LOW -v- JOONDALUP GOLF MANAGEMENT (AUST) PTY LTD [2023] WASCA 33 (17 February 2023)

The primary proceedings Mr Low's originating process

1. On 26 May 2021, Mr Low filed the originating process in COR 91 of 2021 seeking:[3]
   1. leave pursuant to s 459P(2)(c) of the Act to apply for an order that JM Co be wound up on the ground there was a prima facie case that it was insolvent; and
   2. an order that JM Co be wound up under s 459A of the Act on the ground that it was insolvent.
2. Mr Low's application to wind up JM Co was supported by an affidavit which he affirmed on 25 May 2021, and an affidavit of his solicitor, Mr Lai, affirmed on 26 May 2021.

1. On 5 July 2021, JM Co filed an interlocutory application for the dismissal of Mr Low's application to wind up JM Co in insolvency. JM Co's interlocutory application was supported by an affidavit of Mr Chan made on 5 July 2021. There were responsive affidavits filed on behalf of Mr Low.
2. On 26 July 2021, JM Co filed an amended interlocutory application relevantly, in the following terms:[4]

This application is made ... in the inherent jurisdiction of the court.

On the facts stated in the supporting affidavit(s), [JM Co] applies for the following relief:

...

1. [Mr Low's] application lodged on 26 May 2021 (the Winding Up Application) be dismissed ...

[Mr Low] does not have standing to make the Winding Up Application and it is thereby an abuse of process. (underlining in original)

1. On 27 July 2021, Allanson J heard JM Co's amended interlocutory application to dismiss Mr Low's application for winding up.[5]
2. As noted earlier, the primary judge in effect found as a fact that Mr Low had been removed as a director of JM Co on 5 July 2021.[6]
3. His Honour said:[7]

While [JM Co] put its written case in seven propositions, the substance of the case can be put more succinctly: an application for leave would be refused because Mr Low lacked standing now and would lack it when applying for a winding up order, and even if Mr Low's application was not an abuse of process when commenced, it has been since 5 July 2021 when he was removed as a director because it was bound to fail ...

The critical question, accordingly, appears to be, does an application that was made while Mr Low had standing as a director become an abuse once he ceased to be a director? Because of the limited question before the court, it's unnecessary to set out the facts in greater detail. (emphasis added)

1. His Honour observed that the parties had referred to a number of authorities primarily dealing with applications by a creditor to wind up in insolvency where, after the application was filed, the particular debt founding the application was no longer owing at the time that the application was heard.[8] His Honour said with reference to these authorities:[9]

The authorities, in my opinion, clearly establish that if the application is brought by one or more of those persons and bodies specified in s 459P, subsection (1), the court has jurisdiction to hear it and to make an order that the company be wound up in insolvency under s 459A. They also establish that the application and the power of the court to determine it continue even if the applicant no longer has standing in the sense of still coming within s 459P(1). But that does not determine this application. (emphasis added)

1. His Honour then referred[10] to two further authorities cited by JM Co: Roy Morgan Research Center Pty Ltd v Wilson Market Research Pty Ltd[11] and L & D Audio Acoustics Pty Ltd v Pioneer Electronic Australia Pty Ltd,[12] and said:[13]

Those cases ... refer to the relevance of the concept of abuse of process in this context. They are not more directly relevant, as they are concerned with standing at the initiation of the applicant [sic - application] and not the loss of standing during the course of it. (emphasis added)

1. His Honour emphasised that (1) there was no statutory presumption of insolvency in this particular case, (2) there was no substitutive creditor to 'step in' to continue the application and (3) there was no other person with standing to pursue the application. His Honour thereby found, in effect, that the application to wind up in insolvency was doomed to fail. His Honour said:[14]

The position is this: even if the proceedings having been properly commenced, might continue, Mr Low could not be given leave under s 459P(2), as he is not now within those persons specified in s 459P. This is not a case where for some reason there is a presumption of insolvency so that other creditors might step in and continue the application, nor is there any other person with standing under s 459P who has been identified and who might pursue the application. It is an application brought and continued by Mr Low in a capacity that he no longer holds.

There is no question that the court might in its discretion make an order winding up [JM Co] on Mr Low's application. I do not accept, as argued by [Mr Low], that s 459P(3) is an answer to [JM Co's] case in that the application having been commenced by an applicant with standing the court will be concerned on an application for leave only with whether there's a prima facie case that the company is insolvent. Section 459P(3) is a limitation on the power to grant leave. It does not, in my opinion, have the wider operation contended for by [Mr Low].

I accept, as [JM Co] has submitted, that the continuation of proceedings after 5 July by [Mr Low] are properly characterised as an abuse of the processes of the court. It is, in my opinion, unjustifiably oppressive to [JM Co] to be subject to an application for an order that it be wound up in insolvency when there is no person who currently has standing to pursue that application. (emphasis added)

1. With respect to JM Co's contention that Mr Low sought the winding up process for an ulterior commercial motive, his Honour said:[15]

It is not necessary and I expressly do not make any finding about whether Mr Low has invoked the court's processes for some other illegitimate or collateral purpose. The finding of oppression in these circumstances is enough.

1. His Honour found that the most appropriate remedy to do justice in the circumstances was to dismiss Mr Low's application.[16] On 27 July 2021, his Honour ordered (relevantly):
   1. [Mr Low's] application lodged on 26 May 2021 for leave to apply for an order that [JM Co] be wound up in insolvency and for [JM Co] to be wound up on the ground that it is insolvent be dismissed.

The proper construction and effect of the primary decision

1. It is to be recalled that the judge's reasons were provided extempore. Read as a whole, his Honour appears to have found, in effect, that:
   1. Mr Low had standing to seek a winding up order, with leave, when he filed the application on 26 May 2021.[17]
   2. The court thereupon had and continued to have jurisdiction to hear and determine Mr Low's application, even though he thereafter ceased to be a director.[18]
   3. It would be an abuse of process, however, for Mr Low to continue with the application given that:[19]

(a) he no longer acts in the capacity as a director of JM Co and no longer had 'standing' in the 'sense' of still coming within s 459P(1);
>
> (b) there was no statutory presumption of insolvency on the basis of which other creditors might 'step in' to continue the application; and
>
> (c) there was no other person falling within the category of persons referred to in s 459P who had been identified as potentially pursuing the application.

2. Accordingly, the judge found that, on the proper construction of s 459P, Mr Low was no longer an eligible applicant (with leave) to apply for an order that JM Co be wound up in insolvency once he ceased to be a director, and that the evidentiary materials on which he relied disclosed no other basis on which an application to wind up could arguably succeed.
3. In substance (although not in terms) the judge found, in effect, that Mr Low's application to wind up JM Co was doomed to fail. It was so obviously untenable that it could not possibly succeed, alternatively, it was manifestly groundless.[20]
4. The order of the primary judge dismissing the application was accordingly made in the inherent jurisdiction of the court to stop the abuse (as his Honour saw it) of its process where it is employed for groundless or frivolous or vexatious claims.[21]

1. There is one ground of appeal, as follows:
   1. The learned Judge erred in law in finding that:

1.1 having been removed as a director of [JM Co] subsequent to the commencement of the proceedings below, [Mr Low] 'could not be given leave under section 459P(2)' of the [Act] as the proceedings were being 'continued by [Mr Low] in a capacity that he no longer holds', and thus [Mr Low] does not have standing to pursue the application; and

1.2 as a result, the continuance of the proceedings in such circumstances was an abuse of process.

1. In the 'orders wanted' part of the appellant's case, Mr Low seeks orders including that (1) order 2 of the primary judge's orders (referred to in [16] above) be set aside, and (2) JM Co's interlocutory application as amended be dismissed.

1. The appellant's submissions included the following:[22]
   1. His Honour's reasoning and conclusion were erroneous because, on the proper construction of section 459P, and on the relevant authorities, [Mr Low] did not lose 'standing' to proceed with the action by reason of him ceasing to be a director subsequent to the commencement of the proceedings, and this applies both to the application for leave and the substantive application to wind up [JM Co].

1. Importantly, there is nothing in section 459P that requires the person to continue to fall within one of the categories referred to in subsection (1) after the commencement of the application and until orders are made. Nor is there anything in subsection (2) that requires the person who satisfies the relevant definition upon application to continue to do so prior to the application for leave being heard and determined.[23]
2. As a result, by reason of no more than the proper construction of section 459P, [Mr Low] having had 'standing' to commence the proceedings, the Court thereby had jurisdiction to order that [JM Co] be wound up in insolvency and neither of those things changed when, subsequent to the filing of both applications, [Mr Low] was removed as a director of [JM Co].
3. Mr Low submitted that his analysis was supported by authorities including Motor Terms Co; Sun Heating; DMK Building Materials; Bidald Consulting; and Australian Beverage Distributors.[24]
4. Mr Low also submitted that the authorities of Roy Morgan Research and L & D Audio Acoustics referred to by his Honour did not support JM Co's substantive contentions.[25]
5. Mr Low also submitted that passages in Emanuele v Australian Securities Commission;[26] Deputy Commissioner of Taxation v BK Ganter Holdings Pty Ltd;[27] and Boart Longyear Ltd; in the matter of Boart Longyear Ltd[28] supported his construction of s 459P.

1. JM Co effectively submitted that the judge was correct for the reasons he gave. Its written submissions included:[29]
   1. ... Although Mr Low was a director when the application for winding up was made, he was not when the matter came before the learned primary judge, is not now and will not be in the future.
   2. No order nunc pro tunc or indeed any other form of order can render Mr Low a director as at the date of the hearing before the learned primary judge or now. That is because he was not a director then and is not now. Mr Low lacked standing at the time of the application before the learned primary judge, lacks it now and would lack it were he to apply qua director for a winding up order in the future.
   3. Because Mr Low did not, does not and will not be granted the leave that is required, he could, can and will not be able to 'apply' for a winding up order. He did, does and will not have standing. As such the continuation of the winding up application is an abuse of process.

1. It is plainly wrong, with respect, to contend, as Mr Low does at [16] of his submissions, that cases such as [BK Ganter Holdings] dispose of the issue that was before the learned primary judge. Even if Mr Low had standing to apply for an order that [JM Co] be wound up in insolvency and seek leave to do so on the day that both of these applications were filed, this plainly does not dispose of the application brought by [JM Co] and considered by the learned trial judge. That application was not brought on the basis that the court did not have jurisdiction. It was not put to his Honour, and it is not put to this court, that jurisdiction and standing and abuse of process are coterminous. A court has power within jurisdiction to dismiss a matter before it because a plaintiff does not have standing. A court has power within jurisdiction to dismiss a matter before it because its continuation would be an abuse of the court[']s process. With respect, such propositions are obvious.

1. If it is accepted, as with respect it must be, that a court has power within jurisdiction to dismiss an application for winding up of a company in insolvency; because its continuation would be an abuse of the court[']s process; because the applicant for final orders would not have standing at [sic] seek such orders, this appeal must be dismissed.
2. JM Co referred to authorities on abuse of process, including L & D Audio Acoustics and Treadtel International Pty Ltd v Cocco.[30]

1. At the hearing of the appeal, this court raised with the parties two further issues and sought submissions in relation to them: (1) whether the primary judge's order of 27 July 2021 was an interlocutory order (so as to require leave,[31] and without which the appeal is incompetent[32]), or a final order, and if leave were required, whether it should be granted; and (2) whether, irrespective of the merits of the ground of appeal, s 459R(3) of the Act operated in the circumstances to dismiss Mr Low's application to wind up because it had not been determined within six months after the making of the application on 26 May 2021.
2. Mr Low filed submissions on 8 July 2022 and, in reply, on 5 August 2022, and JM Co filed submissions on 27 July 2022.

1. Mr Low submitted that the test for determining whether an order is final or interlocutory is that stated in Re Luck.[33] Mr Low submitted that in applying this test, it is necessary to determine what the 'rights of the parties' were and whether the judgment in question 'finally determine[d]' them.[34]
2. Mr Low submitted that the order of the primary judge dismissing the application to wind up in insolvency was a final order and that, accordingly, leave was not required. He submitted:[35]
   1. ... The issue of standing, if answered adversely to [Mr Low], was wholly determinative of [Mr Low's] application pursuant to section 459P. It was akin to a defendant's summary judgment application.
   2. The relevant lis between the parties was therefore whether [Mr Low] ought to have leave under section 459P(2)(c) to apply to the Court to wind up [JM Co] and, if so, whether a winding up order should be made. These were the rights which were propounded by the parties for decision in this case.
   3. The [primary orders] finally determined the relevant lis. The [primary orders] finally determined the right of [Mr Low] to apply for leave pursuant to section 459P(2)(c) to apply to the Court for an order that [JM Co] be wound up. The cause of action that was available to [Mr Low] under that section ceased to be available to him.
3. Mr Low also submitted that this analysis was consistent with authority.[36] Mr Low also submitted that the alleged abuse of process found by the judge was distinguishable from that which arose in Re Luck. Mr Low said that the impugned order in Re Luck did no more than refuse leave to serve a writ of summons on 32 defendants, and that none of the authorities cited in Re Luck were analogous to the present case. Mr Low also referred to Bride as trustee of the Pinwernying Family Trust v Stewart[37] in which the court (at [6]) said that in that case the master's order striking out the plaintiff's statement of claim and entering judgment for the defendant finally determined the rights of the parties on the principal cause between them, and that the master's order was therefore a 'final judgment'.[38]
4. Mr Low also submitted that if the judge's order was interlocutory, leave should be granted because (1) the judge's decision was wrong, and (2) the order had the practical operation of finally determining the rights of the parties, and Mr Low's substantive rights were adversely affected.[39] Mr Low contended that JM Co's submissions on the question of leave should not be accepted.[40]

1. Mr Low submitted, in effect, that s 459R had no adverse operation affecting his application to wind up JM Co in insolvency.
2. Mr Low referred to this court's observations in Barboutis v The Kart Centre.[41] In Barboutis, this court said:[42]

[3] In essence, we are of the view that references in s 459R to an application being 'determined' are to an order of the primary court finally disposing of the application by either dismissing it or ordering that the company be wound up in insolvency. Section 459R requires one of those orders to be made within six months, or such period as is extended, and provides for the automatic dismissal of the application to wind up in insolvency if neither of those orders is made within the prescribed period. However, if either an order dismissing the application or an order winding up the company in insolvency is made within the prescribed period, the application has been 'determined', thus satisfying the requirements in s 459R. In exercising its appellate jurisdiction, this court is engaged in deciding the appeal from the determination of the application, rather than itself determining the application for the purposes of s 459R of the [Act]. Section 459R has no application to the exercise of this court's appellate jurisdiction.

...

[22] In our view, a more natural reading of the provision - and one consistent with the statutory context - is that an application to wind up in insolvency is determined when either a winding up order is made or the application under s 459P is dismissed by the primary court. Subject to one exception, s 459R does not speak to or constrain the exercise of this court's appellate jurisdiction on an appeal from either the grant or refusal of an application to wind up in insolvency. That is because the exercise in which this court is engaged is deciding the appeal from the determination of the Winding Up Application, rather than itself determining the original application for the purposes of s 459R of the [Act].

[23] The exception referred to in the previous paragraph is that s 459R would constrain this court from setting aside the order of the primary court which determined the application and remitting the application to the primary court. If this court made orders setting aside the determination without substituting orders that should have been made, then s 459R(3) may operate to automatically dismiss the now undetermined application in the primary court.

[24] Any substituted order made by this court on appeal would ordinarily take effect on the date it was made, and any winding up order would be taken to have commenced at the time provided by s 513A of the [Act]. However, when this court sets aside an order of a primary court determining an application under s 459P and substitutes another order, it is determining the appeal from the primary court's order determining the application, rather than itself determining the application for the purposes of s 459R. Even where a winding up order substituted by this court on appeal takes effect when the order is made, after the period prescribed by s 459R has expired, s 459R is not infringed. (emphasis added) (footnote omitted)

1. Mr Low drew attention to the italicised passages above. He submitted in effect that Barboutis raised, but did not determine, the question of whether s 459R might operate to preclude remitter where, following a successful appeal, the appeal court found that the primary court had erred in dismissing the application to wind up in insolvency, but was not itself in a position to make a final substitutive order for a winding up.[43]
2. Mr Low submitted that the appeal court was not precluded from ordering remitter in this case. He submitted that the judge's order dismissing his application to wind up in insolvency was a final order. This order was made before the expiration of the six‑month period referred to in s 459R(1). That fact is not affected by any order of this court setting aside the primary judge's order.[44] On this basis Mr Low submitted that s 459R(3) is no bar to there being a 'new determination of [his] application [to wind up in insolvency] at the remitted hearing'. Mr Low submitted:[45]
   1. It is accepted that, on this view, it might be said that section 459R(1) then does not apply to further limit the time in which the application needs to be determined. So be it: that is the natural consequence of an application being determined, albeit wrongly so.
3. Mr Low also advanced another construction of s 459R under which remitter would not be precluded:
   1. However, a more natural reading of section 459R(1) - and one that is consistent with the essence of this Court's reasoning in Barboutis - is that the 6‑month time limit in section 459R(1) only runs whilst the winding up application is on foot. Put another way, time stops running for the purposes of section 459R(1) if and when the winding up application is finally disposed of.
   2. If the circumstances are such that the determination of the application is set aside and the appeal court is unable to substitute its own decision, such that the underlying application must be remitted for further hearing, then upon the making of such an order time will resume running for the purposes of section 459R and the 6‑month time limit imposed by section 459R(1) will need to be adhered to.
4. Mr Low contended that any construction of s 459R under which the winding up application would stand dismissed in these circumstances would produce anomalies that the Parliament could not have intended. Mr Low submitted that the 'anomalies' on the alternative approach were:[46]
   1. The time limit imposed by s 459R(1) is taken to apply during a period when, as a matter of fact, the application has been determined (albeit wrongly determined if that is the finding on appeal). It is impossible for an applicant to further prosecute the application to wind up in insolvency thereafter.
   2. It constrains the applicant's ability to apply for an extension of time under s 459R(2). In this case, there was no occasion for Mr Low to seek an extension prior to the hearing before the primary judge on 27 July 2021 and whilst the application was on foot. After that hearing, the judge dismissed the application, and Mr Low could not seek an order under s 459R(2) for an application which had been dismissed.
   3. Such an approach would see s 459R(3) lead to different outcomes, depending on the way in which the primary court finally determined the application and the circumstances of the order dismissing the application. It would be an 'odd result for s 459R(3) to work a dismissal merely because the application was finally determined on the substantive issue of standing, with the consequence that the application is required to be remitted to the primary court ... but that s 459R(3) would be no bar if all issues had been determined by the primary court at the same time as [the Court of Appeal] was [itself] in a position to substitute orders of its own'.
   4. It is unlikely that Parliament intended that s 459R(3) would operate to deprive a party in the position of Mr Low from his right to an appeal from the erroneous dismissal of his application 'on the substantive issue of law merely because the time between the [primary orders] and appeal was such to render the appellate hearing and the hearing remitted application more than six months after the date of the [winding up] application'.
5. Mr Low's submissions concluded:
   1. The [primary orders] finally disposed of the application under section 459P before the expiration of the 6‑month period referred to in section 459R(1). If the application is effectively resurrected by the [primary orders] being set aside on appeal, that conclusion does not change; alternatively the period in which the 6 months is calculated must exclude the period between the date on which the [primary orders] were made and the date on which the [primary orders] are set aside.

1. JM Co contended[47] that the judge's order dismissing Mr Low's application was interlocutory, requiring leave to appeal. Reference was made to Re Luck. JM Co also submitted that in the circumstances leave ought not be granted, including having regard to the absence of any evidence of current insolvency and Mr Low's 'deliberate' failure to apply for an expedited hearing. JM Co also submitted that Barboutis decided that in these circumstances remitter was not available and if the court set aside the judge's order, s 459R(3) would operate to bring about a dismissal of Mr Low's application to wind up in insolvency. JM Co submitted in effect that as this court could not itself make an order winding up JM Co in insolvency (there being no current evidence of insolvency) and as remitter would not be available given the operation of s 459R, it would be futile to grant leave to appeal.

1. Sections 459A, 459C, 459P, 459R, 459S, 465A, 465B, 467, 467A and 470 of the Act provide, relevantly:

459A Order that insolvent company be wound up in insolvency

On an application under section 459P, the Court may order that an insolvent company be wound up in insolvency.

...

459C Presumptions to be made in certain proceedings

(1) This section has effect for the purposes of:

(b) an application for leave to make an application under section 459P.

(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made:

(a) the company failed (as defined by section 459F) to comply with a statutory demand; or

(c) a receiver, or receiver and manager, of property of the company was appointed under a power contained in an instrument relating to a circulating security interest in such property; or

...

459P Who may apply for order under section 459A

(1) Any one or more of the following may apply to the Court for a company to be wound up in insolvency:

(a) the company;

(b) a creditor (even if the creditor is a secured creditor or is only a contingent or prospective creditor);

(c) a contributory;

(d) a director;

(e) a liquidator or provisional liquidator of the company;

(f) ASIC;

(g) a prescribed agency.

(2) An application by any of the following, or by persons including any of the following, may only be made with the leave of the Court:

(a) a person who is a creditor only because of a contingent or prospective debt;

(b) a contributory;

(c) a director;

(d) ASIC.

(3) The Court may give leave if satisfied that there is a prima facie case that the company is insolvent, but not otherwise.

(4) The Court may give leave subject to conditions.

(5) Except as permitted by this section, a person cannot apply for a company to be wound up in insolvency.

...

459R Period within which application must be determined

(1) An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.

(2) The Court may by order extend the period within which an application must be determined, but only if:

(a) the Court is satisfied that special circumstances justify the extension; and

(b) the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.

(3) An application is, because of this subsection, dismissed if it is not determined as required by this section.

(4) An order under subsection (2) may be made subject to conditions.

459S Company may not oppose application on certain grounds

(1) In so far as an application for a company to be wound up in insolvency relies on a failure by the company to comply with a statutory demand, the company may not, without the leave of the Court, oppose the application on a ground:

(a) that the company relied on for the purposes of an application by it for the demand to be set aside; or

(b) that the company could have so relied on, but did not so rely on (whether it made such an application or not).

(2) The Court is not to grant leave under subsection (1) unless it is satisfied that the ground is material to proving that the company is solvent.

...

465A Notice of application

(1) A person who applies under section 459P, 462 or 464 for a company to be wound up must:

(a) lodge notice in the prescribed form that the application has been made; and

(b) within 14 days after the application is made, serve a copy of it on the company; and

(c) cause a notice setting out the prescribed information about the application to be published in the prescribed manner.

(2) If the Court orders the winding up of a company as a result of an application under section 459P, 462 or 464, the liquidator (or provisional liquidator) must cause notice setting out prescribed information about the order to be published in the prescribed manner.

(1) The Court may by order substitute, as applicant or applicants in an application under section 459P, 462 or 464 for a company to be wound up, a person or persons who might otherwise have so applied for the company to be wound up.

(2) The Court may only make an order if the Court thinks it appropriate to do so:

(a) because the application is not being proceeded with diligently enough; or

(b) for some other reason.

(3) The substituted applicant may be, or the substituted applicants may be or include, the person who was the applicant, or any of the persons who were the applicants, before the substitution.

(4) After an order is made, the application may proceed as if the substituted applicant or applicants had been the original applicant or applicants.

(1) Subject to subsection (2) and section 467A, on hearing a winding up application the Court may:

(a) dismiss the application with or without costs, even if a ground has been proved on which the Court may order the company to be wound up on the application; or

(b) adjourn the hearing conditionally or unconditionally; or

(c) make any interim or other order that it thinks fit.

(2) The Court must not refuse to make a winding up order merely because:

(a) the total amount secured by one or more security interests in the property of the company is equal to or greater than the value of the property subject to the interest (or interests); or

(b) the company has no property.

(3) The Court may, on the application coming on for hearing or at any time at the request of the applicant, the company or any person who has given notice of intention to appear on the hearing of the application:

(d) direct a speedy hearing or trial of the application or of any issue or matter; and

(e) allow the application to be amended or withdrawn; and

(f) give such directions as to the proceedings as the Court thinks fit.

467A Effect of defect or irregularity on application under Part 5.4 or 5.4A

An application under Part 5.4 or 5.4A must not be dismissed merely because of one or more of the following:

(a) in any case - a defect or irregularity in connection with the application;

(b) in the case of an application for a company to be wound up in insolvency - a defect in a statutory demand;

unless the Court is satisfied that substantial injustice has been caused that cannot otherwise be remedied (for example, by an adjournment or an order for costs).

(1) An applicant (other than ASIC) for the winding up of a company must:

(a) lodge, not later than 10.30 am on the next business day after the filing of the application, notice of the filing of the application and of the date on which the application was filed; and

(b) after an order for winding up is made - lodge, within 2 business days after the making of the order, notice of the making of the order, of the date on which the order was made and of the name and address of the liquidator; and

(c) if the application is withdrawn or dismissed - lodge, within 2 business days after the withdrawal or dismissal of the application, notice of the withdrawal or dismissal of the application and of the date on which the application was withdrawn or dismissed.

1. Procedural requirements are found under the Act, the Corporations Regulations 2001 (Cth) (Regulations), the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules), the Rules of the Supreme Court 1971 (WA) (RSC), and general guidance provided by the Australian Securities & Investments Commission (ASIC).
2. Unless the Corporations Rules otherwise provide, a person must make an application by filing an originating process: r 2.2(1). An originating process must be in accordance with form 2, and state the section of the Act under which the proceeding is brought and the relief sought: r 2.2(3).
3. Unless the court otherwise directs, an affidavit, stating the facts in support of the process, must support the originating process: r 2.4(1). The supporting affidavit must be made by the plaintiff or by a person with the authority of the plaintiff or plaintiffs: r 5.4(1). It must be made within seven days before the originating process is filed: r 5.4(4). The supporting affidavit must annex a record of a search of ASIC records in relation to the defendant company, carried out no earlier than seven days before the originating process is filed: r 2.4(2). Affidavits must also comply with the requirements of the RSC: r 2.6.
4. If the application is made in reliance on a failure by the defendant company to comply with a statutory demand, the affidavit must (1) verify service of the demand on the company, (2) verify the failure of the company to comply with the demand, and (3) state whether and, if so, to what extent the debt, or each of the debts, to which the demand relates is still due and payable by the company at the date when the affidavit is made: r 5.4(2).
5. As soon as practicable after filing an originating process and, in any case, at least five days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on each defendant to the proceeding, and the corporation (to which the proceeding relates), if that corporation is not a party to the proceeding: r 2.7(1).
6. A plaintiff (other than ASIC) must notify ASIC that the application has been made, via ASIC form 519: s 465A(1)(a) of the Act. This must be done not later than 10.30 am on the next business day after the filing of the application: s 470(1) of the Act. Within 14 days after the application is made, the plaintiff must serve a copy of it on the defendant company: s 465A(1)(b) of the Act. The plaintiff must also publish the information in reg 5.4.01A(2)(b) of the Regulations on ASIC's published notices website: s 1367A of the Act; reg 5.6.75(3) ‑ (4) of the Regulations; note to r 5.6(1) of the Corporations Rules.
7. By s 470(1)(c) of the Act, if the application is dismissed, a plaintiff (other than ASIC) must lodge, via ASIC form 519, within two business days after the dismissal of the application, notice of the dismissal of the application and of the date on which it was dismissed.
8. By r 5.7, a copy of any document filed in the proceeding must be available at the plaintiff's address for service for inspection by a creditor, contributory or officer of the company, or an officer of a creditor or contributory of the company.
9. Before the hearing of the application to wind up the defendant company, the plaintiff must file (via form 8) the consent of a registered liquidator who would be entitled to be appointed as liquidator of the company. The plaintiff must also serve a copy of the consent on the company at least one day before the hearing: r 5.5(3).
10. If a person (eg, the defendant company) intends to appear at the hearing and oppose the application, it must file a notice of appearance (form 4). In form 4, the objector must include notice of the grounds on which it opposes the application, and an affidavit verifying the matters stated in the notice: s 465C of the Act; r 2.9(2) of the Corporations Rules. The objector must file and serve its form 4 no later than three days before the date fixed for the hearing (if the objector is named in an originating process) or one day before the date fixed for the hearing (if the objector is named in an interlocutory process): s 465C of the Act; r 2.9(1)(b), r (3) of the Corporations Rules. Any objector who does not obey the prescribed time limits to file and serve the notice and affidavit, may not oppose the application for winding up without leave of the court: s 465C of the Act.
11. Rule 5.3 provides:

5.3 Application for leave to apply for winding up in insolvency (Corporations Act s 459P(2))

An application for leave to apply to the Court for an order that a company be wound up in insolvency may be made at the same time as the application for an order that the company be wound up in insolvency is made.

Principles The application to wind up a company in insolvency under s 459A of the Act

1. The court is empowered, upon application made to it, to order that a company be wound up in insolvency: s 459A of the Act. Before the discretion to wind up is exercised, insolvency must be established as at the date of the hearing of the winding up application and, it has been accepted, also as at the date that the application for winding up was filed.[48] Given that insolvency is a state of affairs not merely an event at a single point of time,[49] proof of insolvency as at the date of the application may often shed light on the issue of insolvency as at the date of the hearing and vice versa.[50] That is particularly so given the limited period within which such an application is required to be determined under s 459R (discussed later in [93] ‑ [108] below).
2. The evident policy of pt 5.4 of the Act, manifested in part by s 459R, is that there be a speedy resolution of applications to wind up in insolvency.[51] By s 513A(e) of the Act, where a winding up is ordered under s 459A, the winding up is taken to begin on the day the order is made, except in the circumstances referred to in s 513A(a) ‑ (dc) (concerning, generally speaking, where the company has previously been under external administration).
3. Section 459A confers jurisdiction on the court to order a winding up in insolvency. Section 459P identifies the persons who may make the application - some of whom require leave - but it does not confer jurisdiction to make the winding up order.[52] Section 459P was introduced into the former Corporations Law (contained in the Corporations Act 1989 (Cth)) following the Corporate Law Reform Act 1992 (Cth). The 1988 Law Reform Commission Report No 45 General Insolvency Inquiry (Harmer Report) recommended (par 142) that s 459P be introduced. The relationship between s 459A and s 459P was considered by the High Court in Emanuele.
4. In Emanuele, the Australian Taxation Office (ATO) was a substantial creditor of certain companies and applied to have the companies wound up. The companies then entered into a deed of company arrangement which bound the ATO, and prohibited it from pursuing its winding‑up application. The Australian Securities Commission (ASC) intervened in the application to wind up the companies and applied under s 459P of the Corporations Law to wind up the companies in insolvency. At first instance, the Federal Court granted the winding‑up order, but the ASC did not seek, nor was it given, leave under s 459P(2) of the Corporations Law. In an appeal by some of the directors to the Full Court of the Federal Court in relation to the absence of leave, the Full Court granted leave to the ASC nunc pro tunc ('now instead of then')[53] by adding a paragraph to the winding‑up order made at first instance that leave be given nunc pro tunc to the ASC to wind up the companies on the ground of insolvency.[54] On an appeal to the High Court, the appellants contended that the Full Court erred in finding that the requirement for leave under s 459P(2) was procedural in nature, and that it did not impose a condition precedent to the jurisdiction of the court.[55] The High Court held by majority (Dawson, Toohey & Kirby JJ) that the absence of leave was a mere irregularity in the exercise of the court's jurisdiction which did not affect the validity of the winding‑up order, and that the irregularity could be cured by granting leave nunc pro tunc, even by the appellate court. Dawson J said:[56]

The short point in the appeal is whether the Full Court of the Federal Court lacked jurisdiction to make a winding up order against a number of companies when it did so on the application of the [ASC] without leave to make the application having been obtained by that body as required by s 459P(2) of the Corporations Law. Section 459P does not confer jurisdiction on the Federal Court to make a winding up order; it does no more than identify the parties who may make an application, requiring leave to be obtained in the case of some of them including [ASC]. Jurisdiction is conferred on the Federal Court by s 459A of the Corporations Law in conjunction with s 42(3) of the Corporations (South Australia) Act 1990 (SA). The failure to obtain leave was a mere defect or irregularity in the exercise of that jurisdiction. It did not affect the validity of the order made, although it may have provided a ground for staying it or setting it aside.

Since the failure to obtain leave was procedural and did not go to jurisdiction, there was no reason why the Full Court of the Federal Court should not have cured the defect or irregularity by granting leave nunc pro tunc. (emphasis added)

[Section] 459P(2) does not impose a condition precedent to the exercise of the jurisdiction of the court. This is consistent with the analysis of [David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 279] by Lindgren J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [(1995) 61 FCR 385, 406], where he said that:

'the distinction is between a situation in which there is a time limit within which the Court must be approached if an application for an order of a particular kind is to be made at all (s 459G), and a situation in which a proceeding is already under way and is subject to the Court's control and in which a timely but deficient order has been made.'

Section 459P(3) requires the Court to exercise a supervisory role, satisfying itself that there is a prima facie case that the company is insolvent before granting leave. This helps avoid 'the drastic commercial consequences which may follow the issue of process for winding up'. (footnotes omitted)

The Federal Court is a superior court of record. Once jurisdiction is accepted, it becomes much more difficult to contend that the corrective order made by the Full Court was completely invalid. The general rule is that an irregularity of procedure does not invalidate or make void orders otherwise within the jurisdiction of such a court. It is not obvious why the Full Federal Court, having jurisdiction, would not enjoy the large powers expressly conferred upon it, as well as those implied in the establishment of the Federal Court as a court, to correct obvious procedural slips where justice required that course. It would be thoroughly undesirable, and a departure from authority, for this Court to narrow the powers of the Federal Court in that regard. However, the question must then be faced squarely whether the requirement of leave in s 459P(2) is properly classified as procedural or is of a different character and not curable as a mere procedural slip.

... The right to apply for an order arises elsewhere. The structure of Pt 5.4 of the [Corporations Law] makes it clear that what s 459P is dealing with is a procedure to be followed in making the application. Only certain designated persons are to have standing. Amongst them, half of those specified (including the ASC) are obliged to seek leave. But the application was undoubtedly before the Court which has jurisdiction. ... The requirement of the Court's leave is there for the superintendence of the proceedings by the Court. At least in the case of a superior court of record such as the Federal Court, it is available, retrospectively, to sanction the Court's own proceedings. The missing ingredient was a step by the Court itself which, if justice required it, could, exceptionally, be ordered retrospectively by a nunc pro tunc order. The power to so order was not excluded by the express provisions of the [Corporations Law]. (footnotes omitted)

1. Since Emanuele was decided, r 5.3 of the Corporations Rules has come into operation.[59] In Re Bluechip, Peter Lyons J observed that:[60]

[Rule] 5.3 does not seek to alter the requirement for leave found in s 459P of the [Act]. It expressly recognises the existence of that requirement; but reflects the effect of the decision in Emanuele. It simply deals with matters of procedure, authorising the filing of an application for leave at the same time as the filing of an application for winding up; and the hearing of both applications at the same time.

1. Section 459A (as with its predecessors) confers jurisdiction on the court for the benefit of the public in general, and for creditors who cannot get paid, in particular.[61] The public interest ordinarily requires that an insolvent company be wound up to prevent it from incurring further debts.[62]
2. Nevertheless, s 459A does not require the court to order a winding up where insolvency is established. Section 459A in terms, and read with s 467, gives the court an ultimate discretion which may be exercised on any ground not extraneous to the scope and purposes of the Act.[63] It is a broad discretionary power the confines of which are to be found in the subject matter, scope and purpose of the legislation.[64] Accordingly, appellate review is approached in accordance with the principles in House v The King.[65]
3. In seeking an order for the winding up of a company in insolvency under s 459A, the applicant seeks an order not for his or her benefit, but for the benefit of creditors or a class of creditors of which he or she is a member.[66] The right to apply to wind up in insolvency is a representative right, and, at least generally speaking, the interests of all creditors are to be taken into account when deciding on the desirability of winding up.[67]
4. A director has a duty to prevent insolvent trading under s 588G of the Act. A director thereby has a statutory obligation to prevent, and consequently a personal interest in preventing, insolvent trading. Again, it may be inferred that the obligation is imposed for the benefit of the public and of creditors. The right given to a director under s 459P(1)(d) to apply (with leave) to wind up the company in insolvency, also serves those purposes.
5. Where the applicant is 'a director'[68] (as opposed, eg, to 'the company' itself)[69] or some other person requiring leave, the requirement for leave is undergirded by policy considerations including those explained by Beazley JA (Spigelman CJ & Mason P agreeing) in Masri Apartments Pty Ltd v Perpetual Nominees Pty Ltd:[70]

[There is] also ... policy that underlies the need for a specified group of eligible applicants to obtain the leave of the court. Liquidation is a serious, indeed fatal step, in the life of a company. It is not a means of debt collection. Rather, in the case of insolvency, it is a means whereby creditors and potential creditors are protected from the continued trading by a company that is unable to pay its debts as they become due. ...

There are a number of reasons why the section limits the grant of leave, not the least of which is that otherwise, a prospective or contingent creditor could use the section as a means of pressure or harassment. The same might be said of a contributory or a director. By requiring that these parties obtain leave, the legislature ensures a system whereby the purpose for which the section was enacted, that is, that insolvent companies not trade, is appropriately applied.

1. By s 459P(3), the court may give leave if satisfied that there is a prima facie case that the company is insolvent, but not otherwise. The applicant bears the onus of demonstrating that leave ought to be granted.[71] The effect of s 459P(3) is that (1) leave will not be granted if the court is not satisfied that there is a prima facie case that the company is insolvent, and (2) even where there is a prima facie case that the company is insolvent, the power to grant leave is discretionary, and there remains a residual discretion to decline leave.[72] In the latter regard, other relevant considerations must be determined from the subject matter, scope and purpose of s 459P read within the context of div 1 of pt 5.4 of the Act.[73] As to the former matter (whether there is a prima facie case), an applicant for leave will be assisted by virtue of s 459C(1)(b) if the statutory presumption of insolvency under s 459C(2) applies.
2. The grant or otherwise of leave under s 459P(2) is a procedural matter[74] and is discretionary in nature (s 459P(3)).
3. The court has power under s 465B to substitute 'a person ... who might otherwise have ... applied for the company to be wound up' for the applicant in an application under s 459P. Such a person will include the company (s 459P(1)(a)), a creditor (s 459P(1)(b)) and, with leave, a director (s 459P(1)(d)). The person seeking to be substituted must have been an eligible applicant as at the date that the winding up application was filed.[75]
4. At least in the case of creditors, the status or standing of an applicant to pursue a winding up order in insolvency is to be determined as at the date that the application for winding up is filed. If the creditor's debt is paid in the period after the application is filed and before the hearing of the application, that matter is relevant to the court's discretion on the hearing of the application, but it does not affect the standing of the creditor by whose application the court's jurisdiction has been invoked.[76] In Australian Beverage Distributors, Austin J summarised the position as follows:[77]

As long as the applicant for winding up is a creditor at the time of the filing of the application, s 459P(1) gives the court jurisdiction to hear and determine the application, even if the applicant has ceased to be a creditor after the filing but before the hearing ([Motor Terms] ... at 194 ‑ 5 per Menzies J). The court may permit another creditor to be substituted as applicant ([Sun Heating]; [DMK Building Materials]). But if the original applicant wishes to proceed, though no longer a creditor, the court may (Motor Terms at 195 per Menzies J), and probably will ([Bidald Consulting] at 232 [15] per Barrett J) refuse to make a winding up order in the exercise of its discretion.

1. The case of Guy Holdings is also instructive as to the court's approach to s 459A. In that case, the Deputy Commissioner issued a statutory demand in respect of debts owed by the defendant company. The statutory demand was not complied with. A statutory presumption of insolvency arose,[78] and the Deputy Commissioner filed an application to wind up the company. The company then paid the debt in full before the substantive hearing of the application to wind up, and sought to have the application dismissed.[79] The Deputy Commissioner pressed the application for an order for winding up on the basis that the company had other debts owed, but unpaid, to the Deputy Commissioner.[80]
2. Zeeman J held that (1) no such other debts had been established, and (2) no other creditor had sought to be heard on the winding up application.[81] His Honour also said that the status of the Deputy Commissioner as a creditor to seek a winding‑up order was not affected by the subsequent discharge of the debt. This was because its status as a creditor was to be determined as at the date that it filed the application for a winding‑up order.[82] His Honour said, however, that the presumed insolvency of the company did not compel the making of a winding‑up order. Section 459A authorised, but did not require, the making of an order that a company be wound up in insolvency. His Honour said:[83]

The question is whether it is appropriate to order that the [company] be wound up in insolvency when ... it is deemed to be insolvent but the amount of the statutory demand has been met and there is no evidence as to what the actual financial position of the [company] might be.

As the relief sought by the applicant is a discretionary remedy, there must be established some matter which makes it appropriate that the discretion be exercised ... In the usual case, where the debt the subject of the statutory has not been paid at the time that the application is determined, the non‑payment of that debt will be a sufficient basis to justify or even to require the making of [a winding‑up order][.]

... I would not wish to be taken as necessarily agreeing that a creditor, who has served a statutory demand under the [Corporations Law] and who has been paid the debt the subject of that demand, ordinarily ought not to be granted an order for the winding up of the company even though it establishes that the company is indebted to it in some other amount. ... [but] in a case such as the present there must be some positive reason for ordering that the respondent be wound up going beyond the mere deemed insolvency. ...

Adopting the principle that, in the case of an application under s 459P where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made. I conclude that this application ought to be dismissed. It has not been established that the [company] owes anything to the applicant or any other creditor, no other creditor has applied to be substituted for the applicant and no other matter has been established making it appropriate to exercise my discretion against the [company]. (emphasis added)

1. Prior to the introduction of s 459P into the Corporations Law, there was no express power conferring standing on directors to apply to wind up the company in insolvency, and there was uncertainty regarding the standing of directors to make such applications.[84] On one hand, it had been held in NSW and England that the directors could apply for a winding up, upon a resolution of the board, without a supporting resolution of the members.[85] The NSW courts advanced two reasons for this view. First, it was time‑hallowed practice for directors in England and NSW to present a winding up petition.[86] Second, it was regarded as part of the directors' management powers.[87] On the other hand, in Victoria it had been held, in effect, that directors could only apply once the filing of the application had been authorised by the passing of a simple majority of the members of the company, unless the constitution authorised otherwise.[88]
2. As noted earlier, the Harmer Report recommended that s 459P be introduced. In doing so, the Harmer Report referred (at par 142) to the Australian Law Reform Commission's Discussion Paper 32, published in August 1987 (DP 32). DP 32 proposed (at page 47, par 111) that a director should be given standing. It did not explain why, but it did explain why a director ought be required to seek leave - to prevent 'mischievous and possibly harmful applications by a disgruntled' director.
3. Following the amendment to the Corporations Law, the divergence in the case law has been resolved in favour of the approach taken in Re Inkerman. That is, shareholder approval is not required for directors to commence a winding up application.[89] That also applies to sole directors.[90]
4. There was no dispute in this appeal that a single director alone has standing (with leave) under s 459P(1)(d).[91]

Standing of a director to move for winding up orders on hearing of winding up application

1. In our view, there is no reason to suppose that a different position obtains with respect to the standing of a director to apply for a winding up order in insolvency from that outlined in [70] above. In other words, on the proper construction of s 459P(1)(d), the reference to a director is a reference to a director as at the date the application to wind up is made. The fact that the director ceased to be a director after the filing of the winding up application and before the hearing would be a matter relevant to the exercise of the court's discretion on both the application for the grant of leave and the substantive application to wind up. But it would not deprive the director of standing to apply for the winding up of the company and seeking leave for that purpose. Without seeking to be prescriptive, no doubt the more compelling the evidence of insolvency adduced on the application by the (former) director for leave to wind up, the less likely the application to wind up might be seen as a means of pressure or harassment by a disgruntle[92]director.92

1. The relevant principles have been outlined in [55] ‑ [77] above.
2. As noted earlier (see [17] ‑ [20] above), the order of the primary judge dismissing Mr Low's application to wind up JM Co in insolvency was made in the inherent jurisdiction of the court to stop the abuse (as his Honour saw it) of its process where it is employed for groundless or vexatious claims. In our respectful view, that conclusion was not open to his Honour. For the reasons in [70] ‑ [77] above, the fact that Mr Low would not be a director at the time of the hearing of the application for leave (and to wind up) would, no doubt, be a material consideration in the exercise of the discretion as to whether or not to grant leave, for the purposes of winding up the company in insolvency. But it would not necessarily foreclose the grant of leave if there were evidence otherwise favouring the grant of leave.
3. The question of the sufficiency and cogency of Mr Low's evidence on the leave application was never considered because his application was summarily dismissed as being doomed to fail. In our respectful view, the court's jurisdiction under s 459A was properly invoked and Mr Low's application could not properly be dismissed without a consideration of all of the evidence before the court on the question of leave. That is so even though, in the particular circumstances of this case, there was no evidence that Mr Low would be assisted by any presumption of insolvency pursuant to the operation of s 459C(1)(b) and s 459C(2) of the Act.

1. In Bienstein v Bienstein, the High Court said:[93]

The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success. (footnotes omitted)

1. Those observations were approved by the High Court in Re Luck.[94]
2. In Re Luck, the High Court also said:[95]

An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.

1. As noted earlier, at [17] ‑ [20] above, the primary judge effectively dismissed Mr Low's application to wind up in insolvency on the basis that the proceedings were vexatious.
2. In this case, the 'principal cause' between the parties was whether JM Co should be wound up in insolvency. Paragraph 1 of Mr Low's originating process was an interlocutory application.[96] The grant or otherwise of leave under s 459P(2) is a procedural matter,[97] and is discretionary in nature (s 459P(3)). It is interlocutory in character, attracting the principles of appellate review in accordance with House v The King.
3. Mr Low's submissions referred to in [32] ‑ [33] above cannot be accepted. As noted in [5] ‑ [6] above, the proceedings on foot between the parties before Allanson J were for the winding up of JM Co in insolvency, for which Mr Low required the grant of leave. Mr Low had no personal cause of action against JM Co which he was seeking to vindicate under s 459A of the Act. Insofar as he sought leave, it was a procedural order within the application to wind up where the purpose of any winding up would be for the protection of the public and for the benefit of creditors. It has been said in the Federal Co[98]t that a winding up order operates in rem.98 A winding up order, if made, would at least bin[99]the company and persons claiming under it.99 However, the dismissal of Mr Low's application would not preclude a determination on the merits of an application by an eligible applicant who applied on 26 May 2021 (or, for that matter, thereafter) to wind up JM Co on the basis that it was insolvent.
4. Mr Low did not seek an affirmative declaration of right. Nor did the judge, in dismissing the application to wind up in insolvency, order a 'reverse declaration'[100] of right, ie, a declaration that, on the evidentiary matters, JM Co was not insolvent.
5. Further, the characterisation of the order as interlocutory and requiring leave to appeal is more conformable, in our view, with the nature of the requirement for leave in s 459P. Leave serves the purpose of filtering applications to wind up in a context where the making of an application to wind up may have significant deleterious consequences for the company. If leave to appeal were not required, the company would be faced with appeals as of right on the dismissal of a leave application and divorced from the underlying issue of insolvency itself.
6. It is true that as a practical matter, of timing, once Mr Low ceased to be a director on 5 July 2021, the dismissal of his application on 27 July 2021 meant he could no longer apply, with leave as a director, to wind up JM Co unless he were reinstated as a director. However, the dismissal of his application would not preclude him from applying again, as a director, with leave, to wind up JM Co on the ground of insolvency if he were reinstated as a director. Nor would it preclude him from applying as a creditor if he could establish that fact. Nor, if he were an eligible applicant, would the dismissal preclude him from relying on the evidence in his affidavit of 25 May 2021 to establish insolvency.
7. Accordingly, it seems to us that, properly characterised, for appeal purposes, the order dismissing the application on 27 July 2021 was interlocutory. Insofar as the judge erred in principle as to the proper interpretation and application of s 459P, it was an error of principle capable of correction in accordance with the principles in House v The King on an appeal to this court, with leave.
8. Insofar as Mr Low relied on Bride, that decision does not assist him. In Bride (at [6]), the court said, in effect, that the dismissal of a plaintiff's claim for failing to disclose a reasonable cause of action on a defendant's summary judgment application was a final order. In doing so, the court relied on Hunt v Knabe (No 2).[101] However, Hunt was concerned with a judgment on the merits in favour of the plaintiff (albeit pursuant to the procedure for summary judgment under O 14 of the RSC). Further, insofar as Bride is authority for the proposition for which Mr Low cited it, it can no longer be regarded as good authority.[102]
9. The dismissal of the application on 27 July 2021 was not, in our view, final for appeal purposes.[103]

459R Period within which application must be determined

(1) An application for a company to be wound up in insolvency is to be determined within 6 months after it is made.

(2) The Court may by order extend the period within which an application must be determined, but only if:

(a) the Court is satisfied that special circumstances justify the extension; and

(b) the order is made within that period as prescribed by subsection (1), or as last extended under this subsection, as the case requires.

(3) An application is, because of this subsection, dismissed if it is not determined as required by this section.

(4) An order under subsection (2) may be made subject to conditions.

1. In Barboutis, the primary court had determined the application to wind up the company and had dismissed the application on its merits. The appellant (plaintiff in the primary court) appealed and sought an interlocutory order in the appeal for an extension of the period within which the application to the primary court be determined, pursuant to s 459R(2) of the Act. This court dismissed the appellant's application to extend time on the basis that the winding up application had been determined by the primary court for the purpose of s 459R when it was dismissed within the period provided for by s 459R, and the grant of a further extension was not necessary to preserve the effective exercise of the court's appellate jurisdiction. Nor was there any proper basis upon which the court could further extend the period for the determination of the winding up application when that application had already been determined.[104]
2. In Barboutis, the court held that the application to be wound up in insolvency is 'determined' within the meaning of s 459R by the court finally disposing of the application, either by making a winding up order or making an order for the dismissal of the application to wind up.[105] In our respectful view, that construction is correct and accords with the ordinary meaning of the language of s 459R. The word 'determine' in s 459R in its ordinary meaning connotes a final determination of the winding up application. That is confirmed by the purpose of the provision and the observations of Lindgren J in Western Suburbs Electrical Supplies Pty Ltd v Russell Electrical Services Pty Ltd:[106]

The requirement of sub-section 459R(l) is that the status of the company ('ordered to be wound up' or 'application for winding up dismissed') be known finally by the end of the six month period. Section 459R is one of the provisions introduced into the [Corporations Law] as a result of the Harmer Report. The Explanatory Memorandum which accompanied the Bill which became the Corporate Law Reform Act 1992 (Act No 210 of 1992) (which inserted the present Part 5.4 (ss 459A-459T) in the [Corporations Law]) said this in relation to the then proposed section 459R:

'An application for a company to be wound up in insolvency is to be determined within six months after it is made (proposed subsection (1)). This is designed to ensure that decisions on a company's solvency are based on contemporaneous information. In relation to a statutory demand, for example, it would be inappropriate to order the winding up of a company on that basis on [sic - of] non-compliance with a statutory demand made years ago. (para 712)'

The period of three months referred to in sub‑section 459C(2) and the period of six months referred to in sub-section 459R(1) represent the legislature's definition of 'contemporaneity' for this purpose. (emphasis added)

1. Other policy considerations which, it may be inferred, are reflected in s 459R include those referred to by Hamilton J in Expile Pty Ltd v Jabb's Excavations Pty Ltd:[107]

What the Court must bear in mind in exercising its discretion is not simply the interests of the parties, but the public interest in what is established as the policy of this portion of the Act of ensuring that winding up proceedings are speedily disposed of. There are various good reasons for this policy and I do not purport to be exhaustive. They include winding up applications not being dealt with on material which is stale. They include situations where a company may be trading or engaging in transactions whilst it is insolvent, which should not be protracted. And they include companies, which are not insolvent, not having the commercial cloud caused by the existence of winding up proceedings hanging over their heads for a long time.

1. The potential operation of s 459R arises in this case in the context of an appeal, to which the following observations are directed.
2. Where the winding up application has been dealt with by the primary court on its merits, the primary court may grant the application under s 459A or (relevantly for present purposes) dismiss it (s 467(1)).
3. Where the winding up application has been granted and a winding up order has been made by the primary court within the period in s 459R, the appeal court will determine whether the primary court erred in granting the application to wind up. If the issue on the appeal is whether the primary judge erred in finding insolvency, the appeal court will determine error by reference to whether the applicant had established insolvency as at the date of the application and as at the date of the hearing of the winding up application or, as the appeal is by way of rehearing, if fresh evidence were allowed, as at the date of the hearing of the appeal.[108] If the appeal court dismissed the appeal, there could be no occasion to consider s 459R in connection with the appeal. The dismissal of the appeal would not be tantamount to a fresh order for winding up outside of the period in s 459R.
4. In the case of an appeal where the primary court dismissed the application to wind up, if the appeal were dismissed, again the dismissal of the appeal would not require a consideration of s 459R.
5. In Barboutis,[109] the court in effect observed (without dispute in this appeal) that if the appeal court found error in the dismissal by the primary court of the application to wind up, the appeal court would have the powers provided for under s 59 of the Supreme Court Act 1935 (WA), including the power to set aside the primary court's order and make a substitutive order for the winding up of the company, if satisfied that it had the materials necessary to finally determine the question. Nevertheless, the appellate court's orders generally take effect from the date on which they are made,[110] and, absent an urgent appeal hearing, there may be a considerable elapse of time between the making of the primary court's orders and the determination of the appeal (for example in this case that period is over 18 months). The appellate court in such a case would still need to be satisfied, before making such an order, that it was appropriate in all the circumstances to wind up the company at that point in time.
6. If during that period the company continued to trade, make investments and incur debts, the appellate court, even where error is shown, may not be persuaded that it is in the interests of justice to make a substitutive order for the winding up of the company by reference only to the materials on insolvency before the primary court. That may be particularly so in a case where there was no presumption of insolvency under s 459C(2) in the primary proceedings which subsisted up to the hearing of appeal.
7. The court might also take into account that in the period of trading up to the disposition of the appeal, the interests of creditors and the public would ordinarily be protected by (1) the obligations imposed on directors under s 588G, (2) the administration procedures available under pt 5.3A of the Act, (3) the ability of creditors to issue a statutory demand and take advantage of the presumption of insolvency if it is not complied with and (4) the power given to ASIC in its supervisory role to apply, with leave, to wind up the company in insolvency, and that those protections would continue to apply after the determination of the appeal.
8. Where, in the primary proceedings, the primary court has not determined the winding up application on its merits, but (as in this case) dismissed it as an abuse of process, an appellate court finding error by the primary judge will not be in a position, at least generally speaking, to make its own orders finally disposing of the winding up application. It might still set aside the primary court's order, but, if by the time the appellate court determined the appeal the period referred to in s 459R had expired, the question is whether the winding up application would, in any event, be dismissed by operation of law under s 459R(3), making remitter futile. That question was adverted to in Barboutis,[111] but the reference to 'may' in the second sentence of Barboutis at [23] indicates that it was not finally resolved.
9. We do not accept Mr Low's submissions (see [39] above) to the effect that s 459R operates to provide a temporal hiatus between the dismissal of the winding up application by the primary court and the determination of the appeal, following which, if the appellate court sets aside the primary court's order, 'time will resume running'. In our view, such a construction is contradicted by the clear words of s 459R(1). Section 459R(1) requires the winding up application to be determined within six months 'after it is made' subject to s 459R(2). The language, in our view, admits of no other possible time frame. There is no foothold in the statutory text for the preferred construction pressed on behalf of Mr Low.
10. Nevertheless, we accept that in its ordinary meaning, s 459R operates so that once the primary court has 'determined' the winding up application in the period referred to in s 459R, s 459R has been complied with.[112] The period of six months specified in s 459R(1), to be extended only in the limited way provided for in s 459R(2) 'in special circumstances', suggests a tight timetable for the final disposition of the winding up application with a high level of sustained curial supervision and (if necessary) intervention. Section 459R is plainly apposite to the determination by the primary court hearing the proceedings for the winding up of the company. It operates in the context of the procedural requirements referred to in [44] ‑ [54] above. Neither its terms nor its subject matter suggests that it is intended to operate across different proceedings - at first instance and on appeal. Section 459R could have no application to appeals with the results referred to in [99] and [100] above. Nor is it necessary to construe s 459R as applying to appeals with the result in [104] above in order to give effect to the policy of pt 5.4 of the Act. That policy would, in any event, inform the question of whether it would be in the interests of justice to order remitter and, if so, on what terms. Also, the appeal court has the power to order an urgent appeal hearing.
11. That conclusion tends to be confirmed by the further observation that it is difficult to accept that s 459R was intended to apply differentially in an appeal context, depending on whether the appellate court is minded to make dispositive orders itself or order remittal. Both are remedial aspects of the appeal court's power to do justice in the event of a successful appeal. In our view, it is doubtful that Parliament objectively intended that s 459R(3) should potentially operate upon the setting aside of an erroneous order where justice required remitter, but not upon the setting aside of an erroneous order where justice required a substitutive order by the appellate court.
12. It follows, in our view, that in this case, having found error by the primary judge, the court has the power to set aside the judge's orders and order a remitter of the winding up application to the General Division. Upon the setting aside of the primary judge's order, s 459R(3) would not operate to bring about a dismissal of the winding up application and render remitter futile. However, for the reasons which follow, we would not order remitter and, moreover, we would not grant leave to appeal.

The resolution of the appeal and the question of leave to appeal

1. We would not order remitter in this case, having regard to the evident policy of pt 5.4 that there be a speedy resolution of applications to wind up in insolvency and to the policy considerations militating against leaving a company exposed for a lengthy period to the serious consequences which inevitably attend an application to wind up in insolvency. In Treadtel (albeit not with specific reference to s 459R), Barrett AJA (Gleeson & Leeming JJA agreeing) observed:[113]

[T]he mere initiation of winding up proceedings has serious consequences for the defendant company and its constituency. Kirby J observed in [Emanuele] ... that every species of winding up application has potential to damage the company's reputation and to undermine its capacity to trade, with serious consequences for the company. The fact that an application has been made necessarily becomes the subject of lodgement with ASIC through which the information that proceedings are pending becomes generally available.

1. The following factors seem to us to be most important:
   1. A remitter now would be tantamount, in the circumstances of this case, including in light of the age of the evidence, to the initiation of fresh proceedings to wind up JM Co.
   2. It is common ground in the appeal that there are currently no winding up applications and no documents lodged with ASIC in respect of any external administration of JM Co.[114]
   3. The absence of any presumption of insolvency.
   4. There is no evidence before the court of any contemporaneous complaints by creditors, or of any other matters raising issues as to JM Co's current financial position.
   5. The absence of any application by Mr Low for an urgent hearing of the appeal.
   6. Since the primary judge's orders on 27 July 2021, in the absence of any evidence to the contrary, the interests of creditors have prima facie been protected by the matters referred to in [103] above.
2. As to the fifth of those matters, it is not necessary to find that the failure was 'deliberate' in the sense that expedition was consciously adverted to, but not proceeded with.[115] It is sufficient that, for whatever reason, an urgent appeal hearing was not sought despite the evident policy of pt 5.4 of the Act.
3. As the judge's order of 27 July 2021 was interlocutory for appeal purposes, the jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court, although, generally, it must be shown that the decision below is attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice will be done by leaving the decision unreversed. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case.[116]
4. The matters in [110] ‑ [111] above also indicate that no substantial injustice will be done if the primary decision is left unreversed. We are not satisfied that in all the circumstances, Mr Low has shown that it is in the interests of justice to grant leave to appeal.

1. For these reasons, although the judge, with respect, erred in his approach to the dismissal of Mr Low's application to wind up in insolvency, leave to appeal should be refused and the appeal should accordingly be dismissed.

1. I have the considerable advantage of having read Buss P & Murphy JA's reasons for decision in draft. I adopt their Honours' recitation of the background, the statutory framework and the parties' contentions on appeal.
2. The first issue is whether the appeal requires leave on the basis that the primary judge's order of 27 July 2021 is an interlocutory order.
3. I agree with Buss P & Murphy JA that the appeal is an appeal from an interlocutory order. It follows that leave to appeal is required.[117] Whether an order or a judgment is final, as distinct from interlocutory, depends on whether the order or judgment finally determines the rights of the parties in a principal cause pending between them.[118] The test requires the court to have regard to the legal rather than the practical effect of the order or judgment.[119] Thus the question is whether the order or judgment finally determines, in a legal sense, the rights of the parties in issue in a principal proceeding between them.
4. The application of the test requires the court to determine two things. First, what, for the purposes of the particular proceedings, are the 'rights of the parties'. Second, whether the order or judgment in question 'finally determines' those rights. Ordinarily, the relevant rights are the rights that have been propounded for decision in the particular

proceedings. In considering whether the order or judgment determines those rights the court is concerned with legal effect. Legal effect is not to be determined merely by looking at the form of the order or judgment. 'Legal effect' for this purpose is what the order or judgment does in law.[120]

An order is an interlocutory order ... when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.[121]

1. In the present case the primary judge's order of 27 July 2021 did not determine the issue of the rights which the parties propounded in the primary proceedings, namely, whether or not the respondent was an insolvent company that should be wound up in insolvency. The legal effect of the order was to dismiss the winding up application (and the application for leave to apply to the court for the respondent to be wound up in insolvency) on the basis that the application was an abuse of process. The quoted passage from Re Luck in [119] above is applicable and must be followed.
2. The appellant sought to avoid this result by characterising the relevant lis as being whether the appellant ought to have leave under s 459P(2)(c) and, if so, whether a winding up order should be made - meaning that, in the appellant's submission, the order appealed from represented a substantive determination on a discrete issue of law finally determining the lis.[122] This was because the order 'finally determined the right of the appellant to apply for leave pursuant to s 459(2)(c) and thereby determined the statutory cause of action available to him'.[123] Elsewhere the appellant referred to the 'right ... to apply for leave pursuant to s 459P(2)(c)' to apply for a winding up order as '[t]he cause of action that was available' to the appellant.[124]
3. I do not accept this submission.
4. Section 459P(2) does not create a cause of action[125] or confer private rights.[126] Where, under s 459P, a person may only apply to the court for a company to be wound up in insolvency with the leave of the court, the requirement of leave is merely procedural.[127] So understood there is, for the purpose of distinguishing between a final and an interlocutory order, no relevant right to be determined in applying for leave under s 459P(2)(c). That may be contrasted with the matter for substantive determination on an application seeking an order under s 459A that a company be wound up in insolvency - that being whether the company is insolvent.
5. The primary judge's order did not finally determine the rights of the parties on the question of whether or not the respondent was an insolvent company that should be wound up in insolvency. The primary judge characterised the critical question for determination as being whether the application made when the appellant had standing as a director became an abuse of process once he ceased to be a director.[128] That was consistent with the terms of the respondent's interlocutory process[129] and how the matter was argued - the respondent contending, in substance, that the appellant's application was an abuse of process from the time the appellant was removed as a director as it was bound to fail.[130] The primary judge upheld that contention, finding that the continuation of the proceedings after the appellant's removal as a director was an abuse of the process of the court as the proceedings were unjustifiably oppressive to the respondent.[131]
6. Accordingly, the order of 27 July 2021 was not final in legal effect. It did not finally determine the rights of the parties or create a res judicata estoppel in relation to the question of whether or not the respondent was an insolvent company that should be wound up in insolvency.
7. The order falls squarely within Re Luck's description of an order being an interlocutory order as it 'dismisses an action ... because the action is ... an abuse of process of the court'. The appellant sought to distinguish the abuse of process that was found by the primary judge to arise in this case from that which arose in Re Luck.[132] It is true that the particular circumstances in Re Luck are different to the circumstances of the present case. But, read in context, the High Court's reference to abuse of process includes the situation where a court provides for summary dismissal of a proceedings on the basis that they are clearly doomed to fail or are plainly unsustainable. That, in substance, was the basis of the order for dismissal in the present case. The order under appeal was an interlocutory order within the description in Re Luck.
8. The primary judge's order of 27 July 2021 is an interlocutory order. It is necessary to determine whether there should be a grant of leave to appeal. In considering the issue of leave to appeal I will assume favourably to the appellant, but without deciding the point, that the primary judge erred in law in holding that, having been removed as a director of the respondent after the commencement of the proceedings, the appellant could not be given leave under s 459P(2)(c) as he was no longer within those persons specified in s 459P.
9. The principles that apply in determining whether there should be leave to appeal are well-established. A recent recitation of the applicable principles appears in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[133] See also Clough Ltd v Forge Group Ltd (in liq) (receivers & managers appointed).[134] I adopt those principles but will not repeat them in full. Leave may be granted whenever the interests of justice require it. Often the interests of justice require consideration of two matters. First, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.
10. I accept that, as the appellant submits,[135] the order had the practical operation of finally determining the appellant's application for an order under s 459A that the respondent be wound up in insolvency. The circumstance that an order, while interlocutory in effect, has the practical operation of finally determining the rights of the parties, usually provides a compelling reason for the grant of leave to appeal if there is any doubt about the decision at first instance.[136]
11. The respondent argued that a grant of leave would be without utility. It relied on s 459R. It was said, in substance, that even if there was leave to appeal and the appeal was allowed, this court ought not to remit the proceedings to the primary court for determination as the 6 month time limit under s 459R had already expired. The proceedings would, according to the argument, inevitably be dismissed by operation of s 459R(3).
12. The potential for an issue of this kind was adverted to by this court in Barboutis v The Kart Centre Pty Ltd.[137] However, the court did not determine the question of whether there would be an automatic dismissal by operation of law. The court said only that s 459P(3) 'may' operate to automatically dismiss the proceedings in the primary court.[138] It now being necessary to resolve the issue, I consider that, on its proper construction, s 459R(1) is concerned with whether in fact the primary court made an order disposing of the winding up application within the 6 month time period or such extended period as is allowed on an order under s 459R(2). In that respect I agree with the reasoning of Buss P & Murphy JA at [93] - [107] above.
13. In the present case the primary court did, as a matter of objective fact, make an order disposing of the application within the 6 month time limit. Section 459R(1) is not transgressed, and s 459R(3) does not operate, if - following appeal - the primary court re-determines the application outside of the 6 month time limit. Accordingly, the s 459R point does not preclude the grant of leave to appeal. However, s 459R is relevant to the discretion to grant leave to appeal in another way.
14. The statutory purpose that underlies s 459R is important to the grant of leave to appeal in the present case. Section 459R prescribes a relatively short time frame for the determination of an application that a company be wound up in insolvency. That time frame may only be extended in 'special circumstances'. There are at least two reasons for the legislative insistence that, ordinarily, such an application is to be determined timeously.
15. First, a decision on solvency should be based on contemporaneous information.[139]
16. Second, it is well understood that it is in the public interest that insolvent companies should be wound up. If a company is insolvent, and chooses not to avail itself of the procedures under pt 5.3A of the Act, it should be wound up as soon as practicable. Continued trading by an insolvent company will ultimately be harmful to creditors and other stakeholders. Equally, however, it is in the public interest that an application that a company be wound up in insolvency be determined as soon as practicable in the case of a solvent company. The stigma of facing a winding up application may prove to be a self-fulfilling prophecy for a company that is solvent but which is experiencing a temporary lack of liquidity. The pall of facing a winding up application may cast a shadow over the commercial reputation of a company in the eyes of lenders, creditors, suppliers, customers and other persons dealing or transacting with the company. That commercial reality demands that the court determine an application that a company be wound up in insolvency as soon as practicable.
17. As Kirby J explained in Emanuele v Australian Securities Commission:

The very commencement of proceedings to wind up a company, particularly on grounds of insolvency, and the publicity which may attend that course, may do irreparable damage to the company's reputation, to its capacity to raise capital for its continued operations, to the value of its shares and the interests of its shareholders, officers and employees.[140]

1. Section 459R is consistent with, and enhances, a legislative policy inherent in pt 5.4 of the Act that an application for an order that a company be wound up in insolvency is to be determined in a timely manner. In that respect the High Court has confirmed that the evident policy of pt 5.4 is that there be a speedy resolution of applications to wind up in insolvency.[141]
2. The potential adverse impact of the mere making of a winding up application is well illustrated by what occurred in the present case. Relevantly, after the appellant lodged the necessary ASIC notification of the winding up application:
   1. On 22 June 2021 the respondent received notification from a supplier - a beverage company - that its trading accounts had been stopped due to the notice of court winding up.[142]
   2. On 30 June 2021 the respondent received a notice of default from its bank - the notice was based on the circumstance that the winding up application had not been stayed, withdrawn or dismissed within 30 days after it was filed. The respondent was given 30 days to rectify the default.[143]
3. In the present case the appeal against the primary judge's order of 27 July 2021 came on for hearing more than 10 and a half months after the dismissal of the appellant's winding up application. The appellant made no interlocutory application in the appeal for an urgent appeal order. The appellant could and should have applied for an urgent appeal order. An urgent appeal order was clearly appropriate having regard to the legislative policy I have referred to and the facts of the case including the commercial consequences of the filing of the winding up application as mentioned in the preceding paragraph. The appellant's omission to apply for an urgent appeal order was unexplained.
4. There was, at the time of the appeal hearing, no subsequent application on foot to wind up the respondent (the respondent provided a current ASIC search to verify that this was the position).
5. In all the circumstances I am not satisfied that it is in the interests of justice that there be leave to appeal from the primary judge's order of 27 July 2021. To the contrary, I am positively satisfied that it is not in the interests of justice that there be a grant of leave to appeal. I reach that conclusion despite assuming, in the appellant's favour, that the primary judge erred as alleged and giving full force to the circumstance that, ordinarily, there is a prima facie case for leave to appeal where there is doubt about a decision at first instance and the relevant order or judgment has the practical operation of finally determining the rights of the parties. I also acknowledge, given the assumption I make, the force of the consideration that the appellant has been deprived of the opportunity to have the question of solvency determined on the merits and this will remain the position in the absence of leave to appeal.
6. In the present case the interests of justice are informed by the legislative policy that an application for an order that a company be wound up in insolvency is to be determined in a timely manner. In the circumstances of the present case it is antithetical to the interests of justice that there be leave to appeal given the protracted period of time that has passed since the making of the order at first instance and the filing of the appellant's application for an order that the respondent be wound up in insolvency. That is all the more so given the appellant's unexplained omission to apply for an urgent appeal order.
7. My conclusion that the interests of justice lie in refusing the application for leave to appeal is reinforced by the other considerations that Buss P & Murphy JA refer to at [110] above - not the least of which is that at all times it was open to other permitted applicants under s 459P to bring an application for an order that the respondent be wound up in insolvency but none has done so. It is also relevant to take into account the effect that the pendency of the appellant's winding up application had on its inception. Those adverse commercial consequences made the legislative policy as to the timing for determination of this kind of winding up application and the absence of any application for an urgent appeal order particularly germane.
8. For these reasons I would refuse the appellant's application for leave to appeal. It follows that the appeal is to be dismissed. In the circumstances I would decline to address the merits of the appellant's ground of appeal. As the primary judge's order was interlocutory this court has no jurisdiction to entertain the appeal unless and until leave to appeal is granted. In the absence of jurisdiction I would not determine the point sought to be agitated by the appellant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[4] The amended application also sought orders under s 1324 of the Act on the alleged basis that Mr Low's winding‑up application constituted a contravention of the Act: BB 19 ‑ 21. However, that matter was not pressed at the hearing: BB 5 ‑ 6.

[8] BB 6 - 11; his Honour referred to Motor Terms Co Pty Ltd v Liberty Insurance Ltd (in liq) [1967] HCA 9; (1967) 116 CLR 177; Deputy Commissioner of Taxation (Cth) v Sun Heating Pty Ltd [1983] 2 NSWLR 78; DMK Building Materials Pty Ltd v C B Baker Timers Pty Ltd (1985) 2 NSWLR 711; Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd [2005] NSWSC 397; (2005) 189 FLR 309; Australian Beverage Distributors Pty Ltd v The Redrock Co Pty Ltd [2008] NSWSC 3; (2008) 26 ACLC 74.

[11] Roy Morgan Research Center Pty Ltd v Wilson Market Research Pty Ltd (1996) 39 NSWLR 311.

[12] L & D Audio Acoustics Pty Ltd v Pioneer Electronic Australia Pty Ltd (1982) 7 ACLR 180.

[17] See [11], [12] and [13] above.

[18] See [12] above.

[19] See [12] ‑ [14] above.

[20] Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129 ‑ 130.

[21] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 ‑ 92; General Steel Industries (129 ‑ 130).

[22] Appellant's written submissions, pars 3, 10 - 11, fn 5 to par 10.

[23] The only limitation on the Court granting leave is imposed by subsection (3), which provides that the Court 'may give leave if satisfied that there is a prima facie case that the company is insolvent, but not otherwise'. It does not require the applicant to continue to fall within the definition in (2) when the Court comes to consider whether or not to grant leave.

[24] Appellant's written submissions, pars 12 - 15.

[25] Appellant's written submissions, pars 17 - 19.

[26] Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 [43], [68].

[27] Deputy Commissioner of Taxation v BK Ganter Holdings Pty Ltd [2008] FCA 1730; (2008) 172 FLR 385 [21] ‑ [22].

[28] Re Boart Longyear Ltd [2019] FCA 62; (2019) 370 ALR 30 [57] ‑ [59].

[29] Respondent's written submissions, pars 21 - 23, 38, 47.

[30] Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; (2016) 316 FLR 318.

[31] Section 60(1)(f) of the Supreme Court Act 1935 (WA).

[32] Allmark v Mossensons (a firm) [2006] WASCA 127 [24].

[33] Re Luck [2003] HCA 70; (2003) 78 ALJR 117.

[34] Appellant's submissions, 8 July 2022, pars 25 - 26.

[35] Appellant's submissions, 8 July 2022, pars 33 - 35.

[36] Appellant's submissions, 8 July 2022, par 37 referring to A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701; A‑Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 13 ACLC 896; Asian Century Holdings Inc v Fleuris Pty Ltd [2000] WASCA 59.

[37] Bride as trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116.

[38] Appellant's submissions, 8 July 2022, pars 37, 39 - 40.

[39] Appellant's submissions, 8 July 2022, pars 46 - 47.

[40] Appellant's submissions, 5 August 2022, pars 16 - 24.

[41] Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184.

[43] Appellant's submissions filed 8 July 2022, pars 6 - 7.

[44] Appellant's submissions filed 8 July 2022, par 9. Reference was made to the reasoning in Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193 [54] ‑ [62], referred to in Owen‑Pearse v Lander Land Company Pty Ltd [2018] FCA 2077 [133].

[45] Appellant's submissions filed 8 July 2022, par 19.

[46] Appellant's submissions filed 8 July 2022, par 13 - 17.

[47] Respondent's further submissions filed 27 July 2022.

[48] Comalco Aluminium Ltd v Ohtsu Tyre & Rubber Co (Aust) Pty Ltd (1983) 1 ACLC 1175, 1177 (McLelland J); Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Ltd (prov liq appointed) (1991) 31 FCR 587, 589 ‑ 590 (Gummow J); Ann Street Mezzanine Pty Ltd (in liq) v Beck [2009] FCA 333; (2009) 175 FCR 532 [9], [12] (Finklestein J); Re Kimberley Diamond Co Pty Ltd (in liq) [2017] NSWSC 538 [23] (Gleeson JA); Ford, Austin and Ramsay's Principles of Corporations Law [27.050].

[49] Box Valley Pty Ltd v Kidd [2006] NSWCA 26; (2006) 24 ACLC 471 [9].

[50] Syd Mannix Pty Ltd v Leserv Constructions Pty Ltd [1971] 1 NSWLR 788, 790 ‑ 791.

[51] Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 232 CLR 314 [17] ‑ [18]; Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2011] HCA 18; (2011) 244 CLR 1 [27].

[54] Emanuele (118), see also Emanuele v Australian Securities Commission [1995] FCA 1762; (1995) 63 FCR 54, 67.

[59] Re Bluechip Development Corp (Cairns) Pty Ltd; Promoseven Pty Ltd v Bluechip Development Corp (Cairns) Pty Ltd [2011] QSC 368 [102].

[61] FAI Insurances v Goldleaf Interior Decorators Pty Ltd (1988) 14 NSWLR 643, 649 (McHugh J).

[62] Bungey v Magnate Projects Pty Ltd [2006] NSWSC 734 [44]; Expile Pty Ltd v Jabb's Excavations Pty Ltd [2003] NSWSC 699; (2003) 46 ACSR 446 [57].

[63] ASIC v Lanepoint [24]; Deputy Commissioner of Taxation v JGQ Developments Pty Ltd [2018] FCA 2046 [3(1)]; Re Presha Engineering (Aust) Pty Ltd (1983) 1 ACLC 675, 677; Crema (Vic) Pty Ltd v Landmark Property Developments (Vic) Pty Ltd [2006] VSC 338; (2006) 24 ACLC 889, 909; Re Ryals Hotel Pty Ltd [2020] NSWSC 1906; (2020) 149 ACSR 626; Re Gladstone Mortgagee No 1 Pty Ltd [2015] NSWSC 1551.

[64] CBA Corporate Services (NSW) Pty Ltd v Walker [2013] FCAFC 74; (2013) 212 FCR 444 [46].

[65] CBA Corporate Services [44]; House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[66] Mercantile Credits Ltd v Foster Clark (Australia) Ltd [1964] HCA 66; (1964) 112 CLR 169, 174 ‑ 175; Re Presha (677).

[67] Expile [58] - [59]; Keay's Insolvency Personal and Corporate Law and Practice, 11th ed [11.295].

[70] Masri Apartments Pty Ltd v Perpetual Nominees Pty Ltd [2004] NSWCA 471; (2004) 214 ALR 338 [49] ‑ [50]. See also similar observations in Treadtel [89].

[71] Melbase Corporation Pty Ltd v Segenhoe Ltd [1995] FCA 1225; (1995) 17 ACSR 187, 190.

[72] Melbase (190); Leveraged Capital Pty Ltd v Modena Imports Pty Ltd [2009] NSWSC 509 [25].

[73] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40.

[75] Re Elgar Heights Pty Ltd (No 2) (1985) 3 ACLC 480, 482; Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) [2004] NSWSC 527; (2004) 185 FLR 130 [65]; Mutton v Living Australia Pty Ltd [2020] FCA 739; (2020) 145 ACSR 82 [34].

[76] Motor Terms (194 - 195); Deputy Commissioner of Taxation v Guy Holdings Pty Ltd [1994] TASSC 126; (1994) 116 FLR 314, 318; Bidald Consulting [15] ‑ [16], [18]; Australian Beverage Distributors [24] ‑ [26]; BK Ganter Holdings [21]; Deputy Commissioner of Taxation v Complete Liquid Transport Pty Ltd [2010] FCA 1067; (2010) 80 ATR 523 [28] ‑ [29]; JGQ [3(2)].

[77] Australian Beverage Distributors [24].

[84] See Keay, McPherson, The Law of Company Liquidation (4th ed, 1999) 188 - 189; Re Botar-Tatham Pty Ltd [2001] NSWSC 613; (2001) 52 NSWLR 680 [16] - [17] (Young CJ in Eq).

[85] Re Inkerman Grazing Pty Ltd (1972) 1 ACLR 102; Re Compaction Systems Pty Ltd [1976] 2 NSWLR 477, 491 ‑ 492; Re New England Agricultural Corporation Ltd (1982) 1 ACLC 557, 557 ‑ 558.

[88] Re United Uranium NL [1990] VicRp 11; (1990) 8 ACLC 741, 742 ‑ 743. See also Re Standard Bank of Australia Ltd [1898] VicLawRp 78; (1898) 24 VLR 304; Re Birmacley Pty Ltd [1942] VLR 29.

[89] See, eg, Re Botar-Tatham [17]; Re United Medical Protection Ltd [2002] NSWSC 413; (2002) 41 ACSR 623 [17] (Austin J); Re Trans Pacific Insurance Corporation [2009] NSWSC 308; (2009) 71 ACSR 569 [23] (Barrett J).

[90] Re Loremo Pty Ltd [2018] NSWSC 1355 [3] (Black J).

[91] See, for example, Xie v Crisp [2011] VSC 154; (2011) 248 FLR 265 [190] (Ferguson J).

[92] As to which, see [66] and [74] above.

[93] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [25].

[94] Re Luck [4], [6] - [9]; see also Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [116] ‑ [117]; Frumar v Owners of Strata plan 36957 [2010] NSWCA 172 [36]; AB v State of New South Wales [2014] NSWCA 243 [10] ‑ [16]; Little v State of Victoria [1998] 4 VR 596, 598 ‑ 602; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 [43]; Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624 [33]. A dismissal of the claim on this basis may be compared with the position where the claim is dismissed on the grounds of a preclusionary estoppel. See, for example, the discussion in Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224 [38] ‑ [44]; Bracks v Smyth‑Kirk [2009] NSWCA 401; (2009) 263 ALR 552 [14] ‑ [33]; Leybourne v Habkouk [2012] NSWCA 212 [15] ‑ [16].

[96] Australian Securities and Investments Commission v Neilodo Holdings Pty Ltd [2006] QCA 266 [23].

[97] Emanuele, referred to in [58] ‑ [60] above.

[98] Topfelt Pty Ltd v State Bank of New South Wales Ltd [1993] FCA 589; (1993) 47 FCR 226, 242; Ann Street [24]. Compare K R Handley, Spencer, Bower & Handley: Res Judicata (4th ed, 2009) [10.15]; compare also Gould v Brown [1998] HCA 6; (1998) 193 CLR 346 [244]. Compare also K R Handley, Spencer, Bower & Handley: Res Judicata (5th ed, 2019) [10.15] which does not include the statements in [10.15] of the 4th edition.

[99] K R Handley, Spencer, Bower & Handley: Res Judicata (4th ed, 2009) [10.15]. It is unnecessary for present purposes to determine the precise legal effect of a winding up order.

[101] Hunt v Knabe (No 2) (1992) 8 WAR 96.

[103] Bracks [33]; Bienstein [25].

[105] Barboutis [3], [22], [30].

[106] Western Suburbs Electrical Supplies Pty Ltd v Russell Electrical Services Pty Ltd [1994] FCA 1240; (1994) 12 ACLC 719, 722.

[107] Expile Pty Ltd v Jabb's Excavations Pty Ltd [2002] NSWSC 851; (2002) 194 ALR 138 [9].

[110] Order 42 r 2 of the RSC: Barboutis [24]; Smolarek v Ciwszyc [2006] WASCA 50 (S); (2006) 32 WAR 129 [4] ‑ [8].

[112] cf Totev [54] - [62]; Owen‑Pearse [129] ‑ [133].

[114] Respondent's further submissions, 27 July 2022, par 22.

[115] Compare respondent's further submissions, 27 July 2022, par 20.

[116] Wilson v Metaxas [1989] WAR 285, 294.

[117] Supreme Court Act 1935 (WA) s 60(1)(f).

[118] Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, 439 - 440, 443 - 444; Licul v Corney [1976] HCA 6; (1976) 180 CLR 213, 225; Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246, 248, 253 - 254; Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147, 152; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [25]; Re Luck [4].

[119] Carr v Finance Corporation of Australia Ltd (248); Re Luck [4].

[120] A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1985) 1 NSWLR 701, 715 - 717.

[121] Re Luck [9]. This passage does not apply to an order staying a proceeding on the ground of Anshun estoppel. See Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35, 38. The distinction between a case of Anshun estoppel, where an earlier proceeding precludes a further proceeding, and the ordinary case where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no determination of rights, is explained in Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224 [39] - [45].

[122] Appellant's submissions dated 8 July 2022 pars 31, 33 - 35.

[123] Appellant's submissions dated 8 July 2022 par 41.

[124] Appellant's submissions dated 8 July 2022 par 35.

[125] Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, 128 (Toohey J). See also (125) (Dawson J).

[126] Emanuele v Australian Securities Commission (156) (Kirby J).

[127] Emanuele v Australian Securities Commission (125) (Dawson J), (131) (Toohey J), (156) (Kirby J).

[129] Amended interlocutory process dated 26 July 2021 par 2 BAB 19.

[130] Draft judgment pp 3 - 4 BAB 4 - 5.

[131] Draft judgment pp 11 - 12 BAB 12 - 13.

[132] Appellant's submissions dated 8 July 2022 pars 38 - 40.

[133] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].

[134] Clough Ltd v Forge Group Ltd (in liq) (receivers & managers appointed) [2022] WASCA 179 [18] - [23].

[135] Appellant's submissions dated 8 July 2022 par 47.

[136] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 [43].

[137] Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184 [22] - [24].

[138] Barboutis v The Kart Centre Pty Ltd [23].

[139] See Explanatory Memorandum to the Corporate Law Reform Bill 1992 (Cth) par 712 (this being the Bill that inserted s 459R into the then Corporations Law).

[140] Emanuele v Australian Securities Commission (143).

[141] Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2008] HCA 9; (2008) 232 CLR 314 [17] - [18]; Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2011] HCA 18; (2011) 244 CLR 1 [27].

[142] Affidavit of J K C Chan sworn 5 July 2021 attachment 'JC-19' GAB 125.

[143] Affidavit of J K C Chan sworn 5 July 2021 attachment 'JC-11' GAB 104 - 109.