Eventcepts Pty Ltd v Creative Talent Management Pty Ltd - [2017] VSC 457

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2017 00208

EVENTCEPTS PTY LTD (ACN 131 807 675)	Plaintiff
v
CREATIVE TALENT MANAGEMENT PTY LTD (ACN 605 696 964)	Defendant

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JUDGE:	GARDINER AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2017
DATE OF JUDGMENT:	11 August 2017
CASE MAY BE CITED AS:	Eventcepts Pty Ltd v Creative Talent Management Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 457

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CORPORATIONS – Corporations Act 2001 (Cth) – Application to set aside statutory demand under s 459G – Determination of preliminary issues as to whether application has been made within the time prescribed by s 459G – Demand served immediately prior to Christmas and New Year holiday period and neither party able to provide evidence as to the exact date upon which the demand was served at the plaintiff’s registered office – Determination of when the service of the demand was effected – Acts Interpretation Act 1901 (Cth), s 29 – Evidence Act 2008 (Vic), s 160 – Evidence that “the ordinary course of post” in the range of two to six business days after the date of posting but possibly longer in the Christmas - New Year holiday period – Finding that it was probable that demand delivered in the later part of that range and the application was made within time – Affidavit in support of originating process to set aside statutory demand was missing one page in both the original affidavit filed with the Court and copy served on the defendant – Whether plaintiff has made application to set aside the statutory demand validly under s 459G in circumstances where the affidavit filed and served in support of the application does not accord with the original affidavit as sworn – Held that document filed and served was an affidavit within the meaning of s 459G(3)(a) despite the missing page.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E W Moon	Whiting Lawyers
For the Defendant	Mr D P Lorbeer	Sladen Legal

TABLE OF CONTENTS

The application................................................................................................................................... 1

The evidence on the issue of service.............................................................................................. 2

Eventcepts’ evidence as to service............................................................................................. 2
Creative Talent’s evidence as to service.................................................................................... 6

Legal principles.................................................................................................................................. 8

The omission of the page from the affidavit……………………………………………………18

HIS HONOUR:

The application

The plaintiff (‘Eventcepts’) makes application by originating process filed 23 January 2017 pursuant to s 459G of the Corporations Act 2001 (Cth) (‘the Act’) for an order that the statutory demand dated 22 December 2016 served by the defendant (‘Creative Talent’) on Eventcepts be set aside.

Creative Talent contends that Eventcepts has not made a valid application under s 459G of the Act and the proceeding should be dismissed. The hearing on 4 April 2017 involved the determination of two preliminary issues:

(a) whether the application was made within the 21 day period prescribed by s 459G of the Act i.e. within 21 days after service of the demand on Eventcepts;…

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: [2017] VSC 457
Decision Date: 11 August 2017

CaseChat Overview and Summary

Eventcepts Pty Ltd sought to set aside a statutory demand issued by Creative Talent Management Pty Ltd under section 459G of the Corporations Act 2001 (Cth). The application was brought before the Supreme Court of Victoria, which had to determine whether the application was lodged within the prescribed time and if the statutory demand was validly served. The court was also required to determine if the plaintiff's affidavit in support of the originating process was valid despite the omission of a page in the documents filed and served.

The primary legal issues were whether the statutory demand was served within the time limit and if the application to set it aside was made within the statutory period. Additionally, the court had to ascertain whether the omission of a page from the affidavit in support of the originating process rendered the application invalid. The court had to consider statutory interpretation, particularly the application of sections 29 and 160 of the Acts Interpretation Act 1901 (Cth) and the Evidence Act 2008 (Vic), in determining the probable timing of the demand's delivery. The court also had to determine the validity of the affidavit despite the missing page.

In addressing these issues, the court found that it was probable that the demand was delivered in the later part of the two to six business days range, considering the Christmas-New Year holiday period. This finding meant that the application to set aside the statutory demand was made within the prescribed time. Regarding the missing page in the affidavit, the court held that the document filed and served was an affidavit within the meaning of section 459G(3)(a) of the Corporations Act 2001 (Cth) despite the missing page. The court concluded that the omission did not invalidate the application, as it did not materially affect the content of the affidavit.

The court ruled that the application to set aside the statutory demand was both timely and valid. No further orders were required as the primary issues were resolved in favour of the applicant.

Orders