Doyle v Cooper - Liquidators' Application to Amend Court Orders Dismissed

Original Word Document (112.9 KB) Federal Court of Australia

Doyle v Cooper as Liquidator of NQ Minerals PLC (in liq), in the matter of Doyle (No 3) [2026] FCA 472

| File number(s): | QUD 401 of 2025 |

| Judgment of: | COLLIER J |

| Date of judgment: | 21 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – application to amend Court Orders pursuant to r 39.05 Federal Court Rules 2011 (Cth) and/or inherent jurisdiction of the Court – earlier Orders refused extension of time for compliance with bankruptcy notice – where creditors unable to present petition due to statutory time limit – where creditors sought amendment of Orders to extend time for compliance with bankruptcy notice – whether Orders made reflected intention of the Court – whether slip rule applies – whether Court should exercise discretion to amend Orders |

| Legislation: | Bankruptcy Act 1966 (Cth) ss 41(6A), (7), 43, (1)(a), (b), 44, (1)(c)

Federal Court (Bankruptcy) Rules 2016 (Cth) rr 4.04, (1)(a)

Federal Court Rules 2011 (Cth) rr 1.21, 39.05, (c), (e), (f), (h) |

| Cases cited: | Doyle v Cooper as Liquidator of NQ Minerals PLC (in liq), in the matter of Doyle (No 2) [2026] FCA 117

Flint v Richard Busuttil & Co Pty Limited (2013) 216 FCR 375; [2013] FCAFC 131

Gould v Vaggelas (1985) 157 CLR 271; [1985] HCA 75

Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554; [2006] FCAFC 149

Hunt Leather Pty Ltd v Transport for NSW [No 2] [2026] HCA 4

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 1 NTLR 17 |

| Division: | General Division |

| Registry: | Queensland |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | General and Personal Insolvency |

| Number of paragraphs: | 61 |

| Date of last submission/s: | 17 April 2026 |

| Date of hearing: | 13 April 2026 |

| Counsel for the Applicant: | Mr F M Douglas KC |

| Solicitor for the Applicant: | JCL Pty Ltd |

| Counsel for the Respondents: | Mr P P McQuade KC with Ms S Connolly |

| Solicitor for the Respondents: | Mills Oakley Lawyers |
ORDERS

| QUD 401 of 2025 |
| IN THE MATTER OF WALTER DOYLE |
| BETWEEN: | WALTER DOYLE

Applicant | |
| AND: | PAUL COOPER AND PAUL APPLETON AS JOINT LIQUIDATORS OF NQ MINERALS PLC (IN LIQUIDATION)

First Respondent

NQ MINERALS PLC (IN LIQUIDATION)

Second Respondent | |

| order made by: | COLLIER J |
| DATE OF ORDER: | 21 April 2026 |
THE COURT ORDERS THAT:

1. The Amended Interlocutory Application lodged by the respondents on 14 April 2026 be dismissed.

2. The respondents pay the costs of Mr Walter Doyle of and incidental to the Interlocutory Application lodged by the respondents on 16 March 2026 and the Amended Interlocutory Application lodged by the respondents on 14 April 2026, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1 Before the Court is an interlocutory application filed by Mr Paul Cooper and Mr Paul Appleton as the Joint Liquidators of NQ Minerals PLC (in liquidation), and NQ Minerals PLC (in liquidation). The Liquidators and NQ Minerals, who were the respondents in the substantive proceeding, seek to vary the Orders made by me on 18 February 2026 in Doyle v Cooper as Liquidator of NQ Minerals PLC (in liq), in the matter of Doyle (No 2) [2026] FCA 117 (substantive judgment) on the basis of the slip rule pursuant to r 39.05 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) and in the inherent jurisdiction of this Court. The applicant in the substantive proceeding and the respondent in this application is Mr Walter Doyle.

2 For consistency with the material before me and with the substantive judgment, where relevant in this judgment I will refer to the Liquidators and NQ Minerals as the respondents and refer to Mr Doyle as the applicant.

3 For the reasons that follow, the interlocutory application is dismissed with costs.

Background

4 A more complete summary of the background of Mr Doyle’s dispute with the respondents appears in [3]-[16] of the substantive judgment which I will not restate in these reasons. For the purposes of the present application, I adopt (in part and with modifications) the summary of relevant facts in [4]-[15] of the respondents’ written submissions dated 27 March 2026, which are not disputed by Mr Doyle subject to his appeal of the substantive judgment.

The respondents caused Bankruptcy Notice BN276396 to be issued against Mr Doyle on 4 March 2025. This Bankruptcy Notice was (subject to Mr Doyle’s appeal on this point) deemed to be served on Mr Doyle on 3 June 2025, which means that the date for compliance with it was, without an extension of time, 25 June 2025.

On 23 June 2025, Mr Doyle filed an originating application seeking, inter alia, to set aside the Bankruptcy Notice (Originating Application). In the Originating Application, Mr Doyle also sought an interim order pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) extending the time for compliance with the Bankruptcy Notice (Application for Extension).

On 8 October 2025, the hearing of the Originating Application commenced before me. The parties did not have sufficient time to address the Court with closing submissions and so the matter was adjourned until 17 November 2025.

On 17 October 2025 my chambers were informed that Mr Doyle’s Senior Counsel was not available to proceed with the part-heard hearing on 17 November 2025.

On 22 October 2025, there was a case management hearing before me to hear the parties in respect of a date for completion of the submissions. At that case management hearing, 17 December 2025 was identified as a date when Counsel on both sides were available. Following the case management hearing, the matter was listed for closing submissions on 17 December 2025.

The parties returned before me for closing submissions on 17 December 2025. Reply submissions by Mr Doyle were handed up at that hearing and then filed on 8 January 2026.

During the hearings, Mr Doyle submitted that the Application for Extension under s 41(6A) should be granted “having regard to the strength of Mr Doyle’s challenge to the Bankruptcy Notice”.

The respondents opposed the Application for Extension on the basis that:

• the applicant’s purported counter-claim, set-off or cross-demand cannot succeed, and it ought to be inferred that it is not genuine; and

• it ought to be inferred that the applicant has been taking steps to attempt to avoid satisfying the UK judgment and also to remove himself from the bankruptcy jurisdiction of the Court, based upon the applicant’s purported change in residency after the delivery of the UK judgment and the applicant’s resignation from directorships since the issue of the Bankruptcy Notice.

5 It should be noted that Mr Doyle in his Originating Application applied for an injunction on the ground of a counter-claim, set-off or cross demand but did not apply for an order setting aside the B ankruptcy N otice on the same ground. This meant that the automatic extension of time to comply with the Bankruptcy Notice under s 41(7) was not enlivened, and the parties instead relied on the discretionary power under s 41(6A) of the Bankruptcy Act.

6 In the hearings of the Originating Application before me, there was a critical omission by the respondents. Relevantly, s 44 of the Bankruptcy Act provides that:

44 Conditions on which creditor may petition

(1)     A creditor’s petition shall not be presented against a debtor unless:

…

(c)     the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

…

(emphasis added)

7 In opposing Mr Doyle’s Application for Extension, the respondents did not raise, and the Court was unassisted by any submissions about the risk, to the respondents, that the time for presenting a creditor’s petition based upon non-compliance with the Bankruptcy Notice under s 44(1)(c) would expire prior to the delivery of judgment.

8 As has become plain, in the absence of an extension of time to comply with the Bankruptcy Notice, the 6-month period for which the respondents were entitled to present a creditors’ petition under s 44(1)(c) expired on 25 December 2025.

9 On 18 February 2026, I handed down the substantive judgment whereby I ruled entirely in favour of the respondents. I made Orders dismissing Mr Doyle’s Originating Application, and (consistently with the respondents’ submissions at that time) refused the interim and final orders sought by Mr Doyle, including his Application for Extension, in the following terms:

1.     The originating application lodged on 23 June 2025 (Originating Application) be dismissed.

2.     The interim and final orders sought by the applicant in the Originating Application be refused.

3.     The applicant pay the costs of the respondents of and incidental to the Originating Application, such costs to be taxed if not otherwise agreed.

The Application before the Court

10 On 16 March 2026 the respondents lodged their interlocutory application seeking the following Orders from the Court:

1.     Pursuant to the slip rule in the inherent jurisdiction of the court and rule 39.05 of the Federal Court Rules 2011 (Cth) (FCR), the orders made by the Honourable Justice Collier on 18 February 2026 be varied by inserting the following in place of order 2:

“2.     Pursuant to s 41(6A) of the Bankruptcy Act, the time for compliance with the bankruptcy notice dated 4 March 2025 be extended to the date which is the minimum necessary to enable the presentation of a creditor’s petition, being to 1 October 2025 or in the alternative up to 3 days after the date of the variation of these orders.

2A.     The interim and final orders sought by the applicant in the Originating Application otherwise be refused.”

2.    Such further or other order as this Court deems appropriate.

3.    Costs.

11 On 24 March 2026 I held a case management hearing with the parties, where Mr Doyle’s representatives indicated that Mr Doyle did not oppose the filing of the interlocutory application but opposed the application on substantive grounds. By Orders made on the same day I granted leave to the respondents to file their interlocutory application.

12 The interlocutory application was set down for hearing on 13 April 2026.

Amended interlocutory application and additional submissions

13 At the start of the hearing, Counsel for the respondents indicated that the respondents wished to amend the orders they sought to remove the reference to 1 October 2025 because, as at the date of the hearing, there was no longer any utility for the date of compliance to be extended to 1 October 2025. In particular I note the following exchange:

MR McQUADE: Your Honour will see, if your Honour can go to the form of orders, in paragraph 2, there are two different dates for the extension. You see it being to 1 October 2025, or in the alternative, up to three days. Do you see that, your Honour? So that has been addressed by Mr Tiplady in his affidavit. Depending on when this application could be heard and determined was – would have influenced the date that the extension on my clients – I say the liquidator’s behalf, be extended to. So can you presently ignore being to 1 October 2025, your Honour, because if that was the date, the six-month period would have expired on 1 April, so it wouldn’t have any utility.

…

MR McQUADE: … So you can ignore 1 October, so the order that is sought would be three days after the date of variation of these orders, so if your Honour did vary them on Thursday, it would be three days after that.

…

HER HONOUR: I don’t suppose you’ve got a hard copy of your amendment you’re seeking to the interlocutory application?

MR McQUADE: I was going to – I was just going to do that now, your Honour, hand that up, it’s just my copy. I can provide that to Mr Douglas so your Honour knows. Well, I will just read it out to your Honour. So in the second line, it’s got the bankruptcy notice dated 4 March 2025 be extended to the date, which is three days after the date of the variation of these orders.

HER HONOUR: Sure.

MR McQUADE: So on Thursday if your Honour is going to deliver the decision, and if your Honour determined to vary the orders, it would be three business days after that, which would be Tuesday.

HER HONOUR: Maybe it should be three business days after the date of the variation of these orders then, to make it very clear.

MR McQUADE: Okay.

HER HONOUR: I mean, I don’t want to make a meal of this, Mr McQuade, more than I already have. And I’m aware that days may very well be business days, but I just don’t want to go down that path. I don’t even want to spend any time looking at it. Three business days is clear.

(transcript 13 April 2026 pages 8-9, emphasis added)

14 At this stage, Counsel for Mr Doyle did not indicate any opposition to the amendment proposed:

MR McQUADE: We understand that, your Honour. We can get that typed up and emailed to your associate.

HER HONOUR: And Mr Douglas.

MR McQUADE: Mr Douglas’ instructing lawyers.

HER HONOUR: Instructing solicitors.

MR McQUADE: Yes. So that’s the explanation for the order, your Honour. So - - -

HER HONOUR: All right. Can I just check, Mr Douglas, is there anything you want to say about that at this stage?

MR DOUGLAS: No, your Honour.

(transcript 13 April 2026 page 9)

15 The topic whether orders sought by the respondents should read “three days” or “three business days” was briefly revisited after the lunch adjournment, where I formed the view that an amended interlocutory application should be filed by the respondents to ensure that the court file accurately reflected the parties’ intentions in the litigation:

MR McQUADE: Yes. And the other point I was going to provide to your Honour’s associate with the order was, I took your Honour to just before the luncheon adjournment, which was in the submissions, including the business days.

HER HONOUR: Yes.

MR McQUADE: And I understand that’s going to be sent to your associate, but it hasn’t already, as well as my instructing – sorry, my learned friend’s instructing lawyer. So it will just be a form of order, which includes business days. So your 25 Honour has the exact - - -

HER HONOUR: Well, isn’t this by way of an amended originating application, Mr McQuade?

MR McQUADE: Well, it is to the extent to which it includes business days.

HER HONOUR: No, no, no. Again, I really just want to get on with our hearing today, but the order which is being sought in the originating – sorry, in the interlocutory – not originating application – the interlocutory application, which is currently before the court is different to what is now being sought; correct?

MR McQUADE: Yes.

HER HONOUR: So I’m just wondering is it really – I’m just wondering whether I should require you to file, or your instructions was to file an amended interlocutory application, but unless, Mr Douglas, is there anything you want to say about this or are you content for this matter simply to be dealt with as has been dealt with this morning and the variation, for want of a better description, which has now been sought in relation to the order, be simply something which has been drawn to the attention of the court?

MR DOUGLAS: Your Honour, we have very real difficulties with the position which is being adopted, and I don’t want to do anything which would compromise our position in relation to that. We say that your Honour has … that my learned friends and his clients took a particular position at the hearing. They opposed our application for an extension, but they’re now saying they made a slip, and they want to turn it around, and they want to somehow reactivate our claim for an extension to get that and otherwise have our claim dismissed. Now, that - - -

HER HONOUR: I understand all of that.

MR DOUGLAS: So it’s extraordinary, your Honour. I’ve never encountered that before, but the idea that they should file their own application seems to us also to be contrary to the principles of - - -

HER HONOUR: No, I’m talking about the interlocutory application currently before the court.

MR DOUGLAS: Yes.

HER HONOUR: So the interlocutory – so all I’m saying is – sorry. Just a moment. The interlocutory application currently before the court, filed on 16 March 2026 at 8.52.48 am - - -

MR DOUGLAS: Yes, your Honour.

HER HONOUR: - - - Eastern Standard Time, seeks an order, which is no longer being sought.

MR DOUGLAS: But they’re seeking a new order.

HER HONOUR: They’re seeking a different order.

MR DOUGLAS: Yes.

HER HONOUR: So all I’m saying is, I’m just speculating whether an amended interlocutory application needs to be filed by the liquidators setting out, in proposed order 2, what they actually want.

MR DOUGLAS: Yes, your Honour. I think that would be appropriate.

HER HONOUR: I do too. I’m sorry, Mr McQuade. I think so too. So I’m prepared to grant leave for that to happen. The impression I have from Mr Douglas is he wouldn’t oppose that.

MR DOUGLAS: Yes.

HER HONOUR: So - - -

MR DOUGLAS: I’m reserving my decision on that.

HER HONOUR: Yes. All fine. So in my – in the spirit of, “Everything needs to go on the court file and be clear for the benefit of anybody who is going to read this material later”, I think it’s best for an amended interlocutory application to be filed setting out what your client actually seeks now in place of order 2.

MR McQUADE: All right. I think the ability of the court to make the order was within what’s in the existing draft – but I will comply with what your Honour has indicated.

HER HONOUR: Yes. But the thing is, it’s not even – I’m not being critical, Mr McQuade, of you or anybody else. I’m simply saying: what’s in the submissions is still not what’s being sought now, is it?

MR McQUADE: All right.

HER HONOUR: In the submissions – so we’ve now added in business days, which I understand that you are content to accept. Fine. I simply think this is the case which is being met by the other side – by Mr Doyle. So we need – it needs to be clear. So I will grant leave for the respondents – I will call them “the respondents”, which is your clients – to file an amended interlocutory application by – how quickly can that be done?

MR McQUADE: Just tomorrow morning. By 12 o’clock tomorrow, your Honour.

HER HONOUR: By midday, 14 April 2026 – noting that the terms of the amended interlocutory application, which I think everybody is familiar with, are being addressed by you, Mr McQuade - - -

MR McQUADE: That’s correct.

HER HONOUR: - - - and Mr Douglas.

MR McQUADE: That’s correct.

HER HONOUR: Mr Douglas knows what is in the - - -

MR DOUGLAS: I do.

HER HONOUR: - - - proposal. Good. Thank you. That way it regularises what’s before the court.

(transcript 13 April 2026 pages 25-27, emphasis added)

16 Having heard the parties in Court, my impression was that the amendment of the phrase “three days” to read “three business days” was uncontroversial. While I accept that, upon a review of the transcript, Counsel for Mr Doyle had indicated that he was “reserving [his] decision” on whether he would oppose the grant of leave to the respondents to file an amended interlocutory application, Counsel for Mr Doyle did not, at that stage, give any indication that he wished to make additional submissions regarding any of the proposed amendments to the interlocutory application.

17 By Orders dated 13 April 2026 I granted leave to the respondents to file an amended interlocutory application. That amended interlocutory application was filed on 14 April 2026, and was as follows:

1.     Pursuant to the slip rule in the inherent jurisdiction of the court and rule 39.05 of the Federal Court Rules 2011 (Cth) (FCR), the orders made by the Honourable Justice Collier on 18 February 2026 be varied by inserting the following in place of order 2:

“2.     Pursuant to s 41(6A) of the Bankruptcy Act, the time for compliance with the bankruptcy notice dated 4 March 2025 be extended to the date which is 3 business days after the date of the variation of these orders.

2A.     The interim and final orders sought by the applicant in the Originating Application otherwise be refused.”

1.     Such further or other order as this Court deems appropriate.

2.     There be no order as to Costs.

18 At 10.00am on 15 April 2026 my associates received the following email from Mr Doyle’s representatives:

Dear Associate

…

Separately, at the hearing on Monday, the respondents provided draft orders to the applicant regarding amendments to their interlocutory application. The applicant agreed, in principle, for those draft orders to be the subject of an Amended Interlocutory Application by the respondents. That application was filed late yesterday and is now a modified version of what the order stated.

Respectfully, the applicant has had no opportunity to address the amended relief now sought in preparing for the application at any time, as the applicant's supplementary submissions (filed and served today) … do not address the additional relief sought by the respondents in the Amended Interlocutory Application.

Accordingly, the applicant proposes to deliver short submissions on the consequences of the submissions made today in light of the Amended Interlocutory Application received by email late yesterday.

In this respect, the applicant seeks Her Honour's permission to file a further submission, limited to 2 pages in length, to be delivered by 10am 16 April 2026.

19 Having compared the two versions of the interlocutory application and on the understanding that the substitution of the phrase “three days” with the phrase “three business days” was uncontroversial, I understood the reference in the email to “the amended relief now sought” to mean the substitution of the phrase “Costs” with “There be no order as to Costs” in proposed order 3. On that basis I allowed Mr Doyle to file an additional submission in the terms sought.

20 At 8.03pm on 15 April 2026 my associates received the following email from the respondents’ representatives:

Dear Associate

…

The Respondents oppose the orders sought by the Applicant and object to the reliance on any further submissions filed by the Applicant in respect of the Amended Interlocutory Application. It is noted that:

1.    The Applicant did not seek the Respondents’ consent as to the orders sought to file further submissions. We received at email at 9:43am this morning serving the Applicant’s submissions filed today (being 11 pages in length – longer than the submissions filed in respect of the Respondents’ slip rule application) with a copy of the email Mr Carr intended to send to you;

2.    Without having had an opportunity to respond to Mr Carr, he sent his email to you at 10:01am. No orders have been proposed for the Respondents to have the opportunity to file reply submissions in the event that the orders were made;

3.    The orders sought in the Amended Interlocutory Application filed yesterday, are those orders which are included in the Respondents’ submissions filed on 27 March 2026 (at page 10) save for the insertion of the word “business”;

4.    The Applicant has had the opportunity to respond to the orders sought by the Respondents, as now reflected in the Amended Interlocutory Application (save for the insertion of the word “business)”, when filing his submission in reply filed on 8 April 2026;

5.    Given that Her Honour intends to deliver judgment on Tuesday, 21 April 2026, whether the word “business” remains or whether it is removed by a Further Amended Interlocutory Application being filed – that would not change the date upon which the Respondents would be required to present a creditor’s petition (should the relief be granted); and

6.    For the reasons above, the relief sought in the Amended Interlocutory Application could not come as a surprise to the Applicant – he has already had an opportunity to address the relief sought. The Applicant did not raise any issue at the hearing on 13 April 2026 about providing further submissions.

We would be grateful for this correspondence to be brought to Her Honour’s attention, and the Respondents’ objections recorded.

21 At 8.18pm my associates received the following email from Mr Doyle’s representatives:

Dear Associate

1.    We refer to the email just received.

2.    Respectfully to our opponent, we observe:

a.    The Applicant has no objection to the Respondents having further a further day to provide submissions in response to the 2-page submission as ordered. That should have been included in our draft and we apologise for that.

b.    We disagree with the comments regarding the Amended Interlocutory Application. That relief by the Amended Interlocutory Application ought to have been filed long ago and not sprung on the Applicant at the hearing after its written submissions had gone in and after the actual hearing commenced. To not allow the Applicant to file short further submissions given the lateness in seeking those orders would, in our respectful submission, be unjust.

c.    Despite what is said, the Applicant has not had the opportunity to respond to the Amended Interlocutory Application and allowing 1 extra day and with the Respondents having the right to file responsive submissions, with respect, is consistent with the overarching purpose.

3.    We would be grateful for this correspondence to be brought to Her Honour’s attention.

22 Given the correspondence received, I directed, through my associate, that the parties appear before the Court for case management at 9.30am on 16 April 2026. The following exchange took place at the case management hearing:

HER HONOUR:

…

My understanding is – and I’ve now seen the amended interlocutory application which I requested to be filed. There’s now – there’s a new provision – a new paragraph in there which the respondents have sought that there be – no order be made as to costs. Yes. Apparently, that was in the written submissions which were filed, but it wasn’t in the original interlocutory application, so it’s new. My understanding is that Mr Douglas’ client does not take issue with the new order referable to no order – or the new paragraph referable to no order as to costs, but wants the opportunity to make some short submissions in relation to it. That’s correct, is it not, Mr Douglas?

MR DOUGLAS: Well, I think, actually, they were seeking a new order, weren’t they, your Honour, in relation to - - -

HER HONOUR: Yes, I – yes. I’m not disputing that. There’s a new order that’s being sought in the amended interlocutory application that there be no order as to costs, and you want to be able to make some short written submissions about that. Is that correct?

MR DOUGLAS: No. We wish to make submissions about the form of the order which they’re seeking, your Honour. I thought we made that very clear into the transcript, at page 25, lines 33, through to page 26, at about point 10.

…

HER HONOUR: … [proposed Order] 3 is now different. Originally, it said “costs”. Now, it said, “There be no order as to costs”, and my understanding is that – well, perhaps my understanding is wrong. Mr Douglas, you have a concern about the – it’s not just the costs?

MR DOUGLAS: It’s not just the costs, your Honour…

…

HER HONOUR: So perhaps you could tell me, Mr Douglas, now, what you want now.

MR DOUGLAS: Your Honour, we just wish to have the opportunity to address some short submissions in relation to the nature of the relief which we’re seeking.

(transcript 16 April 2026 pages 3-4)

23 Counsel for Mr Doyle later elaborated on why he wished to make additional submissions:

MR DOUGLAS: Well, your Honour, the situation is that the proposed order 1 sought an extension of time pursuant to section 41(6)A of the Bankruptcy Act. As sought originally, the period was for the minimum necessary to enable the presentation of a creditor’s petition, being to 1 October 2025 or any alternative, up to three days after the date of the variation of these orders. The amendment strikes through much of that text and seeks an extension only to the date which is three business days after.

The change in the text and the relief sought without reference to presentation cannot disguise the obvious intent to, in effect, extend the time period in section 44(1)C, and we want to address that and how they have amended their order because what – obviously, what is happening here is they’re seeking to get an amendment so as to enable an extension of the period within which the bankruptcy notice expires as distinct – so as to enable them to file a creditor’s petition, because they can’t get an extension of the time to file a creditor’s petition.

HER HONOUR: I’m sorry, I thought that was the idea all along.

MR DOUGLAS: It may be, but it is – it makes more transparent what their obvious intent is, your Honour, and we just wish to address it in a couple of pages, that’s all.

(transcript 16 April 2026 pages 6-7, emphasis added)

24 It appears now that Mr Doyle’s representatives took issue with the fact that the amended interlocutory application omitted the words “the minimum necessary to enable the presentation of a creditors petition” and that is the topic on which the additional submissions are directed. While I was, and am still, of the view that these objections could and should have been raised, or at least foreshadowed, at the hearing of 13 April 2026, I made Orders at the case management hearing on 16 April 2026 in the following terms:

1.     Leave be granted for the applicant to file further supplementary submissions, referable to the amended interlocutory application filed by the respondents on 14 April 2026, by midday 16 April 2026, limited to two pages in length.

2.     The respondents file any further supplementary submissions in reply, by 2.00pm 17 April 2026, limited to two pages in length.

3.     Costs be reserved.

25 It was not in dispute that the legal representatives for the parties could meet these dates for filing of submissions.

26 Before turning to the form of the orders sought by the respondents, it is appropriate to first consider whether the slip rule applies in terms of r 39.05 of the Federal Court Rules or alternatively the inherent jurisdiction of the Court.

The Parties’ Submissions

27 The submissions of the respondents referable to whether the Orders of the Court of 18 February 2026 should be amended are supported by the affidavit of their lawyer, Mr Ashley Tiplady, dated 13 March 2026. In summary they submit:

The slip rule does not apply if the amendment is a matter of controversy or if the “slip” arises from a deliberate decision. However, the slip rule may apply even where an independent discretion must be exercised. This is particularly so if the surrounding circumstances are such that proper attendance to the matter (had the slip not occurred) could only have resulted in the discretion being exercised in one way.

A slip may occur by reason of the inadvertence of a party’s legal representative, including Counsel, which may give rise to the application of the slip rule, such as where a party fails to raise, or to make submissions with respect to, a matter. However, the slip rule may also be engaged even in circumstances where the Court made precisely the Order it was urged to make and did so consistently with the submissions made.

It is well-established that the power under r 39.05 of the Federal Court Rules is discretionary and should be exercised with caution. Indeed, the Court always has a discretion to refuse to make an order under the slip rule “if something has intervened which would render it inexpedient or inequitable that it be made”.

The slip rule, including as embodied by r 39.05 of the Federal Court Rules, is available as a matter of principle in relation to an extension of time under s 41(6A) of the Bankruptcy Act.

In this case, the respondents’ representatives did not raise – and so the Court was unassisted by any submissions in respect to – the risk that the time for presenting a creditor’s petition based upon non-compliance with the Bankruptcy Notice under s 44(1)(c) of the Bankruptcy Act would expire prior to the delivery of judgment if it was not extended under s 41(6A). The respondents’ representatives maintained their opposition to the Application for Extension based only upon the meritless nature of the applicant’s case and made no submissions as to the effect of s 44(1)(c).

Although the respondents’ representatives were aware of the 6-month period, they also knew that no petition could be presented while the proceedings were on foot.

The respondents’ representatives explained that the slip occurred due to inadvertence in circumstances where:

• the original hearing (on 8 October 2025) was listed well prior to the period for issuing a creditor’s petition expiring, and so the possibility of the Bankruptcy Notice expiring prior to delivery of judgment was inadvertently not at the front of the minds of the respondents’ representatives, and that remained the situation during the resumed hearing (on 17 December 2025); and

• a primary issue in dispute at the hearings was whether the Court had jurisdiction to make a sequestration Order against Mr Doyle.

It can readily be inferred that the slip was not deliberate, nor a forensic decision, on the part of the respondents. That is because:

• a central issue in the proceeding concerned whether Mr Doyle had sufficient connections to Australia, under s 43(1)(b) of the Bankruptcy Act, so as to enliven the jurisdiction of this Court. Section 43 refers to the court’s jurisdiction being founded not only on the factors referred to in s 43(1)(a) and (b), but also on the presentation of a creditor’s petition;

• the expiry of the 6-month period would render inutile the issues to be determined in the proceedings, and particularly the issue of jurisdiction of the Court by reason of an absence of the required connection with Australia; and

• judgment was reserved on the third last day of Court sittings in 2025, only eight days before the time for issuing a creditor’s petition based upon non-compliance with the Bankruptcy Notice would expire.

The present case is distinguishable from the case of Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554; [2006] FCAFC 149 and instead falls within the other category of case discussed in Griffiths v Boral Resources. That is, where the time for bringing a creditor’s petition is likely to expire very shortly after the hearing, and prior to the preparation of a reserved judgment, it can be inferred that submissions should have been made raising this risk, and the failure to do so can properly be seen as an inadvertent slip or omission.

It is plain from both the direct evidence, and the entire procedural history of the matter, that the respondents intended to issue a creditor’s petition based upon the applicant’s non-compliance with the Bankruptcy Notice. It would have been antithetical to that intent to have deliberately allowed the time to lapse for bringing a creditor’s petition based upon the non-compliance with the Bankruptcy Notice.

It cannot have been the Court’s intention, having regard to the reasons and the Orders made, to deprive the respondents of the opportunity to present a creditor’s petition based upon non-compliance with the Bankruptcy Notice. The amendment is one that reflects what the Court would have done if the expiry of the 6-month period occurring on 25 December 2025 had been brought to the Court’s attention.

The Liquidators accepted that they positively submitted that the application for an extension of time for compliance with the Bankruptcy Notice should be refused. However, a positive submission on a general matter ought not be conflated with a deliberate decision to oppose an extension of time with the consequence that they would be deprived of the opportunity to present a creditor’s petition.

The respondents did not submit that they were unaware of the significance of any extension of time to the presentation of a creditor’s petition. Rather, they were aware but by inadvertence failed to raise the issue about the risk of time expiring for presenting a creditor’s petition. There was nothing in the closing submissions to the contrary.

The circumstances could properly be described as an “oversight”, rather than an “afterthought”.

The amendment sought was not, and could not be, a matter of controversy, noting that the applicant sought substantially the same orders albeit on a different basis.

Mr Doyle sought an extension of time based on the strength of his case, being a case which ultimately failed. The respondents sought an extension on a wholly different basis – namely that they would otherwise be held out from presenting a creditor’s petition in circumstances where it was plain from the material before the Court that the respondents intended to issue such a creditor’s petition.

Properly characterised, an extension of time for compliance with a bankruptcy notice is by its nature an incidental matter, being subsidiary to the substantive matter in the proceedings (namely the application to set aside the bankruptcy notice).

There was no reason for the Court to exercise its discretion to refuse the application in circumstances where the respondents have promptly brought this application.

28 Mr Doyle, in opposition to the application, submits in summary that:

There was no dispute that this Court’s power in r 39.05 of the Federal Court Rules extends to an “accidental slip or omission” resulting from the inadvertence of a party’s legal representatives.

It is a question of fact whether or not there has been an accidental slip or omission. The issue of the time for compliance with the Bankruptcy Notice was expressly raised in this proceeding by Mr Doyle, who himself sought an extension of the time for compliance with the Bankruptcy Notice – which was refused. It was an issue which was joined between the parties, and was addressed:

• In written submissions of the respondents dated 3 October 2025 and 28 November 2025, and

• At the hearing in oral submissions on 17 December 2025.

The respondents made a deliberate decision to oppose the extension of time sought by Mr Doyle. They made no cross-application to extend time for themselves, or any application for different orders being made by the Court upon the disposition of the proceeding. They opposed Mr Doyle’s application for extension of time, giving no quarter, and their submissions were accepted by the Court. The circumstances before the Court do not arise from inadvertence. There was, therefore, no "slip" within the meaning of r 39.05 of the Federal Court Rules.

This Court's jurisdiction under r 39.05(h) of the Federal Court Rules must be "exercised with caution" and "ordinarily only exercised in exceptional circumstances", namely where there is the quality of being “accidental” in the sense of not being “deliberate”. An “afterthought” is not an oversight which can found an application of the slip rule.

The weight of authority supports the proposition that amendments under the slip rule are confined to subsidiary or consequential matters. The Court is being called upon to re-exercise the discretion it was called upon to exercise (and expressly declined to exercise) under s 41(6A) of the Bankruptcy Act at the urging of the respondents.

In this interlocutory application the respondents sought to invite this Court to both reconsider and alter the substance of the result enshrined in the final judgment. It should be refused.

There was always the prospect that a judgment could be given on an aspirational date after 25 December 2025, when the period of 6 months for presenting a creditor’s petition expired. The risk of that period expiring prior to delivery of judgment was, or ought to have been, real and apparent even had the hearing completed as intended originally on 8 October 2025.

Although it may be accepted that the purpose of the slip rule is to avoid injustice to litigants, the Court is required to interpret and apply its rules in a way which best promotes the overarching purpose of just resolution of disputes according to law. A litigant is bound by the way in which they have conducted their case. It is not a proper appeal to justice to submit that, if a party had made a different deliberate forensic decision at trial, a different result would have followed.

Where the time for compliance with a bankruptcy notice is an issue of substance at the hearing, and the Court has heard the parties on the issue and made a decision in respect of it, it is not a matter that can be reconsidered under the slip rule.

The respondents submitted that it could not have been the Court’s intention to deprive them of the opportunity to present a creditor’s petition based upon non-compliance with the Bankruptcy Notice, however this ignored the Court’s role and function. The respondents expressly opposed an extension of time for compliance sought by Mr Doyle, but now complained about an Order refusing that extension. Even had the subject matter of the slip been brought to the Court’s attention, the fact remained that the respondents, having fought and won on the issue that no extension of time to comply with the Bankruptcy Notice should be granted, sought to about-face and advance the opposite contention.

Consideration

29 Rule 39.05 of the Federal Court Rules provides:

39.05 Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)     it was made in the absence of a party; or

(b)     it was obtained by fraud; or

(c)     it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)     it does not reflect the intention of the Court; or

(f)     the party in whose favour it was made consents; or

(g)     there is a clerical mistake in a judgment or order; or

(h)     there is an error arising in a judgment or order from an accidental slip or omission.

30 As a matter of principle, reference to the inherent jurisdiction of the Court in this context appears to take the matter of amending a judgment for a “slip” no further than r 39.05. I do not understand this point to be in dispute in the present case.

31 The Order of 18 February 2026 which the respondents now seek to have amended was Order 2, which provided that:

2.    The interim and final orders sought by the applicant in the Originating Application be refused.

32 In the circumstances of this case I am not prepared to vary Order 2 as I am not satisfied that:

the Orders of the Court did not reflect the intention of the Court;

there was a “slip” warranting a variation of the Orders of 18 February 2026 pursuant to either r 39.05 of the Federal Cour t Rules or the inherent jurisdiction of the Court; or

I should exercise my discretion to vary the Orders made on 18 February 2026 for any of the reasons set out in r 39.05 of the Federal Court Rules, or otherwise.

33 I have formed these views for the following reasons.

Preliminary Matters

34 First, in terms of r 39.05 of the Federal Court Rules, it was plainly not the case that Order 2 was made in the absence of a party, or was obtained by fraud, or was an injunction or for the appointment of a receiver, or was the subject of a clerical mistake in the Order. It is equally plain that Mr Doyle does not consent to the variation of Order 2 in terms of r 39.05(f). Further, while Mr Doyle sought “interim orders” concerning the extension of time for compliance with the Bankruptcy Notice, Order 2, which refused the interim and final orders as sought by Mr Doyle in his Originating Application, is final and does not satisfy the description in r 39.05(c) of the Federal Court Rules.

35 It follows that, at least for the purposes of r 39.05, the respondents must satisfy the Court that Order 2 was entered in circumstances where:

it did not reflect the intention of the Court (r 39.05(e)); or

there was an error arising in the judgment or order from an accidental slip or omission (r 39.05(h)).

Intention of the Court

36 Second, I am not able to find that Order 2, as made, did not reflect the intention of the Court. Mr Doyle’s Originating Application before the Court sought relief including interim orders for extension of time for compliance with the Bankruptcy Notice, in summary on the premise that the Bankruptcy Notice was invalid. The case of both parties was argued on that basis. I refused Mr Doyle’s interim application for extension of time, for reasons I explained in the substantive judgment.

37 The respondents argue that the plain intention of the Court was that, if they were successful in opposing Mr Doyle’s Originating Application, they would then be in a position to present a creditor’s petition pursuant to the Bankruptcy Act. That may well be the case. However, the issue of extension of time for compliance with the Bankruptcy Notice was before the Court, on an application by Mr Doyle, on grounds advanced by Mr Doyle. No equivalent application was made by the respondents. Granting an extension of time for the benefit of the respondents to present a creditors’ petition was not argued, at all, before the Court. If it had been, the resultant Orders may have been different. However it is equally possible that Mr Doyle would himself have opposed an extension of time in favour of the respondents only, and the outcome of any dispute to that effect is at this point uncertain.

38 The hearings took place promptly, with case management consultation at all times with the experienced lawyers on both sides. The date for closing oral submissions, namely 17 December 2025, was selected in consultation with the parties and their lawyers. The matter was plainly complex, with multiple issues requiring determination.

39 As s 44(1)(c) of the Bankruptcy Act provides, a creditor’s petition shall not be presented against a debtor unless:

(c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

40 The respondents at no time during the course of the hearings raised the issue of the expiration of the period of 6 months identified in s 44(1)(c). The Court did not raise this issue with them. There was no reason for the Court to do so in circumstances where the extension of time for compliance was plainly an issue joined before the parties and the Court. It was reasonable in my view for the Court to assume that the experienced lawyers for the respondents had their own views about dealing with the time limit of 6 months imposed by s 44(1)(c).

41 The lawyers for Mr Doyle have submitted, for the first time during the hearing, that there was nothing preventing the respondents from presenting a creditors’ petition prior to 25 December 2025 notwithstanding the disputed validity of the Bankruptcy Notice. In particular, Mr Doyle’s lawyers submitted that there was the possibility that an application could have been made by the respondents for the Court to dispense with compliance with the requirements of r 4.04(1)(a) of the Federal Court (Bankruptcy) Rules 2016 (Cth) which provides:

4.04 Creditor’s petition founded on failure to comply with bankruptcy notice etc.

(1)     If a creditor’s petition is founded on an act of bankruptcy specified in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by:

(a)     an affidavit stating:

(i)     that the records of the Court and the records of the Federal Circuit Court have been searched and no application in relation to the bankruptcy notice has been made; or

(ii)     that an application was made in the Court or in the Federal Circuit Court (as the case may be) for an order setting aside the relevant bankruptcy notice and the application has been finally decided; or

(iii)     that an application was made in the Court or in the Federal Circuit Court (as the case may be) for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and

(b)     an affidavit of service of the relevant bankruptcy notice.

42 The lawyers for Mr Doyle further submitted that the respondents could have sought to present a creditor’s petition by filing the petition with accompanying documents while Mr Doyle’s Originating Application was pending, and making an application under r 1.21 of the Federal Court Rules for this procedure.

43 The respondents in their written submissions contended that these steps could not have been taken. Certainly no issue was raised before me by the respondents, prior to 25 December 2025, about the prospect of such steps being taken. It was unknown to me whether the respondents had actually sought to do so, for example before a Registrar of the Federal Court (as had occurred in respect of other aspects of this case, noting for example Orders of Registrars made in this proceeding on 23 July 2025, 29 August 2025, 5 September 2025 and 23 September 2025).

44 It is unnecessary for me to reach a concluded view on these possible steps in the context of the present issue.

45 Ultimately, referable to the intention of the Court, the terms of the amendment of Order 2 sought by the respondents are at odds with the orders sought by them in response to Mr Doyle’s Originating Application, do not reflect any application made at any time by the respondents, and can scarcely be considered to be a variation of the terms of Order 2 when the amendments seek a reversal of the Order made. Order 2 in its form as made did not give rise to unintended consequences for the respondents in the terms explained by the Full Court in Flint v Richard Busuttil and Co Pty Ltd (2013) 216 FCR 375 because the Order as made was to the detriment of Mr Doyle and was in the terms argued by the respondents during the course of the proceedings.

46 The intention of the Court, as reflected in Order 2 of the Orders of 18 February 2026, was to refuse Mr Doyle’s application for an extension of time to comply with the Bankruptcy Notice.

47 It follows that I do not consider that Order 2 as made did not reflect the intention of the Court.

Slip or Omission

48 Third, I am not satisfied that Order 2 resulted from an error in the judgment or Orders arising from an accidental slip or omission, either on the part of the Court or the respondents, within the meaning of r 39.05(h) or pursuant to the slip rule in the inherent jurisdiction of this Court.

49 The respondents contended that a central issue in the proceeding concerned whether the Court had jurisdiction to make the relevant order under s 43 of the Bankruptcy Act, and the premise on which much of the argument was founded was the assumption that the period of 6 months would not expire before a petition could be presented. The respondents further submitted that plainly there was an accidental omission or slip, due to their inadvertence to raise with the Court that the period of 6 months was due to expire, and the date of compliance with the Bankruptcy Notice ought to be extended to allow the respondents to present a creditor’s petition founded on Mr Doyle’s non-compliance.

50 The issue of extension of time for compliance with the Bankruptcy Notice pursuant to s 41(6A) of the Bankruptcy Act was to the forefront of the cases of both parties, and argued in detail. As I have already noted, it was the subject of an interim order sought by Mr Doyle in paragraph 5 of his Originating Application, which he continued to press in written submissions during the case (including in written submissions filed on 8 January 2026). Mr Doyle’s application for extension of time to comply with the Bankruptcy Notice was strongly opposed by the respondents, and was the subject of findings by me adverse to Mr Doyle in the substantive judgment.

51 Inadvertence or “slip” on the part of legal representatives (rather than the Court) may result in a “slip” for the purposes of r 39.05(h) of the Federal Court R ules. As the Full Court observed in Flint v Richard Busuttil & Co Pty Limited at 380 ([26]):

26.    The purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-5) by ensuring that the court’s judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention that the court would have had but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356 at 357. It may be exercised to prevent unintended consequences of the order and in this way give effect to the court’s intentions: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 (“ Newmont Yanda l ”) at [116], [185], [194]. It is not confined to errors or omissions of the court; it extends to errors or omissions resulting from the inadvertence of a party’s legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 (“ Shaddock ”) at 594-5.

52 A failure on the part of a party to seek an extension of time does not necessarily result in error in an Order of the Court: see for example Griffiths v Boral Resources at [69]. In the present case the respondents have not argued that there was an error in Order 2 insofar as it concerned Mr Doyle’s Application for Extension. From the perspective of the respondents now, a problem arises because there was no reference in Order 2 to the position of the respondents and whether they could present a creditors’ petition. However, as I have already noted, this issue was simply not raised by the respondents – and indeed they strongly opposed an extension of time at all, until now.

53 The parties have made extensive submissions concerning whether the failure on the part of the respondents to seek an extension of time in their own favour could be termed an “oversight” (and hence, potentially, a slip), or an “afterthought” (and hence, not a slip). The parties have relied on such authorities as Gould v Vaggelas (1985) 157 CLR 271; [1985] HCA 75 and Strand Nominees Pty Ltd v Pennywise Smart Shopping Australia Pty Ltd (1991) 1 NTLR 17.

54 In the present case I consider it likely that, in opposing an extension of time being granted to Mr Doyle, the respondents simply forgot about the fact that they might also need an extension of time in the circumstances (as opposed to forgetting to raise th at fact before the Court). It is difficult to characterise what transpired as an oversight in circumstances where, as I have already observed, there was extensive argument and written submissions about the issue of extension of time. The more likely situation appears to be that it was only one month after the delivery of judgment that the respondents realised that they, too, might require an extension of time.

55 For the reasons discussed above, I am not prepared to find that the slip rule under r 39.05(h) of the Federal Court Rules or pursuant to the inherent jurisdiction of this Court is enlivened.

Exercise of Discretion

56 Finally, even if the failure on the part of the respondents to seek an extension of time for their own benefit could be described as a “slip” for the purposes of r 39.05, I would not in the interests of justice be prepared to exercise my discretion in favour of the respondents.

57 Recently in Hunt Leather Pty Ltd v Transport for NSW [No 2] [2026] HCA 4 the High Court considered the equivalent sources of power of that Court to amend its own judgments, and observed as follows:

5.    It is unnecessary on this application to address the precise source of power by which applications to recall and amend orders of this Court are made. One source is r 3.01.2 of the High Court Rules 2004 (Cth), which provides that "[t]he Court or a Justice may, at any time, correct a clerical mistake in a judgment or order, or an error arising in a judgment or order from any accidental slip or omission". A broader source may be the powers of this Court which are incidental and necessary to the exercise of its jurisdiction. Whatever the source of power, the authorities have recognised that this Court has, at least, a discretionary power to correct an error or omission in a judgment or order where "the interests of justice so require". Nevertheless, the discretionary power to correct an error or omission is to be exercised "sparingly" due to the interests of finality, with a "heavy burden ... cast upon the applicant".

6.    Some of the strongest factors that support the exercise of the discretionary power to correct an error or omission include: where the error or omission is plain or obvious, such as where a matter has been overlooked; where the application is promptly made and any relevant orders, "although publicly announced, [have not been] perfected" by formal entry; where the application is not brought for the purpose of "re-agitating arguments already considered by the Court"; and where there is no relevant disadvantage to the respondent in correcting the error or omission. In this case, all of these factors support the making of the order sought by Hunt Leather and Ancio Investments in this application. This Court did not have, and does not have, the benefit of the submissions on costs that were, or might be, before the Court of Appeal on the costs appeal if leave is granted. If this Court had adverted to the footnote in the written submissions of Hunt Leather and Ancio Investments, then the issue of the costs before the trial judge, which is the subject of the application for leave to appeal by Hunt Leather and Ancio Investments, would have been remitted to be dealt with by the Court of Appeal.

(footnotes omitted, emphasis added)

58 Having regard to these principles, I note that:

the question of time for presentation of a creditors’ petition in the present case was an obvious issue for consideration by the respondents in the circumstances of the case;

the respondents were represented by experienced lawyers;

the issue of extension of time was agitated in detail before the Court in terms of Mr Doyle’s application for extension of time, such that the present interlocutory application by the respondents seeking an amendment to Order 2 pursuant to the slip rule contemplates the Court rehearing and redetermining an issue already considered and determined by the Court;

it is possible, and indeed likely, that Mr Doyle would have opposed an extension of time being granted to the respondents to comply with the Bankruptcy Notice; and

there would plainly be a significant disadvantage to Mr Doyle in making orders in the terms now sought by the respondents.

CONCLUSION

59 I do not consider it appropriate to vary Order 2 of the Orders of 18 February 2026, pursuant to either r 39.05 of the Federal Court Rules or the inherent jurisdiction of the Court, to extend time for compliance with the Bankruptcy Notice pursuant to s 41(6A) of the Bankruptcy Act.

60 In the circumstances, it is unnecessary for me to consider the form of orders sought by the respondents.

61 The orthodox approach in respect of costs is that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. It is appropriate that Mr Doyle’s costs of and incidental to the interlocutory application and the amended interlocutory application be paid by the respondents.

| I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:

Dated: 21 April 2026