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Condor Asset Management Ltd v Excelsior Eastern Ltd

Condor Asset Management Ltd v Excelsior Eastern Ltd

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Case Copied 10 November 2005 32 min read

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Reported Decision:
56 ACSR 223

New South Wales

Supreme Court

CITATION:
Condor Asset Management Ltd v Excelsior Eastern Ltd [2005] NSWSC 1139

HEARING DATE(S): 04/11/05

JUDGMENT DATE :

10 November 2005

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF:
Barrett J

DECISION:
Statutory demand set aside

CATCHWORDS:
CORPORATIONS - winding up - statutory demand - application for order setting aside - where demand based on several debts states aggregate sum without identification of individual debts - where demand based on assigned debts but alleged debtor not previously aware of assignment or given particulars thereof in demand itself - whether affidavit accompanying demand sufficient - whether genuine dispute as to existence of debts shown

LEGISLATION CITED:
Conveyancing Act 1919. s.12
Corporations Act 2001 (Cth), ss.459E, 459G, 459J
Corporations Regulations 2001 (Cth), Form 509H
Supreme Court (Corporations) Rules 1999, rule 5.2

CASES CITED:
Bennell v Netlink Australia Pty Ltd (2002) 42 ACSR 680
Chippendale Printing Co Pty Ltd v Deputy Commissioner of Taxation (1995) 55 FCR 562
Clearance Nominees Pty Ltd v Discount Acceptance Corporation Pty Ltd (1997) 25 ACSR 531
Cooloola Dairys Pty Ltd v National Foods Milk Ltd [2005] 1 QdR 12
Delta Beta Pty Ltd v Vissers (1996) 20 ACSR 583
Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
Jadd Projects Pty Ltd v Muldoon Tiles Supply & Fix Pty Ltd [2004] WASCA 180
Ketrim v AS&L Pty Ltd (2004) 52 ASCR 252
Manzo v 555/255 Pitt Street Pty Ltd (1990) 1 NSWLR 1
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
National Mutual Life Nominees Ltd v National Capital Development Commission (1975) 6 ACTR 1
Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 QdR 140
Pino v Prosser [1967] VR 835
Reale Bros Pty Ltd v Reale (2003) 179 FLR 427
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
Re Small & Shattell (Sales) Pty Ltd (1992) 7 ACSR 99
Re Steel Wing Co Ltd [1921] 1 Ch 349
Rohan Trading Co Pty Ltd v Glengor Pastoral Co Pty Ltd [2003] NSWSC 1265
Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd (unreported, VSC, Chernov J, 24 April 1998
Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452
Standard Commodities Pty Ltd v Societe Socinter Department Centragel (2005) 54 ACSR 489
Topfelt Pty Ltd v State Bank of New South Wales (1993) 47 FCR 226
Tuta Healthcare Pty Ltd v Nipro Asia Pty Ltd [2005] NSWSC 664
Warner Bros Records Inc v Rollergreen Ltd [1976] QB 430
Wildtown Holdings Pty Ltd v Rural Traders Co Ltd (2002) 172 FLR 35

PARTIES:
Condor Asset Management Limited - Plaintiff
Excelsior Eastern…

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.

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Details

Case: [2005] NSWSC 1139
Decision Date: 10 November 2005

CaseChat Overview and Summary

The dispute between Condor Asset Management Ltd and Excelsior Eastern Ltd was brought before the court regarding a statutory demand for winding up. Condor, the creditor, issued a statutory demand based on several debts without identifying the individual amounts. The demand was also founded on assigned debts, although the debtor, Excelsior, had not been previously aware of these assignments nor given particulars of them in the demand itself. Excelsior applied for an order setting aside the statutory demand, arguing that there was a genuine dispute over the existence of the debts. The court was required to decide whether the affidavit accompanying the statutory demand was sufficient and whether a genuine dispute as to the existence of the debts had been shown.

The court considered whether the statutory demand was validly issued and if there was a genuine dispute over the debts claimed. The court held that the statutory demand was not sufficient as it did not identify the individual debts, nor did it provide particulars of the assigned debts to the debtor. The affidavit accompanying the demand did not cure the defects in the demand itself. Furthermore, the court found that Excelsior had demonstrated a genuine dispute over the existence of the debts, as it had not been previously aware of the assignments and the particulars of the assigned debts were not provided in the demand. As a result, the application to set aside the statutory demand was successful.

Condor Asset Management Ltd's application for an order setting aside the statutory demand was dismissed. The court ordered that the statutory demand be set aside and that Excelsior Eastern Ltd pay Condor Asset Management Ltd's costs of the application.

Orders