Crema Pty Ltd v Land Mark Property Developments Pty Ltd

Crema Pty Ltd sought to wind up Land Mark Property Developments Pty Ltd due to insolvency. The latter failed to respond to a statutory demand, raising several defences including the argument that the statutory demand was a nullity as the specified debt was not due and payable, and that the demand was improperly executed. The court was required to determine the validity of the statutory demand, whether the debt was due and payable, and whether the company had discharged the onus of proving solvency or if the court should exercise its discretion to adjourn the hearing to allow for refinancing.

The court first addressed whether the statutory demand was a nullity. It found that the demand was not signed by the creditor or their solicitor and that the invoices referred to in the demand were not attached or explained. The court noted that while these were procedural defects, they did not necessarily render the statutory demand a nullity. The court also examined whether the debt specified in the statutory demand was due and payable. It found that the company had failed to provide evidence to show that the debt was not due. The court then assessed whether the company had discharged the onus of proving solvency. The company had not provided sufficient evidence to demonstrate solvency, and therefore had not discharged this onus.

The court concluded that the statutory demand was valid, the debt was due and payable, and the company had not demonstrated solvency. The court considered whether it should exercise its discretion to adjourn the hearing to permit the company to refinance. The court found that there was no evidence to support the company's claim that it could secure alternative financing within a reasonable timeframe. Accordingly, the court dismissed the application to wind up the company and made no order for costs.