Borst Farming Enterprises Pty Ltd v Wesfal Pty Ltd trading as Pro-Ag Forbes

[2010] NSWSC 591

CITATION:	Borst Farming Enterprises Pty Ltd v Wesfal Pty Ltd trading as Pro-Ag Forbes [2010] NSWSC 591
HEARING DATE(S):	31/05/10
JUDGMENT DATE :	31 May 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	31 May 2010
DECISION:	Adjournment refused. Application dismissed.
CATCHWORDS:	CORPORATIONS - winding up - statutory demand - application for order setting aside - defendant does not dispute existence or amount of debt - only ground advanced is desire to have time to raise money to pay debt - not an available ground
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss 459G, 459H, 459J(1)(b),
CATEGORY:	Principal judgment
CASES CITED:	Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581
PARTIES:	Borst Farming Enterprises Pty Ltd - Plaintiff Wesfal Pty Ltd trading as Pro-Ag Forbes - Defendant
FILE NUMBER(S):	SC 2010/120463
COUNSEL:	Ms Degerly - Plaintiff Mr M W Sneddon - Defendant
SOLICITORS:	McGroders - Plaintiff DTA Lawyers - Defendant

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

BARRETT J

MONDAY 31 MAY 2010

2010/120463 BORST FARMING ENTERPRISES PTY LTD v WESFAL PTY LTD t/as PRO-AG FORBES

JUDGMENT

1 I have before me an application under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on the plaintiff by the defendant.

2 The originating process makes it clear, by its references to ss 459G and 459J(1)(b), that the ground relied on is that there is "some other reason why the demand should be set aside", they being the words in s 459J(1)(b) which refer to a reason other than the reasons in the earlier provisions.

3 The plaintiff seeks an adjournment of the hearing of the application with a view to completing arrangements to sell property and to raise money to pay the debt the subject of the statutory demand.

4 The affidavit filed in support of the s 459G application states clearly that the debt is not disputed and goes on to speak of measures envisaged in order to obtain money to pay it.

5 The position taken by the defendant is that the affidavit, on its face, shows no ground on which the court could make an order setting aside the statutory demand including, in particular, the ground in s 459J(1)(b). Of course, having regard to Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 21 ACSR 581, the plaintiff will be confined to grounds appearing from the affidavit filed in support of the application.

6 Given that the obtaining of time in which to pay the debt is not, on any view, something relevant to the question whether the demand should be set aside having regard to the statutory grounds on which an order for setting aside may be made, there is no point in granting the further time the plaintiff seeks.

7 The adjournment application is therefore dismissed.

[Submissions in the substantive application]

8 I turn now to the merits of the s 459G application. The plain fact is that the affidavit in support discloses no ground on which the court could, under either s 459H or s 459J, properly make an order setting aside the statutory demand. The only matter deposed to is a desire to have time to raise money by the sale of the property. That is not something that goes to any of the available grounds in circumstances where as here, the plaintiff candidly accepts that the debt is owing, due and payable. The legislative scheme with respect to statutory demands is not such as to be subverted if a statutory demand is left standing in such a case.

9 I dismiss the originating process filed 14 May 2010 with costs.

**********