Cavetina Pty Ltd, Re [1993] QSC 382

. R ;).\q~ .· . . . ~rfr State Reporting Bureau- .~illS.- ,_r_ f:fl.ill_ : TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vestea in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J No 822 of 1993 IN THE MATTER OF THE CORPORATIONS LAW and IN THE MATTER OF CAVETINA PTY LTD (ACN 010 501 310) BRISBANE .. DATE 04/11/93 .. ORDER 1 REViS:::O COPIES ISSUED State r::•.::;Jc,~;;:g Bureau j DzJa rI I{ I 9J -- 1 of 5 -- 041193 cml (Derrington J) HIS HONOUR: This is an application under s 459G of the Corporations Law for an order that the statutory demand of the respondent served on the above company on 5 October 1993 be set aside. A preliminary point is taken that the application was served out of time. The Act provides by s 459G(2) and (3) of that section that the application be served on the respondent who gave the statutory notice at the address set out in the statutory notice within the prescribed time. The section defining the time reads as, follows: "An application is made in accordance with this section only if, within those 21 days: (a) an affidavit supporting the application is filed with the Court; (b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company." It is agreed that the expiration of the limitation period, in accordance with that provision, occurred at midnight on 26 October 1993, and there is undisputed evidence that the material was not received at the address shown in the statutory notice until 28 October 1993. It was received on 28 October 1993 although the mail was not opened until the following morning. There is no question ~that th~~ application was filed within the statutory period, namely, 25 October 1993 and posted on that day, but there is also evidence that in the ordinary course of mail it would not be received at the address to which it was sent for two days. 2 •' 10 20 30 40 50 60 -- 2 of 5 -- .. 041193 cml (Derrington J) • In those circumstances, it is unarguable, and learned counsel for the applicant did not persist in any argument to suggest, .. that the service was. not out of timer but the applicant .now applies for an extension of time under s 1322(4)(d) of the Act which reads as follows: 10 1322(4) [Court may make orders]. Subject to the following provisions of the section but without limiting the generality of any other provision of this Law, the Court may, on application by any interested person, make all 20 or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Law or in relation to a corporation (including 30 an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing any such an act, matter or thing or instituting or taking such a proceeding; 40 and may make such consequential or ancillary orders as the Court thinks fit. 1322 (6) [Requirements for making orders]. The Court shall not make an order under this section unless it is 50 satisfied: (c) in every case - that no substantial injustice has been or is likely to be caused to any person." Learned counsel for the respondent has indicated that he is 60 3 -- 3 of 5 -- 041193 cml (Derrington J) unable to say that there is any likely prejudice or injustice that might be suffered as the result of the extension of time that might be made in this case, which amounts to two days and, considering the fact that the proceedings were filed and posted within time and received so shortly after the expiration of the limitation period, it would be difficult to see how any injustice could be caused by such an indulgence. The only argument that learned counsel for the respondent seriously raises is a proposition that the limitation required by s 459G is not amenable to any extension by the Court because of the use of the word "only" in its context. However, the use of that word is made necessary by the way in which the limitation is expressed for_ without it the limitation would not be fully and exclusively __ e_J;C~essed as a ~imitation at all. Consequentially there is no reason to feel that the use of that word is in some ambiguous way designed to diminish the power of the Court to grant an extension of time where the justice of the case demands it. Moreover, it would be difficult to understand any good reason why such an impediment to justice by the grant of an extension of time in a suitable case should be intended. Consequentially, Ehe power of the- ·court to extena time is not removed by that provision, and the power may therefore be exercised in this case, there being no good reason why the extension should not be granted subject to appropriate conditions as to costs and any other consequential factors. 4 10 20 30 40 50 60 -- 4 of 5 -- 041193 cml (Derrington J) It is ordered that the period during which the section requires that the material be served upon the respondent be extended to 29 October 1993. 5 10 20 30 40 50 60 -- 5 of 5 --