ANABROOK PTY LIMITED v RAWSON [1999] NSWCA 271

New South Wales Court of Appeal CITATION : ANABROOK PTY LIMITED v RAWSON [1999] NSWCA 271 FILE NUMBER(S) : CA 40492/98 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 26 July 1999

PARTIES : Anabrook Pty Limited - Claimant Brenda Lydia Christina Rawson - Opponent JUDGMENT OF : Sheller JA at 1; Stein JA at 7; Cole AJA at 8

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : 4456/92 LOWER COURT JUDICIAL OFFICER : Einstein J

COUNSEL : M J Slattery QC/B J Skinner - Claimant G L Turner - Opponent SOLICITORS : Howards Solicitors - Claimant Hickson Wisewoulds - Opponent CATCHWORDS : LEAVE TO APPEAL - where claimant company is no longer trading - leave to appeal not granted ACTS CITED : N/A CASES CITED: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 DECISION : Leave to appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40492/98 CL 4456/92 SHELLER JA STEIN JA COLE AJA Monday, 26 July 1999

ANABROOK PTY LIMITED v RAWSON JUDGMENT

1 SHELLER JA: These proceedings were begun by the opponent, Brenda Lydia Christina Rawson, against the claimant, Anabrook Pty Limited, following upon the failure of the claimant to satisfy a statutory demand given by Mrs Rawson under the Corporations Act 1989. A summons was filed by Mrs Rawson for the winding-up of the company based upon insolvency, the evidence being the failure to comply with the notice. Some years went by and a number of affidavits were filed. The proceedings were then set down for hearing. 2 An application was made on behalf of the company to have them struck out as an abuse of process. That application came before Master McLaughlin, who upheld the contention and struck the proceedings out. There was an appeal which came before Justice Einstein, who upheld the appeal and made a series of orders. This is an application by the company for leave to appeal from Justice Einstein's decision. 3 It appears that since Justice Einstein gave his decision, the company has ceased trading. It also appears that in accordance with orders he has made, a statement of claim has been filed on behalf of the opponent. Mr Slattery QC, who appears for the claimant, informs us that he reads that statement of claim as no longer relying upon insolvency as a ground for winding the company up. Apparently now the opponent relies upon oppression. 4 However, this all seems to be beside the point, since the company is no longer trading. That being so, another ground relied upon by the opponent, namely, it is just and equitable that the company be wound up, would seem to be available on the simplest of evidence. 5 Having read Justice Einstein's judgment, I am not persuaded that there is any error in the course that his Honour took. Mr Slattery has suggested that perhaps too precise or greater emphasis was placed upon the decision of the High Court in State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, and refers to decisions which are to the effect that when insolvency is alleged that is the primary question. Justice Einstein's decision is said to be inconsistent with that approach. However, as I have said, in my opinion, Justice Einstein's judgment has not demonstrated any error. What his Honour did seemed to be a sensible and convenient method for dealing with litigation that had been lying around for some years due to the parties' failure to get on with it. 6 In the circumstances, in my opinion, this application for leave to appeal should be dismissed with costs. 7 STEIN JA: I agree. 8 COLE AJA: I also agree. ******