Taouk v Assure (NSW) Pty Ltd

The parties to this matter were Taouk, the applicant, and Assure (NSW) Pty Ltd, the respondent. The dispute concerned an application for leave to appeal to the Court of Appeal against a decision made at first instance, in circumstances where the respondent company was in administration. The application was heard by the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the application for leave to appeal constituted a "proceeding" within the meaning of section 440D of the *Corporations Act 2001* (Cth). This section imposes a stay on proceedings against a company in administration, requiring the written consent of the administrator or leave of the court for such proceedings to continue. The Court had to determine if the application for leave to appeal was a separate proceeding from the original proceedings at first instance, and if so, whether the statutory requirements of section 440D had been met.

The Court of Appeal reasoned that an application for leave to appeal is a distinct proceeding from the proceedings at first instance. As such, section 440D applied to the application for leave to appeal. The Court noted that there was no written consent from the administrator of Assure (NSW) Pty Ltd to the institution of this new proceeding, nor had leave been granted by the Court itself. Consequently, the Court found the application for leave to appeal to be incompetent.

The summons was accordingly dismissed as incompetent.