has already attached (to use the words of Phillips JA) and no order which I make can or should purport to undo that.

10 Even if an extension of time nunc pro tunc could be granted consistently with the legislation, it seems to me that the court should not take that course. Orders made nunc pro tunc are appropriate where they are needed to overcome procedural irregularities and difficulties. They are not appropriate where their consequence is to alter the substantive rights of parties. In this respect, I refer to Hartley Poynton Ltd v. Ali[6]. It seems to me that such orders are not appropriate in an attempt to render undone something which has already been done. If I were to attempt to do so, it seems to me I would be acting directly contrary to the approach which was taken by the Court of Appeal in Buckland Products.

11 Accordingly, in all the circumstances I think the preliminary point is a good one, and I am bound to dismiss the appeal and the interlocutory process.

[1] [2003] VSCA 85 ("Buckland Products").

[2] [1995] HCA 43; (1995) 184 CLR 265.

[3] (2000) 200 CLR 270.

[4] [2006] HCA 38.

[5] [2003] VSCA 85.

[6] [2005] VSCA 53; (2005) 11 VR 568 at 606.