Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320

Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320

The PBL parties were not entitled to be heard on the application to extend the validity of the unserved originating process because the rules contemplate that named but unserved defendants are non-participants until service and may challenge an extension retrospectively after service. They also lacked a sufficient interest to be heard on the application to vary the special purpose liquidator's functions and powers: contributory status was insufficient in an insolvent listed company, being named in unserved proceedings was insufficient for the same reasons, and any concerns as examinees or potential examinees could be raised if and when examinations were sought.

Jurisdiction
Australia
Judgment Date
15 November 2007
Procedural Posture
Applications for Leave to Intervene or Be Heard in Proceedings Concerning a Special Purpose Liquidator and Unserved Originating Process / Ex Tempore Judgment on Applications for Leave to Be Heard
Outcome
Applications for leave to intervene dismissed with costs
Legal Topics
['intervention in Proceedings' 'extension of Time for Service of Originating Process' 'special Purpose Liquidator Powers and Functions' 'corporations Rules Leave to Be Heard' 'part 5.9 Examination']
['civil Procedure' 'corporations' 'winding Up'] ['intervention in Proceedings' 'extension of Time for Service of Originating Process' 'special Purpose Liquidator Powers and Functions' 'corporations Rules Leave to Be Heard' 'part 5.9 Examination']

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Procedural Posture

Applications for Leave to Intervene or Be Heard in Proceedings Concerning a Special Purpose Liquidator and Unserved Originating Process / Ex Tempore Judgment on Applications for Leave to Be Heard

Legal Issues

  1. 1 ["Whether defendants named in unserved originating process should be granted leave to be heard on the special purpose liquidator's application to extend the time within which the originating process remains valid for service." "Whether the PBL parties should be granted leave under rule 2.13(1) of the Supreme Court (Corporations) Rules 1999 to be heard on the special purpose liquidator's application to vary or extend his functions and powers." 'Whether status as contributories, named defendants in unserved proceedings, or examinees or potential examinees was sufficient to justify leave to be heard.']

Ratio Decidendi

The PBL parties were not entitled to be heard on the application to extend the validity of the unserved originating process because the rules contemplate that named but unserved defendants are non-participants until service and may challenge an extension retrospectively after service. They also lacked a sufficient interest to be heard on the application to vary the special purpose liquidator's functions and powers: contributory status was insufficient in an insolvent listed company, being named in unserved proceedings was insufficient for the same reasons, and any concerns as examinees or potential examinees could be raised if and when examinations were sought.

Court Disposition

Applications for leave to intervene dismissed with costs

Orders

  • ["Leave to be heard was not granted to the PBL parties in relation to the special purpose liquidator's application for an extension of time within which the originating process in proceedings 2902/07 remains valid for service." "The application of the PBL parties in proceedings 5291/03 for an order granting leave...