New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc

New Acland Coal Pty Ltd sought to wind up Oakey Coal Action Alliance Inc, an incorporated association, on the basis that it was insolvent. The association argued that the application should be stayed or adjourned until after the hearing of its appeal to the High Court, which had been granted special leave to appeal on 5 June 2020. The association contended that the refusal of a stay of the winding up application would be likely to result in a substantial injustice to it. The applicant argued that there were valid discretionary considerations in favour of making the winding up order, including the fact that the association had not consented to the release of security held by the Court of Appeal, and the debt under the costs order was substantial.

The court considered the discretionary factors relevant to the application for a stay or adjournment, and found that there was a reasonable prospect that the High Court would disturb the costs orders, given the tortuous path of the litigation and the wide discretion in relation to costs. The court also found that an order for the winding up of the association did not affect the authority of the High Court nor would it render the appeal nugatory. The court drew the inference that the winding up of the association would impact adversely upon the prospects of the appeal being prosecuted and determined with the result that, in practical terms, the association would lose the chance it now had to prevent the grant of the mining tenements. The court also found that the applicant's foreshadowed application for security for costs of the appeal in the High Court was irrelevant to whether the winding up application should be stayed or adjourned.

The court made an order that the application to wind up the association is adjourned to a date to be fixed after determination by the High Court of Australia of the appeal against the orders of the Court of Appeal made in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors [2019] QCA 238. The court also gave each party liberty to apply and reserved costs.