224

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION and Another v

FLETCHER (as liquidators of OCTAVIAR LTD) (recs and mgrs apptd)
(in liq) and Others (CA 2013/64153) 5
GRANT SAMUEL CORPORATE FINANCE PTY LTD v FLETCHER (as
liquidators of OCTAVIAR LTD) (recs and mgrs apptd) (in liq) and Others
(CA 2013/71401)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL 10

BEAZLEY P, MACFARLAN and GLEESON JJA

30 September 2013, 28 February 2014 — Sydney

[2014] NSWCA 31 15
Corporations — Liquidators — Section 588FF(3)(a) of the Corporations Act 2001
(Cth) (the Act) gives liquidators 3 years from the relation-back date to bring
applications in respect of voidable transactions — Liquidators sought, within the
3-year period, an extension of time to bring an application — Liquidators later
sought, outside the original 3-year period but within the extended period, a further 20
extension of time to bring an application — Whether the order further extending
time was validly made — Whether only one application may be brought under
s 588FF(3)(a) of the Act — Whether the order further extending time could be made
outside the original 3-year period — Whether the order further extending time could
be made in circumstances where the appellants, potentially affected by the order, 25
were not parties to the proceedings — (CTH) Corporations Act 2001 s 588FF —
(NSW) Uniform Civil Procedure Rules 2005 r 36.16.
Under s 588FF(3)(a) of the Corporations Act 2001 (Cth) (the Act), the respondents (the
liquidators) had 3 years from the relation-back date, here 4 June 2008, to bring an
application in respect of voidable transactions under s 588FF(1). Section 588FF(3)(b) of 30
the Act permitted a court of superior jurisdiction to order “on an application” by the
liquidators an extension of time to bring an application under s 588FF(1). Rule 36.16 of
the Uniform Civil Procedure Rules 2005 (the UCPR) also permitted the Supreme Court of
New South Wales to vary an order “in the absence of a party”.
On 30 May 2011, the liquidators applied for an order under s 588FF(3)(b) extending the
time for the making of an application under s 588FF(1). None of the appellants were 35
parties to the application. Hammerschlag J granted the liquidators an extension of time to
3 October 2011. On 19 September 2011, Ward J varied, pursuant to r 36.16(2)(b) of the
UCPR, the order of Hammerschlag J and extended the time for the making of an
application to 3 April 2012. Again, none of the appellants were parties to the proceedings.
Ward J’s order was made outside the original 3-year period but within the extended period 40
ordered by Hammerschlag J. The liquidators then filed applications under s 588FF(1),
claiming that the appellants were parties to voidable transactions.
The appellants made an interlocutory application to set aside Ward J’s orders on the
basis that the order was made outside the original 3-year period and therefore invalid.
Black J dismissed the application with costs: see Re Octaviar Ltd (recs and mgrs apptd)
(in liq) and Octaviar Administration Pty Ltd (in liq) (2013) 93 ACSR 316; [2013] 45
NSWSC 62.
On appeal the issues were:
(1) whether Ward J had power under r 36.16 of the UCPR to vary the order of
Hammerschlag J made on 19 September 2011 and in particular:
(a) whether only one application may be made under s 588FF(3)(b) for an 50
extension of time; and
306 ALR 224 JPMORGAN v FLETCHER (in liq) 225

(b) whether an order extending time under r 36.16 of the UCPR could be
made outside the original 3-year period prescribed by s 588FF(3)(a) of
the Act;
(2) whether Ward J had power under r 36.16(2)(b) of the UCPR to vary the order
of Hammerschlag J in circumstances where none of the appellants were parties
to the proceedings.
Held, per Macfarlan JA (Gleeson JA agreeing; Beazley P dissenting), dismissing the
appeal with costs:
Issue 1(a)
Per Beazley P (Macfarlan and Gleeson JJA agreeing):
(i) More than one application may be brought so long as each is brought within the
3-year period. Section 588FF(3) comprehensively governs the circumstances in which an
application for an extension of time may be made: at [84].
BP Australia Ltd v Brown (2003) 58 NSWLR 322; 46 ACSR 677; [2003]
NSWCA 216; Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17; [2003] QCA
298, considered.
Issue 1(b)
Per Beazley P (dissenting):
(ii) An application made under r 36.16(2)(b) of the UCPR would invariably only be
made upon new or additional facts, and is, in effect, a new application calling for a fresh
exercise of the discretion to extend time. This application, being outside the 3-year period
prescribed by s 588FF(3), is therefore invalid: at [89]–[93].
Per Macfarlan JA (Gleeson JA agreeing):
(iii) The question in this case is not whether an extension of time may be granted
outside the 3-year period, but whether Ward J’s order was made “on an application” under
s 588FF(3)(b). The application here was that made to Hammerschlag J, which was made
within time. Ward J’s variation order was made upon that application and was therefore
valid: at [152]–[157].
Per Gleeson JA:
(iv) Although procedurally Ward J’s order relied on the court’s power under
r 36.16(2)(b) of the UCPR, as a matter of jurisdiction, the order is properly characterised
as an order made “on an application” under s 588FF(3)(b) of the Act: at [173].
Issue 2
Per Beazley P (Macfarlan and Gleeson JJA agreeing):
(v) The word “party”, in the context of r 36.16(2)(b) of the UCPR, is not limited to
a party formally joined to proceedings. In fact, there are circumstances in which a party
not formally joined to proceedings may itself apply for an order under r 36.16(2)(b) of the
UCPR: at [132], [146], [147].
Per Macfarlan JA in obiter (Gleeson JA agreeing):
(vi) An inference is available that the word “party” in this context extends to cover
applications by all interested persons: at [164].
Nicholson v Nicholson [1974] 2 NSWLR 59; (1974) 4 ALR 212, discussed.

Appeal
This was an appeal from a decision of Black J who dismissed an application
by the appellants to set aside an order of Ward J, who had varied an order of
Hammerschlag J extending the time for the making of an application in respect
of voidable transactions under s 588FF(3)(b) of the Corporations Act 2001 (Cth):
see Re Octaviar Ltd (recs and mgrs apptd) (in liq) and Octaviar Administration
Pty Ltd (in liq) (2013) 93 ACSR 316; [2013] NSWSC 62.
C R C Newlinds SC and S Nixon instructed by Corrs Chambers Westgarth
Lawyers for the applicants in CA 2013/64153 (JPMorgan Chase Bank, National
Association and JP Morgan Securities Australia Ltd).
226 AUSTRALIAN LAW REPORTS NSWCA

A J L Bannon SC and G K J Rich instructed by Watson Mangioni Lawyers for

the applicant in CA 2013/71401 (Grant Samuel Corporate Finance Pty Ltd).

B A Coles QC, P J Dowdy and A K Flecknoe-Brown instructed by Henry Davis

York for the respondents (William John Fletcher and Katherine Elizabeth Barnet 5
(as liquidators of Octaviar Ltd) (recs and mgrs apptd) (in liq) and Octaviar
Administration Pty Ltd (in liq), Octaviar Ltd (recs and mgrs apptd) (in liq) and
Octaviar Administration Pty Ltd (in liq)).
[1] Beazley P.
10
Introduction
[2] These appeals raise the important question whether the time in which an
order may be made under s 588FF(3)(b) of the Corporations Act 2001 (Cth) may
be extended beyond the period specified in s 588FF(3)(a) pursuant to the
procedural rule in r 36.16 of the Uniform Civil Procedure Rules 2005 15
(the UCPR).
[3] The appellants require leave to bring the appeals. Leave should be granted.
The questions raised have a high degree of significance to the due administration
of companies in liquidation. There are also substantial sums of money at stake for 20
which the appellants may be liable to pay back as unfair preferences in the
liquidation of Octaviar Ltd (receivers and managers appointed) (in liq)
(Octaviar Ltd).
[4] Section 588FF makes provision for a liquidator of a company to make an
application to the court in respect of voidable transactions: s 588FF(1). An 25
application must be made, relevantly, within 3 years of the relation back date:
s 588FF(3)(a), or within such longer period ordered by the court on application
made by the liquidator during that 3-year period: s 588FF(3)(b).
[5] In this case, the relation back date was 4 June 2008, so that, subject to any
30
extension of time ordered under s 588FF(3)(b), proceedings under s 588FF(1)
were required to be commenced by 4 June 2011. On 30 May 2011,
Hammerschlag J, on the application of the liquidators (the respondents), made an
order under s 588FF(3)(b) that the time for the making of an application under
s 588FF(1) be extended to 3 October 2011.
35
[6] The circumstances giving rise to the appeal relate to an extension of the
time ordered by Hammerschlag J to 3 April 2012 that Ward J (as her Honour then
was) ordered on 19 September 2011, under r 36.16(2)(b) of the UCPR.
Applications made by the appellants to set aside the order made by Ward J were
dismissed by Black J on 8 February 2013: Re Octaviar Ltd (recs and mgrs apptd) 40
(in liq) and Octaviar Administration Pty Ltd (in liq) (2013) 93 ACSR 316; [2013]
NSWSC 62. The appeals are from his Honour’s dismissal of those applications.
[7] The respondents claim that the appellants are parties to voidable
transactions. Acting upon the extension ordered by Ward J, they have now filed
applications under s 588FF(1) against the appellants. Those proceedings will 45
have been commenced in time only if the order extending the time to 3 April
2012 made by Ward J was validly made. The appellants contend that the only
valid period of extension was that ordered by Hammerschlag J, so that the
proceedings brought by the liquidators needed to be commenced by 3 October
2011. As the proceedings were commenced after that date, it would follow, if this 50
argument is correct, that they should be struck out.
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 227

The legislation
[8] Sections 588FE and 588FF of the Corporations Act are contained in
Pt 5.7B, “Recovering property or compensation for the benefit of creditors of
insolvent company”; Div 2, “Voidable transactions”.
[9] Section 588FE prescribes certain transactions as voidable transactions.
[10] Section 588FF(1) provides that where, on the application of a company’s
liquidator, a court is satisfied that a transaction of the company is voidable
because of s 588FE, the court may make one of a number of specified orders
including: an order requiring a person to pay money to the company in
liquidation which represents the benefits of the transaction: para (c); and an order
releasing or discharging wholly or partly a debt incurred by the company under
or in connection with the transaction: para (e).
[11] Section 588FF(3) specifies the time in which such proceedings must be
brought. Its terms are as follows:
588FF Courts may make orders about voidable transactions
…
(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.
[12] The relevant provisions in this case are s 588FF(3)(a)(i) and (b).
[13] The order, which is effectively under challenge in the present case, being
that made by Ward J was made pursuant to r 36.16(2)(b) of the UCPR. The appeal
calls for the proper construction and application of this provision and in
particular, the meaning of the word “party” within its terms. As one of the
arguments of the appellants is based upon the difference in language in paras (b)
and (c) of r 36.16(2), it is convenient that both provisions are set out in this
section of the judgment. Those two provisions provide:
36.16 Further power to set aside or vary judgment or order
…
(2) The court may set aside or vary a judgment or order after it has been entered
if:
…
(b) it has been given or made in the absence of a party, whether or not the
absent party had notice of the relevant hearing or of the application for
the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or
made in the absence of a person whom the court has ordered to be
added as a defendant, whether or not the absent person had notice of
the relevant hearing or of the application for the judgment or order.
[14] Also relevant to the issues on the appeal is s 79 of the Judiciary Act 1903
(Cth) which provides:
The laws of each State or Territory, including the laws relating to procedure, evidence,
and the competency of witnesses, 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 in all cases to which they are applicable.
228 AUSTRALIAN LAW REPORTS NSWCA

The order made by Hammerschlag J

[15] On 30 May 2011, the respondents applied for an order under s 588FF(3)(b)
that the time for the making of an application in respect of voidable transactions
entered into by Octaviar Ltd be extended to 3 October 2011. His Honour made
the order sought. The appellants who were all potentially affected by that order 5
were not parties to the application, nor were they present when the application
was heard and the orders made.
[16] In short reasons for granting the order, Hammerschlag J referred to the
affidavit filed in support of the application together with written submissions. His
Honour said that the affidavits revealed circumstances indicating that there were 10
complex issues which itself would warrant the application being granted. His
Honour also noted that the liquidators had been “significantly distracted by
relevant endeavours in other directions” which he considered had, with
justification, deflected their attention from the bringing of proceedings pursuant
to s 588FF(1). 15

Order made by Ward J

[17] On 19 September 2011, the respondents filed two forms of process. One
was an amended originating process. The other process was an interlocutory
process. Both processes were filed outside the 3-year period specified in 20
s 588FF(3), which as I have said, in this case was 4 June 2011, but within the
extended time ordered by Hammerschlag J.
[18] Identical orders were sought in both forms of process. Only order 3 as
sought is presently relevant, namely: 25
The order made by Justice Hammerschlag on 30 May 2011 be varied to insert in lieu
of “3 October 2011” the date “3 April 2012”.
[19] No person or entity was joined as a defendant to either of the forms of
process before her Honour. Although the appellants had been advised by the
30
respondents of their intention to seek the variation of Hammerschlag J’s order,
they did not attend on the hearing before her Honour, or upon the making of the
orders by her Honour.
[20] Her Honour accepted (at [15]) that the explanation for the delay in
bringing proceedings under s 588FF was such as to strongly favour an extension 35
of time in favour of the liquidators. I have earlier (at [20]) referred to the reasons
why the extension was sought, which, as Hammerschlag J had observed in his
judgment, related to the complexity of the administration. There were complex
issues of accounting and intercompany loans that needed to be resolved and
proofs of debt were still being received in the liquidation of Octaviar Ltd, in the 40
magnitude of billions of dollars. There was also a need to allow for the
finalisation of the insolvency report for the determination of other claims that
were not in the nature of voidable transactions.
[21] One of the questions raised in the proceedings before her Honour was
whether there was power to order an extension of time for the purposes of 45
s 588FF(3) in circumstances where an extension had already been granted. As
formulated by her Honour, the question was whether there was power to grant
successive applications for an extension of time. Her Honour noted that there
were authorities against that proposition, but referred to Nicholson v Nicholson
[1974] 2 NSWLR 59; (1974) 4 ALR 212 (Nicholson) and Scott v Casualife 50
Furniture International Ltd (Hong Kong) (2005) 56 ACSR 218; [2005] VSC 463
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 229

(Scott) which supported the power to make such an order. Her Honour did not
refer to the authorities which were against the proposition.
[22] Her Honour considered (at [20]) that there was power pursuant to r 36.16
of the UCPR for the court to vary the order and that the circumstances were such
that she should exercise the discretion in favour of making an order extending the
time ordered by Hammerschlag J in which proceedings could be commenced
under s 588FF(1).
[23] Accordingly, her Honour ordered (at [24]):
[24] … pursuant to Part 36 Rule 16 of the Uniform Civil Procedure Rules 2005 (NSW)
that the order made by Hammerschlag J on 30 May 2011 in these proceedings be varied
to insert in lieu of “3 October 2011”, the date “3 April 2012”.

The proceedings before Black J

[24] The appellants applied, by way of interlocutory application, to have her
Honour’s order set aside. The matter was heard and determined by Black J, who
dismissed the applications with costs. The question in issue before his Honour
was whether there was power for her Honour to have made the order extending
the time ordered by Hammerschlag J in which proceedings could be commenced
by the liquidators under s 588FF(1). There was no challenge to the manner in
which her Honour had exercised her discretion, should there be power to extend
the time pursuant to r 36.16(2)(b).
[25] His Honour made two essential findings.
[26] First, his Honour held (at [22]–[23]) that the reference to “party” in
r 36.16(2)(b) of the UCPR extended to persons whose interests were affected by
an order made by the court. Accordingly, the respondents were entitled to bring
an application under that provision, subject to the question whether an
application under r 36.16 of the UCPR was precluded by s 588FF(3)(b).
[27] Second, his Honour concluded (at [40]) that a subsequent variation of an
order properly made under s 588FF(3) could be made, pursuant to r 36.16(2)(b)
of the UCPR. His Honour also concluded (at [41]) that an application under
r 36.16(2)(b) of the UCPR could be made outside the time specified in
s 588FF(3)(a).
[28] Integral to his Honour’s conclusion at [40] was that, in determining
whether the application was brought in time, the relevant application to which
regard was to be had was the original application to extend time, not the
interlocutory process seeking a variation of the order made on the original
application. In this case, that was the application in respect of which
Hammerschlag J made his order: at [46]. See also judgment at [43] and [50].
[29] In coming to this conclusion, his Honour took a different approach from
that taken by Barrett J in Onefone Australia Pty Ltd v One.Tel Ltd (2007)
61 ACSR 429; [2007] NSWSC 268 (Onefone). In Onefone Barrett J considered
(at [37]) that the relevant application to which regard was to be had was the
application seeking the variation of the order.
[30] Black J (at [47]–[50]) also rejected the appellant’s submission that UCPR
was not picked up by s 79 of the Judiciary Act. His Honour considered (at [49])
that the High Court’s decision in Gordon v Tolcher (2006) 231 CLR 334;
231 ALR 582; 60 ACSR 522; [2006] HCA 62 (Gordon) was:
[49] … inconsistent with a contention that a procedural order that avoids the extinction
of a cause of action which would otherwise occur under s 588FF(3) is inconsistent with
that section, so as not to be “picked up” by s 79 of the Judiciary Act.
230 AUSTRALIAN LAW REPORTS NSWCA

[31] Black J also considered (at [50]) that the question of the application of s 79
to pick up the procedural rule was dependent upon a characterisation of the
operative application for the extension of time as being the initial application.
Issues on the appeals 5
[32] The following issues were raised on the appeals:
(1) whether the court had power pursuant to r 36.16 of the UCPR to make
the order dated 19 September 2011 amending the order of
Hammerschlag J. This issue raised two interrelated questions:
(a) whether only one application may be made under s 588FF(3)(b) 10
for an extension of time;
(b) whether, pursuant to s 79 of the Judiciary Act, r 36.16(2)(b) of the
UCPR permits an order made extending time to be varied so as to
permit an extension of time; and
(2) whether the court has power under r 36.16(2)(b) of the UCPR to vary an 15
order that has been made in the absence of a person affected by the
order, when the absent party is not a party on the record.
The case law
[33] The parties were not able to find authority directly on the points raised by 20
the appeal. However they contended that there was case law which supported
their respective approaches to the construction and application of s 588FF. Three
cases, in particular, were said to be relevant. BP Australia Ltd v Brown (2003)
58 NSWLR 322; 46 ACSR 677; [2003] NSWCA 216 (BP Australia); Greig v
Stramit Corporation Pty Ltd [2004] 2 Qd R 17; [2003] QCA 298 (Greig); and 25
Gordon. Within that case law, the parties placed differing interpretations on what
was decided and the proper application of what was decided to the issues on the
appeal. This was particularly so in respect of Gordon. It is necessary, therefore,
to consider these three cases in more detail than might otherwise be the case.
30
(a) BP Australia v Brown
[34] The appellants placed significant reliance upon BP Australia which
concerned, inter alia, the proper construction and application of the time limit
imposed upon liquidators seeking orders with respect to voidable transactions
under s 588FF(1): at [2]. The primary judge in that case had granted an extension 35
of time by which an application under s 588FF(1) could be brought by utilising
the provisions of s 1322(4)(d) of the Corporations Act. That provision permitted
the court to make:
… an order extending the period for … instituting or taking any proceeding under [the
Corporations Act] (including an order extending a period where the period concerned 40
ended before the application for the order was made) …
[35] The principal judgment was given by Spigelman CJ (Mason P and
Handley JA agreeing).
[36] Spigelman CJ observed (at [41]) that the contrast between ss 588FF(3) and 45
1322(4)(d) was apparent on the face of the sections. His Honour stated:
[41] … Section 588FF(3) emphasises that an application under subs (1) of the section
“may only be made” within the specified periods, including that any application for an
extension of time be made within the 3 year period. In contrast, the words in parentheses
in s 1322(4)(d) state that an order extending time under that section may be made even 50
after the relevant period has expired. [Emphasis in original.]
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 231

[37] His Honour considered (at [42]) that the relevant principle of statutory
construction was that a particular provision prevails over any general provision:
see Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades
Union of Australia (1932) 47 CLR 1 at 7; [1932] ALR 355 at 356; [1932] HCA 9
(Anthony Hordern & Sons), where the High Court observed:
When the Legislature explicitly gives a power by a particular provision which
prescribes the mode in which it shall be exercised and the conditions and restrictions
which must be observed, it excludes the operation of general expressions in the same
instrument which might otherwise have been relied upon for the same power.
[38] Spigelman CJ also referred to the remarks of Dixon J in R v Wallis; Ex
parte Employers Association of Wool-Selling Brokers and HV Mackay Massey
Harris Pty Ltd (1949) 78 CLR 529 at 550; [1949] ALR 689 at 697–8; [1949]
HCA 30 that:
… an enactment in affirmative words appointing a course to be followed usually may
be understood as importing a negative, namely, that the same matter is not to be done
according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is
qualified by some condition, limitation or direction.
[39] The principle stated in Anthony Hordern & Sons had been applied by the
High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995)
184 CLR 265 at 276; 131 ALR 353 at 359–60; 18 ACSR 225 at 231–2; [1995]
HCA 43 (David Grant). In that case, the High Court held that s 1322(4)(d) was
not available to extend the time of 21 days within which a company that had been
served with a statutory demand must apply to a court to set the demand aside
pursuant to s 459G of the Corporations Act. Section 459G(1) provided that a
company may apply to the court for an order setting aside a statutory demand.
Section 459G(2) provided that “an application may only be made within 21 days
after the demand” was served.
[40] In David Grant, Gummow J (with whom the other members of the court
agreed) stated (at CLR 277; ALR 360; ACSR 232):
… The force of the term “may only” is to define the jurisdiction of the court by
imposing a requirement as to time as an essential condition of the new right conferred
by s 459G. An integer or element of the right created by s 459G is its exercise by
application made within the time specified. To adapt what was said by Isaacs J in R v
McNeil (1922) 31 CLR 76 at 100–101; [1922] HCA 33, it is a condition of the gift in
subs (1) of s 459G that subs (2) be observed and, unless this is so, the gift can never
take effect …
This consideration gives added force to the proposition which has been accepted in
some of the authorities that it is impossible to identify the function or utility of the word
“only” in s 459G(2) if it does not mean what it says, which is that the application is to
be made within 21-days of service of the demand, and not at some time thereafter and
that to treat s 1322 as authorising the court to extend the period of 21-days specified in
s 459G would deprive the word “only” of effect (Cavetina Pty Ltd v Synthetic Dyeworks
Industries Pty Ltd (1994) 14 ACSR 274 at 281; Re J & E Holdings Pty Ltd (1995) 36
NSWLR 541 at 549).
[41] Spigelman CJ (at [48]) then observed that the use of the word “only” in
s 459G was comparable to use of the same word in s 588FF(3): viz “an
application under [s 588FF(1)] may only be made” during the period specified or
within an extended period ordered by the court under s 588FF(3). His Honour
also noted (at [50]) that the reasoning in David Grant had been applied by
232 AUSTRALIAN LAW REPORTS NSWCA

analogy to s 588FF(3)(b) by a number of first instance courts in different

jurisdictions, but that the trial judge in BP Australia had not done so.
[42] Spigelman CJ returned to the meaning of the word “only” and its import
for the operation of s 588FF(3) (at [84]–[85]):
5
[84] It is the combined effect of the word “only” and the express requirement that an
application for an extension of the period must be made within the period, that gives the
time limit force and indicates the significance for the legislative scheme of the three
year period.
[85] The time period identified in para (a) is itself subject to a specific power of
10
extension under par (b). That is a comprehensive provision for extension of time which,
in my opinion, is intended to cover the relevant field to the exclusion of s 1322.

[43] His Honour concluded on this point (at [89]):

[89] Of particular significance in this respect is the scope and purpose of Pt 5.7B of the
15
legislative scheme and its legislative history. After consideration of such matters I have
concluded that s 588FF(3)(b) was intended to cover the field of applications for
extending the period specified as three years from the relation-back day under par (a).

[44] Spigelman CJ observed (at [103]) that the Legislature, in s 588FF(3), had
adopted “a single post-liquidation time period for bringing proceedings” under 20
s 588FF(1). A reason for this approach may have been due to the criticism in the
Harmer Report of the delays associated with the winding up of companies, as one
of the recommendations in the report had been that “[a]n insolvency
administration should be impartial, efficient and expeditious”: see at [104].
25
[45] Spigelman CJ also noted that the Legislature, while accepting the Harmer
Report recommendation that an extension of the time in which proceedings were
to be brought could be ordered by the court, had enacted a more stringent
condition in requiring in s 588(3)(b) that an application for extension be made
during the period prescribed in s 588(3)(a). This caused his Honour to remark
30
(at [110] and [112]):
[110] … That the Parliament went further than this comprehensive inquiry
recommended does, however, indicate the weight to be afforded to the policy purpose
of encouraging greater expedition in the conduct of a liquidation.
… 35
[112] There is, in my opinion, a broader public interest to be served by allowing persons
who have had dealings with companies which become insolvent to conduct their
commercial affairs with a degree of certainty about their exposure to having past
transactions unravelled.
[46] His Honour considered (at [115]) that “the legal policy in favour of 40
certainty [was] manifest in the text of s 588FF(3)” and (at [118]) concluded on
this point:
[118] Section 588FF(3) does not have the effect of requiring all applications to be
brought within a short period of time. It does, however, have the effect of requiring
those who wish to keep open the option to do so, to determine that they do wish to do 45
so within the three year period and to seek a determinate extension of the period. One
thing that must be decided within the three year period is how long the process of
deciding whether to pursue voidable transactions will take. Eventually, investigations to
overcome deficiencies of information or the pursuit of funding must cease. Parliament
has identified a reasonable time for such matters to occur, subject to a single determinate 50
extension of time.
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 233

[47] Spigelman CJ thus held (at [129]) that s 588FF(3) governed the
circumstances in which an extension of time for the bringing of an application
under s 588FF(1) could be made. Recourse was not available to s 1322 for that
purpose.
[48] There was another issue in BP Australia relating to the joinder of parties.
It had been argued that the primary judge had erred in joining parties as
defendants to the application to extend time after the 3-year period specified in
s 588FF(3)(a). This turned upon the proper construction of the rules relating to
the joinder of parties and upon the question whether a general order (a shelf
order), that is, one seeking an extension of time generally for the bringing of an
application under s 588FF(1) (not as against named creditors) could be made. His
Honour, in resolving those issues, stressed that an application for an extension of
time had to be made within the 3-year period specified in s 588FF(3).

(b) Greig v Stramit Corporation

[49] In Greig, the Queensland Court of Appeal, by majority, gave the same
construction to s 588FF(3) as this court in BP Australia. The Queensland Court
of Appeal’s decision was given on 18 July 2003, 3 weeks before the decision in
BP Australia. It appears that this court was not referred to the Queensland’s Court
of Appeal decision. A review of the reasons of the majority in that case reveals
that it is to the same effect as that of Spigelman CJ in this court. It is not
necessary, therefore, and with respect to their Honour’s reasoning, necessary to
engage in a lengthy analysis. However, the following passages in the reasons of
Williams JA are relevant (at [90] and [91]):
[90] As would be evident from earlier passages in these reasons it is my view that the
approach taken by the High Court to the construction of s 459G in David Grant applies
to the proper construction of s 588FF(3). In my view that construction is supported by
the legislative history (including the Harmer Report), the reasoning of Rolfe J in Star
and Mullins J in this case. Given that construction the time prescriptions in s 588FF(3)
constitute an insurmountable boundary which cannot be overcome by recourse to a
general power such as conferred on the Court by s 81 [of the Supreme Court of Qld
Act]. That is also consistent with the approach adopted in Tagoori Pty Ltd v Lee.
[91] On that approach, largely because of the inclusion of the word “only” any general
power of amendment conferred on the court pursuant to s 81 would not permit the
making of an amendment which effectively (though not in express terms) extended the
time limited in s 588FF(3).

[50] It is useful to note at this point that these two appellate decisions had the
effect of settling two lines of competing authorities in the respective jurisdictions.
See Star v National Australia Bank Ltd (1999) 30 ACSR 583; [1999]
NSWSC 305 per Rolfe J; Re Aura Commercial Interiors Pty Ltd (2002) 20 ACLC
904; [2002] NSWSC 380 per Barrett J; Greig v Australian Building Industries
Pty Ltd (in liq) (2002) 171 FLR 41; [2002] QSC 298 per Mullins J; Tagoori
Pty Ltd (in liq) v Lee [2001] 2 Qd R 98 per Williams J, all of which had taken
the approach confirmed by the New South Wales and Queensland appellate
courts in BP Australia and Greig respectively. Contrast Brown v DML Resources
Pty Ltd (in liq) (No 6) (2002) 40 ACSR 669; 166 FLR 393; [2002] NSWSC 6 per
Austin J; Sutherland v Dexion (Australia) Pty Ltd (2003) 173 FLR 123; [2003]
NSWSC 24 at [13] per Barrett J; Green v Chiswell Furniture Pty Ltd (In Liq)
[1999] NSWSC 608 per Austin J.
234 AUSTRALIAN LAW REPORTS NSWCA

(c) Gordon v Tolcher

[51] Gordon involved the question whether an order could be made extending
the time for service of a statement of claim in which relief had been sought under
s 588FF(1), by the liquidators of the second respondent, seeking the payment of
moneys from the appellant. The moneys sought represented funds received by the 5
appellant on the sale of mortgaged properties that had been owned by the second
respondent. The allegation was that the second respondent had given the
mortgages and charges over the properties in circumstances where it had received
no benefit. The liquidator contended the transactions were voidable.
[52] The statement of claim had not been served and consequently no action 10
had been taken in respect of it, either by way of a defence being filed or by the
entry of default judgment within 6 months and 28 days of filing, so that, pursuant
to Pt 18, r 9 of the District Court Rules 1973, the matter was “taken to have been
dismissed”. While the liquidators could have commenced fresh proceedings, such
proceedings would have been outside the 3-year time period specified in 15
s 588FF(3)(a)(i). The liquidators unsuccessfully sought the rescission of the
deemed dismissal. The New South Wales Court of Appeal, acting upon the
general provision in Pt 3, r 2 of the District Court Rules, for the extension of any
time fixed by the rules to extend time, ordered that the service of the statement
of claim be deemed to have been effected on a specified date. It is relevant to note 20
that the District Court rule provided that an extension of time could be granted
“as well after as before the time expires, whether or not an application for the
extension is made before the time expires or at all”.
[53] On appeal to the High Court, the court held (at [32]) that the procedural 25
regulation of the conduct of a matter initiated under s 588FF was a matter for the
procedural law of the state which is picked up by s 79 of the Judiciary Act.
Relevantly for present purposes, however, the court made a number of
observations in relation to the construction of s 588FF and, in particular,
s 588FF(3)(a). 30
[54] At [32], the court dealt with the placement of s 588FF in the scheme of the
Act. As already noted (at [8]) s 588FF is found in Pt 5.7B, which deals with
“Recovering property or compensation for the benefit of creditors of insolvent
company”. Part 9.6A of the Act provides for the jurisdiction and procedure of
courts. Jurisdiction is conferred on the District Court, being a lower court of a 35
state, by s 1337E. In that context, the court stated (at [32]):
[32] Section 588FF does not deal with the investment of federal jurisdiction in any court
or with the manner of exercise of that jurisdiction. The section is found in Pt 5.7B,
whilst the jurisdiction of courts is provided for in Pt 9.6 A. Section 588FF is silent
respecting the procedures to be adopted by the court exercising federal jurisdiction in 40
the present matter; this jurisdiction is conferred by s 1337E upon the District Court.
Section 588FF evinces a two-fold legislative intention. First, conferral of federal
jurisdiction is left to Pt 9.6A of the Corporations Act. Secondly, subject to any operation
of other provisions of the Corporations Act, after the institution of an application the
procedural regulation of the conduct of a matter is left for that particular State or
territorial procedural law which is to be picked up by s 79 of the Judiciary Act. 45

[55] That was sufficient for the court to dispose of the appeal. However their
Honours considered it appropriate to say something about the construction of
s 588FF, including by reference to its context in Pt 5.7B and its relationship with
the conferral of civil jurisdiction made by Div 1 of Pt 9.6A of the Corporations 50
Act. The court (at [34]) noted that s 588FF “postulates the operation of s 588FE
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 235

to render certain transactions voidable”. That application had to be made within

the 3-year period specified in s 588FF(3)(b) or within the longer period ordered
by the court, provided the application to extend the time was made within the
3 years.
[56] The court then pointed out (at [35]) that an application under
s 588FF(3)(b) seeking a longer period in which to bring an application under
s 588FF(1) was itself a distinct matter which could only be determined by a
superior court. That was because of the language of s 588FF and, in particular,
the difference between s 588FF(1) and (3). Section 588FF(1) provides that upon
application of the liquidator of a company, if a court is satisfied that a transaction
is voidable, the court may make one of the orders specified in paras (a)–(j). Their
Honours observed (at [15]) that the term “a court” in subs (1) meant any court.
(It should be noted that the reference to “the court” in subs (1) is a clear reference
to “a court” in the first part of the provision.) By contrast, the court noted that
s 588FF (3)(b) referred to an order by “the court”, meaning a superior court only.
[57] Their Honours observed (at [36]) that there were two stipulations for the
competent institution of an application under s 588FF(1). The first was that the
application be made by the liquidator of the company. The second was that it be
made within 3 years after the relation back day. Their Honours observed that
“[t]hese stipulations were elements of the right of the respondents to have [the
court] consider the making of the order” they sought. Their Honours continued
(at [37]):
[37] The provision in subs (3) of s 588FF as to the time of the making of the application
is of the essence of the provision made by s 588FF; it is not to be characterised merely
as a time stipulation of a procedural nature. [Citation omitted.]

[58] Their Honours endorsed the observations of Spigelman CJ in BP Australia

referred to above (at [46]) and continued (at [40] and [41]):
[40] Accordingly, s 588FF is dealing, as an essential aspect of the regime it creates, with
the period within which the application must be made. An application may be made
only to a court invested with federal jurisdiction by one or other of the provisions of
Pt 9.6A. Thereafter, and subject to any other relevant provision of the Corporations Act,
the conduct of the litigation is left for the operation of the procedures of that court.
These procedures will vary from one State or Territory to another and within the court
structures of those States and Territories. The scheme of the Corporations Act is not to
impose a direct federal and universal procedural regime. Rather, s 79 of the Judiciary
Act is left to operate according to its terms in the particular State or Territory concerned.
[41] Thus the relationship between ss 588FF and 79 (and between Pt 9.6A and s 79) is
not one of which it may be said that the former provision is a law of the Commonwealth
which “otherwise provides” so as to deny the operation of s 79 in this case to pick up
so much of the Rules as supported the orders made by the Court of Appeal.

Additional matter on the authorities

[59] Before leaving the authorities on s 588FF(3), it should be noted that there
is a line of authority that the procedural rules of court may be utilised to allow
an amendment of a claim, properly brought within the time prescribed by
s 588FF(3), provided that the effect of the amendment does not add a new party
against whom the claim would otherwise have been brought outside the 3-year
period specified in s 588FF(3): Greig; Park and McIntosh v Lanray Industries
Pty Ltd (2010) 80 ACSR 186; [2010] QCA 257. However, there is no question of
236 AUSTRALIAN LAW REPORTS NSWCA

amendment in issue in the present case. In this case, the procedural rules of court
were used to extend the time prescribed by s 588FF(3) for the commencement of
proceedings under s 588FF(1).
Section 79 authorities 5
[60] The respondents’ defence of the primary judges’ orders was essentially
based on the operation of s 79. It is convenient to consider the case law relating
to that provision. The objective of s 79 has been described by Gleeson CJ and
Gummow J in Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318;
24 Fam LR 253; [1999] HCA 8 (GPAO) as being to (at [80]): 10
[80] … facilitate the particular exercise of federal jurisdiction by the application of a
coherent body of law, elements in which may comprise the laws of the State or Territory
in which the jurisdiction is being exercised, together with the laws of the
Commonwealth …
[61] Pursuant to s 79, the laws of a state will apply “except as otherwise 15
provided by … the laws of the Commonwealth”. As Gleeson CJ and Gummow J
explained in GPAO (at [79]) this requires an inquiry into whether the
Commonwealth law is “to be regarded in any way as ‘inconsistent’ with the
application of the State Act which [is] said to be ‘picked up’ by s 79”: see De Vos
v Daly (1947) 73 CLR 509 at 515; [1947] ALR 209 at 211; [1947] HCA 12 per 20
Latham CJ and at CLR 518; ALR 212 per Starke J. In R v Gee (2003) 212 CLR
230; 196 ALR 282; [2003] HCA 12, McHugh and Gummow JJ explained that
(at [62]):
[62] Provisions such as ss 64, 68(2) and 79 of the Judiciary Act do not operate to insert 25
a provision of State law into a Commonwealth legislative scheme which is “complete
upon its face” where, on their proper construction, those federal provisions can “be seen
to have left no room” for the picking up of State law: Deputy Commissioner of Taxation
v Moorebank Pty Ltd (1988) 165 CLR 55 at 64; 78 ALR 641 at 644; [1988] HCA 29.
[62] Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; 218 ALR 677; 30
[2005] HCA 38 (Agtrack) was concerned with a claim under the Civil Aviation
(Carriers’ Liability) Act 1959 (Cth) by a widow for damages resulting from the
death of her husband in an aircraft crash. Section 34 of the Act provided for the
extinguishment of a right to a person to damages under the Act:
… if an action is not brought … within two years after the date of arrival of the aircraft 35
at the destination, or, where the aircraft did not arrive at the destination.
[63] The plurality held (at [51]) that the effect of s 34 was that it imposed:
[51] … a condition which is of the essence of the right to damages rather than providing
for no more than a bar to the enforcement of an existing right. 40
[64] The question in issue then became whether the 2-year period could be
extended by the application of s 34 of the Limitation of Actions Act 1958 (Vic),
which permitted an extension of time.
[65] The court rejected that argument. Their Honours noted that as the 45
Victorian limitation period did not apply of its own force, it would only have
application by application of s 79 of the Judiciary Act. As their Honours
explained (at [59] and [60]):
[59] The terms of s 79 indicate that this can only be so if the case in question is one in
which the State law is applicable. Section 34 of the Carriers’ Act, as indicated earlier 50
in these reasons, is an integral part of the federal statutory right to damages. Section 34
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 237

is not a provision which adds a time limitation in respect of a right defined

independently of s 34. Section 28 which creates the statutory right expressly does so
“[s]ubject to this Part” and thus to s 34. It follows that, if an action was not brought by
Mrs Hatfield or for her benefit within the two year period required by s 34, what ensued
was not the expiry of a relevant period of limitation, but the removal of a prerequisite
for the existence of the right sought to be litigated. In those circumstances, s 79 did not
operate to “pick up” the Victorian provision.
[60] The same conclusion may be reached by another route. Were s 34 of the State
statute to be picked up by s 79, it would provide otherwise than as required by s 34 of
the Carriers’ Act. It would have “derogated from” the extinction wrought by s 34 of the
federal statute. [Citations omitted.]
See also Air Link Pty Ltd v Paterson (2005) 223 CLR 283; 218 ALR 700; [2005]
HCA 39 at [11].

Submissions
[66] The appellants submitted that upon its proper construction, s 588FF(3)(b)
only permits an application to extend time, relevantly, in the 3-year period
specified in s 588FF(3)(a)(i).
[67] The appellants submitted, therefore, that s 588FF(3) envisaged one
application for an extension of time which was required to be brought within the
3-year period specified in the section. In argument during the course of the
appeal, the appellants accepted the possibility that more than one application may
be brought, provided that it was brought within the 3-year period specified in
s 588FF(3). However, the appellant’s primary position was that s 588FF(3) only
permitted “a single determinate application”: see BP Australia at [118] per
Spigelman CJ; Gordon at [41]. The appellants submitted that on this approach,
r 36.16 of the UCPR had no operation.
[68] The appellants submitted that the construction for which they contended
fulfilled the purpose and policy of the section, which was to provide for certainty
in the conduct of commercial affairs and, in particular, those relating to the
orderly winding up of corporations: BP Australia at [112] and [118]–[119]. By
contrast, the consequence of the approach of Black J would be that there will
never be “a single determinate extension of time”: see BP Australia at [118].
[69] The appellants’ position may thus be stated simply. They contend that BP
Australia is authority for the proposition that there can be one only application
for an extension of time and that application must be brought within the 3-year
period specified in s 588FF(3). Alternatively, any application for an extension of
time could only be made within the 3-year period specified in that section.
Gordon, in its characterisation of s 588FF(3) as an element of the right to bring
a claim under s 588FF(1), supported this construction. As the High Court stated,
the time stipulation in s 588FF was not of a procedural nature. On that
construction, r 36.16 of the UCPR has no work to do. The time stipulation is
contained within 588FF(3) itself.
[70] The appellants submitted, therefore, that BP Australia and Gordon stand
unequivocally for the proposition that the time specified by s 588FF(3) is a
mandatory provision and that time cannot be extended other than in accordance
with the power contained within it. To the extent that in Gordon the liquidator’s
statement of claim was allowed to be reinstated, that was in circumstances where
the original s 588FF(1) application had been commenced within the 3-year
period specified by s 588FF(3). Thus, while the procedural rules effected a
238 AUSTRALIAN LAW REPORTS NSWCA

deemed dismissal, other procedural rules of the court were available to extend the
time for service of the statement of claim. This rule was picked up by s 79 and
was not inconsistent with s 588FF(3).
[71] The appellants submitted that if they were wrong in their primary
submissions that there can only be one application for an extension of time (or 5
at the most, applications made within the 3-year period specified by
s 588FF(3)(a)), they submitted, alternatively, that s 79 of the Judiciary Act did not
“pick up” UCPR, r 36.16(2)(b) so as to permit, after the 3-year period specified
in s 588FF(3)(a), a variation of an order originally made upon an application filed
10
within the 3-year period: Gordon at [25] and [30]; APLA Ltd v Legal Services
Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44
at [230]; Agtrack at [58]–[60]; Bass v Permanent Trustee Co Ltd (1999)
198 CLR 334; 161 ALR 399; [1999] HCA 9 at [35]; Macleod v Australian
Securities and Investments Commission (2002) 211 CLR 287; 191 ALR 543; 43 15
ACSR 1; [2002] HCA 37 at [22], [23] and [44]; GPAO at [79]–[81].
[72] The appellants pointed out that s 79 does not “pick up” provisions that are
inconsistent with the substantive provision of law in respect of which the court
is exercising jurisdiction. Accordingly, once the 3-year period had expired under
s 588FF(3), procedural rules could not be used to further extend the period in 20
which an application may be brought. In other words, it was submitted that the
3-year period in which the claim was to be brought, subject to an application for
extension made within that time, was an integral part of the right to bring a claim
under s 588FF: see Agtrack.
25
[73] The appellants accepted in arguendo that r 36.16 of the UCPR might be
picked up by s 79 so as to apply if an application under the rule was made within
the 3-year period specified by s 588FF(3), but not otherwise.
[74] The respondents’ primary submission was that time was properly extended
by Ward J because the procedural rules of court, including r 36.16(2)(b), were 30
picked up by s 79 of the Judiciary Act. They formulated the question in issue as
being whether a law of the Commonwealth, namely, s 588FF(3)(b), “otherwise
provides” so as to exclude r 36.16(2)(b) of the UCPR from being “picked up” in
those proceedings by s 79. The respondents accepted that this question involved
the proper construction of s 588FF(3)(b). The respondents submitted that on a 35
proper understanding of Gordon (at [40]–[41]) r 36.16(2)(b) of the UCPR was
picked up in this case.
[75] The respondents pointed out that the rule relied upon by the court in
Gordon was Pt 3, r 2 of the District Court Rules was in the same terms as r 1.12
40
of the UCPR, which provides that subject to the rules, the court may, by order,
extend or abridge any time fixed by these rules or by any judgment or order of
the court. This may be done before or after the time expires. The court may make
an order under this rule after the time expires even if an application for extension
is made after the time expires. 45
[76] The respondents referred to the High Court’s conclusion in Gordon
(at [32]) that once a court was invested with jurisdiction with an application
under s 588FF, the conduct of the matter was then a matter for the procedural
rules of the court in which the application was brought. Accordingly, the
procedural regulation of a matter was, they said, “a step away” from the conferral 50
of jurisdiction and “two steps removed” from the subject of s 588FF itself.
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 239

[77] The respondents submitted that contrary to the appellants’ submission that
the court in Gordon endorsed the reasoning of Spigelman CJ in BP Australia, it
had only done so to the extent that his Honour had referred to the policy behind
the legislation, namely, that of certainty. They contended that the High Court did
not say anything as to how s 588FF should be construed for the purposes of
determining whether s 588FF(3) “otherwise provided” for the purposes of s 79 of
the Judiciary Act.
[78] The respondents contended, therefore, that Gordon was authority for the
proposition that as s 588FF does not make any provision as to the procedure to
be adopted in bringing an application under s 588FF, Pt 3 r 2 of the District Court
Rules was a matter of procedure which did not “otherwise provide” so as to deny
the operation of s 79 in picking up “so much of the rule as supported the making
of orders made by the Court of Appeal”. Reasoning by analogy, r 36.16(2)(b) of
the UCPR was a procedural rule picked up by s 79.
[79] The respondents also submitted that the appellants’ reliance on BP
Australia was misconceived. They submitted that that decision was concerned
with a question of joinder of parties to the application for an extension of time.
I do not agree that is a correct summation of the reasons in the case. There was
a question of joinder, as I have already noted. However, that arose as a distinct
issue from the question whether s 1322(4)(d) of the Corporations Act enabled an
application, filed outside the 3-year period specified in s 588FF(3), to be brought
for an extension of time under s 588FF.
[80] None the less, the respondents contention that Spigelman CJ’s reasoning
in BP Australia is inapplicable still requires consideration. In short, the
respondents argue that BP Australia was concerned with questions of statutory
construction of two provisions in the same Act: s 588FF(3) on the one hand, and
s 1322(4)(b) on the other. They contended that all that was decided in that case
was that as a matter of statutory construction, a general provision must yield to
a more particular provision. No question of the operation of s 79 of the Judiciary
Act arose on that approach. This submission was, in effect, the respondents’
answer to the appellants’ primary contention that having regard to the proper
construction of s 588FF(3), r 36.16 of the UCPR has no role to play.
[81] The respondents submitted that the Queensland Court of Appeal’s decision
in Greig was also distinguishable. They pointed out that the matter in issue in that
case was whether s 81 of the Supreme Court Act (Qld), which provided a general
power to amend, applied so as to enable parties to be joined to an application
after the time prescribed in s 588FF(3) had expired. The majority, applying the
decision of the High Court in Wardley Australia Ltd v Western Australia (1992)
175 CLR 514; 109 ALR 247; [1992] HCA 55, held that s 81 was not available
for that purpose. I do not entirely agree with this submission. Certainly, no
question of s 79 arose in that case. However, Williams JA and Jerrard JA’s
reasoning as to the proper construction of s 588FF was consistent with the
reasoning of Spigelman CJ in BP Australia and was a necessary step in
determining whether s 81 applied.
Resolution of first issue on the appeal
[82] BP Australia and Greig both state that the power to extend time is
contained within the s 588FF(3) itself. Spigelman CJ in BP Australia (at [85])
expressly stated that s 588FF(3)(b) was “a comprehensive provision for the
extension of time”, although his Honour did so in the context of whether an
240 AUSTRALIAN LAW REPORTS NSWCA

extension was available under s 1322 of the same Act. The same approach was
taken in Greig in respect of a procedural provision of the Supreme Court of
Queensland Act.
[83] Thus, both intermediate appellate courts have construed s 588FF as the
sole source of power for an extension of time beyond the 3-year period specified 5
in s 588FF(3)(a). In other words, according to both decisions, the time stipulation
and the availability of an extension are governed solely by the section. The
statements in BP Australia and Greig, albeit stated in contexts different from that
which arises here, are of high and persuasive authority and should be followed.
[84] Contrary to the submission of the respondent, I consider that Gordon 10
endorsed this approach, the court noting (at [36]) that the stipulation of a 3-year
time period in s 588FF(3) was an “element of the right … to have [the court]
consider making the order” in s 588F(1). In my opinion, that is a characterisation
of the time provision in s 588FF(3). Accordingly, s 588FF(3) comprehensively
governs the circumstances in which an application may be made for an extension 15
of time. Those circumstances require that any application for an extension of time
be made within the 3-year period specified in s 588FF(3)(b). In coming to that
conclusion, I do not foreclose the possibility that more than one application for
an extension may be brought, provided that each application is brought within the
3-year period. I appreciate that this approach is not in accordance with the view 20
taken by Spigelman CJ in BP Australia that there can only be a single
determinate application. However, as the appellants recognised, the absolutism of
that statement may be debateable.
[85] On the approach taken by Black J, however, there was no contravention of 25
that principle in this case. In his Honour’s view, the only application made in the
matter was one brought within the 3-year period. What had happened
subsequently was that an application had been brought under r 36.16(2)(b) of the
UCPR for a variation of the order made on the original application. I consider
that characterisation to be correct. Although Black J considered that that was an 30
answer to the appellant’s case, I am of the view that that characterisation still
calls for a consideration of whether r 36.16(2)(b) of the UCPR is picked up by
s 79 of the Judiciary Act.
[86] In Gordon the court observed that pursuant to s 79 of the Judiciary Act,
after proceedings were commenced under s 588FF, conduct of the proceedings 35
was governed by the procedural law of the particular state. It did not matter that
the procedural rules of different states varied in their application to proceedings
brought under the same provision of the Act. The only exception was where, in
accordance with principle, the procedural rule was inconsistent with the Federal
provision. The court’s reference was to the proceedings commenced under 40
s 588FF(1). There could be no difference however, to an application under
s 588FF(3)(b) for an extension of time. As the court observed in Gordon, an
application under s 588FF(3) was a distinct matter from an application under
s 588FF(1). A court determining an application under s 588FF(3)(b) is, however,
still exercising Federal jurisdiction, so that the same question arises, namely, 45
whether the relevant procedural rule is “picked up” by s 79.
[87] Subject to the question whether a particular procedural rule is inconsistent
with a provision of a federal statute, in this case, s 588FF(3), the procedural rules
of the local jurisdiction govern an application made to the court under the federal
provision. A question as to the nature of the procedural rule thus arises. An 50
application to vary an order made under s 588FF, if granted, may have a
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 241

substantive effect, albeit of a procedural nature. Thus, if the court intended to

make an order until a particular date, but, by mistake in the expression of its
order, stated a different date, that mistake could be remedied under the “slip
rule”: r 36.15 of the UCPR, discussed below. On such an application, no new
factual matter would arise for the court’s consideration so that, while the court’s
order would be varied, it could not be said that the rule was inconsistent with the
federal provision.
[88] Another example is provided by the circumstances that arose in Gordon.
In that case, proceedings to set aside a voidable transaction pursuant to
s 588FF(1) had been commenced within the time prescribed by s 588FF(3). No
extension of time was required. However, due to a failure to serve the process,
the proceedings were dismissed by default by operation of the rules of court.
There had been no determination of the proceedings. It was held that upon the
operation of other rules of court that allowed any time prescribed by the rules to
be extended, time for service of the statement of claim could be extended, so that
the default provision did not operate. There was no inconsistency in that case
between the procedural rules of the court and s 588FF(3). Rather, the rules of
court had been used to maintain the proceedings which were on foot. In other
words, the rules of court were used to facilitate what was permissible.
[89] What then is the position in this case, where there exists a federal law
which permits an extension of time in which to bring a proceeding but only
within a specified time frame and a procedural rule of a state court that allows
orders of the court to be set aside or varied where the original order has been
made in the absence of a party? While I have not found this matter easy to
resolve, I have come to the conclusion that r 36.16(2)(b) of the UCPR, to the
extent that it permits a fresh or new or further application to be made for an
extension of time, is inconsistent with s 588FF(3)(b) and is not picked up s 79.
[90] My reason for this conclusion is based upon what is encompassed in an
application under UCPR, r 36.16(2)(b) to vary an order made under
s 588FF(3)(b). The application made in this case is likely to be typical, in that
such an application would only be necessary where the liquidators were not able
to commence the s 588FF(1) application within the time extended by the court on
the original application. Such an application under r 36.16(2)(b) of the UCPR
would invariably be brought on new or additional facts upon which the court
would be asked to exercise afresh the discretion to extend time. An application
by a liquidator under r 36.16(2)(b) of the UCPR based on the same facts as the
original application would be unlikely to attract the favourable exercise of the
court’s discretion. Thus, to the extent that r 36.16(2)(b) of the UCPR purports to
be available where an application is brought outside the 3-year period to vary an
earlier order made under s 588FF(3)(b), it would be inconsistent with that
section.
[91] In reaching this conclusion, I accept that the rules of court are intended to
facilitate the procedural aspects of proceedings in the court. The rules should be
given a construction that gives effect to their purpose. It is not unimportant in this
context that r 36.16(2)(b) of the UCPR invests the court with a discretion as to
whether to make an order. The discretionary aspect of the rule meets a concern
that a liquidator could make multiple applications under the rule, outside the
3-year period, in respect of an application filed within the 3-year period. The
242 AUSTRALIAN LAW REPORTS NSWCA

court in the exercise of its discretion would undoubtedly take into account that
previous extensions had been granted and require that there be cogent reasons for
the grant of further extensions.
[92] However, these matters do not answer the fundamental proposition,
namely, that an application under r 36.16(2)(a) of the UCPR would invariably be 5
substantive in nature in the sense that it would only be made on new or additional
facts, as was the position in the matters before the court. In effect, any such
application is a new application calling for a fresh exercise of the discretion to
extend time. As such I consider that it is a new application for an extension of
10
time and falls outside of the time prescribed by s 588FF(3)(b). That is not to say
that certain rules of court may not be available to a party in respect of an order
made under s 588FF(3)(b). For example, corrections or amendments permitted
by the slip rule: r 36.17 of the UCPR, discussed below, would not offend the rule
that a substantive application for an extension of time must be made within the 15
3-year period specified in s 588FF(3)(a)(i).
[93] It follows, therefore, in my opinion, that s 79 does not pick up
r 36.16(2)(b) of the UCPR so as to enable an application under that rule to be
made seeking the variation of an earlier extension of the time ordered on an
application brought within the 3-year period specified in s 588FF(3)(a). 20

Rule 1.12 of the UCPR

[94] The respondents also submitted that if Black J was wrong in his
determination that r 36.16(2)(b) of the UCPR was available, an order nunc pro
tunc could be made under r 1.12 of the UCPR to achieve the same result as the 25
order made by Ward J. This would have the effect that the order made by
Hammerschlag J was extended to 3 April 2012, the same date as ordered by
Ward J under r 36.16 of the UCPR.
[95] Rule 1.12 of the UCPR provides: 30
1.12 Extension and abridgment of time
(1) Subject to these rules, the court may, by order, extend or abridge any time
fixed by these rules or by any judgment or order of the court.
(2) The court may extend time under this rule, either before or after the time
expires, and may do so after the time expires even if an application for 35
extension is made after the time expires.
[96] Black J (at [53]) did not consider that it was necessary for him to
determine this question given the result he reached on the other grounds.
[97] On appeal, the respondents did not file a notice of cross-appeal or a notice
40
of contention in respect of r 1.12. The respondent did, however, place reliance on
r 1.12 in the oral argument on the appeal. The appellants objected to this
argument being raised.
[98] In my opinion, the respondents’ reliance on r 1.12 must fail for the same
for same reason as its reliance on r 36.16(2)(b). As discussed above at [84], 45
s 588FF(3) comprehensively governs the circumstances in which a liquidator
may apply for an extension of time to make an application to the court in respect
of voidable transactions. Section 79 will not operate to pick up a rule such as
r 1.12 that allows a court to order an extension to any time fixed by a judgment
or order of the court as s 588FF(3) of the Corporations Act, otherwise provides. 50
[99] For that reason, the appeals in these matters should be allowed.
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 243

The party issue

[100] The remaining issue which arose on the appeal was whether r 36.16 of
the UCPR could be availed of by the respondents. This depended upon the
meaning of “party” within the rule. Having regard to the conclusion I have
reached, this question does not arise. However, in deference to the arguments of
the parties and the likelihood that the matter may be subject to further appeal, I
will express my conclusions on it.
[101] The appellants contended that r 36.16(2)(b) of the UCPR was not an
available source of power that enabled the court to vary the order made by
Hammerschlag J, as they were not parties to the proceedings at the time his
Honour’s order was made. It contended that “party” within the meaning of the
rule meant “party to the proceedings”, that is, persons who had been formally
joined as parties to the proceedings: see R v Murray; Ex parte Commonwealth
(1916) 22 CLR 437 at 469; 22 ALR 413; [1916] HCA 58 (Murray).
[102] The respondents submitted that “party” within r 36.16(2)(b) of the UCPR
meant a person: that is, “party” was used in the rule in a generic sense to mean
any person who had an interest in the proceedings. They submitted that this
construction was consistent with Nicholson which had been applied by courts
both in New South Wales and elsewhere.
[103] The primary judge rejected the appellants’ argument. His Honour held
(at [22]):
[22] In my view, the reference to “party” in UCPR, r 36.16(2) should also be interpreted
with regard to the principles as to the circumstances in which a party should be heard
before an order is made that effects his or her interests. At general law, a person affected
by an order of the Court, who has not had an opportunity to be heard, is entitled as of
right to have that order set aside …
[104] It is useful in respect of this ground to consider the respondents’
submissions first. It can be noted, however, that both the appellants and the
respondents accepted that that the meaning of the word “party” varies depending
upon the context in which it appears. In some instances, it means a “party to the
proceedings”, that is, a party formally joined as a party. In other contexts, it has
a broader meaning, to mean a person who has an interest in the proceedings.
[105] “Party” is not defined in either the Civil Procedure Act 2005 or the UCPR
(together referred to as the 2005 procedural legislation). The term had been
defined in s 19 of the Supreme Court Act 1970 in an inclusive manner as follows:
“party includes any defendant and any person against whom a claim for relief is
made under section 78”. However, that definition was not carried over into the
2005 procedural legislation.
[106] The respondents recognised that the word “party” appeared in various
provisions of the Civil Procedure Act as a component of the phrase “party to
proceedings”. The following are examples:
(1) s 26(1):
… the court may, by order, refer any proceedings before it, or part of any such
proceedings, for mediation by a mediator, and may do so either with or
without the consent of the parties to the proceedings concerned.
(2) s 27:
It is the duty of each party to proceedings that have been referred for
mediation to participate, in good faith, in the mediation.
244 AUSTRALIAN LAW REPORTS NSWCA

(3) s 73(1)(a):
(1) In any proceedings, the court:
(a) has and may exercise jurisdiction to determine any question in dispute
between the parties to the proceedings as to whether, and on what
terms, the proceedings have been compromised or settled between 5
them …
[107] If “party” was only used in this way, it would indicate that its meaning
was confined to mean “party in proceedings”. However, the respondents pointed
out that there were other occasions in the Civil Procedure Act where the term
“party” was not encompassed in the phrase “party in proceedings”. Rather, it 10
appeared on its own. They contended, therefore, that it was apparent that the
meaning of the word extended beyond a party to a proceeding. The respondents
referred to ss 28 and 29 of the Civil Procedure Act by way of example.
Sections 28 and 29 are contained in Pt 4 “Mediation of proceedings”, as are ss 26
and 27. The terms of ss 26 and 27 are referred to above. Section 28 provides: 15
The costs of mediation, including the costs payable to the mediator, are payable:
(a) if the court makes an order as to the payment of those costs, by one or more
of the parties in such manner as the order may specify, or
(b) in any other case, by the parties in such proportions as they may agree among
themselves. 20

[108] In my opinion, the reference to “the parties” in this rule can only mean
the parties that the court has ordered to mediation, that is, the party to the
proceedings. This is the natural sense of the rule. That meaning is confirmed by
the terms of s 98 of the Civil Procedure Act, considered below. If, as the 25
respondents contended, “parties” meant persons who engaged in the mediation,
it would not be a natural meaning of that word to encompass those persons in the
phrase “the parties”. That would also not be consistent with the language of s 98.
[109] Section 29 makes provision for giving effect to an agreement reached in
a mediation. Its terms are, relevantly: 30
29 Agreements and arrangements arising from mediation sessions
(1) The court may make orders to give effect to any agreement or arrangement arising
out of a mediation session.
(2) On any application for an order under this section, any party may call evidence,
including evidence from the mediator and any other person engaged in the mediation, 35
as to the fact that an agreement or arrangement has been reached and as to the substance
of the agreement or arrangement.
…
[110] The reference to “party” in this rule must be a reference to the party to
the proceedings in respect of which the court had ordered the mediation. The 40
separate reference to “person” makes this clear, if it was not already apparent.
[111] The respondents’ submission that the informal mechanism of mediation
need not be confined to those on the record, failed, in my opinion, to recognise
the clear words and operation of these two provisions. The respondents’ argument 45
is thus not borne out by reference to ss 28 and 29.
[112] The respondents also relied upon s 98 as supporting their argument. It
provides, relevantly:
98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act: 50
(a) costs are in the discretion of the court, and
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 245

(b) the court has full power to determine by whom, to whom and to what extent
costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on
an indemnity basis.
(2) Subject to rules of court and to this or any other Act, a party to proceedings may
not recover costs from any other party otherwise than pursuant to an order of the court.
…
[113] The rule to which s 98 is subject is Pt 42 of the UCPR. For present
purposes, it is sufficient to refer to rr 42.2 and 42.4 of the UCPR.
[114] Those rules provide:
42.2 General rule as to assessment of costs
Unless the court orders otherwise or these rules otherwise provide, costs payable to
a person under an order of the court or these rules are to be assessed on the ordinary
basis.
…
42.4 Power to order maximum costs
(1) The court may by order, of its own motion or on the application of a party,
specify the maximum costs that may be recovered by one party from another.
(2) A maximum amount specified in an order under subrule (1) may not include
an amount that a party is ordered to pay because the party:
(a) has failed to comply with an order or with any of these rules, or
(b) has sought leave to amend its pleadings or particulars, or
(c) has sought an extension of time for complying with an order or with
any of these rules, or
(d) has otherwise caused another party to incur costs that were not
necessary for the just, quick and cheap:
(i) progress of the proceedings to trial or hearing, or
(ii) trial or hearing of the proceedings.
…
[115] It is important to note that in these rules, the reference is to “a party” or
to “a person”. The different terminology can only be reference to a party to the
proceedings and a person not a party to the proceedings. The remaining
provisions of Pt 42 of the UCPR bear this out. Again, it follows, in my opinion,
that the respondents’ argument is not made out by reference to s 98.
[116] The respondents next relied upon various provisions in Pt 36 of the
UCPR itself and, in particular, rr 36.15, 36.17 and 36.18. Rule 36.15(2) of the
UCPR provides:
A judgment or order of the court in any proceedings may be set aside by order of the
court if the parties to the proceedings consent.
This rule is confined by its express terms to the parties to the proceedings, the
respondents’ point being that when the procedural legislation intended to refer to
a party or parties to a proceeding, it did so expressly. However, having regard to
the provisions already considered, that is not self-evidently correct.
[117] Rule 36.17 of the UCPR provides:
If there is a clerical mistake, or an error arising from an accidental slip or omission, in
a judgment or order, or in a certificate, the court, on the application of any party or of
its own motion, may, at any time, correct the mistake or error.
[118] The respondents submitted that it could be assumed that only persons
with “a real interest in the proceedings” would invoke this rule. In other words,
“party” in r 36.17 of the UCPR could include a person not a party to the
246 AUSTRALIAN LAW REPORTS NSWCA

proceedings. Unfortunately, this submission assumes the answer and further

analysis is required. In the normal course, only a party to proceedings is affected
by an order of the court and would be the only entity concerned as to the accuracy
or correctness of a court order.
5
[119] There are, however, occasions whereby someone not a party is or may be
affected by the court’s orders. Proceedings relating to the possession of land are
one example. Another is the court’s power under s 98 to make costs orders
against persons who are not parties. It would seem that such a person would have
a right to apply under r 36.17 of the UCPR for the correction of a mistake or error 10
in an order affecting them. A person responding to a subpoena who becomes
subject to an order of the court likewise, it would seem, would be entitled to make
an application under this rule: see Garden Mews-St Leonards Pty Ltd v Butler
Pollnow Pty Ltd (No 2) (1984) 9 ACLR 117 at 199 (Garden Mews-St Leonards).
[120] Rule 36.18(1) of the UCPR provides: 15
In any proceedings in which judgment has been given, or an order made, against a
person under a business name, the court may vary the judgment or order so as to make
it a judgment or order against the person in the person’s own name.

[121] This rule is intended to deal with the specific circumstance where 20
proceedings are brought against a business which is not incorporated. A business
name is not a legal entity. This is not always appreciated by those who bring
proceedings. The rule is a convenient provision that allows the court to make its
order or judgment against the person who owns the business, being the
appropriate defendant, without the need for pleadings to be amended or the 25
relevant person to be formally joined. I do not consider that this provision aids
in the construction of r 36.16(2)(b) of the UCPR.
[122] In my opinion, the various provisions to which the respondents referred
do not compel the conclusion for which the respondents contend. Nor do they 30
deny it. The question, therefore, by reference to the respondents’ submissions,
remains unanswered.
[123] The appellants contended that in order to ascertain the meaning of
“party” in r 36.16(2)(b) of the UCPR, it was necessary to look at the UCPR as
a whole. They submitted that the Legislature had made it clear when it intended 35
to refer to a party to proceedings, that is, a party who was formally joined as a
party to proceedings, and when it intended to make reference to a person who
was not a party. The appellants submitted that this was apparent from the different
language used in r 36.16(2)(b) of the UCPR itself as compared to para (c) of the
rule. Paragraph (b) refers to the making of an order “in the absence of a party”, 40
whereas para (c) refers to an order made in proceedings for possession of land “in
the absence of person whom the court has ordered to be added as a defendant”.
[124] The respondents submitted that this argument was not maintainable, as
there are special rules relating to possession cases which explained the language 45
used in r 36.16(2)(c) of the UCPR. They contended, therefore, that no point of
distinction could be made by reference to the difference in language in the two
paragraphs. The appellants said this was no answer to their submission and that
if all the Legislature meant in para (c) was a person who had an interest in the
proceedings, the language used in that paragraph was completely unnecessary. 50
The only reference required was to “a party”.
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 247

[125] The appellants also argued that it was not correct, as the respondents
contended, that there was a long line of authority to the effect that “party” meant
a person with sufficient interest in the proceedings. The appellants argued that
upon a proper understanding of the authorities, their construction of the rule was
correct or, alternatively, the rules under consideration in the various cases upon
which the respondents relied were in different terms from r 36.16 of the UCPR
and, therefore, not of assistance or, at the least, not determinative of the meaning
of “party” in para (b).
The case law on meaning of “party”
[126] The appellants referred first to the remarks of Gavan Duffy and Rich JJ
in Murray who stated (at CLR 469):
… the word “party” must be given the meaning which lawyers ordinarily attach to it
when speaking of litigious proceedings in a Court of Record, namely, “party to the
record”
as being the appropriate starting point to a consideration of the meaning of
“party”.
[127] The appellants next analysed each of the cases to which the respondents
had referred.
[128] It will be recalled that Ward J relied upon Nicholson and Scott as
supporting the availability of r 36.16 of the UCPR to extend the time that had
been ordered by Hammerschlag J. To the extent that Scott is relevant to this
question, no more needs to be noted than that there, Mandie J, applied Nicholson
as authority for the proposition that the comparable Victorian rule was not
confined to only permitting the “absent party” to bring an application under the
rule. The party who obtained the order could also do so.
[129] In Nicholson an order for the sale of jointly owned property had been
made pursuant to s 66 of the Conveyancing Act 1919. The order had been made
in the absence of the respondent although he had notice of the application. Before
the property had been sold, the plaintiff applied to the court for an order to
prevent the sale.
[130] The order made under s 66G was a final order of the court so that there
was no inherent power in the court to set it aside: see Bailey v Marinoff (1971)
125 CLR 529 at 530; [1972] ALR 259 at 259–60; [1971] HCA 49. Jenkyn J
observed, however (at NSWLR 63; ALR 215–16) that the power to set aside or
vary an order could be conferred either by statute or by the rules of court. His
Honour considered that the Supreme Court Rules 1970, Pt 40, r 9(3)(a), which is
in similar terms to r 36.16(2)(b) of the UCPR, was the only basis upon which
such an order preventing the sale could be made. That then raised the question
whether the rule was only available to the person who had not been in court when
the order was made. His Honour (at NSWLR 64; ALR 217) was of the opinion
that the language of r 9(3) was wide enough to permit an application to be made
by the person who had obtained the order in the first place. In his Honour’s
opinion:
… r 9(3)(a) … should be construed so as to extend the court’s power to cover
applications by all interested persons, and should not be limited so as to apply only to
the one against whom the order in substance operates.
[131] Nicholson does not assist, in my opinion, in the determination of the
question in issue here, namely, whether the time period may be extended by an
application under r 36.16(2)(b) of the UCPR, made outside the period specified
248 AUSTRALIAN LAW REPORTS NSWCA

in s 588FF(3). Nicholson supports the entitlement of the respondents to utilise

r 36.16(2)(b) of the UCPR if the rule otherwise extends to an order that has
already been made under s 588FF(3). It does not assist in determining the
meaning of the words “party” in the rule.
[132] In Garden Mews-St Leonards (at 119) that it was not necessary that a 5
person with a sufficient interest in challenging the appointment or activities of a
receiver should be or become a party to the substantive proceedings in which the
receiver was appointed, before he could apply to the court in those proceedings
for appropriate relief in relation to the receiver. His Honour made the general
observation (at 119) that: 10
There are many circumstances in which interlocutory applications may be made by or
against persons who are not parties to proceedings, for example, applications by a
court-appointed receiver who is not a party, applications against persons, not parties,
alleged to be in contempt of court, applications by persons, not parties, to set aside
subpoenas, and applications of the kind exemplified in Jacques v Harrison and 15
Nicholson v Nicholson … [Citations omitted.]
[133] Jacques v Harrison (1883) 12 QBD 136, referred to by McLelland J in
Garden Mews-St Leonards, concerned O XXVII, r 15 of the Supreme Court
Rules (UK) which provided: 20
Any judgment by default, whether under this order or under any other of these rules,
may be set aside by the Court or a judge, upon such terms as to costs or otherwise as
such Court or judge may think fit.
Grove J (at 140) noted that this rule did “not say on whose application” the
judgment may be set aside. Hawkins J (at 141) said that “[t]here is in that rule 25
no limitation as to the persons who may apply to set it aside”. These observations
are consistent with what was later decided in Nicholson. For the same reason, it
does not assist in construing the meaning of “party” in r 36.16(2)(b).
[134] Douglass v Gillman (1990) 19 NSWLR 570 at 571 (Douglass) also
30
involved an application under Pt 40, r 9 of the Supreme Court Rules, made in
proceedings brought under the De Facto Relationships Act 1982. Needham J
(at 571) applied Nicholson and permitted the plaintiff to apply under the rule to
vary the order that had been made in the absence of the defendant. The other
aspect of the case, as to whether the term “vary” in the rule allowed a completely
35
different order or merely the amendment of an existing order, does not assist in
the resolution of the issues in this case.
[135] In Workers Compensation Nominal Insurer v Detailed Flooring Pty Ltd
(2010) 80 ACSR 1; [2010] NSWSC 1056 Barrett J (at [6]) held that an
application under r 36.16(2)(b) of the UCPR could be brought by a non-party 40
“with a clear interest in the subject matter”: see Nicholson and Douglass, which
his Honour considered stood for that proposition. The defendant company had
been wound up on the basis of the presumption of insolvency arising by
operation of the Corporations Act, s 459C(2)(a) for failing to comply with a
statutory demand. The applicant to set aside the order was a 50% shareholder, a 45
director and creditor of the defendant company.
[136] His Honour noted that under s 471A of the Corporations Act, the
company subject to the winding up could move to set it aside only with the
approval of the liquidator or the court. His Honour observed (at [10]) the only
factual precondition to the exercise of the discretion conferred by r 36.16(2)(b) 50
of UCPR was that the order in question was “made in the absence of a party”. His
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Beazley P) 249

Honour noted that the defendant company had been “absent” when the
winding-up order was made, so that the precondition for the exercise of the
discretion under the rule had been satisfied.
[137] Although on his Honour’s construction of r 36.16(2)(b) of the UCPR, the
applicant was a proper party to make the application, he refused the application
on discretionary grounds. His Honour then considered the applicant’s alternative
claim under s 482 of the Corporations Act based upon his status as a creditor and
contributory of the defendant company. As his Honour was satisfied of the
company’s solvency, an order was made under that section.
[138] In my opinion, this decision, if anything, supports the appellants’
argument that the relevant order must have been made in the absence of a party
joined to the proceedings.
[139] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4)
(2010) 269 ALR 76; [2010] FCA 398 was concerned with an application by
non-parties to the proceedings to set aside a subpoena. The respondents
contended that Yates J (at [66]) followed Nicholson in relation to O 35, r 7(2)(a),
the equivalent Federal Court rule. It is not clear whether that is so. His Honour
referred to the rule and to a submission to that effect. His Honour then (at [67])
referred to O 35, r 7(2)(c), that permitted an interlocutory order to be set aside,
noting that the order in question was interlocutory. His Honour then referred
generally to the nature of the discretion conferred by r 7(2), without stating
specifically which rule he was proceeding under, although the better reading is
that it was likely to have been r 7(2)(c). Therefore, the comment at [86] of the
judgment, that Barnes and Hawksley had standing “under O 35 r 7(2)” (without
expressly referring to subparas (a) or (c) of that rule) cannot be read, as the
respondents submit, as a finding by Yates J that the non-party applicants had
sufficient standing to apply for orders under the Federal Court’s equivalent of
r 36.16(2)(b). This case does not, therefore, take the question in issue any further.
[140] A case not referred to by either party was Re Bauhaus Pyrmont Pty Ltd
(in liq) (2006) 67 NSWLR 289; [2006] NSWSC 879, which concerned the
question whether an entity who had been subpoenaed to produce documents but
had contested their production on the ground of privilege could be subject to a
costs order. This question involved a consideration of s 98 and r 42.3 of the
UCPR (now repealed) which provided that the rule did not permit the making of
an order for costs “against a person who is not a party”. There were stated
exceptions to the rule in r 42.3(2) of the UCPR including in the case of “a person
who has committed contempt of court or an abuse of process of the court”. An
order for the payment of costs “of a party to proceedings” could be made against
that person. There was also excepted from the rule the power of the court to make
an order against a person who failed to attend in response to a subpoena, either
to give evidence or to produce documents: see r 42.27 of the UCPR.
[141] A company, having been subpoenaed to produce documents, attended
court but claimed privilege. After a contested hearing, the claim for privilege was
dismissed. Austin J held that a subpoenaed person who contests access to the
documents but fails is a party for the purposes of r 42.3(1) of the UCPR. In
reaching that conclusion, Austin J relied significantly upon the judgment of
Rolfe AJ in ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169. Rolfe AJ in
turn had relied upon Law Society (NSW) v Jackson [1981] 1 NSWLR 730 where
Samuels JA, with whom Reynolds JA and Mahoney JA agreed, said (at 735):
250 AUSTRALIAN LAW REPORTS NSWCA

A party, essentially, is a person who takes part in legal proceedings, and that is the
definition to be found in Jowirt’s Dictionary of English Law, at p 1302.
[142] Their Honours added there was no doubt that the Council of the Law
Society had taken part in the proceedings. Austin J considered that this concept
of a “party” was consistent with the observations of Mason CJ and Deane J in 5
Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 190; 107 ALR 585 at 593;
8 ACSR 1 at 9; [1992] HCA 28 in which their Honours stated that the word
“party” was not confined to a person on the record in the proceedings. However,
in that case, the court was concerned with O 91.1 of the Supreme Court Rules
(Qld), which provided, relevantly, that the costs were to be in the discretion of the
court or judge. There was no reference in the rules to a “party” or to “party to the 10
proceedings” or to “person”.
Resolution
[143] The meaning of a word in a legislative provision depends upon its text,
context and purpose. There are, relevantly, three expressions used in the
procedural legislation: “party [or parties] to proceedings”; “party” and “person”. 15
As I have already indicated, “party [or parties] to proceedings” is clear and can
have only one meaning. “Party”, when used in many of the provisions of the
procedural legislation, often means “party or parties to the proceedings”.
However, as the references to some of the rules makes apparent, that is not
invariably the case. 20
[144] The language of the provision as a whole must, of course, be considered.
Thus, the rule provides that an order, that has been entered, may be varied if
“given or made in the absence of a party, whether or not the absent party had
notice of the relevant hearing or of the application for the judgment or order”. It
thus refers to “the absence of a party” and “the absent party”. Although the 25
language of “party” tends to suggest that the rule is directed to a party joined to
the proceedings, there are sufficient occasions in the procedural legislation where
that is not the case. Accordingly, the matter is not concluded by reference solely
to the text of the provision.
[145] As I have also sought to analyse, context often provides the answer as to 30
the proper construction of a legislative provision, but not always. It does not do
so for r 36.17 of the UCPR, nor, in my opinion, for r 36.16(2)(b) of the UCPR.
The difference in language between r 36.16(2)(b) of the UCPR and r 36.16(2)(c)
of the UCPR, although useful also does not provide the answer as to the proper
construction of r 36.16(2)(b) of the UCPR. The purpose of para (c) explains the
particular language used in that provision. 35
[146] If one then looks at the purpose of r 36.16(2)(b) of the UCPR, it is a
procedural provision which recognises that orders may be made in the absence of
“a party” (to use the language of the section) which require variation. This may
be at the instance of the party who obtained the order. As the authorities
recognise, this may be because circumstances have changed so that some other 40
order than that originally made may be needed or warranted. Nicholson was such
a case. An application under the rule may also be made by the “absent party” who
may, on being heard, establish that an order, or aspects of it, ought to be varied.
[147] When regard is then had to the position that, as McClelland J recognised
in Garden Mews-St Leonards there are a variety of circumstances in which a 45
person, not a party formally joined to proceedings, may challenge orders that
have been made by the court, then it would seem that r 36.16(2)(b) of the UCPR
ought to be available to such persons.
[148] Accordingly, I propose the following orders:
(1) Grant leave to appeal. 50
(2) Appeal allowed.
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Macfarlan JA) 251

(3) Set aside orders made by Black J on 8 February 2013.

(4) Order that order 2 made by Ward J on 19 September 2011 be set aside.
(5) Order that the respondents pay the costs of the appellants, both of the
hearing before Black J and of the appeal.
[149] Macfarlan JA. I agree with Beazley P’s reasoning other than that
contained in [89]–[93] of her Honour’s judgment. My view on the issue there
addressed leads me to the conclusion that the appeal should be dismissed with
costs.
Whether Ward J’s order was made on the extension application filed within
time
[150] My disagreement with her Honour is as to whether r 36.16(2)(b) of the
Uniform Civil Procedure Rules 2005 (the UCPR) validly authorised the order of
Ward J (as her Honour then was) that Hammerschlag J’s order of 30 May 2011
be varied by substituting an extended date for the liquidators to commence
proceedings against the appellants seeking orders concerning allegedly voidable
transactions.
[151] In my view Ward J’s order was validly made, as Black J subsequently
held on 8 February 2013. My reasons are as follows.
[152] The only restriction placed by s 588FF(3)(b) on the court’s power to
extend the time for a liquidator to bring proceedings concerning a voidable
transaction is that the court’s order be “on an application under this paragraph
made by the liquidator during the para (a) period”. The provision does not require
that the order, as distinct from the application, be made during the para (a) period.
An application was made here during the para (a) period, but Ward J’s order,
which had the effect of extending the period (by varying the order made by
Hammerschlag J), was made outside the period. This did not conflict with the
section if the application made within time was on foot when Ward J made her
order. If it was, she made her order “on an application” filed in conformity with
s 588FF(3)(b).
[153] The nub of JP Morgan’s argument is that, once Hammerschlag J made an
extension order, the application for extension ceased for all time to be on foot, as
its purpose was fulfilled.
[154] The High Court decision in Gordon v Tolcher (2006) 231 CLR 334;
231 ALR 582; 60 ACSR 522; [2006] HCA 62 (Gordon) establishes 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 was filed]”: at [40]. In that case, proceedings under
s 588FF in the District Court of New South Wales were taken by the court’s rules
to be dismissed because certain procedural steps had not been taken within
specified times. On appeal, this court extended the time for taking the steps, with
the consequence that the application could continue to be prosecuted. On further
appeal, the High Court affirmed this court’s decision and held, in effect, that the
extension application revived because the Court of Appeal’s order was made in
accordance with the governing rules of court. Thus the dismissal in the District
Court of the s 588FF application was reversed by a subsequent (appellate) order
made in accordance with the rules of court.
[155] In my view there is an analogy between what occurred in Gordon and
what occurred in the present case. Hammerschlag J’s order extending time
implicitly brought the application for extension of time to an end because what
252 AUSTRALIAN LAW REPORTS NSWCA

was sought by the application was achieved. However, that termination was
subject to the rules of court which were able to, and effectively did, provide for
its revival in certain circumstances. One circumstance was that which occurred
in the present case where a judge exercised the amendment power conferred by
r 36.16(2)(b) to vary the earlier order. To the extent that the rule of court 5
permitted the making of the variation order, the rule implicitly provided for the
application for extension of time to be revived, as the variation order could not
be made in the absence of process invoking the court’s jurisdiction.
[156] The position would be the same if an application were made for variation
of this, or any other, order under the slip rule (r 36.17), or under the inherent 10
jurisdiction to correct an order that did not truly represent the order that the court
intended to pronounce (Newmont Yandal Operations Pty Ltd v J Aron
Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 at [77]–[83]). For the
court to have a foundation for the exercise of its jurisdiction, the application
pursuant to which the earlier order was made would have to be regarded as 15
subsisting, or at least revived, when the variation order was made.
[157] The same position would apply if at first instance an application for
extension of time under s 588FF(3) was rejected and the extension application
formally dismissed, but an appeal was allowed and an order for extension made.
The orders allowing the appeal and granting an extension would have the effect 20
of reviving the application to enable it to form the basis for the extension order.
In the words of s 588FF(3)(b), that order would be made “on an application” filed
in accordance with that provision.
[158] JP Morgan submitted that the fact that the extension application as filed 25
sought an extension to a particular identified date which was different from that
to which Ward J granted an extension indicated that Ward J’s variation order,
which had the effect of extending time, was not made on the original application.
[159] The first answer to this submission is that the court is not confined in the
orders that it may make by the precise terms of the application before it. Subject 30
to procedural fairness being afforded to the parties, it may depart from that court
process, for example, in a s 588FF(3) application for extension of time by
specifying a different date to which the relevant period is extended. Strictly, the
court process should be amended to conform with the court’s decision (see by
way of analogy, Water Board v Moustakas (1988) 180 CLR 491 at 497; 35
77 ALR 193 at 196; [1988] HCA 12) but not doing this will not affect the validity
of the court’s order. In such a case, the process should be regarded as implicitly
amended. In the case of a s 588FF(3)(b) extension of time application, such an
amendment, whether explicit or implicit, may validly be made outside the period
specified in s 588FF(3) so long as the application was brought within that period: 40
see [4] above and by analogy Agtrack (NT) Pty Ltd v Hatfield (2005)
223 CLR 251; 218 ALR 677; [2005] HCA 38; Air Link Pty Ltd v Paterson (2005)
223 CLR 283; 218 ALR 700; [2005] HCA 39 at [11].
[160] The present question is different from that of whether an amendment
power conferred by rules of court can be used to extend the period specified in 45
s 588FF(3)(b) for the making of an application for extension of time. Authority
requires a negative answer to the latter question (see Wardley Australia Ltd v
Western Australia (1992) 175 CLR 514 at 561–2; 109 ALR 247 at 281–2; [1992]
HCA 55; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995)
184 CLR 265 at 278–9; 131 ALR 353 at 361–2; 18 ACSR 225 at 233–4; [1995] 50
HCA 43; Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17; [2003] QCA
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Gleeson JA) 253

298 at [90]; BP Australia Ltd v Brown (2003) 58 NSWLR 322; 46 ACSR 677;
[2003] NSWCA 216 at [129] (BP Australia)). However, the question in the
present case is not whether the time for making an extension application may be
extended after the period specified by the legislature but whether an application
filed within time was on foot on the date after expiry of that period when the
order for variation of Hammerschlag J’s order was made. As I have indicated, that
is a question to be answered by reference to the rules of court.
[161] I should add that I do not see Spigelman CJ’s reference in BP Australia
at [118] to s 588FF(3) providing for a “single determinate extension of time” as
precluding the view that I have taken as there was no issue in that case, as there
is here, of use of the amendment power in r 36.16(2)(b).
The ambit of r 36.16(2)(b)
[162] I agree with Beazley P’s view that this rule provided a proper foundation
for Ward J’s order but add the following observations.
[163] First, as her Honour demonstrates, no clear indication can be obtained
from other rules in the UCPR as to the sense in which the word “party” is used
in r 36.16(2)(b). In other rules, the word, whether in a singular or plural form, is
sometimes used in a broad sense and sometimes in a narrow sense. However the
rule is remedial in that it permits the court to exercise a discretion to correct a
judgment or order that it considers requires correction and the appellants did not
identify any good reason why the rule makers would have intended the court to
have only a narrow discretion in this respect. A broad construction, enlarging the
court’s discretion to act in cases it considers appropriate, conforms with s 56 of
the Civil Procedure Act 2005 which requires the court, in interpreting any rule of
court, to give effect to the overriding purpose of the Act of facilitating the just,
quick and cheap resolution of the real issues in the proceedings. Such a
construction also conforms with the principle that powers to be exercised
judicially should be construed liberally (Mansfield v Director of Public
Prosecutions (2006) 226 CLR 486; 228 ALR 214; [2006] HCA 38 at [10]; Lee
v New South Wales Crime Commission (2013) 302 ALR 363; 87 ALJR 1082;
[2013] HCA 39 at [56] and [141]).
[164] Second, some support for this construction can be obtained from the fact
that r 36.16(2)(b) was promulgated as part of the UCPR when for some years
previously the view of Jenkyn J in Nicholson v Nicholson [1974] 2 NSWLR 59
at 64; (1974) 4 ALR 212 at 216–17 that a similarly expressed rule in the Supreme
Court Rules 1970 extended “to cover applications by all interested persons” was
treated as authoritative by Peter Taylor and P W Young, Ritchie’s Supreme Court
Procedure (NSW), 1984–2005, Butterworths. An inference is available that when
the rule makers adopted the same language in the UCPR they intended it to have
the meaning already judicially attributed to the word “party” in that earlier rule:
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and
Engineering Employees (1994) 181 CLR 96 at 106; 123 ALR 193 at 200; [1994]
HCA 34; R v Aubrey (2012) 82 NSWLR 748; [2012] NSWCCA 254 at [39]–[47].
Conclusion
[165] For these reasons, I propose that leave to appeal be granted but the appeal
be dismissed with costs.
[166] Gleeson JA. I have had the advantage of reading in draft the judgments
of Beazley P and Macfarlan JA. Like Macfarlan JA, I am in agreement with
Beazley P’s reasoning other than that contained in [89]–[93] of her Honour’s
254 AUSTRALIAN LAW REPORTS NSWCA

judgment. I otherwise agree with the reasons of Macfarlan JA. In these

circumstances, it is unnecessary to determine the liquidators’ alternative
argument that an order nunc pro tunc could be made under r 1.12 of the the
Uniform Civil Procedure Rules 2005 (the UCPR) to achieve the same result as
the order made by Ward J: see [94]–[99] of the reasons of Beazley P. The various 5
appeals should be dismissed with costs.
[167] I would add the following observations on the issue concerning whether
Ward J’s order under UCPR r 36.16(2)(b) was made “on an application” under
s 588FF(3)(b) of the Corporations Act 2001 (Cth).
[168] It is to be accepted that the time stipulation in s 588FF(3) imposes a 10
condition which is of the essence of the right created by s 588FF(1) for a
liquidator to make application to a court for orders in respect of transactions
which are voidable because of s 588FE: Gordon v Tolcher (2006) 231 CLR 334;
231 ALR 582; 60 ACSR 522; [2006] HCA 62 at [37] (Gordon).
15
[169] The time stipulation may only be extended beyond the 3-year period by
“the court”, being a superior court, “on an application” that is made within the
original stipulated period. This includes the Federal Court, the Supreme Court of
a state or territory and the Family Court of Australia: s 58AA(1) of the
Corporations Act.
20
[170] An application for the fixing of a “longer period” under s 588FF(3)(b) is
a “matter” arising under the Corporations Act in respect of which federal
jurisdiction is conferred by s 1337B(2) of the Corporations Act upon, relevantly,
the Supreme Court of each state and territory. An extension application is a
“matter” distinct from that seeking an order under s 588FF(1) with respect to 25
voidable transactions: Gordon at [35]. An extension application is made when it
is filed in the registry: Ansell Ltd v Davies (2008) 67 ACSR 356; [2008]
SASC 2003 at [49] (Ansell) per Doyle CJ.
[171] Section 588FF is silent in relation to the procedures to be adopted by the
court when exercising federal jurisdiction in respect of an extension application 30
under s 588FF(3)(b). Subject to any operation of other provisions of the
Corporations Act (and none were identified in the present case), after the
institution of an extension application the procedural regulation of the conduct of
such matter is left for the particular state or territorial procedural law which is to
be picked up by s 79 of the Judiciary Act: Gordon at [32]. 35
[172] In the present case, the liquidators of Octaviar Ltd (in liq) made an
application for an extension of time in conformity with s 588FF(3)(b), during the
original stipulated period of 3 years after the relation-back day. An order fixing
a “longer period” was made “on that application” by Hammerschlag J on 30 May
2011 and was later varied by Ward J on 19 September 2011. 40
[173] Although procedurally the variation order made by Ward J on
19 September 2011 relied on the court’s power under r 36.16(2)(b) of the UCPR,
as a matter of jurisdiction that order is properly characterised as an order made
“on an application” under s 588FF(3)(b). It is not to the point that as a matter of
procedure the variation order under r 36.16(2)(b) was sought in an interlocutory 45
process, or for that matter in an amended originating process, which were both
filed in the proceedings below on 19 September 2011. When the variation order
was made, Ward J was exercising federal jurisdiction in respect of an
“application” under s 588FF(3)(b) for the fixing of a “longer period” for making
an application under s 588FF(1). The time limit for the making of such an 50
application by the liquidators had been satisfied when the application was made
306 ALR 224 JPMORGAN v FLETCHER (in liq) (Gleeson JA) 255

to the court on 10 May 2011 by way of an originating process filed in the registry
(Consolidated White Book 25): BP Australia Ltd v Brown (2003)
58 NSWLR 322; 46 ACSR 677; [2003] NSWCA 216 at [151] per Spigelman CJ
(Mason P and Handley JA agreeing); Ansell at [45] and [49] per Doyle CJ.

Orders
(1) Grant leave to appeal.
(2) Appeal dismissed with costs.

PETER PEREIRA
SOLICITOR