Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393

Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393

An appeal, including a summons for leave to appeal, is the commencement of a new proceeding because it is brought in the Court of Appeal by fresh originating process. Since the respondent was being wound up in insolvency, s 471B required leave to begin or proceed with the appeal. No application for leave to proceed had been made, so the Court had no power to deal with the respondent's application for security for costs, and the appeal proceedings had to be stayed.

Jurisdiction
Australia
Judgment Date
03 December 2012
Procedural Posture
Application for Security for Costs in Appeal / Court of Appeal Interlocutory Application; Preliminary Question Whether Appeal Proceedings Were Competent Where Respondent Was in Liquidation
Outcome
Proceedings stayed.
Legal Topics
['security for Costs' 'winding Up in Insolvency' 'stay of Proceedings' 'leave to Proceed Against Company in Liquidation' 'appeal Proceedings']
['practice and Procedure' 'corporations Law'] ['security for Costs' 'winding Up in Insolvency' 'stay of Proceedings' 'leave to Proceed Against Company in Liquidation' 'appeal Proceedings']

Case Brief

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Procedural Posture

Application for Security for Costs in Appeal / Court of Appeal Interlocutory Application; Preliminary Question Whether Appeal Proceedings Were Competent Where Respondent Was in Liquidation

Legal Issues

  1. 1 ['Whether leave of the Court was required under Corporations Act 2001 (Cth), s 471B to commence or proceed with an appeal against a respondent company being wound up in insolvency.' 'Whether an appeal is a new proceeding for the purposes of s 471B.' "Whether the Court had power to determine the respondent's application for security for costs where no application for leave to proceed had been made."]

Ratio Decidendi

An appeal, including a summons for leave to appeal, is the commencement of a new proceeding because it is brought in the Court of Appeal by fresh originating process. Since the respondent was being wound up in insolvency, s 471B required leave to begin or proceed with the appeal. No application for leave to proceed had been made, so the Court had no power to deal with the respondent's application for security for costs, and the appeal proceedings had to be stayed.

Court Disposition

Proceedings stayed.

Orders

  • ['Proceedings in Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited (In Liquidation) CA 2012/210989 are stayed.']