Section 588FF(3) of the Corporations Act 2001 (Cth) (“CA”) imposes a time requirement on the bringing of an application by a company’s liquidator for orders in respect of voidable transactions under s 588FF(1) of the CA.
In Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liq), the New South Wales Court of Appeal, constituted by five judges, dealt with the question of whether the court had power under ss 64 and 65 of the Civil Procedure Act 2005 (NSW) to grant leave to amend a pleading in proceedings which had been commenced within the s 588FF(3) time period, after the expiry of that period, and where the effect of the amendments was to include additional transactions arising from substantially the same facts as the transactions originally pleaded, against the same defendant.
The Court of Appeal held that there was power to allow the proposed amendments because the s 588FF(3) time period did not apply to each individual “transaction” that the liquidator sought to impugn under s 588FF(1) and the amendment powers in ss 64 and 65 of the Civil Procedure Act were ‘picked up’ by s 79 of the Judiciary Act 1903 (Cth) as s 588FF(3) did not “otherwise provide”.
In so holding, the Court of Appeal followed the decision of the Full Court of the Federal Court of Australia in Rodgers v Commissioner of Taxation which had held that s 588FF(3) was concerned with the time for the commencement of proceedings for orders under s 588FF(1) and was not directed to the subsequent amendment of pleadings in proceedings commenced within time.
