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[2026] NSWSC 509
Supreme Court of NSW
2026-05-12
Brereton J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of NKD Transport Pty Ltd [2026] NSWSC 509
Hearing dates: 5 May 2026
Date of orders: 5 May 2026
Decision date: 12 May 2026
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision: Extension of time granted for determination of winding up application
Catchwords: CORPORATIONS – winding up – insolvency – time limit of six months for determination of proceedings – whether the Court should extend period within which winding up application must be determined nunc pro tunc – whether slip rule applies
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 In the matter of Care A2 Plus Pty Ltd [2024] NSWSC 1677
Texts Cited: N.A.
Category: Procedural rulings
Parties: Citylink Melbourne Limited trading as Linkt (plaintiff)
NKD Transport Pty Ltd (defendant)
Representation: Counsel:
J Parrish (plaintiff)
B E Akinyemi (solicitor) (defendant)
Solicitors:
BBW Lawyers (plaintiff)
Silver & Slate Lawyers (defendant)
File Number(s): 2025/413605
Publication restriction: N.A.
By originating process filed 27 October 2025, the Plaintiff made an application for the winding up of the Defendant, NKD Transport Pty Ltd under ss 459A and 459P of the Corporations Act 2001 (Cth). It is an application for winding up on the ground of insolvency. A preliminary question arose about whether the application should stand dismissed.
Section 459R of the Corporations Act provides relevantly as follows:
Period within which application must be determined
(1) An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.
(2) The Court may by order extend the period within which an application must be determined, but only if:
(a) the Court is satisfied that special circumstances justify the extension; and
(b) the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.
(3) An application is, because of this subsection, dismissed if it is not determined as required by this section.
(4) An order under subsection (2) may be made subject to conditions.
The six month period provided by s 459R(1) expired in this case on 27 April 2026. There was not, before that date, an application to extend time. It would ordinarily follow that by virtue of s 459R(3), proceedings would stand dismissed as the matter has not been determined within that six month period, and there was no extension sought and granted within that period. The Defendant submitted that the proceedings are now dismissed pursuant to that section.
The Plaintiff makes an application for an extension. It does so relying on the slip rule: see Uniform Civil Procedure Rules 2005 (NSW) r 36.17. There is authority to support the proposition that the slip rule can be taken advantage of in the context of s 459R: see, for example, the decision of In the matter of Care A2 Plus Pt**y Ltd [2024] NSWSC 1677 per Black J. At [9], his Honour referred to the decision of the Full Court of the Federal Court of Australia in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385. In that case, Lockhart J noted (at 404) that s 459R of the Corporations Act does not displace the slip rule so as to prevent the Court from making an order under that section nunc pro tunc*,* where that order was not made in error.
In Care A2, Nixon J made orders that a winding up application be heard at a time after the expiry of the six month period (as extended) in that case. Black J observed at [11] that:
…it seems to me plain beyond doubt that, had Nixon's J attention been drawn to the potential expiry of the earlier extension I had ordered under s 459R of the Act, when the matter was listed before him on 25 November 2024, he would have made a further order to extend the time for determination of the application under s 459R of the Act, to a date which extended for a reasonable period beyond today, when he listed the winding up application for hearing today…
It is necessary for me to consider the circumstances of this case to determine whether or not I should make an order under the slip rule, extending time under s 459R nunc pro tunc. The relevant question is not whether the Court can now extend time under s 459R(2), but whether the omission to do so within time may be corrected by the slip rule, with the consequence that an order extending time may be made nunc pro tunc.
Relevant circumstances in this case include the following matters. The proceedings first came before the Corporations List Registrar on 26 November 2025. On that occasion, orders were made which included an order that the Defendant file and serve any affidavits seeking a further adjournment by 4pm on 17 December 2025. The application for winding up was adjourned until 4 February 2026.
On 2 February 2026 the Plaintiff submitted orders via the online court, requesting that the matter be listed for directions on 4 February 2026 noting that the Plaintiff is ready to proceed with the winding up application. There was a change of solicitors for the Defendant that took place on or about 3 February 2026. On 4 February 2026, the matter was adjourned by consent until 25 February 2026.
On 25 February 2026, the Corporations List Registrar made orders adjourning the application until 24 March 2026. There was no appearance on that day by the Defendant. The Registrar directed that the Plaintiff was to notify the parties not appearing on that day the time, place and date of the adjourned hearing, and any other orders made.
On 20 March 2026 the Corporations List Registrar advised the parties that as the application for winding up was opposed, it could not be determined by the Registrar.
On 24 March 2026 the Corporations List Registrar made directions as follows:
(1) the application adjourned until 9am on 28 April 2026.
(2) costs are reserved.
(3) the Defendant to file/serve any affidavit by 23 April 2026.
When the matter came before the Corporations List Registrar again on 28 April 2026, the Defendant submitted that the time provided by s 459R(1) had expired and that the matter was therefore dismissed. The Registrar stood the matter over before the Corporations List Judge on 4 May 2026. On 4 May 2026, I fixed the matter to be heard on 5 May 2026.
The Plaintiff submits that had the Registrar been informed at the hearing on 24 March 2026 that the time provided by s 459R(1) would expire on 27 April 2026, it is inconceivable that she would have adjourned the matter until 28 April 2026 without, at the same time, making orders for the extension of the period within which the application must be determined. The Registrar has the power to make such orders under s 13 of the Civil Procedure Act 2005 (NSW): see Part 3 of the Schedule to the Supreme Court delegations.
The Defendant submits that the Registrar did not bear an onus to be alert to the six month time period that was imminently to expire, and that it was a matter that the Plaintiff should have raised. I accept that there was no onus on the Registrar to ascertain that the six month period was about to expire and raise that with the parties. It would have been desirable for the Plaintiff to have raised that matter before her. However, it seems to me that it could equally be said that the Defendant had a responsibility to raise the matter with the Registrar, and criticism could equally be directed at the Defendant as at the Plaintiff for failing to raise the six month time period before the Registrar on 24 March 2026, or at any other time.
In the passage of the decision Care A2 Plus to which I have made reference, Black J did not consider that there should be no application of the slip rule because the Applicant had some onus which it had not discharged to bring the matter to the attention of Nixon J.
I reject the submission that there should be no application of the slip rule in this case because the Plaintiff failed to meet some kind of onus to raise the matter with the Registrar.
I accept that had the parties, be it the Defendant or the Plaintiff, raised with the Registrar on 24 March 2026 that the six months would expire on 27 April 2026, it is inconceivable that the Registrar would have adjourned the matter until 28 April 2026 without also properly extending time under s 459R(2). The delays in this case were all occasioned by the Defendant. In my view, this is a case where the slip rule is properly engaged.
I make the following order:
Order pursuant to s 459R(2) of the Corporations Act extending the time, nunc pro tunc, for the determination of the Originating Process filed 27 October 2025 to 5 May 2026.
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(1995) 61 FCR 385