Xu v Megaward Pty Ltd [2018] NSWCA 232

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Xu v Megaward Pty Ltd [2018] NSWCA 232 Hearing dates: 4 October 2018 Decision date: 17 October 2018 Before: McColl JA; Meagher JA; Leeming JA Decision: 1. Respondent's notice of motion filed 24 July 2018 dismissed.

2. Summons seeking leave to appeal dismissed.

3. Appeal dismissed.

4. Respondent to pay the appellant's costs of its notice of motion filed 24 July 2018 objecting to the competency of the appeal, and of the summons seeking leave to appeal.

5. Appellant to pay the respondent's costs of the appeal. Catchwords: CORPORATIONS – winding up – presumption of insolvency following failure to comply with statutory demand – primary judge found that company had discharged onus of displacing presumption – no error shown – consideration of whether presumption of insolvency applied to appeal – construction of "three months ending on the day when the application was made" in Corporations Act 2001 (Cth), s 459C(2) considered

PRACTICE – appeal – requirement of leave – appeal by petitioning creditor from judgment dismissing winding up application – whether appeal was from "judgment or order ... for the winding up of a corporation" – whether appeal involved directly or indirectly any claim demand or question to or respecting property amounting to the value of $100,000 – held that appeal lay as of right – Supreme Court Act 1970 (NSW), s 101(2)(n) and (r) considered Legislation Cited: Corporations Act 2001 (Cth), ss 95A, 459C, 459S Courts Legislation Further Amendment Act 1995 (NSW) Judiciary Act 1903 (Cth), s 35(1)(a)(2) Supreme Court Act 1970 (NSW), ss 75A, 101 Cases Cited: Aetna Properties Pty Ltd v G A Listing & Maintenance Pty Ltd (1994) 12 ACLC 404 Anfrank Nominees Pty Ltd v Connell (1989) 1 ACSR 365 Coates Hire Operations Pty Ltd v D-Link Homes Pty Ltd [2011] NSWSC 1279 Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363 Deputy Commissioner of Taxation v De Simone Consulting Pty Ltd [2007] FCA 548 Ebert v The Union Trustee Company of Australia Ltd (1957) 98 CLR 172; [1957] HCA 88 Expile Pty Ltd v Jabb's Excavations Pty Ltd [2003] NSWCA 163; 45 ACSR 711 In re Diamond Fuel Company (1879) 13 Ch D 400 In the matter of Megaward Pty Ltd [2018] NSWSC 444 Kiriwina Investment Company Pty Ltd v Green Lees Developments Pty Ltd [2018] NSWCA 210 Oertel v Crocker (1947) 75 CLR 261; [1947] HCA 40 Re Rick Wilson Pty Ltd and the Companies Act (1982) 7 ACLR 354 Robert H Barber & Co Ltd v Simon (1914) 19 CLR 24; [1914] HCA 69 Rock Bottom Fashion Market Pty Ltd v HR & CE Griffiths Pty Ltd [2000] 2 Qd R 573; [1997] QCA 399 South Western Sydney Local Health District v Gould [2018] NSWCA 69 Category: Principal judgment Parties: Zongqing Xu (Appellant) Megaward Pty Ltd (Respondent) Representation: Counsel: M K Condon SC, P G Sharp, M Bersten (Appellant) N Cotman SC, W R Chan (Respondent)