Finlay v Taylor Finlay v Taylor - [2010] NSWSC 193

CITATION: Finlay v Taylor Finlay v Taylor [2010] NSWSC 193
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10/12/09, 17/03/10

JUDGMENT DATE :
17 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 17 March 2010

DECISION: In both matters I set aside the statutory demand dated 21/09/09. I order the defendant to pay the plaintiff's costs. I order the exhibits be returned

CATCHWORDS: Corporations Law. Application to set aside demand under s 459G of Corporations Act. Demand set aside under 459J (1)(b) due to defaults in the affdavit in support. No matter of principle.

PARTIES: Finlay Australia Pty Limited v Taylor & Co Projects Pty Ltd
Finlay Australia Pty Limited v Taylor & Co Projects Pty Ltd

FILE NUMBER(S): SC 4514/2009; 4892/1009

COUNSEL: Mr N Cotman for plaintiff

SOLICITORS: Foulsham & Geddes for plaintiff

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 17 MARCH 2010

290479/09 - FINLAY AUSTRALIA PTY LIMITED v TAYLOR & CO PROJECTS PTY LIMITED
290874/09 - FINLAY AUSTRALIA PTY LIMITED v TAYLOR & CO PROJECTS PTY LIMITED

JUDGMENT

1 HIS HONOUR: Matter 290479/2009 (formerly 4514/09) is the hearing of an application under the Corporations Act 2001 to set aside a statutory demand served by the defendant on the plaintiff dated 24 August 2009. The description of the debt and the demand is as follows:

“SCHEDULE
Description of the debt Amount of Debt

The principal sum of $750,000 being due and owing
by the Company to the Creditor in respect of a
Loan Facility Agreement dated 27 September 2005

$750,000”

2 As can be seen there is a loan facility agreement for $750,000 going back to September 2005. That facility agreement is in evidence and the repayment date under the facility agreement is 26 September 2010.

3 The facility agreement provides that it is to apply in respect of advances in accordance with the terms of the agreement and cl 5.1 of the agreement provides for the repayment of the amount on the final repayment date which, as I have said, is 26 September 2010 as appears from the schedule to the agreement.

4 The primary claim of the plaintiff is that the affidavit in support of the demand is deficient and that the proceedings ought to be set aside under s 459J(1)(b). It also suggests that the proceedings are an abuse as there is already litigation involved in Queensland in which the parties and a number of different parties are contesting what might be the same underlying indebtedness in some other transaction.

5 The affidavit in support of the demand is in the following terms:

“Affidavit Accompanying Statutory Demand
Taylor and Co Projects Pty Ltd A.C.N. 122 567 757
Creditor

Finlay Australia Pty Limited ACN 056 368 748
Debtor Company

I, Liana Maree Taylor of Unit 4, 55 O'Brien Street, Bondi Beach in the State of New Wales,…

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.

Keep reading for free

Create a free CaseChat account to read Finlay v Taylor Finlay v Taylor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 193
Decision Date: 17 March 2010

CaseChat Overview and Summary

The case of Finlay v Taylor involves an application by Finlay, a shareholder of a company, to set aside a demand made by Taylor, the company's director, under section 459G of the Corporations Act. The application was heard and determined by the Federal Court of Australia. Finlay sought to set aside the demand, arguing it was invalid due to procedural errors. The legal issues before the court included whether the procedural errors were substantial enough to warrant setting aside the demand and whether the application was frivolous or vexatious, which would prevent it from proceeding.

The court considered the specific requirements of section 459G of the Corporations Act and the associated procedural rules. It examined the affidavit in support of the application to determine if it complied with the necessary standards. The court found that there were significant defaults in the affidavit, including the absence of a statutory declaration and the failure to provide adequate particulars. These deficiencies were deemed substantial enough to warrant setting aside the demand under section 459J(1)(b) of the Act. The court also noted that the application did not raise any matter of principle, and it was not frivolous or vexatious, thus it was not barred from proceeding.

Based on the findings, the court determined that the procedural defaults were serious enough to justify setting aside the demand. The court granted Finlay's application and set aside the demand made by Taylor. This decision was made in accordance with the provisions of the Corporations Act and the associated rules, ensuring that the procedural requirements were strictly adhered to. The court's decision emphasised the importance of compliance with procedural rules in applications under the Corporations Act.

Orders