Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2018] NSWCA 139

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2018] NSWCA 139

Leave under s 500(2) should be granted because the proposed appeal was supported by reasonably arguable grounds raising significant issues, judgment had been entered in favour of Ostwald for the adjudication amount, and the only practicable means for the appellant to challenge that judgment debt was to allow the appeal to proceed. Adjourning the leave application pending the liquidators' determination would serve no useful purpose and would likely cause further unnecessary costs.

Jurisdiction
Australia
Judgment Date
22 June 2018
Procedural Posture
Application for Leave Under S 500(2) of the Corporations Act 2001 (cth) to Commence an Appeal Against a Company in Liquidation / Notice of Motion for Leave Nunc Pro Tunc in the Court of Appeal
Outcome
Leave granted nunc pro tunc to commence the appeal.
Legal Topics
['leave to Proceed Against Company in Liquidation' 'voluntary Winding Up' 'security of Payment Adjudication' 'proof of Debt and Set Off in Liquidation' 'appeal Procedure']
['corporations Law' 'building and Construction' 'civil Procedure'] ['leave to Proceed Against Company in Liquidation' 'voluntary Winding Up' 'security of Payment Adjudication' 'proof of Debt and Set Off in Liquidation' 'appeal Procedure']

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Procedural Posture

Application for Leave Under S 500(2) of the Corporations Act 2001 (cth) to Commence an Appeal Against a Company in Liquidation / Notice of Motion for Leave Nunc Pro Tunc in the Court of Appeal

Legal Issues

  1. 1 ['Whether the appellant should be granted leave under s 500(2) of the Corporations Act 2001 (Cth), nunc pro tunc, to commence an appeal against Ostwald, a company in liquidation.' "Whether the leave application should be adjourned to allow the liquidators to rule on the appellant's proof of debt before the appeal proceeds." 'Whether the proposed appeal raised a serious question, including as to the validity of the adjudication determination and the ability of a company in liquidation to rely on Part 3 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether leave was required for an appeal where leave had already been granted to proceed at first instance against the company in liquidation.']

Ratio Decidendi

Leave under s 500(2) should be granted because the proposed appeal was supported by reasonably arguable grounds raising significant issues, judgment had been entered in favour of Ostwald for the adjudication amount, and the only practicable means for the appellant to challenge that judgment debt was to allow the appeal to proceed. Adjourning the leave application pending the liquidators' determination would serve no useful purpose and would likely cause further unnecessary costs.

Court Disposition

Leave granted nunc pro tunc to commence the appeal.

Orders

  • ['Pursuant to s 500(2) of the Corporations Act 2001 (Cth) the appellant have leave, nunc pro tunc, to commence its appeal against the decision of Stevenson J given on 5 April 2018.']