Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224 Hearing dates: 5 September 2019 Date of orders: 05 September 2019 Decision date: 05 September 2019 Before: Macfarlan JA; Payne JA; Emmett AJA Decision: Summons dismissed as incompetent. Catchwords: CORPORATIONS – company in administration – stay of proceedings – s 440D Corporations Act 2001 (Cth) – application for leave to appeal to Court of Appeal – separate "proceeding" from proceedings at first instance – no written consent by administrator to proceedings in Court of Appeal and leave not granted by Court – proceedings dismissed as incompetent Legislation Cited: Corporations Act 2001 (Cth), ss 440D, 471B, 500(2) Cases Cited: Distinctive FX 9 Pty Ltd v Statewide Developments Pty Limited [2012] NSWCA 393 Ekes v Hyde Page (No 2) [2019] NSWCA 169 Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 Zervas v Burkitt [2019] NSWCA 112 Category: Procedural and other rulings Parties: Joseph Taouk (Appellant) Assure (NSW) Pty Ltd (Respondent) Representation: Counsel: F Hicks SC (Appellant) No appearance for Respondent Solicitors: Gardner Ekes Lawyers (Appellant) No appearance for Respondent File Number(s): 2019/115207 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity – Expedition List Citation: [2018] NSWSC 1774 Date of Decision: 23 November 2018 Before: Sackar J File Number(s): 2018/198183 [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. THE COURT: This is a concurrent hearing of a summons filed on 12 April 2019 seeking leave to appeal from the decision of Sackar J in Joseph Taouk v Assure (NSW) Pty Ltd & Ors [2018] NSWSC 1774 in respect of which final orders were made on 14 December 2018. The respondent company went into administration on 18 January 2018. 2. Section 440D of the Corporations Act 2001 (Cth) provides that a proceeding cannot be begun or proceeded with against a company under administration except with the administrator's written consent or the leave of the Court. 3. There is no evidence before this Court either of leave having been granted or of the administrator's written consent. Indeed, counsel appearing for the applicant said that he was unaware of the grant of any relevant leave and it was apparent from emails in evidence that the administrator did not consent to the proceeding. Authority in this Court indicates that for the purposes of ss 471B and 500(2) of the Corporations Act applications and appeals to the Court of Appeal are to be treated as proceedings separate from those at first instance (Distinctive FX 9 Pty Ltd v Statewide Developments Pty Limited [2012] NSWCA 393 at [13]; Zervas v Burkitt [2019] NSWCA 112 at [14]; Huang v Hua Cheng International Group Pty Ltd [2019] NSWCA 155 at [21]; Ekes v Hyde Page (No 2) [2019] NSWCA 169 at [31]). The language of s 440D is sufficiently similar to conclude that the same operation should be given to it. 4. Accordingly, consent or leave was required in relation to the filing of the summons seeking leave to appeal. As neither was obtained, the summons is dismissed as incompetent. ********** 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: 09 September 2019