(k) where the decision of the associate Judge is a final decision other than:
(i) a decision on an application for a summary judgment, or
(ii) a decision on an application for a summary dismissal of proceedings."
8 This provision, clearly enough, describes the cases in which an appeal lies to the Court of Appeal from a decision of the court in a division constituted by an Associate Judge, making it clear that such an appeal is an appeal in accordance with s101 and s103 of the Act.
9 One such case is the case set out in par (k) of Part 60 rule 17. That paragraph has been in its current form since 27 August 2004. It refers to the case where the decision of the Associate Judge is a final decision, other than a decision on an application for a summary judgment, or a decision on an application for a summary dismissal of proceedings.
10 It is submitted on behalf of the defendant that the orders made by the Associate Judge on 16 August 2004 were final orders. The plaintiff says that each order (or, at least, the order extending time for compliance with the statutory demand) was not a final order but, rather, an interlocutory order.
11 I accept the submission made on behalf of the defendant and reject the submission made on behalf of the plaintiff. It is made clear by the decision of the Court of Appeal in A-Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 17 ACSR 176 that an order setting aside a statutory demand is a final order. Equally, an order dismissing an application for an order setting aside a statutory demand must be a final order. The fact that, at the same time, an order is made extending time for compliance with the statutory demand does not change the quality of the dismissal order, nor can the order extending time be regarded in its own right as an interlocutory order. The simple fact is that, following the making of both such orders on 16 August 2005, the proceedings in which the plaintiff sought to challenge the statutory demand were complete. No further question remained to be agitated between the parties in respect of the subject matter of that proceeding. No further order remained to be sought in the proceeding. No further submissions remained to be made. No further step remained to be taken. No further relief was in contemplation, so far as that proceeding was concerned. It is, of course, impossible to argue that the orders dealing with the statutory demand somehow stood in an interlocutory relationship to any separate and subsequent proceeding seeking a winding up order that the defendant might choose to initiate on the basis of the statutory consequences of failure to comply with the statutory demand, assuming non-compliance with it within the extended period.
12 I might add that the nature of an order of this kind as a final order is borne out by the decision of the Victorian Court of Appeal in Buckland Products Pty Ltd v Deputy Commissioner of Taxation [2003] VSCA 85 and is, I think, also recognised in the more recent decision of the Court of Appeal of this court in Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24.
13 My conclusion, therefore, is that the present case is within Part 60 rule 17(k) of the Supreme Court Rules so that the correct avenue of appeal is that laid down by Part 60 rule 17, namely, appeal to the Court of Appeal; and that the residual or default power of the court constituted by a judge to hear an appeal from an Associate Judge (preserved, as I have said, by Part 45 rule 5 of the Uniform Civil Procedure Rules 2005) is not exercisable in this case.
14 The purported appeal to the court constituted by a judge is therefore incompetent and will be dismissed accordingly.