Federal Court of Australia

McCallum as liquidator of Sparrk Logistics Pty Ltd (in liq) v Alpine Fresh Pty Ltd [2025] FCA 1093

ORDERS

THE COURT ORDERS THAT:

1.    The words “5th” and “11th” appearing in paragraphs 34, 49 and 50 of the amended statement of claim filed on 14 March 2025 be struck out.

2.    The interlocutory application filed on 8 May 2025 otherwise be dismissed.

3.    No order as to costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

HALLEY J:

A.     Introduction

1    By an interlocutory application filed on 8 May 2025, the fifth and eleventh defendants seek orders that (a) the proceeding against them be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules) or, alternatively, (b) that references to them in the amended statement of claim filed on 14 March 2025 be struck out with respect to voidable transaction claims advanced under s 468 of the Corporations Act 2001 (Cth) (Corporations Act).

2    The principal issue raised by the fifth and eleventh defendants concerns whether the plaintiffs brought the proceedings within the relevant statutory limitation periods in s 468 and s 588FF of the Corporations Act, and what is the date on which an electronically lodged document is taken to have been “filed” under the Rules.

3    The fifth and eleventh defendants rely on two affidavits of Mr Charles Leonidas, the solicitor on record for the fifth and eleventh defendants, sworn on 8 May 2025 and 11 July 2025.

4    The plaintiffs rely on an affidavit of their solicitor, Mr Gavin Parsons, sworn on 25 March 2025.

B.    Background

5    On 2 March 2022, the second plaintiff, Sparrk Logistics Pty Ltd (in liquidation) ACN (645 852 286), was wound up pursuant to orders made by the Court.

6    The originating process and a supporting affidavit of Ms Suelen McCallum are recorded on the cover pages as being electronically lodged with the Registry on 19 December 2024 at 3.39 pm. The originating process advances, among other things, voidable transaction and unfair preference claims against the fifth and eleventh defendants. The originating process contains three schedules which annexes a statement of claim, particulars of transactions, and a “Section 468 Table”.

7    On 7 January 2025, a sealed copy of the originating process and supporting affidavit was emailed by the Registry to the plaintiffs’ legal representatives. While the “Date of Lodgement” on the cover pages of the originating process and supporting affidavit is recorded as 19 December 2024 at 3.39 pm, the “Date Accepted for Filing” on the respective documents is recorded as 7 January 2025 at 11.08 am.

C.    Summary Judgment and Strike Out

8    A defendant may obtain summary judgment against a plaintiff under s 31A(2) of the FCA or r 26.01 of the Rules.

9    Section 31A(2) of the FCA Act provides:

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

10    Rule 26.01 of the Rules relevantly provides:

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)     the proceeding is frivolous or vexatious; or

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

11    A defendant may also apply to have all or part of a pleading struck out under r 16.21 of the Rules.

12    Rule 16.21 of the Rules relevantly provides:

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

 (a)     contains scandalous material; or

 (b)     contains frivolous or vexatious material; or

 (c)     is evasive or ambiguous; or

 (d)     is likely to cause prejudice, embarrassment or delay in the proceeding; or

 (e)     fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

 (f)     is otherwise an abuse of the process of the Court.

D.    Voidable transaction claims

D.1.    Relevant statutory provisions

13    Section 468(1) of the Corporations Act provides:

Any disposition of property of the company, other than an exempt disposition, made after the commencement of the winding up by the Court is, unless the Court otherwise orders, void.

14    Section 513A of the Corporations Act relevantly provides:

If the Court orders under section 233, 459A, 459B or 461 that a company be wound up, the winding up is taken to have begun or commenced:

…

(b)     if, immediately before the order was made, the company was under administration—on the section 513C day in relation to the administration;

15    Section 513C of the Corporations Act, in turn, provides:

The section 513C day in relation to the administration of a company is:

(a)     if, when the administration began, a winding up of the company was in progress—the day on which the winding up is taken because of this Division to have begun; or

 (b)     otherwise—the day on which the administration began.

16    The administration of a company “begins” when an administrator is appointed: s 435C(1) of the Corporations Act.

D.2.    Consideration

17    The application to wind up the second plaintiff was electronically lodged for filing at 4.00 pm on 20 December 2021. Further, the fifth and eleventh defendants submit, and the plaintiffs do not contest, that the administrators of the second plaintiff were appointed on 21 February 2022. Pursuant to s 435C of the Corporations Act, the administration of the second plaintiff accordingly began on 21 February 2025.

18    As the date of administration precedes the winding up order made on 2 March 2022, the winding up of the second plaintiff is taken to have “commenced” on 21 February 2022 for the purposes of s 468 and s 513A of the Corporations Act. Accordingly, any voidable transactions alleged by the liquidator of the second plaintiff under s 468 of the Corporations Act must have occurred after 21 February 2022.

19    The dispositions that the liquidator claims are void against the fifth defendant in the amended statement of claim are all dated between 22 December 2021 and 17 February 2022, and the dispositions claimed to be void against the eleventh defendant are all dated between 21 December 2021 and 17 February 2022. Consequently, it is clear that the relevant debts alleged to have been incurred were all incurred prior to the relevant period.

20    It appears there has been a misunderstanding on the part of the plaintiffs that references to the winding up of a company being “in progress” in s 513C(a) of the Corporations Act extends the date of administration to the date on which an application for the winding up of the company is lodged, rather than the correct position, which is that s 513C(a) is referring to the period after a winding up order is made whereby the winding up of the company is consequently “in progress”.

21    It follows that the claims sought against the fifth and eleventh defendants with respect to the alleged contraventions of s 468 of the Corporations Act must be struck out as they are time barred and therefore do not disclose a reasonable cause of action and would otherwise be an abuse of the process of the Court.

E.    Unfair preference claims

22    I now turn to consider whether the plaintiffs’ claims fall outside the statutory limitation period in s 588FF(3)(a) of the Corporations Act. Ultimately, the status of these claims turns on the construction of r 2.25 of the Rules.

E.1.    Relevant statutory provisions

23    Unfair preferences between a company and a creditor are defined under s 588FA of the Corporations Act.

24    Section 588FE sets out the circumstances in which unfair preferences may be voidable. The section relevantly provides:

(1)     If a company is being wound up:

(a)     a transaction of the company may be voidable because of any one or more of subsections (2) to (6) if the transaction was entered into on or after 23 June 1993; and

…

(2)     The transaction is voidable if:

 (a)     it is an insolvent transaction of the company; and

 (b)     it was entered into, or an act was done for the purpose of giving effect to it:

 (i)     during the 6 months ending on the relation-back day; or

 (ii)     after that day but on or before the day when the winding up began.

(2A)     The transaction is voidable if:

(a)     the transaction is:

(i)     an uncommercial transaction of the company; or

(ii)     an unfair preference given by the company to a creditor of the company;

…; and

(b)     the company was under administration immediately before:

(i)     the company resolved by special resolution that it be wound up voluntarily; or

 (ii)     the Court ordered that the company be wound up; and

(c)     the transaction was entered into, or an act was done for the purpose of giving effect to it, during the period beginning at the start of the relation-back day and ending:

(i)     when the company made the special resolution that it be wound up voluntarily; or

 (ii)     when the Court made the order that the company be wound up; and…

25    Section 588FF of the Corporations Act relevantly provides:

(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…

…

(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.

26    Rule 2.25 of the Rules provides:

(1)     A document is filed if:

 (a)     it is lodged with the Court in accordance with rule 2.21(1); and

 (b)     either:

 (i)     for a document in an existing proceeding—it is accepted in the proper Registry by having the seal of the Court affixed to it; or

(ii)     in any other case—it is accepted in a Registry by having the seal of the Court affixed to it.

…

(3)     If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:

(a)     if the whole document is received by 4.30 pm on a business day for the Registry—on that day; or

 (b)     in any other case—on the next business day for the Registry.

27    Rule 2.25 of the Rules draws a distinction between, on the one hand, the lodgement of a document with the Court and, on the other hand, the acceptance by the Court for the filing of that document. It also introduces in subparagraph (3) the concept of when a document is received by the Registry.

28    I do not discern any relevant distinction between the language in r 2.25 of the Rules of the “lodgement” of a document and “receiving” a document. In substance, both refer to the same event, namely the receipt by the Registry of a document that is lodged by a party.

29     In order for a document to be filed, two steps must be met.

30    First, the document is lodged in accordance with r 2.21(1) of the Rules.

31    Second, and relevantly in this case, for a document that is not in an existing proceeding, the document is accepted by the Registry by having the seal of the Court affixed to it. On the fixation of a seal to the document, the document is then taken to have been filed.

32    Rule 2.25(3) of the Rules then contains a deeming provision which provides that documents sent by electronic communication to the Registry are, if subsequently accepted by the Registry for filing, taken to have been filed on the day they were received by the Registry if lodged prior to 4.30 pm, or on the next business day if received by the Registry after that time.

E.2.    Consideration

33    I accept that the originating process and supporting affidavit were lodged on 19 December 2024 but were ultimately not accepted for filing until 7 January 2025.

34    The plaintiffs contend that the relevant date for determining the statutory limitation under s 588FF of the Corporations Act was 20 December 2024, and the fifth and eleventh defendants contend that it was 22 December 2024.

35    Consequently, subject to r 2.25(3) of the Rules, it would appear that the originating process and affidavit in support were prima facie filed outside the limitation period, and therefore the Court would not have had jurisdiction over the proceeding brought under s 588FA and s 588FE of the Corporations Act in relation to the fifth and eleventh defendants, and those claims would have to be struck out as against the fifth and eleventh defendants.

36    Mr Parsons provides an explanation in his affidavit of the circumstances in which he lodged the originating process and affidavit in support for filing on 19 December 2024. Specifically, Mr Parsons explains how the Registry initially rejected the originating process on 24 December 2024 but ultimately accepted the documents as being lodged on 19 December 2024 and accepted for filing on 7 January 2025. It would therefore appear to follow that by reason of r 2.25(3)(a) of the Rules, the originating process and affidavit in support would be taken to have been filed on 19 December 2024, given the documents were lodged before 4.30 pm that day.

37    Counsel for the fifth and eleventh defendants, however, urges me to, in essence, go behind the lodgement date on the sealed copies of the documents, being 19 December 2024, on the basis that there is “explicit” evidence that the originating process was rejected on 24 December 2024. I accept that there was an indication in unambiguous terms from the Registry on 24 December 2024 to Mr Parsons to that effect.

38    I also accept, as emphasised by counsel for the fifth and eleventh defendants, that there were other issues that were raised by the Registry in the course of 24 December 2024 that caused the Registry to contend that the documents had not been correctly lodged for filing.

39    In the course of those communications, further documents were attempted to be lodged for filing by the plaintiffs in response to requests from the Registry. Most, if not all, of those documents were rejected for various reasons, but it appears plain from the evidence given by Mr Parsons that the Registry had misunderstood that the schedules to the originating process were not intended to be filed as independent documents, including, in particular, the draft statement of claim. These schedules were not intended to be independently filed because until an order had been made for pleadings, the statement of claim would not have been able to be filed, as the originating process was the means by which the plaintiffs had properly sought to commence the proceeding.

40    Once that issue had ultimately been explained to the Registry and resolved, the objective evidence establishes that the Registry was satisfied that the documents that had originally been lodged for filing on 19 December 2024 could be accepted for filing.

41    In those circumstances, given that (a) the Registry confirmed under the seal of the Registrar of the Court that the originating process and affidavit in support were lodged on 19 December 2024, and (b) those documents were the specific documents that were lodged for filing on 19 December 2024, as opposed to any subsequent amended or corrected documents, I have come to the conclusion that the lodgement date recorded on the originating process and affidavit in support is the relevant date for the purposes of determining the date of filing pursuant to r 2.25(3) of the Rules. The relevant date, therefore, on which the proceeding was commenced for the purposes of s 588FF(3)(a) of the Corporations Act is 19 December 2024, not 7 January 2025.

42    The fifth and eleventh defendants contend that the relevant statutory time limit specified under s 588FF(3)(a) of the Corporations Act was 22 December 2024, being three years after the relation-back day which, pursuant to s 91 of the Corporations Act, is the date on which the winding up application was filed. The fifth and eleventh defendants, however, overlooked the operation of r 2.25(3) of the Rules which has the effect, as explained above, of deeming that the filing date was the date on which the winding up application was electronically lodged for filing, which was 20 December 2024. In any event, for present purposes, the distinction between 20 and 22 December 2024 for the maintenance of the s 588FA and s 588FE claims is not material.

43    It follows that the claims brought under s 588FA and s 588FE of the Corporations Act against the fifth and eleventh defendants were brought within the statutory limitation period and are not liable to be struck out.

F.    Disposition

44    For the foregoing reasons, the references to the fifth and eleventh defendants in respect of the plaintiffs’ claims under s 468 of the Corporations Act are to be struck out. The interlocutory application is otherwise to be dismissed. Costs generally follow the event but, in this case, both parties achieved a significant measure of success, and therefore the appropriate order in the interests of justice is that there be no order as to costs.

Associate:

Dated:    5 September 2025

SCHEDULE OF PARTIES