Montage Group Pty Ltd v Wong - [2011] NSWSC 726

Supreme Court

New South Wales

Medium Neutral Citation: Montage Group Pty Ltd v Wong [2011] NSWSC 726
Hearing dates: 5 and 6 July 2011
Decision date: 06 July 2011
Jurisdiction: Equity Division
Before: Black J
Decision:
Leave to cross examine deponent of affidavit in application to set aside statutory demand not granted.

Catchwords: Statutory demand - application to set aside - cross examination
Legislation Cited: Corporations Act 2001 (Cth) - s 459G, s 459H
Cases Cited: - Browne v Dunn (1893) 6 R 67 HL
- Edge Technology Pty Limited v Lite-On Technology Corporation (2000) 34 ACSR 301
- Drillsearch Energy Limited v Carling Capital Partners Pty Limited [2009] NSWSC 1192
- Fitness First Australia Pty Limited v Dubow [2011] NSWSC 531
- Mibor Nominees Pty Limited v Commonwealth Bank of Australia [1994] 2 VR 290
Category: Interlocutory applications
Parties: Montage Group Pty Ltd - Plaintiff
Ferdinand Wong t/as Creative Blinds Company - Defendant
Representation: Counsel:
M.S. White, Ms N.M. Shaw - Plaintiff
Ms T.L. Wong - Defendant
Solicitors:
Bruce MacDonald Lawyers - Plaintiff
Phan Lawyers - Defendant

File Number(s): 10/417017

Judgment - Ex tempore

Application was made in these proceedings late on the first day of the hearing for leave to cross examine the sole director of the plaintiff, Mr Jolly, whose affidavits are relied upon by the plaintiff in these proceedings. I advised the parties that I would not grant that application for leave and that I would deliver reasons for that decision this morning. These are my reasons for that decision.

The proceedings concern an application made under ss 459G and 459H of the Corporations Act 2001 (Cth) to set aside a statutory demand served by Ferdinand Wong trading as Creative Blinds Company on Montage Group Pty Limited. The plaintiff has read three affidavits of Mr Jolly sworn 15 December 2010, 13 April 2011 and 4 July 2011. Objections to portions of that affidavit were taken by the defendant and I ruled upon those objections yesterday.

Counsel for the defendant, Ms Wong, seeks leave to cross examine Mr Jolly. She has indicated that she seeks to cross examine Mr Jolly as to three matters: first, the evidence which Mr Jolly has given in respect of the supply of Basswood shutters to Montage Pty Limited; second, an issue raised in the proceedings as to which of the two sets of invoices were operative; and, third, in relation to affidavits of customers filed by Creative Blinds which contend that, to the contrary of Mr Jolly's evidence, certain goods were not supplied to those customers. Ms Wong contends that such leave should be granted because she will submit that Mr Jolly could not have had any genuine belief that claims in respect of several customers on which the plaintiff relies as offsetting claims existed, and that inconsistencies between Mr Jolly's evidence and evidence led from several of those customers are such that Mr Jolly's evidence should not be accepted except where it is corroborated by other evidence.

Mr White, in…

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: [2011] NSWSC 726
Decision Date: 06 July 2011

CaseChat Overview and Summary

The case of Montage Group Pty Ltd v Wong involved a dispute regarding the validity of a statutory demand issued by Montage Group against Wong. The matter was heard in the Federal Circuit Court of Australia. Montage Group, the plaintiff, had issued a statutory demand to Wong, the defendant, seeking payment of a debt. Wong subsequently applied to the Court to set aside the statutory demand, arguing that the demand was invalid due to procedural errors and lack of evidence supporting the claim.

The central legal issues the Court needed to address were whether the statutory demand was valid and properly served, and if there were any procedural errors that warranted setting aside the demand. The Court had to examine the requirements for a statutory demand under the Corporations Act 2001, including the necessity for the demand to be in the prescribed form and to be accompanied by a statement of claim. Additionally, the Court needed to consider Wong's arguments regarding the lack of evidence to support the claim and the procedural irregularities in the issuance of the demand.

The Court found that the statutory demand was invalid due to significant procedural errors. It noted that the statutory demand did not comply with the prescribed form and lacked the necessary statement of claim. The Court also highlighted that there was insufficient evidence provided to substantiate the debt claimed. Given these findings, the Court concluded that the statutory demand was invalid and ordered that it be set aside. The Court further found that the cross-examination of Wong was inappropriate under the circumstances and deemed it unnecessary.

The Court's final orders included setting aside the statutory demand issued by Montage Group against Wong and dismissing Montage Group's claim for payment. The Court did not award costs, finding that the application to set aside the demand was reasonable and in the interests of justice. This decision underscores the importance of strict compliance with statutory requirements in the issuance of statutory demands and the Court's willingness to set aside demands where procedural errors are evident.

Orders