This was an application by a liquidator under s 588FF(3)(b) of the Corporations Act 2001 for an extension of time (or what is sometimes called a ‘shelf order’) in which to bring proceedings under section 588FE. The respondents were potential parties against whom the liquidator claimed to be considering commencing proceedings. Relying (amongst others) on an earlier decision of the Supreme Court of Queensland – Clout v Andi-Co Australia Pty Ltd (2013) 96 ACSR 512 – a case in which Mr Johnstone had appeared for the (successful) applicant/liquidator, the applicant in Baskerville sought a similar extension of six months. An issue that arose in the course of argument was whether without prejudice privilege applied to a statement of the liquidator’s solicitor made in correspondence which was plainly inconsistent with the liquidator’s contention that he was no able to commence proceedings within time. Martin J found the statement to be admissible under the well-known exception to without prejudice privilege – namely that it does not apply where the maintenance of it would mislead the Court, and held that the liquidator’s evidence did not justify the orders sought. The application was dismissed with costs.
Christopher Johnstone appeared for the second and fourth respondents, instructed by Taylor David Lawyers.
The judgment is published here.