Jet Midwest, Inc. v Regional Express Holdings Limited trading as Regional Express Airlines (Administrators Appointed)

Jet Midwest, Inc. (the applicant) sought leave to proceed under section 440D of the *Corporations Act 2001* (Cth) against Regional Express Holdings Limited trading as Regional Express Airlines (the respondents), who were in voluntary administration. The dispute concerned property that the applicant claimed belonged to it and was in the possession of the respondents. The administrators of the respondents proposed to seek leave under section 442C of the Act to dispose of this property. The primary court had refused the applicant’s application for leave to proceed under section 440D.

The central legal issue before the Court of Appeal was whether the applicant should be granted leave to proceed under section 440D of the *Corporations Act 2001* (Cth) to seek the delivery up of the disputed property. This required the Court to consider the principles governing the grant of such leave, particularly in circumstances where the respondents were under administration and their administrators intended to seek leave to sell the property. A further issue arose concerning the applicant's application for leave to appeal the primary court's decision.

The Court of Appeal determined that the primary judge had correctly applied the relevant principles in refusing leave under section 440D. The Court noted that section 440D requires a party seeking to commence or continue proceedings against a company in administration to obtain leave, and that such leave is not granted as a matter of course. The Court found that the applicant had not demonstrated a sufficient basis to displace the statutory stay on proceedings and that the administrators' intention to seek leave to sell the property under section 442C was a relevant consideration. However, the Court granted leave to appeal the primary decision, finding that the application raised a point of principle concerning the interplay between sections 440D and 442C, and that an appeal was warranted to address this. Despite granting leave to appeal, the Court ultimately dismissed the appeal.

The Court ordered that leave to appeal be granted, but that the appeal itself be dismissed. The applicant was ordered to pay the respondents’ costs in the Court of Appeal.