Islam v Australian Real Estate Relation Pty Ltd - [2023] NSWCA 47

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Islam v Australian Real Estate Relation Pty Ltd [2023] NSWCA 47
Hearing dates: 20 March 2023
Date of orders: 23 March 2023
Decision date: 23 March 2023
Before: Gleeson JA
Decision:
(1) Dismiss the applicant’s notice of motion filed 6 March 2023.
(2) Order that the applicant pay the second and third respondents’ costs of the stay application.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — Application for stay of winding up order pending proposed appeal — Where winding up on the just and equitable ground — Where applicant director of the company — Whether proposed appeal raises an arguable case — Whether balance of convenience favours stay of winding up order

Legislation Cited:
Corporations Act 2001 (Cth), ss 461(1)(k), 467(4)
Supreme Court Act 1970 (NSW), s 101(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr, 51.18(1), 51.18(2)

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Australian Securities and Investments Commission v AGKM Green Pty Ltd [2017] FCA 846
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Ratul v Islam; In the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78
Vasco Trustees Ltd (as Trustee of the IPO Wealth Fund) v IPO Wealth Holdings No 2 Pty [2020] VSC 733
Vaughan v Dawson [2008] NSWCA 169

Category: Procedural rulings
Parties: Md Rajibul Islam (Applicant)
Australian Real Estate Relation Pty Ltd (First respondent)
Abu Walid Ratul (Second respondent)
Farha Diba (Third respondent)
Representation:
Counsel:
R Islam (Self-represented) (Applicant)
D Levi (Liquidator of First respondent)
J Raftery (Second and Third respondents)
Solicitors:
Mitry Lawyers (Second and Third respondents)

File Number(s): 2023/50407
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division – Corporations List

Citation:

[2023] NSWSC 78

Date of Decision:

10 February 2023

Before:

Black J

File Number(s):

2022/277860; 2022/325554

Judgment

GLEESON JA: Before the Court is an application by Rajibul Islam for a stay pending a proposed appeal against orders made by Black J on 10 February 2023 that Australian Real Estate Relation Pty Ltd (the company) be wound up and Mr David Levi be appointed as the liquidator of the company: Ratul v Islam; In the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78. The winding up order was made on the just and equitable ground under s 461(1)(k) of the Corporations Act 2001 (Cth).

Background

Up until 30 November 2022, the company conducted the business of a licensed real estate agency at Ingleburn as a franchisee of Raine & Horne Real Estate. Each of Mr Islam and Mr Abu Ratul held 50 fully paid shares in the company and each were directors and secretaries of the company. Disputes arose between Mr Islam and Mr Ratul in mid-2022, as recorded by the primary judge at [4]-[9]. Mr Ratul commenced proceedings for the winding up of the company. Mr Islam brought separate proceedings…

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: [2023] NSWCA 47
Decision Date: 23 March 2023

CaseChat Overview and Summary

In *Islam v Australian Real Estate Relation Pty Ltd*, the applicant, a director of the company, sought a stay of a winding up order pending an appeal against that order. The winding up had been made on the just and equitable ground.

The Court of Appeal was required to determine whether the proposed appeal raised an arguable case and whether the balance of convenience favoured granting a stay of the winding up order.

Gleeson JA considered the grounds of the proposed appeal and concluded that they did not raise an arguable case. Consequently, the court found that the balance of convenience did not favour granting a stay.

The applicant's notice of motion filed on 6 March 2023 was dismissed, and the applicant was ordered to pay the second and third respondents’ costs of the stay application.

Orders

Orders of the court

(1) Dismiss the applicant’s notice of motion filed 6 March 2023.

(2) Order that the applicant pay the second and third respondents’ costs of the stay application.

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:	Islam v Australian Real Estate Relation Pty Ltd [2023] NSWCA 47
Hearing dates:	20 March 2023
Date of orders:	23 March 2023
Decision date:	23 March 2023
Before:	Gleeson JA
Decision:	(1) Dismiss the applicant’s notice of motion filed 6 March 2023. (2) Order that the applicant pay the second and third respondents’ costs of the stay application.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — Application for stay of winding up order pending proposed appeal — Where winding up on the just and equitable ground — Where applicant director of the company — Whether proposed appeal raises an arguable case — Whether balance of convenience favours stay of winding up order
Legislation Cited:	Corporations Act 2001 (Cth), ss 461(1)(k), 467(4) Supreme Court Act 1970 (NSW), s 101(2)(a) Uniform Civil Procedure Rules 2005 (NSW), rr, 51.18(1), 51.18(2)
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Australian Securities and Investments Commission v AGKM Green Pty Ltd [2017] FCA 846 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Ratul v Islam; In the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78 Vasco Trustees Ltd (as Trustee of the IPO Wealth Fund) v IPO Wealth Holdings No 2 Pty [2020] VSC 733 Vaughan v Dawson [2008] NSWCA 169
Category:	Procedural rulings
Parties:	Md Rajibul Islam (Applicant) Australian Real Estate Relation Pty Ltd (First respondent) Abu Walid Ratul (Second respondent) Farha Diba (Third respondent)
Representation:	Counsel: R Islam (Self-represented) (Applicant) D Levi (Liquidator of First respondent) J Raftery (Second and Third respondents) Solicitors: Mitry Lawyers (Second and Third respondents)
File Number(s):	2023/50407
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2023] NSWSC 78 Date of Decision: 10 February 2023 Before: Black J File Number(s): 2022/277860; 2022/325554