Balmain Leagues Club Ltd v Alex Lankry

[2009] NSWSC 1218

CITATION:	Balmain Leagues Club Ltd v Alex Lankry [2009] NSWSC 1218
HEARING DATE(S):	28 September 2009
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	28 September 2009
DECISION:	Statutory demand set aside. Defendant to pay plaintiff's costs on indemnity basis.
CATCHWORDS:	CORPORATIONS – winding up – statutory demand – application to set aside letter of statutory demand – where court satisfied of service of originating process containing application under (CTH) Corporations Act 2001 s 459G – where court satisfied that documents served in accordance with UCPR r 10.14 – where genuine dispute about existence of debt – where substantial injustice caused unless demand set aside
LEGISLATION CITED:	(CTH) Acts Interpretation Act 1901, s 28A (CTH) Corporations Act 2001, s 459E(3)(a), s 459E(3)(b), s 459G (NSW) Uniform Civil Procedure Rules 2005, r 10.14(3)
CATEGORY:	Procedural and other rulings
CASES CITED:	Austar Finance v Campbell [2007] NSWSC 1493, (2007) ACLC 1834 Siafrac Pty Limited v Marketing Heads Pty Limited [2007] NSWSC 1143
PARTIES:	Balmain Leagues Club Ltd (plaintiff) Alex Lankry (defendant)
FILE NUMBER(S):	SC 4325/09
COUNSEL:	Mr M S Henry (plaintiff)
SOLICITORS:	Watson Mangioni (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BRERETON J

Monday 28 September 2009

4325/09 Balmain Leagues Club Limited v Alex Lankry

JUDGMENT (ex tempore - application to set aside statutory demand)

1 HIS HONOUR: I am satisfied that the affidavit of Mitchell Vella of 24 September 2009 establishes service of the originating process containing the application under s 459G to set aside the statutory demand on 31 August 2009 within the requisite 21 day period, in accordance with (CTH) Acts Interpretation Act, 1901, s 28A [see also Austar Finance v Campbell [2007] NSWSC 1493, (2007) ACLC 1834].

2 Further, I am satisfied that the step of serving the originating process by delivering the documents to the front door of the premises Suite 1203/309 Pitt Street being the address given for the creditor in the statutory demand were steps taken for the purpose of bringing the document to the notice of the defendant and, pursuant to UCPR r 10.14(3), I direct that the originating process be taken to have been served on the defendant on 31 August 2009.

3 The affidavit of Tim Camiller of 28 August 2009 establishes to my satisfaction that there is a genuine dispute between the plaintiff and the defendant about the existence of the debt to which the demand relates.

4 Further, I am satisfied that the omission from the affidavit accompanying the demand of verification that the debt is due and payable (contrary to s 459E(3)(a)) and of a belief of the deponent that there is no genuine dispute about the existence or amount of the debt (contrary to s 459E(3)(b)) amount to defects in the demand by reason of which substantial injustice will be caused unless the demand is set aside [see Siafrac Pty Limited v Marketing Heads Pty Limited [2007] NSWSC 1143].

5 The plaintiff drew to the defendant's attention by letter dated 27 August 2009 the defects in the demand and the fact that the debt claimed was disputed, and requested the withdrawal of the demand and foreshadowed an application to set it aside. It is apparent that that letter was received on behalf of the defendant by 27 August 2009. On 22 September 2009 the plaintiff's solicitors drew to the attention of the defendant by facsimile and email that the matter was set down for hearing today, and that if there were no appearance the matter would proceed and an indemnity costs order would be sought. There has been no appearance and there appears to have been no response to that correspondence.

6 I order that the statutory demand dated 11 August 2009 be set aside.

7 I order that the defendant pay the plaintiff's costs on the indemnity basis.

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