Gestion Pty Limited v Kit Digital Australia Pty Limited (In Liquidation) ACN 101 260 182

MEAGHER JA: The applicant, Gestion Pty Ltd, seeks leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to begin and proceed with its appeal from the decision of the primary judge, Black J, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547.

I am informed by Mr Fernon, who appears for the applicant, that the respondents do not consent to that application nor do they oppose it. I am also informed by Mr Fernon that security for the costs of the appeal has been provided by agreement between the parties.

The first respondent company went into liquidation on 13 February 2013. On 9 September 2013 the applicant was granted leave to bring and proceed with a claim that the first respondent holds the sum of $181,445 on trust for it. On 6 November 2014 an order was made by Black J dismissing that claim. The appeal is brought from that order.

The applicant’s written submissions in support of the appeal have been filed. They are primarily directed to the primary judge’s factual findings leading to the rejection of the claim that the moneys received by the first respondent had to be kept separately and are held on trust. The respondents do not contend that the appeal is not arguable.

In the circumstances, leave to begin and proceed with the appeal should be granted. The parties have agreed that there should be no order as to the costs of this application.

Accordingly, I make the following orders: