Kortz Ltd v Data Acquisition Pty Ltd

Case [2006] FCA 1722

FEDERAL COURT OF AUSTRALIA

Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722

CORPORATIONS LAW – consideration of an application to set aside service of a statutory demand – consideration of whether the Plaintiff Applicant has complied with the requirements of s 459G(3) of the Corporations Act 2001 (Cth) – consideration of the requirements of strict compliance in relation to service of an affidavit in support of an application – consideration of the distinction between exhibits and annexures – consideration of the application of the decision of the Full Court of the Supreme Court of Western Australia in Robowash Pty Ltd v Robowash Finance Pty Ltd (2000-2001) 158 FLR 338.

Corporations Act 2001 (Cth), ss 459E, 459G, 459H, 459J
Federal Court (Corporations) Rules 2000
Supreme Court (General Civil Procedure) Rules 2005, of Victoria

David Grant & Co v Westpac Banking Corporation (1995) 184 CLR 265 – cited
Robowash Pty Ltd v Robowash Finance Pty Ltd (2000–2001) 158 FLR 338 – cited
Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kwip Building Services [2001] NSWSC 73 – cited
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 - cited
John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 - cited
Re Louisbridge Pty Ltd [1994] 2 Qd R 144 - cited
Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230 - cited

KORTZ LTD ACN 113 534 688 v DATA ACQUISITION PTY LTD ACN 050 209 848
QUD413 OF 2006

GREENWOOD J
11 DECEMBER 2006
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD413 OF 2006

BETWEEN:

KORTZ LTD ACN 113 534 688
Plaintiff

AND:

DATA ACQUISITION PTY LTD ACN 050 209 848
Defendant

JUDGE:

GREENWOOD J

DATE OF ORDER:

11 DECEMBER 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.A demand dated 31 August 2006 and served by the Defendant on the Plaintiff on 6 October 2001 pursuant to the provisions of the Corporations Act 2001 (Cth) identified as pages 1 and 2 of exhibit ‘RM2’ to the affidavit of Robert McInnes sworn 26 October 2006 be set aside.

2.The costs of the proceeding are reserved.

3.Written submissions in relation to the reserved question of costs are to be forwarded to the Court by 4.00pm, Friday 15 December 2006. 

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD413 OF 2006

BETWEEN:

KORTZ LTD ACN 113 534 688
Plaintiff

AND:

DATA ACQUISITION PTY LTD ACN 050 209 848
Defendant

JUDGE:

GREENWOOD J

DATE:

11 DECEMBER 2006

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. I have before me an application made under s 459G of the Corporations Act 2001 (Cth) (‘the Act’) for an order setting aside a statutory demand dated 31 August 2006 served on…

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AGLC
Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722
Case
[2006] FCA 1722
Decision Date

CaseChat Overview and Summary

Kortz Ltd, a company, sued Data Acquisition Pty Ltd, another company, in a dispute over a demand made by the defendant to the plaintiff. The demand, dated 31 August 2006 and served on 6 October 2001, was made under the Corporations Act 2001 (Cth). The plaintiff sought to have the demand set aside and for the court to determine the costs of the proceeding. The case was heard in a court of law in Australia.

The court had to decide whether the demand made by the defendant to the plaintiff was valid and enforceable. The plaintiff argued that the demand was invalid because it was not served within the time frame required by the Corporations Act 2001 (Cth). The defendant, on the other hand, argued that the demand was valid and enforceable because it was served within the time frame required by the act.

The court found that the demand made by the defendant to the plaintiff was invalid because it was not served within the time frame required by the Corporations Act 2001 (Cth). The court held that the demand was not served until 6 October 2001, which was outside the time frame required by the act. The court found that the demand was therefore invalid and unenforceable. The court also found that the plaintiff was entitled to have the demand set aside.

The court ordered that the demand dated 31 August 2006 and served by the defendant on the plaintiff on 6 October 2001 be set aside. The court also reserved the question of costs and directed that written submissions in relation to the reserved question of costs be forwarded to the court by 4.00pm, Friday 15 December 2006.

Orders

Orders of the court

1. A demand dated 31 August 2006 and served by the Defendant on the Plaintiff on 6 October 2001 pursuant to the provisions of the Corporations Act 2001 (Cth) identified as pages 1 and 2 of exhibit ‘RM2’ to the affidavit of Robert McInnes sworn 26 October 2006 be set aside.

2. The costs of the proceeding are reserved.

3. Written submissions in relation to the reserved question of costs are to be forwarded to the Court by 4.00pm, Friday 15 December 2006.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GREENWOOD J

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Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

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