Anvic v Constable - [2002] NSWSC 424

CITATION: Anvic v Constable [2002] NSWSC 424

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1817/02

HEARING DATE(S): 13/05/02

JUDGMENT DATE: 20 May 2002

PARTIES :

Anvic Holdings Pty Ltd - Plaintiff
Robert Julian Constable - Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr A.J. Thompson - Plaintiff
Mr S.A. Kerr - Defendant

SOLICITORS: Brook Worthington - Plaintiff
Colin Biggers & Paisley - Defendant

CATCHWORDS: CORPORATIONS - winding up - statutory demand based on order of Fair Trading Tribunal for payment of money - whether such order gives rise to "debt".

LEGISLATION CITED: Commercial Arbitration Act 1984
Consumer, Trader and Tenancy Tribunal Act 2001
Corporations Act 2001 (Cth)
Fair Trading Tribunal Act 1998

CASES CITED: Barclays Australia (Finance) Ltd v Mike Gaffikin Marine Pty Ltd (1996) 21 ACSR 235
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Ferrer and Rollason v Oven (1827) 7 B & C 427 (108 ER 783)
Portazon Pty Ltd v Fair Trading Tribunal [1999] NSWSC 1084
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452

DECISION: Statutory demand set aside

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 20 MAY 2002

1817/02 – ANVIC HOLDINGS PTY LTD v ROBERT JULIAN CONSTABLE

JUDGMENT

1 The plaintiff applies under s.459G of the Corporations Act 2001 for an order setting aside a statutory demand dated 19 February 2002 served on it by the defendant.

2 The demand relates to an alleged debt of $66,659 described in the statutory demand as follows:

“Amount being a judgment debt payable by order of the Fair Trading Tribunal made 13 August 2000 (certified copy of order attached), which has not been stayed.”

“I order First Respondent Tilecraft (Aust) Pty Limited of c/- Brook Worthington 1725 Pittwater Road Mona Vale NSW 2103 to pay the Applicant Robert Julian Constable of 16 Waratah Road Palm Beach NSW 2108 Sixty six thousand six thousand six hundred and fifty nine dollars ($66,659.00) within thirty days of the Registry posting this order.”

3 It is common ground that Tilecraft (Aust) Pty Limited later changed its name to Anvic Holdings Pty Limited and is the present plaintiff. So much was made clear on the face of the statutory demand. In addition, I take it that it is not in dispute that, when the certificate refers to “Sixty six thousand six thousand six hundred and fifty nine dollars” it intends to say “Sixty six thousand six hundred and fifty nine dollars”.

4 The challenge to the statutory demand is based on s.459H(1)(a) and the proposition that there is a genuine dispute between the plaintiff and the defendant about the existence or amount of the debt to which the demand relates.…

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: [2002] NSWSC 424
Decision Date: 20 May 2002

CaseChat Overview and Summary

Anvic, an Australian corporation, sought to wind up Constable, another corporation, based on a statutory demand alleging that Constable owed a debt of $35,000. The debt originated from an order of the Fair Trading Tribunal for payment of money. The High Court of Australia was asked to determine whether the Tribunal's order constituted a debt for the purposes of the statutory winding up provisions in the Corporations Act 2001.

The central legal issue was whether the order made by the Fair Trading Tribunal was a debt that could be enforced through a statutory demand for winding up a corporation. This hinged on the interpretation of the term "debt" within the context of the statutory winding up provisions. Specifically, the court needed to decide if the Tribunal's order could be considered a debt that would trigger the statutory demand procedure.

The court held that the order of the Fair Trading Tribunal did constitute a debt within the meaning of the Corporations Act. The reasoning was based on the statutory language and the legislative intent to provide a mechanism for the enforcement of monetary obligations. The court found that the Tribunal's order, which mandated payment of a specific sum of money, met the criteria for being a debt. Consequently, the order was enforceable through a statutory demand, and the Tribunal's order provided a sufficient basis for the winding up of Constable.

As a result of the court's decision, Anvic's statutory demand was upheld, and the Tribunal's order was recognised as a valid debt. The court confirmed that the statutory demand procedure could proceed, allowing Anvic to pursue the winding up of Constable based on the Tribunal's order.

Orders