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 2003JUDGMENT 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 CATCHWORDS: CORPORATIONS - Statutory demand - Reference to repealed statute - Whether a valid demand - PRACTICE - APPEALS - Appeal from appeal to single judge - Whether as of right.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.101CASES 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 290PARTIES :
Quitstar Pty. Limited - appellant
Cooline Pacific Pty. Limited - respondentFILE NUMBER(S): CA 40432/02 COUNSEL: Mr. D. Knaggs, Solicitor, for appellant
Mr. B.J. Burke for respondentSOLICITORS: 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 1886/02Monday 8 December 2003SHELLER JA
HODGSON JA
McCOLL JA
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)…
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- Case
- [2003] NSWCA 359
- Decision Date
CaseChat Overview and Summary
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
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Evidence
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Decision
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