The High Court has allowed two appeals arising out of a New South Wales Court of Appeal decision relating to insolvency, voidable transactions, and the extension of time within which parties can bring proceedings. After the Octaviar investment group went into insolvency, the liquidators obtained an extension of the ordinary time limit to make applications to void the company’s dealings under s 588FF of the Corporations Act 2001 (Cth). The liquidators then obtained a further extension under r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that allows the court to vary an order made when one party is absent. The NSWCA held by majority that the extension under the UCPR was valid, even though the Corporations Act only contemplates a single extension.

The High Court unanimously held that no further extension could be granted once the period determined by the application of s 588FF(3)(a) had elapsed, and the UCPR could not be used to extend the time. The Court rejected the NSWCA majority’s reading of an analogy with Gordon v Tolcher [2006] HCA 62 (see at [12]ff), concluding at [22] that

Section 588FF(3) provides that an application under s 588FF(1) “may only be made” within the periods set out in pars (a) and (b) of s 588FF(3). The phrase ‘may only be made’ should be read with both paragraphs. So understood, the term ‘may only’ has the effect of defining the jurisdiction of the court by imposing a requirement as to time as an essential condition of the right conferred by s 588FF(1) to bring proceedings for orders with respect to voidable transactions. An element of that right is that it must be exercised within the time specified. This is what is conveyed by Gordon v Tolcher.

The only power held by the Court to make a variation was given by s 588FF(3)(b) and that could not be supplement or varied by the rules of procedure in the particular court in which the application was made (at [23]).