Benonyx Pty Ltd v Fetrona Pty Ltd

[1999] NSWSC 1181

CITATION:	Benonyx Pty Limited v Fetrona Pty Limited [1999] NSWSC 1181
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	3598/99
HEARING DATE(S):	29/11/1999
JUDGMENT DATE:	29 November 1999
PARTIES :	Benonyx Pty Limited (Plaintiff) Fetrona Pty Limited (Defendant)
JUDGMENT OF:	Santow J

COUNSEL :	G R Waugh (Plaintiff) S Y Reuben (Defendant)
SOLICITORS:	Booth Brown Samuels & Olney, Dubbo (Plaintiff) Sally Nash & Co (Defendant)
CATCHWORDS:	CORPORATIONS LAW — Alleged debtor seeking to set aside a statutory demand under s459G of the Corporations Law — Requires strict compliance including service of the application to set aside on the claimant creditor within twenty-one days — Served copy of application before it was filed and omitting return date — Latter omission fatal non-compliance not capable of remediation — Effect of former omission may not be fatal.; WORDS AND PHRASES — "served"
ACTS CITED:	Corporations Law s459G
CASES CITED:	David Grant Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265 Hope v Hope 43 ER 534 Howship Holdings Pty Limited v Leslie (1996) 41 NSWLR 542
DECISION:	Plaintiff's Summons dismissed.

REVISED — 8 December, 1999
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 3598/99
BENONYX PTY LIMITED
Plaintiff
FETRONA PTY LIMITED
Defendant
JUDGMENT — ex tempore

29 November 1999

THE CENTRAL ISSUE

1 The only issue before me is whether the service of a copy of an application by Summons to set aside a statutory demand, but which omits the return date on the later filed Summons, fatally contravenes s459G of the Corporations Law by that fact alone; this is when all other requirements of s459G were complied with. That is the separate question with which I am now to deal.

SALIENT FACTS AND RESOLUTION OF THE CENTRAL ISSUE

2 The facts briefly stated are these. The Defendant served a statutory demand on the Plaintiff on 29 July 1999. 3 The parties agree that the twenty-one day period mandated by s459G of the Corporations Law expired on 20 August 1999. By that date, the Plaintiff had to do the following:

(i) make an application under s459G(2) to set aside the statutory demand, which it did.

(ii) file an affidavit under s459G(3) supporting the application with the Court, which it did.

(iii) serve a copy of the above supporting affidavit under s459G(3) upon the Defendant, which it did, and

(iv) serve a copy of the application under s459G(3), upon the Defendant, which it omitted to do, but only insofar as the copy of the application served omitted the return date (as the Summons had yet to be filed).

4 The Defendant contends that this is an irremediable departure from s459G of the Corporations Law and that David Grant Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265 binds this Court to conclude that the essential conditions of s459G have therefore not been complied with. 5 The Plaintiff contends that, consistent with the approach of Young J in Howship Holdings Pty Limited v Leslie (1996) 41 NSWLR 542 at 544, following amongst other decisions Hope v Hope 43 ER 534 at 539 service should be understood in the terms stated by Lord Cranworth:

"the object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the court may \feel perfectly confident that service has reached him, everything has been done that is required."

6 But there lies the answer to the Plaintiff’s argument. For how can the party who is served have received proper notice of the proceedings for which attendance is required within the twenty-one days when that party is not told of the important fact of the return date for the application to set aside the statutory demand till after the twenty-one days. 7 Had the copy been served in advance of the filing of the identical application but with a notation of the return date written thereon in some fashion, assuming that that information could be obtained in advance of filing, I might have concluded that the Plaintiff had done what it needed to do to conform to s459G of the Corporations Law — on the basis that there is no magic in the order of the events that have to take place within the twenty-one days, though the argument is still open that the Defendant needs to know for certain it has been filed and not simply rely on an anticipated return date that turns out to be correct. But regrettably not even that occurred. That is not altered by the fact that the Defendant was apprised of the return date later, since that was some six days after the twenty-one days and that is too late. 8    While this result appears productive of hardship and unduly technical, it is in my view regrettably unavoidable. No doubt if the matter reaches the stage of application under s459S to the extent the Court is satisfied as to the matters there set out, then winding-up can be reviewed in the overall context of what the Court may then take into account.

ORDERS AND COSTS

9    Costs in the circumstances must follow the event and I award costs against the Plaintiff to the Defendant. 10    I should also record that the Plaintiff in the best traditions of the Bar very properly raised the discrepancy between the summons that was filed and the summons that was served (the absence of the return date) though I do not mean to suggest thereby that counsel for the Defendant was not aware of that discrepancy. 11    I dismiss the Plaintiff’s Summons.

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Last Modified: 12/08/1999