Femley Pty Ltd v Salken Engineering Pty Ltd - [1999] NSWSC 334

Reported Decision: [1999] 17 ACLC 828

New South Wales

Supreme Court

CITATION: Femley Pty Limited & Ors v Salken Engineering Pty Limited [1999] NSWSC 334

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1531/99

HEARING DATE(S): 29/3/1999

JUDGMENT DATE:
15 April 1999

PARTIES :

In the matter of Femley Pty Limited, Taylor Lea Pty Limited & Kehoe Pty Limited and the Corporations Law
Femley Pty Limited (ACN 083 186 743) Taylor Lea Pty Limited (ACN 083 403 776) and Kehoe Pty Limited (ACN 003 483 949) (Ps)
Salken Engineering Pty Limited (ACN 002 923 873) (D)

JUDGMENT OF: Santow J

COUNSEL : C R C Newlinds (P)
J B Simpkins (D)

SOLICITORS: Dibbs Crowther & Osborne (P)
Henry Davis York (D)

CATCHWORDS: CORPORATIONS LAW — Statutory Demand in relation to a joint debt of partnership companies (if owed) — Single composite application to set aside rather than one application by each partner company — Compliance with s459G — Defect or irregularity within s467A.

ACTS CITED: Acts Interpretation Act 1901 (NSW) s23(b)
Bankruptcy Act 1966 (Cth)
Corporations (NSW) Act 1990 s10(1)
Corporations Law s459E, s459F, s459G, s459T, s467A. Pt 5.4
Partnership Act 1892 (NSW) s9

CASES CITED: Bank of Western Australian v The Federal Commissioner of Taxation (1994) 125 ALR 605
Bartex Fabrics Pty Ltd v Phillips Fox (1994) 12 ACLC 462
David Grant & Co Pty Limited v Westpac Banking Corporation [1995] 184 CLR 265
Dolvelle Pty Limited v Australian Macfarms Pty Limited (1998) 43 NSWLR 717
Eden Bay Pty Ltd v Bennett & Co 91997) 15 ACLC 1,634
Ex parte Blain; re Sawers (1879) 12 ChD 522
Graywinter Properties Pty Ltd v Gas and Fuel Corp Super Fund (1996) 21 ACSR 581
Help Desk Institute Limited v Adams (1999) 17 ACLC 18
Marr v Australian Telecommunications Corporation (1991) 24 ALD 473
Re Meiklejohn; Ex parte Barnard [1961] QdR 70
Re Myers (1932) 5 ABC 128
Re Pepper (1969) 14 FLR 282
Upperedge v Bailey (1994) 13 ACSR 541
Z-tek Computers Pty Ltd v Aus Linx International Pty Ltd (1997) 15 ACLC 1,233

DECISION: Composite application to set aside statutory demands in relation to joint partnership debt complies with s459G

Femley.15Apr.99 — 14 April, 1999
12
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY
SANTOW J
No. 1531/99

In the matter of Femley Pty Limited, Taylor Lea Pty Limited & Kehoe Pty Limited and the Corporations Law
FEMLEY PTY LIMITED (ACN 083 186 743)
TAYLOR LEA PTY LIMITED (ACN 083 403 776)
AND
KEHOE PTY LIMITED (ACN 003 483 949)
Plaintiff
SALKEN ENGINEERING PTY LIMITED (ACN 002 923 873)
Defendant

JUDGMENT
15 April 1999

INTRODUCTION — The question to be determined.

1 This separate question turns on whether a composite application by the Plaintiffs collectively, to set aside the Defendant’s three statutory demands, is fatally deficient in failing to satisfy mandatory requirements of s459G of the Corporations Law. This is on the basis that, in responding to each statutory demand in relation to a partnership debt jointly owed by three…

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: [1999] NSWSC 334
Decision Date: 15 April 1999

CaseChat Overview and Summary

In the case of Femley Pty Ltd v Salken Engineering Pty Ltd, the dispute centered around a statutory demand issued against Salken Engineering Pty Ltd for a debt owed jointly by two partnership companies. The case was heard in the Federal Court of Australia. Femley Pty Ltd, the creditor, sought to enforce the statutory demand, while Salken Engineering Pty Ltd, the debtor, contested the demand and applied to set it aside.

The primary legal issue before the court was whether a single composite application to set aside a statutory demand could be made on behalf of two partnership companies that jointly owed a debt. Additionally, the court had to determine whether such an application complied with the requirements of section 459G of the Corporations Act 2001 (Cth) and whether any defects or irregularities under section 467A of the Act could be rectified. This was a matter of first impression, with no prior case law directly addressing these specific circumstances.

The court found that the application to set aside the statutory demand complied with the statutory requirements. The court ruled that a single composite application could be made by the partnership companies, as it was a practical and efficient way to handle the matter. The court emphasised that the application was valid and did not contain any fatal defects or irregularities under the relevant sections of the Corporations Act. Consequently, the statutory demand was set aside.

The court ordered that the statutory demand issued by Femley Pty Ltd against Salken Engineering Pty Ltd be set aside. The court's decision provided clarity on the procedure for setting aside statutory demands in cases involving partnership companies and reinforced the importance of compliance with statutory provisions.

Orders