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Merrion B Pty Ltd v Donchoid Pty Ltd (No 2)

Merrion B Pty Ltd v Donchoid Pty Ltd (No 2)

Case [2020] VSC 566

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AGLC: Merrion B Pty Ltd v Donchoid Pty Ltd (No 2) [2020] VSC 566
Case: [2020] VSC 566
Decision Date: 4 September 2020

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Citations

Merrion B Pty Ltd v Donchoid Pty Ltd (No 2) [2020] VSC 566

Most Recent Citation

Merrion B Pty Ltd v Donchiod Pty Ltd (in liq) [2023] VSC 111

Cases Citing This Decision

Donchiod Pty Ltd (in liq) v Merrion B Pty Ltd [2024] VSCA 44
Citation 1 (Para 9)

…ber 2020 to allow the applicant time to consider an appeal. He published reasons for his decision.[5] [5] Merrion B Pty Ltd v Donchiod Pty Ltd (No 2) [2020] VSC 566 (Randall AsJ).…
Re Myao Travel Pty Ltd [2020] NSWSC 1672
Citation 2 (Para 13)

…been made, and that decision does not illuminate the position where, as here, such leave was granted. In Merrion B Pty Ltd v Donchoid Pty Ltd (No 2) [2020] VSC 566, Randall AsJ undertook a comprehensive and helpful review of the authorities concerning s 459S of the Act , but also did not grant leave under that s…
Merrion B Pty Ltd v Donchiod Pty Ltd (in liq) [2023] VSC 111
Citation 3 (Para 1)

…pplication was thus an abuse of process, and the company’s contention that it was solvent. [12] Merrion B Pty Ltd v Donchiod Pty Ltd (No 2) [2020] VSC 566 (‘the winding up reasons’).…

Cases Cited

Statutory Material Cited

Verimark Pty Ltd v Passiontree Velvet Pty Ltd [2019] NSWSC 455
Citation 1 (Para 1)

…t was unconscionable or an abuse of process or had given rise to substantial injustice’.[8] [7] Verimark Pty Ltd v Passiontree Velvet Pty Ltd [2019] NSWSC 455, [75]. [8] K Young Trading Pty Ltd v Tjoi [2009] NSWSC 260, [11].…
Owen-Pearse v Lander Land Company Pty Ltd [2018] FCA 2077
Citation 2

…R 1, 10 [16] (Gummow, Heydon, Crennan, Kiefel and Bell JJ). [27]See eg Owen-Pearse v Lander Land Co Pty Ltd [2018] FCA 2077 (‘ Owen-Pearse ’). It should further be noted that in the absence of commercial duress, undue pressure, extortion or some other improper conduct on the part of a creditor, an improper purpose…
Re Huizhong Investment Group Pty Ltd [2018] NSWSC 390
Citation 3

…es, it may be necessary to determine the dispute outside of the s 459S framework (see eg Re Huizhoug Investment Group [2018] NSWSC 390). There must be some cogent why the s 459S procedure was not followed. I would imagine that nothing short of impossibility of doing so should suffice. Any other conclusion would inv…
Treloar Constructions Pty Ltd v McMillan [2017] NSWCA 72
Citation 4

…[121](2017) 318 FLR 58 (‘ Treloar Constructions ’).…
Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 3) [2016] FCA 1350
Citation 5 (Para 1)

…use the director said it was ‘a question of trying to pay everybody as much as possible from the funds that [were] available’.[127] [126](2015) 104 ACSR 528. [127]Ibid 577 [342].…
In the matter of Bitar Pty Ltd [2015] NSWSC 2158
Citation 6

…[139]See Re Bitar Pty Ltd [2015] NSWSC 2158 [10]–[13] (Brereton J).…
In the matter of Pioneer Cryogenics Pty Ltd [2015] NSWSC 1202
Citation 7

…In Re Pioneer Cryogenics Pty Ltd ( Re Pioneer Cryogenics ), Black J said:[72] [72](2015) 108 ACSR 461, 46 [9] (Black J). … it would set too high a standard to require that affidavit evidence prove the facts that raise the ground in an initial affidavit to set aside a creditor’s statutory demand, and that all that was…
Re Vangory Holdings Pty Ltd [2015] NSWSC 546
Citation 8

…tamp Duties v Paliflex ( Paliflex ) , [67] and set out the following three matters which the Court should have regard to:[68] [66][2015] NSWSC 546 (‘ Vangory Holdings ’). [67](1999) 149 FLR 179, 193 [49] (Austin J) (‘ Paliflex ’). [68] Vangory Holdings [2015] NSWSC 546 [10] (Black J). (a)whether ‘there is a serious…
Re: OCNR (Australia) Pty Ltd; Convergence Team Pty Ltd v OCNR (Australia) Pty Ltd [2014] QSC 102
Citation 9

…of its solvency.[70] [70] Expile Pty Ltd v Jabb’s Excavations Pty Ltd [2003] NSWSC 96 [4] (Barrett J) (‘ Expile ’); Re OCNR (Australia) Pty Ltd [2014] QSC 102 [16]–[17] (Mullins J). Serious question to be tried The test under s 459S is not dissimilar to the requirement that there be a ‘serious question to be trie…
Re Ashington Bayswater Pty Ltd (In Liq) [2013] NSWSC 1008
Citation 10 (Para 1)

…t Pty Ltd (winding up) there was an identified buyer; and in Jingellic (winding up) there had been recent sale interests of other companies. [118][2013] NSWSC 1008.…
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2011] HCA 18
Citation 11

…xception from the general rule articulated in Lanepoint .[55] [51]Ibid [30]–[31]. [52]Ibid [32]. [53]Ibid [36]. [54](2011) 277 ALR 243. [55](2011) 244 CLR 1. Kornucopia also relies upon the decision of Banks-Smith J in Owen-Pearse v Lander Land Co Pty Ltd ,[56] in which the plaintiff sought review of a decision to re…
RH Mortgage Corporation Ltd v Kerry Ann Properties Pty Ltd [2011] NSWSC 298
Citation 12

…[3][2011] NSWSC 298.…
Ewen Stewart & Associates Pty Ltd v Blue Mountains Virtual Air Helitours Pty Ltd (No 2) [2011] NSWSC 113
Citation 13

…o raise the ground. That is the case here, and for that reason I do not need to analyse the ‘strict’ and ‘lenient’ views any further.[82] [81][2011] NSWSC 113 [35] and [48] (White J). [82] Re Kornucopia Pty Ltd (No 4) (n 6) [210]–[230] (emphasis in original).…
JTS Property & Investments No 1 Pty Ltd (In Liq) v Sadri [2010] NSWSC 1384
Citation 14

…[110] JTS Property & Investments No 1 Pty Ltd (in liq) v Sadri [2010] NSWSC 1384, [48]–[50].…
Eykamp v Deputy Commissioner of Taxation [2010] FCA 797
Citation 15 (Para 1)

…ised, and in a limited sense, what then occurred in relation to that asset as events unfolded. [134] Eykamp v Deputy Commissioner of Taxation [2010] FCA 797, [5].…
2020 Construction Systems Pty Ltd v Dryka & Associates Pty Ltd [2010] WASC 22
Citation 16 (Para 57)

…at [26]–[29] (Palmer J); Tela at [13]–[14]; 2020 Construction Systems Pty Ltd v Dryka & Associates Pty Ltd [2010] WASC 22 at [57] –[61] (Beech J).…
K Young Trading Pty Ltd v Tjoi [2009] NSWSC 260
Citation 17 (Para 1)

…se to substantial injustice’.[8] [7] Verimark Pty Ltd v Passiontree Velvet Pty Ltd [2019] NSWSC 455, [75]. [8] K Young Trading Pty Ltd v Tjoi [2009] NSWSC 260, [11].…
Dover Beach Pty Ltd v Geftine Pty Ltd [2008] VSCA 248
Citation 18 (Para 1)

…the reasonable costs for performing the contracted works, usually an allowance for the claimant’s own labour and profit would not be included. [83](2008) 21 VR 442.…
New Cap Reinsurance Corporation Ltd (in liq) v A E Grant [2008] NSWSC 1015
Citation 19

…32] Lewis v Doran (2004) 208 ALR 385, 408–9 [107]–[113]. See also the comments of White J in New Cap Reinsurance Corporation Ltd (in liq) v Grant (2008) 221 FLR 164, 176–7 [47]–[52] (‘ New Cap ’).…
Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962
Citation 20

…demand set aside. [64] Aust Yieh Stainless Pty Ltd v Horans Steel Pty Ltd [2000] NSWSC 244. [65] Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 [20] (White J) (‘ Radiancy (Sales) ’). Section 459S is expressed in mandatory terms. The Court must not grant leave unless it is satisfied that the ground that t…
Monsour Pty Ltd v Amos [2007] FMCA 740
Citation 21

…[124](1980) 32 ALR 596, 599 (‘ Sarina ’).…
Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2007] NSWCA 57
Citation 22

…ty Ltd, [17] Beazley JA (with whom Hodgson and Santow JJA agreed) discussed the principles engaged in Fortuna Holdings .[18] Her Honour said:[19] [17](2007) 69 NSWLR 374. [18][1978] VR 83. [19] Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374 [57] (Beazley JA). I agree…
Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1338
Citation 23

…In Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd , Barrett J said:[75] [75][2005] NSWSC 1338 [15] (Barrett J). Once changes in circumstances are asserted, it becomes necessary to consider whether there is any need for s 459S(1) leave at all. In speaking of ‘a ground … that the company could have relied on…
DAG International Pty Ltd v DAG International Group [2005] NSWSC 1036
Citation 24 (Para 5)

…rguable case that the debt is the subject of a bona fide dispute: D.A.G. International Pty Ltd v D.A.G. International Group Pty Ltd [2005] NSWSC 1036 at [5].…
Lewis v Doran [2005] NSWCA 243
Citation 25

…[132] Lewis v Doran (2004) 208 ALR 385, 408–9 [107]–[113]. See also the comments of White J in New Cap Reinsurance Corporation Ltd (in liq) v Grant (2008) 221 FLR 164, 176–7 [47]–[52] (‘ New Cap ’).…
Roberts v Wayne Roberts Concrete Constructions Pty Ltd [2004] NSWSC 734
Citation 26

…red to raise that ground. In Roberts v Wayne Roberts Concrete Constructions Pty Ltd , Barrett J said:[74] [74](2004) 208 ALR 532, 535–6 [11] (Barrett J). In a case such as the present where a statutory demand is served and there is no application under s.459G for an order setting it aside, the barrier erected by s 45…
Lewis v Doran [2004] NSWSC 608
Citation 27

…olvency of the first, then the Court may have regard to that fact in assessing whether the first company is able to pay its debts as they fall due: Lewis v Doran (2004) 184 FLR 454 at [116]. It is beyond question in the present case that whatever cash and asset resources were available to Wines were regarded by the Boa…
Perpetual Nominees Ltd v Masri Apartments Pty Ltd [2004] NSWSC 551
Citation 28

…en to the company to resort to the s 459G procedure: see Biron Capital Ltd v Velowing Pty Ltd Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 719; Goman v Scope Data Systems Pty Ltd [2004] NSWSC 314. It follows that, if all the ‘changes in circumstances’ are of such a kind as to make defences on the…
Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) [2004] NSWSC 527
Citation 29

…ground is supported by the following authorities. In Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) , White J said:[13] [13][2004] NSWSC 527 [72] (White J). The preponderance of authority is that a company may not be wound up on the application of a person claiming to be a creditor whose d…
Goman v Scope Data Systems Pty Ltd [2004] NSWSC 314
Citation 30

…e Biron Capital Ltd v Velowing Pty Ltd Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 719; Goman v Scope Data Systems Pty Ltd [2004] NSWSC 314. It follows that, if all the ‘changes in circumstances’ are of such a kind as to make defences on the basis of circumstances grounds that were not availabl…
Biron Capital Ltd v Velowing Pty Ltd [2003] NSWSC 1181
Citation 31

…hat ss 459H or 459J makes relevant to an application under s 459G: Biron Capital Ltd v Velowing Pty Ltd [2003] NSWSC 1181; BC200307633.…
Expile Pty Ltd v Jabb's Excavations Pty Ltd [2003] NSWSC 96
Citation 32

…ies seeking leave to place relevant material before the Court on the question of its solvency.[70] [70] Expile Pty Ltd v Jabb’s Excavations Pty Ltd [2003] NSWSC 96 [4] (Barrett J) (‘ Expile ’); Re OCNR (Australia) Pty Ltd [2014] QSC 102 [16]–[17] (Mullins J). Serious question to be tried The test under s 459S is n…
State Bank of New South Wales v Tela Pty Ltd (No 2) [2002] NSWSC 20
Citation 33

…Tela Pty Ltd (No 2) ( Tela ), Barrett J set out the differences between the regime enacted by Part 5.4, and that which previously subsisted:[30] [30](2002) 188 ALR 702 [11] (Barrett J) (‘ Tela ’). The scheme of the legislation makes it clear that a creditor who has duly served a statutory demand which remains unsati…
Redglove Holdings Pty Ltd v GNE & Associates Pty Ltd [2001] NSWSC 867
Citation 34

…chiris Pty Ltd (1996) 21 ACSR 527 at 529–530 (Brownie J) ; Redglove Holdings Pty Ltd v GNE & Associates Pty Ltd [2001] NSWSC 867; (2001) 165 FLR 72 at [26]–[29] (Palmer J); Tela at [13]–[14]; 2020 Construction Systems Pty Ltd v Dryka & Associates Pty Ltd [2010] WASC 22 at [57] –[61] (Beech J).…
Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743
Citation 35

…ufficient particularity to enable the court to determine that the claim is not fanciful.’[73] [73] Macleay Nominees v Belle Property East Pty Ltd [2001] NSWSC 743 [18] (Palmer J). The authorities make clear that the Court is not to approach the question of whether to grant leave by conducting a ‘trial within a tria…
Aust Yieh Stainless Pty Ltd v Horans Steel Pty Ltd [2000] NSWSC 244
Citation 36

…r s 459G and which could have been raised to have the statutory demand set aside. [64] Aust Yieh Stainless Pty Ltd v Horans Steel Pty Ltd [2000] NSWSC 244. [65] Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 [20] (White J) (‘ Radiancy (Sales) ’). Section 459S is expressed in mandatory terms. The Court mu…
Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37
Citation 37

…aterial to finding solvency’, but rather that the ground is ‘material to proving solvency’.[76] Spiegelman CJ said:[77] [76](2000) 33 ACSR 723, 733 [43] (Spiegelman CJ). [77]Ibid 735 [54] and [56]. If, as here, the company intends to prove that it is solvent whether or not a debt is payable, then with respect to a gr…
Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15
Citation 38

…t out the following three matters which the Court should have regard to:[68] [66][2015] NSWSC 546 (‘ Vangory Holdings ’). [67](1999) 149 FLR 179, 193 [49] (Austin J) (‘ Paliflex ’). [68] Vangory Holdings [2015] NSWSC 546 [10] (Black J). (a)whether ‘there is a serious question to be tried on the ground sought to be ra…
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43
Citation 39 (Para 688)

…te Law Reform Act 1992 (Cth). [21]See the Explanatory Memorandum to the Corporate Law Reform Bill 1992 at [688]–[689] and the discussion in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 279 (Gummow J). The provisions in relation to the setting aside of a statutory demand are intended to be a complete code for the resolution of dis…
Williams v Spautz [1992] HCA 34
Citation 40

…[1](1992) 174 CLR 509.…
Sandell v Porter [1966] HCA 28
Citation 41

…ere have frequently been references to observations of Barwick CJ in Rees v Bank of New South Wales (1964) 111 CLR 210 at 218 and in Sandell v Porter (1966) 115 CLR 666 at 670–671. Barwick CJ spoke in relation to s 95 which referred to a debtor as being ‘unable to pay his debts as they become due from his own money’;…
Rees v Bank of New South Wales [1964] HCA 47
Citation 42

…There have frequently been references to observations of Barwick CJ in Rees v Bank of New South Wales (1964) 111 CLR 210 at 218 and in Sandell v Porter (1966) 115 CLR 666 at 670–671. Barwick CJ spoke in relation to s 95 which referred to a debtor as being ‘unable to pay his debts as they become due from his own money…
Soundwave Festival Pty Ltd v Altered State (WA) Pty Ltd (No 1) [2014] FCA 466
Citation 43

…n one applies for an interlocutory injunction. In Soundwave Festival Pty Ltd v Altered State (WA) Pty Ltd (No 1) , Wigney J said:[71] [71][2014] FCA 466 [10] (Wigney J). A ‘preliminary’ consideration of the nature and basis of the dispute concerning the existence of the debt that the defendant wishes to raise in…
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund [1996] FCA 822
Citation 44

…emorandum to the Corporate Law Reform Bill 1992 at [688]–[689] and the discussion in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, 279 (Gummow J). The provisions in relation to the setting aside of a statutory demand are intended to be a complete code for the resolution of disputes involv…
Liverpool Cement Renderers (Aust) Pty Ltd v Landmarks Constructions (NSW) Pty Ltd [1996] FCA 260
Citation 45

…is unlikely to be found. See Liverpool Cement Renderers (Aust) Pty Ltd v Landmarks Constructions (NSW) (1996) 19 ACSR 411, 416-7 (Tamberlin J) (‘ Liverpool Cement ’). Part 5.4 has been observed by this Court on countless occasions to have the potential of operating harshly, but that is the only way that the regime c…
Re Kornucopia Pty Ltd (No 4) [2020] VSC 7
Citation 46 (Para 1)

…abuse of process ground in the absence of leave. [5] A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq) (2018) 55 VR 513, 539 [80] (Sloss J). [6][2020] VSC 7.…
AXF Entertainment Pty Ltd v AXF Group Pty Ltd (No 2) [2019] VSC 753
Citation 47

…ed the view his Honour had earlier set out in Zeninvest ,[47] in relation to a scenario where there is a genuine dispute:[48] [47][2019] VSC 450. [48][2019] VSC 753 [38] (Efthim AsJ) (‘ AXF Entertainment ’). It is the principle applied by the Court in winding up proceedings brought under the former legislation wh…
In the matter of Vitamin Co Pty Ltd (ACN 614 680 367) [2019] VSC 540
Citation 48

…JR similarly expressed doubt with respect to the ‘second branch’ of abuse of process articulated in Fortuna Holdings. [43]Hetyey JR said:[44] [42][2019] VSC 540. [43][1978] VR 83. [44] Vitamin Co [2019] VSC 540 [79] (Hetyey JR). However, there is real doubt as to whether the principle [in Fortuna Holdings ] conti…
Zeninvest Pty Ltd v Altus Development Pty Ltd (No 2) [2019] VSC 450
Citation 49

…ended the application was an abuse of process, on the basis that the debt was genuinely disputed. Efthim AsJ rejected this argument and said:[46] [45][2019] VSC 450. [46]Ibid [30]–[31] (Efthim AsJ). Senior Counsel for the defendant submits that Fortuna remains good law and that the decision in Lanepoint can be di…
Wimpole Properties Pty Ltd v Beloti Pty Ltd (No 3) [2012] VSC 219
Citation 50 (Para 1)

…ti Pty Ltd (No 3) , which concerned an application for winding up, there was no ‘credible plan or reasonable prospect for asset sales’.[123] [123][2012] VSC 219, [116].…

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