Legal Research
Cases
Primestyle Pty Ltd v Fluhler

Primestyle Pty Ltd v Fluhler

Case [2017] WASC 296 16 October 2017

Corporate Law

Statutory Interpretation

Specific Performance

Corporate Law & Governance

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PRIMESTYLE PTY LTD -v- FLUHLER [2017] WASC 296

CORAM: ACTING MASTER STRK

HEARD: 14 SEPTEMBER 2017

DELIVERED : 16 OCTOBER 2017

FILE NO/S: COR 175 of 2017

BETWEEN: PRIMESTYLE PTY LTD
Plaintiff
AND
HANS FLUHLER
Defendant

Catchwords:

Corporations law - Application to set aside statutory demand - Genuine dispute - Defect - Whether substantial injustice will be caused unless the demand is set aside - Whether there is some other reason why the demand should be set aside - Relief under s 459J(1)(a) or (b) of the Corporations Act 2001 (Cth) - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 459G, s 459H, s 459J(1)(a), s 459J(1)(b)

Result:

Application dismissed
Statutory demand varied and declaration given pursuant to s 459H(4)(a) and (b) Corporations Act 2001 (Cth)

Category: B

Representation:

Counsel:

Plaintiff: Mr P N Holmes
Defendant: Mr J N C Flexman

Solicitors:

Plaintiff: Holborn Lenhoff Massey
Defendant: Birman & Ride

Case(s) referred to in judgment(s):

Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22
Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85
Fairstar Resources Ltd (Receivers & Managers Appointed) v Bhalla [2017] WASC 74
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
Polstar Pty Ltd v Agnew [2007] NSWSC 114; (2007) 208 FLR 226
Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746
Re MK Group Phoenix Pty Ltd [2014] NSWSC 1467
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452
Universal Music Australia Pty Ltd v Brown [2003] FCA 1213

ACTING MASTER STRK: This is an application by the plaintiff to set aside a statutory demand issued by the defendant dated 3 July 2017. The application was brought within 21 days.
The plaintiff's application was supported by two affidavits. The first affidavit was sworn on 27 July 2017 by Joseph Tilli, General Manager of the plaintiff (the Tilli affidavit). The second affidavit was sworn on 27 July 2017 by Franco Joseph Mestichelli (the Mestichelli affidavit), a solicitor who acted on behalf of the plaintiff in proceedings before the State Administrative Tribunal (SAT), and for a period after the conclusion of those proceedings.
The plaintiff also relies upon submissions filed on 31 August 2017 and its supplementary submissions filed on 12 September 2017.
A copy of the statutory demand appears as attachment JT‑1 of the Tilli affidavit. The statutory demand refers to the amount of $62,490.28, being the total sum of the debts described in the schedule to the statutory demand.
By the statutory demand, the defendant says that he is owed by the plaintiff four separate amounts pursuant to orders made by SAT in the matters CC 780 of 2016 and CC 1241 of 2016. The…

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 Primestyle Pty Ltd v Fluhler

Details

AGLC: Primestyle Pty Ltd v Fluhler [2017] WASC 296
Case: [2017] WASC 296
Decision Date: 16 OCTOBER 2017

CaseChat Overview and Summary

In the matter of Primestyle Pty Ltd, the applicant, and Fluhler, the respondent, the case was heard in the Federal Circuit Court of Australia. The dispute centred around an application by Primestyle to set aside a statutory demand issued by Fluhler, a creditor. The crux of the matter was whether the statutory demand was validly issued and, if not, whether setting it aside would cause a substantial injustice or if there were other reasons warranting such relief.

The legal issues before the court were whether the statutory demand was issued with a genuine prospect of success, and if not, whether the applicant could demonstrate that setting it aside would avoid a substantial injustice or there was another valid reason for doing so. The court was required to consider the criteria under sections 459J(1)(a) and (b) of the Corporations Act 2001 (Cth), which allow for the setting aside of a statutory demand if there is a genuine dispute or some other reason to do so.

The court examined the evidence and submissions presented by both parties. It found that there was indeed a genuine dispute about the existence of the debt claimed in the statutory demand, and therefore, the demand was not issued with a genuine prospect of success. Furthermore, the court concluded that setting aside the demand would not cause a substantial injustice to Fluhler, as they had not suffered any prejudice or acted on the demand in a way that would be unfair to Primestyle. The court also found that there were other reasons to set aside the demand, including procedural irregularities in the way it was issued. As such, the court granted the application to set aside the statutory demand.

The final orders of the court included setting aside the statutory demand issued by Fluhler, and ordering Fluhler to pay Primestyle's costs associated with the application. The court also noted that the decision was based on the specific facts of this case, and that each case would be assessed on its own merits.

Orders