Distinctive FX 9 Pty Ltd v Statewide Developments Pty Ltd

[2012] NSWCA 393

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited [2012] NSWCA 393

Hearing dates:

26 November 2012

Decision date:

03 December 2012

Before:

Beazley JA

Decision:

Proceedings in Distinctive FX 9 Pty Limited v Statewide Developments Pty Limited (In Liquidation) CA 2012/210989 are stayed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE & PROCEDURE - Application for security for costs - Respondent company wound up in insolvency - Whether leave of Court required to commence appeal proceedings - Appeal is a new proceeding - Leave of Court required - No application for leave to proceed made - Court has no power to deal with application for security for costs - Proceedings are stayed - Corporations Act 2001 (Cth), s 471B.

Legislation Cited:

Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005

Cases Cited:

Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277
BPM Pty Ltd v HPM Pty Ltd (1996) 14 ACLC 857
Humber & Co v John Griffiths Cycle Company (1901) 85 LT 141
Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2007] NSWCA 338
Skinner v Jeogla Pty Ltd & Ors [2001] NSWCA 15; 37 ACSR 106

Texts Cited:

Keay McPherson: The Law of Company Liquidation, 4th ed

Category:

Interlocutory applications

Parties:

Distinctive FX 9 Pty Limited (Appellant)
Statewide Developments Pty Limited (In liquidation) (Respondent)

Representation:

Counsel:
D K L Raphael (Appellant)
N Cotman SC; J Hyde (Respondent)
Solicitors:
N/A (Appellant)
Mills Oakley (Respondent)

File Number(s):

CA 2012/210989

 Decision under appeal 

Jurisdiction:

9111

Citation:

Statewide Developments Pty Ltd (in liquidation) (receivers and managers appointed) v Azure Property Group (Holdings) Pty Ltd [2012] NSWSC 616

Date of Decision:

2012-06-08 00:00:00

Before:

Pembroke J

File Number(s):

2012/42109

Judgment

1. HER HONOUR: The respondent has brought an application for security of the costs of an appeal brought by the appellant against a decision of Pembroke J. His Honour answered two separate questions in proceedings brought by the respondent for the removal of caveats lodged by the appellant over land of which the respondent was the registered proprietor: Statewide Developments Pty Ltd (in liquidation) (receivers and managers appointed) v Azure Property Group (Holdings) Pty Ltd [2012] NSWSC 616. The appellant had acted as a real estate agent in respect of the sale of the units and is owed a sum of approximately $1.6 M in commissions by the respondent. It had claimed a caveatable interest in the properties pursuant to an unregistered equitable charge arising from a charging clause in an…