CHADMAR ENTERPRISES PTY LTD v IGA DISTRIBUTION PTY LTD
[2005] ACTSC 39 (10 May 2005)
CORPORATIONS LAW – application to dismiss statutory demand notice – affidavit verifying debt predates demand notice – whether demand notice complies with statutory requirements – whether a defect in demand or a defect in affidavit – whether pre-dated affidavit sufficient to set aside demand notice or whether a need for “substantial injustice” – whether a “genuine dispute” constitutes “substantial injustice”.
Corporations Act 2001 (Cth), ss 459E, 459G, 459H, 459J, 459S, 467A, 1322
Supreme Court (Corporations) Rules 2003 (ACT), r 2.6
Supreme Court Rules 1970 (NSW) r 5.2, Pt 38
David Grant & Co Pty Ltd v WestpacBanking Corp (1995) 184 CLR 265
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452
Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226
B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1994) 15 ACSR 433
Kezarne Pty Ltd v Sydney Asbestos Removal Services Pty Ltd (1998) 29 ACSR 11
Dolvelle Pty Ltd v Australian Macfarms Pty Ltd (1998) 43 NSWLR 717
Dornay Nominees Pty Ltd v Blackbutt Nominees Pty Ltd (2001) 36 ACSR 749
Technology Licensing Ltd v Climit Pty Ltd [2002] 1 Qd R 566
McDermott Projects Pty Ltd v Chadwell Pty Ltd [2002] 2 Qd R 363
Wildtown Holdings Pty Ltd v Rural Traders Company Ltd (2002) 172 FLR 35
Ambir Pty Ltd v Perfect Touch Painting Services Pty Ltd [2003] NTSC 21 (18 March 2003)
Peak Hill Manganese Pty Ltd v HydraplantEquipment Pty Ltd (2003) 179 FLR 382
Tokich Holdings Pty Ltd v Sheraton Construction NSW Pty Ltd(in liq.) (2004) 22 ACLC 955
Lester v Garland (1808) 15 Ves. 248
Clarke v Bradlaugh (1881) 8 Q.B.D. 63
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452
Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Goldspar Australia Pty Ltd v KWA Design Group Pty Ltd (1999) 17 ACLC 456
No. SC 657 of 2004
Judge: Higgins CJ
Supreme Court of the ACT
Date: 10 May 2005
IN THE SUPREME COURT OF THE )
) No. SC 657 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:CHADMAR ENTERPRISES PTY LTD (ACN 008 613 974)
Plaintiff
AND:IGA DISTRIBUTION PTY LTD
(ACN 004 391 422)Defendant
ORDER
Judge: Higgins CJ
Date: 10 May 2005
Place: Canberra
THE COURT ORDERS THAT:
The statutory demand notice be set aside.
This is an application to set aside a statutory demand notice issued 7 September 2004. The application was dated 1 October 2004 and supported by two affidavits of that same date.
Mr Erskine, for the applicant plaintiff (Chadmar), contended that the demand itself was defective and was not validly supported. This is because the demand notice was issued on 7 September 2004; the affidavit purporting to support…
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- Case
- [2005] ACTSC 39
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the defect in the demand notice or the affidavit was the primary issue and whether the pre-dating of the affidavit constituted a defect in the demand notice. Additionally, the court examined whether the defect in the affidavit was sufficient grounds to set aside the demand notice or if it needed to be accompanied by a showing of "substantial injustice" to the debtor. The court also considered whether a "genuine dispute" about the debt could be construed as "substantial injustice."
The court found that the defect in the affidavit, due to its pre-dating, was a significant issue that rendered the demand notice invalid. The court held that a pre-dated affidavit did not satisfy the statutory requirements, and the defect in the demand notice was sufficiently grave to warrant its dismissal. The court noted that while a genuine dispute over the debt could constitute substantial injustice, in this case, the defect in the affidavit alone was enough to set aside the demand notice. Consequently, the court ordered that the statutory demand notice be set aside.
Orders
Orders of the court
1.
The statutory demand notice be set aside.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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