Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450

Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450

Directors whose liability to indemnify the Commissioner under s 588FGA may be triggered by the making of orders in s 588FF(1) proceedings are entitled to procedural fairness. Failure by liquidators to give notice of extension applications under s 588FF(3)(b) affecting such directors constitutes denial of natural justice and justifies orders being set aside or varied to protect those rights.

Jurisdiction
Australia
Judgment Date
19 December 2014
Procedural Posture
Appeal / Leave to Appeal and Appeal Disposition
Outcome
Leave to appeal granted; appeal otherwise dismissed; order varied; application remitted.
Legal Topics
['winding Up' 'voidable Transactions' 'procedural Fairness' 'extension of Time' 'natural Justice' 'statutory Indemnity' 'ex Parte Proceedings']
['corporations Law'] ['winding Up' 'voidable Transactions' 'procedural Fairness' 'extension of Time' 'natural Justice' 'statutory Indemnity' 'ex Parte Proceedings']

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Procedural Posture

Appeal / Leave to Appeal and Appeal Disposition

Legal Issues

  1. 1 ['Whether directors affected by s 588FGA liability are entitled to notice and an opportunity to be heard on a liquidators’ extension-of-time application under s 588FF(3)(b)' "Whether breach of duty of candour occurred in the ex parte application for the 'shelf' order" 'Whether procedural fairness requires setting aside of the ‘shelf’ order as it affects certain respondents']

Ratio Decidendi

Directors whose liability to indemnify the Commissioner under s 588FGA may be triggered by the making of orders in s 588FF(1) proceedings are entitled to procedural fairness. Failure by liquidators to give notice of extension applications under s 588FF(3)(b) affecting such directors constitutes denial of natural justice and justifies orders being set aside or varied to protect those rights.

Court Disposition

Leave to appeal granted; appeal otherwise dismissed; order varied; application remitted.

Orders

  • ['Grant leave to appeal.' 'Direct that a notice of appeal in the form of the draft in the white folder be filed within seven days.' 'Vary the order made by Young AJ on 14 June 2013 (as corrected on 12 August 2013) in respect of Order 1 of the orders made by Ward J on 19 September 2011 by adding specified limitation...