In the matter of Norman Nominees Pty Ltd (in liq) & Ors v Zervos Pty Ltd & Ors

Occasionally it is the case that an important judgment of the Court is not immediately identified as meeting the criteria for reporting in the Queensland Reports. Such are the circumstances of this case which was handed down by Dalton J in November 2011. It will now be reported in this year’s edition of the Reports. The Editors are grateful to Justice Margaret Wilson for drawing this case to their attention.

By an application to amend a claim and a statement of claim, the plaintiff sought to add claims that the fourth and fifth defendants repay money on the basis that they received the money as unfair preferences or through uncommercial transactions within the scope of the Corporations Act. The claims were outside the times permitted for such action in the Act. Dalton J noted that, on the institution of Commonwealth proceedings in a State Court, the procedural regulation of the matter is dealt with by the State law which is picked up by s 79 of the Judiciary Act. The relevant procedural rule was UCPR 376, however, the difficulty for the applicant/plaintiff was that the causes of action did not arise out of the same set of facts. Her Honour considered the application of s 81 of the Supreme Court Act 1981 which had been amended after the decision in Draney v Barry where it had been identified as a source of power to allow an amendment to add a cause of action out of time free of the restrictions in the rules. The question which then arose was which of s 81 of the Supreme Court Act or UCPR 376 was the appropriate power. That question turned on the scope of UCPR 376 which was, in turn, dependent upon the meaning of the phrase “relevant period of limitation” in the rule. Her Honour held that the expression was not limited to a period of limitation under the Limitation of Actions Act with the result that the s 81 could not apply to permit the amendment of a statement of claim to add the Commonwealth statutory actions.