Makris v Sheahan No. Scgrg-90-2215

In the matter of Bosun Pty Ltd (In Liquidation), Makris and others v Sheahan, the Full Court of the Supreme Court of South Australia addressed an application for leave to appeal against two decisions of Debelle J. The first decision dismissed an appeal against a Master’s refusal to stay an order under s.596A of the Corporations Law, which required the first applicant, Mr Makris, to attend for an examination to determine his ability to satisfy a potential judgment against him. The second decision ruled that an appeal against the first decision required leave and that there was no appeal as of right.

The legal issues before the court were whether the first decision was correct in refusing a stay as an abuse of process and whether the second decision was correct in requiring leave to appeal. The Full Court found that the stay application could not be used to try or form a preliminary view on the merits of the impending action. They agreed with Debelle J that the court’s consideration of the liquidator's prospects of success in the anticipated action should be limited and that there was no evidence of intended misuse of court process. Consequently, the Full Court held that the appeal had no reasonable prospect of success, and leave to appeal the first decision was refused.

Regarding the second decision, the Full Court agreed that the refusal of a stay was an interlocutory order and that the proposed appeal did not raise any issue of principle. They found that applying the well-established principle regarding leave to appeal would not establish any significant point of principle but would merely illustrate its application. Thus, the Full Court refused leave to appeal the second decision as well. The court ordered that leave to appeal against both decisions be refused and directed that notice of the decision be given to the applicants.