Creata (Aust) Pty Ltd v Gary Adrian Faull - [2017] NSWCA 230

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Creata (Aust) Pty Ltd v Gary Adrian Faull [2017] NSWCA 230
Hearing dates: 23 August 2017
Date of orders: 23 August 2017
Decision date: 23 August 2017
Before: White JA
Decision:
1. Upon the applicant by its counsel undertaking to do all things that are necessary on its part to obtain an expedited hearing of the application for leave to appeal and of any appeal if leave is granted, order pursuant to s 459F of the Corporations Act 2001 that the time for compliance with the respondent’s Statutory Demand issued to the applicant dated 30 January 2017 be extended until seven days after the determination of the applicant’s application for leave to appeal and of any appeal.

2. Order that the costs of the hearing of the notice of motion filed 22 August 2017 today be the applicant’s costs on the application for leave to appeal.
3. Stand over to the Registrar’s list for directions on Monday, 28 August 2017.
Catchwords:
CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — whether extension of time for compliance with statutory demand ought to be granted in circumstances where applicant intends to apply for leave to appeal from primary judge’s decision to refuse to set aside the statutory demand — extension granted
APPEALS — Application for leave to appeal — whether material possibility of prejudice — whether grounds are sufficiently arguable — whether appeal would be rendered nugatory
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Corporations Act 2001 (Cth), s 459F
Supreme Court Act 1970 (NSW), s 46
Cases Cited: Aus Asia Minerals Ltd v Ball [2015] WASCA 251
Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544
Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344
Creata (Aust) Pty Ltd (No. 2) [2017] NSWSC 1090
Jem Developments Pty Ltd v Hansen Yuncken [2006] NSWSC 1378; (2006) 60 ACSR 393
N A Investments Holdings Pty Ltd v Perpetual Nominees Ltd [2010] NSWSC 373
Re Britten-Norman Pty Ltd [2013] NSWSC 424
Category: Procedural and other rulings
Parties: Creata (Aust) Pty Ltd (Applicant)
Gary Adrian Faull (Respondent)
Representation:
Counsel:
S Foda (Applicant)
D Sulan (Respondent)
Solicitors:
Connor & Co Lawyers (Applicant)
Arnold Bloch Liebler (Respondent)

File Number(s): 2017/256550
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division – Corporations List

Citation:

[2017] NSWSC 1090

Date of Decision:

18 August 2017

Before:

Black J

File Number(s):

2017/51706

Judgment

HIS HONOUR: This is an application pursuant to s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) for an order to extend the time for compliance with a statutory demand. Black J dismissed the plaintiff’s application to set aside the statutory demand (In the matter of Creata (Aust) Pty Ltd (No. 2) [2017] NSWSC 1090). Today the plaintiff has filed a summons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCA 230
Decision Date: 23 August 2017

CaseChat Overview and Summary

Creata (Aust) Pty Ltd (the applicant) sought an extension of time to comply with a statutory demand issued by Gary Adrian Faull (the respondent). The applicant intended to apply for leave to appeal a primary judge's decision that refused to set aside the statutory demand. The matter came before White JA in the Court of Appeal of New South Wales.

The central legal issue was whether an extension of time for compliance with the statutory demand should be granted, given the applicant's intention to seek leave to appeal the refusal to set aside that demand. This required the court to consider whether there was a material possibility of prejudice to the applicant, whether the grounds of appeal were sufficiently arguable, and whether any appeal would be rendered nugatory if an extension were not granted.

White JA granted the extension of time. The court applied principles relating to the granting of extensions in the context of statutory demands and appeals. The decision was influenced by the applicant's undertaking to pursue an expedited hearing of its application for leave to appeal and any subsequent appeal. This undertaking addressed concerns about the potential for the appeal to become nugatory.

The orders made provided that the time for compliance with the statutory demand was extended until seven days after the determination of the applicant's application for leave to appeal and any appeal. The costs of the notice of motion hearing were awarded to the applicant, and the matter was listed for directions.

Orders

Orders of the court

1. Upon the applicant by its counsel undertaking to do all things that are necessary on its part to obtain an expedited hearing of the application for leave to appeal and of any appeal if leave is granted, order pursuant to s 459F of the Corporations Act 2001 that the time for compliance with the respondent’s Statutory Demand issued to the applicant dated 30 January 2017 be extended until seven days after the determination of the applicant’s application for leave to appeal and of any appeal.

2. Order that the costs of the hearing of the notice of motion filed 22 August 2017 today be the applicant’s costs on the application for leave to appeal.

3. Stand over to the Registrar’s list for directions on Monday, 28 August 2017.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Creata (Aust) Pty Ltd v Gary Adrian Faull [2017] NSWCA 230
Hearing dates:	23 August 2017
Date of orders:	23 August 2017
Decision date:	23 August 2017
Before:	White JA
Decision:	1. Upon the applicant by its counsel undertaking to do all things that are necessary on its part to obtain an expedited hearing of the application for leave to appeal and of any appeal if leave is granted, order pursuant to s 459F of the Corporations Act 2001 that the time for compliance with the respondent’s Statutory Demand issued to the applicant dated 30 January 2017 be extended until seven days after the determination of the applicant’s application for leave to appeal and of any appeal. 2. Order that the costs of the hearing of the notice of motion filed 22 August 2017 today be the applicant’s costs on the application for leave to appeal. 3. Stand over to the Registrar’s list for directions on Monday, 28 August 2017.
Catchwords:	CORPORATIONS — Winding up — Statutory demand — Failure to comply with statutory demand — whether extension of time for compliance with statutory demand ought to be granted in circumstances where applicant intends to apply for leave to appeal from primary judge’s decision to refuse to set aside the statutory demand — extension granted APPEALS — Application for leave to appeal — whether material possibility of prejudice — whether grounds are sufficiently arguable — whether appeal would be rendered nugatory
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Corporations Act 2001 (Cth), s 459F Supreme Court Act 1970 (NSW), s 46
Cases Cited:	Aus Asia Minerals Ltd v Ball [2015] WASCA 251 Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544 Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 Creata (Aust) Pty Ltd (No. 2) [2017] NSWSC 1090 Jem Developments Pty Ltd v Hansen Yuncken [2006] NSWSC 1378; (2006) 60 ACSR 393 N A Investments Holdings Pty Ltd v Perpetual Nominees Ltd [2010] NSWSC 373 Re Britten-Norman Pty Ltd [2013] NSWSC 424
Category:	Procedural and other rulings
Parties:	Creata (Aust) Pty Ltd (Applicant) Gary Adrian Faull (Respondent)
Representation:	Counsel: S Foda (Applicant) D Sulan (Respondent) Solicitors: Connor & Co Lawyers (Applicant) Arnold Bloch Liebler (Respondent)
File Number(s):	2017/256550
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2017] NSWSC 1090 Date of Decision: 18 August 2017 Before: Black J File Number(s): 2017/51706