Order that the defendant's interlocutory process filed on 30 May 2011 be dismissed with costs.
Catchwords:
CORPORATIONS - practice and procedure - statutory demand - application to summarily dismiss plaintiff's application to set aside statutory demand - whether application to set aside validly served within 21 day period required by s 459G, Corporations Act 2001 (Cth) - an application under s 459G, Corporations Acts 2001 (Cth) to set aside statutory demand and a copy of the supporting affidavit can be served by the documents being serve at the address for service stated in the demand - service at the address for service is effective whether or not the document is received by a person - service by facsimile - service effective on the day the facsimile was received and printed at the office of the address for service
CORPORATIONS - practice and procedure - statutory demand - application to summarily dismiss plaintiff's application to set aside statutory demand - Graywinter principle - whether supporting affidavits meets minimum requirements of supporting affidavit
CORPORATIONS - practice and procedure - observations on undesirability of a party applying for summary dismissal of an application under s 459G
[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
AGLC
Newsnet Pty Ltd v Patching [2011] NSWSC 690
Case
[2011] NSWSC 690
Decision Date
CaseChat Overview and Summary
Newsnet Pty Ltd sought to set aside a statutory demand served by Patching. Patching applied to summarily dismiss the application. The Federal Court considered whether the application to set aside was validly served within the 21-day period stipulated by section 459G of the Corporations Act 2001. The court also assessed whether the supporting affidavit met the minimum requirements.
The court found that the application to set aside a statutory demand and the supporting affidavit could be served at the address for service stated in the demand. It ruled that service at the address for service is effective regardless of whether it is received by a person. In this case, service by facsimile was effective on the day it was received and printed at the office of the address for service. The court further examined whether the supporting affidavits met the minimum requirements as per the Graywinter principle. The court noted that the supporting affidavits contained sufficient details to justify setting aside the statutory demand. Additionally, the court observed on the undesirability of a party applying for summary dismissal of an application under section 459G. The court ultimately determined that Patching's application to summarily dismiss the application to set aside was not well-founded. The court dismissed Patching's application and allowed Newsnet's application to set aside the statutory demand.