| 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;…
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- Case
- [2017] VSC 457
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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