Webforge Australia Pty Ltd v Tecniskill Co-operation Pty Ltd [2008] NSWSC 517

New South Wales Supreme Court

CITATION : Webforge Australia Pty Ltd v Tecniskill Co-operation Pty Ltd [2008] NSWSC 517

HEARING DATE(S) : 26/05/08

JUDGMENT DATE : 26 May 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 26 May 2008

DECISION : Leave to proceed granted

CATCHWORDS : CORPORATIONS - winding up - application for leave to proceed against company in liquidation - where winding up order made by a court other than this court - where proceeding to be pursued as an appeal - where the question on appeal will be whether company retains money judgment

LEGISLATION CITED : Corporations Act 2001 (Cth), s 471B

CATEGORY : Procedural and other rulings

King v Yurisich [2006] FCA 1369 CASES CITED : Maamari v Ringwood & Ply Pty Ltd [2005] NSWSC 40; (2005) 187 FLR 477 Sihota v Pacific Sands Motel [2003] NSWSC 119; (2003) 56 NSWLR 721; (2003) 21 ACLC 583 Skinner v Jeogla Pty Ltd [2001] NSWCA 15; (2001) 37 ACSR 106

PARTIES : Webforge Australia Pty Ltd t/as Webforge NSW - Plaintiff Tecniskill Co-operation Pty Ltd - Defendant

FILE NUMBER(S) : SC 14680/07

COUNSEL : Mr P T Newton - Plaintiff

SOLICITORS : Owen Hodge Lawyers - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BARRETT J

MONDAY 26 MAY 2008

14680/07 - WEBFORGE AUSTRALIA PTY LTD v TECNISKILL CO-OPERATION LTD

JUDGMENT

1 The plaintiff makes application for leave under s 471B of the Corporations Act 2001 (Cth) to enable it to continue an appeal against a decision of the Local Court. 2 In the Local Court, the present defendant was successful, as cross-claimant, in obtaining a judgment for more than $30,000 upon the cross-claim. 3 From the perspective of the defendant, as a company in liquidation, that $30,000 or so represents an asset available to creditors in the winding up, assuming that the judgment stands. 4 The defendant became the subject of a winding up order made by the Supreme Court of South Australia. That order was made on 22 January 2008. 5 The fact that the winding up order was made by another court having jurisdiction over the Corporations Act does not mean that this court, which also has jurisdiction, cannot or should not deal with an application such as the present arising in the course of the winding up. I refer, in that respect, to the decision of Austin J in Sihota v Pacific Sands Motel [2003] NSWSC 119; (2003) 56 NSWLR 721 (see also Maamari v Ringwood & Ply Pty Ltd [2005] NSWSC 40; (2005) 187 FLR 477). 6 Another preliminary question is whether an appeal is within the purview of s 471B. It is sufficient to say on that that the decision of the Court of Appeal in Skinner v Jeogla Pty Ltd [2001] NSWCA 15; (2001) 37 ACSR 106 indicates that it is and that that view was acted upon by Weinberg J in King v Yurisich [2006] FCA 1369. I should proceed on that basis. 7 As to the merits, the position is, as I have said, that the question on appeal is, in essence, whether an asset will be available in the winding up. There is no other vehicle for that proposition to be tested and, while that of itself is not determinative of an application such as this, it is a highly relevant factor. 8 Another highly relevant matter is the attitude of the liquidator. In this case the liquidator has informed the plaintiff in writing that he neither consents to nor opposes the present application. I may therefore proceed on the basis that the liquidator has no view adverse to the grant of leave. In particular, it is not suggested that the attention of the liquidator will be diverted from more important matters. 9 In the whole of the circumstances, it is appropriate that the discretion of the court be exercised in favour of the plaintiff. I therefore make order 1 and order 2 in the notice of motion filed on 12 May 2008. **********