Land Warrior Acoustic Systems Pty Limited v Pacific Noise and Vibration Pty Limited (in liq)

[2011] FCA 1357

FEDERAL COURT OF AUSTRALIA

Land Warrior Acoustic Systems Pty Limited v Pacific Noise and Vibration
Pty Limited (in liq) [2011] FCA 1357

Citation:		Land Warrior Acoustic Systems Pty Limited v Pacific Noise and Vibration Pty Limited (in liq) [2011] FCA 1357
Parties:		LAND WARRIOR ACOUSTIC SYSTEMS PTY LIMITED (ACN 105 924 945) v PACIFIC NOISE AND VIBRATION PTY LIMITED (IN LIQUIDATION)
File number:		ACD 41 of 2011
Judge:		FINN J
Date of judgment:		2 December 2011
Date of hearing:	4 November 2011
Date of last submissions:	28 November 2011
Place:	Adelaide (Heard in Canberra)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	Mr R Barnett
Solicitor for the Applicant:	Rod J Barnett & Associates
Counsel for the Respondent:	Mr D Robens
Solicitor for the Respondent:	Dibbs Barker

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 41 of 2011

BETWEEN:	LAND WARRIOR ACOUSTIC SYSTEMS PTY LIMITED (ACN 105 924 945) Applicant
AND:	PACIFIC NOISE AND VIBRATION PTY LIMITED (IN LIQUIDATION) Respondent

JUDGE:	FINN J
DATE OF ORDER:	2 DECEMBER 2011
WHERE MADE:	ADELAIDE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.There be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. 

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 41 of 2011

BETWEEN:	LAND WARRIOR ACOUSTIC SYSTEMS PTY LIMITED (ACN 105 924 945) Applicant
AND:	PACIFIC NOISE AND VIBRATION PTY LIMITED (IN LIQUIDATION) Respondent

JUDGE:	FINN J
DATE:	2 DECEMBER 2011
PLACE:	ADELAIDE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

1. In this matter an application to set aside a statutory demand by consent was made on 4 November 2011.  The respondent indicated at the time that it wished to be heard on the issue of costs.  Each party was given the opportunity to put on submissions. 

2. Having regard to those submissions and to the state of affairs they have revealed, I am satisfied that the order that I had intended to make in any event is the proper one to be made and that is that there be no order as to costs.  The applicant’s contention that costs ought follow the event is not one to which I can accede.  While the applicant did put the respondent company on notice that it disputed the validity of the statutory demand at an early date, I am nonetheless satisfied that the respondent’s persistence in relying upon its demand was reasonable.  It was in liquidation and the liquidator in making its demand was relying on the company’s own accounts relating to the applicant’s indebtedness to it. 

3. At all relevant times the two companies shared common directors and yet it was only late in the piece that the applicant provided information from the common director of the two companies, a Mr Webster, which could properly satisfy the liquidator that the accounts of the respondent company might not accurately reflect the true legal position.

4. In these circumstances I consider each party should bear its own costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:       2 December 2011