The High Court has dismissed an appeal from the NSW Court of Appeal in another matter relating to the Octaviar investment group collapse. As with the related matters, this challenge relates to extensions of time under s 588FF of the Corporations Act 2001 (Cth) which allows a liquidator to apply to the court for a declaration that transactions made by an insolvent prior to liquidation are ‘voidable transactions’. On 19 September 2011, the respondent liquidators obtained a ‘shelf order’ extending the time for making a voidable transaction claim to 3 April 2012 (under s 588FF(3)(b)), and subsequently brought proceedings under s 588FF(1) against the appellants. On 8 June 2012, the liquidators had the shelf order reheard and extended again by Black J, without the appellants being notified. The NSWCA dismissed the appeal against this decision, holding that the court had the power to make shelf orders, that BP Australia Ltd v Brown [2003] NSWCA 216 which is said to support that power was not ‘plainly wrong’, and that no ‘re-exercise’ of the power occurred because the original order had not been discharged.

The Court unanimously held that the text of s 588FF(3)(b) could be construed to allow the court to make a shelf order to mitigate the strictness of the time limits in s 588FF(3)(a) where appropriate (at [27]–[27]), rejecting each of the appellant’s purposive and consequentialist arguments that no such orders could be made (see at [22]–[26]).