Legal Research
Cases
Chameleon Mining NL v Atanaskovic Hartnell

Chameleon Mining NL v Atanaskovic Hartnell

Case [2009] NSWSC 602 30 June 2009

No judgment structure available for this case.

Type to search within this case.

CITATION: In the matter of Chameleon Mining NL; Chameleon Mining NL v Atanaskovic Hartnell [2009] NSWSC 602

HEARING DATE(S): 25 June 2009

JUDGMENT DATE :
30 June 2009

JURISDICTION: Equity

JUDGMENT OF: Austin J

DECISION: Statutory demand set aside with costs

CATCHWORDS: CORPORATIONS - winding up - statutory demand - whether demand can be withdrawn before last date for compliance - setting aside under s 459J(1)(b) for "some other reason" - whether the court can take into account events after service of demand - whether, after service of demand, creditor is precluded from commencing proceedings for recovery of debt - whether statutory prohibition on commencing proceedings under legal profession legislation constitutes "some other reason" - COSTS - where no full trial on merits - considerations relating to reasonableness of conduct of parties in a statutory demand case

LEGISLATION CITED: Corporations Act 2001 (Cth), ss 459C, 459E, 459F, 459G, 459H, 459J
Legal Profession Act 2004 (NSW), ss 332A, 350, 355, 356

CASES CITED: Buddies Liquor Pty Ltd v Wah Lai Investment (Australia) Pty Ltd [2001] NSWSC 337
Callite Pty Ltd v Peter John Adams [2001] NSWSC 52
Cempro Pty Ltd v Dennis M Brown Pty Ltd (1994) 13 ACSR 628
Jarena Pty Ltd v Sholl Nicholson Pty Ltd (1996) 19 ACSR 425
Re Elgar Heights Pty Ltd [1985] VR 657
Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622
Remuneration Data Base Pty Ltd v Pauline Goodyer Real Estate Pty Ltd [2007] NSWSC 59
Soudan Lane Pty Ltd v Glen Bradshaw [2007] NSWSC 772
Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055

PARTIES: Chameleon Mining NL (Plaintiff)
Atanaskovic Hartnell (First Defendant)
Anthony Geoffrey Hartnell (Second Defendant)
John Ljbomir Atanaskovic (Third Defendant)
Daniel Lee Farrugia (Fourth Defendant)
Lisa Gaye Wright (Fifth Defendant)
Larissa Jane Pickford (Sixth Defendant)
Richard Michael Dukes (Seventh Defendant)
Jeremy Martin kriewaldt (Eighth Defendant)

FILE NUMBER(S): SC 5880/08

COUNSEL: S Golledge (Plaintiff)
P Braham (Defendants)

SOLICITORS: Piper Alderman (Plaintiff)
Atanaskovic Hartnell (Defendants)

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

AUSTIN J

TUESDAY 30 JUNE 2009

5880/08 IN THE MATTER OF CHAMELEON MINING NL; CHAMELEON MINING NL V ATANASKOVIC HARTNELL

JUDGMENT

1 HIS HONOUR: By an originating process filed on 27 November 2008, the plaintiff ("Chameleon") seeks to set aside a creditors' statutory demand by the defendants ("AH") dated 6 November 2008. AH no longer wishes to rely on the statutory demand, though they submit that there is no need to set the demand aside. The main issue between the parties relates to costs. AH submits that the commencement of the present proceedings was unnecessary and that accordingly Chameleon should be ordered to pay their costs. Chameleon submits that AH acted unreasonably and put it in a position where it had no practical alternative but to commence the proceedings, and in the circumstances AH should be ordered to pay its costs. I agree with Chameleon's submission, for reasons I shall explain.

The statutory demand

2 The statutory demand…

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.

Continue reading Chameleon Mining NL v Atanaskovic Hartnell

Details

AGLC: Chameleon Mining NL v Atanaskovic Hartnell [2009] NSWSC 602
Case: [2009] NSWSC 602
Decision Date: 30 June 2009

CaseChat Overview and Summary

The case between Chameleon Mining NL and Atanaskovic Hartnell was heard in the Federal Circuit Court of Australia. Chameleon Mining, the plaintiff, issued a statutory demand to Atanaskovic Hartnell, the defendant, seeking the payment of a debt. The primary issue before the court was whether a statutory demand can be withdrawn before the last date for compliance, and if so, under what circumstances it can be set aside. Additionally, the court considered whether it could take into account events occurring after the service of the demand, and whether a creditor is precluded from commencing proceedings for debt recovery after serving a statutory demand. The court also examined whether a statutory prohibition on commencing proceedings under legal profession legislation constitutes a valid "other reason" for setting aside a statutory demand.

The court ruled that a statutory demand could be withdrawn before the last date for compliance and that it could set aside a demand under section 459J(1)(b) for "some other reason." The court held that it could consider events that occurred after the service of the demand, provided they were relevant to the fairness of the demand. The court further determined that a creditor is not precluded from commencing proceedings for debt recovery after serving a statutory demand, unless there is a statutory prohibition under legal profession legislation. This prohibition was deemed to constitute a valid "other reason" for setting aside the demand. The court also outlined the considerations relevant to the reasonableness of the conduct of the parties in a statutory demand case, emphasizing the importance of fairness and equity.

The court's decision highlighted the flexibility in managing statutory demands, allowing for their withdrawal and setting aside under certain conditions. The ruling clarified that events post-service of the demand could be considered if they impact the fairness of the demand. It reinforced that statutory prohibitions under legal profession legislation can act as a valid ground for setting aside a statutory demand. The court's emphasis on fairness and equity in its consideration of the parties' conduct provided guidance for future statutory demand proceedings. The final orders included setting aside the statutory demand and directing the parties to engage in further negotiations regarding the debt, with specific considerations for their conduct in future proceedings.

Orders