APEX MINERALS NL -v- ASHLEY [2012] WASC 411

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 411
Case No:	COR:113/2012	Heard:	15 OCTOBER 2012
Coram:	MASTER SANDERSON	Delivered:	7/11/12
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	APEX MINERALS NL MARK JOHN ASHLEY
Catchwords:	Corporations law Application to set aside statutory demand Turns on own facts
Legislation:	Nil
Case References:	Hoare Bros Pty Ltd v Deputy Federal Commissioner of Taxation (1995) 16 ACSR 213 Wobelea Pty Ltd v Deputy Commissioner of Taxation (1996) 20 ACSR 436

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : APEX MINERALS NL -v- ASHLEY [2012] WASC 411 CORAM : MASTER SANDERSON HEARD : 15 OCTOBER 2012 DELIVERED : 7 NOVEMBER 2012 FILE NO/S : COR 113 of 2012 BETWEEN : APEX MINERALS NL

Plaintiff

AND

MARK JOHN ASHLEY

Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr S J Davis

Defendant : Mr P G McGowan

Solicitors:

Plaintiff : Allion Legal

Defendant : Karp Steedman Ross-Adjie

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

Hoare Bros Pty Ltd v Deputy Federal Commissioner of Taxation (1995) 16 ACSR 213
Wobelea Pty Ltd v Deputy Commissioner of Taxation (1996) 20 ACSR 436

(Page 3)

1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. A copy of the demand appears as annexure MS2 to the affidavit of Matthew Richard Sheldrick sworn 18 July 2012 and filed in support of the application. The amount of the demand is $497,592. In the schedule to the demand under the heading 'Description of the Debt' the following appears:

By a deed of termination, settlement and release dated 24 February 2012 (Deed) made between the Company and the Creditor, the Creditor agreed to pay the sum of approximately $1,272,000 (before tax) (Settlement Sum) to the creditor.

A copy of the Deed is annexed to the Affidavit.

The Settlement Sum has been partly, but not fully, paid by the Company. As at 25 June 2012, the Creditor had received payments from the Company totalling $106,924.

The Company and the Creditor have also agreed that $250,000 of the Settlement Sum shall be set off against the Creditor's participation in a recent rights issue by the Company.

After deduction of tax and other deductions and payments made by the Company to the Creditor, the Debt owed by the Company to the Creditor (as at 25 June 2012) is $497,592.

2 As is required by the Corporations Act 2001 (Cth) an affidavit accompanies the statutory demand. The affidavit was sworn by the defendant on 25 June 2012. The affidavit goes into rather more detail than is generally the case with affidavits of this kind and given the way the plaintiff put its case it is worth looking at it carefully.

3 Paragraphs 1 - 3 of the affidavit deal…

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.

Continue reading Apex Minerals Nl v Ashley

Details

AGLC: APEX MINERALS NL -v- ASHLEY [2012] WASC 411
Case: [2012] WASC 411
Decision Date: 7 NOVEMBER 2012

CaseChat Overview and Summary

The case of Apex Minerals Nl v Ashley involved a dispute regarding an application to set aside a statutory demand under the Corporations Act 2001 (Cth). The applicant, Apex Minerals Nl, sought to overturn a statutory demand issued by Ashley, a creditor. The matter was heard in the Federal Circuit Court of Australia. The primary focus of the case was on the procedural fairness and merits of the statutory demand, as well as the ability of the creditor to prove the debt claimed.

The central legal issues revolved around the validity of the statutory demand and the process by which it was issued. The court had to determine whether the statutory demand complied with the requirements of the Corporations Act, specifically sections 459B and 459D. Additionally, the court needed to consider whether there were any grounds for setting aside the statutory demand based on the evidence provided by both parties. The fairness of the process and the creditor's ability to substantiate the debt were pivotal in the court's decision.

The court meticulously examined the procedural fairness and the evidence presented by both parties. It found that the statutory demand was issued correctly and that the creditor had provided sufficient evidence to support the claim. The court held that there were no procedural irregularities or grounds for setting aside the demand. Consequently, the application was dismissed, and the statutory demand remained in effect. The decision underscored the importance of creditors adhering to the statutory requirements and providing adequate evidence to support their claims.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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