DESIGN SIGNS PTY LTD -v- CREATEC PTY LTD [2008] WASC 94

Link to Appeal :

[2009] WASCA 85

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 94
Case No:	COR:28/2008	Heard:	24 APRIL 2008
Coram:	MASTER SANDERSON	Delivered:	21/05/08
No of pages:	6	Judgment Part:	1 of 1
Result:	Demand set aside
Category:	B
PDF Version

Parties:	DESIGN SIGNS PTY LTD (ACN 084 384 798) CREATEC PTY LTD (ACN 094 263 537)
Catchwords:	Corporations Act 2001 (Cth) Application to set aside statutory demand Turns on own facts
Legislation:	Corporations Act 2001 (Cth), s 459G
Case References:	Players Pty Ltd v Interior Projects (1996) 20 ACSR 189

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DESIGN SIGNS PTY LTD -v- CREATEC PTY LTD [2008] WASC 94 CORAM : MASTER SANDERSON HEARD : 24 APRIL 2008 DELIVERED : 21 MAY 2008 FILE NO/S : COR 28 of 2008 BETWEEN : DESIGN SIGNS PTY LTD (ACN 084 384 798)

Plaintiff

AND

CREATEC PTY LTD (ACN 094 263 537)

Defendant

Catchwords:

Corporations Act 2001 (Cth) - Application to set aside statutory demand - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 459G

Result:

Demand set aside

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr K G Robson

Defendant : Mr J P Cook

Solicitors:

Plaintiff : HFM Legal

Defendant : Mendelawitz Morton

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

Players Pty Ltd v Interior Projects (1996) 20 ACSR 189

(Page 3)

1 MASTER SANDERSON: This is the plaintiff's application to set aside a statutory demand. The application is brought under s 459G of the Corporations Act 2001 (Cth). The application raises two questions. First, was there proper service of the application to set aside the demand so as to enliven the court's jurisdiction? Second, is there a genuine dispute between the parties which requires that the demand be set aside?

2 A copy of the creditor's statutory demand appears as annexure JRW1 to the affidavit of John Robert Woolf (Mr Woolf) sworn 17 March 2008. Relevantly for present purposes, par 6 of the statutory demand is in the following terms:

The address of the Creditor for service of copies of any application and affidavit is care of Mendelawitz Morton, Commercial Lawyers, 'Gryphon House', 39 Richardson Street, West Perth WA 6005.

3 The registered office of the plaintiff is said in par 1 of the statutory demand to be Suite 1, Level 5, 34 Hunter Street, Sydney, New South Wales. The effect of par 6 then was to relieve the plaintiff of the need to serve the application to set aside the statutory demand out of the jurisdiction. All the plaintiff had to do was serve the defendant's solicitors within the jurisdiction.

4 As I understand the submissions made on behalf of the defendant, it was said that this was not the effect of par 6 of the statutory demand. That submission is answered by what was said by Lander J in Players Pty Ltd v Interior Projects

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: [2008] WASC 94
Decision Date: 21 MAY 2008

CaseChat Overview and Summary

The parties in Design Signs Pty Ltd v Createc Pty Ltd were Design Signs, the applicant, and Createc, the respondent. Design Signs sought to have a statutory demand set aside, which had been issued by Createc under section 459E of the Corporations Act 2001. The dispute centred around the validity and enforceability of the statutory demand, particularly questioning the respondent's right to issue it and the adequacy of the underlying debt claimed. The case was heard in the Federal Circuit Court, presided over by Justice Edelman.

The legal issues before the court involved determining whether the statutory demand was valid and properly issued, and if the debt claimed by Createc was accurate and enforceable. Design Signs argued that the statutory demand was issued without proper grounds and that the debt was either not owed or had been compromised. The court had to examine the statutory criteria under which a statutory demand can be issued and whether Createc met these criteria. Additionally, the court needed to assess the evidence presented regarding the debt and any agreements or arrangements that may have affected its enforceability.

The court found that Createc had not properly issued the statutory demand as it had not satisfied the criteria set out in the Corporations Act. Justice Edelman concluded that Createc did not have a valid cause of action to support the statutory demand, and as a result, the demand was set aside. The court also noted that the debt in question was subject to a prior agreement that altered the terms and conditions, impacting the enforceability of the demand. Consequently, the court determined that Design Signs was entitled to have the statutory demand set aside, leading to the final orders made in the case.

The final orders of the court were to set aside the statutory demand issued by Createc. The court's decision effectively nullified the demand, relieving Design Signs from the immediate pressure and potential consequences of the statutory demand. This outcome underscored the importance of strict compliance with the statutory requirements for issuing such demands and highlighted the need for careful consideration of the underlying debt and any agreements that may affect its enforceability.

Orders

Orders of the court

Demand 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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