Pyramid Building Society (In Liquidation) v Bakgammon Developments P/L

[1993] FCA 867

S7 5'3

JUDGMENT No. ..,.,..,,...w.I .,,, ...... ,.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	No VG 3258 of 1993
GENERAL DIVISION
B E T W E E N :

PYRAMID BUILDING SOCIETY (IN LIOUIDATIONl

Applicant

A N D :

BAKGAMMON DEVELOPMENTS PTY LTD

Respondent

,

COURT :	NORTHROP J
PLACE :	MELBOURNE
-	DATE :	10 NOVEMBER 1993

EX TEMPORE REASONS FOR JUDGMENT

I propose to make the order as sought. I am satisfied

that the absence of the word "or" in the statutory notice is a
defect but, having regard to the provisions of sections 4596,
459J and 4598 of the Corporations Law, the application and the
fact that the company has not taken any steps to have the
statutory demand set aside or to oppose the making of the

(a)	in any case - a defect or irregularity in connection with the application;
(b)	in the case of an application for a company to be wound up in insolvency - a defect in a statutory
demand;

order, s467A is sufficient authority for the Court to make the
order. That section is rather novel. It is of importance.

It provides:

"467A An application under Part 5.4 or 5.4A must

not be dismissed merely because of one or more of the
following:

unless the Court is satisfied that substantial injustice
has been caused that cannot otherwise be remedied (for

example, by an adjournment or an order for costs)."

In the present case, the absence of the "or" in the

appropriate place in the statutory demand is a defect in the
statutory demand. By analogy with a bankruptcy notice it is a
defect or irregularity not to be cured under the provisions of

the Bankruptcy Act 1966. The existence of s467A imposes an

obligation on the Court. ere, the defect in the statutory

demand is in the case of an application for a company to be

wound up in insolvency; paragraph 467A(b).	I am satisfied
that substantial injustice has not been caused.	In the

circumstances the defect in the statutory demand is such that
it does not prevent the Court from making the order sought.

In fact the Court must make that order.

Accordingly, the Court orders that:

1. Bakgammon Developments Pty Ltd be wound up under the

provisions of the Corporations Law;

1. M r Michael J Humphris of Messrs Arthur Andersen and CO,

   360 Elizabeth Street, Melbourne, official liquidator, be

   appointed the liquidator of the company;

2. the applicant's costs be taxed and be reimbursed under sub-section 466(2) of the Corporations Law.

I certify that this and the preceding two (2) pages are a true copy of the Ex Tempore Reasons for Judgment of The Honourable

M r Justice R.M. Northrop.

Associate:

Date:  &&&QP' 1443