Bolivar Rd Pty Ltd v Stefren Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BOLIVAR RD PTY LTD v STEFREN PTY LTD

[2011] SASC 93

Reasons of Judge Lunn a Master of the Supreme Court

3 June 2011

CORPORATIONS

Application to set aside statutory demand - copy of originating process to set it aside which was served on defendant on last day omitted the action number, the date of filing and the signature of the Registrar - held s 459G(3)(b) of Corporations Act not satisfied and application incompetent.

BOLIVAR RD PTY LTD v STEFREN PTY LTD
[2011] SASC 93

JUDGE LUNN:

Reasons on whether plaintiff has validly instituted proceedings to set aside a statutory demand which was served on 9 March 2011

1. On 30 March 2011 the plaintiff instituted this action against the defendant under s 459G of the Corporations Act 2001 (“the Act”) seeking to have the demand set aside. Later on that day the plaintiff’s solicitors purported to serve a copy of the originating process for this action on the defendant’s solicitors. The preliminary issue is whether the copy of the originating process which was then served satisfied the requirements of s 459G(3)(b) of the Act.

2. The relevant facts are as follows. When the plaintiff’s solicitors sought to issue the originating process at the Court registry they were given back by the Registry a copy of the originating process, a copy of which they served on the defendant’s solicitors later that afternoon. The document which was handed back by the Registry contained a hand-written endorsement in part B of the date and time of the first hearing and stating that it would be before me. The document did not have on it the action number and the date of filing stated in part D and it was not signed by the Registrar in the appropriate place in part D. The document did not bear the Court seal, but did have a received in the “Higher Courts Registry” stamp imprinted on it. At some unknown time a copy of the originating process document, which is FDN 1 on the Court file, had placed on it the date of filing, a signature on behalf of the Registrar, the action number and the seal of the Court on the front page. Hence the document which was served was not a complete copy of the originating process as it now appears on the Court file.

3. No copy of the complete originating process has apparently ever been served on the defendant. The issue for my determination is whether the incomplete copy of the originating process which was served was sufficient to satisfy s 459G(3)(b). It was not disputed that, if s 459G(3)(b) had not been duly satisfied, the application must be dismissed.

4. Counsel for the plaintiff submitted that in a letter of 6 May 2011 the solicitors for the defendant had admitted that a copy of the originating process had been validly served. The relevant parts of that letter are as follows:

   We enclose a copy of the document referred to…