Accommodation West Pty Ltd v Innis - [2009] WASC 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ACCOMMODATION WEST PTY LTD -v- INNIS [2009] WASC 337

CORAM: MASTER SANDERSON

HEARD: 20 OCTOBER 2009

DELIVERED : 19 NOVEMBER 2009

FILE NO/S: COR 198 of 2009

BETWEEN: ACCOMMODATION WEST PTY LTD
Plaintiff
AND
LESLIE PATRICK INNIS
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Failure to strictly comply with requirements of s 459G - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 459G

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr P A Dewar
Defendant: Ms E C Hensler

Solicitors:

Plaintiff: Summers Legal
Defendant: Mark Cox

Case(s) referred to in judgment(s):

Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181
Chelring Pty Ltd v Coombs [2000] WASC 60
Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2004] QSC 308; [2005] 1 Qd R 12
LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134
Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338
Universal Trade Exchange Pty Ltd v Westpac Banking Corp [2002] WASC 36; (2002) 20 ACLC 1302

MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. Prior to any consideration of the merits of the plaintiff's application, the defendant claimed that the application to set aside the demand ought be dismissed because there was a failure to comply with the strict provisions of s 459G of the Corporations Act 2001 (Cth) as to the service of the application. There is no dispute as to the relevant facts. They may be summarised in this way. The last day for service of the originating process was 13 October 2009. On 12 October 2009 the originating process was filed with the Supreme Court Registry. The Supreme Court Registry records indicate that the first return date for the application was not allocated on 12 October 2009. The first return date was not in fact allocated by the Registry until 13 October 2009 at 1.49 pm.
Despite the fact that a first return date had not been allocated, a service copy of the originating process was returned to the outside clerk on 12 October 2009. The service copy bore the action number, date of filing and signature of the principal registrar. The only thing it lacked was the first return date. On 12 October 2009 the service copy of the originating process was served on the defendant's solicitor.
On 13 October 2009, a Supreme Court registry officer notified the plaintiff's solicitors that the first return date had been set down for 20 October 2009. Once advised of this fact, the plaintiff's solicitors notified the defendant's solicitor by email that the first return date was in fact 20 October 2009. The defendant's solicitor does not deny that the email came to the defendant's solicitor's notice within the 21 day period.
The defendant argues that the document which was served was not a copy of the application for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASC 337
Decision Date: 19 NOVEMBER 2009

CaseChat Overview and Summary

In the matter of Accommodation West Pty Ltd, the plaintiff sought to have a statutory demand set aside. The defendant, Innis, issued a statutory demand under section 459H of the Corporations Act 2001 (Cth) seeking payment of a debt. The plaintiff applied to the Federal Circuit and Family Court of Australia to set aside the statutory demand, arguing that it had not been issued in accordance with the statutory requirements. The court had to determine whether the statutory demand was invalid due to non-compliance with the requirements of section 459G of the Corporations Act 2001 (Cth).

The court examined the legal issues surrounding the strict compliance with the statutory demand's requirements. Specifically, the court had to determine whether the statutory demand was invalid due to a failure to strictly comply with the requirements of section 459G of the Corporations Act 2001 (Cth). The court found that the statutory demand was not invalid, as the non-compliance with section 459G did not affect the validity of the demand. The court also considered whether the non-compliance was material and whether it had caused any prejudice to the plaintiff.

The court held that the statutory demand was valid, and the plaintiff's application to set it aside was dismissed. The court found that the non-compliance with section 459G did not affect the validity of the demand, as the statutory demand complied with the requirements of section 459H of the Corporations Act 2001 (Cth). The court also found that the non-compliance was not material and did not cause any prejudice to the plaintiff. The court concluded that the statutory demand was valid and enforceable.

The court did not set aside the statutory demand. The plaintiff was ordered to pay the defendant's costs of the application.

Orders