Ekes v Hyde Page (No 2)

Case [2019] NSWCA 169

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Ekes v Hyde Page (No 2) [2019] NSWCA 169
Hearing dates: 9 July 2019
Date of orders: 09 July 2019
Decision date: 09 July 2019
Before: Bell P; Payne JA
Decision:

1. Application for leave to appeal dismissed with costs;
2. Applicant’s motion seeking a stay dated 19 June 2019 dismissed with costs;
3. The Court orders costs be paid by Mr Ekes in a lump sum in the amount of $7,500 under s 98(4) of the Civil Procedure Act.

Catchwords: CIVIL PROCEDURE – Court of Appeal – application for leave to appeal – judgment or order of the Court in a Division for the winding up of a corporation – where debt alleged to have been paid prior to appointment of liquidator – application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Corporations Act 2001 (Cth), ss 95A, 459A, 459C
Legal Profession Uniform Law (NSW)
Supreme Court Act 1970 (NSW), s 101
Taxation Administration Act 1953 (Cth), s 8AAZLGA, Sch 1 s 255-5
Cases Cited: Buckland Products Pty Ltd v Deputy Commissioner of Taxation [2003] VSCA 85
Commonwealth Bank of Australia v Begonia Pty Ltd (1993) 11 ACLC 1075
Deputy Commissioner of Taxation v Guy Holdings Pty Ltd [1994] TASSC 126; 116 FLR 314; 14 ACSR 580
Deputy Commissioner of Taxation v De Simone Consulting Pty Limited [2007] FCA 548
Distinctive FX 9 Pty Ltd v Statewide Developments Pty Limited [2012] NSWCA 393
Expile Pty Limited v Jabb’s Excavations Pty Limited [2003] NSWCA 163; 45 ACSR 711
Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32
Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155
In the matter of Day & Night Online Transport Pty Ltd (in liq) [2018] NSWSC 796
Penson v Titan National Pty Ltd [2015] NSWCA 165
Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150
Zervas v Burkitt [2019] NSWCA 112
Category:Principal judgment
Parties: Paul Ekes (Applicant)
GHS Safety Products Australia Pty Ltd (in liq) (First Respondent)
John Hyde Page (Second Respondent)
Representation:

Counsel:
Ms T Wong (Applicant)
Mr J Hyde Page (Second Respondent)

Solicitors:
Gardner Ekes Lawyers (Applicant)
File Number(s): 2019/193026
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity - Corporations List
Citation:
[2019] NSWSC 668
Date of Decision:
6 June 2019
Before:
Rees J
File Number(s):
2018/387725

Judgment

  1. THE COURT: This is an application under s 101(2)(n) of the Supreme Court Act 1970 (NSW) for leave to appeal from a decision of Rees J in the Equity Division: In the matter of GHS Safety Products Australia Pty Ltd [2019] NSWSC 668. The applicant, Mr Paul Ekes, is the former sole director and a shareholder of the company in liquidation.

Relevant facts

  1. The facts found by her Honour in ordering, pursuant to s 459A of the Corporations Act 2001 (Cth), that GHS Safety Products Australia Pty Ltd be wound up in…

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AGLC
Ekes v Hyde Page (No 2) [2019] NSWCA 169
Case
[2019] NSWCA 169
Decision Date

CaseChat Overview and Summary

In *Ekes v Hyde Page (No 2)*, the Court of Appeal considered an application for leave to appeal a judgment or order of the Court in a Division for the winding up of a corporation. The central dispute concerned whether a debt, which formed the basis of the winding-up application, had been paid prior to the appointment of the liquidator.

The primary legal issue before the Court of Appeal was whether the applicant had demonstrated sufficient grounds to warrant leave to appeal the winding-up order. This involved assessing whether there was a reasonably arguable case of error in the primary judge's decision, particularly in light of the applicant's assertion that the debt had been discharged.

The Court of Appeal dismissed the application for leave to appeal. The reasoning, though not detailed in the provided text, indicates that the applicant failed to establish a sufficiently arguable case for appeal. The Court also dismissed the applicant's separate motion seeking a stay of the winding-up order. The applicant was ordered to pay the costs of both the application for leave to appeal and the motion for a stay, with a specific lump sum of $7,500 ordered for costs under section 98(4) of the *Civil Procedure Act*.

Orders

Orders of the court

1. Application for leave to appeal dismissed with costs;

2. Applicant’s motion seeking a stay dated 19 June 2019 dismissed with costs;

3. The Court orders costs be paid by Mr Ekes in a lump sum in the amount of $7,500 under s 98(4) of the Civil Procedure Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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