BENANA PTY LTD v DEPUTY COMMISSIONER OF TAXATION [1990] NSWCA 23

BENANA PTY LTD v DEPUTY COMMISSIONER OF TAXATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 23 April 1990, 26 April 1990 [1990] NSWCA 23

PRACTICE and PROCEDURE — Court of Appeal — removal of proceedings to — statement of questions to be decided or determined by — proper procedure for — order by Master that company be wound up — appeal by company to Judge of Division (Young J) — Judge purports to remove "the appeal" to the Court of Appeal — objection to competency of such removal — held: (1) The power of removal of the entire proceedings to the Court of Appeal under s51 is limited, in the case of appeals to appeals under Acts other than the Supreme Court Act, 1970; (2) Accordingly, as the appeal from the Master to the Judge was under that Act, the proceedings could not be removed in their entirety to the Court of Appeal pursuant to s51; (3) In the terms of the order made, Young J had not purported to state specified questions to be decided or determined by the Court of Appeal pursuant to Pt12 Rule 2 SCR; (4) Accordingly, the objection to competency was correct, the matter was not properly in the Court of Appeal and the proceedings should be returned to Young J; (5) In any case, as there were outstanding questions of fact to be determined, any reference to the Court of Appeal was premature.

COMPANY LAW — winding up — creditor's petition states that company is indebted to him — whether affidavit deposing to that fact should be admitted pursuant to s82 Supreme Court Act 1970 — whether evidence should be rejected as on the issue critical for the proceedings — whether proceedings based on an overstatement in a notice under s364 Companies (New South Wales) Code invalid — Processed Sands Pty Limited vy Thiess Constructions Pty Limited [1983] 1 NSWLR 384; Re Fabo Pty Limited (1988) 14 ACLR 518 referred to — held: Proceedings not properly referred to the Court of Appeal — returned to Young J for determination of factual questions.