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Panel Tech Industries v Australia Skyreach

Panel Tech Industries v Australia Skyreach

Case [2003] NSWSC 619 4 July 2003

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CITATION: Panel Tech Industries v Australia Skyreach [2003] NSWSC 619

HEARING DATE(S): 04/07/03

JUDGMENT DATE:
4 July 2003

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Order setting aside statutory demand refused

CATCHWORDS: CORPORATIONS - winding up - statutory demand - application to set aside demand on basis of defect in demand and accompanying affidavit - omission of express references to debt being "due and payable" - unconditional requirement for immediate payment nevertheless shown by copy invoices annexed to accompanying affidavit - defect not such as to require setting aside of demand

LEGISLATION CITED: Corporations Act 2001 (Cth), ss.459E and G

CASES CITED: Azed Developments Pty Ltd v Frederick & Co Ltd (1994) 14 ACSR 54
Chadah Pty Ltd v Kubota Tractor Australia Pty Ltd [2003] NSWSC 456
Graywinter Property Pty Ltd v Gas and Fuel Superannuation Fund (1996) FCR 452
Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd (2002) 20 ACLC 726
Peak Hill Manganese Pty Ltd v Hydroplant Equipment Pty Ltd [2003] WASC 120

PARTIES :
Panel Tech Industries (Australia) Pty Limited - Plaintiff
Australia Skyreach Equipment Pty Limited - Defendant

FILE NUMBER(S): SC 5379/02

COUNSEL: Mr Michael Green - Plaintiff
Mr C D Wood - Defendant

SOLICITORS: The Bruce & Stewart Commercial Practice - Plaintiff
Jason Li Lawyers - Defendant

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

BARRETT J

FRIDAY 4 JULY 2003

005379/02 - PANEL TECH INDUSTRIES (AUSTRALIA) PTY LIMITED v AUSTRALIA SKYREACH EQUIPMENT PTY LIMITED

JUDGMENT

1 By its originating process filed on 4 November 2002, the plaintiff makes application under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant and dated 14 October 2002.

2 The first two grounds on which the plaintiff seeks the setting aside of the statutory demand are the grounds specified in ss.459J(1)(a) and 459J(1)(b), the plaintiff’s case being that, because of a defect in the demand itself, substantial injustice will be caused unless it is set aside and that there is in any event some other reason why it should be set aside, being a defect in the accompanying affidavit. Having today heard argument on those grounds, I proceed to give judgment on them only.

3 There is a question whether, having regard to the content of the affidavit supporting the s.459G application viewed in the light of the Graywinter principle (Graywinter Property Pty Ltd v Gas and Fuel Superannuation Fund (1996) FCR 452), the plaintiff is entitled to rely on these grounds. I shall consider first the substantive questions going to the matters of alleged defect.

4 The plaintiff seeks to rely on one defect in the demand itself and one defect, or perhaps a group of matters making up one defect, in the supporting affidavit called for by s.459G(3). In relation to the demand itself, the plaintiff points to the fact that it does not contain a paragraph corresponding with paragraph 2 of…

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.

Continue reading Panel Tech Industries v Australia Skyreach

Details

AGLC: Panel Tech Industries v Australia Skyreach [2003] NSWSC 619
Case: [2003] NSWSC 619
Decision Date: 4 July 2003

CaseChat Overview and Summary

The case of Panel Tech Industries v Australia Skyreach was brought before the Federal Court of Australia. Panel Tech Industries initiated proceedings against Australia Skyreach, seeking to wind up the latter based on a statutory demand. Australia Skyreach sought to set aside the statutory demand, contending that there was a defect in the demand and accompanying affidavit as it did not explicitly state that the debt was "due and payable." This contention hinged on the omission of this specific phraseology in the statutory demand.

The primary legal issue before the court was whether the omission of the phrase "due and payable" from the statutory demand constituted a defect that warranted setting aside the demand. The court was required to determine whether this omission was a substantial defect, given that the accompanying affidavit included copies of invoices that showed an unconditional requirement for immediate payment.

The court held that the defect in the statutory demand was not of such a nature as to require the demand to be set aside. The omission of the specific phrase "due and payable" did not affect the overall effect of the demand, which was clear from the accompanying affidavit. The invoices annexed to the affidavit demonstrated an unconditional requirement for immediate payment, thus fulfilling the statutory requirements for a valid demand. The court found that the defect did not prejudice the respondent and accordingly dismissed the application to set aside the demand.

No further orders were made by the court.

Orders