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[2015] HCA 8
appellant. Both appeals allowed with costs. The Court of Appeal orders were set aside. The orders of Black J dismissing the appellants’ applications were set aside; the variation order made by Ward J on 19...
The liquidators received one valid extension of the statutory deadline for bringing voidable-transaction proceedings. After the original statutory period had expired, a New South Wales procedural rule could not be used to extend that deadline again. The High Court set aside the further extension and dismissed the liquidators’ application.
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1,890 words · generated 04/10/2026
These joined appeals concerned the deadline for a liquidator to apply for orders concerning a company transaction that is voidable under the Corporations Act 2001 (Cth). The relevant power is in s 588FF(1). Section 588FF(3) limits when such an application may be made and allows a court, on a liquidator’s application made within the statutory period, to order a longer period.
Octaviar Limited’s relation-back day was 4 June 2008. The High Court explained that, on the facts, the paragraph (a) period under s 588FF(3) ended on 4 June 2011 ([2]). The liquidators applied for an extension on 10 May 2011, while that period was still running ([3]). On 30 May 2011, Hammerschlag J extended the period for bringing proceedings to 3 October 2011 ([3]).
4 cited instruments linked from this judgment.
The paragraph (a) period then expired. A further application was made within the period specified by the first extension. On 19 September 2011, Ward J used r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) to vary the earlier order, moving the deadline to 3 April 2012 ([4]). The appellants sought to have that variation set aside. Black J dismissed their applications, and a majority of the Court of Appeal dismissed their appeals ([5]).
The High Court’s central question was whether a State procedural rule could provide a further extension after the statutory paragraph (a) period had expired, when a court had already made an extension order under s 588FF(3)(b) ([6]). It concluded that it could not. Both appeals were allowed with costs. The variation order was set aside and the liquidators’ application was dismissed. The liquidators were ordered to pay the costs of the proceedings.
The Court began with the statutory language. Section 588FF(3) provides that an application under s 588FF(1) “may only be made” during the paragraph (a) period, or within a longer period ordered by the court under paragraph (b) ([1], [22]). The Court read “may only be made” as applying to both paragraphs, not as a general permission to use other procedural powers to extend time ([22]).
That reading gave the time requirement a substantive role in the statutory scheme. The Court said the requirement defines the court’s jurisdiction and is an essential condition of the right conferred by s 588FF(1) to seek orders concerning voidable transactions ([22]). The deadline was therefore not merely a procedural timetable that could be adjusted using ordinary court rules.
The Court connected that interpretation to s 79(1) of the Judiciary Act 1903 (Cth). Section 79 generally makes State procedural laws binding on courts exercising federal jurisdiction in the State, “except as otherwise provided” by Commonwealth law ([7]). A State rule is not picked up where the Commonwealth law is inconsistent with it or leaves no room for it to operate ([8]). The Court held that s 588FF(3) otherwise provided because it was inconsistent with using a State rule to vary the time fixed under the statutory scheme ([23]).
The statutory purpose reinforced this reading. The Court referred to the history described in the Harmer Report and to the discussion in BP Australia Ltd v Brown. That material linked the time limit to concerns about delay in bringing proceedings of this kind and a policy favouring certainty ([18]-[20]). As the Court noted, s 588FF(3) limits the time in which proceedings may be brought, while allowing a liquidator to seek a longer period through a defined statutory mechanism ([21]). The paragraph (a) period had also been amended to include an alternative calculation, but the Court held that this did not detract from the statutory aim of certainty ([20]-[21]).
The Court rejected the respondents’ reliance on Gordon v Tolcher as an analogy. In Gordon, the liquidator’s s 588FF(1) proceedings had been instituted within the statutory period. The State rules were used to address the procedural consequences of the action becoming dormant, not to extend the statutory period for commencing the s 588FF(1) application ([13]-[15]). The Court treated that distinction as decisive. Gordon supported the operation of State procedural rules in the conduct of proceedings once a timely application had been instituted. It did not support using those rules to enlarge the time for instituting the statutory application itself ([15]-[17]).
The first extension order was valid. It was made under s 588FF(3)(b), on an application made before the paragraph (a) period expired. But, once that period had expired, the UCPR could not be used to extend the deadline again. The Court described s 588FF(3)(b) as the only power to vary the paragraph (a) period, and said that power could not be supplemented or varied by procedural rules ([23]-[24]).
Before these appeals, s 588FF(3) already set statutory periods for applications concerning voidable transactions and permitted a court to order a longer period on a liquidator’s application made within the paragraph (a) period. The provision was not treated as a mere procedural stipulation. Gordon v Tolcher had explained that the timing requirement was part of the regime created by s 588FF and that bringing an application within the required period was a precondition to the court’s jurisdiction under s 588FF(1) ([17]).
The statutory background also included an earlier proposal for a three-year limit and a power for the court to extend time. The High Court referred to the Harmer Report’s account of concerns about delays in pursuing voidable-transaction proceedings and the recommendation for a more rigorous, though reasonable, time limit ([18]). It also recounted that s 588FF(3)(a) originally included a three-year period and was later amended to include the alternative period ending 12 months after the first appointment of a liquidator ([19]-[20]).
The result in Grant Samuel and JPMorgan clarified how that scheme interacts with State procedural rules. A liquidator could obtain an extension through s 588FF(3)(b), provided the statutory requirements were met. But the order could not be enlarged again under a general procedural rule after the paragraph (a) period had passed. In this respect, the decision distinguishes the statutory question of whether an application may still be brought from procedural questions about how an already instituted proceeding is conducted.
The judgment did not say that State procedural rules have no place in s 588FF proceedings. Rather, it explained that they may govern matters left open after an application has been instituted, as in Gordon. The limit is that those rules cannot be used to alter the statutory time for making the application under s 588FF(1) ([15], [23]).
At [22], the Court said: “The phrase ‘may only be made’ should be read with both paragraphs.” In plain English, the permitted time is the period in paragraph (a), or the longer period ordered under paragraph (b). The Court did not read the wording as allowing a further route to extend time through general procedure.
At [22], the Court also described the time requirement as “an essential condition” of the right to bring proceedings under s 588FF(1). This means that meeting the statutory time limit is not simply a matter of complying with a court timetable. It is part of the statutory basis on which the application can be brought.
At [23], the Court stated: “The only power given to a court to vary the par (a) period is that given by s 588FF(3)(b).” In plain English, the legislation itself supplies the available extension power. A general procedural rule cannot add another extension power.
At [23], the Court explained that State and Territory court rules cannot vary the time fixed by s 588FF(3), “because s 588FF(3) otherwise provides.” This applies the qualification in s 79(1) of the Judiciary Act. State procedural law is generally picked up in federal jurisdiction, but not where Commonwealth legislation has provided otherwise.
At [24], the Court applied that reasoning to the orders before it: the first extension permitted proceedings to be brought by 3 October 2011, but “no further extension could be granted once the par (a) period had elapsed.” The practical distinction was between a timely application for the statutory extension, which produced a valid order, and a later attempt to vary that order under a State rule.
The decision is directly relevant where a liquidator seeks orders under s 588FF(1) concerning an alleged voidable transaction and the time for making that application is disputed. In particular, it addresses a sequence where the liquidator applies for an extension under s 588FF(3)(b) during the paragraph (a) period, obtains an extension, and then seeks a further extension after paragraph (a) has expired by relying on a State or Territory procedural rule.
The key factual feature is not simply that an extension was sought. It is that the second extension would alter the time for making the statutory application itself. The judgment treats that differently from procedural steps affecting a proceeding that was already instituted within the statutory period. Gordon v Tolcher illustrates the latter category: the rules there addressed the consequences of an action becoming dormant, rather than the time for first bringing the s 588FF(1) application ([13]-[15]).
The judgment does not decide every possible question about the operation of s 588FF(3)(b), such as the appropriate length of an extension or what material must support an extension application. Its holding concerns the relationship between that subsection and State procedural rules when a further extension is sought after the paragraph (a) period has expired.
The supplied judgment contains no discussion of later decisions applying, distinguishing, or limiting Grant Samuel and JPMorgan Chase Bank v Fletcher. It therefore does not provide a basis for describing how later courts have treated the decision.
Within its own reasoning, the High Court explained and distinguished Gordon v Tolcher. It also relied on the statutory-purpose discussion in BP Australia Ltd v Brown and referred to authorities concerning statutory time limits, including David Grant & Co Pty Ltd v Westpac Banking Corporation and Australasian Memory Pty Ltd v Brien ([18], [22]-[23]). Those are authorities considered in the judgment, not examples of later treatment of this 2015 decision.
The judgment leaves open matters outside the issue it had to decide. It does not determine how a court should exercise the extension power in s 588FF(3)(b), including the circumstances that justify a particular extension or the period that should be allowed. It decides only that the State procedural rules cannot provide a further extension after the paragraph (a) period has expired.
The Court also deliberately put aside a question about whether the application on which Hammerschlag J made the first extension order remained extant when Ward J made the variation order, or whether the first order had finally disposed of that matter ([10]). The appeals could be resolved without deciding that point because the controlling issue was whether s 588FF(3) excluded the UCPR from varying the statutory time ([10]).
The judgment does not address procedural rules governing steps taken after a timely s 588FF(1) application has been commenced, beyond its explanation of Gordon v Tolcher. Nor does the supplied text establish how later legislation or later decisions may have affected the interpretation. Those questions require sources beyond this judgment.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, KIEFEL, BELL, GAGELER AND KEANE JJ
Matter No S228/2014
GRANT SAMUEL CORPORATE FINANCE PTY
LIMITED APPELLANT
AND
WILLIAM JOHN FLETCHER AND KATHERINE
ELIZABETH BARNET AS LIQUIDATORS OF
OCTAVIAR LIMITED (RECEIVERS AND
MANAGERS APPOINTED) (IN LIQUIDATION)
AND OCTAVIAR ADMINISTRATION PTY
LIMITED (IN LIQUIDATION) & ORS RESPONDENTS
Matter No S229/2014
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION & ANOR APPELLANTS
AND
WILLIAM JOHN FLETCHER AND KATHERINE
ELIZABETH BARNET AS LIQUIDATORS OF
OCTAVIAR LIMITED (RECEIVERS AND
MANAGERS APPOINTED) (IN LIQUIDATION)
AND OCTAVIAR ADMINISTRATION PTY
LTD (IN LIQUIDATION) & ORS RESPONDENTS
Grant Samuel Corporate Finance Pty Limited v Fletcher
JPMorgan Chase Bank, National Association v Fletcher
[2015] HCA 8
11 March 2015
S228/2014 & S229/2014
ORDER
Matter No S228/2014
Appeal allowed with costs.
Set aside paragraph 2 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 28 February 2014 and, in its place, order that:
(a) the appeal is allowed with costs; and
(b) paragraphs 1 and 3 of the order of Black J made on 8 February 2013 are set aside and, in their place, it is ordered that:
(i) paragraph 2 of the order of Ward J made on 19 September 2011 is set aside and, in its place, it is ordered that the liquidators' application is dismissed; and
(ii) the liquidators pay the costs of the proceedings.
Matter No S229/2014
Appeal allowed with costs.
Set aside paragraph 2 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 28 February 2014 and, in its place, order that:
(a) the appeal is allowed with costs; and
(b) paragraphs 1 and 3 of the order of Black J made on 8 February 2013 are set aside and, in their place, it is ordered that:
(i) paragraph 2 of the order of Ward J made on 19 September 2011 is set aside and, in its place, it is ordered that the liquidators' application is dismissed; and
(ii) the liquidators pay the costs of the proceedings.
On appeal from the Supreme Court of New South Wales
Representation
A J L Bannon SC with P M Knowles for the appellant in S228/2014 (instructed by Watson Mangioni Lawyers Pty Limited)
C R C Newlinds SC with N M Bender for the appellants in S229/2014 (instructed by Corrs Chambers Westgarth Lawyers)
B A J Coles QC with P J Dowdy and A K Flecknoe-Brown for the respondents in both matters (instructed by Henry Davis York)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Grant Samuel Corporate Finance Pty Limited v Fletcher
JPMorgan Chase Bank, National Association v Fletcher
Corporations – Winding up – Voidable transactions – Section 588FF(3) of Corporations Act 2001 (Cth) provided that application with respect to voidable transactions under s 588FF(1) "may only be made" during period set out in s 588FF(3)(a) or "within such longer period as the Court orders" on an application made by liquidator during par (a) period – On application made by liquidators after par (a) period had expired, Supreme Court made order under r 36.16(2)(b) of Uniform Civil Procedure Rules 2005 (NSW) varying date by which liquidators could make application under s 588FF(1) – Whether UCPR could be utilised to extend time within which proceedings under s 588FF(1) could be brought – Whether s 588FF(3) "otherwise provided" within meaning of s 79(1) of Judiciary Act 1903 (Cth).
Words and phrases – "otherwise provided", "picked up".
Corporations Act 2001 (Cth), s 588FF.
Judiciary Act 1903 (Cth), s 79(1).
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b).
"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."
Where an order has been made that a company be wound up and the winding up is taken to have begun on the day the order was made, the "relation-back day" is the day on which the application for the order was filed1. In the liquidation of the second respondent in these appeals ("Octaviar Limited"), the relation-back day was 4 June 2008. The effect of the period of limitation stated in s 588FF(3)(a) ("the par (a) period") in this case was to require an application under s 588FF(1) to be made by the liquidators of Octaviar Limited by 4 June 2011, unless the Court2 ordered, under s 588FF(3)(b), that an application could be made within a longer period.
On 10 May 2011, the first respondent in these appeals ("the liquidators") applied to the Supreme Court of New South Wales for an order extending the period within which they might bring proceedings under s 588FF(1). On 30 May 2011, Hammerschlag J extended that period to 3 October 2011 ("the extension order").
A further application was made to the Supreme Court within the period of that extension, but after the par (a) period had expired. On 19 September 2011, Ward J made an order on that application, under r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), varying the extension order by changing the date set by Hammerschlag J by which the liquidators could make an application under s 588FF(1), to 3 April 2012 ("the variation order").
Each of the above-mentioned orders was made on the ex parte application of the liquidators. Application was subsequently made by the appellants in these two appeals to set aside the variation order. Black J dismissed those applications. A majority of the Court of Appeal dismissed the appeals from Black J's decision.
These appeals raise the question, generally stated, whether a court, on an application made outside the par (a) period, but within an extended period ordered under s 588FF(3)(b) on an application made in the par (a) period, may exercise power under the general rules of procedure in the UCPR to further extend time for the making of an application under s 588FF(1). Attention is therefore directed to the relationship between the provisions of the Corporations Act and the general procedural rules of the UCPR.
Section 79(1) of the Judiciary Act 1903 (Cth) provides that the laws of each State or Territory, including the laws relating to procedure, shall, "except as otherwise provided by the Constitution or the laws of the Commonwealth", be binding on all courts exercising federal jurisdiction in that State or Territory. It has been observed3 that the Corporations Act does not directly impose a universal, federal procedural regime, but rather leaves s 79 of the Judiciary Act to operate according to its terms in the State or Territory concerned. The particular question on these appeals arises from those terms. It is whether s 588FF(3) "otherwise provides", so that the UCPR are not picked up by s 79.
Corporations Act 2001 (Cth), s 9. ↩
Corporations Act 2001, s 58AA. ↩
Gordon v Tolcher (2006) 231 CLR 334 at 348 [40]; [2006] HCA 62. ↩
Cf Northern Territory v GPAO (1999) 196 CLR 553 at 589 [84]; [1999] HCA 8. ↩
JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher (2014) 85 NSWLR 644 at 672-673 [152], 674 [160], 675 [166]. ↩
Cf JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher (2014) 85 NSWLR 644 at 676 [171]. ↩
JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher (2014) 85 NSWLR 644 at 662 [89]. ↩
JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher (2014) 85 NSWLR 644 at 673 [154]-[155]. ↩
See Gordon v Tolcher (2006) 231 CLR 334 at 343 [17]. At the relevant time, s 588FF(3)(a) only provided that an application must be brought "within 3 years after the relation-back day". As discussed later in these reasons, the additional period now appearing in s 588FF(3)(a)(ii) was subsequently added. ↩
(2006) 231 CLR 334 at 346 [32]-[33]. ↩
Gordon v Tolcher (2006) 231 CLR 334 at 348-349 [41].
(2006) 231 CLR 334
(1999) 196 CLR 553
(2014) 85 NSWLR 644
(2003) 58 NSWLR 322
(1995) 184 CLR 265
(2000) 200 CLR 270
Both appeals allowed with costs. The Court of Appeal orders were set aside. The orders of Black J dismissing the appellants’ applications were set aside; the variation order made by Ward J on 19 September 2011 was set aside; and the liquidators’ application was dismissed. The liquidators were ordered to pay the costs of the proceedings.
Section 588FF(3) may be said to "otherwise provide" if it is inconsistent with so much of the general rules of procedure in the UCPR as would permit variation of the time fixed by the extension order. Inconsistency in this sense may be taken to include that s 588FF(3) leaves no room for the operation of the UCPR4, which would be the case if s 588FF(3)(b) is clearly intended to be the exclusive source of power to extend time for the purposes of s 588FF(1).
A majority of the Court of Appeal (Macfarlan and Gleeson JJA) held5 that the only restriction placed by s 588FF(3)(b) on the court's power to extend time for bringing proceedings under s 588FF(1) is that the court's order be made on an application made by the liquidator during the par (a) period. On this view, s 588FF(3)(b) does not require that the order, as distinct from the application, be made in that period. Their Honours considered that, in this case, it would be sufficient that the application for extension made within the par (a) period remained on foot when Ward J made the variation order.
There may be a question whether the application on which Hammerschlag J made the extension order was extant at the time Ward J made the variation order, or whether the extension order finally disposed of the matter before Hammerschlag J. This may be put to one side. The real issue on these appeals is whether s 588FF(3) "otherwise provides" so that the relevant rule of the UCPR permitting variation of the extension order cannot apply. This was not a question which the majority in the Court of Appeal addressed6. It may be inferred that their Honours accepted that Ward J could not, and did not, exercise the power given by s 588FF(3)(b) to grant the further extension by making the variation order. Their Honours assumed that r 36.16(2)(b) of the UCPR could apply even though an order under s 588FF(3)(b) had been made and the par (a) period had expired.
Beazley P, who was in dissent in the Court of Appeal, considered7 that, to the extent that it permits a new or further application to be made for an extension of time, r 36.16(2)(b) is inconsistent with s 588FF(3)(b) and could not therefore be picked up by s 79 of the Judiciary Act.
The majority considered8 there to be an analogy with the circumstances in Gordon v Tolcher, where the District Court Rules 1973 (NSW) were applied. Gordon v Tolcher was regarded as establishing that, once an application for extension of time is made in conformity with s 588FF(3)(b), the conduct of the litigation is left for the operation of the procedures of the court in which the application is made.
In Gordon v Tolcher, a liquidator instituted proceedings in the District Court of New South Wales seeking orders pursuant to s 588FF(1) with respect to what were alleged to be voidable transactions. Those proceedings were instituted shortly before the end of the three year period fixed by s 588FF(3)(a) as it then stood9. There was no need for an extension of time under s 588FF(3)(b) as the application under s 588FF(1) was brought within time.
A further relevant aspect of Gordon v Tolcher which sets it apart from this case is that the rules of the District Court were employed for a different purpose, namely to overcome the effect of their automatic operation on the proceedings which had been instituted. The circumstances in Gordon v Tolcher were that the statement of liquidated claim had not been served on the defendant and therefore no defence had been filed. The effect of Pt 18, r 9 of the District Court Rules, where a defence had not been filed within a certain time from the date of the commencement of the action, was that the action was treated as dormant and taken to be dismissed. A judge of the District Court declined to make an order having the effect of rescinding the dismissal of the liquidator's action. On appeal, the Court of Appeal made an order under Pt 3, r 2(2) of the District Court Rules extending the time for serving the statement of liquidated claim, thus overcoming the effect of the District Court Rule deeming the action to be dismissed.
As this Court said in Gordon v Tolcher10, that appeal could be disposed of simply upon the basis that the procedural regulation of a matter, after the institution of an application, is left to the State or Territory procedural law. The application in question was that filed under s 588FF(1). In the circumstances of that case, s 588FF clearly did not "otherwise provide" so as to deny the operation of s 79 "to pick up so much of the Rules as supported the orders made by the Court of Appeal."11
It is evident from the conclusion reached in Gordon v Tolcher that the Court rejected the appellant's submission12 that the liquidator's request to apply the provisions of Pt 3, r 2 was in effect an application for extension made outside the three year period and therefore not authorised by s 588FF(3). It is no doubt because of that submission that the Court felt obliged to say something more about the provision for time in s 588FF(3).
The Court in Gordon v Tolcher said13 that s 588FF deals with the period within which an application under s 588FF(1) is to be made, as an essential aspect of the regime s 588FF creates. The provision in s 588FF(3), as to the time for the making of the application, is not to be characterised merely as a procedural stipulation as to time14. It would follow that the bringing of an application within the time required by s 588FF(3)(a) or (b) is a precondition to the court's jurisdiction under s 588FF(1).
The Court in Gordon v Tolcher referred to the explanation which had been given by Spigelman CJ in BP Australia Ltd v Brown15 as to the significance of s 588FF(3) in the statutory scheme. In the Harmer Report16, which was published in 1988, it had been observed that the Australian Law Reform Commission ("the ALRC") had earlier proposed that a liquidator should have only three years within which to commence proceedings to recover the proceeds of voidable transactions, instead of the six years which were then allowed under legislation such as the Bankruptcy Act 1966 (Cth), although the ALRC had also proposed that the court should have power to extend the period of three years. The ALRC had received many submissions complaining of inordinate delay in the commencement of proceedings of this kind and there had been judicial observations critical of delays in winding up insolvent companies. The Harmer Report recommended that liquidators be placed under a more rigorous, though reasonable, time limit.
In a passage from BP Australia Ltd v Brown17, which was cited in Gordon v Tolcher18, Spigelman CJ said that the legal policy which underlies s 588FF(3) is one which favours certainty. Whilst that provision does not have the effect of requiring all applications under s 588FF(1) to be brought within a short period of time, it does have the effect "of requiring those who wish to keep open the option to do so, to determine that they do wish to do so within the three year period and to seek a determinate extension of the period." His Honour said that "Parliament has identified a reasonable time for such matters to occur, subject to a single determinate extension of time."
At the time BP Australia Ltd v Brown was decided, s 588FF(3)(a) contained only the requirement now appearing in sub-par (i), that proceedings be brought within three years of the relation-back day. Subsequently, in 200719, an alternative time limitation, that appearing now in sub-par (ii), was added whereby an application under s 588FF(1) may be brought 12 months after the first appointment of a liquidator in a winding up. The provision in s 588FF(3)(b), whereby the court may fix a further period, has remained throughout.
The addition of the alternative time limitation in s 588FF(3)(a)(ii) does not detract from the force of what was said in BP Australia Ltd v Brown concerning the statutory aim of certainty which is evident in s 588FF(3). If anything, it tends to reinforce the decision of the legislature, in balancing in a liquidation the competing interests of creditors and those who have dealt with the company and might be the subject of s 588FF(1) proceedings, to limit the times within which such proceedings may be brought. Section 588FF(3) does so in language which may be described as "clear and emphatic"20.
Section 588FF(3) provides that an application under s 588FF(1) "may only be made" within the periods set out in pars (a) and (b) of s 588FF(3). The phrase "may only be made" should be read with both paragraphs. So understood, the term "may only" has the effect of defining the jurisdiction of the court by imposing a requirement as to time as an essential condition of the right conferred by s 588FF(1) to bring proceedings for orders with respect to voidable transactions. An element of that right is that it must be exercised within the time specified21. This is what is conveyed by Gordon v Tolcher.
The only power given to a court to vary the par (a) period is that given by s 588FF(3)(b). That power may not be supplemented22, nor varied, by rules of procedure of the court to which an application for extension of time is made. The rules of courts of the States and Territories cannot apply so as to vary the time dictated by s 588FF(3) for the bringing of a proceeding under s 588FF(1), because s 588FF(3) otherwise provides. It provides otherwise in the sense that it is inconsistent with so much of those rules as would permit variation of the time fixed by the extension order.
The extension order made on 30 May 2011 was within power. As a result of that order, proceedings under s 588FF(1) could be brought by 3 October 2011, but no further extension could be granted once the par (a) period had elapsed. The UCPR could not be utilised to further extend the time within which proceedings under s 588FF(1) could be brought.
The appeals should be allowed with costs. The orders of the Court of Appeal should be set aside and in lieu thereof it should be ordered that leave to appeal be granted, the appeals be allowed with costs, the orders of Black J dismissing the appellants' applications with costs be set aside and the respondents pay the costs of those proceedings. The variation order made on 19 September 2011 should be set aside.
Gordon v Tolcher (2006) 231 CLR 334 at 336-337. ↩
Gordon v Tolcher (2006) 231 CLR 334 at 348 [40]. ↩
Gordon v Tolcher (2006) 231 CLR 334 at 347 [37]. ↩
(2003) 58 NSWLR 322. ↩
Australia, The Law Reform Commission, General Insolvency Inquiry, Report No 45, (1988), vol 1 at 282-283 [688]. ↩
(2003) 58 NSWLR 322 at 345 [115], 346 [118]. ↩
(2006) 231 CLR 334 at 348 [39]. ↩
Corporations Amendment (Insolvency) Act 2007 (Cth). ↩
Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300, referring to Corporations Law, s 459G(2) and (3). ↩
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 277; [1995] HCA 43. ↩
BP Australia Ltd v Brown (2003) 58 NSWLR 322 at 337 [65], quoting Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270 at 281 [22]; [2000] HCA 30. ↩