Proceedings were commenced in the liquidation of Stanlite Pacific. This was an application to join a company in liquidation and its past and present liquidators to appeal against a proof of debt rejected pursuant to regulation 5.6.54(2).
Selex is the successor in title of OTE SpA. OTE had entered a memorandum of understanding with either Stanlite Pacific Limited or Stanlite Electronics Pty Limited. Both companies were now in liquidation with the same liquidators.
OTE submitted proofs of debt in both liquidations for the same amount and same claim. The Stanlite Pacific proof of debt was lodged in 1997. Stanlite Electronic’s proof of debt was lodged in 2000 and rejected in 2003 on the ground the memorandum was with Stanlite Pacific. OTE did not appeal in time. OTE’s proof of debt against Stanlite Pacific was rejected in 2009 on the basis there was no obligation to pay for goods and that the memorandum was with Stanlite Electronics.
The liquidators had not indicated they would reject the Stanlite Pacific proof of debt. Selex claimed the liquidators breached a duty of care in not acting with due diligence and by not taking due care in rejecting the proofs of debt.
The real question was not whether the liquidator ought to have acted consistently in rejecting the proofs of debt but whether there was a legally comprehensible claim that the liquidator owed OTE/Selex an identifiable duty of care requiring them to come to a consistent outcome with the later determined Stanlite Pacific proof of debt: . A legal source for such a duty is not clear: .
Four matters were critical in that it was difficult to formulate the new claim as it did not integrate with statutory duties, Selex refused to particularise its novel claim, the prospect of recovery of monies against Stanlite Electronics was slight and Selex gave no explanation for its delay in seeking to appeal against the rejection of its proofs of debt: . It would be a futile inappropriate use of court resources to allow the joinder of claims against Stanlite Electronics and its past and current liquidators: . Granting an extension of time is altering a substantive right and granting an amendment is regulating a procedural right: . The amendment was similar to granting an extension of time. It was a novel claim that appeared to raise a significant new evidentiary field in already complex litigation: .
The Notice of Motion was dismissed. Selex was ordered to pay the respondent’s costs.
Relevant paragraphs of Ford
[24.504], [26.300], [26.350], [27.080], [27.183], [27.44], [27.441], [27.450]