Randall Pty Ltd v Chepan Pty Ltd - [2009] NSWSC 783

Reported Decision:
73 ACSR 267

New South Wales

Supreme Court

CITATION: Randall v Chepan [2009] NSWSC 783

HEARING DATE(S): 03/08/09

JUDGMENT DATE :
4 August 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 4 August 2009

DECISION: Order that the originating process be dismissed with costs. Exhibits may be returned after 28 days.

CATCHWORDS: Application to set aside statutory demand under s 459J Corporations Act 2001 (Cth) – omission of required warning constituted defect in the demand – no injustice caused by defect – failure of all joint creditors to sign the demand did not constitute a defect – application dismissed

LEGISLATION CITED: Corporations Act 2001 (Cth)
Conveyancing Act 1919 (NSW)

CASES CITED: Kallinicos & Anor v Hunt & Ors [2008] NSWSC 149
Hunt & Anor v Kallinicos & Ors [2009] NSWCA 5
David Grant & Co Pty Ltd v Westpac Banking Corp [1995] HCA 43; (1995) 184 CLR 265
Chief Commissioner of Stamp Duties v Paliflex Pty Ltd [1999] NSWSC 15; (1999) 149 FLR 179
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 13 ACSR 525
Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 14 ACLC 1095
Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229;
K Young Trading Pty Ltd v Tjoi [2009] NSWSC 260
Manzo v 555/255 Pitt Street Pty Ltd (1990) 21 NSWLR 1
Bentham Management Pty Ltd v Union Finance Pty Ltd [2007] SASC 42
Australian Workers' Union v Bowen (1946) 72 CLR 575
Quitstar Pty Ltd v Cooline Pacific Pty Ltd [2003] NSWCA 359; (2003) 48 ACSR 222
Jacomb v Harwood (1751) 2 Ves Sen 265; (1751) 28 ER 544
Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492; [1910] HCA 44
Exception Holdings Pty Ltd (in liq) v Albarran [2005] NSWSC 677; (2005) 23 ACLC 1270
Johnson v Trotter [2006] NSWSC 67

TEXTS CITED: Farid Assaf, Statutory Demands: Law and Practice, (2008) LexisNexis Butterworths

PARTIES: Randall Pty Ltd
v
Chepan Pty Ltd & Anor

FILE NUMBER(S): SC 2219/09

COUNSEL: Plaintiff: M Pesman
Defendant: G Burton SC

SOLICITORS: Plaintiff: n/a
Defendant: Konstan Lawyers

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

WHITE J

Tuesday, 4 August 2009

2219/09 Randall Pty Ltd v Chepan Pty Ltd & Anor

JUDGMENT

: This is an application to set aside a statutory demand. The plaintiff does not contend that the demand should be set aside pursuant to s 459H of the Corporations Act 2001 (Cth) on the ground that there is a genuine dispute as to the debt. The application is based on s 459J which provides:

“ 459J Setting aside demand on other grounds

(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

(a) because of a defect…

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.

Keep reading for free

Create a free CaseChat account to read Randall Pty Ltd v Chepan Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 783
Decision Date: 4 August 2009

CaseChat Overview and Summary

The applicants, Randall Pty Ltd, sought to set aside a statutory demand issued by the respondent, Chepan Pty Ltd, under section 459J of the Corporations Act 2001 (Cth). The statutory demand required Randall to pay a debt of $20,000, plus interest and costs, within 21 days. The dispute centred on whether the statutory demand was valid and enforceable, given alleged procedural errors in its issuance.

The court was required to determine whether the statutory demand contained all the necessary information, including the warning required under the Act, and whether the failure of all joint creditors to sign the demand constituted a defect. Additionally, the court had to assess whether the procedural errors caused any injustice to the applicants, which could justify setting aside the demand.

The court found that the statutory demand omitted the required warning, constituting a defect. However, the omission did not cause any injustice to the applicants as they were aware of the demand and had the opportunity to dispute the debt. Furthermore, the court held that the failure of all joint creditors to sign the demand did not constitute a defect. Consequently, the application to set aside the statutory demand was dismissed.

No additional orders were made beyond the dismissal of the application to set aside the statutory demand.

Orders