Judgment
1 IPP JA: On 8 December 2003 Austin J delivered judgment in respect of two sets of proceedings before him. The claimant, Aroona Developments Pty Limited (In Liquidation) ("Aroona"), was the plaintiff in one set of proceedings. The opponent, Mrs Rosanne Killen, was the plaintiff in the other.
2 Both sets of proceedings were appeals under s 1321 of the Corporations Act (Cth) 2001. The appeals were against decisions by Mr Rennie, the liquidator of Rotor-Work Pty Limited ("Rotor-Work"), whereby Mr Rennie had rejected proofs of debt lodged by Aroona and Mrs Killen.
3 Mrs Killen was a party to the appeal brought by Aroona and Aroona was a party to the appeal brought by Mrs Killen. The liquidator submitted to the orders of the Court, except with respect to costs. Austin J ordered that the two appeals be heard together, and that the evidence in one be evidence in the other.
4 The proofs of debt of Aroona and Mrs Killen related to the same facts and transactions and the hearing before Austin J proceeded on the basis that both Aroona and Mrs Killen claimed the sum of $616,041.
5 The proof of debt of Aroona described the debt as "loan funds". Mrs Killen's proof of debt described the amount claimed as "monies beneficially owned by me, loaned by my trustee, Aroona Developments Pty Limited, to Rotor-Work Pty Limited".
6 Before Austin J, Aroona sought an order that its proof of debt in the amount of $616,041 be admitted in the liquidation of Rotor-Work. This was opposed by Mrs Killen who, in the alternative, sought a declaration that any monies received by Aroona, pursuant to the admission of its proof of debt, were to be held in trust for her. Mrs Killen, in her appeal before Austin J, sought an order admitting her proof of debt in the amount of $616,041.
7 Austin J dismissed Mrs Killen's appeal but upheld that of Aroona. His Honour ordered that Aroona be entitled to prove as an unsecured creditor in the winding up of Rotor-Work in the sum of $616,041. He made no declaration in the terms sought by Mrs Killen.
8 Mrs Killen's amended notice of appeal relating to the proceedings brought by Aroona before Austin J seeks an order setting aside his Honour's orders, including that Aroona's proof of debt be admitted, and "[i]n lieu thereof an order dismissing [Aroona's] appeal".
9 Mrs Killen's amended notice of appeal relating to the other proceedings seeks an order setting aside the orders made by Austin J and, in lieu thereof, an order that she be entitled to prove a claim in the liquidation of Rotor-Work in the sum of $616,041.50.
10 By amended notices of motion filed on 27 September 2004 Aroona seeks orders striking out as incompetent Mrs Killen's appeals against the orders made by Austin J. The parties agreed that the motions be determined on the papers by a judge of this Court in chambers. To this end, the parties filed written submissions.
11 Aroona submits that leave to appeal is required under s101(2)(r) of the Supreme Court Act 1970. Alternatively, Aroona submits that leave is required under s 471B of the Corporations Act 2001. Mrs Killen has not sought leave.
12 I turn firstly to the submissions based on s 101(2)(r) of the Supreme Court Act.
13 Section 101(2)(r) provides:
"(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from -
… (r) a final judgment or order in proceedings of the Court, other than an appeal:
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more."
14 Aroona argues that the appeals should be struck out because Mrs Killen "has not filed within the time limited for instituting the appeal[s], or served in that time, an affidavit stating the facts which show that the restriction does not apply in the manner required by Pt 51 r 8 of the Supreme Court Rules". Part 51 r 8 provides:
"Where an appeal to the Court of Appeal is restricted by reference in any Act to a specified amount or value, the appellant shall, within the time limited for instituting the appeal, file and serve on each necessary party an affidavit stating facts which show that the restriction does not apply."
15 Mrs Killen contends that the orders made by Austin J involve "a matter at issue amounting to … $100,000 or more" and, hence, the restrictions contained in s 101(2)(r) do not apply to her appeals.
16 In Oertel v Crocker (1947) 75 CLR 261 the High Court was concerned with s 35(1)(a)(2) of the Judiciary Act (NSW) 1903 (which was not, relevantly, substantially dissimilar from s 101(2)(r)). The relevant provisions of s 35 were as follows:
"35(1) The appellate jurisdiction of the High Court … shall extend to the following judgments … :
(a) Every judgment, whether final or interlocutory, which -
(1) is given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of £300; or
(2) involves directly or indirectly any claim, demand, or question, to or respecting any property or any civil right amounting to or of the value of £300".
17 Latham CJ said at 265:
"Actions for debt or damages are plainly covered by subsection (1). In the case of a claim for a debt of, say, £500, or for £500 damages for breach of contract or tort it is plain that there is a sum or matter at issue. Judgment for the plaintiff for £300 or any greater amount is appealable as of right by the defendant. Judgment for the plaintiff for a smaller amount would not be so appealable. Judgment for the defendant would be appealable as of right by the plaintiff. A judgment for the plaintiff for only £100 upon a claim for £500 would also be appealable by the plaintiff. Where a judgment is given for the recovery of land or for delivery up of a chattel where the land or the chattel is worth more than £300, judgment is not given or pronounced in respect of any particular sum, but it is given or pronounced in respect of a matter at issue amounting to the required value."
18 The Chief Justice in the passage quoted drew a clear distinction between a sum or matter at issue amounting to £300 and a sum or matter at issue of the value of £300. Later, also at 265, his Honour emphasised this distinction when saying:
"In many cases, however, there is no sum or matter in issue and yet something of the value of £300 may be involved directly or indirectly in the judgment. Sub-paragraph (2) of paragraph (a) of s 35(1) represents an endeavour to deal with these other cases. The judgment may be a judgment for an injunction, for specific performance of a contract, for administration of a trust, for a declaration of right, or for the issue of a prerogative writ. In these cases the judgment is not given for a sum or matter at issue between the parties. But nevertheless the issue between the parties - described as a claim, statement or question - may be capable of an estimate of value.
It is the judgment which must involve a claim, demand or question of a particular character."
19 The same point was made by Barwick CJ in Moller v Roy (1975) 132 CLR 622 when dealing with legislation being the Northern Territory equivalent to s 101(2)(r). His Honour said (at 626):
"It would seem that, where there is judgment for a sum, it will be the amount of that judgment rather than the matter at issue in the action in which that judgment is given or pronounced, which will determine the right of appeal."