Application of Hall - In the Matter of ACN 063 865 083 Pty Ltd (In Liquidation) (formerly Digicall Direct Pty Ltd) [1999] NSWSC 984

New South Wales Supreme Court CITATION : Application of Hall - In the Matter of ACN 063 865 083 Pty Ltd (In Liquidation) (formerly Digicall Direct Pty Ltd) [1999] NSWSC 984 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3863/99 HEARING DATE(S) : 7 September 1999 JUDGMENT DATE : 7 September 1999

PARTIES : Gregory Winfield Hall and Philip Patrick Carter (Plaintiffs) JUDGMENT OF : Hamilton J

COUNSEL : Mr DJ Hammerschlag (Plaintiffs) (ex parte) SOLICITORS : Blake Dawson Waldron (Plaintiffs) CATCHWORDS : CORPORATIONS [253] - Winding Up - Conduct and Incidents of Liquidation - Effect of Winding Up on Other Transactions - Preferences - Limitation of action to bring preference claim - Extension of time under Corporations Law, s 588FF - Relevant condsiderations. ACTS CITED : The Corporations Law, s 588FF CASES CITED : Woden Constructions Pty Ltd [1998] 1228 FCA Green v Chiswell Furniture [1999] NSWSC 608 DECISION : Extension of time granted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J TUESDAY, 7 SEPTEMBER 1999

3863/99 GREGORY WINFIELD HALL & ANOR IN THE MATTER OF ACN 063 865 083 PTY LTD (In Liq) (formerly Digicall Direct Pty Ltd) & Ors

JUDGMENT His Honour: 1 These proceedings are brought by Gregory Winfield Hall and Phillip Patrick Carter who are both the liquidators of four companies being ACN 063 865 083 Pty Ltd (In liquidation) (formerly Digicall Direct Pty Ltd) and three associated companies ("the companies"). The plaintiffs seek leave pursuant to s 588FF(3)(b) of the Corporations Law ("the Law") for an extension to 13 September 2000 of the time within which application may be made to the Court in respect of any voidable transaction of any of the companies. Without such an order the time within which such application could be made would expire on 13 September 1999. 2 The application is supported by the affidavit of Mr Hall and extensive documentary material. This seeks to explain the delay in investigating and bringing to the Court any claim in respect of any such voidable transaction. That explanation, in short, proceeds by reference to extensive activities of the liquidators in pursuing claims and investigating the companies' affairs. The affidavit reveals that the liquidators' time has essentially been taken up with those other activities and that it is only of comparatively recent times that all the materials necessary for an investigation and, if appropriate, pursuit of the relevant claims has come into the liquidators' hands by reason of the complication of the winding up of the companies. Because the investigations are not complete, specific proceedings proposed to be brought by the liquidators, if they deem it appropriate, cannot be identified and the orders for extension are sought in global terms. 3 The matters relevant to be considered by the Court upon the determination of such an application as the present, have previously been considered by at least two Judges, namely, Finn J of the Federal Court of Australia in Taylor v Woden Constructions Pty Ltd [1998] 1228 FCA and Austin J of this Division of this Court in Green v Chiswell Furniture [1999] NSWSC 608. The considerations which the Court ought ordinarily take into account are set out as follows in the judgment of Austin J: "15. Considerations relevant to the exercise of the Court's discretion under s 588FF(3) were stated by Finn J in Taylor v Woden Constructions Pty Ltd (Federal Court, 23/8/98, unreported). The following propositions, with which I respectfully agree, emerge from that case: