Cussen, in the matter of Monarch Tower Pty Ltd (in liq) v Sinoace Holdings Ltd [2024] FCA 716

Federal Court of Australia

Cussen, in the matter of Monarch Tower Pty Ltd (in liq) v Sinoace Holdings Ltd [2024] FCA 716 File number(s): VID 31 of 2024 VID 32 of 2024 VID 33 of 2024 VID 34 of 2024 VID 35 of 2024 VID 410 of 2022

Judgment of: O'CALLAGHAN J

Date of judgment: 4 July 2024

Catchwords: CORPORATIONS – where pursuant to s 588FF(3)(b) of the Corporations Act 2001 (Cth) (the Act) the plaintiff liquidator had sought extension of time to bring applications against named respondents under s 588FF(1) of the Act with respect to any voidable transaction involving the company involving certain named persons and entities – whether on its proper construction the extension of time order made on that application in Cussen, in the matter of Monash Tower Pty Ltd (in liquidation) [2023] FCA 192 (Cussen No 1) permitted the bringing of voidable transaction applications against persons or entities not named in the order – consideration of the origin and meaning of the expression "shelf order" – held that on its proper construction the order made for the extension of time did not extend to persons or entities not named in the order and extended only to the entities and individuals named in it – whether a party named in the extension of time order was denied procedural fairness because it was not served with the application and had no notice of it – where liquidator pursuant to r 1.39 of the Federal Court Rules 2011 (Cth) and r 1.10 of the Federal Court (Corporations) Rules 2000 (Cth) later brought application for orders that the time for service of originating processes and affidavits filed in various voidable transaction proceedings against certain persons or entities named in the extension of time order made in Cussen No 1 and sixteen other persons not named in it be extended nunc pro tunc to various dates – where such application brought after expiry of time provided for service in the rules – whether liquidator demonstrated "reasonable steps" to attempt to serve the court process within time – where liquidator deliberately withheld service of originating processes and affidavits until after expiry of the time provided for in the rules for his own strategic purposes – liquidator's application for time for service to be extended refused – whether once an application under s 588FF(3)(b) of the Act for an extension of time has been determined, it can be re-heard if an extension order made upon that application is later set aside – held that it cannot be re-heard, following the majority in Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17 – where all proceedings brought by liquidator dismissed HIGH COURT AND FEDERAL COURT – application of the principle that a single judge should not depart from an interpretation placed on legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong