Consideration
21 Mr McAloon has not been able to refer me to any decision dealing with an application of this sort. However, in my view, the principles governing such an application for an extension of time are analogous to those applicable in circumstances where a party must seek an extension of time to lodge an appeal. The considerations that are usually relevant to the exercise of such a discretion include the length of the delay, whether the applicant has provided an acceptable explanation for the delay and whether there is any prejudice to any other party: see, by way of example, Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349; and Mehmood v Attorney-General (Commonwealth) [2013] FCA 406; 141 ALD 339 at [3]-[6].
22 The evidence before me demonstrates, as counsel submitted, that the plaintiffs have made their applications promptly, only days after becoming aware of the expiry of their respective registrations. They have provided a frank explanation of the circumstances giving rise to the need for an extension, which circumstances include that, unlike at least one other of their partners, they did not receive a reminder or notice in the form that has apparently been provided by ASIC to other liquidators. The plaintiffs have also adduced evidence as to why it is highly likely that their respective registrations will be renewed, which evidence is to the effect that they are experienced liquidators who have satisfied all of the relevant continuing professional development requirements and have not been the subject of any ethical or related complaints. ASIC has been served with the applications, although that only occurred yesterday. At least as things currently stand, it is also difficult to point to any prejudice that could be caused by the extensions that are sought.
23 For those reasons, I propose to make an order in each of the proceedings in the terms set out at [1(1)] above.
24 As to the second order sought by each of the plaintiffs, which seeks to regularise the position with respect to their appointments as liquidators and administrators, as at present advised, I am of the view that there is some considerable doubt about whether the Court has power to make such orders, unless and until the plaintiffs again become registered liquidators, which they currently are not. I say that because s 45-1 of Sch 2 to the Corporations Act provides in sub-s (1): "The Court may make such orders as it thinks fit in relation to a registered liquidator".
25 In circumstances where counsel appearing for the plaintiffs is unable to point to any other power in the Court to make the second of the orders sought this morning, and in circumstances where the Court has not yet received the benefit of any submissions from ASIC, the better course now is to adjourn to a date to be fixed the further hearing of the application by each of the plaintiffs for those orders.
26 In the meantime, the plaintiffs, obviously enough, will proceed as counsel has assured me they will proceed, as soon as is possible, to file their respective applications for renewal via ASIC's online portal. As I understand the submissions from counsel for the plaintiffs, it is not possible for the plaintiffs to make any application for renewal out of time, or otherwise, other than through that portal. It will accordingly be necessary for ASIC, upon receipt of the Court's order and these reasons, as a matter of urgency, to do that which is necessary to enable each of the plaintiffs to make their applications for renewal out of time in accordance with the Court's order.
27 I should also add, because counsel for the plaintiffs, in his very helpful submissions, referred to it, that ASIC has acknowledged the prospect of judicial intervention in respect of acts taken by liquidators at a time when their registrations are expired by reason of the new regime for renewals. In particular, RG 258.77(b) of Regulatory Guide 258, to which I earlier referred, includes the following note:
Note: Your registration may cease to have effect even though you obtain an extension of time to lodge your renewal. You may need to take steps to obtain court orders in relation to actions taken by you after your registration ceases to have effect.
28 Accordingly, the further hearing of these applications will be adjourned to a date to be fixed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.