Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd

The appeal concerned Masri Apartments Pty Ltd (in liq) and Perpetual Nominees Ltd, with the dispute revolving around the validity of winding-up applications made by a prospective creditor. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether a prospective creditor, who is also a secured creditor, requires leave under section 459P(2) of the Corporations Act 2001 (Cth) to make an application to wind up a company on the ground of insolvency, and whether the court possesses the power to grant such leave retrospectively (nunc pro tunc) if leave was not initially obtained.

The Court of Appeal reasoned that section 459P(2) of the Corporations Act 2001 (Cth) requires a prospective creditor to obtain leave before applying to wind up a company on the ground of insolvency. It was held that this requirement applies even if the prospective creditor is also a secured creditor, and that a secured creditor is not obliged to surrender their security before bringing such an application. The court affirmed that it had the power to grant leave retrospectively to cure the defect of failing to obtain leave initially.

The appeal was dismissed, and leave was granted to the respondent nunc pro tunc to apply for the winding-up orders. The existing winding-up orders made by Austin J were otherwise confirmed, and the appellants were ordered to pay the respondent's costs of the appeal. An order was also made varying a previous stay of the winding-up orders.