Xu v Megaward Pty Ltd

The appeal concerned a winding up application brought by the appellant, Xu, against the respondent, Megaward Pty Ltd. The primary judge had dismissed the winding up application, finding that Megaward Pty Ltd had discharged the onus of displacing the presumption of insolvency that arose from its failure to comply with a statutory demand. Xu sought to appeal this decision.

The Court of Appeal was required to determine two principal issues. Firstly, whether the presumption of insolvency under section 459C(2) of the *Corporations Act 2001* (Cth) had been displaced by the primary judge's findings, and if so, whether the primary judge had erred in law in reaching those findings. Secondly, the Court considered the competency of the appeal, specifically whether it lay as of right or required leave, by reference to section 101(2)(n) and (r) of the *Supreme Court Act 1970* (NSW).

The Court held that the primary judge had correctly applied the principles relating to the presumption of insolvency and had not made any error of law in concluding that Megaward Pty Ltd had discharged its onus. The Court further determined that the appeal lay as of right, as it involved a claim or question respecting property amounting to more than $100,000, and was not an appeal from a judgment or order for the winding up of a corporation in the sense that would require leave.

Ultimately, the appeal was dismissed. The respondent's notice of motion and summons seeking leave to appeal were dismissed, and the respondent was ordered to pay the appellant's costs of those proceedings. However, the appellant was ordered to pay the respondent's costs of the appeal itself.