In the matter of Crowe Consulting Pty Ltd [2019] NSWSC 1414
Hearing dates:
9 October 2019
Decision date:
18 October 2019
Before:
Gleeson J
Decision:
(1) The statutory demand dated 19 July 2019 served on the plaintiff by the defendant be set aside.
(2) The defendant to pay the plaintiff’s costs of the proceedings.
Catchwords:
CORPORATIONS – statutory demand – application to set aside statutory demand – service by express post – where dispute as to timing of delivery – whether application to set aside out of time – interaction of s 109X of Corporations Act 2001 (Cth), s 29 of Acts Interpretation Act 1901 (Cth), and s 160 of Evidence Act 1995 (NSW) – existence of a genuine dispute – debt based on alleged agreement – whether plausible contention that no concluded agreement
Crowe Consulting Pty Ltd (Plaintiff) K M Management…
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.
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AGLC
In the matter of Crowe Consulting Pty Ltd [2019] NSWSC 1414
Case
[2019] NSWSC 1414
Decision Date
CaseChat Overview and Summary
Crowe Consulting Pty Ltd was the subject of a statutory demand by an entity asserting a debt. The company sought to set aside the statutory demand, arguing that it had not been served correctly. The dispute centred on whether the statutory demand had been delivered by express post on the date claimed, a matter that was contested. The Federal Court was tasked with resolving this issue and determining if the application to set aside the statutory demand was timely.
The primary legal issues before the court were whether the statutory demand was validly served and if the application to set aside the demand was filed within the prescribed time limits. The court needed to consider the interaction between sections 109X, 29, and 160 of the relevant Acts. Specifically, the court had to assess if there was a genuine dispute about the service date and if the contention that no concluded agreement existed was plausible enough to warrant setting aside the demand.
In its reasoning, the court found that there was indeed a genuine dispute over the timing of the delivery of the statutory demand. The court held that the application to set aside the demand was not out of time as it was filed within the statutory period. The court found that the defendant had presented a plausible contention that there was no concluded agreement, which justified setting aside the demand. Consequently, the application to set aside the statutory demand was successful.
The court ordered that the statutory demand be set aside and that the creditor pay Crowe Consulting's costs of the application. This outcome hinged on the court's ability to discern a genuine dispute over the service date and the credibility of the defendant's contention regarding the alleged agreement.