STATE BANK OF NEW SOUTH WALES v CURRABUBULA HOLDINGS [2001] NSWCA 239

STATE BANK OF NEW SOUTH WALES v CURRABUBULA HOLDINGS [2001] NSWCA 239

The notice of motion was dismissed because, although the special leave application was bona fide and arguable, the claimants were insolvent if the State Bank's restitution entitlement stood, lacked cash to pay the statutory demand or costs, and had not shown that their proposed ventures or second mortgage would adequately protect the State Bank. The balance of convenience favoured allowing the State Bank to present a winding up summons to preserve its rights, including under s588FE of the Corporations Law, and the Court was not satisfied that mere presentation of the summons would immediately destroy the enterprise. The State Bank should not be forced to finance the claimants for the...

Jurisdiction
Australia
Judgment Date
19 July 2001
Procedural Posture
Practice and Procedure Application for Stay Pending Application for Special Leave to the High Court and Injunctive Relief Restraining Winding Up Proceedings / Notice of Motion in the New South Wales Court of Appeal After Appeal Upheld and Pending Application for Special Leave to Appeal
Outcome
Notice of motion dismissed.
Legal Topics
['stay Pending Special Leave to Appeal' 'injunction Restraining Winding Up Proceedings' 'statutory Demand' 'restitution Following Successful Appeal' 'balance of Convenience' 'insolvent Trading' 'winding Up Summons']
['practice and Procedure' 'appellate Procedure' 'corporations Law' 'insolvency'] ['stay Pending Special Leave to Appeal' 'injunction Restraining Winding Up Proceedings' 'statutory Demand' 'restitution Following Successful Appeal' 'balance of Convenience' 'insolvent Trading' 'winding Up Summons']

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Procedural Posture

Practice and Procedure Application for Stay Pending Application for Special Leave to the High Court and Injunctive Relief Restraining Winding Up Proceedings / Notice of Motion in the New South Wales Court of Appeal After Appeal Upheld and Pending Application for Special Leave to Appeal

Legal Issues

  1. 1 ["Whether the Court should stay the Court of Appeal orders pending the claimants' application for special leave to appeal to the High Court." 'Whether the Court should restrain the State Bank from taking steps to issue proceedings to wind up Currabubula Holdings Pty Limited.' "Whether the claimants' proposed second mortgage adequately protected the State Bank pending the special leave application." "Whether the balance of convenience and discretion favoured preserving the State Bank's ability to commence winding up proceedings."]

Ratio Decidendi

The notice of motion was dismissed because, although the special leave application was bona fide and arguable, the claimants were insolvent if the State Bank's restitution entitlement stood, lacked cash to pay the statutory demand or costs, and had not shown that their proposed ventures or second mortgage would adequately protect the State Bank. The balance of convenience favoured allowing the State Bank to present a winding up summons to preserve its rights, including under s588FE of the Corporations Law, and the Court was not satisfied that mere presentation of the summons would immediately destroy the enterprise. The State Bank should not be forced to finance the claimants for the...

Court Disposition

Notice of motion dismissed.

Orders

  • ['Notice of motion dismissed.' 'The injunction previously granted was to expire at the end of 19 July 2001.' 'Costs follow the event.']