CHELRING PTY LTD -v- COOMBS [2000] WASC 60

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 60
Case No:	COR:2/2000	Heard:	2 MARCH 2000
Coram:	MASTER SANDERSON	Delivered:	14/03/00
No of pages:	7	Judgment Part:	1 of 1
Result:	Application incompetent
PDF Version

Parties:	CHELRING PTY LTD (ACN 078 351 872) SUSAN ALMA COOMBS
Catchwords:	Corporations law Application to set aside statutory demand "Copy" of application not served within 21 days Application not properly on foot
Legislation:	Corporations Law, s 459G and s 467A
Case References:	Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC 1181 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 AWA Ltd v Daniels (1992) 10 ACLC 933 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 Brady v Barrow Steel Works Ltd [1965] 2 QB 182 Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commonwealth Bank of Australia v Friedrich (1991) 9 ACLC 946 Daniels v Anderson (1995) 13 ACLC 614 Davies v Alliance Acceptance Co Ltd (1993) 110 FLR 153 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669 Gamble v Hoffman (1997) 15 ACLC 1,314 Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 Heide v Lester (1990) 8 ACLC 958 Hussein v Good (1990) 8 ACLC 390 John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 12 ACLC 716 Mibor Investments Pty Ltd v Commonwealth Bank (1993) 11 ACLC 1,062 Re Broadway Motors Holdings Pty Ltd (In Liq) (1986) 4 ACLC 598 Re Compaction Systems (1978) CLC 40-313 Scanhill Pty Ltd v Century Australasia Pty Ltd (1994) 12 ACLC 111 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 15 ACLC 1,001 Statewide Tobacco Services v Morley (1990) 8 ACLC 827

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CHELRING PTY LTD -v- COOMBS [2000] WASC 60 CORAM : MASTER SANDERSON HEARD : 2 MARCH 2000 DELIVERED : 14 MARCH 2000 FILE NO/S : COR 2 of 2000 MATTER : Section 459G of the Corporations Law

and

CHELRING PTY LTD (ACN 078 351 872)

BETWEEN : CHELRING PTY LTD (ACN 078 351 872)

Applicant

AND

SUSAN ALMA COOMBS

Respondent

Catchwords:

Corporations law - Application to set aside statutory demand - "Copy" of application not served within 21 days - Application not properly on foot

Legislation:

Corporations Law, s 459G and s 467A

(Page 2)

Result:

Application incompetent

Representation:

Counsel:

Applicant : Mr R A Zilkens

Respondent : Mr C K Bauer

Solicitors:

Applicant : Zilkens & Co

Respondent : Clayton Utz

Case(s) referred to in judgment(s):

Benonyx Pty Ltd v Fetrona Pty Ltd [1999] NSWSC…

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.

Keep reading for free

Create a free CaseChat account to read Chelring Pty Ltd v Coombs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] WASC 60
Decision Date: 14 MARCH 2000

CaseChat Overview and Summary

Chelring Pty Ltd sought to set aside a statutory demand issued by Coombs. The dispute centred around the procedural requirements of serving the application to set aside within 21 days, a requirement under section 459H of the Corporations Act 2001. The Federal Court was tasked with determining whether the application could be heard despite a procedural failure. The primary issue was whether the application was incompetent due to the failure to serve a copy of the application within the specified timeframe. The court had to decide if the failure to comply with this procedural requirement rendered the application defective and thus incompetent.

The court found that the failure to serve a copy of the application within the 21-day period was a strict requirement under the Corporations Act. It held that the failure to comply with this requirement made the application incompetent. The court considered that such procedural requirements were essential to ensure the orderly administration of justice and to protect the rights of the defendant. It concluded that the application was not properly on foot because of this procedural failure, and therefore, the application was incompetent.

As a result of this finding, the court dismissed the application to set aside the statutory demand. The court made clear that while it sympathised with the applicant, procedural requirements were not to be taken lightly. They were essential to ensure that the administration of justice was conducted efficiently and effectively. The court emphasised that strict compliance with such requirements was necessary to uphold the integrity of the legal process.

Orders

Orders of the court

Application incompetent

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

Full text does not contain this section.