Meehan v Glazier Holdings Pty Ltd

Link copied
Case Copied 27 min read

Reported Decision:

 53 ACSR 229

Court of Appeal


CITATION:

Meehan & Ors v Glazier Holdings Pty Limited [2005] NSWCA 24
HEARING DATE(S):

4 February 2005
 
JUDGMENT DATE: 


17 February 2005

JUDGMENT OF:

Santow JA at 1; Tobias JA at 56; Young CJ in Eq at 57
DECISION:

Leave to appeal granted and the appeal allowed.

CATCHWORDS:

CORPORATIONS LAW - Creditor's statutory demand - basis for setting aside under s459J(1)(b) of the Corporations Act - no offsetting claim or genuine dispute but claim by third party associated with debtor against creditor issuing statutory demand - relevance that statutory demand to recover costs following cost order which represented discrete stage of ongoing litigation - basis for upsetting trial judge's discretionary determination to set aside statutory demand - relevance of statutory demand being now stale.

LEGISLATION CITED:

Corporations Act 2001 Pt 5.4; s459J

CASES CITED:

Barclays (Aust) Finance Ltd v Mike Gaffikin Marine Pty Ltd (1996) 14 ACLC 1,367, 21 ACSR 235
Gronow v Gronow (1979) 144 CLR 513
Hoare Bros Pty Limited v Commissioner of Taxation (1996) 62 FCR 302
House v the King (1936) 55 CLR 467
Kezarne Pty Limited v Sydney Asbestos Removal Services Pty Limited (1998) 29 ACSR 11
Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146
Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACLC 1062, 11 ACSR 362
Portrait Express (Sales) Pty Limited v Kodak (Australasia) Pty Limited (1996) 20 ACSR 746
Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601
Renato Evangelisti Nominees Pty Ltd v EEC (1990) Pty Ltd (1995) 13 ACLC 1,378
Sajepe Pty Ltd v Lawler (2000) 18 ACLC 457
Spencer Constructions Pty/Limited v G & M Aldridge Pty Limited (1997) 76 FCR 452

PARTIES:

Graham MEEHAN, Anthony MURPHY and TREYKELL PTY LTD (Claimants/Appellants)
GLAZIER HOLDINGS PTY LIMITED (Opponent/Respondent)

FILE NUMBER(S):

CA 40505/04
COUNSEL:

M L D EINFELD, QC/ K ANDRONOS (Claimants/Appellants)
C KERAMIANAKIS (Director of Opponent/Respondent)

SOLICITORS:

Paul Bard (Claimants/Appellants)
--- (Opponent/Respondent)

LOWER COURT JURISDICTION:

Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):

SC4069/03

LOWER COURT JUDICIAL OFFICER:

Hamilton J



                          CA 40505/04
                          SC 4069/03

                          SANTOW JA
                          TOBIAS JA
                          YOUNG CJ in Eq

                          17 FEBRUARY 2005
Graham MEEHAN & Ors v GLAZIER HOLDINGS PTY LIMITED
Judgment

1 SANTOW JA:

      INTRODUCTION
      Graham Meehan, Anthony Murphy and Treykell Pty Limited (“the claimants”), apply for leave to appeal from two judgments of Hamilton J. If that is granted, the claimants seek a concurrent hearing of the appeal. The first dated 19 March 2004 set aside a creditor’s statutory demand issued by the claimants on 9 July 2003 against Glazier Holdings Pty Ltd (“the opponent” or “Glazier”). The second is from the judgment of Hamilton J dated 26 March 2004 ordering the claimants to pay the opponents costs of the proceedings before him.

2 Essentially, this application seeks leave to challenge the exercise of discretion by the trial judge under s459J(1)(b) of the Corporations Act 2001 setting aside the statutory demand. The trial judge held that there was,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Meehan v Glazier Holdings Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2005] NSWCA 24
Decision Date

CaseChat Overview and Summary

Meehan (the applicant) sought to set aside a statutory demand issued by Glazier Holdings Pty Ltd (the respondent). The dispute concerned whether the statutory demand, which sought to recover costs awarded to the respondent following a discrete stage of ongoing litigation, should be set aside. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the applicant had established a sufficient basis for setting aside the statutory demand under section 459J(1)(b) of the *Corporations Act 2001* (Cth), notwithstanding the absence of an offsetting claim or a genuine dispute regarding the debt itself. Specifically, the court considered the relevance of a claim by a third party associated with the applicant against the respondent, and whether this, or the nature of the debt as a cost order from prior litigation, provided grounds to upset the trial judge's discretionary decision to set aside the demand. The court also considered the relevance of the statutory demand being stale.

The Court of Appeal found that the trial judge had erred in setting aside the statutory demand. While acknowledging the existence of a third-party claim, the court determined that it did not constitute a genuine dispute or an offsetting claim in relation to the debt owed under the cost order. The court emphasised that the cost order represented a final determination of a discrete issue, and the existence of unrelated litigation or claims by associated entities did not, in itself, provide a basis to avoid the statutory demand. The court also noted that the statutory demand was no longer stale.

Leave to appeal was granted, and the appeal was allowed.

Orders

Orders of the court

Leave to appeal granted and the appeal allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.