Cussen, in the matter of Monarch Tower Pty Ltd (in liquidation) [2025] FCAFC 137 (9 October 2025)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

1. The application for an extension of time and leave to appeal filed 28 August 2024 is granted.
2. The appeal is dismissed.
3. Any application for costs is to be made in writing filed within 14 days of these orders, limited to three pages.
4. If an application for costs is made, it must be responded to in writing within 28 days of these orders, limited to three pages.
5. Subject to any further order, costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

1. The application for an extension of time and leave to appeal filed 30 May 2025 is granted.
2. The appeal is dismissed.
3. Any application for costs is to be made in writing filed within 14 days of these orders, limited to three pages.
4. If an application for costs is made, it must be responded to in writing within 28 days of these orders, limited to three pages.
5. Subject to any further order, costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

1. The application for an extension of time and leave to appeal filed 28 August 2024 is granted.
2. The appeal is dismissed.
3. Any application for costs is to be made in writing filed within 14 days of these orders, limited to three pages.
4. If an application for costs is made, it must be responded to in writing within 28 days of these orders, limited to three pages.
5. Subject to any further order, costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

RILL TRADING RESOURCES INC (BRITISH VIRGIN ISLANDS COMPANY NUMBER 448249)

1. The application for an extension of time and leave to appeal filed 28 August 2024 is granted.
2. The appeal is dismissed.
3. Any application for costs is to be made in writing filed within 14 days of these orders, limited to three pages.
4. If an application for costs is made, it must be responded to in writing within 28 days of these orders, limited to three pages.
5. Subject to any further order, costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

SINOACE HOLDINGS LTD (BRITISH VIRGIN ISLANDS COMPANY NUMBER 1474809)

1. The application for an extension of time and leave to appeal filed 28 August 2024 is granted.
2. The appeal is allowed.
3. The orders made on 4 July 2024 in proceeding VID 31/2024 are set aside.
4. The order made on 13 November 2024 in proceeding VID 31/2024 is set aside.
5. Paragraph 2 of the orders made on 4 July 2024 in proceeding VID 410/2022 is set aside and in lieu thereof it is ordered that the application by the plaintiff in proceeding VID 410/2022, that the time for making an application under s 588FF(1) of the Corporations Act 2001 (Cth) in respect of any voidable transactions involving the second appellant and Sinoace Holdings Ltd (British Virgin Islands Company Number 1474809) be extended to 22 January 2024, be remitted to a judge of this Court, other than the primary judge, for determination.
6. Any application for costs (including the costs of proceeding VID 31/2024) is to be made in writing filed within 14 days of these orders, limited to three pages.
7. If an application for costs is made, it must be responded to in writing within 28 days of these orders, limited to three pages.
8. Subject to any further order, costs will be determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. Monarch Tower Pty Ltd (in liq) was wound up on 28 August 2019 and Mr Neil Robert Cussen was appointed as one of the joint and several liquidators. The other appointee has since retired. The relation back day is 22 July 2019. Mr Cussen has reason to believe that there are grounds to pursue voidable transaction claims involving Monarch pursuant to Division 2 of Part 5.7B of the Corporations Act 2001 (Cth). In these reasons each reference to a statutory provision is to the Corporations Act unless otherwise specified. To that end, he applied on 21 July 2022 for an order pursuant to s 588FF(3) concerning 10 individuals and corporations as putative defendants to voidable transaction claims. That was proceeding VID 410/2022. It will be noticed that the application was made one day prior to expiry of the three year limitation period at s 588FF(3) for the making of an application under s 588FF(1). Nonetheless, he obtained the extension order on 9 March 2023: Cussen, in the matter of Monarch Tower Pty Ltd (in liq) [2023] FCA 192 (PJEO). The order extended time for the commencement of any proceedings to 22 January 2024. We refer to this as the extension order, and in doing so prefer to avoid the terminology of "shelf order", which sometimes refers to unidentified transactions or unidentified defendants, or some combination of each.
2. The extension order specified "each of any of" Jian Lin, Li Shao, Anthony Thomas Gilbert, Shan Shui, Zuccubarr Pty Ltd, Timswee Pty Ltd, Payton Capital Ltd, NWC Finance (No 5) Pty Ltd, Rill Trading Resources Inc (British Virgin Islands Company Number 448249) and Sinoace Holdings Ltd (British Virgin Islands Company Number 1474809) (Sinoace BVI).
3. On the last day of the extended period, Mr Cussen caused to be filed separate proceedings against Sinoace BVI and Sinoace Holdings Ltd (Hong Kong Company Registration Number 2918405) (VID 31/2024), Zuccubarr and Zeninvest Pty Ltd (VID 32/2024), Payton and 14 other respondents (VID 33/2024), Timswee (VID 34/2024) and Rill Trading and Rill Trading Resources Ltd (VID 35/2024).
4. It is convenient to refer to the proceedings as the Sinoace BVI proceeding, the Zuccubarr proceeding, the Payton proceeding, the Timswee proceeding and the Rill Trading proceeding respectively and collectively as the 2024 proceedings.
5. Mr Cussen did not move with alacrity to serve the 2024 proceedings. Rule 2.7 of the Federal Court (Corporations) Rules 2000 (Cth) provides that "as soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit" on each of the respondents. The first date for the hearing of the 2024 proceedings was subsequently fixed for 2 February 2024. The proceedings were not served in time. Informal notification was given by email to some of the respondents, or their solicitors, which notified the first date for case management and foreshadowed an intention to apply for an extension of the time to serve the 2024 proceedings.
6. On 2 February 2024, counsel for Monarch and Mr Cussen informed the Corporations List Duty Judge that, subject to any contrary direction of the Court, Mr Cussen intended to proceed with the public examination of certain individuals prior to prosecuting the 2024 proceedings. The matter was adjourned to 16 February 2024. In the meantime, there was correspondence between the solicitors for Monarch and Mr Cussen and solicitors representing some of the respondents concerning the failure to serve the proceedings within time. Those respondents did not waive the irregularity and foreshadowed applications to permanently stay the respective proceedings. On 16 February 2024, some of the respondents were represented by counsel before a different Corporations List Duty Judge and foreshadowed an application for a permanent stay of the proceedings because service had not been effected as required by the Corporations Rules. The 2024 proceedings were then docketed to the primary judge.
7. Between 16 February and 7 March 2024, solicitors acting for Monarch and Mr Cussen purported to serve the 2024 proceedings. That was met with applications by the named respondents for a permanent stay, amongst other orders. Monarch and Mr Cussen responded with multiple applications filed on 12 March 2024 for orders extending the time for service pursuant to r 1.10 of the Corporations Rules and/or r 1.39 of the Federal Court Rules 2011 (Cth).
8. The competing applications were heard by the primary judge on 3 and 5 June 2024. For reasons published on 4 July 2024, his Honour dismissed each application to extend time and ordered that each proceeding be summarily dismissed: Cussen, in the matter of Monarch Tower Pty Ltd (in liq) v Sinoace Holdings Ltd [2024] FCA 716 (PJ). Subsequently, his Honour published reasons for making costs orders on 13 November 2024: Cussen, in the matter of Monarch Tower Pty Ltd v Sinoace Holdings Ltd (No 2) [2024] FCA 1309.
9. On 1 August 2024, Mr Cussen and Monarch filed six notices of appeal against the orders made on 4 July 2024. Five were not accepted for filing until 2 August 2024, but that is a matter of no present consequence. Between 5 August 2024 and 9 July 2025, Mr Cussen and Monarch filed six amended notices of appeal against the orders. The notices of appeal in order are: VID 748/2024 (Sinoace BVI proceeding), VID 749/2024 (Zuccubarr proceeding), VID 751/2024 (Payton proceeding), VID 752/2024 (Timswee proceeding) and VID 753/2024 (Rill Trading proceeding). There is a further notice of appeal concerning Sinoace BVI. It is proceeding VID 754/2024 and concerns separate orders that the primary judge also made on 4 July 2024 relating to the extension application. It was accepted before the primary judge that Sinoace BVI was not served with and did not otherwise have notice of the extension application. As we explain, that led the primary judge to set aside the extension order to the extent that it affected the rights of Sinoace BVI.
10. Separately, between 28 August 2024 and 30 May 2025, Mr Cussen and Monarch filed six applications for extensions of time and for leave to appeal the orders of 4 July 2024. Those applications were brought because of uncertainty in the mind of Mr Cussen about whether the orders made by the primary judge were interlocutory or final and whether the primary judge had made summary judgment orders within the meaning of s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). If interlocutory, leave to appeal is required pursuant to s 24(1A) of the FCA Act; and summary judgment pursuant to s 31A is taken to be interlocutory: s 24(1D)(b) FCA Act.
11. There are additional layers of complexity. The appeal grounds seek to raise arguments that were not put to the primary judge and during the hearing of the appeal, counsel for Mr Cussen and Monarch raised further additional arguments that are not mentioned in the grounds of appeal.
12. Thus, this Court must resolve the following issues:

(a) Is leave to appeal required, and if so should it be granted?;

(b) Is an extension of time required, and if so should it be granted?;

(c) Should leave be granted to argue matters not put to the primary judge?;

(d) If (a) and (b) or (c) are resolved in favour of Mr Cussen and Monarch, did the primary judge err in the exercise of his discretion as contended in the appeal grounds?

1. For the reasons that follow, we have concluded that leave to appeal is required and with it, in each case, an extension of time is required. Leave is required to advance arguments that were not put to the primary judge, which leave is refused. Save for one appeal, there is no merit in any of the appeal grounds concerning the dismissal of the applications to extend time for the service of the 2024 proceedings and the consequential entry of summary judgment in each matter.
2. One appeal succeeds against the orders made by the primary judge concerning the Sinoace BVI proceeding (appeal VID 754/2024) where his Honour set aside the extension order as against it, determined that he had no power to re-hear the extension application and dismissed the proceeding.
3. In the balance of these reasons, it is convenient to collectively reference Mr Cussen and Monarch as the applicants/appellants as the context requires.

1. We adopt the pellucid summary of the primary judge at PJ [16] - [29] (where 'the company' is a reference to Monarch):

The company and the winding up order

The company was incorporated on 1 July 2015, and at all relevant times had three directors - Anthony Gilbert, Jian Lin and Li Shao. It operated a property development business. Its only project involved the acquisition in May 2016 of land at 256-266 City Road, Southbank, Victoria. The company intended to construct a residential building on the land. It obtained funding from various parties in connection with the development of the land in the sum of approximately $34.9 million. The company ceased trading in January 2018. The land was subsequently sold in June 2018 for $38 million.

On 22 July 2019, Mr Chen Hu, a shareholder of the company, filed a winding up application against the company in the Supreme Court of Victoria, which on 28 August 2019 ordered that the company be wound up and appointed the liquidator for the purposes of the winding up.

The liquidator says that the current claims of creditors against the company total just over $41 million. In his view, the company exhibited signs of insolvency from as early as 30 June 2016, and it was insolvent from at least 3 August 2017.

Liquidator's investigations

Upon the liquidator's appointment, he issued letters to the company's directors requiring the delivery up of all books and records of the company in their possession or control. The liquidator received a response from Mr Shao (in September 2019). Mr Lin and Mr Gilbert did not respond.

In the first three months of his appointment, the liquidator sought to obtain books and records of the company from a number of third parties, including from financial institutions, VicRoads, the Australian Taxation Office, the company's former accountants and lawyers, and from searches of the Personal Property Securities Register and the Land Titles Office database.

The liquidator formed the view that the books and records obtained were insufficient for him to understand the particulars and purpose of many transactions undertaken by the company.

In May 2020, he obtained approximately 900 gigabytes of documents from the company's former IT services provider, ComputerTalk.

Given the volume of the material received, the liquidator determined that it would not be commercial to embark on the process of reviewing the documents without receiving external funding.

From May 2020 to November 2020, he entered into negotiations with a funder to obtain funding to review the documents provided by ComputerTalk.

On 26 November 2020, the company, the liquidator and the funder entered into a funding agreement to enable him to be funded to conduct the review.

The liquidator and his staff commenced reviewing the documents. In his affidavit dated 24 April 2024, the liquidator deposed that while the documents obtained from ComputerTalk assisted his understanding of the transactions undertaken by the company, and the potential legal claims for recovery for the benefit of its creditors, he still did not have sufficient material to correctly and fully explain the nature and purpose of the transactions.

By June 2021 - three years ago - the liquidator had identified potential claims totalling more than $27 million against various persons, which he listed in his evidence as follows:

Zuccubarr Pty Ltd (ACN 006 062 719) / Zeninvest Pty Ltd (ACN 104 815 876)

Between July 2021 and May 2022, the liquidator discussed with the funder the possibility of further funding to commence public examinations and proceedings against the company's directors and potential respondents.

On 16 May 2022, a second funding agreement was entered into to provide such funding.

1. Between October and December 2023, the appellants' solicitors and counsel prepared initiating documents for the commencement of the public examinations. The originating process was filed on 6 December 2023, and summonses and orders for production were issued to various persons and entities. The public examinations were listed by the Court to be held over five days from 24 to 28 June 2024.

1. The primary judge first determined whether the 2024 proceedings validly named persons and corporations as respondents who were not listed in the extension order. He concluded they were not because on a plain construction of the extension order it is confined to the persons named therein: PJ [81] - [106]. That finding is not challenged.
2. Next, the primary judge addressed an argument of Sinoace BVI that it was denied procedural fairness because it was not served with or given informal notice of the extension application and the affidavit in support, despite the primary judge being informed during the hearing that each putative defendant had received notice. His Honour had considered, as a matter relevant to his discretion to extend time, that none of the putative respondents raised any issue of prejudice in the event that time be extended: PJ [19].
3. His Honour had no difficulty in concluding that the denial of procedural fairness entitled Sinoace BVI to relief that the extension order be set aside as against it: PJ [107] - [117]. That order is not challenged, but it founds a unique ground in the separate Sinoace BVI proceeding appeal from matter VID 410/2022. The contention is that having set aside the extension order against Sinoace BVI, the primary judge erred in holding that he had no power to re-hear the application concerning it because the application was spent: PJ [13], [118] - [148]. In any event, even if that were not so, the primary judge reasoned that he would not allow the nunc pro tunc application with respect to Sinoace BVI: PJ [149].
4. At PJ [151] - [154], the primary judge dispensed with the service application in so far as it concerned Sinoace Holdings Hong Kong on the simple ground that it was not incorporated until after the facts asserted to give rise to the voidable transaction. That finding is not challenged by the appellants.
5. At PJ [155] - [156], the primary judge dispensed with two miscellaneous contentions: that the extension order should be set aside against all parties because it is not severable and that the entirety of the claims of the appellants should be dismissed because they are hopeless. These findings are not challenged by any notice of contention.
6. From PJ [158], the primary judge commenced his consideration of the applications to extend time to effect service of each voidable transaction proceeding nunc pro tunc. His Honour determined that the last day for service was 28 January 2024, being at least five days before the return date fixed for the first mention of the applications. His Honour noted that Mr Cussen accepted that he had failed to serve each proceeding in time and therefore had breached both r 2.7 of the Corporations Rules and r 8.06 of the Court Rules: PJ [160].
7. The primary judge then turned to the usual considerations that enliven the discretion to extend time pursuant to r 1.39 of the Court Rules, whereby the Court may extend or shorten any time fixed before or after the time has expired. This general power is applicable: r 1.10 Corporations Rules. The primary judge identified as relevant considerations in the matters before him the period of delay and whether there was a satisfactory explanation for it: PJ [163] - [164]. His Honour also listed a summary of relevant principles from the decision of the Victorian Court of Appeal in Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; (2017) 54 VR 325 at PJ [165]. Of particular relevance to the matters before him, the primary judge focused on these propositions from Horne (which at [55] set out and adopted the summary of Judd J as the primary judge in that case), which dealt with the equivalent extension of time rule in proceedings in the Supreme Court of Victoria:

(9) An extension under r 5.12 would not usually be granted to enable a plaintiff to further investigate the merits of the claims or obtain litigation funding.

(10) It is the duty of a plaintiff to serve legal process promptly. The obligation is more acute in the case of a proceeding commenced under s 588FF, arising directly under r 2.7 in relation to an Originating Process, and more generally under s 25 of the Civil Procedure Act.

(11) Even in the absence of a requirement under the rules to serve as soon as practicable, an applicant for an extension under r 5.12 would be required to demonstrate reasonable steps had been taken to serve the court process.

(12) A decision not to serve, made by a plaintiff for forensic or strategic purposes, is antithetical to the duty to serve promptly.

(13) An extension will not ordinarily be granted to facilitate a plaintiff's decision not to serve process on a defendant, whose whereabouts were known and who might readily be served.

(14) A delay in service of a proceeding commenced under s 588FF, in contravention of the applicable rules, is particularly serious if it occurs after the expiration of the limitation period.

1. The primary judge accepted on the evidence before him the overarching submission of each of the respondents which he summarised at PJ [166]:

In this case, it was submitted on behalf of all respondents who appeared that the liquidator deliberately and strategically took it upon himself not to take any steps to serve the originating process on the respondents; that he knowingly allowed the time for service required by r 2.7 of the Corporations Rules and r 8.06 of the [Court Rules] to expire, including because it would be "less onerous" on him to delay service until after the completion of certain public examinations; and that in those circumstances, having arrogated to himself a decision to delay service that was not his to make, his application for nunc pro tunc orders to make good late service should be refused.

1. At PJ [167], the primary judge set out, and adopted, an extensive extract from the written submissions of senior counsel for Zuccubarr. The submission emphasised that by no later than 31 January 2024, Mr Cussen knew that he was required to make an application for an extension of time to effect service but unilaterally determined not to do so until the conclusion of the public examinations which he anticipated would occur by mid-April 2024. That was a deliberate decision to withhold prosecution of the proceedings in order to accommodate his preference. It was not a course consented to by the respondents. In consequence, he advertently permitted each proceeding to become stale for forensic and strategic purposes eliding only with his interests. In doing so he "arrogated for himself control over when service should occur, with the clear intention to affect a stay of the proceedings, which he intended to be until at least 30 June 2024, so that he could first conduct and complete public examinations which he had failed to diligently commence during the 18 month extension period he had previously been granted by the court".
2. The submission was stridently critical of the decision by Mr Cussen to put aside service of the proceedings in order to conduct further investigations into the merits of each claim. The submission continued that in those circumstances, Mr Cussen should not be granted any further indulgence. Delay is more serious where it occurs after expiry of the initial three year limitation period, which is the present case. There was further delay in the applications to extend time for service, which is also unexplained.
3. The primary judge summarised his reasons for refusing to extend time at PJ [169] and [171] respectively:

The liquidator's conduct in arrogating to himself the role of deciding when to effect proper service on the respondents, flying in the face of the Rules and the applicable principles, is made even worse in light of the leisurely way he has approached his task since his appointment, and his unfortunate practice of making court applications on the final day of limitation periods.

The respondents in these proceedings are all facing claims in which the liquidator challenges transactions which took place in 2017. His explanations for the delay put in support of his nunc pro tunc applications are wholly inadequate, for the reasons I have detailed above.

1. Accordingly, the primary judge ordered that each application to extend time be refused and that each proceeding be summarily dismissed; giving as an additional reason for the dismissal of proceeding VID 410/2022 that no further relief can be granted in respect of it: PJ [173].

1. The time limited for the filing of a notice of appeal from a final order is 28 days: r 36.03 of the Court Rules and s 30AF of the FCA Act. If the orders of 4 July 2024 were final, the appeals were brought within time. If the orders were not final, the time limited for an application for leave to appeal is 14 days: r 35.13 of the Court Rules. In that event, an extension of time is required for leave to appeal: r 35.14.
2. The applicants contend that leave to appeal is not required, as the orders are final, but in the alternative submit that leave should be granted if that point is determined adversely to them. The respondents variously submit that leave to appeal and an extension of time is required in each appeal, which should be refused.
3. The leave and extension of time applications are in the same form. The drafting is prolix. The contention is that the orders made by the primary judge are attended by sufficient doubt to warrant a grant of leave to appeal pursuant to s 24(1A) of the FCA Act by reference to the grounds in each notice of appeal. Further, it is contended that substantial injustice will be caused to the applicants in that the proceedings were not commenced for personal benefit; rather for the benefit of the creditors of Monarch and there are reasonable prospects of success on the merits of the underlying claims. The applications are supported by multiple affidavits made by Mr Cussen on 24 and 29 April, 9, 20, 30 and 31 May and 28 August 2024. He was not cross-examined.
4. Leave to appeal is required for two reasons. First, the primary judge summarily dismissed each proceeding. Having refused the applications to extend time for service, the Court did not have jurisdiction. Service goes to the jurisdiction of the Court to determine the proceedings: Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 323-324, Dixon CJ, Williams and Webb JJ. The proceedings therefore had no reasonable prospect of success and summary dismissal was the correct order. An order which summarily dismisses a proceeding is interlocutory: Dimitrovski v Boland [2023] FCAFC 86 at [21] - [25], Markovic, Downes and Kennett JJ.
5. That reasoning should not be conflated with the validity of each proceeding. Section 51 of the FCA Act provides that no proceeding commenced in this Court is "invalidated by a formal defect or an irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court". It may be accepted that a failure to serve as required by r 2.7 of the Corporations Rules is an irregularity that is capable of cure by a successful application to extend the time for service. The proceeding is not a nullity: MBD Management Pty Ltd v Butcher [2010] FCA 1071 at [43], [91] - [92], Edmonds J; Re Equititrust Ltd (in liq) (Receivers and Managers Appointed) (No 1) [2018] FCA 39 at [40] - [43], Foster J.
6. But that is not to the present point. The reliance by Mr Evans KC for the applicants on s 51 of the FCA Act as the foundation for the submission that it was for the respondents to apply to set aside service which "in fact" had been effected, although beyond the time determined by r 2.7 of the Corporations Rules, is misplaced. Service could not be validly effected after 28 January 2024 in that each proceeding was stale, absent waiver of the defect. There was no waiver by any defendant. Thus, service could not be effected absent an extension of the time limited for service: Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ASCR 442 at [75], Tobias JA (Hodgson and Ipp JJA agreeing).
7. The second reason is that an application to extend time for the commencement of a proceeding pursuant to s 588FF(3)(b) of the Corporations Act does not finally determine the underlying rights of the parties in the principal cause, with the consequence that appeals from such orders are interlocutory: Gong v Nipps [2024] FCAFC 102; (2024) 305 FCR 55 at [52] - [54], McElwaine, McEvoy and Neskovcin JJ.
8. Hence, the requirement for leave to appeal at s 24(1A) of the FCA Act applies. The well-understood considerations are engaged: Décor Corporation Pty Ltd v Dart Industries Ltd [1991] FCA 844; (1991) 33 FCR 397 at 398 - 399, Sheppard, Burchett and Heerey JJ. Accepting there are no rigid rules, it is usual to consider whether "the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court" and whether substantial injustice will result if leave is refused.
9. We have the benefit of full argument on the appeal grounds as ultimately pressed. For the reasons stated in Parts E and G, the grounds in the discretionary error appeals were not devoid of merit even though we have rejected each. The ground in VID 754/2024 raises a substantial question of whether this Court should follow a decision of the Queensland Court of Appeal. We also accept in a general sense the evidence of Mr Cussen in his affidavit of 28 August 2024, that if leave is refused substantial injustice will be suffered by himself, Monarch and its creditors caused by the inability to pursue substantial monetary recovery proceedings. A grant of leave to appeal is justified in each matter.

E. SHOULD TIME BE EXTENDED FOR LEAVE TO APPEAL?

1. The usual considerations tend to overlap with whether leave should be granted: Tu'uta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [40], Gordon, Edelman and Steward JJ. For the same reasons they favour an extension of time. The additional consideration is the length of delay and whether there is an adequate explanation for it coupled with counterbalancing prejudice to the respondents. Mr Cussen explains in his 28 August 2024 affidavit the reason for delay, being uncertainty whether the extension orders of the primary judge were final or interlocutory. It was initially considered that the extension orders were final and the notices of appeal were filed in time. The position was reconsidered when, on 14 August 2024, the respondents took the point in some notices of objection to competency. The applications for leave to appeal were filed shortly thereafter.
2. The distinction between final and interlocutory orders is often a difficult one to draw. It is a common mistake for even experienced lawyers to misunderstand it. There is no real prejudice to the respondents if time is extended. The administration of justice in these proceedings justifies an extension. That order will be made in each proceeding.

1. We address this appeal first, where the point is unique to Sinoace BVI. The contention is that the primary judge erred in concluding that once the extension order directed to Sinoace BVI was set aside, the Court had no power to re-hear the extension application because it was spent: PJ [148].
2. The primary judge considered that he was bound to follow the majority reasons of the Queensland Court of Appeal in Greig v Stramit Corporation Pty Ltd [2003] QCA 298; [2004] 2 Qd R 17 for the proposition that once a court has determined an application under s 588FF(3)(b) it cannot re-hear the application if subsequently the extension order made is set aside in part as against one or some creditors: Williams and Jerrard JJA. The appellants contend that this Court should reach the contrary conclusion aligned with the dissenting reasons of Fryberg J.
3. Section 588FF relevantly provides:

Courts may make orders about voidable transactions

(1) Where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of section 588FE, the court may make one or more of the following orders:

(a) an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction;

(3) An application under subsection (1) may only be made:

(a) during the period beginning on the relation-back day and ending:

(i) 3 years after the relation-back day; or

(ii) 12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

1. Mention should also be made that the general power at s 1322 to, inter alia, extend time periods does not apply. Section 588FF(3) covers the field: BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 at [85], [129], Spigelman CJ, Mason P and Handley JA agreeing; Gordon v Tolcher [2006] HCA 62; (2006) 231 CLR 334 at [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2015] HCA 8; (2015) 254 CLR 477 at [23].
2. Whether a liquidator's application for an extension of time pursuant to s 588FF(3) is "spent" once the extension is granted, and hence the power cannot be re-enlivened if the extension order is later set aside in part, is a difficult question on which there is division in appellate authority.
3. Before considering the authorities, it is necessary to have a clear understanding of what occurred before the primary judge. Mr Cussen applied by originating application dated 21 July 2022, in proceeding VID 410/2022. He sought an order pursuant to s 588FF(3)(b) extending the time for the making of an application under s 588FF(1) to, and including, 22 January 2024 "with respect to any voidable transaction involving" Monarch and "each or any of", amongst others, Sinoace BVI. He obtained that order on 9 March 2023. The order did not reserve liberty to apply. Sinoace BVI filed a Notice of Appearance in the proceeding subsequently commenced against it on 15 March 2024 (VID 31/2024). That did not operate as a submission to jurisdiction or a waiver of irregular service as, concurrently and consistently with rr 10.11 and 13.01(1) and (3) of the Court Rules, it filed an application for a declaration that the originating process had not been duly served, that it be set aside against it and that the proceeding be permanently stayed against it.
4. The primary judge determined that because Sinoace BVI as "the target of an extension application" had not been given the opportunity to be heard upon it, it was "entitled to have the order set aside": PJ [115]. The reference by the primary judge for that proposition to Williams (as liquidator of Willahra Pty Ltd (in liq)) v Kim Management Pty Ltd [2012] QSC 143; (2013) 1 Qd R 387 at [22] confirms that the primary judge set aside the extension order ex debito justitiae. We are not required in this appeal to resolve differences as to whether the entitlement to have an order made is as of right or is discretionary: cf Fortress Credit Corp (Aust) II Pty Ltd v Fletcher [2014] NSWCA 148; (2014) 87 NSWLR 728 at [102] - [107], Bathurst CJ.
5. The order made by primary judge on 4 July 2024 provides:
   1. In so far as it applied to Sinoace Holdings Limited (British Virgin Islands company Number 1474809), the order made on 9 March 2023 be set aside.
   2. The proceeding be dismissed.
6. As a matter of general principle, when an order is set aside ex debito justitiae, the application is heard de novo: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589, Rich J_; Tycoon Holdings Ltd v Trencor Jetco Inc_ [1992] FCA 25; (1992) 34 FCR 31 at 33, Wilcox J; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 4, Gibbs J; Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 at [20] - [21], Gillard AJA. The primary judge did not proceed upon a de novo hearing because, after surveying the conflicting authorities, he considered himself bound to follow the majority reasons of Williams JA and Jerrard JA in Stramit Corporation: PJ [145]. He did not consider the decision as plainly wrong and, in any event, agreed with the reasoning: PJ [146] - [147].
7. Stramit Corporation stands for three propositions: (1) an order made on an ex parte application under s 588FF(3)(b) confers a right ex debito justitiae on a person affected to have it set aside; (2) in general, there is no power to grant a blanket extension of time on such an application; and (3) once an ex parte order is made, the proceeding is finally disposed of and is unaffected by any subsequent order to set aside against a particular creditor. The second proposition is wrong, as determined by a five-member bench of the New South Wales Court of Appeal in Fortress Credit.
8. It is the third proposition that is central to this appeal. Helpfully the primary judge summarised the salient facts of Stramit Corporation and the result at PJ [126] - [131]:

In that proceeding, on 7 September 2000 Mullins J had made an order on an ex parte application extending the time within which the liquidators might institute proceedings pursuant to s 588FF(1).

On 16 May 2002, Chesterman J set the order aside in so far as it applied to Stramit Corporation Pty Ltd (Stramit).

On 5 June 2002, the liquidators applied for an order joining Stramit in the proceedings and a consequential order extending the time for bringing proceedings until 30 June 2002.

On 1 October 2002, Mullins J on the original application filed on 31 August 2000 made an order adding Stramit as a party and extending the time pursuant to s 588FF(3)(b).

Stramit appealed and sought to have the 1 October order set aside.

By a majority (Williams and Jerrard JJA, Fryberg J dissenting), the Full Court held that the effect of Chesterman J's order was that Stramit was not a creditor affected by the order made on 7 September 2000, making it necessary for the liquidators to commence a fresh proceeding seeking an extension of time - which, as is the case here, they could not do because the time limit had expired.

1. Something should be said about the form of the order made by Mullins J. It did not identify any putative defendant or category of claim. It provided simply:

Pursuant to Section 588FF(3) of the Corporations Law, the time within which applications may be brought under Section 588FF(1) by the applicants be extended to end on 11 September 2001.

1. Williams JA reasoned in part as follows at [71]:

My concern is that the original ex parte order has not been set aside. In this case the order made by Mullins J on 7 September 2000 still stands as a final order of the court. Effectively all the order of Chesterman J has done is to make it clear that that order does not apply to Stramit because that company was denied the opportunity of being heard. The order stands with respect to all other creditors of the company, and is, prima facie, an order finally disposing of the application. Stramit was not identified as a party to the original application as at 7 September 2000 and, as has been recognised by both Austin J and Mullins J, it is necessary to somehow have a proceeding against Stramit before an order binding upon it can be made. There was an application made to the court by the document filed 31 August 2000 and there was a final order of the court, disposing of all issues raised by that application, made on 7 September 2000. The fact that it was subsequently held that that order was not binding on Stramit, who was not a party to that application, does not mean that the proceeding commenced by the application has not been fully and finally determined by the order of 7 September 2000.

1. His Honour returned to that aspect at [78] - [81]. It is not necessary to set out the passages, save to note that his Honour maintained his view, despite the contrary reasoning of Austin J in Brown v DML Resources Pty Ltd (No 2) [2001] NSWSC 590; (2001) 52 NSWLR 685 at [65] - [66], that no authority supported "the proposition that the original application would remain extant so far as the creditor held to be excluded from the operation of the order originally made was concerned" and "the original ex parte order was not set aside; it still stands so far as every creditor of the company, other than Stramit, is concerned": [78].
2. Jerrard JA agreed with Williams JA and provided short reasons for doing so. At [117], his Honour observed "with due respect" to the contrary view of Fryberg J, as follows:

The situation when the ex parte order actually made by Mullins J was set aside on 16 May 2002 "in so far as it applies to Stramit Corporation Ltd" was the same, in my judgment, as the position that would have existed had the order made by Mullins J on 7 September 2000 specifically excluded Stramit. That position is that subject to appeal, the proceeding on the ex parte application inasmuch as it was an application to which Stramit should have been a respondent, was concluded by the order of Chesterman J but adversely to the liquidators. There was no extant but incomplete proceeding on that application in which some further step still remained to be taken, and no further order was required to dispose of that application, either against Stramit or as to the application made in general terms against all possible respondents.

1. To the contrary, Fryberg J reasoned that that the order made on 7 September 2000 was set aside in part, which he regarded as "a statement of historical fact" at [145] and continued:

With effect from 16 May 2002 at the very least, that order no longer affected Stramit. Probably the order of 16 May 2002 should be construed as setting aside the original order ab initio, lest it be argued that it was effective in the period up to that date; but that need not be decided at this point. Once the order was set aside in part, the liquidators no longer had all of the relief for which they had applied in the original application.

1. His Honour next reasoned that the original application had not been finally disposed of: [146] - [148]. In part, he observed:

There is no doubt that even after 16 May 2002 so much of the order of 7 September 2000 as remained was a final order of the court. However that does not answer the question. Nor is it answered by the fact that the liquidators were no longer entitled to get all the relief for which they had applied. Both of these matters are relevant to the question, but they do not conclude it.

When on an application a court makes a final order granting the applicant less relief than was sought in the application, the question whether the application has been finally disposed of can be resolved only by examining what occurred at the hearing...

In the present case Chesterman J did not set aside the order as against Stramit with the intent or for the purpose of ensuring that the original application fail against that company; in other words, on the merits. He did so to enable a hearing to take place.

1. Accordingly, Mullins J was correct to conclude that the liquidators' application had not been finally disposed of: [149].
2. BP Australia concerned a liquidator's claim that voidable transactions against a number of creditors should be set aside, including payments of over $5.7 million to BP. The liquidators did not commence proceedings within the three year period. They applied for an extension of time. There were multiple applications before Austin J resulting in seven judgments. The application to extend time was heard ex parte and time was extended. BP succeeded in an application to set aside the order as affecting it. Many issues were dealt with by the Court of Appeal, including the availability of s 1322 on an application pursuant to s 588FF, which as we have noted the Court held was not available. In reaching that conclusion, Spigelman CJ referenced the decision of Mullins J in Greig v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298; (2002) 171 FLR 41, where her Honour determined that s 1322 could not be availed of: [50], [70]. Mullins J was upheld on that point in Stramit Corporation. In what is a postscript to his reasons, Spigelman CJ noted that the Court of Appeal decision in Stramit Corporation was delivered after he had drafted his reasons: [195]. Then, in obiter reasoning, his Honour set out an extensive analysis of the Court of Appeal decision and reached two conclusions. One, to confirm his earlier conclusion that a general order may be made against unspecified creditors: [200] - [204]. The other at [207] that:

I see considerable force in the dissenting opinion of Fryberg J that the effect of the subsequent order, which is in identical terms to that of Austin J in the present proceedings, had the consequence that the original proceedings were not finally disposed of. The events in Greig differ in that the original order extending time did not, as the orders made by Austin J did, reserve liberty to persons to apply to set aside or vary the order extending time. However, this express reservation only made clear what would in any event be the legal position: a person affected by an ex parte order may always apply to have the order set aside. (See Owners of the SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, per Griffith CJ.)

1. Spigelman CJ next drew an important distinction before ultimately observing that it was not necessary to decide the issue. At [208], his Honour observed:

Furthermore, the test of finality is the determination of the rights of the parties in a "principal cause", not the determination of the application before the court. (See Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 443, per Windeyer J. See generally Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200.) There may be cases where ancillary proceedings are appropriately characterised as the lis before the court. However, an application for an extension of time is not, in my opinion, able to be so characterised. The "principal cause" is the application under s 588FF(1).

1. This Court referenced that paragraph with approval in Gong at [51] to conclude at [52] - [53] that an order made on a s 588FF(3)(b) application does not determine the rights of the parties in the underlying cause and is therefore interlocutory. To the contrary, the reasoning in Stramit Corporation proceeds on the basis that the order is final: [71], [78], [80], Williams JA; [116], Jerrard JA and [146], Fryberg J. Whether the order was final or interlocutory was not argued. That leads to difficulty in accepting the ratio as correct. An interlocutory order is just that: it lacks finality for all purposes. No question of res judicata, merger, issue estoppel or Anshun estoppel arises: Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 at [109]. Interlocutory orders are subject to review, including by a second application to the same effect: Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 92 ALJR 1039 at [11], Edelman J; Spencer Bower and Handley, Res Judicata, (5th ed, LexisNexis, 2019) at [5.32].
2. Whilst it is correct that the order made by Mullins J in Stramit Corporation on 7 September 2000 bound each creditor until set aside against one, some or all, it was not with respect to Williams JA "a final order of the court disposing of all the issues raised by [the application]" (at [78]). And similarly with respect to Jerrard JA, who at [116] reasoned on the same basis. This is not to overlook that Fryberg J also proceeded on the premise that the order was final at [146], which his Honour then qualified at [147] in distinguishing cases where a court "does not decide part of an application on the merits". However, the reasoning does not address that determination of an application made pursuant to s 588FF(3) does not determine the substantive rights of the parties under s 588FF(1).
3. Justice Austin was the primary judge in DML Resources No 2, which is one of many judgments of his Honour in that proceeding. An ex parte extension order pursuant to s 588FF(3) was made on 4 September 2000. BP Holdings Ltd as an affected creditor successfully applied to set it aside so far as it applied to it. At [66], his Honour simply stated: "The next step is to hear the applicants and the plaintiffs with respect to Stage 2", which is a reference to "the question whether the plaintiffs can revive their application for extension of time when the application has been dealt with by the making of orders which have subsequently been set aside, given that a fresh application would now be out of time": [7].
4. Subsequently in Brown v DML Resources Pty Ltd (in liq) (No 3) [2001] NSWSC 719; (2001) 188 ALR 469, Austin J was primarily concerned with the joinder of BP Holdings to the proceeding, ultimately to conclude that joinder faced insurmountable difficulties: [81]. However at [29] - [30], Austin J addressed the status of the extension application consequent upon the severance of BP Holdings:

The BP companies have applied for orders setting aside the ex parte orders made on 4 September 2000, insofar as they are affected by the ex parte orders. I have decided that the orders sought by the BP companies should be made. The ground upon which I shall make those orders is a procedural ground, namely that the original orders should not have been made until the BP companies were given the opportunity to be heard. It is not a ground relating to the substance or merits of the plaintiffs' application for an extension of time.

My decision, therefore, does not mean that the plaintiffs have no substantial entitlement to the kind of relief that they originally sought. My reasons for judgment of 17 July 2001 provided no basis for an order dismissing the proceeding automatically, and consequently the proceeding will remain in existence after the ex parte orders have been set aside. As I have noted, the prayers for relief in the originating process need to be amended to make it clear that the plaintiffs, having already secured an extension of time with respect to other creditors, now seek an equivalent extension of time only with respect to the BP companies.

1. The joinder question was resolved in BP Australia contrary to the decision of Austin J.
2. Fortress Credit primarily concerned the power to make a shelf order, that is one that does not identify any respondents or particular transactions. However, Bathurst CJ mentioned the final disposition issue and noted, without analysis, the "clear preference" of Spigelman CJ in BP Australia for the approach of Fryberg J in Stramit Corporation: [41]. Each of Beazley P ([114]), Macfarlan JA ([118]), Barrett JA ([124]) and Gleeson JA ([136]) expressed agreement with the reasons of Bathurst CJ, without separately addressing the point.
3. Justice Black was the primary judge in the proceeding that led to the appeal in Fortress Credit: Re Octaviar Ltd [2012] NSWSC 1460; (2012) 271 FLR 413. The liquidators commenced a s 588FF(1) proceeding against Fortress, which then applied to set aside the founding extension order to the extent that it applied to it or in the alternative to exclude it from the application of the order. It contended that it was an actual or likely target of an application under s 588FF(1), but was not given notice by the liquidators of the extension application. Fortress raised other arguments about the validity of the extension order, which need not be mentioned.
4. Much of the reasoning of Black J is concerned with resolving factual questions about whether the liquidators were aware, or ought reasonably to have been aware, that Fortress was an actual or likely target of a voidable transaction proceeding, whether Fortress was entitled to have the extension order set aside ex debito justitiae or whether at best the right was to have the court reconsider the merit of the extension application as against it. Ultimately, Black J determined to re-exercise the discretion on the extension of time application because the liquidators conceded that Fortress was entitled to an opportunity to make submissions as to whether the order should have been made in the first place: [62]. In the preceding paragraph however, Black J rejected the formal submission of Fortress that the court lacked power to re-hear the extension application if the extension order was discharged. The competing views in Stramit Corporation were identified and Black J considered himself "bound" by what Spigelman CJ had said in BP Australia concerning his preference for the view of Fryberg J: [61]. Black J did not otherwise elaborate. Of course, his Honour was not bound by the obiter of Spigelman CJ.
5. Re Harris Scarfe Ltd (in liq) & Harris Scarfe Wholesale Pty Ltd (in liq) (No 3) [2008] SASC 74; (2008) 216 FLR 242 raised a number of issues, of which one is presently relevant. On 14 April 2004, the liquidators obtained an order extending the time for the commencement of s 588FF(1) proceedings against 19 named creditors plus unidentified creditors. Recovery proceedings were subsequently instituted against the 19 named creditors and a number of creditors who were within the unidentified class. Some of the creditors made applications to set aside the order of 14 April 2004, because they were not given notice of the application. The applications succeeded and Debelle J ordered that the extension order be set aside as against those creditors and be re-heard and determined inter partes: [12]. An issue arose as to whether the liquidators were required to join the 19 creditors as respondents to the voidable transaction proceeding. His Honour determined that joinder was not necessary, as the liquidators were entitled to have the original extension application listed for hearing against those creditors: [23].
6. In reasoning to that conclusion at [22], Debelle J stated in part:

Notwithstanding that none of the 19 creditors is a named party to the application made on 28 March 2004 for an extension of time, the current liquidators are, nevertheless, at liberty to have that application for an extension of time reconsidered against each of those creditors. The fact that the extension order was set aside as against certain creditors has no consequence other than that the application made on 28 March 2004 must be considered afresh as against each of those creditors and on the facts that pertain to the liquidators and to each creditor. The application made on 28 March 2004 was a valid application. The current liquidators are not making a fresh application but are seeking a re-hearing of the application made on 28 March 2004. It is being re-heard for the reason only that the order as against those 19 creditors has been set aside. The fact that the 19 creditors did not get notice of the application until well after the limitation period in s 588FF(3) had expired does not of itself assist the 19 creditors as s 588FF(3)(b) requires only that the application has been instituted before the expiry of that time limit. The liquidators had intended that these 19 creditors would be bound by the order made on 14 April 2004. They are not bound because they had no notice of the application and they were not given an opportunity to be heard. The re-hearing will determine whether the liquidators are to be granted an extension of time against each of those 19 creditors. It is as if these 19 creditors had been named in the summons and the application against each is now being heard for the first time. In other words, the application remains on foot and has to be reconsidered in the light of the evidence then adduced. At the hearing of the application each party will be at liberty to adduce evidence and make submissions. The liquidators will be at liberty to show why they should be permitted to institute proceedings after the expiry of the three year period and each creditor will be at liberty to contend why the order should not be made, adducing such evidence of prejudice and other facts on which each creditor relies.

1. See also [29], where his Honour restated his conclusion that the liquidators were "entitled to a re-hearing of the application as against these 19 creditors".
2. His Honour regarded that procedure as consistent with the reasons of Chesterman J and Fryberg J in Stramit Corporation and Spigelman CJ in BP Australia: [22].
3. Some of the creditors then appealed to the Full Court: Ansell Ltd v Davies [2008] SASC 203; (2008) 219 FLR 329. The appeals were dismissed, though it should be understood that the issues for determination concerned first, whether new liquidators could be substituted for the retired liquidators (who had obtained the extension order), second, whether the liquidators could pursue the extension application against the now identified creditors with or without joining each as a defendant to the application, and third, whether the extension order was validly made in relation to unidentified creditors. Doyle CJ, with whom Anderson and David JJ agreed, held that the new liquidators could be substituted, joinder was permissible but unnecessary and the order was validly made. As such, the appeal did not directly raise for determination whether the extension application could be re-heard as against the creditors who had succeeded in having the order set aside.
4. Nonetheless, Doyle CJ referenced without demur the reasoning of Debelle J on that issue at [22], [40] and [46] - [48]. In doing so the Chief Justice also expressed agreement with what Debelle J had said at [29].
5. How should the conflict in the authorities be resolved? On the weight of numbers there is clear direct or obiter support for the view of Fryberg J in Stramit Corporation. But that hardly resolves the issue at the level of principle. In our view and with respect to the views of Williams JA and Jerrard JA in Stramit Corporation, we do not accept that when an extension order made under s 588FF(3) is set aside upon application by an affected creditor, who was not given notice of the extension application, that the application cannot be redetermined as against that creditor.
6. The starting point is to recognise that an ex parte interlocutory order is by its very nature defeasible, upon an application ex debito justitiae as explained by Rich J in Cameron at 589:

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v. Kanssen). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial.

1. See also Taylor, Gibbs J at 4 - 5, Mason J at 15 - 16, Murphy J at 20 and Aickin J at 22.
2. The first difficulty with the majority reasoning in Stramit Corporation is that although Mullins J understood that the extension order was defeasible and once set aside the application remained to be determined ([70]), Williams JA was critical of that reasoning at [71] as no authorities were cited in support. The criticism was repeated at [78]. In our view there was no need to cite any authority for the fundamental principle stated by Rich J in Cameron.
3. Next, Williams JA expressed his "concern that the original ex parte order has not been set aside": [71]. That is not correct. It was set aside "in so far as it applies to Stramit Corporation Ltd" by Chesterman J on 16 May 2002: [3]. No argument was put that the order was incapable of being severed or partially set aside in that way. The reason given by Williams JA at [71] for his conclusion is also with respect unconvincing:

The fact that it was subsequently held that that order was not binding on Stramit, who was not a party to the application, does not mean that the proceeding commenced by the application has not been fully and finally determined by the order of 7 September 2000.

1. That misunderstands what occurred. The order was set aside. Chesterman J did not make some other order that it was not binding on Stramit Corporation Pty Ltd. Further, the proceeding to which his Honour refers did not result in a full and final determination when the extension order was made. As we have explained, the order was interlocutory and not final.
2. It was also wrong in our respectful view for Williams JA to reason that "the proceeding", being the extension application, was somehow unable to be determined against Stramit once the order was set aside against it. The reasoning does not explain why it is that the application to extend time for the commencement of a proceeding against all potential creditors was incapable of re-determination, this time with one of the corporations within the potential class of creditors being heard. There is no justification in principle why the court then lacked power to re-hear the application.
3. What s 588FF(3)(a) requires is that an application under subsection (1) "may only be made" within the later of two time periods unless a longer period is fixed by a court order made on an application and made within the period in subparagraph (a). As explained by Doyle CJ in Ansell at [49], the "issue is whether an application was made ... within the required period" and not when it is ultimately determined. Where the extension application is made within the required period but not determined until after expiry of it, why is it that, if an extension order is later set aside, is it not open to re-hear the application? We can discern no reason in principle that if a court remains seized of a valid application, it is nonetheless powerless to determine it. That point was well made by Debelle J in Harris Scarfe at [26]:

If a liquidator has been granted a general order pursuant to s 588FF(3)(b) extending the time limit as against creditors of the company and that order was made on the day before the limitation period has expired, the order would be entirely futile as against those creditors who later make successful applications to set aside the order on the ground of a want of procedural fairness.

1. The text, context and purpose of the provision does not support the contrary conclusion of Williams JA. Spigelman CJ in BP Australia extensively essayed the legislative purpose of Part 5.7B of the Corporations Act at [104] - [121]. The overall purpose of requiring expedition to facilitate certainty in commercial dealings is well understood. What must not be overlooked is that when balancing the competing interests between the difficulties faced by liquidators in undertaking investigations into failed corporations, where it is frequently the case that poor record keeping and mismanagement is the cause of insolvency, Parliament only required that an application under s 588FF(1), or an extension application under s 588FF(3), be made within the later of two defined periods. In doing so, a general discretion is conferred on the Court to decide in particular cases, by balancing relevant competing interests, whether the conduct of a liquidation and the transactions in issue justify an extension of time. The purpose of the provision is twofold. The requirement to quickly identify voidable transactions and commence proceedings is tempered by recognition that it is not always practicable to do so: Fortress Credit at [138] - [139], Gleeson JA. Those purposes do not require the conclusion that a court is deprived of power to re-hear an extension application in the present type of case.
2. With respect to Jerrard JA, his Honour's reasons do not take the matter any further. The fact that Mullins J made a general order for the bringing of any voidable transaction application does not support the distinction that his Honour drew at [115] - [117] between a general order and one that specifically excludes named creditors. The effect is the same once an unnamed creditor successfully applies to set aside the order on the basis that it had no notice and in consequence was not heard on the exercise of the discretion to extend time for the commencement of a proceeding against it.
3. In our view, Fryberg J was correct to understand at [145] and [149] that the order of Mullins J had been set aside in part with the consequence that the relief sought by the liquidators against Stramit (as a subsequently identified creditor) remained to be determined.
4. The reasoning of Fryberg J has the not inconsiderable support, albeit in obiter, of the New South Wales Court of Appeal in BP Australia and Fortress Credit and of the Full Court of the Supreme Court of South Australia in Ansell. It is consistent with the view of respected commercial single judges in Re Octaviar, DML Resources No 2 and Harris Scarfe.
5. Our conclusion is supported in an analogous context by an argument that the High Court determined to be without merit in Gordon, which we referenced above on a different point. The liquidators commenced a s 588FF(1) proceeding within time in the District Court of New South Wales. Thereafter by operation of certain rules of the District Court, the action was taken to be dismissed if, after six months and 28 days from commencement of the action, no defence had been filed and default judgment had not been entered. That was the case. Another rule permitted the District Court to extend time, even when time had expired. The issue before the High Court was whether s 79 of the Judiciary Act 1903 (Cth) "picked up" these procedural provisions or whether s 588FF(3) "otherwise provided". The Court held that the procedural rules applied to the proceeding in federal jurisdiction. Once a proceeding is commenced "the conduct of the litigation is left to the operation of the procedures of" the court in which it is commenced: [40].
6. That was sufficient to determine the appeal. However, the Court addressed that which was described as a remaining subsidiary point at [43] - [44]. The appellant had argued that the effect of the default dismissal rule in the District Court was that thereafter the exercise of federal jurisdiction was "spent". In rejecting the argument at [44] the Court observed:

The circumstance that the Rules provided in the terms of Pt 18 r 9 for dismissal of that proceeding does not provide a basis for the conclusion that the federal jurisdiction was exhausted on 1 December 2003, unless it be assumed that the "dismissal" was final in all respects. The Rules, as was emphasised in the course of argument in this Court, are to be read as a whole. At all times in the District Court and in the Court of Appeal there was a proceeding in the exercise of federal jurisdiction because those Courts were seized of a "matter" arising under a law of the Parliament, namely s 588FF, in respect of which jurisdiction had been conferred on the District Court under Pt 9.6A of the same statute.

1. By analogy in the present appeal, once the primary judge set aside the extension order against Sinoace BVI, there remained to be determined the extension application against it. The setting aside did not effect a final determination of the application.
2. For these reasons, we are convinced that the decision in Stramit Corporation is plainly wrong and should not be followed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].
3. The primary judge erred at PJ [148] when he held that it was not open to re-hear the extension application. That said, his Honour is not to be criticised for the conclusion that he reached in considering that he was bound to follow the majority holding in Stramit Corporation. Departing from a decision of an intermediate Court of Appeal on the construction of Commonwealth legislation is ordinarily a matter for an Appeal Court.
4. The appellants seek an order that order 2 made on 4 July 2024 in proceeding VID 410/2022 be set aside and in its place, the application be remitted to another judge for determination. The primary judge also determined the appellants' extension application in proceeding VID 31/2024 concerning Sinoace BVI, stating at PJ [149] that he "would not in any event allow the liquidator's nunc pro tunc application" with respect to it. With respect that cannot be so. The primary judge set aside the extension application and determined that he could not re-hear it. It follows that the appellants' application for an extension of time to serve the s 588FF(1) proceeding did not arise for determination as there was no extant proceeding that could be served. Thus, the primary judge reached the correct conclusion, but for the wrong reason. The order dismissing that application will not be disturbed.
5. The appellants have established that the orders made by the primary judge should be set aside and the extension application must be remitted to another judge for determination. That requires a setting aside of order 2 made on 4 July 2024 in proceeding VID 410/2022, and each of the orders made on 4 July 2024 and 13 November 2024 in proceeding VID 31/2024. The question of costs requires further submissions, including as to the applications before the primary judge.

1. The grounds in the remaining five Amended Notices of Appeal (VID 748/2024, 749/2024, 751/2024, 752/2024 and 753/2024) are identical. Ground 1 was abandoned in part and ground 2 entirely. We address the grounds seriatim. Some interpolation is required to deal with the appeals as a group.

His Honour erred in finding (Reasons at [160]) that service of the originating process was only able to be effected on or before 28 January 2024. His Honour should have found that, notwithstanding that service of the originating process and affidavit in support had not been effected by the applicants "as soon as practicable" and in any case in the period between 22 January 2024 and 28 January 2024 as required by r. 2.7 of the Federal Court (Corporations) Rules 2000 (Cth), service of the originating process and affidavit in support on the respondent[s] had, as a matter of fact and law, occurred on [the relevant dates between 15 February 2024 and 7 March 2024], so that:

1. ...
2. the proceeding should continue against the respondent[s] unless orders were made on the application of the respondent setting aside service.

1. Service on the respondents was effected between 15 February 2024 and 7 March 2024. The dates were 15 February 2024 (Zuccubarr), 19 February 2024 (Timswee), 26 February 2024 (Sinoace BVI), 5 March 2024 (Rill Trading) and 7 March 2024 (Payton). While the appellants accept that service was "irregular" (in that it was outside the time prescribed by the Corporations Rules), they submit that the primary judge should have found that service had in fact occurred on the relevant dates in that period, and that the primary proceedings should continue despite the late service, unless orders were made setting aside service.
2. To that end, the appellants submit that the "fact of service" on the respondents during the later periods is of importance because there may be deemed service as a matter of fact where a document has come to the attention of a respondent party: Bioaction Pty Ltd v Ogborne [2022] FCA 436; (2022) 402 ALR 542 at [34] - [39]. They submit that this principle extends to circumstances where service has been "effected factually" but not in accordance with the requirements of the Corporations Rules or the Court Rules. As such, the appellants submit, the primary judge "erred in not considering the fact of service, and in failing to consider the effect of factual service on the applications before him".
3. This is a new argument that was not put to the primary judge. Leave is required to raise it: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] - [36]. As is well understood, the Court must be satisfied that it is in the interests of the administration of justice to permit new argument on appeal. It is well recognised that generally a party may be permitted to raise new arguments on appeal where there is no possibility that the case would have been conducted differently at trial had the point been raised in that arena: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51]; United Firefighters Union of Australia v Symes [2024] FCAFC 158 at [27]; Bird v DP (a pseudonym) [2024] HCA 41; (2024) ALJR 1348 at [39]. The respondents make no submissions to that effect.
4. But that is not the end of the matter. In this case the appellants face two difficulties. One, they were represented before the primary judge and no explanation has been offered on the appeal for the failure to take the point below. The other, the point is antithetical to how the appellants conducted the proceedings below. The appellants prosecuted interlocutory applications pursuant to r 1.39 of the Court Rules that the time for service of the originating process and the affidavit in support be extended in each case. The new argument denies that it was ever necessary to take that course. It proceeds on the basis that, accepting that service was irregular, the primary judge should have found that service had in fact occurred on various dates with the outcome being that each proceeding should have continued absent the making of orders, on application by the respondents, to set aside service.
5. The foregoing are strong reasons to refuse leave to raise the new argument. In any event, Ground 1 is without merit. For the reasons given in Part C, once the time for service passed, the proceedings could not be validly served absent an order extending time. Section 51(1) of the FCA Act does not assist. The appellants took the correct course before the primary judge in seeking an order that the time for service be extended nunc pro tunc.
6. There is no merit in the contention that service had occurred in fact with the consequence that the onus then fell upon the respondents to make an application to set aside service. Service was not validly effected. This point was made by Sinoace BVI when applying pursuant to r 13.01(1)(c) of the Court Rules for a declaratory order that the originating application had not been duly served upon it, and applies generally for each other respondent.
7. For these reasons, we refuse leave to raise the new argument and with it dismiss Ground 1.

His Honour should have found that, although the applicants had not effected service of the originating process within the time provided for by r. 2.7 of the Federal Court (Corporations) Rules 2000 (Cth), the respondent[s] had been served with the originating process after that time, and that in order for him to exercise any power of summary dismissal of the proceeding, His Honour needed to conclude that the continuation of the proceeding by the applicants was, in the circumstances, an abuse of process.

1. Relatedly to Ground 1, this ground rests on the contention that service was in fact achieved and then proceeds to contend that the primary judge could only have summarily terminated each proceeding if he was satisfied that continuation would be an abuse of process. It is another new argument not put to the primary judge.
2. This ground and the arguments in support of it are fatally flawed.
3. It was conceded by the appellants in written submissions dated 8 May 2024 before the primary judge that if the extension applications failed, then each proceeding should either be stayed or summarily dismissed (at [114]):

...[I]t is submitted that it is appropriate for the court to exercise its discretion to extend time for service nunc pro tunc until the date that actual service took place. The purpose of the power to extend time for service is to avoid an injustice. The presumptive prejudice and absence of any special or actual prejudice to the respondents determines that the interests of justice lie in favour of the extension. It is submitted that the alternative result - to dismiss or permanently stay the proceedings - is out of proportion with the nature of the default.

1. The appellants did not submit to the primary judge that summary dismissal should be approached only if he was satisfied that continuation of the proceedings would be an abuse of process. That begs the question: where in an appeal governed by the deference standard (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442 at [16]) is the discretionary error in not proceeding on a basis that was not before the primary judge? This argument should not now be permitted: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7.
2. And as explained in Part C, summary dismissal was the appropriate order once the primary judge determined to refuse each extension application.
3. Accordingly, we refuse leave to raise this new argument and dismiss Ground 3.

1. This ground is prolix. The appellants raise multiple complaints to the effect that the primary judge's findings that Mr Cussen arrogated to himself control over when service would occur at PJ [10], [166] and [167], were against the weight of the evidence. Six evidentiary matters are referenced by way of particulars. In submissions, the appellants contend that the reasons of the primary judge are "extraordinarily unbalanced" in that they focus solely on factors against the grant of leave. The evidence that it is said was not given sufficient weight is identified in the ground as:
   1. It was only on 30 January 2024 that the liquidator obtained advice regarding the existence of the option of making an application to the Court to extend time for service of the originating process, being the advice set out at Reasons at [52];
   2. The advice received by the liquidator did not contain any advice that a failure to serve the originating process within the time prescribed by r 2.7 would cause the applicants to breach the Court's rules as to service of the originating process;
   3. The applicants sought to, and substantially did, comply with the direction made by Anderson J on 25 January 2024 to notify the respondent (among others) of the email from the Court which identified the return date of the originating process of 2 February 2024;
   4. The email sent to the Court by Jacky Lam on 1 February 2024, read in context, gave notice of the intention of the applicants to make an application to the Court to seek an extension of time within which service of the originating process and affidavit would be effected, rather than an intention to deliberately not serve those documents;
   5. The liquidator was unaware until 16 February 2024 of the decision in Horne v Retirement Guide Management Ltd (Horne), and the principles with respect to decisions of applicants not to serve an originating process and affidavit in support;
   6. Immediately upon becoming aware of the decision in Horne (and by implication, that he had breached r. 2.7), the liquidator instructed his legal advisers to effect service of the originating process and affidavit in support, and to apply to adjourn the proceeding until after the public examinations had been conducted.
2. The ground faces an initial hurdle. While the appellants set out the relevant passage from House v The King [1936] HCA 40; (1936) 55 CLR 499 in submissions, they do not engage with why it is said the primary judge erred. The starting point is that a mistake in fact must be clearly wrong and must materially contribute to the outcome: Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [53]. Complaints that different factual findings ought to have been made in the exercise of discretionary power must identify the clear factual error that was material to the exercise of the discretion: Nathan v Macquarie Leasing Pty Ltd [2024] VSC 794 at [92]. Merely agitating about the allocation of weight is insufficient to establish discretionary error: Gong at [80].
3. More substantively, the appellants submit that the primary judge conflated the personal decision of Mr Cussen not to substantively progress the proceedings until completion of his investigations, with an intention to arrogate to himself control over the process of service. The submissions draw attention to the oral submissions of counsel for the appellants at the first case management hearing on 2 February 2024 before Anderson J. Relevantly, counsel submitted:

MR MILLER: In the interim, what my client, Mr Cussen, has proceeded to do is to commence a public examination proceeding against various parties. The public examination proceeding has been returnable before Registrar Edwards in this court on 17 January and the registrar has made orders for the issue of various summonses and orders for production of documents. There is an overlap, your Honour, of course, in the content and subject matter of the public examinations and the addressees of the summonses comprise either the respondents in these five proceedings or their controllers and directors. Similarly, the documents that are sought to be produced in the public examinations comprise documents that are relevant to these proceedings. My client, Mr Cussen, has formed the intention, subject to the court's directions, of course, to proceed with the public examinations prior to seeking to continue with these voidable transaction claims**.**

1. Particular emphasis is placed on the last sentence of that submission. However, that is not the end of what was put and which might be thought to assist the appellants' arguments. The submission before Anderson J continued:

MR MILLER: There are three reasons for that, your Honour. The first is, there may be facts and documents that are obtained during the public examinations which are relevant to the claims and/or defences made in the proceedings. Second, it would be an efficient use of the parties' resources, that is, the applicants and the respondents, to concentrate on the public examinations first and then the substantive proceedings, being the proceedings before your Honour today. The third reason is a reason of court resource[s], your Honour. In my submission, it's an efficient use of resource[s] to proceed with the public examinations first.

The court rules, of course, provided that the originating processes and affidavits in support in these proceedings must be served as soon as practicable; that's rule 8 06, and at least five days before the first case management hearing. That has not been done, your Honour. My instructions are to apply in due course for an order under rule 1.39 of the court rules extending the time for service until a date that the public examinations are expected to be concluded.

1. Ultimately, counsel submitted that his instructions were to seek an adjournment of the case management hearing for a period of two weeks until 16 February 2024, at which "return date my instructions will be to apply for an extension of time to serve until the end of May".
2. The case management hearing was adjourned to 16 February 2024, and resumed before McElwaine J when Mr Fary SC for the defendant in VID 32/2024 maintained his client's position that the proceeding had been purportedly served in breach of r 2.7 of the Corporations Rules and was not "good service". When it was put to Mr Fary that compliance with r 2.7 may be dispensed with, he referenced the discretion to be exercised and indicated that reliance would be placed on the principles in Horne.
3. The appellants further submit that that the primary judge failed to notice the "transparency of the approach" taken by Mr Cussen.
4. The primary judge commenced at PJ [163] by correctly observing that the appellants, in order to obtain an extension of time for service, bore the onus of providing an adequate explanation for the delay. At PJ [164] the primary judge referenced Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations [2009] NSWCA 104 at [82], Ipp JA (which he noted was referred to with approval in Horne at [53]):

In my view it would be inappropriate to allow an extension of time for the service of a writ or statement of claim where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds. Were that to be regarded as a good reason to extend time, the Court would be allowing plaintiffs to arrogate to non-parties the right to decide the period by which the time for service of a writ should be extended. That would be fundamentally in conflict with the Court's duty to exercise, alone, the discretion conferred upon it.

1. His Honour then set out the summary of the principles in Horne at PJ [165], which we have in part reproduced in Part C. At PJ [167], his Honour set out an extensive extract from the written submissions of Mr Fary, which he adopted at PJ [168] as explaining "precisely" why the applications must be refused. Those submissions place heavy reliance on an email dated 31 January 2024, sent at 12.04 pm to solicitors acting for some of the respondents (as attached to an affidavit made on 14 February 2024 by Jacky Lam, the solicitor for the appellants. The email reads in part:

We refer to the above proceedings in which we act for the Applicants...

We understand you may act for the Respondents. If you no longer act for the Respondents, please disregard this email. For completeness, we have copied the Respondents in this email.

We are instructed to write to you as follows.

Please find attached for your attention email from the Federal Court.

By way of background:

• the application for these proceedings in which your clients are respondents was accepted by the Federal Court on 22 January 2024 (Application);
• the first case management hearing for these proceedings has been listed before Justice Anderson at 9:30am on Friday 2 February 2024 (Case Management Hearing);
• a separate proceeding with respect to public examinations and orders for production relating to this matter was commenced on 6 December 2023 (Public Examinations).

Notwithstanding the Court's direction to notify you of these proceedings, we do not intend to serve the Application on the respondents until the conclusion of the Public Examinations which we anticipate will be held on or around 15 April 2024. To that end, we intend to seek the following orders at the Case Management Hearing:

1. any application under Federal Court Rules r 1.39 to extend the time to comply with Federal Court Rules r 8.06 must be made by 8 March 2024; and

2. the Case Management Hearing be adjourned until 15 May 2024.

In view of the proposed orders sought above, we ask that you confirm by return email as soon as possible and by no later than 3:00pm on 31 January 2024:

1. that the respondents consent to the orders sought above; and

2. whether the respondents will appear at the Case Management Hearing.

Should you have any queries, please do not hesitate to contact our office.

1. In fact, the liquidator had sent virtually identical correspondence on 31 January 2024 at 10.57 am to the solicitors for Payton in respect of VID 33/2024.
2. The submissions of Mr Fary further reference the affidavit of Jacky Lam which in part stated:

The applicants propose to complete the public examinations prior to continuing with [the proceedings] for four reasons:

(a) The public examinations may reveal facts and documents that are relevant to the further conduct of [the proceedings], the relief sought in those proceedings, and the claims made in those proceedings;

(b) It would be less onerous on the applicants if the public examinations were completed first, prior to continuation of [the proceedings]. In this respect, the administrative resources of the applicants and their solicitors can be directed at the public examinations first, and then towards the continuation of [the proceedings] from June 2024 onwards;

(c) Similarly, it would be less onerous on the respondents, and their resources, and the resources of the respondents' legal representatives, if any, in [the proceedings] if the public examinations were completed first, prior to the continuation of [the proceedings].

1. The reasons for proposing to complete the public examinations prior to continuing with the proceedings are deposed to in identical terms in the Cussen affidavit dated 24 April 2024, at [51].
2. The submissions continue that this evidence "starkly reveals" that Mr Cussen deliberately determined not to serve and to allow the documents "to go stale for forensic and strategic purposes", having regard to his interests in the proceedings. That, the submission concluded, amounted to him arrogating for himself control over when service should occur.
3. In oral submissions, we were taken to legal advice received by Mr Cussen (dated 30 January 2024 sent at 5.05 pm) which it was said resulted in his decision not to serve the originating process and affidavit in support. The advice, partly redacted, nonetheless relevantly provides:

As you are aware, the court sent us an email last Thursday informing us of the case management hearing to be held at 9:30am on Friday, 2 February 2024.

In addition, the Court asked that we notify the respondents of their email and that the respondents file a formal notice of acting as soon as practicable.

In light of the above, we propose notifying the respondents in accordance with the Court's directions, however, for the reasons outlined below, we do not propose to serve the applications until after the conclusion of the public examinations.

To that end, if you would like to proceed as proposed, please see for your review and approval draft email below to the respondents.

...

As discussed above and previously, we consider that we should refrain from serving the applications until after the conclusion of the Public Examinations. This is including for the following reasons:

1. public examinations will be held in the week of 15 April 2024 which is relatively close in time;

2. no funding [has] been agreed or provided by the Funder yet, and the additional time will allow us to come to some agreement;

3. as there is no funding, by refraining from proceeding with the applications, we can minimise the risk of adverse costs orders; and

4. we can minimise further costs incurred until we have further information furnished in the public examinations with respect to the claims.

To proceed with an application to extend time to serve, we will need to prepare a short affidavit deposing to the orders extending the limitations period, the public examinations having been commenced, the expected duration of the public examinations, and seeking orders under r 1.39 extending the time for service until after the public examinations are finished.

Accordingly, please let us have your instructions to proceed with the application to extend time for service.

1. That advice is not entirely clear in that there was a suggestion that no steps be taken to serve the applications until conclusion of the public examinations, but in contrast instructions were sought to proceed with an application to extend the time for service. In any event, Mr Cussen decided, on receiving the advice, not to continue with the proceedings until after conclusion of the public examinations: Cussen affidavit 24 April 2024, [51]. Next, at [52] he deposed that he was aware from 30 January 2024 that he could apply to extend the time for service pursuant to the Court Rules and "instructed my lawyers to proceed on that basis". That paragraph is ambiguous in that it fails to reveal if the instruction was to proceed instanter or at a later time. What is known is that Mr Cussen was ignorant of the decision in Horne until 16 February 2024, when on that day he instructed his solicitors to effect service of each proceeding, and then to apply for an adjournment until the first available date after conclusion of the public examinations: Cussen affidavit 24 April 2024, [61] - [62]. The interlocutory applications to extend time in each proceeding were not filed until 12 March 2024. Hence, the obvious inference that is open is that Mr Cussen did not instruct his solicitors to proceed with those applications forthwith on 30 January 2024.
2. It was therefore open to the primary judge to find, by adoption of counsel's submissions, that Mr Cussen was aware by no later than 30 January 2024 that the Court Rules required the making of an application to extend time for service of each proceeding, that the time period had by then passed and, despite that knowledge, instructed his solicitors to advise that it was not his intention to proceed with service until after conclusion of the public examinations.
3. Further, the primary judge did not disregard the legal advice provided to Mr Cussen. At PJ [170] his Honour considered the submission that a matter relevant to exercise of the discretion to extend time was the fact that Mr Cussen relied on legal advice. However, nonetheless as the facts reveal, Mr Cussen made a strategic decision not to prosecute the proceedings. In consequence, the primary judge reasoned at PJ [170]:

With that knowledge, and for the strategic purposes to which he deposed, and which are set out above, he took it upon himself to decide for himself when service should occur, for a reason that could best be summed up as "because it suited me to do so". That his solicitors and counsel were apparently unaware of the governing and well-established principles in cases like Horne in those circumstances is irrelevant and the cases on which he relied are of no avail.

1. That conclusion was open. The primary judge did not misstate the facts or act on a wrong principle.
2. Something should, however, be said about a reference in the submissions of Zuccubarr and Payton to Pell v Hodges [2007] NSWCA 234 at [44], Handley AJA. The appeal challenged the decision of the primary judge to extend the time for service of an amended statement of claim in an action for medical negligence against the appellant. The original statement of claim was issued on 28 July 2004 and ceased to be valid for service on 29 November 2004. A procedural rule required the plaintiff to serve, with the statement of claim, a statement of expert reports. That was not done. That deficiency was remedied when the plaintiff brought an application to extend time for service. When the statement of claim was issued, investigations as to whether the plaintiff had a reasonable prospect of success had not been completed by his solicitors. There was evidence that the plaintiff had been advised, based on three reports from neurosurgeons, that she did not have much prospect of success in a negligence claim. The case as ultimately put was that the surgeon failed to give appropriate warnings. The primary judge concluded that there was "some material on which a failure to warn case might proceed", depending on the outcome of expert evidence: Pell at [25]. At [28] Handley AJA stated:

The plaintiff's legitimate interest in the prosecution of her claim is balanced by the defendant's legitimate interest in the claim not being prosecuted when the application is made 19 months after the expiration of the limitation period.

1. At [30] there is reference to the principle that a plaintiff seeking an extension of time must establish a proper or adequate reason, including a satisfactory explanation for the delay. The case also raised limitation questions: the plaintiff was out of time absent an extension: [31] - [33].
2. The reference in the submissions to Pell at [44] is out of context. It must be read with the following which appears at [42] - [46]:

The present case is essentially different. The defendant was still in practice and there would be no difficulties in effecting service. The plaintiff's problem was that she had not decided whether to proceed and if so on what basis. In these circumstances, in my opinion, the case is a limitation case and not a want of prosecution case within the reasoning in Tolcher v Gordon (above). Essentially the plaintiff wanted more time within which to decide whether she would proceed with her case.

The limitation period of three years is intended to provide a reasonable time for a plaintiff who has suffered personal injuries to seek and obtain appropriate medical and legal advice and to decide whether legal proceedings are justified. It was not suggested that her injuries contributed to the delay.

In these circumstances delay within the limitation period is also relevant to the exercise of the discretion to extend time for service of proceedings. A plaintiff who issues proceedings just before the limitation period and only then has the merits of the case investigated should not have any expectation of obtaining an extension of time to enable investigations to continue. There should also be no expectation that time spent in this way after the statement of claim has been issued, especially after it has become stale, will be accepted as an adequate explanation for such delays. Her case is not improved if investigations were carried out with reasonable diligence, but proved negative.

Proceedings for professional negligence differ from the general run of personal injury cases as they affect the defendant personally and his or her professional reputation. One may reasonably infer that considerations such as this prompted the reduction in the time for service of the statement of claim for cases in the Professional Negligence List and the warnings in the Practice Direction.

The plaintiff made no attempt to explain the delay prior to the filing of the statement of claim. Dr Teo's report is dated the day following the issue of the statement of claim but presumably Walsh & Blair already knew something of its contents when they commenced the proceedings. The date the plaintiff first consulted Walsh & Blair is not known although the Judge inferred that this may not have happened until she lost her position with the Education Department at the end of 2002.

1. At [49] it was found that there was no explanation why the plaintiff's solicitors did not serve the statement of claim within the required period of four months, save that they were awaiting further expert reports. However, that was not true in respect of the failure to warn case which was supported by an expert report then to hand. This led to the inference at [51] that:

These matters strengthen the inference that the statement of claim was not served before Walsh & Blair withdrew from the case in November 2004 because the failure to warn case was seen to be weak and a wider case was not supported by experts' reports. This inference is further strengthened by the advice from Maurice Blackburn Cashman.

1. At [52] it was found "there has not been a full or adequate explanation for the delays from the end of 2002 ... Indeed the evidence suggests that decisions not to proceed were made on advice in June and November 2004 and February 2005". Nor had any explanation been given for the failure to apply for an extension of time within the four month period allowed for service: [54]. Thus, the primary judge erred. The Court re-exercised the discretion and determined to refuse the extension application.
2. Understood in this context, the decision in Pell is radically different from the facts of the present case. However, it does not follow that the primary judge erred in adopting that part of the submission. The submission refers to other matters, such as the email of 15 February 2024 sent by a law graduate Joshua Kerr in the employ of the appellants' solicitors, which responds to correspondence from solicitors acting for some of the respondents to the effect that consent would not be provided for an adjournment pending completion of the public examinations. Mr Kerr replied:

We are instructed that our client will not make an application to extend time for service.

Accordingly, please find attached by way of service:

1. Sealed copy of Originating Process; and
2. Affidavit of Neil Cussen affirmed 19 January 2024.

1. Thus, in the knowledge that applications to extend the time for service were necessary, acquired no later than 30 January 2024, Mr Cussen decided he would not take that necessary step and instead purported to serve the proceedings and the affidavit in support.
2. The submissions also correctly note that orders were made on 16 February 2024, requiring the appellants to make any application to extend time for service by 4 pm on 8 March 2024. That order was not complied with. No formal application to extend the time for service was made until 12 March 2024. Mr Cussen did not offer an explanation for the failure to comply with the orders of 16 February 2024.
3. The primary judge at PJ [169] found that Mr Cussen's conduct in "arrogating to himself the role of deciding when to effect proper service on the respondents, flying in the face of the Rules and the applicable principles, is made even worse in light of the leisurely way he has approached his task since his appointment, and his unfortunate practice of making court applications on the final day of limitation periods". The finding was plainly open on the evidence.
4. No discretionary error is made out. This ground fails.

1. The complaint is that the primary judge fell into discretionary error by considering an irrelevant consideration, namely that Mr Cussen had a practice of making court applications on the final day of limitation periods: PJ [169].
2. The selection of factors to extend time, or refuse to do so, is peculiarly a fact sensitive matter, as is the relative significance to be attributed to each factor: Hunter v Hanson [2014] NSWCA 263 at [60]. There was ample evidence of belated applications throughout; commencing with the applications to extend time pursuant to s 588FF(3) on 21 July 2022, one day before expiry of the three year period. Another belated step is that the originating process in each proceeding was not filed until 22 January 2024, being the last day to do so pursuant to the extension order: PJ [48].
3. There is no merit in this ground.

1. This is another prolix ground. The complaint is that the primary judge failed to consider nine relevant considerations:

(1) the fact (as his Honour should have found) that there was no evidence that the respondent[s] had suffered any actual prejudice by reason of the applicants' late service of the originating process and affidavit in support on it.

(2) the fact (as his Honour should have found) that the presumptive prejudice suffered by the respondent[s] by reason of the applicants' late service of the originating process was minor and/or insignificant.

(3) the fact that immediately upon becoming aware of the decision in Horne (and by implication, that he had breached r. 2.7), the liquidator instructed his legal advisers to effect service of the originating process and affidavit in support, and to apply to adjourn the proceeding[s] until after the public examinations had been conducted;

(4) the short duration of the period from when the applicants breached r. 2.7 until they effected (factual, if not legal) service of the originating process and affidavit on the respondent[s];

(5) the fact that the liquidator's decision not to serve the originating process on the respondent[s] extended no further in time than from 30 January 2024 (alternatively 22 January 2024) until [the relevant date of factual service];

(6) the fact that the liquidator's decision not to serve the originating process and the affidavit in support on the respondent[s] was made by him as a result of legal advice received from his lawyers on 30 January 2024;

(7) the fact that, notwithstanding that the applicants did not serve the originating process and affidavit in support on the respondent[s] in accordance with rule 2.7, the applicants did otherwise seek to (and substantially did) comply with the directions of the Court in respect of them, including the direction by the Court on 25 January 2024 that the applicants promptly notify the respondent[s] of the hearing to be held on the return date of 2 February 2024;

(8) the merits of the claims against the respondent[s] in the proceeding[s], based on the present state of the evidence;

(9) the fact that the liquidator did not bring the proceeding[s] for his personal benefit, but for the benefit of the company and its creditors.

1. In dealing with these complaints, it is important to keep in mind that an appeal is constrained in matters of practice and procedure, where there is a presumption in favour of correctness: Adam P Brown Male Fashions v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177.
2. The appellants' contention in relation to the first consideration may be readily disposed of. The respondents did not claim actual prejudice. The onus fell on the appellants to establish absence of prejudice. This consideration is therefore irrelevant and no error is established.
3. The balance of the complaints may be shortly addressed seriatim. Each lacks merit.
4. As to the second, there was obvious presumptive prejudice by reason of significant delay. As observed in Horne at [161]:

The events the subject of the proceeding occurred more than six years prior to the applicants seeking an extension, and more than seven years prior to the respondents being served. The principle of presumptive prejudice reflects the adverse effect of the effluxion of time on defendants' ability to prepare their defences.

1. The voidable transaction proceedings as formulated were sparse in detail, extending to no more than monetary claims for relief in specific amounts and as stated in each originating application. A little more detail was contained in the affidavits of Mr Cussen made on 19 January 2024 in each of the 2024 proceedings. The date ranges asserted for the defeasible transactions span the period 2 November 2016 to 22 March 2018 as follows:

1. The primary judge was alert to this. He was the judge who made the extension order and the affidavits were read at the hearing in June 2024. The delay relevant to presumptive prejudice was clearly not confined to late service of the originating applications.
2. The primary judge did not overlook the third fact: PJ [59].
3. The primary judge was aware of and considered the fourth and fifth considerations: PJ [2], [3], [52], [56] and [170].
4. The matter in the sixth point was considered, correctly in our view when addressing ground 4.
5. As to the seventh matter, the ground and the submissions in support fail to reveal how this was material to the exercise of the discretion reposed in the primary judge. In any event, the primary judge was well aware of the direction given by the Court on 25 January 2024: PJ [49]. His Honour was also aware of what occurred at the case management hearing on 2 February 2024: PJ [56] - [57].
6. The merits of the claims, matter eight, were not as correctly submitted by Payton, ever fully ventilated before the primary judge. The originating applications do not reveal the merit of each claim, and the affidavits of Mr Cussen did not take the factual basis much further. The primary judge was well aware that the appellants contended for substantial recovery proceedings, exceeding $27,000,000: PJ [27]. Nonetheless, the explanations for the delay in serving claims that Mr Cussen considered meritorious were "wholly inadequate": PJ [171].
7. As to the ninth matter, it was obvious that Mr Cussen did not bring the proceedings for personal benefit and otiose to record that fact. How it is said that the failure by the primary judge to state that fact infected his discretion was left undeveloped in submissions.
8. This ground fails.

1. An extension of time to apply for leave to appeal and leave to appeal will be granted in each appeal.
2. The primary judge was correct to:

(a) Dismiss each application to extend time in proceedings VID 31/2024 (Sinoace BVI), VID 32/2024 (Zuccubarr), VID 33/2024 (Payton), VID 34/2024 (Timswee) and VID 35/2024 (Rill Trading); and

(b) Set aside the order made on 9 March 2023 in proceeding VID 410/2022 in so far as it applied to Sinoace BVI.

(a) Determining that he had no power to re-hear the application pursuant to s 588FF(3) for an extension of time to commence a proceeding against Sinoace BVI; and

(b) Dismissing the application to extend time for service in proceeding VID 31/2024 (Sinoace BVI).

1. It follows that each appeal will be dismissed, save for appeal VID 754/2024 which will be allowed. The question of costs may not be as straightforward as following the respective events. Time will be allowed for short written submissions and resolution of costs on the papers.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Sarah C Derrington, Anderson and McElwaine.