Brown v DML Resources

COUNSEL : B Rayment QC with C R Newlinds (P & A) B Coles QC with M Ashhurst (R) SOLICITORS : Kemp Strang (P & A) Carneys, Lawyers (R) CATCHWORDS : CORPORATIONS - liquidator's application for extension of three year limitation period to make application to challenge voidable transactions - application filed within three years but respondent not joined as party or notified - court sets aside order granting extension of time, as against respondent, and holds that respondent must be joined as party before time can be extended as against it, but that joinder would be outside the limitation period in view of SCR Pt 8 r 11(3) - whether s 1322 is available to permit extension of time or otherwise overcome late joinder of respondent LEGISLATION CITED : Corporations Act 2001 ss 9, 439A, 447A, 459E, 459F, 459G, 459P, 588FE, 588FF, 1322 Supreme Court Rules Pt 8 r 8, Pt 8 r 11, Pt 20 r 1, Pt 20 r4 Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 Baldry v Jackson [1976] 2 NSWLR 415 Brien v Australasian Memory Pty Ltd (1997) 25 ACSR 1 Brown v DML Resources (No 2)(2001) 39 ACSR 219 Brown v DML Resources (No 3) [2001] NSWSC 719 Brown v DML Resources (No 4) [2001] NSWSC 947 Brown v DML Resources (No 5) [2001] NSWSC 973 Brown v DML Resources [2001] NSWSC 250 Brown v DML Resources Pty Ltd (No 5) [2001] NSWSC 973 Cadwallader v Bajco Pty Ltd [2001] NSWSC 1193 Cavetina Pty Ltd v Synthetic Dieworks Industries Pty Ltd (1994) 14 ACSR 274 Commonwealth v Verwayen (1990) 170 CLR 394 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61FCR 385 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Fernance v Nominal Defendant (1989) 17 NSWLR 710 CASES CITED : Green v Chiswell Furniture Pty Ltd [1999] NSWSC 608 Ketteman v Hansel Properties Ltd [1987] AC 189 Mamouney v Soliman (1992) 9 ACSR 63 McGee v Yeomans [1977] 1 NSWLR 273 North Sydney Brick and Tile Co Ltd v Darvall (1989) 17 NSWLR 327 Poliwka v Heven Holdings Pty Ltd (1992) 6 WAR 505 Re Application of Hall [1999] NSWSC 984 Re Australian Koyo Ltd (1984) 8 ACLR 928 Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541 Re PW Saddington & Sons Pty Ltd and the Companies Code (1990) 19 NSWLR 674 Re Richard Walter Pty Ltd [1999] NSWSC 1179 Re Sidex Australia Pty Ltd; Sipad Holdings ddpo v Popovic (1995) 18 ACSR 436 Rodgers v Commissioner of Taxation (1998) 29 ACSR 270 Star v National Australia Bank Ltd (1999) 30 ACSR 583 Sutherland v Bosch (1999) 33 ACSR 680 Taylor v Woden Constructions Pty Ltd [1998] FCA 1228 Weldon v Neal (1887) 19 QBD 394 DECISION : Orders made extending time for application by plaintiffs against respondent, under s 1322(4)(d)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J WEDNESDAY 23 JANUARY 2002 3830/00 MARTIN RUSSELL BROWN & ANOR V DML RESOURCES PTY LIMITED (IN LIQUIDATION) & ANOR (NO.6) JUDGMENT 1 HIS HONOUR: Section 588FF (1) of the Corporations Act 2001 (Cth) (which has replaced the equivalent provision of the Corporations Law) authorises the liquidator of a company to apply to the Court for various orders with respect to a transaction claimed by the liquidator to be a voidable transaction because of s 588FE. Subsection 588FF (3) states: "(3) An application under subsection (1) may only be made: (a) within 3 years after the relation-back day; or (b) within such longer period as the Court orders on an application under this paragraph made by the liquidator within those 3 years." 2 On 4 September 2000 the plaintiffs applied under s 588FF (3) (b), ex parte, for orders extending the time for bringing proceedings against various persons (including the BP companies) to challenge certain transactions as unfair preferences. Their application has led to extensive litigation and many interlocutory judgments. 3 My two main judgments, so far, have been the judgments delivered on 17 July 2001 (Brown v DML Resources (No 2)(2001) 39 ACSR 219; [2001] NSWSC 590) and on 29 August 2001 (Brown v DML Resources (No 3) [2001] NSWSC 719). (In the first judgment in the series, Brown v DML Resources [2001] NSWSC 250, I rejected a contention by the BP companies that I should exclude myself from hearing their application to set aside the ex parte orders on the ground of reasonable apprehension of bias; there was also a "collateral" judgment in which I rejected an application by the BP companies to prevent the plaintiffs from conducting examinations under Part 5.9 of the Corporations Law: Brown v DML Resources, unreported, Supreme Court of New South Wales, 9 February 2001). In the judgment of 17 July 2001 I held that the BP companies had been denied natural justice, because the Court's orders of 4 September 2000 had been made ex parte, without first giving them the opportunity to be heard or to make submissions, thereby failing to meet their legitimate expectations. This finding eventually led to my making orders on 10 September 2001, setting aside the ex parte orders of 4 September 2000 as far as they affected the BP companies. 4 Issues arose as to the further conduct of the proceedings, and I dealt with them in my judgment of 29 August 2001. I held that it would be necessary for the plaintiffs to join the BP companies as parties to the proceeding before any final hearing of their application under s 588FF (3) (b), but that it was too late to do so. This was because s 588FF (3) (b) required that an application, for extension of the period during which unfair preference proceedings could be brought, must be made within three years after the relation-back day; and the effect of Part 8 rule 11 (3) of the Supreme Court Rules was that the application would be taken to be made only when the BP companies were joined as parties, at a time necessarily outside the three-year period. 5 In paragraph 113 of my judgment of 29 August 2001, I expressed the opinion that it would be futile to make an order for the joinder of the BP companies as parties to the proceeding, and that in the circumstances the correct course was for the proceeding to be dismissed, unless the plaintiffs could satisfy me that there was some point in allowing the proceeding to continue on foot, notwithstanding the conclusions I had reached. I decided to give the plaintiffs "one last opportunity to make submissions" as to why I should not dismiss the proceeding. 6 The plaintiffs responded by making three applications. First, they applied under the "slip rule" for orders to set aside my orders of 10 September 2001 for manifest error, essentially on the ground that I had overlooked the discretionary effect of s 81 of the Supreme Court Act 1970 (NSW). I dealt with that application, rejecting it, in a judgment delivered on 24 October 2001 (Brown v DML Resources (No 4) [2001] NSWSC 947). Secondly, they invited me to reconsider my reasons for concluding that it was too late for them to join the BP companies as parties. I dealt with that application, rejecting it, in a judgment delivered on 31 October 2001 (Brown v DML Resources (No 5) [2001] NSWSC 973). 7 In the judgment of 31 October 2001 I held that, although the plaintiffs had made an application for extension of time as against creditors generally within the three-year period set by s 588FF (3) (a), the effect of an order for the joinder of BP Australia Ltd as a defendant (an order found by me to be a necessary step) would be that the application as against that company would be taken to have been made on the date of the order for joinder. This flowed from the proposition that an order for joinder would necessarily be made under Part 8 rule 8 of the Supreme Court Rules, to which Part 8 rule 11 (3) was applicable. 8 By their third application, the plaintiffs seek to invoke s 1322 of the Corporations Act to cure the irregularities in their initial application. Because the plaintiffs wished to adduce substantial evidence of factual matters for the purposes of the third application, it was not practicable to deal with it concurrently with the first and second applications, which I have disposed of without any need to enter into evidence of factual matters. A substantial hearing was needed and has been held. The present reasons for judgment deal with the application under s 1322.

The s 1322 application 9 By an interlocutory process filed on 13 September 2001, the plaintiffs seek leave to join BP Australia Ltd as a defendant to the proceeding, and leave to amend the originating process in accordance with a draft amended originating process that is annexed to the application. The draft seeks, inter alia, the following orders: "5. A declaration pursuant to section 1322 of the Corporations Act that, notwithstanding the Defendant not having been joined to these proceedings prior to 24 October 2000, these proceedings are valid against the Defendant. 6. An order extending the period for joinder of the Defendant to these proceedings. 7. Such further or other orders or declarations pursuant to section 1322 (4) as the Court thinks appropriate." 10 Draft paragraph 5 appears designed to invoke s 1322 (4) (a), which permits the Court to make a declaration that a proceeding purporting to have been taken under the Corporations Act is not invalid by reason of any contravention of a provision of the Corporations Act. To use subsection (4) (a) in the manner proposed in paragraph 5 would be directly contrary to the conclusion reached in my judgment of 17 July 2001, because the literal effect of the order would be to deny the BP companies the right to procedural fairness, a right that I have found them to have. This problem could be overcome if the proposed order were a declaration to the effect that upon the joinder of BP Australia Ltd, the application is valid as against that company. However, for the reasons I shall give, my view is that subsection (4) (a) is not available because there is no contravention of a provision of the Corporations Act in the present case. 11 Draft paragraph 6 seems designed to invoke the statutory jurisdiction conferred on the Court by s 1322 (4) (d). The paragraph is not entirely clear, because strictly there is no "period for joinder of the Defendant" set by s 588FF (3) or any other provision. The relevant time period, to be extended under s 1322 (4) (d), would be either the period for the liquidators making an application against BP Australia Ltd under s 588FF (1) to challenge voidable transactions, or the period for them to make an application against BP Australia Ltd for extension of time under s 588FF (3) (b). Presumably paragraph 6 is drafted in the way it is because, according to the plaintiffs, an application for extension of time has already been made within the three-year time period. However I have held, in effect, that there is no valid application against BP Australia Ltd until that company is joined as a defendant, and when it is, the application is taken to have been made on the date of the order for joinder. Since the plaintiffs have made it clear that they wish to proceed by joining BP Australia Ltd as a defendant to their extant application, rather than by making a new application authorised by orders under s 1322 (4), the correct order (if they succeed in invoking s 1322 (4) (d)) would be an order extending the time for making an application under s 588FF (3) (b) to the date upon which the order for joinder (made, presumably, under Part 8 rule 8) is made. 12 In the course of their submissions, the plaintiffs put their case under s 1322 in various different ways, not always consistently. Thus, in their written submission dated 5 September 2001, paragraphs 17 and 18 (incorporated by reference in their written "Supplementary Submissions about Powers under s 1322" dated 30 October 2001), they said: "17. The application is not made on the simplistic basis that the time for filing the application be extended. There is no need for that, the application having been filed in time. 18. The application is ... to do no more than have the effect of extending the time for joinder of BP. The liquidators' application is no more than that they be permitted to join a party, which the Court has now decided is a necessary party, to an application that was otherwise filed in the time prescribed in s 588FF (3)." 13 In my view, an order granting leave to a plaintiff to join a person as defendant in a proceeding would not be authorised by any of the subparagraphs of s 1322 (4), and could not be made under subsection (4) unless it was ancillary to an order authorised by one of subparagraphs (a) to (d). In their written submission dated 30 October 2001 the plaintiffs contended that s 1322 (4) (d) was a source of power to join parties, independently of Part 8 rule 8 and therefore not subject to Part 8 rule 11. It is true that an order to extend the time period imposed by s 588FF (3) (b) overcomes the problem created by the combined operation of s 588FF (3) (b) and Part 8 rule 11 (3), but in my opinion it is not true to say that s 1322 (4) (d) is a source of power to make an order for joinder, except to the extent that an order for joinder might be ancillary to an order for extension of a time period. In the present case, if an order for extension of the time period is made under subsection (4) (d), there is no need to use the ancillary power in subsection (4), and the order for joinder can be made under Part 8 rule 8, with Part 8 rule 11 (3) applying but its effect being overcome by the extension of the time period up to the date of the joinder. 14 In their "Submissions of Liquidators on Form of Orders" in dated 9 October 2001, paragraph 3, the plaintiffs submitted (without reference to paragraph 17 of their submissions of 5 September 2001) that the three-year time period mentioned in s 588FF (3) may be extended under s 1322 (4) (d). I therefore regard it as consistent with the plaintiffs' submissions as a whole to consider whether an order for extension of time may be made under s 1322 (4) (d), notwithstanding paragraph 17 of the submission of 5 September 2001. 15 As I have said, the plaintiffs adduced substantial evidence of factual matters at the hearing of the s 1322 application. I held that this evidence was relevant to the application because s 1322 (4) confers a discretion on the Court as to whether an available order should be made, and s 1322(6) requires the Court to be satisfied, before making an order, that no substantial injustice has been or is likely to be caused to any person. The plaintiffs have read affidavits with respect to the course of their investigations of voidable transactions involving the DML companies, and one of the plaintiffs, Mr Cuming, has been cross-examined at some length. 16 Unfortunately, but perhaps not surprisingly in view of the complexity of the matter, there was some confusion during the hearing of the s 1322 application as to the nature of the hearing. During the hearing, counsel for the plaintiffs informed the Court that he regarded the hearing as the final hearing in the proceeding. I eventually delivered some ex tempore reasons explaining that in my view, the hearing was confined to consideration of whether s 1322 applied automatically, or should be applied by order, so as to overcome the plaintiffs' difficulties under s 588FF (3) (b) and Part 8 rule 11 (3). I said that if the plaintiffs were successful, there would need to be another hearing for final determination of the proceeding. 17 In the interest of saving costs, counsel for the plaintiffs then took the commendable view that the plaintiffs would rely at the final hearing on the evidence adduced in the s 1322 hearing, and would not seek to adduce any further evidence. Counsel for BP Australia said he was not able to commit his client to an equivalent proposition, but that he might be able to do so when the issue under s 1322 was resolved. The plaintiffs' approach created at least a prospect that this extensive litigation would be brought to finality (subject to appeal) in the near future, either by my dismissing the s 1322 application and consequently dismissing the proceeding, or by my allowing the application and making orders under s 1322 and then moving on to a short final hearing of the proceeding.

Section 1322 18 The relevant parts of s1322 are as follows: "(1) In this section, unless the contrary intention appears: (a) a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and (b) a reference to a procedural irregularity includes a reference to: … (ii) a defect, irregularity or deficiency of notice or time. (2) A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid. … (4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation; … (c) an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a); (d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding; and may make such consequential or ancillary orders as the Court thinks fit. (5) An order may be made under paragraph (4) (a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence. (6) The Court must not make an order under this section unless it is satisfied: (a) in the case of an order referred to in paragraph (4) (a): (i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; (ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or (iii) that it is just and equitable that the order be made; and (b) in the case of an order referred to in paragraph (4) (c) - that the person subject to the civil liability concerned acted honestly; and (c) in every case - that no substantial injustice has been or is likely to be caused to any person." 19 The plaintiffs invite the Court to make a declaration confirming that subsection (2) applies in the present circumstances, or to make an order, validating what has occurred, under subsection (4) (a) or (d). It seems to me that the present application raises five issues, which I shall consider in turn, namely: · Is s 1322 available to be used to cure the "irregularity" that an application under s 588FF (3) (b) is made (or deemed by virtue of Part 8 rule 11 (3) to be made) out of time? And if it is: · Does s 1322 (2) apply in the present circumstances? · Does the Court have jurisdiction to make an order under s 1322 (4) (a)? · Does the Court have jurisdiction to make an order under s 1322 (4) (d)? · If the Court has jurisdiction to make an order under either of those subparagraphs, should an order be made, having regard to the matters set out in s 1322 (6)?

Is s 1322 available where an application under s 588FF (3) (b) is made, or is deemed to be made, out of time? 20 Section 1322 (2) had its origin in s 357 of the Companies Act 1936 (NSW). The provision was developed and expanded very significantly in its transition through s 366 of the Companies Act 1961 (NSW) to s 539 of the Companies Codes (1982-1989). The essential elements of the Court's power to make orders, now contained in s 1322 (4), were introduced in s 366 of the Uniform Companies Act, and the provision was systematically restructured into something very like its current form in s 539 of the Companies Codes, with subsequent amendments being more minor. The history is more fully set out in the judgment of Santow J in Brien v Australasian Memory Pty Ltd (1997) 25 ACSR 1, 26-27. The modern judicial approach to the section is to treat it as a remedial provision to be construed liberally: see, for example, Re Australian Koyo Ltd (1984) 8 ACLR 928, 930; North Sydney Brick and Tile Co Ltd v Darvall (1989) 17 NSWLR 327. In David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 275, Gummow J said that as a general precept, it is inappropriate to read provisions such as s 1322 (4), which confer jurisdiction on or grant powers to a court, by the making of implications or the imposition of limitations not found in the express words of the legislative provision. 21 However, the scope of the provision was restricted by the High Court of Australia in the David Grant case. In that case the High Court was asked to resolve a difference amongst the Federal and State Supreme Courts as to whether s 1322 was available to permit courts to extend the period within which a company could challenge a statutory notice of demand served upon it under s 459E. Section 459G says that an application by a company to set aside a statutory demand "may only be made" within 21 days after the demand is served, and specifies the manner in which an application to set aside the demand is to be made. The High Court unanimously held that s 1322 is not available to assist a company that has failed to comply with s 459G. The BP companies submit that the reasoning in the David Grant case should be extended to s 588FF (3), which says that an application by a liquidator to challenge a voidable transaction "may only be made" within the three year period, or such longer period as the Court orders on an application for extension made by the liquidator within the three years. 22 In my opinion the reasoning in the David Grant case does not apply to s 588FF (3), and there is nothing to prevent recourse to s 1322 where it is available upon its proper construction. I have reached this conclusion, as a matter of construction, having regard to the contrasting legislative policies underlying the statutory demand procedure and s 588FF, and also some important differences in the two statutory contexts. I have also considered the case law, some of which is to the contrary.

Legislative policy 23 The High Court's reasoning in David Grant was directed towards the new, specific legislative scheme concerning statutory demands, which had been introduced in 1993 as a result of the recommendations of the Harmer Committee (Australian Law Reform Commission, General Insolvency Inquiry, Report No 45). 24 According to the Explanatory Memorandum which introduced the new scheme, it was intended to be a complete code for the resolution of disputes involving statutory demands (see Explanatory Memorandum to the Corporate Law Reform Bill, 1992, paragraph 688). Before the introduction of the statutory reform, disputes about the existence and quantum of debts that had been the subject of statutory demands were frequently aired at the hearing of the winding up application, or in separate injunction proceedings. Following the opinions expressed by the Harmer Committee, the legislature took the view that these features of the old system were undesirable, and that the legislation should specifically provide for the determination of disputed debt issues and other disputes in respect of a statutory demand (Explanatory Memorandum, paragraph 685), so that by the time of the winding up application, matters of that kind would have already been resolved. 25 The legislative scheme of Part 5.4 establishes a new procedure for the court to set aside a statutory demand if there is a genuine dispute about the existence or amount of the debt or the company has an offsetting claim. The statutory scheme provides that if the creditor's demand has not been set aside and the company has failed to comply with it, the court hearing the winding up application must presume that the company is insolvent (s 459C (2)); and at that stage the company cannot, without the leave of the court, oppose the winding up application on any ground that could have been raised to set aside the demand (s 459S). 26 The 21-day time limit for making an application to set aside a statutory demand is an integral part of the legislative scheme, in which there are other time limits. Thus, the company is taken to have failed to comply with a statutory demand 21 days after the demand is served, unless an application is made in accordance with s 459G to set it aside: s 459F. Further, the presumption of insolvency operates if such a failure to comply with the statutory demand occurs during or after the three months ending on the day when the winding up application is made (s 459C (2)); and the winding up application must be determined within six months after it is made, unless the Court grants an extension of time (s 459R). 27 If s 1322 were available to permit the Court to extend the time for making an application to set aside a statutory demand, the new legislative scheme would be compromised, because there could no longer be any assurance that questions about the existence and quantum of the debt would be resolved prior to the making of the winding up application, and the definition in s 459F of failure to comply with the statutory demand would need to be modified. These results are underlined by s 1322 (4) (d), which expressly authorises the Court to make an order for the extension of a time period where the period concerned has ended before the application to extend it is made. 28 These matters were central to the reasoning of Gummow J, with whose judgment the other members of the High Court agreed. He quoted the passages from the Explanatory Memorandum to which I have referred, and then (at 270) described the statutory provisions as a "legislative scheme for quick resolution of the issue of solvency and the determination of whether the company should be wound up without the interposition of disputes about debts, unless they are raised promptly". He described the time limits to which I have referred, regarding it as significant that the legislative scheme itself contains express powers for the Court to extend various time limits. He identified s 459G (at 278) as an "integral part of the particular scheme" established by the new provisions. He noted (at 278) that the application of s 1322 (4) (especially s 1322 (4) (d)) would interfere with the definition of "failure to comply" in s 459F. 29 Section 588FF (3) is also part of a legislative scheme (namely the scheme set out in Part 5.7B Division 2), directed in this case to the vitiation of voidable transactions entered into by a company near to its winding up. The scheme sets out statutory grounds for the avoidance of certain defined transactions, prescribing time limits beyond which transactions are safe from curial interference on those statutory grounds. 30 For present purposes, it is notable that the statutory time limits (set out in s 588FE) are not open to modification by the Court, and the statutory grounds for interference with transactions do not purport to be, and are not, an exclusive code (and thus, for example, transactions are open to challenge on general equitable grounds and under such provisions as s 37A of the Conveyancing Act 1919 (NSW)). 31 Further, the legislative scheme with respect to voidable transactions cannot be regarded as a new statutory procedure designed to replace existing practices, and is better seen as the product of evolution of the voidable transaction provisions of earlier statutes. The voidable transaction provisions evolved principally through bankruptcy legislation, although by analogy with more ancient provisions derived from the Fraudulent Conveyances Act of 1571, 13 Eliz c 5 (now found in Part II Division 5 of the Conveyancing Act 1919 (NSW) and comparable provisions of other States). Until the 1993 reforms pursuant to the Harmer Committee's recommendations, companies legislation simply adopted the bankruptcy provision, by saying, in effect, that any transaction with a company that would, had it been with an individual, be void or voidable in his bankruptcy, was in the event of the company being wound up void or voidable in like manner: see Companies Act 1936 (NSW), s 298; Companies Act 1961 (NSW), s 293; Companies Codes s 451; Corporations Law (prior to 1993 amendments), s 565. Section 127 of the Bankruptcy Act 1966 (Cth) contained a statutory limitation periods for such actions, the period with respect to unfair preferences being six years. In the previous bankruptcy legislation (Bankruptcy Act 1924 (Cth), s 98 (3)) there was a general limitation period of 20 years from the date of sequestration, for claims by the trustee of the bankrupt's estate. Thus, section 588FF (3) is part of a process of tightening up the time limit, in the corporate context. 32 When the present legislative scheme was introduced by the 1992 amendments, there was no legislative purpose of setting up a special statutory application procedure to be completed before the happening of a later event such as a winding up application. Instead, the liquidator's statutory right to bring proceedings to challenge voidable transactions arises in the course of the administration of the company in winding up, and consideration of the exercise of that right is one of the liquidator's duties of administration, to be completed before the winding up comes to an end, but not as a condition precedent to any other step in the course of the administration. 33 In this context, the fixing of a statutory time limit for the liquidator to make an application to challenge a voidable transaction is merely directed to ensuring that due and timely attention is given to this aspect of the liquidator's duties of administration. The three-year time limit, important though it is, is not an integral part of any wider legislative structure. That is made clear in the observations of the Harmer Committee, which were the basis for reduction of the time period to the present period of three years. The Harmer Committee's concern (Report No 45, paragraph 688) was expressed as follows: "Actions by a liquidator to recover the proceeds of a void transaction, a preference, a transaction at an undervalue or a transaction with intent to defeat creditors should be commenced within a reasonable time. The Commission proposed in DP 32 (paragraph 454) that a liquidator should have three years to commence such an action, although the Court might extend that time. Under the existing law the time period would be six years (for example, Bankruptcy Act s 127). Many submissions to the Commission complained about the sometimes inordinate delay in commencing proceedings in respect of voidable transactions. In addition there have been recent judicial observations critical of the general delays associated with the winding up of insolvent companies. It is therefore considered desirable to place liquidators under a more rigorous but, nonetheless, reasonable time limitation for taking action under these provisions. The Commission recommends accordingly." 34 The legislative policy is to discourage liquidators from delaying or deferring action with respect to voidable transactions until their other tasks have been carried out. It is not a policy of setting up an inescapable time limit regardless of individual circumstances. It is not incompatible with the policy to allow the Court to extend the time for the liquidator to make an application to challenge a voidable transaction. Indeed, s 588FF (3) (b) expressly acknowledges that the Court may do so. Nor is it incompatible with the legislative policy, in cases where the prerequisites for the application of s 1322 are made out, for the Court to permit an application to be made, for an extension of the time for making an application in respect of voidable transactions, after the expiration of the time limit set out in s 588FF (3) (b).

Statutory context 35 In the David Grant case, Gummow J placed emphasis on the words "may only be made" in s 459G (2). But he did so in light of the surrounding statutory context. Section 459G is to be read together with s 459F, which says that a company is taken to fail to comply with a statutory demand 21 days after the demand is served, unless the company applies in accordance with s 459G for an order setting aside the demand. Moreover, s 459G (3) specifies the manner in which an application is to be made within the 21 day time period. Thus, the construction favoured by his Honour arose not only out of the words "may only be made" in s 459G (2), but also having regard to the reinforcement of those words provided by ss 459F and 459G (3). Additionally, as I have said, he took into account the fact that there were other statutory time limits in Part 5.4 and express powers for the Court to extend them, so that the absence of any comparable power to extend the 21 day time limit was significant. 36 The statutory context of s 588FF (3) is notably different. The time limit does not, as I have said, form an integral part of some wider scheme, to be read in conjunction with other provisions. I can find no other indication in Part 5.7B Division 2 of a legislative intention to exclude the curative power of the Court conferred by s 1322. Everything turns upon the meaning of the phrase "may only be made", to be determined without any contextual assistance other than the sheer co-existence of ss 588FF (3) and 1322, and in the absence of any policy reason for requiring exclusivity. 37 In the David Grant case, there are observations by Gummow J (at 276ff ) which, if taken literally and out of context, would have a general application where the words "may only" are used to qualify the exercise of a statutory right. Gummow J saw subsections (2) and (3) of s 459G as attaching a limitation or condition upon the authority of the Court to set aside a statutory demand. In his view, the force of the term "may only" was 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. He said that to treat s 1322 as authorising the Court to extend the period of 21 days specified in s 459G would deprive the word "only" of effect. 38 In my opinion, expressed with some hesitation, Gummow J's reasoning should not be taken to mean that whenever a statutory right is conferred and its exercise is qualified by a provision that it "may only be made" within a stated time period, a more general power of extension is necessarily excluded. I reach this conclusion on the basis that the words "may only be made" are not in all contexts unambiguous, however plain they may appear to be when taken in isolation. They can be read in accordance with the literal meaning, as a stipulation that the conditions which they introduce are mandatory. Given the legislative policy and statutory context before him, Gummow J adopted this construction for the purposes of s 459G (2). But in a different context, they can be read as meaning that the conditions must be followed unless the Court exercises its curative power - that is, in a fashion that acknowledges room for the curative power to operate. Where the latter interpretation applies, the word "only" has the effect of making the prescribed conditions mandatory unless the Court intervenes, although it does not exclude that intervention. 39 Suppose, for example, that there was an additional subsection (4) to s 588FF, giving the Court a general curative power in terms equivalent to s 1322. I have no doubt that the Court would say that the general curative power could be used to overcome the restrictions of s 588FF (3), notwithstanding the use of the words "may only be made" in subsection (3). Granted that the Court must give all of the statutory words a meaning where it is possible to do so, this could only be on the basis that the words "may only be made" do not set up a regime to be followed exclusively of the general power of modification. In my hypothetical case, the words "may only be made" would be taken to mean that the procedure in subsection (3) must be followed unless the Court were persuaded to exercise the discretion in the new subsection (4). 40 MacPherson JA, dissenting in Cavetina Pty Ltd v Synthetic Dieworks Industries Pty Ltd (1994) 14 ACSR 274, 281 made observations to the effect that a provision stating that an application "may only" be made within a stated time or within such extended time as the Court may order under s 1322, could be restated without the word "only", with no loss of meaning. His Honour's remarks may well have been directed to s 459G specifically, with no wider application intended. If they were intended to be of general application, I would find it necessary with very great respect, to disagree. In my opinion the word "only" may be used to stipulate that the stated time limit must be followed unless the Court is satisfied that a curative order should be made under s 1322. That is, the word "only" excludes all possibilities other than compliance with the time limit and obtaining a s 1322 order - even, perhaps, an order granting leave, nunc pro tunc, upon an application made out of time. As Sheller JA said in Re J & E Holdings Pty Ltd (1995) 36 NSWLR 541, 549, the word "only" adds emphasis. Sheller JA went on to say that the effect of the word "only" in s 459G is to prevent the general power in s 1322 from being invoked, and he agreed with MacPherson JA in Cavetina that it was impossible to identify the functional utility of the word "only" in s 459G (2) if it did not exclude the power to make an order under s 1322. In my opinion, the latter observations (like the observations of Gummow J in David Grant) are directed towards s 459G specifically, and for the reasons I have already given, they should not be extended to s 588FF (3). 41 If it is correct, for the reasons I have given, that the words "may only be made" may have an element of ambiguity in them in some contexts, what is suggested by the context of those words in s 588FF (3)? In David Grant (at 275ff ) Gummow J took into account that s 1322 is a general provision and s 459G (2) is a particular provision. That is also true of s 588FF (3). But the particular in this case need not exclude the general, since it would be sensible to read the provisions to mean that the application to challenge a voidable transaction, and the application for extension of time to do so, must be made within the time limits prescribed by subsection (3) unless the Court makes an order under s 1322 (taking into account the considerations laid down in subsection 1322 (2) or in the exercise of its discretion under subsection (4) and having regard to the matters specified in subsection (6)). Here the legislative scheme does not dictate any contrary result. 42 In David Grant, Gummow J also saw it as significant (at 275ff) that the specific provision to which a specific time limit was attached was introduced into the legislation after the more general provision. Counsel for the BP companies submitted that questions arising out of the sequence in which various sections of the Corporations Law were enacted are now irrelevant with the commencement of the Corporations Act, which re-enacts the various provisions contemporaneously. I disagree. Sometimes reflection on the legislative history of provisions which have ultimately been re-enacted contemporaneously in a replacement Act can assist to understand the legislative policy and intention. However, I have reached a conclusion supportive of their view on this point by a different route. 43 Here, the legislative scheme of Part 5.7B Division 2 was, as I have said, an evolution of previous provisions in companies and bankruptcy legislation, that had existed in some form or another for many years. The provision that became s 1322 was gradually extended over time so as to be available, by the time of the Companies Codes and then the Corporations Law, to extend time limits set by the legislation itself. In its modern form, s 1322 was already in place when the 1992 amendments introduced the present Part 5.7B Division 2, but this is not a case where a new, specific and exclusive statutory scheme with its own time limits was superimposed upon a more general statutory structure. The situation is distinguishable from the new legislative scheme for statutory demands introduced in Part 5.4. I regard the fact that s 1322 (in its present form) preceded s 588FF (3) (in its present form) as having no significance to the question of construction. 44 My conclusion, therefore, is that on its proper construction, s 588FF (3) does not exclude the application of s 1322. Thus, if in its terms s 1322 (2) applies, or s 1322 (4) is available for the making of an order, to permit an application to be made by a liquidator to challenge a voidable transaction outside the time limit prescribed by s 588FF (3), it is open to the Court to proceed under s 1322. Equally, it is open to the Court to proceed under s 1322 to permit the liquidator to make an application for extension of the three-year period within which an application to challenge a voidable transaction may be made, even if the liquidator's application for extension of time is made outside the period limited by s 588FF (3). 45 Counsel for the plaintiffs made a submission about the construction of s 588FF (3), which would lead to the same conclusion by a different path. In the present case, an application in general terms was made within the three-year period. According to counsel's submission, it is only the making of the application within the three-year period that is the subject of the word "only" in s 588FF (3). On this reasoning, any non-compliance with s 588FF (3) in the present case is not the result of failure to comply with the requirement to which the word "only" relates, but is rather the result of a deeming provision contained in the Supreme Court Rules. 46 Although I have reached a conclusion favourable to the plaintiffs' case, I do not accept this line of reasoning. The word "only" in s 588FF (3) governs the time periods set by the subsection. But the subsection leaves it to the rules of the various Courts to explain what an "application" is and when an application is "made". Part 8 rule 11 (3) says that in the circumstances relevant to this case, an application as against BP Australia Ltd would be taken to be made when that company was joined as a defendant. Thus, the combined effect of subsection (3) and the relevant rules is that the order for joinder "may only be made" within the stated time periods.

Case law after David Grant 47 In Rodgers v Commissioner of Taxation (1998) 29 ACSR 270, the plaintiff liquidator sued the Commissioner under s 588FF (1) to recover group tax payments. He subsequently discovered that two additional tax payments had been made by the company, and sought leave to amend the statement of claim to add claims for recovery of the additional payments. The question was whether s 588FF (3) prevented the Court from granting leave to amend under the Federal Court Rules, on terms that the amendment would relate back to the date of commencement of the proceeding. Observing (at 276) that s 588FF (3) is concerned with the commencement of the proceeding rather than the amendment of an existing claim, while the relevant provision of the Federal Court Rules concerning amendments (Order 13 rule 2) regulated the position after a proceeding had been commenced, the Full Court held that the proposed amendment was permissible under the Rules notwithstanding s 588FF (3). 48 I have already pointed out (Brown v DML Resources Pty Ltd (No 5) [2001] NSWSC 973, 31 October 2001, paragraphs 24-25) that in reaching their conclusion, their Honours distinguished a case of amendment of a statement of claim, from a case of addition of a defendant, quoting with approval the observations on that point by Clarke JA in Fernance v Nominal Defendant (1989) 17 NSWLR 710. Therefore Rodgers' case is consistent with my interpretation of the Supreme Court Rules (albeit that the wording of the Supreme Court Rules is different from the wording of the Federal Court Rules). 49 The present point is that Rodgers' case is also consistent with my view about s 1322. Section 1322 was not in issue in Rodgers' case. It was referred to by the Full Court (at 275), but only in the course of their discussion of the David Grant case. After quoting a passage from the judgment of Gummow J in which he spoke about the meaning of the words "may only" in s 459G, their Honours said that Gummow J's statement establishes "an application first made outside the prescribed time is ineffective; it says nothing about an application to amend" [their emphasis]. In my opinion, this statement assumes rather than decides that Gummow J's observation may be extended to s 588FF (3), and then distinguishes it. The Full Court based its decision to permit the amendment on their opinion about the interaction of the Federal Court Rules and s 588FF (3), without reference to s 1322. 50 Emanuele v Australian Securities Commission (1997) 188 CLR 114 related to s 459P (2) of the Corporations Law, according to which an application by (inter alia) the Commission "may only be made" with the leave of the Court. Section 459P (3) states that the Court may give leave if satisfied that there is a prima facie case that the company is insolvent, but not otherwise; and s 459P (5) says that except as permitted by the section, a person cannot apply for a company to be wound up in insolvency. The High Court (Dawson, Toohey and Kirby JJ, Brennan CJ and Gaudron J dissenting) referred to the David Grant case. The majority construed the words "may only" as not imposing a condition precedent to the granting of leave, and held that leave could be granted after the winding up application had been made and heard, nunc pro tunc. 51 Toohey J (with whom Dawson J agreed) held (at 128) that s 459P (2) was not a jurisdiction conferring provision, did not create a cause of action and did not go to the relief that may be granted. He distinguished David Grant on the ground that compliance with s 459G went to jurisdiction (at 130-131). Further, citing observations by Lindgren J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61FCR 385, 406, Toohey J accepted a distinction between a situation in which there is a time limit within which the Court must be approached if an application for an order of a particular kind is to be made at all (as under s 459G), and a situation in which a proceeding is already under way and is subject to the Court's control and in which a timely but deficient order has been made. He noted that under s 459P (3) the Court must exercise a supervisory role, and that there were policy considerations favouring a liberal view of the requirements of s 459P, especially in a situation such as an application for an urgent ex parte order to appoint a provisional liquidator. 52 In a separate judgment Kirby J also referred to policy considerations, carefully tracing the legislative background to s 459P, contrasting it with the legislative policy underlying s 459G, and noting that the new statutory demand provisions were intended to establish a complete code (at 156). 53 The statutory context of the words "may only" in s 459P (2) is obviously very different from their context in s 588FF (3), and the legislative policies are also quite different. Moreover, the case did not raise the application of s 1322, but only the Court's general and inherent powers to grant leave after the application had been made. Therefore the case is not a directly applicable authority in the present circumstances. Nevertheless, it is of some relevance. 54 Part of the reasoning, especially in the judgment of Toohey J, would suggest that in the present case, compliance with s 588FF (3) is mandatory. I refer to the distinction enunciated by Lindgren J in Elyard Corporation and adopted by Toohey J at 131. The present case is a situation in which there is a time limit within which the Court must be approached if an application for an order is to be made at all, rather than a case where a proceeding is already under way and subject to the Court's control and in which a timely but deficient order has been made. However, the application of that distinction to the present case tends to beg the question, because if ss 588FF (3) and 1322 are read together, the case is not one in which the Court must be approached in advance, if an application for an order is to be made at all. 55 Toohey J's distinction between the case before him and David Grant, on the ground that s 459P was not a jurisdiction conferring provision while s 459G was, also tends to beg the question before me in this case. Here jurisdiction is conferred on the Court by s 588FF (1) to make orders with respect to voidable transactions, and by s 588FF (3) (b) to make an order for extension of time. Unlike s 459P, s 588FF (3) (b) is therefore a jurisdiction conferring provision. However, the real question for me to determine is whether, concurrently with that jurisdiction, the Court enjoys jurisdiction under s 1322, a matter not considered (nor necessary to be considered, in light of his conclusions) by Toohey J. 56 On the other hand, some aspects of the approach to construction adopted by both Toohey J and Kirby J tend to support the reasoning outlined above. Both of them regarded the legislative policy as important, and also the statutory context (in that case, the context provided particularly by ss 459P (3) and (5)). In a sense, Emanuele's case was a more extreme case than the present one. There the High Court was prepared to depart from a literal meaning of the words "may only" to allow the Court to exercise its inherent power to grant leave nunc pro tunc; here, there is an express statutory power to make a curative order, and the issue is whether the words "may only" should be construed literally so as to exclude that power from use. Moreover, the statutory context more strongly favoured exclusivity in that case than here. There is nothing in the present case comparable with the words "but not otherwise" in s 459P (3), and the words "except as permitted by this section, a person cannot apply …" in s 459P (5). 57 In Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 the administrator of a company under voluntary administration convened the second meeting of its creditors to be held eight days earlier than the end of the convening period. Section 439A (2) states that the second meeting "must be held within 5 business days after the end of the convening period". Section 447A is a general provision authorising the Court to make such order as it thinks appropriate about how Part 5.3A is to operate in relation to a particular company. At first instance ((1997) 25 ACSR 1), Santow J made validating orders based upon both s 1322 and s 447A. His decision was affirmed by a majority in the Court of Appeal of New South Wales: (1998) 45 NSWLR 111 (a summary of Santow J's orders appears at 124). 58 The High Court held that s 447A enabled an order to be made altering the times stipulated by s 439A. As with Emanuele's case, this was a case where the High Court distinguished David Grant and chose not to give apparently mandatory language a mandatory effect. The Court (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) referred to the holding in David Grant that the requirement in s 459G should not be treated as supplemented or qualified by the operation of s 1322 (at 281), and said: "But that conclusion followed from a number of considerations: not least, the fact that the express terms of s 459G (2) that "[a]n application may only be made within twenty-one days after the demand is … served" define the jurisdiction of the Court by imposing a requirement as to time as an essential condition of the new right conferred by the section. In addition, particular reference was made to the place occupied by s 459G in the scheme established by Part 5.4 and the consequences that would follow if s 459G were to be treated as supplemented or qualified by the operation of s 1322. Similar considerations do not arise in relation to s 447A." 59 This, it will be noted, was said notwithstanding the use of the word "must" in s 439A (2). The Court found it unnecessary to determine the relationship between s 1322 and Part 5.3A in general, and s 447A in particular, regarding the latter section as sufficient to justify the curative orders necessary to overcome the problem before the Court. However, their Honours did not disagree with the approach taken by the majority in the Court of Appeal of New South Wales, and by Santow J at first instance, that s 1322 was available as another source of power to make curative orders consequent upon a contravention of s 439A (2). This conclusion by the Court of Appeal and Santow J therefore stands, and is of some significance in the present case, where the complicating factor of a more proximate source of power to make a curative order (in that case, s 447A) is absent. 60 In my opinion, the High Court's observations at 281 should not be construed as meaning that whenever the words "may only" appear in a provision setting time limits, the provision is mandatory and excludes the use of s 1322. For one thing, the quoted passage acknowledges that the conclusion in David Grant flows from a number of considerations, including the place occupied by s 459G in the statutory scheme. Moreover, the quoted passage says that in David Grant the words "may only" were held to define the jurisdiction of the Court under s 459G, not that those words should always be construed as going to jurisdiction. The wider proposition would have been contrary to the decision in Emanuele's case. It seems to me, therefore, that the quoted passage is consistent with the approach I favour in this case, and tends to support it by saying that the conclusion in David Grant flowed from a number of considerations, not only the strict construction of the words "may only". 61 The view that I have taken is contrary to the considered opinion of Rolfe J in Star v National Australia Bank Ltd (1999) 30 ACSR 583, which therefore demands close consideration. In that case, as in Rodgers v Commissioner of Taxation, the plaintiffs in a proceeding alleging voidable transactions sought leave to amend the originating process to add claims for relief in respect of further transactions. Rolfe J held that leave to amend should be granted, and that the amendment would take effect from the date of the summons rather than the date of the amendment, having regard to Part 20 rule 4 (5A) of the Supreme Court Rules. In that case, unlike Rodgers v Commissioner of Taxation, s 1322 was specifically invoked, and his Honour made observations about it. He said that the wording of s 588FF (3) would prevent an application from being made under s 1322 to extend the three-year limitation period. 62 After referring to the David Grant case and s 459G, Rolfe J said (at 592-3); "While the wording is obviously not identical to that in s 588FF (3), I think it is necessary to consider the words "only if" in s 459G (3) and "may only be made" in subsection (3) and the general structure of the sections. In each, although the words differ, the essential import is the same and, in my opinion, it is a condition of bringing an application under s 588FF, that the application must be made either within three years of the relation-back day, or within such extended period granted in consequence of an application within that three-year period." 63 After referring to s 1322 (4) (d) and quoting extensively from the David Grant case and cases preceding and following it, he continued (at 597-8): "As I have stated, while there is some difference in wording between ss 459G and 588FF, each section requires that an application may be made to the Court for relief within a specified period from a specified and certain date. In the circumstances, and having regard to the scheme of the Law and the terms of the explanatory memorandum, to which I shall refer [he referred to paragraph 688 of the Harmer Report, quoted above], I do not see that there is any relevant distinction between the words in subsection (2) and those in subsection (3) (a). The consequence of that is that I am of the opinion that for a valid or competent application to be made pursuant to s 588FF (3) in respect to which the Court has jurisdiction, it must, relevantly for present purposes, be made within the time specified in subsection (3) (a)."

He added (at 598): "As a matter of language it seems to me that no difference can be drawn between the two sections insofar as the application of s 1322 is concerned. Accordingly, I do not consider that an application could be made under that section to extend the time provided by s 588FF (3). I come to that conclusion because the temporal requirements impose a condition on the exercise by the Court of its jurisdiction. Once the three-year period expires and there is no application made within it to extend the period, the rights conferred by s 588FF are lost." 64 His Honour's observations on s 1322 are strictly obiter dicta, since he found that Part 20 of the Supreme Court Rules permitted the plaintiffs to make the amendment that they sought. Even so, considered observations by so distinguished a judge should not be departed from except for compelling reasons. I have decided, however (having been urged by counsel for the plaintiffs to take this course) that I shall not, follow his Honour's view on the relevant point. I do so because my analysis of the policy considerations, set out above, strongly points to a conclusion different from one reached by his Honour with respect to policy, and because I disagree (for the reasons given) with his conclusion that the statutory contexts of s 459G and s 588FF (3) are indistinguishable.

Does s 1322 (2) apply? 65 Section 1322 (2) says that a proceeding under the Act is not invalidated because of any procedural irregularity, unless the Court forms a certain opinion. An application under s 588FF (3) (b) to extend the time within which a liquidator may apply to challenge a voidable transaction is a "proceeding" for the purposes of s 1322. This is because s 1322 (1) (a) says that a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not - an application for extension of time under s 588FF (3) (b) is a legal proceeding. It is clearly a proceeding "under this Act". 66 Is there are a "procedural irregularity" for the purposes of s 1322 (2)? In the present case an application for extension of time was made in general terms within the three-year period prescribed by s 588FF (3), but because the BP companies were denied natural justice and it became necessary to join BP Australia Ltd as a party, and under Supreme Court Rules such a joinder would be deemed to take effect outside the three-year period, any application for extension of time to bring proceedings against BP Australia Ltd will necessarily be outside the time limitation prescribed by s 588FF (3) (b). 67 In my opinion, one would not describe this problem as due to a "procedural irregularity" upon any natural meaning of those words. The problem is not merely procedural, and is hardly an "irregularity". The statutory time limits in s 588FF (3) provide substantive protection to persons dealing with a company, by giving them immunity from proceedings with respect to voidable transactions. Additionally, the problem that has arisen for the plaintiffs is a consequence of a series of deliberate decisions: compare Re PW Saddington & Sons Pty Ltd and the Companies Code (1990) 19 NSWLR 674. 68 Section 1322 (1) (b) (ii) says that a reference to a procedural irregularity includes a reference to a defect, irregularity or deficiency of notice or time. Where a step has been validly taken but there has been some failure to comply fully with an applicable time limit, one can accurately describe the problem as a defect, irregularity or deficiency of time. An example would be a failure by a liquidator or administrator, by a few days, to dispatch a report to creditors: see Re Sidex Australia Pty Ltd; Sipad Holdings ddpo v Popovic (1995) 18 ACSR 436; Cadwallader v Bajco Pty Ltd [2001] NSWSC 1193, paras 253-255. However, a purported application outside the time limit set by s 588FF (3) (b) is not a valid application at all, since the court's authority to deal with it can be found (in the absence of a curative order under s 1322 (4)) only in the statutory conferral under s 588FF (3) (b), the conditions of which have not been fulfilled. In the David Grant case, Gummow J recorded (at 274) that in oral argument, counsel for the appellant conceded that there was a real difficulty in characterising the facts of that case as involving merely a procedural irregularity. In my view, s 1322 (2) does not apply in this case. 69 I should note that counsel for the BP companies submitted that the purpose of s 1322 (2) is to deal with things irregularly done that might be regularly done, by ensuring that deficiencies that can be cured are automatically cured without the bother of a court application or the need to repeat the procedure. He contended that the subsection should not be applied where a liquidator has failed to act within the time limits set by s 588FF (3) (b), because in that case the liquidator cannot repeat the procedure in a regular manner. I do not accept that argument. In my opinion there is nothing in the wording of legislative policy underlying s 1322 (2) requiring that it can be limited in this way.

Is s 1322 (4) (a) available? 70 Subparagraph 1322 (4) (a) authorises the Court to make an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken under the Act, is not invalid by reason of any contravention of a provision of the Act. That power would be available to authorise the Court to make a declaration along the lines of paragraph 5 of the draft amended originating process, together with an ancillary order for the joinder of BP Australia Ltd, if the problem in the present case arose by reason of a "contravention" of s 588FF (3) (b), of a kind that could be overcome by a declaration that the proceeding for extension of time against BP Australia Ltd was not "invalid" by reason of that contravention. 71 In my opinion the purported making of an application for an extension of the three-year time period, outside the three-year period, is not aptly described as a "contravention" of s 588FF (3) (b). The word "contravention", which appears frequently in the Corporations Act, as far as I can see, is always used in a sense connoting breach or failure to comply with some duty. For example, s 1323 refers to an investigation in relation to an act or omission that constitutes or may constitute a contravention of the Act; and s 1324 confers statutory jurisdiction on the Court to grant an injunction where a person has engaged, is engaging or proposes to engage in conduct that constituted, constitutes or would constitute a contravention of the Act. Part 9.4B, in dealing with civil penalties, is based upon the Court making a declaration of "contravention" of certain provisions, each of which imposes positive or negative duties: see, especially, s 1317E. See also ss 1322 (4) (c) and (5). 72 Section 588FF (3) does not prohibit the making of an application outside the three-year period, or require the liquidator to make an application within that period. Rather, having created a statutory power for the liquidator to make an application challenging a voidable transaction, subsection (3) qualifies that statutory power by imposing time limits for the application and for any application for extension of time. A purported application that does not comply with the restriction as to time is not an application authorised by the section, and there is no other authority for it unless a curative order is made. The position is that, the application being made outside the time period prescribed by the section, there is no valid and effective application, absent some curative order. No duty is contravened, but nor is anything enlivened, and the purported application is legally of no effect. 73 The Corporations Law contained a definition of "contravene". Section 9 said that "contravene" includes failure to comply with. Curiously, the definition has been omitted from the Corporations Act. It seems to me, however, that the natural meaning of the word "contravene" encompasses a failure to comply, and so the omission of the definition from the new legislation is of no consequence. However, the definition does not advance the plaintiffs' case. There is no failure to comply unless there is a duty to comply. And s 588FF (3) (b) does not impose any such duty.

Is s 1322 (4) (d) available? 74 Subparagraph 1322 (4) (d) authorises the Court to make an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under the Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made). 75 Counsel for the plaintiffs urged me to use s 1322 (4) (d) as a source of power to order the joinder of BP Australia Ltd. He submitted that if I did so, the joinder would be liberated from the effect of Part 8 rule 11 (3), and the application for extension of time (since it was made within time on 4 September 2000) could go forward to final hearing without any problem about time limits. I had decided that this intriguing submission should be rejected, for two reasons. 76 First, in my opinion subparagraph (4) (d) does not authorise an order for the joinder of a defendant to an existing proceeding. It permits an order to be made extending the period for doing an act under the Corporations Act, but the Corporations Act does not set any time period for joinder of a defendant, as opposed to a time period for making an application. Therefore an order permitting joinder of a defendant would not be an order extending the period for doing something under the Corporations Act. 77 Secondly, in my opinion an order made by this Court for the joinder of a defendant would still be subject to Part 8 rule 11 (3), even if the order were made under s 1322 rather than under Part 8. This is because rule 11 (3) applies, according to its terms, "where in any proceedings a party is added otherwise than pursuant to an order under rule 10 or Part 20 rule 4 (3)" (neither of which is relevant here). Counsel submitted, in effect, that these words should be read subject to an implied limitation, confining them to an order for joinder made under the authority of the Supreme Court Rules, but I can see no proper basis for such a restriction. I note that at the time of the decision in Fernance v Nominal Defendant (1989) 17 NSWLR 710, rule 11 (3) was expressed to apply only "where a party is added pursuant to an order under rule 8 or rule 10", and the rule was subsequently amended to apply "where in any proceedings a party is added otherwise than" pursuant to two specified rules which are not presently relevant. The amendment suggests an intention to widen the scope of the rule. 78 Counsel also submitted that I had, and should exercise, a discretion to depart from rule 11 (3), having regard to my inherent power and other provisions of the rules including Part 1 rule 12. I regard the question whether the Court may make an order for joinder while excluding rule 11 (3) to be a difficult one. Rule 11 (3) is on its face directed to preserving the substantive rights of a litigant with respect to limitation periods and the like, rather than dealing with the practices and procedures of the Court. Assuming that the rule is intra vires, my view is that the Court would either decline to depart from it in every case, or accept a jurisdiction to do so only rarely, and not in circumstances such as the present. 79 It seems to me that this conclusion is consistent with the judgment of Gleeson CJ in Fernance v Nominal Defendant. In that case His Honour referred (at 721) to the relevant rule of the Supreme Court of Queensland, noting that the Queensland rule stated that when a defendant was added, the proceedings against that person were deemed to have commenced on service of the amended process "unless otherwise ordered". He distinguished the Queensland rule from the New South Wales rule on that ground, implying that in this State the Court does not have any broad general power to depart from the deeming effect of our rule. 80 However, in my opinion s 1322 (4) (d) is available for a more straightforward use. An application by the plaintiffs to challenge voidable transactions between the DML companies and BP Australia Ltd would be a proceeding under the Act. Equally, an application by the plaintiffs under s 588FF (3) (b) to extend the period for making an application to challenge voidable transactions between the DML companies and BP Australia Ltd would be a proceeding under the Act. In each case, s 1322 (4) (d) would literally authorise the Court to make an order extending the period for making the application, notwithstanding that the period for doing so, set by s 588FF (3) (b), has already ended. In the former case, s 1322 (4) (d) would be used as the source of power to extend the time for bringing unfair preference proceedings. In the latter case, the source of the power to extend the time for bringing unfair preference proceedings would be s 588FF (3) (b), s 1322 (4) (d) being used to overcome the fact that the application under s 588FF (3) (b) was out of time. The plaintiffs seek to use s 1322 (4) (d) in the latter rather than in the former way, as I understand their case. 81 In my opinion, s 1322 (4) (d) upon its proper construction is available to support an order extending the period, otherwise set by s 588FF (3) (b) as the period of three years after the relation-back day, within which the plaintiffs may seek an extension of the time for making an application to challenge voidable transactions between the DML companies and BP Australia Ltd. The plaintiffs seek an order for the joinder of BP Australia Ltd as a defendant in the present proceeding. As I have said, that has the effect, under Part 8 rule 11 (3) of the Supreme Court Rules, that the application for an extension of time as against BP Australia Ltd is taken to be made as at the date of joinder. Therefore the order under s 1322 (4) (d) should extend the time, for an extension of time application, up to the date upon which the order for joinder of BP Australia Ltd as a defendant takes effect. 82 If such an order is made, the result will be that the present proceeding will go forward as an application by the plaintiffs as against BP Australia Ltd for an extension of time under s 588FF (3) (b) for the making of an application under s 588FF (1) to challenge voidable transactions between the DML companies and BP Australia Ltd. The order under s 1322 (4) (d) will overcome the problem posed by the time limits in s 588FF (3) (b). The remaining issue for determination will be whether, in the exercise of its discretion under s 588FF (3) (b), the Court should extend the time for the making of the s 588FF (1) application, for the period of time sought by the plaintiffs. As I have said, the plaintiffs have indicated that they have no more evidence to adduce on that issue, though the BP companies have reserved their position for the time being.

Should an order be made under s 1322 (4) in the present circumstances? 83 Section 1322 requires that two matters be considered for the purpose of deciding whether to make an order under s 1322 (4) (d). First, orders under s 1322 (4) involve the exercise of judicial discretion, since the subsection empowers the court, on the application of an interested person (such as BP Australia Ltd), to make an order, but does not give the applicant a right to relief. Secondly, under s 1322 (6) the Court is not to make an order unless it is satisfied of certain matters. Since, in my view, the only available source of power to make a curative order under s 1322 is s 1322 (4) (d), the only specific matter to be considered is the one stipulated in s 1322 (6) (c) - that no substantial injustice has been or is likely to be caused to any person. 84 There is case law to the effect that s 1322 (6) (c) is directed to possible injustice linked to the particular irregularities in question, rather than the remoter consequences of the irregular action: Sutherland v Bosch (1999) 33 ACSR 680, paragraph 56; Poliwka v Heven Holdings Pty Ltd (1992) 6 WAR 505; Mamouney v Soliman (1992) 9 ACSR 63 at 71; Brien v Australasian Memory Pty Ltd (1997) 25 ACSR 1 (Santow J), and 45 NSWLR 111 at 155-62 (Court of Appeal). The judicial discretion conferred by the word "may" at the beginning of subsection (4) authorises the Court to range more widely over matters relevant to the desirability of making the order. I have not been able to detect any matters relevant to the exercise of the discretion to make an order under s 588FF (3) (b) extending a liquidator's time for applying to challenge voidable transactions, that would not also be relevant to the exercise of the Court's discretion to make a similar order under s 1322 (4) (d). There is no categorical difference between the two discretions. As far as I can see, the only difference is that where an order extending time is made under s 1322 (4) (d), the Court has an express statutory duty under subsection (6) (c) to be satisfied that no substantial injustice has been or is like to be caused to any person. 85 This presents the Court with a quandary. As I have explained, the s 1322 application was brought by the plaintiffs as an interlocutory application along the way to a final hearing of their application, as against the BP companies, for an extension of time under s 588FF (3) (b). The BP companies have reserved their position as to whether they will seek to adduce further evidence with respect to the ultimate application. It would be unfair on them for me to make findings dealing with the merits of the ultimate application before they complete their evidentiary case. This does not mean, however, that I cannot make a determination under s 1322 (4) (d) at this stage. While matters going to the merits of the ultimate application are relevant to the exercise of my discretion under s 1322 (4) (d), it is not necessary for me to make findings on all such matters before the discretion is exercised.

Findings for the exercise of discretion under s 1322 (4) 86 In the present case, my opinion is that I ought to make an order, as earlier foreshadowed, under s 1322 (4) (d), but that I should do so without making findings with respect to the merits of the plaintiffs' case for an extension of time (except to the extent required by s 1322 (6) (c)), so as to preserve questions going to the merits of extending time for determination after the final hearing. I have decided that the grounds which I shall now set out are sufficient to justify the making of the foreshadowed order under s 1322 (4) (d). 87 In earlier judgments (see [2001] NSWSC 719, 29 August 2001, at paragraphs 114-116, and [2001] NSWSC 973, 31 October 2001, at paragraphs 33 and 34), I accepted submissions by the plaintiffs that if the application is found to be out of time as against the BP companies, there will be unjust consequences for the unsecured creditors of the DML companies. The plaintiffs wish to attack transactions involving several million dollars. Recovery, if achieved, will benefit the unsecured creditors of those companies. Without, at this stage, making any finding about the strength of the plaintiffs' case for recovery, I am persuaded that their case is not hopeless and has some probability of success. It would be unjust to the unsecured creditors to deprive them of the opportunity of having the case tested by litigation, unless there is a clear and valid reason for doing so. 88 I shall not make any finding, at this stage, as to whether there is a reasonable explanation for the plaintiffs not making an immediate application under s 588FF (1), in about September 2000, to set aside specific voidable transactions between the DML companies and BP Australia Ltd, or as to whether it was reasonable for them to proceed by seeking a general extension of time, as they did on 4 September 2000. 89 However, it is appropriate for me to find at this stage, and I do find, that there is a plausible and reasonable explanation for the plaintiffs' application miscarrying in the way that it did. The plaintiffs made their application for an extension of time comfortably within the three-year limitation period. They were mistaken in bringing the application on an ex parte basis without notifying the BP companies, but in my opinion their mistake was not an obvious or culpable one. I took the view, on the plaintiffs' ex parte application, that the interests of the BP companies were appropriately protected by the orders that I made on 4 September 2000. It was only after extensive argument by the BP companies, exercising the leave that I reserved to them, that I was persuaded, for the reasons expressed in my judgment 17 July 2001, that my original orders had not satisfied the high standards of procedural fairness required by Australian law. Even so, I did not hold that it was necessary for the BP companies to be joined as defendants to the initial application, as opposed to being given notice of it. It was not until my judgment of 29 August 2001 that it came to be established, subject to appeal, that further steps in the proceeding must involve the joinder of BP Australia Ltd, but that under the Supreme Court Rules the joinder of that company (absent a curative order) would mean that the proceeding as against that company would be out of time. 90 It seems to me that, if there is a satisfactory explanation for the plaintiffs not bringing proceedings against the BP companies prior to the expiration of the time limit set by s 588FF (3), these considerations would justify a further short extension of time under s 588FF (3) (b), beyond the date of the order for joinder of BP Australia Ltd, so as to allow the plaintiffs to commence their s 588FF (1) action. That being so, I believe the factors that I have outlined warrant my making the foreshadowed order under s 1322 (4) (d), in order to give the plaintiffs the opportunity to make out their case for that extension of time at the final hearing. 91 At the final hearing a principal question will be whether the plaintiff has a satisfactory explanation for not commencing a proceeding against BP Australia Ltd prior to the expiration of the three-year time period: see Taylor v Woden Constructions Pty Ltd [1998] FCA 1228; Green v Chiswell Furniture Pty Ltd [1999] NSWSC 608; Re Richard Walter Pty Ltd [1999] NSWSC 1179 and Re Application of Hall [1999] NSWSC 984. I make no finding on that question (which encompasses all the matters raised by paragraph 9 (i) to (xix) of the written submission by the BP companies dated 12 November 2001) at the present time, since the evidence of the BP companies may be incomplete. My present decision is intended to remove an obstacle to the determination of that question, and of any other matters going to the merits of the plaintiffs' case for an extension of time.

"Substantial injustice" - s 1322 (6) (c) 92 It is necessary, however, for me to be satisfied under s 1322 (6) (c) that no substantial injustice has been or is likely to be caused to any person, before I make the foreshadowed order. I have noted in earlier judgments that there is a policy of commercial certainty underlying Part 5.7B Division 2, which protects persons dealing with a company from the risk that their transactions will be challenged well after they have been concluded and treated as valid. But that policy is not undermined in the present case. As regards persons who have dealt with the DML companies, other than the BP companies, the plaintiffs obtained orders for extension of time on 4 September 2000, within the time limits prescribed by s 588FF (3), and those orders stand. As regards the BP companies, they were put on notice of the plaintiffs' claims within the three-year period. They cannot claim that thereafter they were entitled to assume, and act on the basis, that the transactions placed in question by the plaintiffs were valid, since at all times from 4 September 2000 to date the plaintiffs have asserted their case for leave to commence a proceeding to challenge those transactions. 93 Counsel for the BP companies submitted that the plaintiffs were given numerous opportunities to seek to join either or both of them to the present proceeding, and on each occasion the plaintiffs declined to make any such application, insisting that the proceeding did not require them to join the BP companies. It was only after the Court decided that joinder was necessary, that they sought to revise their earlier position. Counsel's submission is that the plaintiffs made their election as to how they would conduct the proceeding and should be held to that election. 94 In my opinion the plaintiffs made no binding election, in the legal sense considered by various members of the High Court in Commonwealth v Verwayen (1990) 170 CLR 394 (see, for example, at 406-7 per Mason CJ, and at 451-3 per Dawson J). It is true that at various points during argument, counsel for the plaintiffs indicated that his clients were not applying to join the BP companies to the proceeding at that stage. As I understood him, counsel was merely making a forensic decision as to the conduct of the case in the circumstances then obtaining, and was not intending to forego any such application for all time, or otherwise to choose between two inconsistent rights. The circumstances changed after I handed down my judgment of 29 August 2001, and it was not unreasonable for the plaintiffs to alter their approach in light of my judgment. In my view the BP companies have no equity to prevent the plaintiffs from making an application for joinder coupled with an application under s 1322, as they have. These circumstances do not raise any prospect of "substantial injustice" to the BP companies for the purposes of s 1322 (6) (c). 95 I am therefore satisfied that no substantial injustice has been or would be likely to be caused to the BP companies - or to any other person - by my making the orders in contemplation.

Other discretionary matters 96 When I rejected the plaintiffs' application that I reconsider my reasons for judgment ([2001] NSWSC 973, 31 October 2001, paragraph 34), I said that I was not prepared to adopt an unrealistic and overly adventurous construction of relevant provisions in order to avoid the injustice of this particular case, preferring to opt for commercial certainty and the principle that statutes and rules of court dealing with commercial matters should be construed according to their plain meaning in the interests of predictability. In my opinion the use of s 1322 to overcome the risk of injustice in the present case is consistent with the concerns I expressed on that occasion. In particular, my approach adopts the literal construction of s 1322 (4) (d) and the proper construction of the statutory provisions considered together, and is consistent with the legislative policy underlying s 588FF (3). 97 It is true that, in the result, a person who has dealt with a company subsequently placed in winding up is at risk that the liquidator might obtain the Court's permission under s 1322 to challenge a voidable transaction involving that person after the expiration of the three-year time period set by s 588FF (3). But this will occur only in special circumstances. The circumstances before me now are special, as I have explained that length. There is, in my view, sufficient certainty in the law to satisfy the needs of the commercial community, and to give effect to the Harmer Committee's policy, while s 1322 (4) (d) preserves for the Court sufficient flexibility to achieve justice in the instant case. 98 At the hearing of the s 1322 application there was much discussion about discrepancies between the rules of various courts with respect to joinder of defendants. Counsel for the plaintiffs took me to Order 6 rule 11 of the Federal Court Rules. Sub-rule 11 (3) is a provision similar to Part 8 rule 11 (3) of the rules of this Court, except that the Federal Court rule applies only where a party is added pursuant to an order under rule 8 or rule 10, and apparently not otherwise. Counsel also referred to Order 18 of the Rules of the Supreme Court of Western Australia (where one of the DML companies was formed), and in particular, rule 6 (2), which authorises the Court to order the joinder of an additional party. Counsel said that there is no Western Australian rule equivalent to Part 8 rule 11 (3). I note, however, that Order 18 rule 8 (4) says that "where by an order under Rule 6 or 7 [Rule 7 deals with changes of parties by reason of death etc] a person is added as a party …, that person shall not become a party until - (a) where the order is made under Rule 6, the writ has been amended in relation to him under this Rule and (if he is a defendant) has been served on him". 99 Counsel submitted that in view of the omission from the Federal Court and Western Australian rules of any provision expressly dealing (in a case where the Court makes an order for joinder under s 1322) with the deemed time of commencement of proceedings against a joined party in the relevant circumstances, those courts would be able and prepared to make the order in a manner which did not put the plaintiff out of time under s 588FF (3) (b). Counsel urged me to use s 1322 so as to avoid the consequence that the outcome of this case would be different if it had been brought in or cross-vested to the Federal Court or the Supreme Court of Western Australia. 100 It would be inappropriate for me to make a decision as to how other courts would decide this case, under their rules of court. However, I am not convinced that the Federal Court or the Supreme Court of Western Australia would see the case any differently from this Court, notwithstanding some differences in the wording of our respective rules of court. The "common law" relating to amendment and joinder (that is, the law applied under rules of court which do not specifically deal with the deemed time of commencement of proceedings against a joined party) is characterised by "finespun distinctions", according to Glass JA in McGee v Yeomans [1977] 1 NSWLR 273, 280, and is not easy to express both succinctly and accurately. However, it appears that there is a rule, deriving from Weldon v Neal (1887) 19 QBD 394, according to which the court will not exercise a discretionary power to grant leave to amend where a relevant period of limitation has already expired and to do so would permit a statute-barred claim to be raised for the first time. The legal status of the rule is less than clear, since it has often been described as a "rule of practice" (for example, by Gleeson CJ in Fernance v Nominal Defendant at 718, and by Glass JA in McGee v Yeomans, at 280), suggesting that the practice might be departed from where there are good reasons for doing so. Be that as it may, the rule has been applied to deny an application for an amendment that would add a defendant and assert a new cause of action against that additional party, where the application for amendment is made outside a relevant limitation period. But the reason for declining to permit the amendment was controversial prior to the decision of the House of Lord's in Ketteman v Hansel Properties Ltd [1987] AC 189. 101 One view, referred to in Ketteman's case as the "relation-back" theory (at 200 per Lord Keith of Kinkel, and at 210 per Lord Brandon of Oakbrook), applies to the joinder of parties the general proposition (accepted in such cases as Baldry v Jackson [1976] 2 NSWLR 415, 419 per Samuels JA) that an amendment to pleadings takes effect, not from the date when the amendment is made, but from the date of the original document which it amends. If the relation-back principle were to be applied to joinder of a defendant outside the statute of limitations, its effect would be to remove the limitation problem, assuming that the proceeding was originally commenced within time. Hence, the court will decline to permit the amendment because of the unfairness of that result: see Fernance v Nominal Defendant at 718C, and cases there cited. The other view, referred to by Lord Brandon in Ketteman as the "no useful purpose" theory, holds that the reason for refusing the amendment is that the amendment would be pointless, since the proposed defendant would, if joined, have an absolute defence based on the statute of limitations. 102 In Ketteman the House of Lords held that where an amendment would assert a new cause of action against a new party outside the limitation period, the reason for refusing the amendment is that no useful purpose would be served by it, and that the "relation-back" theory did not apply in those circumstances. In the case before the House of Lords, an amendment was made outside the relevant limitation period contrary to the rule in Weldon v Neal, joining additional defendants and asserting new causes of action against them, and their Lordships held that in computing the period of limitation, time ceased to run only when the joinder took effect and there was no relation back. This implies that in their Lordships' view, the action against the joined defendants was not brought, for the purposes of the statute of limitations, until the date of joinder. 103 The application of the decision in Ketteman to the present facts would probably, in my view, mean that the proceeding as against BP Australia Ltd would be regarded as having been commenced only upon the date of joinder, and not the time of filing of the original application. That is the same result as applies in this Court under the express provisions of Part 8 rule 11 (3). It seems likely that if they concluded that their own rules of court did not expressly cover the question, the Federal Court and the Supreme Court of Western Australia would apply the decision in Ketteman in that way, unless they took the view that it would be justifiable to depart from the Ketteman approach when the order for joinder could be made, and is made, under s 1322, rather than under rules of court. Faced with that issue, the relevant court may well conclude that Ketteman should be followed even where the order for joinder is made under s 1322, in order to preserve the vested rights of the BP companies. 104 I have said enough to show that this is a very murky area. I accept that there is a risk that the Federal Court or the Supreme Court of Western Australia would, under their respective rules of court, reach a conclusion different from my own. It would be manifestly undesirable that rules of court should affect the substantive outcome of an application under the Corporations Act in such a fashion. There may be a case for expanding the national harmonisation of Corporations Act rules of court to address this problem. 105 However, inevitably there will be some differences in outcome in applications of all kinds brought under the Corporations Act, depending upon the identity and jurisdiction of the Court in which the application is made. The Corporations Act leaves it to rules of the Federal and State Supreme Courts (all which are "Courts" for the purposes of the Corporations Act: s 58AA) to determine the procedures by which an application is made, and to deal with ancillary matters such as the gathering of evidence by discovery and subpoenas. In the Federal Court and this Court the respective Evidence Acts 1995 (Cth and NSW) apply, but in other Supreme Courts that legislation does not apply. And various adjectival State and Commonwealth laws could produce differences of outcome, quite apart from the elevated status of State laws conferred by Part 1.1A of the Corporations Act. A degree of disuniformity is therefore inevitable from time to time. 106 I would not use the fact (if it be so) that in this case, unless s 1322 (4) were used, the outcome under the rules of this Court could or would be different from the outcome if the proceeding had been brought in another court, as itself a sufficient ground for exercising my discretion to make an order under s 1322 (4) to avoid disuniformity of outcome. There are, however, other adequate grounds for exercising my discretion to make an order.

Conclusions 107 For the reasons I have given, I propose to make orders: (1) under Part 8 rule 8 of the Supreme Court Rules, granting leave to the plaintiffs to join BP Australia Ltd as a defendant to the present proceeding; and (2) under s 1322 (4) (d), extending, to the date upon which order (1) takes effect, the period within which an application under s 588FF (3) (b) may be made by the plaintiffs for extension of the period within which they may make an application under s 588FF (1) against BP Australia Ltd with respect to transactions between that company and either of the DML companies. 108 I shall stand the matter over to hear any submissions with respect to the form of my proposed orders, and to make those orders, and to give directions for the early final hearing of the proceeding. On that occasion I shall expect BP Australia Ltd to indicate precisely what evidence, if any, it wishes to adduce for the final determination of the proceeding. In the event that there is no further evidence to be adduced, it may be that the final hearing will be very short, since both sides made extensive submissions on matters going to the merits of the extension of time issue, in the course of addressing me on the s 1322 application, and I took the precaution of arranging for a full transcript of their submissions. 109 I shall reserve the costs of the present application, pending the final hearing. **********************

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