CITATION: Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848 HEARING DATE(S): 17/08/09
JUDGMENT DATE :
17 August 2009JURISDICTION: Equity Division
Corporations ListJUDGMENT OF: Barrett J EX TEMPORE JUDGMENT DATE: 17 August 2009 DECISION: Application for extension of time dismissed with costs. CATCHWORDS: CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand dismissed - plaintiff seeks extension of time for compliance on basis of intention to appeal - whether arguable case on appeal shown - absence from demand of warning obviously addressed to recipient company and drawing attention to need to deal with statutory demand - particular demand dealt with by recipient company within time - argument that injustice will be occasioned to all companies if particular defective demand not set aside - no arguable case on appeal - extension of time for compliance refused LEGISLATION CITED: Corporations Act 2001 (Cth), ss 9, 459F(2)(a)(i), 459G, 459J(1)(a), 459S
Corporations Amendment Regulations 2007 (No 13)CATEGORY: Principal judgment CASES CITED: Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544
Jem Devlopments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393
Randall Pty Ltd v Chapan Pty Ltd [2009] NSWSC 791
Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 783PARTIES: Randall Pty Limited - Plaintiff
Chepan Pty Limited - First Defendant
Angela Kallinicos - Second DefendantFILE NUMBER(S): SC 2219/09 COUNSEL: Mr M R Pesman - Plaintiff
Mr G K Burton SC - DefendantSOLICITORS: Moloney Lawyers - Plaintiff
Konstan Lawyers - Defendants
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST
BARRETT J
MONDAY 17 AUGUST 2009
2219/09 RANDALL PTY LIMITED v CHEPAN PTY LIMITED & ANOR
JUDGMENT
1 I am dealing with the plaintiff’s application under s 459F(2)(a)(i) of the Corporations Act 2001 (Cth) for an order extending the time for compliance with a statutory demand served on it by the defendant. A like application was made last Monday and resulted in an extension of time on a temporary basis up to today: Randall Pty Ltd v ChapanPty Ltd [2009] NSWSC 791.
2 The renewed application now before me is advanced on the footing that the plaintiff intends to appeal against the order dismissing its s 459G application in respect of the statutory demand. That order was made by White J on 4 August 2009: Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 783.
3 Both parties have addressed the current application on the basis that the approach that the court should take is that indicated in Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877; (2004) 50 ACSR 544 and Jem Devlopments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393.
4 The first matter to consider, therefore, is the prospects of success in the proposed appeal and whether an…
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- AGLC
- Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848
- Case
- [2009] NSWSC 848
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CaseChat Overview and Summary
The court also dismissed Chepan's argument that it would be unjust to all companies if the particular defective demand was not set aside. The court held that the absence of the warning did not render the demand invalid, and that Chepan had failed to show that it would suffer any injustice if the demand was not set aside. The court emphasised that the warning was an important element for the recipient company to consider, but its absence did not necessarily mean that the demand was invalid. The court held that Chepan had not shown an arguable case on appeal, and therefore refused the application for an extension of time. The orders of the primary judge were affirmed.
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