Ekes v GHS Safety Products Australia Pty Limited (in liq)

[2019] NSWCA 160

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ekes v GHS Safety Products Australia Pty Limited (in liq) [2019] NSWCA 160

Hearing dates:

24 June 2019

Date of orders:

24 June 2019

Decision date:

24 June 2019

Before:

Payne JA

Decision:

(1) List the matter for hearing of the application for leave to appeal on 9 July 2019 at 10.15am;

 

(2) Refuse an interim stay of the orders of Rees J dated 6 June 2019 and stand over the applicant’s notice of motion to 9 July 2019;

 

(3) Direct that any respondent wishing to take part in the application for leave to file and serve any evidence and written submissions by 4pm on 8 July 2019;

 

(4) Liberty to apply by the parties by email to the chambers of Payne JA;

 (5) Direct that the applicant inform the respondents of these orders forthwith.

Catchwords:

REFERRALS – case management – application for leave to appeal - matter listed for leave only hearing

  CIVIL PROCEDURE – Court of Appeal – application for stay of orders appointing – stay refused

Category:

Procedural and other rulings

Parties:

Paul Ekes (Applicant)
GHS Safety Products Australia Pty Limited (in liq) (First Respondent)
John Hyde Page (Second Respondent)

Representation:

Counsel:
L Robison (Applicant)

  Solicitors:
Gardner Ekes Lawyers (Applicant)

File Number(s):

2019/00193026

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Corporations List

Citation:

[2019] NSWSC 668 and [2019] NSWSC 723

Date of Decision:

7 June 2019 and 14 June 2019

Before:

Rees J

File Number(s):

2018/387725

Judgment – EX TEMPORE

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. PAYNE JA: Before me today is a notice of motion dated 19 June 2019 seeking the following orders:

1. the notice of motion be returnable on 24 June 2019;

2. the winding up of the first respondent, hereinafter referred to as GHS, be stayed;

3. in the alternative, the enforcement of the order of the winding up of the first respondent be stayed pending the outcome of the application for leave to appeal and any appeal;

4. leave be given to the applicant pursuant to s 198G(3)(a) of the Corporations Act for the applicant to exercise the function and power of a director of GHS until determination of the application for leave to appeal and any appeal;

5. an order that the plaintiff pay the sum of $23,000 into Court;

6. costs;

7. any further order the Court deems fit.

2. There was no appearance by either respondent in the proceedings today, although I was informed from the Bar table by Mr Robison who appeared for Mr Ekes, that Mr Hyde Page, the second respondent, had asked that the matter be stood over as apparently he is appearing in proceedings in another State.

3. On the application an affidavit of Hector Ekes, sworn 24 June 2019, was read. Relevantly, that affidavit deposes to a meeting which is scheduled for Friday 28 June 2019 between Mr Ekes and the Australian Taxation Officer where Mr Ekes hopes that a tax credit in favour of GHS Safety Products Australia Pty Limited (in liq) in the vicinity of one million dollars may be able to be agreed with the Commissioner of Taxation. It is said that the officer from the Commissioner's office attending that meeting has authority to effect a payment to GHS Safety Products Australia Pty Limited (in liq) in that amount, although I was only told that from the Bar table and it does not appear in the affidavit. Mr Robison asks that accordingly I deal with the application for a stay prior to 28 June 2019.

4. I am not satisfied that sufficient cause has been shown grant an interim stay prior to 28 June 2018. In particular, I am not satisfied that prior to 28 June there will be sufficient time for the respondents, who have only just received the affidavit sworn 24 June 2019, properly to take instructions and determine what attitude they take in these proceedings. I am not satisfied that there is any urgency attaching to the meeting date of 28 June 2019 with the Commissioner of Taxation.

5. Further, I am not satisfied that the existing proceedings properly seek the leave of the Court to proceed against a company in liquidation, and in particular order 4 appearing above in the notice of motion does not appear to me to address the relevant section of the Corporations Act under which leave needs to be sought.

6. I have offered the parties an urgent hearing on the application for leave to appeal on either 5 or 9 July 2019. At least at the moment, Mr Allen, who is briefed for the applicant, is not available on those days.

7. Having regard to what is said to be urgency in this matter, although I am not satisfied that anything need happen by 28 June 2019, I am prepared to set the matter down for an application for leave to appeal on either 5 or 9 July if Mr Ekes wishes to go ahead on those dates.

8. In proposing those dates I have taken into account assurances from the bar table that Mr Allen does not propose to file any additional summary of argument other than that appearing behind tab 2 of the white folder. Mr Robison indicated that no further evidence was sought to be filed.

9. Even if I were satisfied that the jurisdiction of the Court was properly engaged here and I was satisfied that there was a reasonably arguable case that Rees J had erred, nevertheless the balance of convenience weighs against the grant a stay of the appointment of a liquidator in circumstances where the only evidence in favour of such a stay is a proposed meeting with the tax office, which I infer may readily be rescheduled. No other basis is advanced for disturbing what would otherwise be the orderly conduct of the liquidation.

10. In those circumstances, prior to making orders, I will hear Mr Robison about whether I should set the matter down and stand his notice of motion over or simply dismiss the notice of motion now. I will tentatively list the matter for the application for leave to appeal on 9 July 2019. This will be a leave only application.

11. Having heard Mr Robison, I will stand over Mr Robison's notice of motion to 9 July. It may be that there is some remaining utility in the motion. I will not now dismiss the motion despite the reasons that I have just given.

12. I make the following orders:

1. List the matter for hearing of the application for leave to appeal on 9 July 2019 at 10.15am;

2. Refuse an interim stay of the orders of Rees J dated 6 June 2019 and stand over the applicant’s notice of motion to 9 July 2019;

3. Direct that any respondent wishing to take part in the application for leave to file and serve any evidence and written submissions by 4pm on 8 July 2019;

4. Liberty to apply granted to the parties by email to the chambers of Payne JA;

5. Direct that the applicant inform the respondents of these orders forthwith.

**********

Decision last updated: 28 June 2019