Brown v DML Resources (No.5) [2001] NSWSC 973

Brown v DML Resources (No.5) [2001] NSWSC 973

The plaintiffs' submissions did not justify altering the August judgment. Part 8 rule 11(3) was not confined to periods of limitation and applied to the addition of BP Australia Ltd as a defendant under Part 8 rule 8. Because an application under s 588FF(3)(b) is made by commencing proceedings, joinder of BP Australia Ltd after expiry of the three-year period would mean the application against it was taken to have been made on the joinder date and was therefore barred by s 588FF(3)(b). Subject to the separate s 1322 application, joinder would be futile.

Jurisdiction
Australia
Judgment Date
31 October 2001
Procedural Posture
Liquidator's Application for Extension of Time Under S 588 Ff(3) of the Corporations Act to Make an Application to Challenge Voidable Transactions / Reconsideration Application After Reasons Delivered on 29 August 2001; S 1322 Application Not Yet Heard
Outcome
Upon reconsideration, no ground was shown for altering the determinations made in the judgment delivered on 29 August 2001; the s 1322 application remained to be heard.
Legal Topics
['voidable Transactions' 'extension of Time' 'joinder of Parties' 'limitation Periods' 'supreme Court Rules' 'reconsideration of Reasons for Judgment']
['corporations Law' 'insolvency' 'civil Procedure'] ['voidable Transactions' 'extension of Time' 'joinder of Parties' 'limitation Periods' 'supreme Court Rules' 'reconsideration of Reasons for Judgment']

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Procedural Posture

Liquidator's Application for Extension of Time Under S 588 Ff(3) of the Corporations Act to Make an Application to Challenge Voidable Transactions / Reconsideration Application After Reasons Delivered on 29 August 2001; S 1322 Application Not Yet Heard

Legal Issues

  1. 1 ['Whether the Court should reconsider its reasons of 29 August 2001.' 'Whether joinder of BP Australia Ltd under Part 8 rule 8 after expiry of the three-year period would mean the application for extension of time was made outside the period prescribed by s 588FF(3)(b).' 'Whether Part 8 rule 11(3) applies only to periods of limitation and not to a time limit for making an application.' 'Whether there is a relevant distinction between the making of an application under s 588FF(3)(b) and the commencement of proceedings under Part 8 rule 11(3).']

Ratio Decidendi

The plaintiffs' submissions did not justify altering the August judgment. Part 8 rule 11(3) was not confined to periods of limitation and applied to the addition of BP Australia Ltd as a defendant under Part 8 rule 8. Because an application under s 588FF(3)(b) is made by commencing proceedings, joinder of BP Australia Ltd after expiry of the three-year period would mean the application against it was taken to have been made on the joinder date and was therefore barred by s 588FF(3)(b). Subject to the separate s 1322 application, joinder would be futile.

Court Disposition

Upon reconsideration, no ground was shown for altering the determinations made in the judgment delivered on 29 August 2001; the s 1322 application remained to be heard.

Orders

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