Greenway Hotel Pty Ltd v Parton - [2004] ACTCA 13

GREENWAY HOTEL PTY LTD ACN 067 393 828 v NEVILLE WILLIAM PARTON [2004] ACTCA 13 (14 July 2004)

CORPORATIONS – statutory demand – application to set aside demand – test to be applied – whether application disclosed ‘genuine dispute’ – affidavit in support of application – whether sufficiently articulated grounds for setting aside – principles regulating tender of further affidavit material in regard to application to set aside.

Corporations Act 2001 (Cth), s 459E, s 459G, s 459H, s 459J

Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 24 ACSR 353
Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
CGI Information Systems and Management Consultants Pty Ltd v APRA Consulting Pty Ltd (2003) 47 ACSR 100
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
D & S Group of Companies Pty Ltd v O’Connor Investments Pty Ltd (1997) 15 ACLC 1794

Energy Equity Corporation Ltd v Sinedie Pty Ltd (2001) 166 FLR 179

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 35-2003
No. SC 627 of 2003

Judges: Gray, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 14 July 2004

IN THE SUPREME COURT OF THE     )          No. ACTCA 35-2003
  )          No. SC 627 of 2003
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GREENWAY HOTEL PTY LTD
ACN 067 393 828
Appellant

AND:NEVILLE WILLIAM PARTON
Respondent

ORDER

Judges:  Gray, Connolly and Lander JJ
Date:  14 July 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.
The order made by the judge below be set aside.
The appellant’s application to set aside the statutory demand for payment of debt dated 2 September 2003 made on behalf of the respondent be allowed.
There be no costs of the application before the judge below.
The respondent pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 35-2003
  )          No. SC 627 of 2003
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GREENWAY HOTEL PTY LTD
ACN 067 393 828
Appellant

AND:NEVILLE WILLIAM PARTON
Respondent

Judges:  Gray, Connolly and Lander JJ
Date:  14 July 2004
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT

This is an appeal from a decision of a judge of this Court refusing to set aside a statutory demand served pursuant to s 459E of the Corporations Act2001 (Cth) (the Act).

On 2 September 2003 the respondent, Neville William Parton, served a statutory demand for payment of a debt on the appellant claiming that the appellant owed him the amount of $200,000. The Schedule to the statutory demand claimed -

The debt arises out of a deed…

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: [2004] ACTCA 13
Decision Date: 14 July 2004

CaseChat Overview and Summary

The appeal concerned an application by Greenway Hotel Pty Ltd (the appellant) to set aside a statutory demand for payment of debt made by Ms Parton (the respondent). The matter came before the Full Court of the Supreme Court of Victoria.

The primary legal issue before the Full Court was whether the appellant had demonstrated a "genuine dispute" regarding the existence of the debt, which is the threshold requirement for setting aside a statutory demand under the Corporations Act 2001 (Cth). Relatedly, the Court considered whether the affidavit filed in support of the application sufficiently articulated the grounds for setting aside the demand and the principles governing the tender of further affidavit material in such applications.

The Full Court allowed the appeal, finding that the judge below had erred in dismissing the appellant's application to set aside the statutory demand. The Court held that the affidavit evidence, when properly considered, did disclose a genuine dispute as to the existence of the debt. The Court also addressed the admissibility of further affidavit material, indicating that such material could be considered in certain circumstances to clarify or supplement existing grounds, rather than introducing entirely new ones.

Consequently, the orders of the judge below were set aside, and the appellant's application to set aside the statutory demand was allowed. The Court ordered that there be no costs of the application before the judge below, but the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

The appeal be allowed.

The order made by the judge below be set aside.

The appellant’s application to set aside the statutory demand for payment of debt dated 2 September 2003 made on behalf of the respondent be allowed.

There be no costs of the application before the judge below.

The respondent pay the appellant’s costs of the appeal.

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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