Federal Court of Australia

Commissioner of Taxation v Runcity Pty Ltd [2025] FCAFC 152

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is granted.

2.    The appeal is dismissed.

3.    The Applicant pay the Respondents’ costs of the application for leave to appeal and the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is granted.

2.    The appeal is dismissed.

3.    The Applicants pay the Respondents’ costs of the application for leave to appeal and the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    These reasons concern applications for leave to appeal brought by the Commissioner of Taxation (the Commissioner) in proceeding NSD 276 of 2024 and by several reinstated companies and their liquidators (the Liquidators) in proceeding NSD 291 of 2024.

2    The applications for leave to appeal concern the power conferred on the Court by s 601AH(3)(d) of the Corporations Act 2001 (Cth) (Corporations Act) to “make any other order it considers appropriate” when a company’s registration is being reinstated. The principal issue arising is whether, when a company is reinstated and a liquidator is appointed, the power conferred by s 601AH(3)(d) extends to the making of orders that enable the liquidator to bring proceedings for voidable transactions under s 588FF(1) when, absent such orders, the liquidator would be out of time.

3    The dispute concerns an order made by Justice Stewart (the original judge in the proceeding) by consent of the then parties to the proceeding on 2 September 2019 in the following terms (which is referred to in these reasons as Order 3):

3.    Pursuant to section 601AH(3)(d) of the [Corporations Act], when calculating the period ending three years after the relation-back day for any of the Companies, the period between the date of deregistration of the relevant company and the date of these orders shall be disregarded.

4    Justice Stewart also made an order (set out below at paragraph 19 and referred to in these reasons as Order 4) to the effect that, if the liquidators of the reinstated companies commenced a proceeding against any person in reliance upon Order 3, that person would have liberty to apply to vary or discharge Order 3 in relation to themselves.

5    In reliance upon the effect of Order 3, the Liquidators commenced proceedings in the Supreme Court of New South Wales under s 588FF(1) against many individuals and companies. In response, some of the defendants to the New South Wales proceedings brought applications in the Federal Court of Australia pursuant to the liberty conferred by Order 4 seeking the discharge of Order 3. The principal basis on which the applications were brought was that the Court did not have power under s 601AH(3)(d) to make an order in those terms. In the alternative (assuming the Court had power to make the order), the defendants argued that, not having been heard when Order 3 was made, they were entitled to have Order 3 discharged as of right and that the Court ought not to reinstate the order in the exercise of the Court’s discretion.

6    The primary judge concluded that the Court did not have power to make Order 3 and discharged the order: Commissioner of Taxation v Iannuzi (No 3) [2024] FCA 45 (J). Having reached that conclusion, it was unnecessary for her Honour to address the question of discretion (that is, if power existed, whether the order should be made in the exercise of the Court’s discretion).

7    Each proceeding before us was advanced by an application for leave to appeal. The usual test for the grant of leave to appeal, set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400, is not exhaustive. The authorities recognise that the discretion to grant leave is not constrained by rigid rules and may be granted where, for example, the questions posed for resolution have general importance beyond the concerns of the parties: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227 at [10] (Heerey, Moore and Tracey JJ); Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2012] FCAFC 193; (2012) 209 FCR 428 at [39] (North and Flick JJ); and Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (Perram, Moshinsky and Hespe JJ).

8    As the central question raised by the proposed appeals is a question of wider significance, on which there is not appellate authority directly on point, we have determined that it is appropriate that leave to appeal be granted. In view of the grant of leave, in the balance of these reasons we refer to the applicants for leave to appeal, the Commissioner and the Liquidators, as the Appellants.

9    At the hearing, the Commissioner relied on an amended application for leave to appeal, and an amended draft notice of appeal, dated 3 December 2024. The Liquidators relied on a further amended application for leave to appeal, and a further amended draft notice of appeal, which were attached to the Liquidators written submissions dated 16 May 2025. Other than in relation to Ground 5 and a peripheral point of detail that it has not been necessary to address, the Commissioner and the Liquidators adopted the other’s submissions. By way of overview:

(1)    By appeal grounds 1 to 3, the Commissioner and the Liquidators contend that the primary judge erred in concluding that the Court does not have power to make Order 3 under s 601AH(3)(d).

(2)    By appeal ground 4, the Commissioner and the Liquidators contend that the primary judge erred in concluding that the respondents were entitled to have Order 3 set aside as of right. This ground is only relevant if the Commissioner and the Liquidator succeed in establishing that the Court has power to make Order 3.

(3)    By appeal ground 5, the Commissioner and the Liquidators contend that the primary judge erred in concluding that the Court does not have power to make Order 3 under former s 536(1) of the Corporations Act.

(4)    By appeal grounds 6 and 7, the Commissioner and the Liquidators contend that the primary judge erred by failing to determine the question of discretion (that is, assuming the Court has power to make Order 3, whether the Court should make the order in the exercise of its discretion).

10    For the reasons explained below, the primary judge was correct to conclude that the Court does not have power to make Order 3, whether under s 601AH(3)(d) or former s 536(1). As a result, it is unnecessary to address grounds 4, 6 and 7. We note for completeness that, during the hearing of the appeal, the Commissioner and the Liquidators did not press grounds 6 and 7 in recognition of the fact that the primary judge, having concluded that the Court lacked power to make Order 3, did not consider the question of discretion and therefore it was not feasible for that question to be determined by the Full Court on the appeal. Had we determined that the Court had power to make Order 3, it would have been necessary to remit the question of discretion to the primary judge.

11    There are many respondents to each of the applications for leave to appeal. At the hearing, three groups of respondents opposed the applications. The first group comprised the Tabuso Respondents (being the 1st and 50th–54th respondents in NSD 276 of 2024 and the 1st and 36th–40th respondents in NSD 291 of 2024). The second group comprised the Givana Respondents (being the 29th and 46th respondents in NSD 276 of 2024 and the 15th and 32nd respondents in NSD 291 of 2024). The third group comprised the Borg Respondents (being the 20th–22nd respondents in NSD 276 of 2024 and the 6th–8th respondents in NSD 291 of 2024). We refer to those respondents as the Participating Respondents. The Participating Respondents filed Notices of Contention to the effect that it is beyond the power contained in s 601AH(3)(d) to suspend the running of time, or augment the reckoning of time, for the purposes of calculating the time in which a claim under s 588FF can be commenced. By the Notices of Contention, the Participating Respondents raised an additional argument on the question of power, focussed upon the interaction of ss 601AH(3)(d) and (5).

Background

12    The factual background to the present proceedings is set out more fully in the primary judge’s reasons (J [7]ff). The background, insofar as it is relevant to the appeals, is as follows.

13    David Nicholas Iannuzzi (Mr Iannuzzi) was appointed, with Murray Godfrey (now deceased), liquidator of RC Group Aust Pty Ltd (RC Group) on 18 August 2014, and eight companies in the “Tabuso Group” of companies on 8 December 2014 (J [11]–[13]). Those companies were deregistered on various dates between 29 May 2015 and 8 May 2016 (J [14]).

14    Arising from a taskforce into “phoenix” activity, the Commissioner commenced this proceeding against Mr Iannuzzi on 25 August 2017. The relief sought by the Commissioner included:

(a)    an inquiry into the external administration of certain companies by Mr Iannuzzi pursuant to s 90-10 of the Insolvency Practice Schedule (Corporations), being Sch 2 to the Corporations Act (IPS) or alternatively pursuant to s 536(1) of the Corporations Act (now repealed);

(b)    orders pursuant to s 601AH reinstating the registration of RG Group and the appointment of a different person as liquidator; and

(c)    orders removing Mr Iannuzzi’s name from the register of liquidators, and the imposition of restraints on Mr Iannuzzi from applying to be a registered liquidator and holding certain offices associated with insolvency and/or bankruptcy administration.

15    The relief sought also included orders compensating each of the companies in an attached list for “any loss sustained because of the Defendant's breach of duty as a liquidator”. The list of companies included the eight companies in the Tabuso Group.

16    Shortly before a hearing fixed for 17 July 2019, Mr Iannuzzi and the Commissioner negotiated orders to which Mr Iannuzzi would ultimately agree. In an approach made by Mr Iannuzzi, he offered to consent to orders reinstating any of the listed companies with a liquidator nominated by the Commissioner to be appointed, so that the liquidator could consider whether to pursue compensation (J [20]). The Commissioner’s response welcomed that offer, but said that any such reinstatement orders would not obviate the need for any compensation to be paid by Mr Iannuzzi (J [21]).

17    Mr Iannuzzi made various admissions in a document headed “Agreed Statement of Facts”. The Commissioner did not agree its contents, so the document was received by the Court on the basis that it recorded admissions made by Mr Iannuzzi (J [24], [26]). On 17 July 2019, the parties appeared before Stewart J and addressed the Court on proposed consent orders that had been provided the previous day (J [25]–[26]). Although no order for reinstatement of the Tabuso Group companies was originally sought by the Commissioner’s amended originating process, it appears the Commissioner had, by then, realised that the companies in the Tabuso Group needed to be reinstated if compensation were to be paid to them at a future date (J [30]). The proposed consent orders provided to Stewart J made provision, in orders 5 and 6, for the reinstatement of those (and other) companies. Justice Stewart stood over the question of those reinstatement orders to 3 September 2019 (J [31]).

18    Leading up to that date, the Commissioner notified Mr Iannuzzi that he intended to seek the reinstatement of RC Group, as well as the companies in the Tabuso Group, and intended to seek the appointment of Ms Gayle Dickerson of KPMG as liquidator (J [32]). The Commissioner’s draft orders did not at this stage include Order 3 (J [33]). Mr Iannuzzi replied with a different set of proposed orders which, for the first time, included Order 3, and another order that provided for the orders to be served on any person against whom the liquidator of the reinstated companies commenced proceedings, and granted liberty to apply to vary or discharge Order 3. After some minor amendments, the Commissioner submitted the proposed consent orders to the chambers of Stewart J, with a short supporting submission (J [36]). That submission did not address the power to make Order 3.

19    Justice Stewart made the consent orders on the papers on 2 September 2019. In addition to Order 3, the orders included a further order, Order 4, in the following terms (J [34]):

4.    Pursuant to section 601AH(3)(d) of the [Corporations Act], if proceedings are commenced by Ms Dickerson and Mr Vaughan as the joint and several liquidators of any of the Companies in reliance upon Order 3, Ms Dickerson and Mr Vaughan must cause a copy of these Orders to be served upon the defendant with the initiating process by which the proceedings are commenced and the defendant shall thereafter be at liberty to apply to this Court to vary or discharge Order 3 in relation to itself.

20    Justice Stewart later considered and made orders by consent granting final relief against Mr Iannuzzi removing him from the register of liquidators and imposing various restraints on him (J [39]–[42], referring to Commissioner of Taxation v Iannuzzi (No 2) [2019] FCA 1818).

21    Relying on Order 3, the liquidators proceeded to commence various claims in the Supreme Court of New South Wales, including claims for relief under s 588FF(1) of the Corporations Act (detailed further at J [43]–[47]). Absent Order 3, the s 588FF(1) claims would have been commenced outside the period specified in s 588FF(3). Some of the claims commenced by the liquidators, against a sub-set of defendants, are not affected by this issue, but the liquidators consider there are poorer prospects of recovery under those claims, as compared with the s 588FF(1) claims (as explained at J [52]).

22    Four groups of defendants to the various proceedings commenced by the Liquidators availed themselves of the liberty granted by Order 4 and filed interlocutory applications in which they sought the discharge of Order 3, or that Order 3 be varied in different ways so that it would not operate in respect of them (J [4]).

23    Of the four groups of defendants who advanced their applications before the primary judge (listed at J [5]), three groups participated in the appeal proceedings: the Tabuso Respondents, the Givana Respondents and the Borg Respondents.

Legislation

24    The deregistration, and reinstatement of registration, of companies is addressed in Ch 5A of the Corporations Act. Deregistration of a company may be voluntary, initiated by the company, a member or director of the company, or by the liquidator of the company: s 601AA(1). Deregistration of a company may also be initiated by ASIC, in certain circumstances or following amalgamation or winding up: ss 601AB and 601AC.

25    Pursuant to s 601AD(1), “[a] company ceases to exist on deregistration”. On deregistration, property held on trust by the company, or its liquidator, vests in the Commonwealth and non-trust property vests in ASIC, but they both only acquire such rights as the company held and so take subject to security interests: s 601AD(1A)–(3). The deregistered company must keep the company’s books for three years after deregistration (other than books that a liquidator must keep): s 601AD(5)–(6).

26    Section 601AE contains detailed provisions concerning property held by the Commonwealth or ASIC. Those provisions include provisions authorising the sale of trust, and non-trust property, with the proceeds from the sale of trust property credited to a special account, and the proceeds of the sale of non-trust property available to ASIC to defray its expenses and make other authorised payments: s 601AE(1A)–(3). Pursuant to s 601AF, the Commonwealth or ASIC “may do an act on behalf of the company or its liquidator if the Commonwealth or ASIC is satisfied that the company or liquidator would be bound to do the act if the company still existed”.

27    Persons to whom a deregistered company was liable before its deregistration may recover directly from the deregistered company’s insurer if the company had an insurance contract that covered the liability immediately before deregistration: s 601AG.

28    It is at this point, in Ch 5A, that the reinstatement provision is found. Section 601AH provides as follows:

Reinstatement by ASIC

...

Reinstatement by Court

(2)     The Court may make an order that ASIC reinstate the registration of a company if:

(a)    an application for reinstatement is made to the Court by:

(i)     a person aggrieved by the deregistration; or

(ii)     a former liquidator of the company; and

(b)    the Court is satisfied that it is just that the company’s registration be reinstated.

(3)     If:

(a)     ASIC reinstates the registration of a company under subsection (1) or (1A); or

(b)     the Court makes an order under subsection (2);

the Court may:

(c)     validate anything done during the period:

(i)     beginning when the company was deregistered; and

(ii)     ending when the company’s registration was reinstated; and

(d)     make any other order it considers appropriate.

Note:     For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2).

ASIC to give notice of reinstatement

(4)     ASIC must give notice of a reinstatement in the Gazette.

(4A)     If an application was made to ASIC for the reinstatement of a company’s registration, ASIC must give notice of the reinstatement to the applicant.

Effect of reinstatement

(5)     If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in the Commonwealth or ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim.

(6)     Subsection 601AH(5) does not affect the cancellation of an Australian financial services licence held by the company if the cancellation occurs because the company was deregistered.

(Emphasis added.)

29    In these appeals, it is the intersection between these provisions — particularly s 601AH(3)(d) — and the provisions concerning voidable transactions in Div 2 of Pt 5.7B of the Corporations Act — particularly s 588FF(3) — that is in issue. Just as s 601AH(3)(d) is to be considered in the context of the surrounding provisions concerning deregistration of companies and their reinstatement, s 588FF(3) is to be considered in light of the voidable transactions provisions of which it forms part. Of course, that does not derogate from the need to construe both provisions in the wider context of the Corporations Act, including the interaction between the two suites of provisions of which ss 588FF(3) and 601AH(3)(d) form part.

30    Part 5.7B of the Corporations Act is concerned with the recovery of property or compensation for the benefit of creditors of insolvent companies. Section 588E(1) identifies several kinds of proceedings as “recovery proceeding[s]”. Various presumptions apply to such recovery proceedings. Proceedings that will be recovery proceedings include an application by a company’s liquidator under s 588FF: s 588E(1)(a).

31    Subdivision 1 of Div 2 of Pt 5.7B sets out six kinds of transactions that may be voidable: unfair preferences (s 588FA); uncommercial transactions (s 588FB); insolvent transactions (s 588FC); unfair loans (s 588FD); unreasonable director-related transactions (s 588FDA); and creditor-defeating dispositions (s 588FDB). Sections 588FE(2)–(6B) set out various circumstances in which a transaction of the company will be “voidable” (ss 588FE(2C) and (2D) were added in 2020, after Order 3 was made). Each of those sets of circumstances prescribes a time period in which the transaction must have been entered into, mostly calculated by reference to a time period before the relation-back day.

32    Section 588FF, which is central to the issues in the appeals, is in the following terms:

Courts may make orders about voidable transactions

(1)     Where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable because of section 588FE, the court may make one or more of the following orders:

(a)     an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction;

(b)     an order directing a person to transfer to the company property that the company has transferred under the transaction;

(c)     an order requiring a person to pay to the company an amount that, in the court's opinion, fairly represents some or all of the benefits that the person has received because of the transaction;

(d)     an order requiring a person to transfer to the company property that, in the court's opinion, fairly represents the application of either or both of the following:

(i)     money that the company has paid under the transaction;

(ii)     proceeds of property that the company has transferred under the transaction;

(e)     an order releasing or discharging, wholly or partly, a debt incurred, or a security or guarantee given, by the company under or in connection with the transaction;

(f)     if the transaction is an unfair loan and such a debt, security or guarantee has been assigned—an order directing a person to indemnify the company in respect of some or all of its liability to the assignee;

(g)     an order providing for the extent to which, and the terms on which, a debt that arose under, or was released or discharged to any extent by or under, the transaction may be proved in a winding up of the company;

(h)     an order declaring an agreement constituting, forming part of, or relating to, the transaction, or specified provisions of such an agreement, to have been void at and after the time when the agreement was made, or at and after a specified later time;

(i)     an order varying such an agreement as specified in the order and, if the Court thinks fit, declaring the agreement to have had effect, as so varied, at and after the time when the agreement was made, or at and after a specified later time;

(j)     an order declaring such an agreement, or specified provisions of such an agreement, to be unenforceable.

(2)     Nothing in subsection (1) limits the generality of anything else in it.

(3)     An application under subsection (1) may only be made:

(a)     during the period beginning on the relation-back day and ending:

(i)     3 years after the relation-back day; or

(ii)     12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b)     within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

(4)     If the transaction is a voidable transaction solely because it is an unreasonable director-related transaction, the court may make orders under subsection (1) only for the purpose of recovering for the benefit of the creditors of the company the difference between:

(a)     the total value of the benefits provided by the company under the transaction; and

(b)     the value (if any) that it may be expected that a reasonable person in the company's circumstances would have provided having regard to the matters referred to in paragraph 588FDA(1)(c).

(Emphasis added.)

33    The time limit prescribed by s 588FF(3)(a)(i) takes, as its starting point, the “relation-back” day. The “relation-back” day is calculated in accordance with s 91. Depending on the circumstances, that day is either “the day on which that application was filed” (eg where there is a court-ordered winding up “filed before the beginning of an administration”: item 2) or “the section 513C day in relation to that administration” (eg where there is a court-ordered winding up, but the application was “filed at or after the beginning of the administration”: item 1). The “section 513C day” is the day specified by s 513C for which the default provision is the day on which the administration began: s 513C(b).

The primary judge’s reasoning

34    The primary judge characterised the first issue arising as whether the time within which an application is to be brought under s 588FF(1) of the Corporations Act can be extended other than in accordance with s 588FF(3)(b) and, thus, whether s 601AH(3)(d) of the Corporations Act empowers the Court to make an order in the form of Order 3 (J [174]). Her Honour approached that question by considering cases that have addressed the operation of s 588FF(3) considering, principally, Grant Samuel Corporate Finance Pty Ltd v Fletcher [2015] HCA 8; (2015) 254 CLR 477 (Grant Samuel), David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 (David Grant), and BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322 (BP Australia). We return to these cases in the course of our analysis below.

35    The primary judge recorded that the Commissioner and the Liquidators “do not dispute that s 588FF(3) of the Corporations Act provides for a jurisdictional requirement” and also “accept that use of the phrase ‘may only be made’ in s 588FF(3) is a timing requirement which is a jurisdictional precondition and which must be satisfied before a liquidator has an entitlement to make an application under s 588FF(1)” (J [181]). Her Honour noted, however, that the Commissioner and the Liquidators “dispute that s 588FF(3) covers the field for calculation of time orders, to the exclusion of s 601AH of the Corporations Act in the case of reinstated companies” (J [181]).

36    The primary judge observed that the Commissioner and the Liquidators distinguished Grant Samuel, BP Australia and David Grant on the basis that they did not “concern the operation of s 601AH of the Corporations Act”, but considered that it is “difficult to distinguish between s 1322, on the one hand, and s 601AH(3)(d) on the other” (s 1322 being in issue in David Grant and BP Australia) (J [194]).

37    Before the primary judge, the principal argument of the Commissioner and the Liquidators was that s 588FF(3) identifies a beginning date — the relation-back day — and an end date, but “says nothing about how time is calculated within that period and is silent as to whether days can be disregarded” (J [196]). This argument was rejected by the primary judge. In rejecting that argument, the primary judge said (J [204]):

True it is that s 588FF does not address how time is to be calculated between the relation-back day and the alternate specified end dates within which any application under s 588FF(1) is to be made. However, it does not follow that by another route, or the application of a different provision, time can be enlarged or extended other than in accordance with the method prescribed by s 588FF(3)(b) of the Corporations Act.

38    The primary judge concluded that s 601AH(3)(d), being a provision of general application, cannot override the explicit power to extend time in s 588FF(3), in which the term “may only” in s 588FF(3) “had the effect of defining the jurisdiction of the court by imposing a requirement as to time as an essential condition of the right under s 588FF(1) to bring proceedings” (J [205]–[206], citing Grant Samuel at [22]). Rejecting a submission to the contrary, her Honour considered that the two powers — s 588FF(3) and s 601AH(3)(d) — are with respect to the same matter (J [207]).

39    Returning to the argument that Order 3 merely goes to the “method of calculating time”, whereas s 588FF(3)(b) does not confer a power to make a calculation of time order and so does not address the same subject matter as s 601AH(3)(d), the primary judge rejected that characterisation of Order 3 as ignoring “its true operation” (J [208]–[209]). The primary judge considered that the correct analysis was “to ask, with reference to the context, what is the purpose of Order 3?” (J [209]). The answer to that question was that its purpose “is to ascertain the relevant period in which a proceeding under s 588FF(1) can be brought” (J [209]). On that basis, her Honour considered that Order 3 “is directly referrable to s 588FF(3)(a) of the Corporations Act” and “does not merely go to the method of calculation of time between the two dates identified in s 588FF(3)(a)(i)” (J [209]). Rather, Order 3 “extends the period within which a proceeding under s 588FF(1) of the Corporations Act can be brought” and does so in a manner other than the manner prescribed in s 588FF(3)(b) (J [209]).

40    The primary judge referred to the scheme for recovery of voidable transactions and its implementation of time limits, calculated to ensure commercial certainty for those who deal with companies, referring to Spigelman CJ’s colourful observation that the policy was against “disinterring corporate corpses” (J [210]–[211], referring to BP Australia at [113]).

41    The primary judge then referred to cases considering the amplitude of the power under s 601AH(3)(d), but concluded that the exercise of that power is “subordinate, and must give way to, the specific power in s 588FF(3) in relation to the question of the time within which a voidable transaction proceeding can be brought” (J [215]).

42    The primary judge summarised her reasoning as follows (J [221]):

For the reasons set out above I am of the view that s 588FF(3) of the Corporations Act “covers the field”. As the parties accept, s 588FF is jurisdictional, that is the Court only has jurisdiction to hear a claim under s 588FF(1) of the Corporations Act if it is brought within the period specified in s 588FF(3)(a) or that period extended by an order made in accordance with s 588FF(3)(b). There is no power to extend the period within which a liquidator can bring an application under s 588FF(1) other than as specified in the section. More particularly, the power in s 601AH(3)(d) of the Corporations Act to make any other order the Court considers appropriate when reinstating the registration of a company cannot be used to extend the time under s 588FF(3) for the purposes of bringing an application under s 588FF(1).

43    Accordingly, the primary judge concluded that there was no power to make Order 3 and it was required to be discharged (J [222]).

44    The balance of the primary judge’s reasoning addressed other arguments raised in the applications before her Honour. Those arguments included whether Order 3 should be set aside as of right, being an issue affecting onus. On that matter, the primary judge concluded that the applicants were entitled to have Order 3 set aside as of right, leaving the Commissioner in the position where he had to establish that an order in the form of Order 3 should be made (J [249]).

45    The next point addressed by the primary judge is one that has been raised by the Notices of Contention. That point is the argument that, quite apart from s 588FF(3), s 601AH(3)(d) is not in any event available to augment the reckoning of time for limitation purposes (J [253]). That argument was premised on there being an inconsistency between s 601AH(5) (which deems the reinstated company “to have continued in existence as if it had not been deregistered”) and the making of an order of the kind in issue. The primary judge identified that there are a number of cases in which a calculation of time order has been made, or where the jurisdiction to make such an order was accepted, including Pagnon v WorkCover Queensland [2000] QCA 421; [2001] 2 Qd R 492 (Pagnon), a decision of an intermediate appellate court, which has been considered and applied on a number of occasions (J [274]–[281]). The primary judge also made particular mention of Re Regional Planners Developments Co Pty Ltd [2015] NSWSC 1996; (2015) 110 ACSR 457 (Regional Planners). As described by the primary judge (J [281]), in Regional Planners, Brereton J undertook a detailed analysis of the relevant cases, including Pagnon, and was satisfied that there was power “under s 601AH(3)(d) to make an order which would have the effect of suspending the limitation period in respect of any action that the plaintiff might have against the company”.

46    The primary judge concluded that “there is nothing inconsistent between an order augmenting time for the purposes of a limitation period under s 601AH(3)(d) and the operation of s 601AH(5) of the Corporations Act” (J [265]; see also J [282]). The primary judge concluded that, as was found to be the case by Brereton J in Regional Planners, in an appropriate case, s 601AH(3)(d) empowers the court to make an order suspending time for the purposes of a limitation period on reinstatement of a company (J [282]).

47    Finally, the primary judge considered, and rejected, the alternate argument that an order akin to Order 3 could be made pursuant to former s 536 of the Corporations Act concerning the supervision of liquidators (J [298]–[314]).

Consideration

Grounds 1 to 3: whether the Court has power to make Order 3 under s 601AH(3)(d)

48    The issue at the heart of these appeals is whether the Court has the power under s 601AH(3)(d) to make Order 3.

49    Section 601AH(3) provides as follows:

Reinstatement by ASIC

…

(3)     If:

(a)     ASIC reinstates the registration of a company under subsection (1) or (1A); or

(b)     the Court makes an order under subsection (2);

the Court may:

(c)     validate anything done during the period:

(i)     beginning when the company was deregistered; and

(ii)     ending when the company’s registration was reinstated; and

(d)     make any other order it considers appropriate.

Note:     For example, the Court may direct ASIC to transfer to another person property vested in ASIC under subsection 601AD(2).

…

50    It was accepted that the power conferred by s 601AH(3)(d) is not at large, and may only be exercised to make orders ancillary to, or having a sufficient nexus with, the reinstatement of a company (see J [212], referring to Re Bele & Co Pty Ltd [2017] NSWSC 1824 at [6] (Black J), and Chalker v Clark [2008] VSCA 92 (Chalker) at [39] (Osborn AJA, with whom Maxwell P and Dodds-Streeton JA agreed).

51    The question arising on the appeals is not whether orders can ever be made under s 601AH(3)(d) that dictate how a period of time is to be calculated where a company is reinstated. As the primary judge observed (J [274]), there are several cases in which Courts, including the Federal Court of Australia, have made orders dictating the calculation of time or have accepted the jurisdiction to make such orders. Those cases include: Pagnon (although a calculation of time order was not ultimately ordered, McPherson JA (with whom Thomas JA and Muir J agreed) would have made such an order had it been requested: [15], [17]); Re Harule Pty Ltd; Ex parte Olita Super Readymixed Concrete Pty Ltd (in liq) (1994) 13 ACSR 500 (Re Harule) (although no such order was made); Regional Planners at [28], [32] (Brereton J); Re Austral Bronze Co Pty Ltd (No 2) [2020] NSWSC 1633; (2020) 149 ACSR 221 (Re Austral Bronze) at [138]–[140] (Rees J); and Del Borrello v Australian Securities and Investments Commission [2008] WASC 48 at [19] (Beech J) (although no such order was made). Mention may also be made of Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de-registered) [2024] FCA 144 at [218] (Cheeseman J).

52    In Re Austral Bronze, Rees J observed (at [77]) that one of the themes emerging from the case law is that “ancillary orders may be made to suspend the limitation period in respect of claims against the company but perhaps not to avoid limitation periods which may apply to a claim to be brought by the company” (emphasis added). While Chalker is an example of a case in which it was proposed that the company, when reinstated, would bring a claim (cf be the defendant), that application was rejected on other grounds (as summarised by Rees J in Re Austral Bronze at [78]); see also Saba Bros Tiling (ACT) Pty Ltd v Australian Securities and Investments Commission [2021] ACTSC 47 at [50] (Mossop J); cf Re Harule at 502 in which Santow J noted that the typical case involved circumstances where the company would be the defendant, but did not wish to suggest that the company being the plaintiff would be “a fatal impediment”. We also note that, in Re Auzhair Supplies Pty Ltd (in liq) (2013) 92 ACSR 554; [2013] NSWSC 1 at [20]–[21], Brereton J doubted that, upon reinstatement, an order could be made in respect of causes of action by the company against others, on the basis that there would not be a sufficient nexus between the deregistration and reinstatement of the company and a cause of action by the company against its directors.

53    This is not the occasion on which to consider whether the Pagnon line of cases is correctly decided, or whether there is a firm distinction between circumstances where it is proposed that an action be brought against a reinstated company, rather than by it (or by its liquidators). It is not necessary to enter into these issues, despite the Borg Respondents’ invitation that we determine that Pagnon was wrongly decided, because none of the cases in that line of cases involved a circumstance where a calculation of time order was made, the effect of which would have been to extend the time specified by a jurisdictional time limit in another provision of the Corporations Act. The question that arises in this case concerns s 588FF(3), which has been characterised as a jurisdictional time limit. As we will come to, in every decided case addressed by the parties where there has been such a jurisdictional time provision, the court has concluded that the relevant general power was not available to extend time.

54    Section 588FF(3) stipulates that an application under s 588FF(1) “may only be made” during the period specified in s 588FF(3)(a) or “within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period”: s 588FF(3)(b). Section 588FF(3)(b) is an important provision. It constitutes a specific provision stipulating when the period in s 588FF(3)(a) may be extended. The capacity to extend the period during which a liquidator can bring a proceeding under s 588FF(1) is expressly limited on the basis that an application to extend must be made before the period specified in s 588FF(3)(a) expires. The time limits specified by s 588FF(3) are jurisdictional; they impose a limit on the liquidator’s right to bring an application under s 588FF(1) (Grant Samuel at [22] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ)).

Characterisation as a “calculation of time” order

55    The Appellants’ principal argument is that Order 3 is not an order “extending” the time within which an application under s 588FF(1) may be brought, but is an order of a qualitatively different kind, namely a “calculation of time” order. On this analysis, it is not necessary to consider whether s 588FF(3) covers the field, or is inconsistent with, s 601AH(3)(d), because a “calculation of time” order leaves the jurisdictional time constraint imposed by s 588FF(3)(a) undisturbed.

56    This argument must be rejected. It is unsupported by authority, and, if accepted, would make s 601AH(3)(d) available so as to side-step the jurisdictional constraint imposed by s 588FF(3).

57    Section 588FF(3) imposes time limits as part of a statutory scheme governing the recovery of property or compensation for the benefit of creditors of insolvent companies. As Spigelman CJ addressed in BP Australia (and as we return to below), the legislated time constraints reflect the balance struck by parliament between the interests of the general body of creditors in relation to recoveries, and the objectives served by certainty in commercial dealings (at [101]–[102], [111]–[117]).

58    The s 588FF(3) time limit affords certainty to those involved in commercial dealings. Unless extended before the period specified by s 588FF(3)(a) has expired, once that period of time has expired, those who have dealt with the company will know, with certainty, whether or not they remain at risk. The legislative balance struck recognises and accepts that transactions that may otherwise have been voidable will go unchallenged if the stipulated time period has elapsed.

59    The Appellants’ arguments concerning the policy objectives facilitated by Pt 5.7B of the Corporations Act tended to take a one-eyed view of those objectives. On the Appellants’ arguments, where a company has been prematurely deregistered due to the default of its liquidator, the statutory scheme for reinstating the registration of that company would be all-but thwarted if s 601AH(3)(d) cannot be used to discount the period of time during which the company was deregistered, and thus without a liquidator able to pursue claims under s 588FF(1). But, as we address in more detail below, the time limits imposed by s 588FF(3) recognise that commercial certainty is itself a policy goal, and one that accepts that implementing that goal will result in some transactions going unchallenged. In the related context addressed in David Grant (further considered below), Gummow J acknowledged that legislative choices can lead to apparently harsh outcomes, “[b]ut that is a consequence of the legislative scheme which has been adopted” (at 279). Similarly, in the present context, the legislative scheme in relation to voidable transactions recognises, by the very implementation of a jurisdictional time limit, that not every potentially voidable transaction will necessarily be pursued by liquidators.

60    Further, in focusing on the claims that might not be pursued for the benefit of creditors where there is a delinquent liquidator (who does not act, or prematurely deregisters the company), and casting creditors as vulnerable and passive, the Appellants’ submissions tended to overlook important aspects of the statutory regime by which liquidators operate, and by which companies are deregistered. As was discussed with counsel during the hearing of the appeal, creditors of a company in liquidation are not powerless in the face of a deficient or delinquent liquidator. Both prior to, and following, the restructuring effected by the Insolvency Law Reform Act 2016 (Cth) and the Insolvency Practice Rules 2016 (Cth), there have been a range of steps available to creditors. Those steps include, eg, inspecting the liquidator’s books, appointing a committee of inspection and applying to the Court in respect of a number of matters in relation to the conduct of liquidators (former ss 531, 548 of the Corporations Act; see now ss 70-40–70-45, 80-10–80-20 of the IPS). The risk of deficient or delinquent liquidators was, and is, also addressed by the provisions governing review of the conduct of liquidators (former ss 536 and 540 of the Corporations Act; see now s 45-1 of the IPS).

61    If, as the Appellants submit, an order expressed as a “calculation of time” order can have the practical effect that those dealing with companies remain at risk of litigation indefinitely, potentially years after the company with which they dealt being deregistered, the legislative policy in favour of certainty in relation to voidable transactions would be thwarted. To say, as the Appellants do, that a proceeding brought well outside the three year period specified by s 588FF(3)(a)(i) — when the expiry of that period is approached on the basis of an ordinary understanding of the passage of time — has in fact been brought during that three year period because time is to be calculated in accordance with orders that discount certain periods, defies common sense. It privileges form over substance.

62    For these reasons, we do not consider that, in the circumstances presently arising, it can be concluded that Order 3 was within power just because that order was drafted in terms that addressed how time was to be calculated, and did not purport directly to extend the time period specified in s 588FF(3)(a). In reaching this conclusion, and as we have indicated above, we should not be understood as having concluded that orders that specify how time is to be calculated can never be made under s 601AH(3)(d) at all. Rather, the point is that the question of whether s 601AH(3)(d) is constrained by s 588FF(3) must be tackled head-on, and cannot be sidestepped by drawing a distinction between “calculation of time” orders, and “extension of time” orders.

The interrelationship between s 601AH(3)(d) and s 588FF(3)

63    Ultimately, the question of whether there was power to make Order 3 is a question of statutory construction. Where the extent of a statutory power has to be determined in light of another provision in the same statute, it is the interrelationship between the two that is critical to the task of construction. In David Grant, Gummow J (with whom all other members of the High Court bench agreed) drew attention to the centrality of the interrelationship between statutory provisions in addressing whether the general power in s 1322 was available to extend the 21 day time for making an application to set aside a statutory demand specified by s 459G (both provisions of the then Corporations Law), as follows: “the difficulty in construction arises, perhaps not so much from the particular text of either s 459G or s 1322, as from the interrelation between the two provisions” (at 275). So too, here, it is the interrelationship between the ostensibly broad grant of power in s 601AH(3)(d) and the jurisdictional time limit in s 588FF(3) that gives rise to the difficulty.

64    The High Court’s decision in David Grant is instructive for other reasons as well. In that case, statutory demands were served by a creditor on three companies. Those companies failed to comply with the demands within 21 days, but also did not make applications to set the demands aside within 21 days. Section 459G provided that such applications “may only be made within 21 days” after service of the demand. The companies proceeded to file applications after the 21 day period had expired. The companies argued that s 1322(4)(a) and (d) empowered the court to extend the time for making the application, even if the relevant period stipulated by s 459G had expired. As summarised by Gummow J (at 275):

Paragraph (a) of s 1322(4) confers upon the court a broad authority to declare that any proceeding purporting to have been instituted under the Law is not invalid by reason of any contravention of a provision of the Law. Again, par (d) confers upon the court a broad authority to extend the period for the taking of any step under the Law or any step in relation to a corporation … .

65    The time limits specified by s 459G were jurisdictional (David Grant at 276), and were, as Gummow J observed, a “condition of the gift” in the sense of being an integer or element of a company’s right to apply to set aside a statutory demand (at 277). So too, the time limit imposed by s 588FF(3) is jurisdictional, and a condition limiting the grant of a statutory power to liquidators to apply for relief in respect of allegedly voidable transactions.

66    As well as emphasising the jurisdictional character of the time limit in s 459G, Gummow J identified s 459G as an integral part of the insolvency scheme established by Pt 5.4 of the (then) Corporations Law, and considered the implications for the operation of that part of the legislative scheme (including the presumption of insolvency), were a conclusion to be reached that s 459G is supplemented by a power to extend the time for making a s 459G application (at 277–278). Based on that analysis, Gummow J concluded that “[f]or these reasons, the requirement in s 459G that the application to the court for which it provides be made only within twenty-one days after service of the demand should not be treated as supplemented or qualified by the operation of s 1322(4)” (at 278). This conclusion as to policy is similar in nature to that discussed above at paragraphs 57–62 in relation to s 588FF(3).

67    Two further aspects of David Grant should be noted. First, the conclusion, to which we have just referred, was arrived at following consideration of the nature of the statutory demand and insolvent winding up regime. While Gummow J referred to Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (Anthony Horden), the reference was in passing (at 276). In other words, it is not apparent that Gummow J’s analysis depended on concluding that the two provisions in question fell within the principle identified in that case.

68    Further, and in any event, Gummow J’s analysis clearly did not proceed by, or depend on, evaluating the provisions in question against a particular verbal formulation of what tends now to be commonly referred to as the Anthony Hordern principle. His Honour’s analysis did not involve arriving at a conclusion that the two powers under consideration addressed subject matter that is “substantially the same”. Yet that is what the Appellants submitted was required before the Anthony Hordern principle could apply. Their submission was that the Anthony Hordern principle would not apply unless the “subject matters” of the powers are “the same” in law, and that it is incorrect to focus on the practical consequences of the powers. Moreover, they submitted that the primary judge had to, but did not, analyse the provisions through the Anthony Hordern prism before concluding that s 588FF(3) covered the field (although it was accepted, in discussion with the bench, that if the primary judge’s conclusion regarding s 588FF(3) covering the field was correct, the asserted methodological error was not of consequence).

69    The approach taken by Gummow J in David Grant reveals the flaw in both of these related submissions. The conclusion in David Grant was not reached by analysing whether s 459G and s 1332(4) addressed the “same subject matter”. Nor was the application of Anthony Hordern any obvious part of Gummow J’s reasoning. Rather, what David Grant illustrates is that the task is one of statutory construction, which task is to be pursued by the usual methods, paying close attention to the architecture and operation of the legislative scheme in question, and the legislative policy it implements; Anthony Hordern is not an analytical straitjacket of the kind suggested by the Appellants.

70    A similar point — namely that Anthony Hordern is not an analytical straitjacket — emerges from the High Court’s analysis in Grant Samuel (to which we return below).

71    The second additional point to note about David Grant is that Gummow J’s reasoning acknowledged (at 275–276) that “as a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision”, citing Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). However, as Gummow J’s analysis in David Grant demonstrates, the recognition of the necessary caution in curtailing apparently broad powers through statutory construction does not prevent a process of statutory construction compelling a conclusion that a general power is not available to extend the time specified in a jurisdictional time provision, where that conclusion is warranted by the scheme of the legislation.

72    Before turning to Grant Samuel, we should say something more about BP Australia. That case was decided in 2003, after David Grant (1995) but before Grant Samuel (2015).

73    The issue in BP Australia was whether s 1322(4)(d) of the Corporations Act was available to support an order extending the three year period otherwise specified by s 588FF(3)(b) of the Corporations Act. Section 1322 addressed “Irregularities” and s 1322(4)(d) provided:

(4)     Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

…

(d)     an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

74    As such, the contrast drawn was between a provision, s 588FF(3), which specified expressly that an application, including an extension application, “may only” be made within specified time periods, and s 1322(4)(d), which stated that an order extending time could be made “even after the relevant period had expired” (BP Australia at [41]). The conclusion of Spigelman CJ (with whom Mason P and Handley JA relevantly agreed) was that the power of extension in s 588FF(3)(b) “is a comprehensive provision for extension of time which … is intended to cover the relevant field to the exclusion of s1322” (at [85]).

75    The Chief Justice’s analysis, for which BP Australia is most commonly cited, addressed in detail the place and importance of the s 588FF(3)(a) time limit in the legislative scheme established by Pt 5.7B (at [89]ff). That analysis included his Honour’s colourful reference to the “public policy against the disinterring of corporate corpses” and observations (at [115]) that:

The time limit in s588FF(3) has the effect that at the end of the period of three years, such a person will know whether s/he remains at risk. In a legislative scheme which seeks to balance conflicting commercial interests of this character, that appears to me to be a perfectly reasonable requirement. Those who have an interest, or who represent those who have an interest, to disturb transactions must indicate, within three years, whether they wish to keep open the option of doing so. In this, as in other areas, legal policy favours certainty.

76    As Spigelman CJ observed, legislation can, and often does, give effect to a balance that is struck between conflicting interests (eg at [119]).

77    We return, now, to Grant Samuel. In that case, an order had been made under s 588FF(3)(b) extending the period in which an application under s 588FF(1) could be made. Before that extended period expired, but after the period specified by s 588FF(3)(a) had expired, a further extension application was made. The court then made an order varying the original extension order, to substitute a revised end date for the extension. The variation order was made in purported exercise of the power in r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provided that the Court might set aside or vary a judgment or order after it had been entered if it had been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order. The point of controversy was whether r 36.16 was “picked up” pursuant to s 79 of the Judiciary Act 1903 (Cth) (Judiciary Act). The argument that it was not was advanced on the basis that, in the terms of s 79(1) of the Judiciary Act, s 588FF(3) “otherwise provided”. That argument was accepted by the High Court (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ).

78    The High Court considered that s 588FF(3) “may be said to ‘otherwise provide’ if it is inconsistent with so much of the general rules of procedure in the UCPR as would permit variation of the time fixed by the extension order” (at [8]). The Court held that such inconsistency would exist where “s 588FF(3) leaves no room for the operation of the UCPR, which would be the case if s 588FF(3)(b) is clearly intended to be the exclusive source of power to extend time for the purposes of s 588FF(1)” (at [8] (emphasis added)).

79    In Grant Samuel, their Honours referred, with approval, to the judgment of Spigelman CJ in BP Australia. While noting that the time limit specified in s 588FF(3)(a) has been augmented after BP Australia by the addition of the alternate time limit in s 588FF(3)(a)(ii), the High Court stated that the addition of that alternative time limit “does not detract from the force of what was said in BP Australia Ltd v Brown concerning the statutory aim of certainty which is evident in s 588FF(3)” (at [21]). Rather, describing the language of s 588FF(3) as “clear and emphatic” (at [21]), quoting Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 at 300 (Hayne J), in reference to s 459G of the Corporations Act, their Honours went on to emphasise the jurisdictional character of s 588FF(3) and concluded that (at [23]):

The only power given to a court to vary the para (a) period is that given by s 588FF(3)(b). That power may not be supplemented, nor varied, by rules of procedure of the court to which an application for extension of time is made.

(Emphasis added.)

80    As may be seen, the question that the High Court laid out (at [8]) required examination of parliament’s intention in relation to the power to extend time for the purposes of s 588FF(1). Their Honours’ analysis of parliament’s intention proceeded by close consideration of the nature and role of the statutory time limit; neither the question, nor the High Court’s answer, was cast in terms of whether the relevant provision of the UCPR is a power in respect of the “same subject matter” as s 588FF(3). Nor did the analysis proceed by application of Anthony Hordern, reinforcing again that (contrary to the Appellants’ submissions) Anthony Hordern is not an analytical straitjacket. On that point, we also note that, in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, the plurality (Gummow, Hayne, Crennan and Bell JJ) expressed that what is often now referred to as the “principle in Anthony Hordern” is but one way in which the same point of statutory construction has been expressed (that point being whether the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power). Their Honours said (at [84]):

As was explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, the relevant principle of construction has been identified by using a number of different terms. These have included whether the two powers are the “same power” [referring to Anthony Hordern] or are with respect to the “same matter” [referring to R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550, 553 (Dixon J)], or whether the general power encroaches upon the same subject matter exhaustively governed by the special power [Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678 (Mason J); Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [No 2] (1980) 44 FLR 455 at 468–469 (Deane J)]. But the central question is whether “the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power” [referring to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [59] (Gummow and Hayne JJ)].

(Emphasis added.)

81    Returning to the matter at hand, in our view, the primary judge was correct to conclude that s 588FF(3)(b) is the only means by which the time in which a liquidator may bring an application under s 588FF(1) can be extended. Contrary to the Appellants’ submissions, there is no basis upon which to treat s 601AH(3)(d) as the “leading” provision, and s 588FF(3) as the “subordinate” provision, so that the latter provision would be read “subject to” any orders made under s 601AH(3)(d). As discussed in BP Australia and Grant Samuel, the time limit specified in s 588FF(3)(a) is jurisdictional. In the language of David Grant, it is an essential condition of the right conferred by s 588FF(1); it is a “condition of the gift”. The time limit imposed by s 588FF(3)(a) is a critical component of the functioning of the Pt 5.7B regime. It is not a “subordinate” provision, to be read subject to any orders that might be made under s 601AH(3)(d).

82    Whatever the outer limits of s 601AH(3)(d) may be where the orders being contemplated do not impinge on a jurisdictional time limit provision such as s 588FF(3)(a), in our view, parliament did not intend the power in s 601AH(3)(d) to enable the Court to extend the jurisdictional time limit in s 588FF(3)(a) where a company has been reinstated to the register after a period of being deregistered. In our view, s 588FF(3)(b) is the only power by which the period of time specified in s 588FF(3)(a) may be extended, and the power in s 601AH(3)(d) must be confined accordingly.

83    As we have already explained, we do not accept the Appellant’s argument that an order framed as a “calculation of time” order does not involve any extension of the jurisdictional time limit in s 588FF(3)(a). Commercial certainty operates by reference to the “real world” passage of time. The balance struck by parliament between the competing interests of creditors and those dealing with companies that go into liquidation would be entirely frustrated if the jurisdictional time limit could be subverted by drafting an order as a “calculation of time” order, and not an “extension of time” order.

84    As was discussed at length by Spigelman CJ in BP Australia, the imposition of that time limit reflects and enforces the balance parliament has struck between certainty in commercial dealings and the pursuit of actions by liquidators for the benefit of creditors. This exposes one of the flaws in the Appellants’ arguments. The Appellants submit that constraining the period in which liquidators of re-registered companies can bring s 588FF(1) proceedings may allow certain transactions to go unchallenged, even though a responsible liquidator has not been in office to investigate and bring such transactions while the company was deregistered. The short answer to that contention is that that may indeed occur, but the fact that such transactions may go unchallenged — through a combination of the effluxion of time and the absence of a responsible, competent (and funded) liquidator — does not mean that the conclusion that s 588FF(3)(b) covers the field and sets out the only means by which the time limit may be extended is wrong.

85    We have rejected the Appellants’ argument that the s 601AH(3)(d) power could only be confined in the relevant way if s 601AH(3)(d) and s 588FF(3) fitted the verbal formulae they selected from Anthony Hordern and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (Nystrom). However, we note for completeness that, in any event, the conclusions we have reached at paragraphs 81–82 above bring the case within the Anthony Hordern principle, as explained by Gummow and Hayne JJ in Nystrom at [59].

86    We also note that, although we have referred extensively to David Grant, BP Australia and Grant Samuel, we do so recognising that each of those cases involved a general power, and not s 601AH(3)(d) (David Grant was also addressing s 459G which imposed a 21 day limit for applications to set aside statutory demands, and not the time limit specified by s 588FF(3)). Those cases are, accordingly, not cases that dictate the result in the present appeals. Rather, they expose the correct analytical framework by which the present issues are best addressed and highlight the jurisdictional character of statutory time limits that condition the grant, as does s 588FF(3).

Disposition of grounds 1 to 3

87    It follows, from the foregoing, that the primary judge was correct to conclude that the Court did not have the power to make Order 3 under s 601AH(3)(d) and was correct to vacate Order 3.

Ground 5: Whether former s 536(1) provides an alternate source of power for Order 3

88    Before the primary judge, the Commissioner relied on an interlocutory application, which would only arise for determination if Order 3 were discharged. By his application, the Commissioner sought either a “calculation of time” order pursuant to s 601AH(3)(d) or, alternatively, pursuant to s 536(1) of the Corporations Act (now repealed). In either case, the order was sought nunc pro tunc with effect from 2 September 2019, and was drafted in terms that would disregard the period during which each of the relevant companies was deregistered in calculating the period ending three years after the relation-back day of that company.

89    Having found that s 601AH(3)(d) did not supply a power for Order 3, the primary judge rejected the Commissioner’s first alternative order. Ground 5 is concerned with the primary judge’s rejection of the proposition that former s 536(1) was an available head of power for the second alternative order sought. The Liquidators were “neutral” on this ground.

90    Prior to 1 March 2017, supervision of liquidators was provided for by s 536(1) of the Corporations Act. From 1 March 2017, s 536 was replaced by s 90-10 of the IPS. The primary judge recorded that there was no dispute between the parties that, due to the operation of s 1617 of the Corporations Act, s 536 continued to apply to the proceeding (J [301]). Former s 536 was in the following terms:

Supervision of liquidators

(1A)    In this section:

liquidator includes a provisional liquidator.

(1)    Where:

(a)    it appears to the Court or to ASIC that a liquidator has not faithfully performed or is not faithfully performing his or her duties or has not observed or is not observing:

(i)    a requirement of the Court; or

(ii)    a requirement of this Act, of the regulations or of the rules; or

(b)    a complaint is made to the Court or to ASIC by any person with respect to the conduct of a liquidator in connection with the performance of his or her duties;

the Court or ASIC, as the case may be, may inquire into the matter and, where the Court or ASIC so inquires, the Court may take such action as it thinks fit.

(2)    ASIC may report to the Court any matter that in its opinion is a misfeasance, neglect or omission on the part of the liquidator and the Court may order the liquidator to make good any loss that the estate of the company has sustained thereby and may make such other order or orders as it thinks fit.

(3)    The Court may at any time require a liquidator to answer any inquiry in relation to the winding up and may examine the liquidator or any other person on oath concerning the winding up and may direct an investigation to be made of the books of the liquidator.

(Emphasis added.)

91    The primary judge found that former s 536(1) did not supply an alternate source of power for the making of an order in the form of Order 3 for two principal reasons.

92    First, the primary judge found that the power in former s 536(1) conferred “only broad or general powers which cannot be used to circumvent the jurisdictional requirement set out in s 588FF(3) of the Corporations Act” (J [299]). In this regard, her Honour relied on her reasoning regarding s 588FF(3)’s jurisdictional requirement (considered in connection with appeal grounds 1 to 3).

93    Secondly, the primary judge held that even if her conclusions regarding the operation of s 588FF(3) were in error, former s 536 does not provide an alternate source of power for the making of an order in the form of Order 3 (J [300]).

94    Specifically, the primary judge held that (J [303]):

The Court’s jurisdiction to undertake an inquiry under former s 536 of the Corporations Act is supervisory with the Court performing a regulatory role.

95    Her Honour then considered the authorities in relation to the court’s supervisory role over the conduct of liquidators and concluded as follows:

312    It is clear from the authorities that former s 536 of the Corporations Act confers a supervisory jurisdiction on the Court and that its purpose is to discipline, correct and supervise the conduct of liquidators. It is with regard to that purpose that the power in former s 536(1) to take such action as the Court sees fit must be construed. The Commissioner points to no authority which supports his construction of former s 536 as permitting an order that by reason of a liquidator’s dereliction of duty the Court can exclude days for the purpose of calculating a period in which an action vested in the office of liquidator can be commenced.

313    It would be odd, if not perverse, if former s 536 of the Corporations Act permitted the Court, after concluding that a liquidator had not faithfully performed his or her duties, to make an order in terms of Order 3 of the Reinstatement Orders or to the effect of that sought by the Commissioner in paragraph 2 of his application. Such an order does not have as its purpose the disciplining, correction or supervision of the delinquent liquidator or for the “due administration of the winding up”. The section is concerned with the conduct of liquidators which is liable to attract sanctions or control for broadly disciplinary reasons. Any action taken as a result or as the Court sees fit must reflect that purpose.

314    By contrast such an order if made would have the effect of reducing the delinquent liquidator’s liability for compensation or damages, which seems to run counter to the purpose of former s 536, and would require third parties to defend claims made after the expiry of the period in which to bring such a claim prescribed by s 588FF of the Corporations Act, again to the financial benefit of the wrongdoer.

(Emphasis added.)

96    In our view, the primary judge was correct to reject the proposition that former s 536 would provide a source of power for the making of an order in the form of Order 3. That is so for a number of reasons.

97    First, the authorities make clear that former s 536 is concerned with the supervision of liquidators in respect of matters that may broadly be described as disciplinary, and the power conferred by former s 536(1) is to be construed in that context.

98    In Hall v Poolman [2009] NSWCA 64; (2009) 75 NSWLR 99 (Hall), the New South Wales Court of Appeal (Spigelman CJ, Hodgson JA and Austin J) considered former s 536’s supervisory role over the conduct of liquidators, in the context of the relevant liquidators commencing and prosecuting legal proceedings with the assistance of a litigation funder. Their Honours described former s 536 as conferring a “statutory supervisory jurisdiction” (at [61]), and quoted (at [67]), with approval, the observation of McLelland J in Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438, regarding the predecessor to former s 536, that it “is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might broadly be described as disciplinary reasons.” As the New South Wales Court of Appeal noted in Hall, those observations have been frequently cited (see Hall at [67] for a list of cases applying McLelland J’s approach).

99    In BL & GY International Co Ltd v Hypec Electronics Pty Ltd [2010] NSWSC 959; (2010) 79 ACSR 558 (Hypec), a new liquidator, who replaced the derelict liquidator, brought an application so as to expand the terms of an already ordered former s 536 inquiry to include “an inquiry as to damages, as to the amount of loss incurred or suffered … by reason of misconduct of the former liquidator of [Hypec], David Patrick Watson” (at [8] (Barrett J)). In finding that former s 536 did empower the Court to make such a compensatory order, Barrett J made the following comments as to purpose at [41]:

As the several judicial statements about s 536 make clear, the emphasis is on regulation, supervision, discipline and correction of liquidators in the interests of honest and efficient administration of the estates of companies subject to winding-up. The interest to be served is a public interest. The section is not concerned in any direct way with vindication of private rights. Rather and as Steytler J said in GIS Electrical Pty Ltd v Melsom (2002) 43 ACSR 481; 172 FLR 218; [2002] WASCA 302 at [49] echoing an observation of McLelland CJ in Eq in Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434 at 438; 1 ACSR 79 at 83, it “is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons”. The preoccupation is, as I put it in Re Bauhaus Pyrmont Pty Ltd [2006] NSWSC 742 at [4], with “the broader question of due administration of the winding up in the public interest”.

(Emphasis added.)

100    It is against this regulatory, supervisory and disciplinary purpose, as described in Hall and Hypec, with which the Court is to “take such action as it thinks fit”. The purpose and function of an order such as Order 3 is to extend the time in which a non-defaulting liquidator may bring proceedings under s 588FF(1) by discounting the period during which the company in question was deregistered. It is only in the loosest sense that it could be said that an order, the purpose and effect of which is to extend a statutory time limit (albeit by a “calculation of time” order), relates to the supervision of liquidators. Although it was the deficient conduct of the initial liquidator that resulted in the companies being prematurely deregistered, and thus giving rise to the perceived need to obtain an order like Order 3 so as to make proceedings under s 588FF(1) possible, that does not render an order like Order 3 one that is concerned with the supervision or discipline of the defaulting liquidator. Contrary to the Commissioner’s submissions, the contemplated order cannot be said to be directed at the “correction” of the conduct of a delinquent liquidator (as that word was used in Hypec) on the basis that it would ameliorate the harm caused by voidable transaction claims being time barred.

101    For these reasons, we do not consider that former s 536 supplies the necessary power for the making of an order such as Order 3.

102    This conclusion does not rest on the interaction between former s 536 and s 588FF(3). However, once that interaction is brought into consideration, it only reinforces the conclusion that former s 536 does not supply a power of the requisite kind. For the reasons addressed in respect of Grounds 1 to 3, the time limit specified in s 588FF(3)(a) is jurisdictional, and s 588FF(3)(b) is the only statutory mechanism by which the time period may be extended. We do not consider that there is any sensible construction of former s 536 that supports the Commissioner’s contention. The construction advanced by the Commissioner would require a conclusion that parliament intended the Court’s powers in respect of the supervision of liquidators in respect of disciplinary matters to be available to displace, by a side-wind, the calibrated balance parliament struck between the interests of creditors in relation to voidable transactions, and the interests of commercial certainty. As we have said, that is not a viable construction.

103    These matters are sufficient to dispose of Ground 5. For the avoidance of doubt, however, we note that we are not of the view that the fact that an order in contemplation may, through its practical operation, confer a benefit on a defaulting liquidator in the manner contemplated by the primary judge (J [313]–[314]) means that, ipso facto, the order is beyond power. Much may depend on the circumstances, and it is in any event not necessary to hypothesise on the potential operation of an order like Order 3 in order to conclude that former s 536(1) does not supply a head of power for the making of such an order.

Further arguments concerning the limits of the power in s 601AH(3)(d)

104    By their Notices of Contention, the Participating Respondents advanced an additional argument in support of the primary judge’s conclusion that s 601AH(3)(d) did not give the Court power to make Order 3. The argument focussed upon the interaction between ss 601AH(3)(d) and (5). The Participating Respondents contend that, because s 601AH(5) deems a reinstated company to have “continued in existence” during the period of its deregistration, s 601AH(3)(d) does not admit of a power to “suspend or augment the reckoning of time” for the bringing of claims by a liquidator or the reinstated company, or by third parties against the reinstated company.

105    The contention concerns the interaction between ss 601AH(3)(d) and (5), rather than the interaction between ss 588FF(3) and 601AH(3)(d). A consequence of the argument is to cast doubt on the correctness of the Pagnon line of cases referred to earlier. As we have rejected appeal grounds 1 to 3, and have determined that the Court did not have the power to make Order 3 for other reasons, it is not necessary to decide the question raised by the Notices of Contention or to consider the correctness of the Pagnon line of cases. Any such consideration should await a proceeding in which it is necessary to determine the question.

106    We also note that, in the course of argument, other questions were raised concerning the proper limits of the power in s 601AH(3)(d), being a general power conferred on the Court to “make any other order it considers appropriate”. It is well-established that the conferral of a general power to make such orders as the court thinks appropriate is necessarily restricted to the making of such orders that are properly seen as appropriate to be made by a court in the exercise of its jurisdiction (see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 622 (Deane J, with whom Mason CJ, Wilson, Dawson and Brennan JJ agreed)), and that the conferral of a general power does not permit the court to make an order which would bring about a result different from that prescribed by the express provisions of a statute (see Clyne v Deputy Commissioner of Taxation (No 3) (1984) 154 CLR 589 at 597–598 (Gibbs CJ, Murphy, Brennan and Dawson JJ); see also Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [53] and [54] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ)). Again, however, as we have determined that the Court did not have the power to make Order 3 for other reasons, and the foregoing principles were not the subject of considered argument, it is not appropriate to express any concluded view on whether those considerations ought preclude the use of s 601AH(3)(d) to alter the operation of statutory limitation periods.

Conclusion

107    In view of the significance of the legal issues raised by the applications for leave to appeal, leave will be granted. The appeals will be dismissed, with costs.

Associate:

Dated:    30 October 2025

SCHEDULE OF PARTIES

SCHEDULE OF PARTIES