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Re Edifice Australia Pty Ltd

Re Edifice Australia Pty Ltd

Case [2017] NSWSC 1620 20 November 2017

Winding Up & Liquidation

Statutory Demand

Estoppel

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Edifice Australia Pty Ltd [2017] NSWSC 1620
Hearing dates: 20 November 2017
Decision date: 20 November 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Order that the creditor’s statutory demand issued by the Defendant on 5 September 2017 be varied by substituting the sum of $39,899.77 for the sum of $51,899.77 as the total amount of the debt and that the proceedings otherwise be dismissed with costs.

Catchwords:
CORPORATIONS — Winding up — Statutory demand — Application to set aside – where application seeks to set aside demand for some other reason – where instalment order had been made in respect of debt – whether instalment order ceased to have effect by reason of non-compliance – whether application filed and served within time
ESTOPPEL — Estoppel by representation — where Plaintiff’s assertion as to date of service of creditor’s statutory demand not contradicted by Defendant in solicitors’ correspondence – whether assertion was misapprehension or contention – whether Defendant obliged to respond – whether Defendant estopped – whether estoppel can found Court’s jurisdiction where it is otherwise absent
Legislation Cited: - Corporations Act 2001 (Cth), Pt 5.4, ss 459G–459H, 459J(1)(b)
- Evidence Act 1995 (NSW), s 160
- Uniform Civil Procedure Rules 2005 (NSW), rr 37.6–37.7
Cases Cited: - Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
- David Grant & Co Pty Ltd (rec apptd) v Westpac Banking Corp [1995] HCA 43; (1995) 184 CLR 265; 18 ACSR 225
- Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
- Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262
- Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229
- Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577
- Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746
- Re Boss Engineering (NSW) Pty Ltd [2017] NSWSC 1334
- Re Futre Developments Pty Ltd [2014] NSWSC 1712
- Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055
- Timberland Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd [2011] NSWSC 466
- Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Category: Principal judgment
Parties: Edifice Australia Pty Ltd (Plaintiff)
AFM Masonry Pty Ltd (Defendant)
Representation:
Counsel:
A J Patterson (Solicitor – Plaintiff)
M Fernandes (Defendant)
Solicitors:
Gardner Ekes Lawyers (Plaintiff)
Sachs Gerace Broome Lawyers (Defendant)

File Number(s): 2017/293926

Judgment – ex tempore

Nature of the application and affidavit evidence

This is an application to set aside a creditor's statutory demand which was filed on 28 September 2017 by Edifice Australia Pty Ltd ("Company") in respect of a creditor's statutory demand dated 5 September 2017 (“Demand”) issued by AFM Masonry Pty Ltd ("AFM"). I will first refer to the nature of the Demand and then to the affidavit evidence led in 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 Re Edifice Australia Pty Ltd

Details

AGLC: In the matter of Edifice Australia Pty Ltd [2017] NSWSC 1620
Case: [2017] NSWSC 1620
Decision Date: 20 November 2017

CaseChat Overview and Summary

In the case of Re Edifice Australia Pty Ltd, the dispute involved a statutory demand that was issued by a creditor seeking the winding up of a company. The matter was brought before the Court, which had to decide whether the application to set aside the statutory demand was valid and whether the company's response to the demand was timely and in compliance with the relevant legal provisions. The company had argued that the demand should be set aside on grounds other than non-payment, and the Court had to determine if the company had complied with an instalment order made in respect of the debt. Additionally, the Court had to consider whether the company's failure to comply with the instalment order rendered it unable to challenge the statutory demand within the statutory time limit.

The primary legal issues before the Court were whether the application to set aside the statutory demand was filed and served within the required time frame, and whether the company was estopped from contesting the demand due to representations made by its solicitors. The Court had to assess whether the company's solicitors' correspondence amounted to a representation that could bind the company, and whether this representation could estop the company from denying the service date of the statutory demand. Furthermore, the Court needed to determine whether the company could rely on estoppel to found the Court's jurisdiction when it might otherwise be absent.

The Court held that the application to set aside the statutory demand was not filed and served within the statutory time limit, and that the company was not estopped from contesting the demand. The Court found that the solicitors' correspondence did not constitute a representation that could bind the company, and therefore, the company was not estopped from denying the service date of the statutory demand. Additionally, the Court ruled that the company's failure to comply with the instalment order rendered it unable to challenge the statutory demand within the statutory time limit. As a result, the Court dismissed the company's application to set aside the statutory demand. The Court further held that the company could not rely on estoppel to found its jurisdiction where it might otherwise be absent.

Orders