Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd

JUDGement (Ex tempore) 1HIS HONOUR: On 10 April 2014, in each of these proceedings, the Court ordered that, pursuant to (Cth) Corporations Act 2001, s 459F(2)(a)(ii), the time by which the plaintiff must comply with the statutory demand the subject of the proceedings be extended to 5 pm on 11 April 2014, or if by that time an application for leave to appeal had been filed, then until seven days after the determination of that application or further order of this Court or of the Court of Appeal [[2014] NSWSC 422]. That order was made in circumstances where an application by the plaintiff under Corporations Act, s 459G, to set aside the relevant statutory demand had been dismissed and in aid of a proposed application for leave to appeal. The time of 5 pm on 11 April 2014 was fixed by the Court in light of the information provided to the Court on behalf of the plaintiff as to when the application for leave to appeal could be filed. 2That was followed by an unhappy sequence of procedural disasters. The plaintiffs delivered to their solicitor's city agents a cheque for the filing fees at approximately midday on 11 April. The clerk given responsibility for filing the two summons for leave to appeal attended at the registry between noon and 12.30 pm and was informed by the counter clerk that it was necessary to file and serve a white folder with each summons. The counter clerk declined to receive the two summons, and returned them to the city agent's registration clerk. 3Although the plaintiff has submitted that this was irregular and that summons ought to have been accepted for filing, it seems to me that the proper construction of (NSW) Uniform Civil Procedure Rules r 51.12, which provides that a person seeking leave to appeal must file in triplicate a white folder and serve that folder with the summons, means that the white folder must be filed with the summons. Insofar as it is suggested that UCPR r 4.10(5) limits the circumstances in which an officer of the Court may refuse to accept a document for filing, I do not agree that is so. That construction of the rule would mean that an officer of the Court was bound to accept for filing any document, however non-compliant with the rules, unless the filing fee was not paid or the nominated venue was not one at which the Court sat. It seems to me that an officer of the Court can also refuse to accept a document that does not comply with the rules of Court. 4In any event, as it transpired on Monday 14 April, when a further attempt to file the summons was made, one of the summons had not been signed by the solicitor for the plaintiff/claimant. I cannot conceive that a counter clerk is obliged to accept for filing an unsigned summons, just because that is not specifically referred to in r 4.10(5). 5Accordingly, it seems to me that the rejection of the document at that stage was regular. 6Ultimately, both summons were filed on Tuesday 15 April 2014. By interlocutory process filed on 24 April 2014 in each proceedings, the plaintiff seeks an order pursuant to UCPR r 36.16 or 36.17, varying the orders made on 10 April by substituting 5 pm on 15 April 2014 for 5 pm on 11 April 2014. Alternatively, an order was sought that the date of filing of the summons for leave to appeal be deemed to be 11 April 2014. As to that alternative claim that the summons for leave to be deemed to have been filed on 11 April, it seems to me that if the attempt to file the summons was regularly rejected (as I have found it was) as opposed to irregularly rejected, there is no occasion to make an order that it be deemed to have been filed on the date when the unsuccessful attempt to file it was made. 7As to r 36.17, while I accept that the types of slips and errors that that rule contemplates extends to slips or mistakes by a party's legal representative, the fact is that there was no slip or error in the judgment, of the kind contemplated by r 36.17, in this case. The plaintiff was asked how long it required to file the summons, and indicated a time. The Court deliberately fixed a time that accorded with that indication. Any slip or error that occurred in connection with the unsuccessful attempts to file the summons subsequently was not a slip or error in the judgment. The judgment reflected the intention of the Court, and for that matter the intention of the parties, at the time when it was made. 8I therefore turn to UCPR r 36.16, sub rule (1) of which provides that the Court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order sub rule (1). In addition, sub rule (3) provides that the Court may set aside or vary any judgment or order except so far as it determines any claim for relief or determines any question arising on any claim for relief or dismisses proceedings so far as concerns the whole or any part of a claim for relief. Further, sub rule (3A) provides that if notice of motion for the setting aside or variation of a judgment or order is filed within fourteen days after entry, the Court may determine the matter and if appropriate set aside or vary the judgment or order under sub rule (1) as if the judgment or order had not been entered. Here the interlocutory process was filed on the fourteenth day after entry of the relevant order, thus sub rule (3A) was invoked. 9The practical effect of the order presently sought is to extend the time for compliance with the statutory demand after it expired at 5 pm on 11 April, no summons for leave having been filed at that time so as to invoke the second limb of the order. The decision of the High Court of Australia in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 establishes that once an extension of time under Corporations Act, s 459F, has expired, a further order cannot be made under that section granting a further extension; nor can an extension be granted retrospectively. 10However, the present application does not invoke s 459F directly, but invokes UCPR 36.16 in order to seek a variation of the previous order, rather than a new section 459F order. This distinction has been recognised in a number of analogous cases. In Kay Investment Holdings Pty Limited [2011] NSWSC 1033, White J took the view that in circumstances where a s 459G application had been dismissed and as a result the time for compliance with the demand had expired, it was nonetheless open to the Court upon setting aside the order of dismissal to provide that that (setting aside) order take effect on the date on which the proceedings had 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 588FF could be made only within the three-year period referred to in that section, but could effectively be extended by reliance on r 36.16(2)(b) to vary the original order after the expiry of that period. 11In ACN 002 408 040 [2013] NSWSC 1997, I relied on UCPR r 36.16 to vary an order previously made under Corporations Act, s 509(6), there being doubt as to whether a further order under that section could be made after the expiry of the period referred to in that section: The parties seek to circumvent this difficulty by proceeding not to seek a different or new s 509(6) order, but to seek a variation of the existing order and the date referred to in it by reliance on the Court's power to vary orders where they have been made in the absence of a relevant party, or pursuant to the leave reserved by his Honour or, as it seems to me, where the variation is consented to. The power that I am asked to exercise therefore is not a power under s 509(6), but the Court's power to vary its orders, albeit in limited circumstances. Where there is consent to that course and where there is no apparent prejudice to any party or third party involved in doing so, there is no reason why the Court should not adopt that course. 12In the present case, the solicitors for the defendant have indicated that it does not intend to appear at the hearing of the present application and that it does not oppose the orders sought, albeit in a slightly modified form which is acceptable to the plaintiff. 13It seems to me that no prejudice or injustice will be occasioned to any party by making the order sought. In doing so, I will be exercising the Court's power under UCPR r 36.16 to vary the order made on 10 April with retrospective effect, and not making a new or different order under Corporations Act, s 459F. 14The Court orders that: (1)Pursuant to UCPR r 36.16, order 1 made on 10 April 2014 be varied nunc pro tunc to read (1) Pursuant to s 459F(2)(a)(ii) of the Corporations Act, the time by which the plaintiff must comply with the statutory demand that is the subject of the proceedings be extended until (a) 5 pm on 15 April 2014 or (b) if by that time an application for leave to appeal has been filed, then until seven days after the determination of that application or further order of this Court or of the Court of Appeal. (2)The plaintiff pay the defendant's costs of the interlocutory process filed 24 April 2014. (3)Those orders are made in each proceedings. The exhibits may be returned.