Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2006] VSC 306

What the court decided

Aussie Vic Plant Hire Pty Ltd ('Aussie Vic') appealed from Master Efthim's order dismissing its application to set aside the demand of Esanda Finance Corporation Ltd ('Esanda') [1]. The Master extended the time for compliance until 4 July 2006, and no further extension was obtained [1].

At the hearing on 21 July 2006, counsel for Esanda indicated that he wished to contend, among other things, that the Court of Appeal's decision in Buckland Products Pty Ltd v Deputy Commissioner of Taxation [2003] VSCA 85 ('Buckland Products') bound the Court to hold the appeal incompetent, because that time had expired [2]. Counsel for Aussie Vic sought a week's adjournment, and during that week the interlocutory process was filed seeking the extension nunc pro tunc (now for then) under sections 459F(2)(a) and 1322(4)(d) of the Corporations Act 2001 [3].

Whelan J heard Esanda's contention as a preliminary point, before any hearing on the merits of the appeal [4], [11]. Aussie Vic submitted that no such extension had been sought in Buckland Products and that it did not prevent one [5].

Whelan J cited Phillips JA, with whom Chernov and Eames JJA agreed, as saying that if the company in that case wished to appeal, an extension had to be obtained unless its appeal was heard and determined before the time for compliance otherwise fixed expired, and that once the consequence prescribed by section 459F(1) attached, it remained attached [6]. This consequence, Whelan J explained, is a deemed failure to comply [8].

Whelan J thought he was bound by Buckland Products to find that the appeal must fail: the point was not whether an extension can or should be granted, but that the consequence had already attached and no order he made could or should purport to undo it [9].

In the alternative, even assuming an extension nunc pro tunc could be granted consistently with the Act, it seemed to Whelan J that the Court ought not to grant one [10]. Citing Hartley Poynton Ltd v Ali (2005) 11 VR 568, 606, his Honour said that, where they are needed to overcome procedural irregularities and difficulties, orders nunc pro tunc are appropriate, but not where their effect would be to alter the parties' substantive rights [10]. Using one to render undone what had already been done would, he thought, run directly contrary to Buckland Products [10]. Thinking the preliminary point a good one, Whelan J dismissed the appeal and the interlocutory process [11].

Why it matters

Whelan J considered himself bound to treat the deemed failure, once the time for compliance had expired, as one that no order of his could or should purport to undo [9]. Solicitors for an appellant from such a refusal need to diarise when that time ends and, unless the appellant's appeal will be decided first, obtain any further extension before then, not merely apply for one. That last point is my comment on Phillips JA's statement that an extension had to be obtained [6]; Whelan J did not decide the case of an application filed in time but undecided at expiry.

Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.