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…

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: [1999] NSWSC 1181
Decision Date: 29 November 1999

CaseChat Overview and Summary

Benonyx Pty Ltd brought a statutory demand against Fetrona Pty Ltd for an alleged debt. In response, Fetrona applied to set aside the statutory demand under section 459G of the Corporations Act. The dispute centered on the strict compliance requirements for such an application, including the service of the application to set aside on the claimant creditor within twenty-one days. The court was required to determine whether the applicant's non-compliance with certain procedural requirements rendered the application defective.

The court held that while the applicant served a copy of the application to set aside before it was filed, it omitted the return date. The court found that the omission of the return date was a fatal non-compliance that could not be remedied. However, the court also noted that the service of the application before it was filed may not necessarily be fatal to the application. The court considered the purpose of the requirement for strict compliance, which was to ensure that the creditor is given proper notice of the application and an opportunity to respond.

The court concluded that the applicant's failure to include the return date in the service of the application was a fundamental error that could not be cured. Therefore, the application to set aside the statutory demand was invalid. The court did not need to consider the effect of the former omission as the latter omission was fatal. The court dismissed the application to set aside the statutory demand.

Orders