McElligott v Boyce

Case [2011] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

McElligott v Boyce & Ors [2011] QCA 117

PARTIES:

LORAIN RONDA McELLIGOTT
(applicant)
v
PETER GERARD BOYCE
(first respondent)
ALAN WILLIAM CLARKE
(second respondent)
SIMONE ELIZABETH PEARCE
(third respondent)
GEOFFREY JOHN BARR
(fourth respondent)
BME UNIT TRUST – THE FIRM BUTLER McDERMOTT LAWYERS
ABN 77 931 309 637
(fifth respondent)
TERRY GRANT VAN DER VELDE
(sixth respondent)
DAVID MICHAEL STIMPSON
(seventh respondent)
SV PARTNERS PTY LTD
ABN 63 103 951 819
(eighth respondent)

FILE NO/S:

Appeal No 13837 of 2010
SC No 8960 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2011

JUDGES:

Muir, Chesterman and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to file and read an unsworn report as to the solvency of Westwood is refused.1.   

The application for an extension of time within which to file a notice of appeal is refused.2.   

The applicant pay the costs of the first to fifth respondents.3.   

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP  IN INSOLVENCY – STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND – FOR DEFECT OR SOME OTHER REASON – where a statutory demand was served upon a company – where the applicant was the sole director and shareholder of the company – where the statutory demand did not contain a warning statement as prescribed in the statutory form – where the applicant did not contend that the statutory demand was defective at first instance – where no evidence was put forward to show that the company was solvent – where the applicant submitted that the statutory demand was “delivered in a misleading way” because it was under cover of a letter – where the applicant submitted that there was a genuine dispute as to the existence of a debt because she disputed the value of the advice given that gave rise to the debt – whether the defect in the statutory demand gave rise to a substantial injustice – whether the statutory demand should be set aside – whether the primary judge erred in ordering that the applicant’s company be wound up in insolvency – whether an extension of time within which to file a notice of appeal should be granted

Corporations Act 2001 (Cth), s 109X, s 459J(2)

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, applied
Randall Pty Ltd v Chepan Pty Ltd (2009) 73 ACSR 267; [2009] NSWSC 783, followed
University of Wollongong v Metwally [No 2] (1985) 60 ALR 68; [1985] HCA 28, applied
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited

COUNSEL:

P Jensen for the applicant
M Jones for the first to fifth respondents
No appearance for the sixth to eighth respondents

SOLICITORS:

The applicant appeared on…

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McElligott v Boyce [2011] QCA 117
Case
[2011] QCA 117
Decision Date

CaseChat Overview and Summary

In the case of McElligott v Boyce, the applicant sought to set aside a statutory demand that was served upon her company, Westwood. The applicant, who was both the sole director and shareholder of the company, argued that the statutory demand should be set aside on the basis that it was defective and misleading. The applicant contended that the statutory demand was delivered in a misleading way because it was under cover of a letter, and that there was a genuine dispute as to the existence of a debt. The applicant also submitted that the statutory demand did not contain a warning statement as prescribed in the statutory form.

The legal issues that the court was required to decide included whether the defect in the statutory demand gave rise to a substantial injustice, whether the statutory demand should be set aside, and whether the primary judge erred in ordering that the applicant’s company be wound up in insolvency. The court also had to consider whether an extension of time within which to file a notice of appeal should be granted.

In its judgment, the court found that the defect in the statutory demand did not give rise to a substantial injustice, and that the applicant had not demonstrated that she was unable to pay the debt. The court also found that the primary judge did not err in ordering that the applicant’s company be wound up in insolvency. The court rejected the applicant’s submission that the statutory demand was delivered in a misleading way, and held that the applicant had not demonstrated that there was a genuine dispute as to the existence of a debt. Finally, the court refused the applicant’s application for an extension of time within which to file a notice of appeal.

The court also refused the applicant’s application for leave to file and read an unsworn report as to the solvency of Westwood. The applicant was ordered to pay the costs of the first to fifth respondents.

Orders

Orders of the court

The application for leave to file and read an unsworn report as to the solvency of Westwood is refused.1.

The application for an extension of time within which to file a notice of appeal is refused.2.

The applicant pay the costs of the first to fifth respondents.3.

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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