Australia: Liquidator finds new way to get extension of time to bring unfair preference claim

Last Updated: 17 April 2016
Article by Peter Bowden and Nick Poole

Key Points:

Although they should always keep time-frames very much in mind, the decision in BKA Practice Co Pty Ltd gives liquidators greater scope to find all possible time-frames in which they have to work.

Although liquidators generally are very careful to avoid error and observe any relevant time limits, mistakes can happen in the fog of war. One liquidator in that situation found a novel way to save the day by using the Supreme Court's procedural rules, outside the period allowed in the Corporations Act 2001 (Cth), to extend the time within which voidable transaction proceedings can be brought under section 588FF of the Act (BKA Practice Co Pty Ltd v Viking Group Holdings Pty Ltd [2015] VSC 699).

The Viking liquidation runs aground

The case involved an application by the liquidator of Viking Group Holdings Pty Ltd (In Liquidation) for an extension of time within which to bring voidable transaction proceedings.

Generally, a voidable transaction proceeding must be brought within three years of the relation-back day. However, the Court has the power (under section 588F(3)(b) of the Act), to extend that time period provided the liquidator's application for an extension is brought within the three year period.

In this case, the liquidator instructed its solicitors to prepare and commence proceedings against Belleli King & Associates to recover moneys as an "unfair preference" under section 588FE of the Act. The liquidator's solicitors had acted promptly to identify the defendant, prepare the originating process and supporting affidavit material and ensure that the proceedings were commenced before the expiry of the limitation period.

However, a mistake was made and the wrong defendant was named in the proceedings. The defendant was identified as the entity "trading as Belleli King & Associates". While this was partly correct, the named entity in the documentation was a company (BKA Practice Co Pty Ltd) and not the partnership (Jerry Belleli and Brendan King) that was the correct entity in the circumstances (ie. it was the partnership "trading as Belleli King & Associates" that was the creditor of Viking Group at the time of the identified transactions).

The mistake was discovered after the limitation period had expired.

Mistakes and the Victorian Supreme Court Rules

Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2005 is a procedural rule which empowers the Victorian Supreme Court to replace one party to litigation with another. It covers not just cases of misnomer, clerical error and misdescription, but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.

The issue before the Supreme Court was whether Rule 36.01 could be used to effectively extend the period within which an application for relief under section 588FF(1) could be made despite the period for making an application for extension under section 588FF(3) having expired.

The court decisions

At first instance, Associate Justice Efthim ordered the name of the defendant to the proceeding to be amended to substitute the partners trading as Belleli King & Associates for the company. He concluded on the facts that the liquidator "intended to sue the solicitors that provided the services and received payment" and that "the correct name was not used because of a mistake." In these circumstances, Associate Justice Efthim considered that the application fell to be determined by reference to Rule 36.01, under which a court can substitute the correct description of a legal entity where there was no doubt about what entity was intended to be sued.

On appeal, the appellants argued that while Associate Justice Efthim construed Rule 36.01correctly, he "fundamentally misconstrued the source and scope of the Court's power on hearing of the application." They said that the issue was whether the amendment was allowable if its effect was to commence a fresh proceeding against a newly added defendant outside the prescribed timeframe provided for under section 588FF(3)(b) of the Corporations Act.

Section 79(1) of the Judiciary Act 1903 (Cth) provides that the laws of each State or Territory, including the laws relating to procedure, shall, "except as otherwise provided by the Constitution or laws of the Commonwealth", apply to all courts exercising federal jurisdiction in that State or Territory. Once an application for an extension of time is made under section 588FF(3)(b) of the Corporations Act, the conduct of the litigation is left for the operation of the procedures of that court.

In dismissing the appeal, Justice Hargraves found that section 588FF does not deal with mistakes in the name of parties to applications made under that provision. In his view, there is no provision in the Act which does. Accordingly, section 588FF(1) does not "otherwise provide" within the meaning of section 79 of the Judiciary Act, and Rule 36.01 applies to any applications made. As it was agreed by the appellants that Associate Justice Efthim's exercise of discretion on that basis was correct, the appeal was dismissed with costs.

Lessons for liquidators

Although they should always keep time-frames very much in mind, the decision in BKA Practice Co Pty Ltd gives liquidators greater scope to find all possible time-frames in which they have to work. The flexibility shown by the Court in this case, however, was very much a discretionary one, so it doesn't give them carte blanche to be casual about time-frames. Nonetheless, for liquidators making an honest mistake, it shows that there is a way to reverse it.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.