Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450 Hearing dates: 28 October 2014 Decision date: 19 December 2014 Before: Beazley P at [1]; McColl JA at [2]; Barrett JA at [9] Decision: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days. 3. Vary the order made by Young AJ on 14 June 2013 (as corrected on 12 August 2013) in respect of Order 1 of the orders made by Ward J on 19 September 2011by adding at the end thereof the following: "in respect of any proceeding brought against the Commissioner of Taxation in 'the Court' (as defined by s 58AA(1) of the Corporations Act 2001 (Cth)) under s 588FF of that Act to the extent that the proceeding is brought because of the payment of an amount in respect of a liability referred to in s 588FGA(1) of that Act." 4. Appeal otherwise dismissed. 5. Remit to the Equity Division for determination the application upon which the order of Ward J of 19 September 2011 was made insofar as that application remains undetermined and is lawfully capable of being determined as to the matter in respect of which the order of Ward J was set aside by the order made by Young AJ on 14 June 2013 (as corrected on 12 August 2013 and varied by this Court). 6. Order that the applicants pay the costs of the first and second respondents (David Mark Anderson and Craig Robert White) in this Court and that there be no order for costs in favour of or against the third respondent (Commissioner of Taxation). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - winding up - winding up in insolvency - voidable transactions - time limit for bringing of proceedings by liquidators under Corporations Act 2001 (Cth) s 588FF in respect of voidable transactions - time extended upon liquidators' ex parte application by a "shelf" order under s 588FF(3)(b) applying to all proceedings against all persons - that "shelf" order later set aside as it relates to proceedings brought against Commissioner of Taxation - finding that directors of the company who would be liable under statutory indemnity to indemnify the Commissioner for loss or damage suffered through voidable transaction order were denied opportunity to be heard on the extension application and that there was a breach of the duty of candour to the court - liquidators challenge the order setting aside the "shelf" order as against the Commissioner - whether the relevant directors were entitled to an opportunity to be heard - nature of the "right", "interest" or "expectation" giving rise to right to be heard discussed - nature and implications of s 588FGA liability of directors discussed - PROCEDURE - miscellaneous procedural matters - ex parte application - setting aside on application of a person denied an opportunity to be heard Legislation Cited: Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1953 (Cth) Supreme Court Act 1970 (NSW) Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Barclays Bank v Tom [1923] 1 KB 221 Binetter v Deputy Commissioner of Taxation [2011] HCA 46; 282 ALR 607 BP Australia Ltd v Brown [2003] NSWCA 216; 58 NSWLR 322 Cameron v Cole [1944] HCA 5; 68 CLR 571 Carter, in the matter of Spec FS NSW Pty Ltd [2013] FCA 1027 Commissioner of Taxation v Moodie [2014] NSWCA 59; (2014) 282 FLR 453 Commissioner of Taxation v Sims [2008] NSWCA 298; 72 NSWLR 716 Condon v Commissioner of Taxation [2004] NSWSC 481; 185 FLR 27 Crosbie v Commissioner of Taxation [2003] FCA 922; 130 FCR 275 Deloughery v Weston [2010] NSWCA 148; 79 ACSR Deputy Commissioner of Taxation v Australian Securities and Investments Commission [2013] FCA 594 Duncan v Commissioner of Taxation [2006] FCA 885; 58 ACSR 555 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148; 285 FLR 287 Gordon v Tolcher in his capacity as liquidator of Senafield Pty Ltd (in liq) [2006] HCA 62; 231 CLR 334 Green v Chiswell Furniture Pty Ltd [1999] NSWSC 608 Greig v Stramit Corporation Pty Ltd [2003) QCA 298; [2004] 2 Qd R 17 Hall (as liquidators of Reynolds Wines Ltd) v Commissioner of Taxation [2004] NSWSC 985; (2004) 186 CLR 111 In the matter of Liverpool Hotels Pty Ltd (in liq) [2010] NSWSC 72 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 JPMorgan Chase Bank, National Association v Fletcher (as liquidator of Octaviar Ltd) [2014] NSWCA 31; 85 NSWLR 644 Kassem v Zhang [2008] NSWSC 1287 Kioa v West [1985] HCA 81; 159 CLR 550 Lofthouse v Commissioner of Taxation [2001] VSC 326; 164 FLR 106 McCann (as liquidator of Events R US Pty Ltd) v Commissioner of Taxation [2006] QSC 374 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; 71 NSWLR 262 Moschi v LEP Air Services Ltd [1973] AC 331 Mulvaney v Commissioner of Taxation [2004] SASC 166 News Ltd v Australian Rugby Football League (1996) 64 FCR 1710 Oates v Williams [1998] FCA 775; 84 FCR 348 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Re Locktronic Systems Pty Ltd (No 1) [2008] VSC 626 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Scott v Commissioner of Taxation [2003] VSC 50; 53 ATR 652 Taylor v Taylor [1979] HCA 38; 143 CLR 1 Thomas A Edison Ltd v Bullock [1912] HCA 72; 15 CLR 679 Category: Principal judgment Parties: Willliam John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited and Octaviar Administration Pty Limited - First Appellant Octaviar Limited - Second Appellant Octaviar Administration Pty Limited - Third Appellant David Mark Anderson - First Respondent Craig Robert White - Second Respondent Commissioner of Taxation - Third Respondent Representation: Counsel: Mr B A J Coles QC/Mr P J Dowdy/Mr A K Flecknoe-Brown - Appellant Mr M K Condon SC/Ms A Hawkins First Respondent Submitting Appearance - Second Respondent Submitting Appearance - Third Respondent Solicitors: Henry Davis York - Appellant Dibbs Barker - First Respondent Bartley Cohen - Second Respondent Australian Government Solicitor - Third Respondent File Number(s): 2013/210905 Decision under appeal Date of Decision: 2013-06-14 00:00:00 Before: Young AJ File Number(s): 2011/153330