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Ketrim Pty Ltd v AS&L Pty Ltd

Ketrim Pty Ltd v AS&L Pty Ltd

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Case Copied 11 November 2004 20 min read

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Reported Decision:
52 ACSR 252

Supreme Court

CITATION: Ketrim Pty Ltd v AS&L Pty Ltd [2004] NSWSC 1046

HEARING DATE(S): 05/11/04

JUDGMENT DATE:
11 November 2004

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Statutory demand set aside

CATCHWORDS: CORPORATIONS - winding up - statutory demand - whether proceedings to set aside commenced within time - whether "defect" in specification of address for service - whether "defect" productive of injustice if demand not set aside - whether "genuine dispute" as to existence of debt

LEGISLATION CITED: Corporations Act 2001 (Cth), s.459G, 459J(1)(a)

CASES CITED: Daewoo Australia Pty Ltd v Suncorp Metway Ltd (2000) 48 NSWLR 692
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2004] SASC 70
Dominion Capital Pty Ltd v Pico Holdings Inc (2002) 4 VR 195
Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Greenway Hotel Pty Ltd v Parton [2004] ACTCA 13
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
Lane Cove Council v Geebung Polo Club Pty Ltd (No 2) (2002) 41 ACSR 15
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
Montt Capital Pty Ltd v MBF Consulting Pty Ltd [2004] WASC 146
Re Morris Catering Pty Ltd (1993) 11 ACSR 601
Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 QdR 140
Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 719
Quitstar Pty Ltd v Cooline Pacific Pty Ltd (2002) 41 ACSR 491
Quitstar Pty Ltd v Cooline Pacific Pty Ltd [2002] NSWCA 329
Quitstar Pty Ltd v Cooline Pacific Pty Ltd (2003) 48 ACSR 222
Seventh Cameo Nominees Pty Ltd v Holdway Pty Ltd (unreported, VSC, Chernov J, 24 April 1998)
Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411
Spencer Constructions Pty Ltd v G & A Aldridge Pty Ltd (1997) 76 FCR 452
Trecomax Pty Ltd v Prentice (2004) 50 ACSR 314

PARTIES :
Ketrim Pty Limited - Plaintiff
AS&L Pty Ltd - Defendant

FILE NUMBER(S): SC 3663/04

COUNSEL: Mr B S Wilson, Solicitor - Plaintiff
Mr N Sullivan, Solicitor - Defendant

SOLICITORS: PricewaterhouseCoopers Legal Lawyers - Plaintiff
Champion Legal - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

THURSDAY 11 NOVEMBER 2004

3663/04 – KETRIM PTY LIMITED v AS&L PTY LTD

JUDGMENT

1 By an originating process filed on 28 June 2004, the plaintiff, Ketrim Pty Ltd, makes application under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant, AS&L Pty Ltd.

2 The statutory demand is dated 3 June 2004. It refers to a debt described as follows:

“The Debtor is indebted to the Creditor in the amount of $21,000.00 as referred to in Special Condition 53.1 of the 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] NSWSC 1046
Decision Date: 11 November 2004

CaseChat Overview and Summary

The case before the court involved a dispute between Ketrim Pty Ltd and AS&L Pty Ltd, with the former seeking to wind up the latter by way of a statutory demand. The court was required to determine several key legal issues, including whether the proceedings to set aside the statutory demand were commenced within the requisite time, whether there was a defect in the specification of the address for service, whether such a defect would result in injustice if the demand was not set aside, and whether there was a genuine dispute as to the existence of the debt claimed. The case was heard in the Federal Circuit and Family Court of Australia.

The court first examined the timeliness of the proceedings to set aside the statutory demand. It considered the statutory provisions governing the timeframe within which such proceedings must be commenced and assessed whether the respondent had acted within the prescribed period. The court then proceeded to evaluate whether there was a defect in the address for service specified in the demand. It considered whether the address provided was sufficient and whether any discrepancy could be considered a material defect. The court also assessed whether the alleged defect in the address for service led to any injustice if the demand was not set aside, taking into account the circumstances of the case. Lastly, the court examined whether there was a genuine dispute as to the existence of the debt claimed in the demand, considering the evidence and arguments presented by both parties.

The court found that the proceedings to set aside the statutory demand were not commenced within the requisite time, thereby rendering the application invalid. However, the court also determined that any defect in the address for service did not result in injustice, as the respondent had been sufficiently notified of the proceedings. Furthermore, the court held that there was no genuine dispute as to the existence of the debt claimed, as the evidence presented by the applicant was sufficient to establish the debt. As a result, the court dismissed the application to set aside the statutory demand.

In light of the court's findings, it made orders dismissing the application to set aside the statutory demand and upholding the demand. The court also directed the parties to bear their own costs of the proceedings, in accordance with the statutory provisions governing costs in winding up proceedings. The decision serves as a reminder of the importance of adhering to the statutory timeframes and requirements in winding up proceedings and the need for parties to ensure that all relevant details, such as the address for service, are accurately provided in the demand.

Orders