McElligott v Boyce

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.