Penson v Titan National Pty Ltd [2015] NSWCA 165

Penson v Titan National Pty Ltd [2015] NSWCA 165

The winding up application was determined on 20 November 2014 when Black J pronounced and made the winding up orders, notwithstanding that their operation was stayed. Section 459R(3) therefore did not dismiss the originating process by operation of law after 31 December 2014. The proposed appeal from Brereton J was doomed to fail, and the proposed appeal from Black J disclosed no error of principle, no House v The King error, and no sufficient prospect of appellate intervention. Leave to appeal was refused.

Jurisdiction
Australia
Judgment Date
05 June 2015
Procedural Posture
Application for Leave to Appeal From a Winding Up Order and a Subsequent Interlocutory Decision / Court of Appeal Application for Leave to Appeal
Outcome
Further amended summons seeking leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'winding Up of Corporation' 'meaning of Determined in S 459 R of the Corporations Act 2001 (cth)' 'stay of Winding Up Orders' 'interlocutory Decision' 'appellate Intervention in Discretionary Decisions']
['appeal' 'corporations Law' 'insolvency'] ['leave to Appeal' 'winding Up of Corporation' 'meaning of Determined in S 459 R of the Corporations Act 2001 (cth)' 'stay of Winding Up Orders' 'interlocutory Decision' 'appellate Intervention in Discretionary Decisions']

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Procedural Posture

Application for Leave to Appeal From a Winding Up Order and a Subsequent Interlocutory Decision / Court of Appeal Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the winding up application was determined for the purposes of s 459R of the Corporations Act 2001 (Cth) when the winding up orders were pronounced on 20 November 2014 or only when the stay of those orders was discharged on 11 February 2015.' 'Whether the originating process for winding up was dismissed by operation of law under s 459R(3) because time for determination was not further extended after 31 December 2014.' "Whether Black J erred in finding Aquaqueen insolvent despite Ms Penson's stated willingness to use personal resources to pay company debts." 'Whether pursuit of winding up was an abuse of process or improper where some costs debts were jointly and severally owed by Ms Penson.' 'Whether any error warranting appellate intervention in the exercise of discretion was demonstrated.']

Ratio Decidendi

The winding up application was determined on 20 November 2014 when Black J pronounced and made the winding up orders, notwithstanding that their operation was stayed. Section 459R(3) therefore did not dismiss the originating process by operation of law after 31 December 2014. The proposed appeal from Brereton J was doomed to fail, and the proposed appeal from Black J disclosed no error of principle, no House v The King error, and no sufficient prospect of appellate intervention. Leave to appeal was refused.

Court Disposition

Further amended summons seeking leave to appeal dismissed with costs.

Orders

  • ['Further amended summons seeking leave to appeal be dismissed with costs.' 'Costs be assessed on a lump sum basis at $8,000.']