In the matter of Kisimul Holdings Pty Limited [2014] NSWSC 525

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Kisimul Holdings Pty Limited [2014] NSWSC 525 Hearing dates: Tuesday, 29 April 2014 Decision date: 29 April 2014 Jurisdiction: Equity Division Before: Brereton J Decision: (1) Pursuant to UCPR r 36.16, order 1 made on 10 April 2014 be varied nunc pro tunc to read "(1) Pursuant to s 459F(2)(a)(ii) of the Corporations Act, the time by which the plaintiff must comply with the statutory demand that is the subject of the proceedings be extended until (a) to 5 pm on 15 April 2014 or (b) if by that time an application for leave to appeal has been filed, then until seven days after the determination of that application or further order of this Court or of the Court of Appeal". (2) The plaintiff pay the defendant's costs of the interlocutory process filed 24 April 2014. Catchwords: CORPORATIONS - External administration - Winding up - Winding up in solvency - creditors statutory demand - where time for compliance extended following dismissal of application to set aside pending appeal from dismissal - where appeal not instituted due to procedural errors within extended time - whether extension can be varied after time for compliance expired under r 36.16 - held it can PROCEDURE - Judgments and Orders - Amendment - slip rule - no slip - on motion filed within 14 days - where not opposed and no prejudice - order made Legislation Cited: (Cth) Corporations Act 2001, s 459F, 459G, 588FF (NSW) Uniform Civil Procedure Rule r 4.10, 36.16, 36.17, 51.12 Cases Cited: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 In the matter of ACN 002 408 040 [2013] NSWSC 1997 In the matter of Kisimul [2014] NSWSC 422 JP Morgan Chase Bank v Fletcher [2014] NSWCA 31; (2014) 306 ALR 224 Kay Investment Holdings Pty Limited [2011] NSWSC 1033 Category: Principal judgment Parties: 2013/299293 Kisimul Holdings Pty Ltd (plaintiff) Clear Position Pty Limited (defendant) 2013/326171 Kisimul Holdings Pty Ltd (plaintiff) Clear Position Pty Limited (defendant) Representation: Counsel: C D Wood w D Krochmalik (plaintiff) D R Stack (defendant) Solicitors: Hilton Lawyers (plaintiff) ERA Legal (defendant) File Number(s): 2013/299293 2013/326171