ASIC v Neolido Holdings Pty Ltd

The Australian Securities and Investments Commission (ASIC) applied to the Supreme Court of Queensland for leave to apply for the winding up of two companies, Neolido Holdings Pty Ltd and Neolido Pty Ltd. ASIC sought the leave on the basis that both companies were unable to pay their debts. The companies were represented by Spencer and Perovich, who opposed the application. The primary judge granted ASIC leave subject to ASIC paying the costs of the liquidator, but imposed a condition that ASIC pay all the costs of the liquidator involved in the winding up. The primary judge also refused the application of Spencer and Perovich to appear on behalf of the companies as opposed to on their own behalf. Spencer and Perovich sought to appeal the primary judge's decision, but the single judge of the Court of Appeal dismissed the application for leave to appeal. ASIC, the companies, Spencer and Perovich all appealed to the Queensland Court of Appeal.

The legal issues before the court were whether the primary judge's decision to impose a condition that ASIC pay all the costs of the liquidator involved in the winding up was an order "as to costs only", whether the winding up order was a nullity due to ASIC's failure to make separate applications for each company, and whether the winding up order was a product of a denial of natural justice. The court also had to consider whether it could exercise afresh the discretion exercised by the single judge of the Court of Appeal in dismissing the application for leave to appeal.

The court held that the primary judge's decision to impose a condition that ASIC pay all the costs of the liquidator involved in the winding up was an order "as to costs only". The court found that the primary judge's decision to refuse Spencer and Perovich's application to appear on behalf of the companies as opposed to on their own behalf did not constitute a denial of natural justice. The court held that ASIC's failure to make separate applications for each company was not an irregularity such as to make the winding up order a nullity. The court also held that it could exercise afresh the discretion exercised by the single judge of the Court of Appeal in dismissing the application for leave to appeal.

The court allowed ASIC's appeals and set aside the condition imposed on the grant of leave given to ASIC to apply for the winding up of the companies. The court dismissed the appeals by Spencer and Perovich and ordered that they pay ASIC's costs of their appeals. The companies were ordered to pay ASIC's costs of the appeals and to have an indemnity certificate in respect of their costs and their liability for the costs of ASIC.