Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gestion Pty Limited v Kit Digital Australia Pty Limited (In Liquidation) ACN 101 260 182 [2015] NSWCA 198 Hearing dates: 6 July 2015 Decision date: 06 July 2015 Before: Meagher JA Decision: 1. Grant leave to the applicant/appellant to begin and proceed with the appeal. 2. Make no order as to the costs of this application. Catchwords: APPEAL – application for leave to appeal under s 500(2) of the Corporations Act 2001 (Cth) – where application not opposed and security for costs provided – leave granted – no question of principle Legislation Cited: Corporations Act 2001 (Cth) Category: Procedural and other rulings Parties: Gestion Pty Limited (Applicant/Appellant) Kit Digital Australia Pty Limited (In Liquidation) ACN 101 260 182 (First Respondent) Stephen Longley, Marcus Ayres and Nicholas Martin in their capacity as former joint and several administrators and in their capacities as joint and several liquidators of Kit Digital Australia Pty Limited (In Liquidation) ACN 101 260 182 (Second Respondent) Representation: Counsel: Mr A F Fernon (Applicant/Appellant) No appearance for the Respondents Solicitors: Yates Beaggi (Applicant/Appellant) Norton Rose Fulbright (First and Second Respondents) File Number(s): 2014/343552 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MEAGHER JA: The applicant, Gestion Pty Ltd, seeks leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to begin and proceed with its appeal from the decision of the primary judge, Black J, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547. 2. I am informed by Mr Fernon, who appears for the applicant, that the respondents do not consent to that application nor do they oppose it. I am also informed by Mr Fernon that security for the costs of the appeal has been provided by agreement between the parties. 3. The first respondent company went into liquidation on 13 February 2013. On 9 September 2013 the applicant was granted leave to bring and proceed with a claim that the first respondent holds the sum of $181,445 on trust for it. On 6 November 2014 an order was made by Black J dismissing that claim. The appeal is brought from that order. 4. The applicant's written submissions in support of the appeal have been filed. They are primarily directed to the primary judge's factual findings leading to the rejection of the claim that the moneys received by the first respondent had to be kept separately and are held on trust. The respondents do not contend that the appeal is not arguable. 5. In the circumstances, leave to begin and proceed with the appeal should be granted. The parties have agreed that there should be no order as to the costs of this application. 6. Accordingly, I make the following orders: 1. Grant leave to the applicant/appellant to begin and proceed with the appeal. 2. Make no order as to the costs of this application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2015