Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liq) [2016] NSWCA 329

Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liq) [2016] NSWCA 329

Section 588FF(3) of the Corporations Act is concerned with the period for bringing an application for orders in respect of voidable transactions and does not bar the amendment of existing pleadings in proceedings validly commenced within the limitation period, to add new claims arising from substantially the same facts against the same parties. The amendment provisions of the Civil Procedure Act 2005 (NSW) are not inconsistent with s 588FF(3) and are accordingly 'picked up' and applied by s 79 of the Judiciary Act 1903 (Cth).

Parties
Applicant: Sydney Recycling Park Pty Ltd; First Respondent: Cardinal Group Pty Ltd (in liquidation); Second Respondent: Richard Andrew Stone and Peter William Marsden (as joint and several liquidators of Cardinal Group Pty Ltd)
Jurisdiction
Australia
Judgment Date
29 November 2016
Procedural Posture
Appeal / Judgment After Appeal Hearing
Outcome
Appeal dismissed; leave to appeal granted
Legal Topics
Winding Up, Voidable Transactions, Limitation Periods, Amendment of Pleadings, Jurisdiction
Corporations Law Civil Procedure Winding Up Voidable Transactions Limitation Periods Amendment of Pleadings Jurisdiction

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Parties

Sydney Recycling Park Pty Ltd

Applicant

Cardinal Group Pty Ltd (in liquidation)

First Respondent

Richard Andrew Stone and Peter William Marsden (as joint and several liquidators of Cardinal Group Pty Ltd)

Second Respondent

Procedural Posture

Appeal / Judgment After Appeal Hearing

Legal Issues

  1. 1 Whether the time limit in s 588FF(3) of the Corporations Act 2001 (Cth) applies in relation to each individual transaction the liquidator seeks to impugn
  2. 2 Whether s 588FF(3) 'otherwise provides' such that amendment powers under Civil Procedure Act 2005 (NSW), ss 64 and 65 are not 'picked up' by Judiciary Act 1903 (Cth), s 79

Ratio Decidendi

Section 588FF(3) of the Corporations Act is concerned with the period for bringing an application for orders in respect of voidable transactions and does not bar the amendment of existing pleadings in proceedings validly commenced within the limitation period, to add new claims arising from substantially the same facts against the same parties. The amendment provisions of the Civil Procedure Act 2005 (NSW) are not inconsistent with s 588FF(3) and are accordingly 'picked up' and applied by s 79 of the Judiciary Act 1903 (Cth).

Court Disposition

Appeal dismissed; leave to appeal granted

Orders

  • Leave to appeal granted.
  • Direct the appellant to file the notice of appeal in the form of the draft notice of appeal dated 9 February 2016 within 7 days.