Carter, in the matter of Spec FS NSW Pty Ltd (In Liquidation) [2013] FCA 1027

FEDERAL COURT OF AUSTRALIA

Carter, in the matter of Spec FS NSW Pty Ltd (In Liquidation) [2013] FCA 1027 Citation: Carter, in the matter of Spec FS NSW Pty Ltd (In Liquidation) [2013] FCA 1027

Parties: PHILIP PATRICK CARTER IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATOR OF SPEC FS NSW PTY LTD AND OTHER COMPANIES NAMED IN THE SCHEDULE v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

File number: NSD 2237 of 2012

Judge: WIGNEY J

Date of judgment: 10 October 2013

Catchwords: PRACTICE AND PROCEDURE – standing – whether directors against whom indemnity is sought under s 588FGA of the Corporations Act 2001 (Cth) have standing to oppose grant of leave to amend originating application and pleadings – where Commissioner of Taxation who seeks indemnity does not oppose grant of leave to amend PRACTICE AND PROCEDURE – application to amend originating application and statement of claim – Federal Court Rules 2011 (Cth) r 8.21 – where liquidator sought leave to amend in order to bring proceedings in his capacity as liquidator of additional companies – where additional claims outside limitation period – whether amendments "to change the capacity in which the party is suing in the proceeding" – whether new claims for relief arose out of "substantially the same facts" – whether leave should be refused on discretionary grounds PRACTICE AND PROCEDURE – application to amend originating application and statement of claim – whether proposed amended pleadings deficient – whether material facts of agency pleaded – whether material facts for purpose of s 588FA(1) of Corporations Act 2001 (Cth) pleaded

Legislation: Corporations Act 2001 (Cth) ss 588FA, 588FE, 588FF, 588FGA Federal Court of Australia Act 1976 (Cth) s 37M Taxation Administration Act 1953 (Cth) sch 1 subdiv 16-B Federal Court Rules 2011 (Cth) rr 8.21, 16.53 Federal Court (Corporations) Rules 2000 (Cth) r 2.4 Insolvency (Tax Priorities) Legislation Amendment Bill 1993 (Cth)