Arkmill Pty Ltd v Tippers & Co Pty Ltd - [2006] QSC 248

SUPREME COURT OF QUEENSLAND

CITATION:

Arkmill Pty Ltd v Tippers & Co Pty Ltd [2006] QSC 248

PARTIES:

ARKMILL PTY LTD
(ACN 117 840 963)
(applicant)

v

TIPPERS & CO PTY LTD
(ACN 114 819 779)
(respondent)

FILE NO/S:

BS 4506 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

31 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2006

JUDGE:

McMurdo J

ORDER:

1. The statutory demand be set aside

2. The respondent pay the applicant’s costs of the application to be assessed

CATCHWORDS:

CORPORATIONS – WINDING UP – GROUNDS FOR WINDING UP – INSOLVENCY – APPLICATION TO SET ASIDE STATUTORY DEMAND – where the applicant made an application to set aside a statutory demand – where the debt is genuinely disputed – where the demand was for the total of various invoices in an amount of $20 000 – where the invoices were issued prior to the incorporation of the applicant – where the applicant argues the debts were incurred by another company – whether the statutory demand should be set aside

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – where the respondent argues it is entitled as a creditor of the former trustee to a right of subrogation– whether a former trustee has a right of indemnity against the trust estate – whether the new trustee is personally liable as a debtor of its predecessor

COUNSEL:

A J Taylor for the applicant
C D Coulsen for the respondent

SOLICITORS:

Colwell Wright for the applicant
Reardon & Associates for the respondent

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

McMURDO J

No BS4506 of 2006

IN THE MATTER OF ARKMILL PTY LTD (ACN 117 840 963)
atf CHAY PROPERTY TRUST

ARKMILL PTY LTD (ACN 117 840 963)	Applicant
and
TIPPERS & CO PTY LTD (ACN 114 819 779)	Respondent

BRISBANE

..DATE 31/07/2006

ORDER

HIS HONOUR: This is an application to set aside a statutory demand upon the basis that the debt is genuinely disputed. The demand was for the total of various invoices in an amount of $20,000. The invoices were issued however, prior to the incorporation of the applicant. The applicant's case is that the invoices represent debts incurred by another company called Big Resource & Venture Enterprises Pty Ltd which I will call the former trustee. I will call it that because the evidence well establishes that the applicant has become the trustee of a trust which owns land as a new trustee to replace that former trustee. The relevant documents showing that replacement of trustee are in evidence and they are dated in February of this year. So the applicant's case is simply that these were debts incurred by its predecessor and it has had no dealings with the respondent and is not indebted to it.

The respondent's argument proceeds as follows. It accepts that its dealings were with the former trustee. It then says that it can be…

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: [2006] QSC 248
Decision Date: 31 July 2006

CaseChat Overview and Summary

Arkmill Pty Ltd made an application to set aside a statutory demand against it by Tippers & Co Pty Ltd, which was issued pursuant to section 459H of the Corporations Act 2001. The demand was for the total of various invoices in the amount of $20,000. Arkmill contended that the debt was genuinely disputed and that the invoices were issued prior to its incorporation. Furthermore, Arkmill argued that the debts were incurred by another company and therefore it was not liable for them. Tippers, on the other hand, asserted that it was entitled to a right of subrogation as a creditor of the former trustee and that the new trustee was personally liable as a debtor of its predecessor.

The court had to decide whether the statutory demand should be set aside and whether Tippers was entitled to a right of subrogation against Arkmill. The court found that the debt was genuinely disputed because Arkmill had not received the services for which the invoices were issued. Additionally, the invoices were issued prior to the incorporation of Arkmill, and therefore the company was not liable for those debts. The court also held that Tippers was not entitled to a right of subrogation against Arkmill, and the new trustee was not personally liable as a debtor of its predecessor.

In conclusion, the court ordered that the statutory demand be set aside and Tippers pay the applicant’s costs of the application to be assessed. The court found that Arkmill had established that the debt was genuinely disputed, and therefore the statutory demand was properly set aside. The court also found that Tippers was not entitled to a right of subrogation against Arkmill and that the new trustee was not personally liable as a debtor of its predecessor.

Orders

Orders of the court

1. The statutory demand be set aside

2. The respondent pay the applicant’s costs of the application to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arkmill Pty Ltd v Tippers & Co Pty Ltd [2006] QSC 248
PARTIES:	ARKMILL PTY LTD (ACN 117 840 963) (applicant) v TIPPERS & CO PTY LTD (ACN 114 819 779) (respondent)
FILE NO/S:	BS 4506 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	31 July 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2006
JUDGE:	McMurdo J
ORDER:	1. The statutory demand be set aside 2. The respondent pay the applicant’s costs of the application to be assessed
CATCHWORDS:	CORPORATIONS – WINDING UP – GROUNDS FOR WINDING UP – INSOLVENCY – APPLICATION TO SET ASIDE STATUTORY DEMAND – where the applicant made an application to set aside a statutory demand – where the debt is genuinely disputed – where the demand was for the total of various invoices in an amount of $20 000 – where the invoices were issued prior to the incorporation of the applicant – where the applicant argues the debts were incurred by another company – whether the statutory demand should be set aside EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – where the respondent argues it is entitled as a creditor of the former trustee to a right of subrogation– whether a former trustee has a right of indemnity against the trust estate – whether the new trustee is personally liable as a debtor of its predecessor
COUNSEL:	A J Taylor for the applicant C D Coulsen for the respondent
SOLICITORS:	Colwell Wright for the applicant Reardon & Associates for the respondent