Consideration
174 The question to be determined is whether the time within which an application is to be brought under s 588FF(1) of the Corporations Act can be extended other than in accordance with s 588FF(3)(b) and thus whether s 601AH(3)(d) of the Corporations Act empowers the Court to make an order in the form of Order 3 of the Reinstatement Orders. That is, an order which disregards the period in which a company was deregistered and has the effect of extending time for bringing a claim pursuant to s 588FF(1) of the Corporations Act beyond the periods specified in s 588FF(3) (see [150] above).
175 It is convenient to commence consideration of this question by reference to the cases that have addressed the operation of s 588FF(3) of the Corporations Act and, in particular, whether an order can be made extending the time specified in s 588FF(3)(a) to bring a claim under s 588FF(1) other than in accordance with the method prescribed in s 588FF(3)(b).
176 That analysis starts with the decision in Grant Samuel. In that case on 4 June 2008 an application was made to wind up Octaviar Ltd and subsequently a winding up order was made. It followed that the relation-back day for the purposes of s 588FF of the Corporations Act was 4 June 2008. On 30 May 2011, upon an application by the liquidators of Octaviar, an order was made pursuant to s 588FF(3)(b) extending the time for the liquidators to make an application under s 588FF(1) to 3 October 2011 (May 2011 Order).
177 By an amended originating process dated 19 September 2011 the liquidators applied for a further order under s 588FF(3)(b) that the time for making an application under s 588FF(1) be further extended to 3 April 2012 or, in the alternative, an order that the May 2011 Order be varied under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to insert 3 April 2012 in lieu of 3 October 2011. When the matter came on for hearing before a judge of the Supreme Court, only the latter application was pressed and an order was made pursuant to r 36.16 of the UCPR varying the May 2011 Order in the manner sought (Variation Order). The appellants did not appear on that application, despite having been given notice of it. They subsequently applied by interlocutory process for an order vacating the Variation Order but were unsuccessful in that application.
178 The question before the High Court was whether a court, on an application made outside the period in s 588FF(3)(a) but within an extended period ordered under s 588FF(3)(b) on an application made in the period permitted by s 588FF(3)(a), may exercise power under the general rules of procedure, relevantly the UCPR, to further extend time for the making of an application under s 588FF(1). The High Court's attention was therefore directed to the relationship between the provisions of the Corporations Act and the general procedural rules of the UCPR. In addressing that question at [7] the High Court observed that:
Section 79(1) of the Judiciary Act 1903 (Cth) provides that the laws of each State or Territory, including the laws relating to procedure, shall, "except as otherwise provided by the Constitution or the laws of the Commonwealth", be binding on all courts exercising federal jurisdiction in that State or Territory. It has been observed that the Corporations Act does not directly impose a universal, federal procedural regime, but rather leaves s 79 of the Judiciary Act to operate according to its terms in the State or Territory concerned. The particular question on these appeals arises from those terms. It is whether s 588FF(3) "otherwise provides", so that the UCPR are not picked up by s 79.
(Footnote omitted.)
179 After referring to the reasoning of both the majority of the New South Wales Court of Appeal and Beazley P in dissent in JPMorgan Chase Bank, National Association v Fletcher (2014) 85 NSWLR 644 and summarising the facts of and analysis in Gordon v Tolcher (2006) 231 CLR 334, at [17] the High Court said:
The Court in Gordon v Tolcher said that s 588FF deals with the period within which an application under s 588FF(1) is to be made, as an essential aspect of the regime s 588FF creates. The provision in s 588FF(3), as to the time for the making of the application, is not to be characterised merely as a procedural stipulation as to time. It would follow that the bringing of an application within the time required by s 588FF(3)(a) or (b) is a precondition to the court's jurisdiction under s 588FF(1).
(Footnotes omitted.)
180 Relevantly, in allowing the appeals, at [19]-[23] the High Court said:
19 In a passage from BP Australia Ltd v Brown which was cited in Gordon v Tolcher, Spigelman CJ said that the legal policy which underlies s 588FF(3) is one which favours certainty. Whilst that provision does not have the effect of requiring all applications under s 588FF(1) to be brought within a short period of time, it does have the effect "of requiring those who wish to keep open the option to do so, to determine that they do wish to do so within the three year period and to seek a determinate extension of the period". His Honour said that "Parliament has identified a reasonable time for such matters to occur, subject to a single determinate extension of time".
20 At the time BP Australia Ltd v Brown was decided, s 588FF(3)(a) contained only the requirement now appearing in sub-para (i), that proceedings be brought within three years of the relation-back day. Subsequently, in 2007, an alternative time limitation, that appearing now in sub-para (ii), was added whereby an application under s 588FF(1) may be brought twelve months after the first appointment of a liquidator in a winding up. The provision in s 588FF(3)(b), whereby the court may fix a further period, has remained throughout.
21 The addition of the alternative time limitation in s 588FF(3)(a)(ii) does not detract from the force of what was said in BP Australia Ltd v Brown concerning the statutory aim of certainty which is evident in s 588FF(3). If anything, it tends to reinforce the decision of the legislature, in balancing in a liquidation the competing interests of creditors and those who have dealt with the company and might be the subject of s 588FF(1) proceedings, to limit the times within which such proceedings may be brought. Section 588FF(3) does so in language which may be described as "clear and emphatic".
22 Section 588FF(3) provides that an application under s 588FF(1) "may only be made" within the periods set out in paras (a) and (b) of s 588FF(3). The phrase "may only be made" should be read with both paragraphs. So understood, the term "may only" has the effect of defining the jurisdiction of the court by imposing a requirement as to time as an essential condition of the right conferred by s 588FF(1) to bring proceedings for orders with respect to voidable transactions. An element of that right is that it must be exercised within the time specified. This is what is conveyed by Gordon v Tolcher.
23 The only power given to a court to vary the para (a) period is that given by s 588FF(3)(b). That power may not be supplemented, nor varied, by rules of procedure of the court to which an application for extension of time is made. The rules of courts of the States and Territories cannot apply so as to vary the time dictated by s 588FF(3) for the bringing of a proceeding under s 588FF(1), because s 588FF(3) otherwise provides. It provides otherwise in the sense that it is inconsistent with so much of those rules as would permit variation of the time fixed by the extension order.
(Footnotes omitted. Emphasis added.)
181 I pause to note that the Commissioner and the Liquidators do not dispute that s 588FF(3) of the Corporations Act provides for a jurisdictional requirement. They accept that use of the phrase "may only be made" in s 588FF(3) is a timing requirement which is a jurisdictional precondition and which must be satisfied before a liquidator has an entitlement to make an application under s 588FF(1). However, they dispute that s 588FF(3) covers the field for calculation of time orders, to the exclusion of s 601AH of the Corporations Act in the case of reinstated companies.
182 Bearing that in mind I return to the cases. In Grant Samuel, in observing at [22] that an element of the right conferred to bring proceedings under s 588FF(1) was that it must be exercised within the time specified, the High Court referred (at footnote 36) to its earlier decision in David Grant & Co at 277 where Gummow J (with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed) said:
The force of the term "may only" is 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. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil, it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3).
183 David Grant & Co concerned the statutory period imposed by s 459G of the then Corporations Law to file an application to set aside a statutory demand. That section provided that an application for an order setting aside a statutory demand which had been served on the company "may only be made within 21 days after the demand is so served". The appellants, who had filed their applications to set aside the statutory demands outside the 21 day period prescribed by s 459G, argued that s 1322(4) of the Corporations Law may be available to extend time. That section relevantly provided:
Subject to the following provisions of this section but without limiting the generality of any other provision of this Law, 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 Law or in relation to a corporation is not invalid by reason of any contravention of a provision of this Law or a provision of the constitution of a corporation;
…
(d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Law 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.
184 At 275 Gummow J observed that:
On the present appeals, the difficulty in construction arises, perhaps not so much from the particular text of either s 459G or s 1322, as from the interrelation between the two provisions in circumstances where the enactment of s 1322 preceded that of s 459G, and the earlier section is general and the later section specific in its operation.
185 At 276 his Honour referred to the principle in Anthony Hordern (see [162] above) which he noted had been applied in subsequent decisions in the High Court and observed that "[i]n addition, the temporal requirements in sub-ss (2) and (3) of s 459G operate to define the jurisdiction of the court in respect of an application to set aside a statutory demand". At 277 Gummow J addressed the function of the term "may only" in s 459G stating that:
The force of the term "may only" is 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. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil, it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3).
This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word "only" in s 459G(2) if it does not mean what it says, which is that the application is to be made within twenty-one days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of twenty-one days specified in s 459G would deprive the word "only" of effect.
(Footnote omitted.)
186 His Honour concluded (at 278) that the requirements in s 459G, that the application for which that section provides may only be made within 21 days after service of the demand, could not be treated as supplemented or qualified by the operation of s 1322(4) of the Corporations Law.
187 In Grant Samuel, the High Court also referred to BP Australia, an earlier case in which the Court of Appeal considered the interpretation of s 588FF(3) of the Corporations Act. At the time s 588FF(3) was in slightly different terms and provided:
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.
188 The facts of BP Australia were somewhat complicated. In summary, in late 1997 DML Resources Pty Ltd (in liquidation) and DML Resources (WA) Pty Ltd (in liquidation) (collectively, DML companies) were placed into liquidation. The appellant, BP Australia Ltd, was the recipient of over $5.7 million in payments from the DML companies which, the liquidators alleged, constituted voidable transactions under Pt 5.7B of the Corporations Act. However, the liquidators did not make an application under s 588FF(1) of the Corporations Act within three years after the relation-back day.
189 Over the course of seven judgments by a single judge of the Supreme Court, the liquidators received the requisite extension, then they lost it and finally, in the seventh judgment, they regained it. Relevantly, the primary judge held that s 1322(4)(d) of the Corporations Act was available to support an order extending the three year period, otherwise set by s 588FF(3), for an application by liquidators seeking an extension of time to make a further application challenging voidable transactions: see BP Australia at [9]-[10]. BP appealed from that judgment.
190 At [77] Spigelman CJ (with whom Mason P and Handley JA agreed) relevantly observed:
In a sense, the section that falls to be construed on the appeal is not s 588FF(3) itself, but s 1322(4)(d). The issue that arises is whether or not any time period specified in s 588FF(3) is a "period for doing any act, manner or thing or instituting or taking any proceeding under this Act" within the meaning of s 1322(4)(d).
191 At [78]-[79] his Honour referred to the purpose of s 1322 of the Corporations Act saying:
78 Section 1322 confers a series of powers designed to mitigate the strict application of the various kinds of provisions found elsewhere in the legislative scheme of the Corporations Act. It constitutes a recognition by the legislature that, in the wide variety of unpredictable circumstances that arise in the conduct of the affairs of corporations, the precise rules for which the statute provides may operate unfairly or unjustly in some circumstances.
79 Nevertheless the requirements of certainty or of deterrence or of other objectives performed by particular regulatory sub-regimes within the legislative scheme, may be such that the flexibility for which s 1322 makes provision is not appropriate. Such a conclusion is particularly likely where, as with respect to s 588FF, the sub-regime makes its own particular provision for flexibility. The general words found in s 1322 may need to be read down with respect to any section which is intended to operate to the exclusion of the general power. However, as a remedial provision, s 1322 is to be construed liberally and will be read down only where the specific power is intended to cover the field with regard to the sub-regime under consideration.
192 At [83]-[85] in referring to the text of s 588FF(3) Spigelman CJ said:
83 Insofar as the word "only" indicates a purpose to ensure that a particular procedure is observed, it has that effect in this context by reason of its combination with that part of par (b) that requires an application to be made within the original period of three years.
84 It is the combined effect of the word "only" and the express requirement that an application for an extension of the period must be made within the period, that gives the time limit force and indicates the significance for the legislative scheme of the three year period.
85 The time period identified in par (a) is itself subject to a specific power of extension under par (b). That is a comprehensive provision for extension of time which, in my opinion, is intended to cover the relevant field to the exclusion of s 1322. This conclusion turns on the text of s 588FF(3) and the scope and purpose of Pt 5.7B.
193 After referring to the Harmer Report and the fact that in enacting s 588FF(3) the legislature went further than the Harmer Inquiry and subsequent report recommended, at [112]-[118] Spigelman CJ observed:
112 There is, in my opinion, a broader public interest to be served by allowing persons who have had dealings with companies which become insolvent to conduct their commercial affairs with a degree of certainty about their exposure to having past transactions unravelled.
113 I note the traditional hostility of the common law to the exhumation of bodies which was once described as an "inhuman and barbarous felony". … This policy is informed by considerations of decency and human respect. Nevertheless, in my opinion, there is also a public policy against the disinterring of corporate corpses. Commercial life must at some stage rule off the past and focus energy on the future.
…
115 A creditor or other person who has received the benefit of a voidable transaction is at risk of having to surrender it. The time limit in s 588FF(3) has the effect that at the end of the period of three years, such a person will know whether s/he remains at risk. In a legislative scheme which seeks to balance conflicting commercial interests of this character, that appears to me to be a perfectly reasonable requirement. Those who have an interest, or who represent those who have an interest, to disturb transactions must indicate, within three years, whether they wish to keep open the option of doing so. In this, as in other areas, legal policy favours certainty.
116 As the House of Lords said in another context in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593 at 1608 [46]; [2002] 3 All ER 97 at 112:
"… [L]egal policy favours simplicity and certainty rather than complexity and uncertainty. In the interpretation of legislation this factor is a commonplace consideration. In choosing between competing constructions a court may presume, in the absence of contrary indications, that the legislature intended to legislate for a certain and predictable regime."
117 While s 70 and s 1322 of the Act may constitute contrary indications for many purposes, the legal policy in favour of certainty is nevertheless manifest in the text of s 588FF(3).
118 Section 588FF(3) does not have the effect of requiring all applications to be brought within a short period of time. It does, however, have the effect of requiring those who wish to keep open the option to do so, to determine that they do wish to do so within the three year period and to seek a determinate extension of the period. One thing that must be decided within the three year period is how long the process of deciding whether to pursue voidable transactions will take. Eventually, investigations to overcome deficiencies of information or the pursuit of funding must cease. Parliament has identified a reasonable time for such matters to occur, subject to a single determinate extension of time.
(Citation omitted.)
194 Without grappling with them, the Commissioner and the Liquidators observe that none of these cases concern the operation of s 601AH of the Corporations Act and do not consider whether that section empowers a court to make an order, as was made here, providing that the period between date of registration and the date of reinstatement of each of the relevant companies is to be disregarded for the purposes of s 588FF(3)(a) of the Corporations Act. So much is true. But, it is, as developed below, difficult to distinguish between s 1322, on the one hand, and s 601AH(3)(d) on the other. Both are general powers designed to address or, to adopt Spigelman CJ's description, mitigate, in the case of s 1322, the application of other provisions in the Corporations Act or, in the case of s 601AH(3), the practical effect of deregistration.
195 The Commissioner and the Liquidators submit that to understand the nature and content of the jurisdictional requirement in s 588FF(3) one needs to focus on the language of the subsection as well as the purpose of the provision and its interrelationship with other provisions in Ch 5 and Ch 5A of the Corporations Act.
196 First, the Commissioner and the Liquidators say that s 588FF(3) identifies a beginning date, the relation-back day, and an end date. However, it says nothing about how time is calculated within that period and is silent as to whether days can be disregarded. They submit that is significant because the language chosen by the legislature does not exclude the potential for the period in s 588FF(3)(a) to be affected by an order as to how time is to be calculated within the period otherwise specified therein. Put another way, the Commissioner and the Liquidators submit that if there is a provision elsewhere in the Corporations Act that, on its proper construction in the circumstances it addresses, confers power on a court to disregard time, there is nothing in s 588FF(3) that prevents such an order from operating.
197 Secondly, the Commissioner and the Liquidators submit that s 588FF(3)(b) provides an alternative pathway. Having regard to its language, they submit that s 588FF(3)(b) only deals with the concept of enlarging or extending time, but says nothing about how time is calculated or about whether or why time might be disregarded. Subsection (3)(b) is expressly concerned with circumstances where a liquidator wishes to seek an extension of time and thus postpone the limitation date for any voidable transaction claims. Subsection (3)(b) also says nothing about the circumstances in which a court might be entitled to make an order, supported by another provision in the Corporations Act, about disregarding time or reckoning time. Rather, s 588FF(3) is concerned only with the time within which a voidable transaction claim must be brought. The Commissioner and the Liquidators submit that Order 3 of the Reinstatement Orders does not engage the terms of s 588FF(3)(b) and further that the question of whether the Court had power to make Order 3 is not answered by focussing on the practical effect of the order.
198 To address these submissions and those recorded at [160]-[173] above, it is next necessary to consider the language of the relevant sections, as the Commissioner and the Liquidators urge, having regard to the applicable principles of statutory construction.
199 As to the latter the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose: see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. The parties referred to Project Blue Sky at [69]-[71] where McHugh, Gummow, Kirby and Hayne JJ said:
69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
(Footnotes omitted.)
200 Also relevant is the principle set out in Anthony Hordern at 7 (see [162] above).
201 In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [84], in considering an argument made by the plaintiffs in that case about the power in the Migration Act 1958 (Cth) that could be engaged to remove them from Australia, Gummow, Hayne, Crennan and Bell JJ referred to the principle of statutory construction in Anthony Hordern and continued:
As was explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, the relevant principle of construction has been identified by using a number of different terms. These have included whether the two powers are the "same power" or are with respect to the "same matter", or whether the general power encroaches upon the same subject matter exhaustively governed by the special power. But the central question is whether "the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power".
202 Taken at face value the Commissioner's and the Liquidators' submissions have some attraction, particularly given the relevant facts, which the Commissioner sought to emphasise. However, upon a considered examination and, having regard to the text and context of the two statutory provisions in play and the decisions summarised at [176]-[193] above, they must be rejected. That is for the following reasons.
203 The two sections in issue are s 588FF(3) and s 601AH(3)(d) of the Corporations Act.
204 Section 588FF(3) of the Corporations Act is a specific provision which dictates the time in which a liquidator may bring an application under s 588FF(1). Namely, during the period beginning on the relation-back day and ending on the later of: (a) three years after the relation-back day; or 12 months after the first appointment of a liquidator in relation to the winding up of the company; or (b) within such longer period as the Court orders on an application made by the liquidator during the period in (a). True it is that s 588FF does not address how time is to be calculated between the relation-back day and the alternate specified end dates within which any application under s 588FF(1) is to be made. However, it does not follow that by another route, or the application of a different provision, time can be enlarged or extended other than in accordance with the method prescribed by s 588FF(3)(b) of the Corporations Act.
205 As set out at [182] above in Grant Samuel, in the context of an attempt to use court rules to amend an order made under s 588FF(3)(b) by extending its operation after the period in s 588FF(3)(a) had expired, the High Court held that the term "may only" in s 588FF(3) had the effect of defining the jurisdiction of the court by imposing a requirement as to time as an essential condition of the right under s 588FF(1) to bring proceedings. As the High Court said "[a]n element of that right is that it must be exercised within the time specified". In other words, s 588FF establishes a statutory scheme as to how and when a proceeding for relief under s 588FF(1) of the Corporations Act can be commenced.
206 Section 601AH(3)(d) of the Corporations Act is a provision of general application. It empowers the Court, where it makes an order reinstating the registration of a company, to "make any order it considers appropriate". What is appropriate will depend on the circumstances of each case. But that general provision cannot, in my view, override the explicit power in s 588FF(3) of the Corporations Act.
207 Contrary to the Commissioner's and the Liquidators' submissions, the two powers are with respect to the same matter. To adopt the characterisation in Plaintiff M70 at [84], the Corporations Act "confers only one power to take the relevant action", namely to extend the time in which to bring a proceeding under s 588FF(1), "necessitating the confinement of the generality of another apparently applicable power", s 601AH(3)(d), "by reference to the restrictions in" s 588FF(3).
208 The Commissioner and the Liquidators attempt to characterise Order 3 of the Reinstatement Orders, made pursuant to the power in s 601AH(3)(d) of the Corporations Act, as one which goes only to the method of calculating time because it merely suspends, or directs those affected by the Order to exclude, the period between deregistration and reinstatement of the registration of the relevant companies from the period in s 588FF(3)(a)(i). Order 3 is ancillary to reinstatement of the deregistered companies, such that upon reinstatement, the new liquidators are given the power and time to exercise a power that would only be available during the period in which the company exists and the liquidator is in office. As set out above, the Commissioner and the Liquidators highlight that s 588FF(3)(b) does not address the subject matter in s 601AH(3)(d), that is, it does not confer power to make a calculation of time order nor does it confer power to disregard time.
209 But to characterise Order 3 in that way is to ignore its true operation. As the Applicants submitted, the Commissioner's and the Liquidators' analysis incorrectly commences by reference to the deregistered companies the subject of the Reinstatement Orders. However, the correct analysis is to ask, with reference to the context, what is the purpose of Order 3? The Applicants submit, and I accept, that its purpose is to ascertain the relevant period in which a proceeding under s 588FF(1) can be brought. Accordingly, Order 3 is directly referrable to s 588FF(3)(a) of the Corporations Act. It does not merely go to the method of calculation of time between the two dates identified in s 588FF(3)(a)(i). Rather, it picks up the wording of s 588FF(3) and extends the period within which a proceeding under s 588FF(1) of the Corporations Act can be brought by a method which is other than that prescribed by s 588FF(3)(b). That is, by excluding from the period prescribed in s 588FF(3)(a) the time between deregistration and reinstatement of each of the companies the subject of the Reinstatement Orders.
210 Turning to context, relevantly s 588FF is in Pt 5.7B of the Corporations Act titled "Recovering property for the benefit of creditors of insolvent company". More particularly it is in Div 2 of Pt 5.7B titled "Voidable transactions" which includes provisions governing the commencement of proceedings for orders under s 588FF. The scheme for recovery of voidable transactions and s 588FF itself reflects a deliberate choice by the legislature in relation to the time in which such a proceeding is to be brought by a liquidator. The scheme and s 588FF itself reflect a considered balance between the interests of companies and creditors, on the one hand, and putative defendants, on the other. Relevantly s 588FF contains its own mechanism for extending the limitation period in an appropriate case and is, in that sense, self-contained. As submitted by the Applicants, the Court cannot change the jurisdictional requirements set by the legislature by resorting to other powers.
211 As Spigelman CJ observed in BP Australia at [115] (see [193] above) the time limit in s 588FF(3) serves a purpose. That is, at the end of the period of three years (or such further period as ordered in accordance with the requirements of that subsection) a person who has received the benefit of a voidable transaction will know that he or she is no longer at risk of having to surrender the moneys received. As his Honour somewhat colourfully observed at [113] there is a public policy against the "disinterring of corporate corpses" and commercial life must at some stage "rule off the past" and focus on the future.
212 Section 601AH(3)(d) of the Corporations Act empowers a court, upon reinstatement of a company, to make any order it considers appropriate. In Re Bele & Co Pty Ltd [2017] NSWSC 1824 at [6] Black J "read the power to make any other order that the Court considers appropriate in s 601AH(3)(d) of the Corporations Act as incidental to the Court's power to reinstate a deregistered company, and not as independent of it". In Chalker v Clark [2008] VSCA 92 Osborn AJA (with whom Maxwell P and Dodds-Streeton JA agreed) observed at [39] that the power under s 601AH(3)(b) of the Corporations Act (which was in the same terms as s 601AH(3)(d)) "is one which allows the court to make orders ancillary or complimentary (sic) to the reinstatement of a company" and that it was "for the applicant to persuade the court that it was just to do so in all of the circumstances of the case".
213 In Rockwall Interiors at [18] Barrett J said that the jurisdiction in s 601AH(3) of the Corporations Act should be used principally to remove anomalies or impediments. In Bell Group Ltd (in liq) v Australian Securities and Investments Commission (2018) 358 ALR 624; [2018] FCA 884, which is further discussed below, McKerracher J considered the legislative history behind s 601AH(3)(d) concluding that on its face the provision was wide and wide enough to permit the orders sought in that case. At [115]-[116] his Honour said that:
115 Section 601AH(3)(d) of the Corporations Act, was inserted into the law following the Company Law Review Act 1998 (Cth), when Pt 5A of the law replaced the old Div 8 of Pt 5.6. Unlike its predecessor, s 601AH(3)(d) no longer contained the wording that ancillary orders may be made that seem just for placing the company and all persons in the same position, so far as possible, as if the company's registration had not been cancelled: see the recent discussion by Brereton J in Re Regional Planners Developments Co Pty Ltd (2015) 110 ACSR 457; [2015] NSWSC 1996 (Re Regional Planners) at [24]. His Honour said, and I would respectfully agree, that:
The re-enacted section no longer contains the limitation that appeared in its predecessors to the effect that the order be made for the purpose of placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off. That indicates an intention to remove what was seen in some of the cases as a constraint on the types of orders that could be made [see in that respect, in particular, Re Huntington Poultry Ltd [[1969] 1 All ER 328] (at 330-1); [Deputy Commissioner of Taxation v] Action Workwear [Pty Ltd (deregistered) (1996) 20 ACSR 712] at 722-3]. Parliament, by re-enacting the section, should be taken to have intended to confirm the way in which it had been interpreted to that point, and to reduce the constraints which had been applied to its application. Nonetheless, I do not think the earlier cases, in directing attention to remediating any disadvantage that had been occasioned by the deregistration are irrelevant; they continue to give useful guidance as to the application of the provision, though they must be interpreted having regard to the wider power that now is available.
(Emphasis added.)
116 The exposure draft of the Second Corporate Law Simplification Bill in June 1995, which was accompanied by the 'Report of the Simplification Taskforce', which gave rise to the Bill, observed, as noted in Foxman v Credex National Australian Trade Exchange Pty Ltd (in liq) (2007) 65 ACSR 476; 215 FLR 392; [2007] NSWSC 1422 (Foxman) at [58] by White J, that the reinstatement power had been preserved by s 601AH(2), and in relation to s 601AH(3) that:
As under the current Law, the Court will be able to make such ancillary orders as are just for putting the company and any other person in the same position, so far as is possible, as if the company had not been deregistered (Bill subsection 601AH(3)).
214 Section 601AH(3)(d) is a power that enables a company upon reinstatement to be treated as though it had continued in existence from the date of deregistration or, to adopt McKerracher J's shorthand, it is a provision that enables an "as-you-were" position: see Bell Group at [136]. For example, it could be used to put beyond doubt the validity of transactions apparently undertaken by a company during its period of deregistration (Re Regional Planners at [18]), or, as was the case in Bell Group, to make orders deeming that certain companies held shares in other companies on and from their respective dates of dissolution or, as was the case in some instances (discussed below), to exclude for the purposes of a limitation period, the period of deregistration of a company. Although, as to the latter that has not occurred where, as in this case, there is a specific provision in the Corporations Act dealing with the manner and time within which to bring the type of proceeding in question.
215 The general and somewhat ample power under s 601AH(3)(d) of the Corporations Act must however be exercised having regard to all of the circumstances of the particular case and the broader context of the operation of the Corporations Act. In this case the exercise of the power in s 601AH(3)(d) is subordinate, and must give way, to the specific power in s 588FF(3) in relation to the question of the time within which a voidable transaction proceeding can be brought. Put simply, in my opinion s 588FF(3) covers the field for extensions of time to bring a claim under s 588FF(1) to the exclusion of s 601AH(3)(d).
216 In Saba Bros Tiling (ACT) Pty Ltd v Australian Securities and Investments Commission [2021] ACTSC 47, albeit in obiter, Mossop J reached the same conclusion.
217 That case concerned an application by Saba Bros Tiling (ACT) Pty Ltd for reinstatement of the registration of two companies, 113 134 964 Pty Ltd (formerly Chase Building Group Pty Ltd) and Manhattan Development Pty Ltd. Saba Bros' application was opposed by the former director of Chase, Andrew Jolley, who submitted, among other things, that there would be no utility in reinstating the companies and that Saba Bros had delayed in bringing the application. In considering whether it was "just" to reinstate the companies, Mossop J addressed Mr Jolley's submission that there would be no utility in reinstatement because causes of action relating to voidable transactions were statute barred. His Honour accepted (at [45(b)]) that there were "unavoidable time bars precluding a claim in relation to any voidable transactions" but noted that the making of an incorrect declaration of solvency under s 494 of the Corporations Act was directly related to the existence of the time bars.
218 Relatedly, at [50] Mossop J considered a submission made by Saba Bros that the limitation bar applicable to any claim by the liquidator to recover a voidable transaction could be overcome by the making an order under s 601AH(3)(d) of the Corporations Act. Relying on the decision in Pagnon v Workcover Queensland [2001] 2 Qd R 492, Saba Bros submitted that an order should be made to stop time counting against Chase in relation to any insolvent transactions arising from distributions to shareholders or unreasonable director-related transactions (s 588FC and s 588FDA of the Corporations Act). After noting that Pagnon, insofar as it permitted such an ancillary order, relates to claims against the company rather than by the company Mossop J continued:
Further, it cannot be said that any such actions are more than a possibility at this stage. Finally, because of the failure to seek such an order in the Originating Process, the persons against whom such actions might be brought, other than Mr Jolley, are not on notice of the possibility of such an order, have not been joined as parties to the proceedings and have not otherwise been given the opportunity to be heard. For those reasons, I would not in this case make such an order. I note also that the making of such an order would be contrary to the specific limitation provision in s 588FF(3) and it would not be usual to read that specific provision as subject to variation by a general power such as s 601AH(3)(d). David Grant & Co Pty Ltd v Westpac Body Corporation (1995) 184 CLR 265 is an example, in a corporations context, of the general principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.
219 Finally and for completeness, I note that in Morgan v Sydney Allen Manufacturing Pty Limited (in Liquidation) [2021] FCA 169 Rares J touched upon the question of whether an order could be made under s 601AH(3)(d) of the Corporations Act to extend time under s 588FF(3). However, his Honour did not resolve the issue. After referring to the decisions in Pagnon, Chalker v Clark, Grant Samuel, Saba Bros Tiling (ACT) and David Grant & Co, at [76]-[78] his Honour said:
76 …The position here is slightly different from those cases. First, s 601AH(3) has been amended several times since the decision in Pagnon [2001] 2 Qd R 492 and a provision, now in the terms of s 601AH(3)(d), has been retained. That provision enables the Court to deal specifically with the situation of a company that, at relevant times, has not existed while a limitation period would be running. It may well be possible for the Court to exercise the specific power in s 601AH(3)(d) to prevent a statutory limitation provision running where it would be just to do so.
77 Secondly, as Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said in The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421:
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
78 It may be open to argue that the specific power in s 601AH(3)(d) is within that principle in its application to the similarly specific limitation period in s 588FF. However, it is not necessary for me to resolve this issue now. …
220 I note that while Morgan was overturned on appeal, this issue was not considered by the Full Court: see McMillan Investment Holdings Pty Ltd v Morgan (2023) 295 FCR 543. In any event Rares J made no more than passing observations, raised a potential issue but did not determine the question that has fallen to me to determine.
221 For the reasons set out above I am of the view that s 588FF(3) of the Corporations Act "covers the field". As the parties accept, s 588FF is jurisdictional, that is the Court only has jurisdiction to hear a claim under s 588FF(1) of the Corporations Act if it is brought within the period specified in s 588FF(3)(a) or that period extended by an order made in accordance with s 588FF(3)(b). There is no power to extend the period within which a liquidator can bring an application under s 588FF(1) other than as specified in the section. More particularly, the power in s 601AH(3)(d) of the Corporations Act to make any other order the Court considers appropriate when reinstating the registration of a company cannot be used to extend the time under s 588FF(3) for the purposes of bringing an application under s 588FF(1).
222 It follows that in my view there was no power to make Order 3 of the Reinstatement Orders and for that reason Order 3 should be discharged.