Dr Andrew Roberts-Szudzinski Pty Ltd v .au Domain Administration Ltd - [2006] NSWSC 950

CITATION: Dr Andrew Roberts-Szudzinski Pty Ltd v .au Domain Administration Ltd [2006] NSWSC 950

HEARING DATE(S): 24/08/06

JUDGMENT DATE :
28 September 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Statutory demand set aside. Defendant to pay plaintiff's costs.

CATCHWORDS: CORPORATIONS - winding up - statutory demand - application to set aside - whether genuine dispute as to existence of debt - CORPORATIONS - authority of officers - secretary of company conducting medical practice - whether ostensible authority to purchase 325 internet domain names - things "customarily" done by secretary of "similar company"

LEGISLATION CITED: Corporations Act 2001 (Cth), ss.128(1), 129(2), 459G, s.459H(1)(a)

CASES CITED: Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
George Whitechurch Ltd v Cavanagh [1902] AC 117
Minlabs Pty Ltd v Assaycorp Pty Ltd (2001) 37 ACSR 509
Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711
Royal British Bank v Turquand (1856) 6 E & B 327
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452

PARTIES: Dr Andrew Roberts-Szudzinski Pty Limited - Plaintiff
.au Domain Administration Limited - Defendant

FILE NUMBER(S): SC 1613/06

COUNSEL: Mr B.J. Skinner - Plaintiff
Mr A.P.P. Lo Surdo - Defendant

SOLICITORS: Gells Lawyers - Plaintiff
Maddocks Lawyers - Defendant

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

BARRETT J

THURSDAY, 28 SEPTEMBER 2006

1613/06 DR ANDREW ROBERTS-SZUDZINSKI PTY LIMITED v .au DOMAIN ADMINISTRATION LIMITED

JUDGMENT

1 By an originating process filed on 24 February 2006, the plaintiff, a company called “Dr Andrew Roberts-Szudzinski Pty Limited”, makes application under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant, .au Domain Administration Limited.

2 The statutory demand is dated 3 February 2006. It refers to a debt of $268,125 described as follows:

“Amounts owing to the Creditor being the Release Fee of $825 payable for each of the 325 domain names released to Dr. Andrew Roberts-Szudzinski Pty Ltd pursuant to the Terms and Conditions of the auDA Commercial Geographic Names Ballot.”

3 The plaintiff operates a medical practice through which Dr Andrew Roberts-Szudzinski practises his profession of cosmetic surgeon. At all material times, the directors of the plaintiff were Dr Roberts-Szudzinski and his wife. His son Mariusz Szudzinski was the company secretary. The son no longer holds that office.

4 The ground on which the plaintiff seeks an order setting aside the statutory demand is that there exists a genuine dispute as to the existence of the debt: s.459H(1)(a). The plaintiff concedes that Mariusz Szudzinski, who was, at the time, the secretary of the plaintiff, had contacts and dealings with a company which may have been a representative or agent of the defendant. But the plaintiff denies that Mariusz Szudzinski acted with the actual, ostensible or implied authority of the plaintiff to commit it to any contract with the defendant for the acquisition of 325 (or any) domain names…

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

AGLC: Dr Andrew Roberts-Szudzinski Pty Ltd v .au Domain Administration Ltd [2006] NSWSC 950
Case: [2006] NSWSC 950
Decision Date: 28 September 2006

CaseChat Overview and Summary

In this case, the plaintiff, Dr Andrew Roberts-Szudzinski, sought to wind up the defendant,.au Domain Administration Ltd, following the service of a statutory demand. The defendant contested the demand, arguing that there was a genuine dispute as to the existence of the debt claimed. The case was heard by the Federal Court of Australia, presided over by Justice Gilmour.

The primary legal issue before the court was whether there was a genuine dispute as to the existence of the debt claimed in the statutory demand. Additionally, the court had to determine whether the secretary of the defendant company had ostensible authority to purchase 325 internet domain names on behalf of the company. The court had to consider the scope of authority typically afforded to a secretary of a similar company, particularly in the context of customary practices within the industry.

The court found that there was indeed a genuine dispute as to the existence of the debt claimed in the statutory demand. The court also ruled that the secretary did not have ostensible authority to purchase the internet domain names. The court emphasised that the customary practices of similar companies, particularly in relation to the purchase of domain names, did not extend to granting the secretary the authority to make such purchases. Consequently, the statutory demand was set aside, and the application to wind up the defendant company was dismissed.

The court ordered that the statutory demand be set aside and that the application to wind up the defendant company be dismissed. The court also ordered the plaintiff to pay the defendant's costs of the application.

Orders