Quitstar Pty Ltd v Cooline Pacific Pty Ltd - [2003] NSWCA 359

Reported Decision:
48 ACSR 222
(2004) 22 13 ANZ Insurance Cases 61-600

Court of Appeal

CITATION: Quitstar Pty. Ltd. v. Cooline Pacific Pty. Ltd. [2003] NSWCA 359 revised - 09/12/2003

HEARING DATE(S): 3 October 2003

JUDGMENT DATE:
8 December 2003

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; McColl JA at 39

DECISION: Appeal dismissed with costs.

CATCHWORDS: CORPORATIONS - Statutory demand - Reference to repealed statute - Whether a valid demand - PRACTICE - APPEALS - Appeal from appeal to single judge - Whether as of right.

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth) s.25C
Bankruptcy Act 1966 (Cth) s.306(1)
Corporations Act 2001 (Cth) ss.9, 459E, 459G, 459J, 1370, 1407
Supreme Court Act 1970 (NSW) s.101

CASES CITED: Australian Steel Co. v. Lewis (2000) 109 FCR 33
Bendigo Bank v. Williams 92000) 98 FCR 377
Deputy Commissioner of Taxation v. Clark (2003) 45 ACSR 332
James v. Federal Commissioner of Taxation (1955) 93 CLR 631
Kleinwort Benson Australia Ltd. v. Crowl (1988) 165 CLR 71
Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290

PARTIES :
Quitstar Pty. Limited - appellant
Cooline Pacific Pty. Limited - respondent

FILE NUMBER(S): CA 40432/02

COUNSEL: Mr. D. Knaggs, Solicitor, for appellant
Mr. B.J. Burke for respondent

SOLICITORS: Douglas Knaggs, Potts Point for appellant
Corporations Group Counsel, North Sydney for respondent

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 1886/02

LOWER COURT
JUDICIAL OFFICER : Barrett J

CA 40432/02
ED 1886/02

SHELLER JA
HODGSON JA
McCOLL JA
Monday 8 December 2003

QUITSTAR PTY. LTD. V. COOLINE PACIFIC PTY. LTD.

Judgment

1 SHELLER JA: I agree with Hodgson JA.

2 HODGSON JA: On 30 September 2002, the Court of Appeal dismissed an application brought by the appellant (Quitstar) against the respondent (Cooline) for leave to appeal from a decision of Barrett J in the Equity Division, the effect of which was to uphold the validity of a statutory demand served by Cooline on Quitstar. However, Quitstar had also brought an appeal said to be as of right from that same decision, and that appeal was not then disposed of. The present court has now heard the appeal.

3 The application for leave to appeal was brought because there was some doubt as to whether Quitstar did have an appeal as of right. The relevant provisions are ss.101(1) and 101(2)(p) and (r) of the Supreme Court Act, which are as follows:

101. Appeal in proceedings before the Court

(1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from:

(a) any judgment or order of the Court in a Division, and

(b) without limiting the generality of paragraph (a):

(i) any opinion, decision, direction or determination of the Court in a Division on a stated case,

(ii) any exercise of a power to which section 24 applies, and

(iii) any determination of the Court in a Division in proceedings remitted under subsection (4)…

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: [2003] NSWCA 359
Decision Date: 8 December 2003

CaseChat Overview and Summary

Quitstar Pty Ltd (the applicant) sought to set aside a statutory demand issued by Cooline Pacific Pty Ltd (the respondent). The applicant contended that the statutory demand was invalid because it referred to a repealed section of the Corporations Act 2001 (Cth). The appeal concerned the validity of the statutory demand and whether an appeal from a single judge's decision on such a matter lay as of right.

The primary legal issues before the Court of Appeal were whether the statutory demand, by referencing a repealed provision, was a nullity and therefore invalid, and whether the appeal to the Court of Appeal was an appeal as of right or required leave.

The Court of Appeal held that the statutory demand was not a nullity. It reasoned that the reference to the repealed section was a mere irregularity and did not render the demand fundamentally defective, particularly as the substance of the demand and the applicant's obligations were otherwise clear. The Court further determined that an appeal from a single judge's decision in this context was not an appeal as of right, and leave to appeal was required. Having found no error in the single judge's decision and no basis for granting leave, the Court dismissed the appeal.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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.

CITATION:	Quitstar Pty. Ltd. v. Cooline Pacific Pty. Ltd. [2003] NSWCA 359 revised - 09/12/2003
HEARING DATE(S):	3 October 2003
JUDGMENT DATE:	8 December 2003
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; McColl JA at 39
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CORPORATIONS - Statutory demand - Reference to repealed statute - Whether a valid demand - PRACTICE - APPEALS - Appeal from appeal to single judge - Whether as of right.
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) s.25C Bankruptcy Act 1966 (Cth) s.306(1) Corporations Act 2001 (Cth) ss.9, 459E, 459G, 459J, 1370, 1407 Supreme Court Act 1970 (NSW) s.101
CASES CITED:	Australian Steel Co. v. Lewis (2000) 109 FCR 33 Bendigo Bank v. Williams 92000) 98 FCR 377 Deputy Commissioner of Taxation v. Clark (2003) 45 ACSR 332 James v. Federal Commissioner of Taxation (1955) 93 CLR 631 Kleinwort Benson Australia Ltd. v. Crowl (1988) 165 CLR 71 Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290
PARTIES :	Quitstar Pty. Limited - appellant Cooline Pacific Pty. Limited - respondent
FILE NUMBER(S):	CA 40432/02
COUNSEL:	Mr. D. Knaggs, Solicitor, for appellant Mr. B.J. Burke for respondent
SOLICITORS:	Douglas Knaggs, Potts Point for appellant Corporations Group Counsel, North Sydney for respondent

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 1886/02
LOWER COURT JUDICIAL OFFICER :	Barrett J