FEDERAL COURT OF AUSTRALIA
CCH Workflow Solutions Pty Ltd v E.Discovery Australia Pty Ltd [2011] FCA 994
Citation: CCH Workflow Solutions Pty Ltd v E.Discovery Australia Pty Ltd [2011] FCA 994 Parties: CCH WORKFLOW SOLUTIONS PTY LTD ACN 070 975 398 v E.DISCOVERY AUSTRALIA PTY LTD ACN 101 933 304 File number(s): NSD 1155 of 2011 Judge: JAGOT J Date of judgment: 19 August 2011 Catchwords: BANKRUPTCY AND INSOLVENCY – presumption of insolvency due to non-compliance with statutory demand – whether presumption arose where affidavit accompanying statutory demand was witnessed by a person who was not a registered Justice of the Peace – where applicable procedures otherwise complied with Legislation: Corporations Act 2001 (Cth) ss 459E, 459P, 459Q, 459S
Federal Court (Corporations) Rules 2000 (Cth)Cases cited: Dolvelle Pty Ltd v Australian Macfarms Pty Ltd (1998) 43 NSWLR 717
Hamilhall Pty Ltd (in liq) v AT Phillips Pty Ltd (1994) 54 FCR 173
Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962
Victorian Workcover Authority v Kay’s Pty Ltd (2001) 39 ACSR 281Date of hearing: 19 August 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Solicitor for the Plaintiff: Ms A Crittenden of Clayton Utz Counsel for the Defendant: The defendant did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1155 of 2011
BETWEEN: CCH WORKFLOW SOLUTIONS PTY LTD ACN 070 975 398
PlaintiffAND: E.DISCOVERY AUSTRALIA PTY LTD ACN 101 933 304
Defendant
JUDGE:
JAGOT J
DATE OF ORDER:
19 AUGUST 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.E.Discovery Australia Pty Ltd ACN 101 933 304 be wound up in insolvency.
2.Robyn Louise Duggan be appointed as liquidator of E.Discovery Australia Pty Ltd ACN 101 933 304.
3.The defendant pay the costs of the application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1155 of 2011
BETWEEN: CCH WORKFLOW SOLUTIONS PTY LTD ACN 070 975 398
PlaintiffAND: E.DISCOVERY AUSTRALIA PTY LTD ACN 101 933 304
Defendant
JUDGE:
JAGOT J
DATE:
19 AUGUST 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application under s 459P of the Corporations Act 2001 (Cth) (the Corporations Act) that the defendant company be wound up on the ground of insolvency and that a liquidator, Robyn Louise Duggan, be appointed to the defendant company. The plaintiff relies on the defendant’s failure to comply with a statutory demand (see ss 459C, 459F and 459Q of the Corporations Act). The plaintiff has provided written submissions filed on 18 August 2011 in support of the application. Those written submissions refer to the relevant documents, namely the originating process filed 14 July 2011 (which attaches the creditor’s statutory demand for payment of the debt) and the affidavit which accompanied it. This affidavit (of Murray John Press, sworn 30 March 2011) was witnessed by…
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- Case
- [2011] FCA 994
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the presumption of insolvency due to non-compliance with the statutory demand could stand despite the defect in the witnessing of the affidavit. The court examined whether the procedural errors in the witnessing of the affidavit by a person who was not a registered Justice of the Peace at the relevant time undermined the validity of the statutory demand and, consequently, the presumption of insolvency. The plaintiff argued that the error did not invalidate the statutory demand since the other procedures were followed correctly and the lapse in Felipe's registration was not known at the time of witnessing.
The court concluded that the defect in the witnessing of the affidavit did not invalidate the presumption of insolvency arising from the non-compliance with the statutory demand. The court found that the lapse in Felipe's registration was an inadvertent error that did not prejudice the plaintiff. The court held that the formal defect did not negate the compliance with other statutory requirements, and thus, the presumption of insolvency remained valid. Consequently, the court ordered the winding up of E.Discovery Australia Pty Ltd and the appointment of Robyn Louise Duggan as liquidator, as well as directing the defendant to pay the costs of the application.
Orders
Orders of the court
1. E.Discovery Australia Pty Ltd ACN 101 933 304 be wound up in insolvency.
2. Robyn Louise Duggan be appointed as liquidator of E.Discovery Australia Pty Ltd ACN 101 933 304.
3. The defendant pay the costs of the application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
This is an application under s 459P of the Corporations Act 2001 (Cth) (the Corporations Act) that the defendant company be wound up on the ground of insolvency and that a liquidator, Robyn Louise Duggan, be appointed to the defendant company. The plaintiff relies on the defendant’s failure to comply with a statutory demand (see ss 459C, 459F and 459Q of the Corporations Act). The plaintiff has provided written submissions filed on 18 August 2011 in support of the application. Those written submissions refer to the relevant documents, namely the originating process filed 14 July 2011 (which attaches the creditor’s statutory demand for payment of the debt) and the affidavit which accompanied it. This affidavit (of Murray John Press, sworn 30 March 2011) was witnessed by Eric Tomas Felipe, who is identified on the face of the affidavit as a Justice of the Peace. The application is also accompanied by:·a further affidavit of Mr Press sworn 11 July 2011; ·an affidavit of service of Peter Gibson, sworn 6 April 2011; ·another affidavit of service of Mr Gibson, sworn 15 July 2011; ·an affidavit of lodgement of notice of the application with the Australian Securities and Investments Commission (ASIC) and the relevant advertisements sworn by Alissa Crittenden, solicitor, on 21 July 2011; ·an affidavit in support of the application for winding-up in insolvency by Mr Press, sworn 18 August 2011, confirming that the whole sum identified in the statutory demand ($164,457.84) remains due and payable by the defendant to the plaintiff, as well as the fact that Mr Press believes there is no genuine dispute about the existence or amount of that debt; and·the consent of Ms Duggan of Ferrier Hodgson to be appointed to act as liquidator of the defendant company. In addition I have before me an affidavit of Mr Felipe, the person who witnessed the affidavit of Mr Press which accompanied the statutory demand. Mr Felipe’s affidavit, sworn 16 August 2011, explains that he first became registered as a Justice of the Peace in New South Wales on 24 April 2001. He has annexed his certificate of registration of appointment of that date, which bears registration number 200002374. In or about 2003, certain legislative amendments took place the effect of which was that the system for Justices of the Peace altered from one in which appointment was for life into one in which appointment was required to be renewed. According to his affidavit, Mr Felipe was not aware at any time before 12 August 2011 of these amendments. Mr Felipe did not until that date receive any written notification of the changes or of the fact that his registration as a Justice of the Peace had lapsed on 8 December 2006 pursuant to the amended legislative provisions. Accordingly Mr Felipe, who intends to apply for reappointment as a Justice of the Peace, was not in fact a Justice of Peace at the time he witnessed Mr Press’s affidavit of 30 March 2011. It is this issue with which the plaintiff’s written submissions are chiefly concerned, apart from the formal matters to which I shall now return.