Taouk v Assure (NSW) Pty Ltd

[2019] NSWCA 224

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224
Hearing dates:	5 September 2019
Date of orders:	05 September 2019
Decision date:	05 September 2019
Before:	Macfarlan JA; Payne JA; Emmett AJA
Decision:	Summons dismissed as incompetent.
Catchwords:	CORPORATIONS – company in administration – stay of proceedings – s 440D Corporations Act 2001 (Cth) – application for leave to appeal to Court of Appeal – separate “proceeding” from proceedings at first instance – no written consent by administrator to proceedings in Court of Appeal and leave not granted by Court – proceedings dismissed as incompetent
Legislation Cited:	Corporations Act 2001 (Cth), ss 440D, 471B, 500(2)
Cases Cited:	Distinctive FX 9 Pty Ltd v Statewide Developments Pty Limited [2012] NSWCA 393 Ekes v Hyde Page (No 2) [2019] NSWCA 169 Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 Zervas v Burkitt [2019] NSWCA 112
Category:	Procedural and other rulings
Parties:	Joseph Taouk (Appellant) Assure (NSW) Pty Ltd (Respondent)
Representation:	Counsel: F Hicks SC (Appellant) No appearance for Respondent   Solicitors: Gardner Ekes Lawyers (Appellant) No appearance for Respondent
File Number(s):	2019/115207
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Expedition List Citation: [2018] NSWSC 1774 Date of Decision: 23 November 2018 Before: Sackar J File Number(s): 2018/198183

Judgment

1. THE COURT: This is a concurrent hearing of a summons filed on 12 April 2019 seeking leave to appeal from the decision of Sackar J in Joseph Taouk v Assure (NSW) Pty Ltd & Ors [2018] NSWSC 1774 in respect of which final orders were made on 14 December 2018. The respondent company went into administration on 18 January 2018.

2. Section 440D of the Corporations Act 2001 (Cth) provides that a proceeding cannot be begun or proceeded with against a company under administration except with the administrator's written consent or the leave of the Court.

3. There is no evidence before this Court either of leave having been granted or of the administrator's written consent. Indeed, counsel appearing for the applicant said that he was unaware of the grant of any relevant leave and it was apparent from emails in evidence that the administrator did not consent to the proceeding. Authority in this Court indicates that for the purposes of ss 471B and 500(2) of the Corporations Act applications and appeals to the Court of Appeal are to be treated as proceedings separate from those at first instance (Distinctive FX 9 Pty Ltd v Statewide Developments Pty Limited [2012] NSWCA 393 at [13]; Zervas v Burkitt [2019] NSWCA 112 at [14]; Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 at [21]; Ekes v Hyde Page (No 2) [2019] NSWCA 169 at [31]). The language of s 440D is sufficiently similar to conclude that the same operation should be given to it.

4. Accordingly, consent or leave was required in relation to the filing of the summons seeking leave to appeal. As neither was obtained, the summons is dismissed as incompetent.

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Decision last updated: 09 September 2019