Ekes v Hyde Page (No 2) [2019] NSWCA 169

Ekes v Hyde Page (No 2) [2019] NSWCA 169

Leave to appeal was refused because no arguable error was shown in the primary judge's conclusion that the company was insolvent and that positive reasons existed to wind it up. The company had not paid Mr Hyde Page's debt at the time of the hearing, the primary judge was entitled to give little weight to Mr Ekes' bald assertions that the company had no debts, and no persuasive evidence undermined the findings concerning ATO liabilities or the guarantee. Public policy against allowing an insolvent company to continue to trade also weighed strongly against leave. The stay motion necessarily failed, and a lump sum costs order was appropriate.

Jurisdiction
Australia
Judgment Date
09 July 2019
Procedural Posture
Application for Leave to Appeal From a Winding Up Order and Motion Seeking a Stay / Court of Appeal Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs; stay motion dismissed with costs; lump sum costs ordered against Mr Ekes.
Legal Topics
['leave to Appeal' 'winding Up in Insolvency' 'statutory Demand' 'presumption of Insolvency' 'solvency Evidence' 'external Administration' 'stay Application' 'lump Sum Costs']
['civil Procedure' 'corporations' 'insolvency' 'costs'] ['leave to Appeal' 'winding Up in Insolvency' 'statutory Demand' 'presumption of Insolvency' 'solvency Evidence' 'external Administration' 'stay Application' 'lump Sum Costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a Winding Up Order and Motion Seeking a Stay / Court of Appeal Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from the Supreme Court order winding up GHS Safety Products Australia Pty Ltd in insolvency.' "Whether the company had paid the petitioning creditor's debt before the winding up order so that the originating process should have been dismissed." 'Whether the primary judge erred in finding that there were positive reasons to wind up the company beyond deemed insolvency arising from non-compliance with a statutory demand.' 'Whether Mr Ekes could prosecute proceedings concerning the company in liquidation without the relevant leave or approval.' 'Whether the stay motion dated 19 June 2019 should be granted.' 'Whether a lump sum costs order should be made.']

Ratio Decidendi

Leave to appeal was refused because no arguable error was shown in the primary judge's conclusion that the company was insolvent and that positive reasons existed to wind it up. The company had not paid Mr Hyde Page's debt at the time of the hearing, the primary judge was entitled to give little weight to Mr Ekes' bald assertions that the company had no debts, and no persuasive evidence undermined the findings concerning ATO liabilities or the guarantee. Public policy against allowing an insolvent company to continue to trade also weighed strongly against leave. The stay motion necessarily failed, and a lump sum costs order was appropriate.

Court Disposition

Application for leave to appeal dismissed with costs; stay motion dismissed with costs; lump sum costs ordered against Mr Ekes.

Orders

  • ['Application for leave to appeal dismissed with costs.' "Applicant's motion seeking a stay dated 19 June 2019 dismissed with costs." 'The Court orders costs be paid by Mr Ekes in a lump sum in the amount of $7,500 under s 98(4) of the Civil Procedure Act.']