Filaria Pty Ltd v Carlisle

FILARIA PTY LIMITED v GRACE CARLISLE AND GARRY JAMES BUICK AND KEYLETO PTY LIMITED
[2004] ACTSC 95 (24 September 2004)

CORPORATIONS – statutory demand – application to set aside – “some other reason” why demand should be set aside – no adequate reason demonstrated
CORPORATIONS – statutory demand – application to set aside – application must deal with one demand only

Corporations Act 2001, ss 459E, 459H, 459J

Whittle v Filaria Pty Limited [2004] ACTSC 45 (Crispin J, 11 June 2004, unreported)
Main Camp v Australian Rural (2002) 20 ACLC 226
Wildtown Holdings Pty Limited v Rural Traders Co Limited (2002) 172 FLR 35
Hooker Cockram Limited v Manesco Pty Limited (2001) 3 VR 466
David Grant and Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1995) 55 FCR 562
Help Desk Institute Pty Ltd v Adams (1999) 17 ACLC 18
Calquid Pty Limited v A & D R Illes Pty Limited (2000) 34 ACSR 523

No. SC 565 of 2004

Judge: Master Harper
Supreme Court of the ACT

Date: 24 September 2004

IN THE SUPREME COURT OF THE     )
  )          No. SC 565 of 2004
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:FILARIA PTY LIMITED

Applicant

AND:GRACE CARLISLE

First Respondent

AND:GARY JAMES BUICK

Second Respondent

AND:KEYLETO PTY LIMITED

Third Respondent

ORDER

Judge:  Master Harper
Date:  17 September 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. the application be dismissed.

1. the applicant pay the respondents’ costs.

1. This is an application by a company to set aside three statutory demands. The demands, expressed to be made pursuant to s 459E of the Corporations Act 2001, are each dated 5 August 2004, and prepared and signed by the same solicitor, Mr I Gillespie-Jones of Gillespie-Jones and Co. Each is on behalf of a different creditor; the three creditors have been made respondents in the present proceedings.

1. In each case, the demands are in respect of taxed costs in proceedings in this Court.  Each respondent claims costs pursuant to two separate certificates of taxation, in respect of costs of two separate interlocutory orders, plus interest.  The first respondent’s claim is for a total of $23,266.68.  The claims by the second and third respondents are for identical amounts, $6,223.96 in each case.  In respect of each of the three notices of demand, the first certificate of taxation is dated 27 July 2004 and the second certificate 30 July 2004.

1. The application was filed on 26 August 2004.  The respondents concede that the application was filed and served within twenty-one days of service of the statutory demands on the company.

1. The application is supported by an affidavit sworn by the solicitor for the company, Mr G T Brackenreg.  He deposes that each of the three respondents commenced proceedings against the company and a number of other defendants in late 1999, seeking damages for misrepresentation, misleading and deceptive conduct, false representations, breach of retainer and negligence.  At the same time a further fifty-six persons…