Masri Apartments Pty Limited (In Liquidation) & Anor v Perpetual Nominees Limited [2004] NSWCA 255

Reported Decision : (2004) 22 ACLC 1411

New South Wales Court of Appeal

CITATION : Masri Apartments Pty Limited (In Liquidation) & Anor v Perpetual Nominees Limited [2004] NSWCA 255 HEARING DATE(S) : 19/07/04, 27/7/04 JUDGMENT DATE : 30 July 2004

JUDGMENT OF : Ipp JA at 1 DECISION : (1) Leave is granted to Masri Apartments Pty Limited and AUS Constructions Pty Limited, by their directors, Lawrence Debono and Samir Masri, pursuant to s 471A(1A)(d) of the Corporations Act (a) To bring an application for a stay of the orders made by Austin J on 24 June 2004 relating to the winding up of Masri Apartments Pty Limited and AUS Constructions Pty Limited and (b) To file and pursue an appeal against that decision of Austin J (2) Until further order, the winding up of Masri Apartments Pty Limited and AUS Constructions Pty Limited and each of them, pronounced on 24 June 2004, is stayed (3) The costs of the application (save for those thrown away, the subject of the order made on 19 July 2004) are costs in the appeal (4) The appeal is expedited and listed for hearing on 23 November 2004.

CATCHWORDS : PRACTICE AND PROCEDURE - Application for stay of a winding up order pending an appeal - Application by directors of a company for leave to pursue an appeal under s 471A of the Corporations Act 2001 (Cth) - Whether appeal has a reasonable prospect of success - Whether prejudice if stay not granted - Whether the application is governed by s 482 of the Corporations Act 2001 (Cth) or Pt 44 r 5 and Pt 51 r 15 of the Supreme Court Rules 1970 (NSW) - Considerations relevant to a grant of approval under s 471A(1A)(d) of the Corporations Act 2001 (Cth) - Protection of the resources of an insolvent company. D LEGISLATION CITED : Corporations Act 2001 (Cth), ss 471A(1A)(d), 482 Supreme Court Rules 1970 Pt 44 r 5, Pt 51 r 15 Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 Anderson v Palmer [2002] NSWSC 192 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737 CASES CITED : Lane Cove Council v Geebung Polo Club Pty Limited (No 2) (2002) 41 ACSR 15 Mann v Goldstein [1968] 1 WLR 1091 Niger Merchants Company v Capper (1877) 18 Ch D 557 Rodgers v CJS Panels Pty Ltd [2001] VSC 470 Masri Apartments Pty Limited (In Liquidation) (First Claimant) PARTIES : AUS Constructions Pty Limited (In Liquidation) (Second Claimant) Perpetual Nominees Limited (Opponent) FILE NUMBER(S) : CA 40544/04 COUNSEL : T S Hale SC/J K Chippendall (Claimants) P R Whitford (Opponent) SOLICITORS : M D Nikolaidis & Co (Claimants) Gadens (Opponent)