Missing Link Network Integration Pty Ltd v Keene Consulting International Pty Ltd - [2007] NSWSC 1377

CITATION: Missing Link Network Integration v Keene Consulting International [2007] NSWSC 1377

HEARING DATE(S): 16/11/07, 26/11/07

JUDGMENT DATE :
26 November 2007

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 26 November 2007

DECISION: Order that the amended interlocutory process filed 16 November 2007 be dismissed with costs.

CATCHWORDS: CORPORATIONS – winding-up – application to dismiss winding-up application – Corporations Act 2001 (Cth), s 459C(2)(a) – defendant asserted that winding up proceedings were commenced before date on which defendant taken to have failed to comply with statutory demand – reliance on presumption of insolvency not precluded if winding-up application filed before expiration of 21 day period for compliance with statutory demand – held in any event that demand served more than 21 days before winding-up application filed - application dismissed.

LEGISLATION CITED: Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)

CASES CITED: Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661
Pinn v Barroleg Pty Ltd (1997) 23 ACSR 541

PARTIES: The Missing Link Network Integration Pty Ltd
v
Keene Consulting International Pty Ltd

FILE NUMBER(S): SC 4753/07

COUNSEL: Plaintiff: A C Casselden
Defendant: C Keene (director of company)

SOLICITORS: Plaintiff: Raj Lawyers
Defendant: N/A

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

WHITE J

Monday, 26 November 2007

4753/07 The Missing Link Network Integration Pty Ltd v Keene Consulting International Pty Ltd

JUDGMENT

1 HIS HONOUR: In this application, the defendant seeks summary dismissal of a winding-up application brought by the plaintiff against it.

2 The originating process was filed by the plaintiff on 27 September 2007. It seeks an order that the defendant be wound up in insolvency. As well as, or alternatively to, seeking summary dismissal of the winding-up application the defendant seeks the following orders:

“ 2. A declaration that there is no presumption of insolvency pursuant to section 459C of the Corporations Act 2001 as the statutory demand was not served in accordance with section 109X of the Corporations Act.

3. The statutory demand dated 20 August 2007 in the originating process (sic) be set aside pursuant to section 459H or 459J of the Corporations Act or under any other power of the court.

AND

4. Alternatively the defendant have leave to oppose the application for winding up pursuant to section 459S of the Corporations Act and thereby be given an opportunity of disputing the amount, or existence, of the debt claimed in the Statutory Demand attached to the originating process.

3 The statutory demand claimed an amount of $15,964.52 alleged to be payable by the defendant to the plaintiff in respect of certain identified invoices. The plaintiff contends that the statutory demand was served by being posted in the ordinary course of post to the defendant's registered office at Archer Street, Chatswood. The plaintiff says that the demand was so posted on or shortly after 20 August 2007.

4 The defendant denies that the demand was so served. It contends that the demand was…

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: [2007] NSWSC 1377
Decision Date: 26 November 2007

CaseChat Overview and Summary

Missing Link Network Integration Pty Ltd sought to have Keene Consulting International Pty Ltd wound up under the Corporations Act 2001 (Cth). Keene Consulting International contested the application, arguing that it had not been given sufficient time to comply with a statutory demand, and the application should be dismissed. The Federal Court was tasked with deciding whether the winding-up application was validly made and if the presumption of insolvency could be relied upon given the timing of the demand and application.

The court examined whether the statutory demand was served more than 21 days before the winding-up application was filed, as required by the Corporations Act. The court found that the statutory demand was indeed served more than 21 days prior to the filing of the winding-up application, thus satisfying the statutory requirements. The court further held that the presumption of insolvency could be relied upon even if the winding-up application was filed before the expiry of the 21-day period, provided that the statutory demand was served within the required timeframe.

Based on its findings, the court dismissed the application to wind up Keene Consulting International. The dismissal was grounded on the established statutory requirements for the service of a statutory demand and the subsequent filing of a winding-up application. The court made no orders for costs.

Orders