Medeco Group Pty Ltd v Cripps - [2009] NSWSC 927

CITATION: Medeco Group Pty Ltd v Cripps [2009] NSWSC 927

HEARING DATE(S): 28 August 2009

JUDGMENT DATE :
28 August 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 28 August 2009

DECISION: 1. Order that the originating process be dismissed; 2. Order the plaintiff to pay the defendant's costs; 3. Exhibit may be returned after 28 days.

CATCHWORDS: CORPORATIONS – statutory demand – application to set aside a statutory demand - whether application complied with s 459G(3) of the Corporations Act 2001 (Cth) where facsimile copy of affidavit in support of application to set aside demand was missing a line of text, and subsequent email copy was missing signatures – meaning of ‘copy’ – complete version of affidavit received albeit in the form of two documents - whether a genuine dispute that the debt claimed in statutory demand was not due and payable – default event under convertible note deed meant debt had become due and payable – plaintiff contended oral variation of deed suspended obligation to repay, conditional upon plaintiff making two interest payments - plaintiff failed to make second interest payment – no genuine dispute that debt not due and payable – application dismissed

LEGISLATION CITED: Corporations Act 2001 (Cth)

CASES CITED: Bell Construction Services Pty Ltd v Form-Kwip Building Services Pty Ltd [2001] NSWSC 73
Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338
Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722; (2006) 155 FCR 556
Bailey v Hinch [1989] VR 78
Austar Finance Group Pty Ltd v Campbell [2007] NSWSC 1493; (2007) 215 FLR 464
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACLC 669; (1994) 12 ACSR 785
Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452

PARTIES: Medeco Group Pty Ltd
v
Edwin George William Cripps as trustee of the Cripps Family Superanuation Fund & 1 Or

FILE NUMBER(S): SC 2177/09

COUNSEL: Plaintiff: B Crowley (Sol'r)
Defendants: A C Casselden

SOLICITORS: Plaintiff: The Peoples Solicitors
Defendants: Haney Lawyers

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

WHITE J

Friday, 28 August 2009

2177/09 Medeco Group Pty Ltd v Edwin George William Cripps as trustee of the Cripps Family Superanuation Fund & 1 Or

JUDGMENT

1 HIS HONOUR: This is an application to set aside a statutory demand.

2 There are two issues. The first is whether there is jurisdiction to entertain the application. If so, the second issue is whether there is a genuine dispute that the debt claimed in the statutory demand was not due and payable.

3 The question of jurisdiction arises in the following way. Section 459G of the Corporations Act 2001 (Cth) provides:

459G Company may apply

(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.

(2) An application may only be made within 21 days after the demand is so served.

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: [2009] NSWSC 927
Decision Date: 28 August 2009

CaseChat Overview and Summary

Medeco Group Pty Ltd brought proceedings against Cripps in the Federal Circuit Court of Australia, seeking to enforce a statutory demand that had been issued. The dispute centred on Cripps' application to set aside the statutory demand, pursuant to section 459G of the Corporations Act 2001 (Cth). The crux of the legal issues before the court was whether the application to set aside complied with section 459G(3) of the Act, particularly in light of deficiencies in the affidavit in support of the application. Specifically, the facsimile copy of the affidavit submitted by Cripps was missing a line of text, and the subsequent email copy lacked signatures.

The court had to determine the meaning of 'copy' in the context of the statutory provision and whether a complete version of the affidavit was indeed received, albeit in the form of two separate documents. Additionally, the court had to assess whether there was a genuine dispute that the debt claimed in the statutory demand was not due and payable. Medeco argued that a default event under the convertible note deed had triggered the obligation to repay the debt, whereas Cripps contended that an oral variation of the deed had suspended this obligation, contingent on Medeco making two interest payments. However, since Medeco failed to make the second interest payment, there was no genuine dispute that the debt was due and payable.

Ultimately, the court found that the application to set aside the statutory demand did not comply with section 459G(3) due to the deficiencies in the affidavit. Moreover, the court concluded that there was no genuine dispute that the debt was not due and payable because of the failure to make the second interest payment. Consequently, the court dismissed Cripps' application to set aside the statutory demand.

Orders