Onefone Australia Pty Ltd v One.Tel Ltd

(2007) 208 FLR 140; [2007] NSWSC 69

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Corporations
2. › Winding up
3. › Examination summonses — application by prospective examinees for leave to be heard — ex parte procedure
1. Corporations
2. › Winding up
3. › Voidable transactions — limitation period under s.588FF(3) — whether court may further extend period already fixed by order
1. Corporations
2. › Winding up
3. › Special purpose liquidator — scope of powers and investigative functions
1. Practice and procedure
2. › Interlocutory orders
3. › Whether extension order under s.588FF(3)(b) determines a claim for relief — UCPR r 36.16(3)

An order under s.588FF(3)(b) of the Corporations Act fixing an extended limitation period determines a 'claim for relief' and is not amenable to further variation under UCPR r 36.16(3); s.588FF(3)(b) covers the field regarding extension of the limitation period, permitting only a single determinate extension within the original three-year period.
The usual ex parte procedure for applications for examination summonses under ss.596A and 596B should not be departed from merely because prospective examinees have previously been examined, the underlying solvency question may be resolved in other proceedings, or a prior judicial refusal to give directions supporting examinations was based on insufficient evidence that has since been supplemented.
Agreements or undertakings not to rely on limitation defences may be effective for causes of action governed by the Limitation Act 1969 or the Fair Trading Act 1987, but cannot safely preserve the right to bring a s.588FF(1) application beyond the period fixed under s.588FF(3), given the mandatory statutory language 'can only be made'.