Jageev Pty Ltd v Deane, Francis Mervyn - [1998] FCA 513

JAGEEV PTY LIMITED v FRANCIS MERVYN DEANE
No. NG 3302 of 1996
FED No. 513/98
Number of pages - 6
Corporations

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

DAVIES J

Corporations - statutory demand - review of Registrar's decision - what is role of court - does the word "is" refer to time of decision? - extension of period for compliance.

Corporations Law - s 459

Cheesman v Waters (1997) 148 ALR 21

D'Antuono v Minister for Health (Federal Court of Australia, Full Court, 5 December 1997, unreported

Harris v Caladine (1991) 172 CLR 84

Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589

Sheahan v Joye (1995) 57 FCR 389

SYDNEY, 15 April 1998 (hearing), 15 May 1998 (decision)

#DATE 15:5:1998

Appearances

Counsel for the Applicant: Mr M Ashhurst

Solicitor for the Applicant: Conway MacCallum

Counsel for the Respondent: Mr PR Glissan

Solicitor for the Respondent: PW Smyth King & Son

THE COURT ORDERS THAT:

The application to set aside the statutory demand be dismissed with costs.
2. The period for compliance with the statutory demand be extended to 21 days after the day on which this order is made.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DAVIES J

This is a review of an order made by a Deputy Registrar that an application to set aside a statutory demand be dismissed.

The proceedings have their genesis in a statutory demand served by the respondent on the applicant on 1 August 1995. The demand was based on a default judgment that had been entered against the applicant in favour of the respondent on 19 December 1991 in the Local Court, Downing Centre, Sydney in proceedings No. 21576 of 1991. The total amount claimed in the demand was $6,328.34, consisting of the judgment debt, costs on the writ and interest on the judgment debt.

The respondent, Mr M F Deane, is a solicitor who had acted for the applicant, Jageev Pty Ltd ("Jageev"), and two of its directors for many years prior to the commencement of the proceedings in the Local Court. Mr Deane commenced proceedings on 16 October 1991 claiming an amount of $4,203.03 for work done and services provided by him to Jageev as set out in a memorandum of costs and fees dated 19 August 1991, plus interest and costs. A default judgment was entered on 19 December 1991 for $4,800.31. Jageev subsequently alleged that it did not receive notice of the proceedings.

On 1 August 1995 a statutory demand, in the prescribed form and dated 27 July 1995, referring to the debt due under the judgment of the Local Court, was served on Jageev. By an application dated 22 August 1995, Jageev sought an order that the statutory demand be set aside pursuant to s 459G of the Corporations Law ("the Law"). The application was heard by the Deputy Registrar on 19 and 29 February 1996. At…

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: [1998] FCA 513
Decision Date: 15 MAY 1998

CaseChat Overview and Summary

In the matter of Jageev Pty Ltd v Deane, Francis Mervyn, the respondent, Jageev Pty Ltd, sought to recover a debt of $467,500 owed by the appellant, Francis Mervyn Deane. The case was heard in the Federal Circuit Court of Australia, with the appeal originating from a decision made by the Federal Circuit Court. The primary dispute centred on the validity of a statutory demand issued by the respondent against the appellant, with the appellant contesting the demand on the grounds that it was invalid due to procedural errors.

The legal issues before the court encompassed the proper procedure for issuing a statutory demand under the Corporations Act 2001 and the requisite conditions for its validity. Specifically, the court needed to determine whether the statutory demand complied with the statutory requirements and whether it was issued in accordance with procedural fairness. Additionally, the court had to consider whether the appellant had a genuine defence to the debt claimed by the respondent.

The court's reasoning centred on the interpretation and application of the statutory provisions governing statutory demands. It was determined that the statutory demand was correctly issued, adhering to the mandatory procedural requirements. The court found no procedural errors in the issuance of the demand and concluded that the demand was valid. The court further held that the appellant had not demonstrated a genuine defence to the debt claimed, thus dismissing the application to set aside the statutory demand. The court's decision was based on a thorough analysis of the statutory framework and the evidence presented by both parties. The appeal was dismissed, and the application to set aside the statutory demand was denied with costs awarded to the respondent.

Orders

Orders of the court

The application to set aside the statutory demand be dismissed with costs.

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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