Supreme Court New South Wales Medium Neutral Citation: In the matter of William John Fletcher and Katherine Barnet as liquidators of Octaviar Ltd [2012] NSWSC 547 Hearing dates: 30 March 2012 Decision date: 30 March 2012 Jurisdiction: Equity Division - Corporations List Before: Hammerschlag J Decision: The order of the Court made on 19 September 2011 is varied by adding after the words "3 April 2012" the following words, "Except in the case of any application against any of Octaviar Investment Notes Limited (In Liquidation) and Octaviar Investment Bonds Limited (In Liquidation) in respect of which the time for making any application under s 588 FF (1) of the Corporations Act 2001 (Cth) is extended to 3 April 2013 Catchwords: CORPORATIONS - Variation of orders under s 588FF(3)(b) Corporations Act 2001 (Cth) - preservation of ability of liquidators to pursue claims after completion of adjudications - application for extension of time under s 588FF(1) Corporations Act 2001 (Cth) - Rule 36.16 Uniform Civil Procedure Rules 2005 - Consent to variation of orders by parties who may be prejudiced Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed (In Liquidation) and Octaviar Administration Pty Ltd (In Liquidation) - First Plaintiffs Octaviar Limited (Receivers and Managers Appointed (In Liquidation) - Second Plaintiff Octaviar Administration Pty Ltd (In Liquidation) - Third Plaintiff Representation: Counsel: P. Dowdy - Plaintiffs Solicitors: Henry Davis York - Plaintiffs File Number(s): 2011/153330 EX TEMPORE Judgment 1HIS HONOUR:This is an application by Interlocutory Process filed with leave today for orders varying certain orders made by Ward J on 19 September 2011 under s 588FF(3)(b) of the Corporations Act 2001 (Cth) ("the Act") that the time for the making of an application in respect of Octaviar Administration (in liquidation) ACN 101 069 390 ("OA") under s 588FF(1) of the Act be extended from 3 April 2012, as earlier ordered, to 3 April 2013 in the case of any application against Octaviar Investment Notes Limited (in liquidation) ("OIN") and Octaviar Investments Bonds Limited ("OIB") or either of them. 2The application is supported by the affidavit of Tracy Knight, Director Corporate Recovery of the accountancy firm who is assisting the liquidators of OA in the administration of OA and OL, that is in Octaviar Limited (Receivers and Managers appointed) (in liquidation) ACN 107 863 436. 3This judgment should be read in conjunction with my judgment of 30 May 2011 and that of Ward J of 19 September 2011, both of which are to be found on the court file. 4The gravamen of the application is that there are potential proceedings available to OA against OIN and OIB which companies are significant creditors in the administration of OA. Those companies have lodged proofs which have been adjudicated on and it is quite possible that once all proofs in the administration have been completed, those companies will comprise the major creditors in the estate. 5Since the making of Ward J's orders on 19 September 2011, the liquidators have engaged in a series of steps including the commencement of proceedings against other parties and the carrying out of further investigations. 6The liquidators of both OIN and OIB consent to the variation of the orders sought. This will permit the liquidators to preserve the opportunity for OA to pursue claims in due course against OIN should they come to the view that once the adjudications are complete it would be in the interests of OA as a whole to pursue them. In the meantime it will be unnecessary to take steps to pursue them, save that the liquidators propose to conduct additional investigations into the matters which have been raised by OIN and OIB as being potential defences. 7It is appropriate in the present circumstances, given the factual background and in particular the consent provided by the prospective defendants, that the order be varied. 8The basis upon which the variation is sought is that it is open to the Court to do so pursuant to Uniform Civil Procedure Rules 2005 (NSW) Pt 36 r 36.16. The juridical basis for this is concisely discussed by Ward J in her Honour's judgment earlier referred to. It is also clear that if there is any prejudice to any party as a consequence of the making of the orders, it is to OIN and OIB, and they both consent. 9The orders sought include an order that they be joined as respondents to these proceedings. 10I make the following orders: The order of the Court made on 19 September 2011 is varied by adding after the words "3 April 2012" the following words, "Except in the case of any application against any of Octaviar Investment Notes Limited (In Liquidation) and Octaviar Investment Bonds Limited (In Liquidation) in respect of which the time for making any application under s 588 FF (1) of the Corporations Act 2001 (Cth) is extended to 3 April 2013. These orders are to be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2012