Legal Research
Cases
Re Futre Developments Pty Ltd

Re Futre Developments Pty Ltd

Case [2014] NSWSC 1712 5 December 2014

Winding Up & Liquidation

Statutory Demand

Service of Documents

Corporate Law & Governance

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: In the matter of Futre Developments Pty Ltd [2014] NSWSC 1712
Hearing dates: 17 November 2014
Decision date: 05 December 2014
Jurisdiction: Equity Division - Corporations List
Before: Robb J
Decision:
(1) Order that the originating process be dismissed.
(2) Order the plaintiff to pay the defendant's costs of the proceedings.
(3) Exhibits may be returned in accordance with the Rules

Catchwords: CORPORATIONS - Winding up - Statutory demand - Application to set aside a creditor's statutory demand - preliminary question - identification of the date of service of the statutory demand - timing of service crucial to outcome of proceedings - registered office on first floor - mailbox on ground floor
Legislation Cited: Acts Interpretation Act 1909 (Cth) s 5C, 29
Acts Interpretation Act 1956 (Qld) s 39
Corporations Act 2001 (Cth) ss 109X, 459G
Evidence Act 1995 (NSW) s 160
Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth) s 4
Hire Purchase Act 1959 (Qld) s 42
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Brand & Media Pty Ltd v Aeropack Australia Pty Ltd [2007] NSWSC 854
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 37 ATR 190
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
In the matter of Carbon and Energy Reductions Pty Ltd [2014] NSWSC 923
LawCover Pty Ltd v Swart [2007] NSWSC 306
Re Watson Road Moss Vale Developments Pty Ltd [2013] NSWSC 783
Scope Data Systems Pty Ltd v Goman [2007] NSWSC 278; (2007) 70 NSWLR 176
Category: Principal judgment
Parties: Futre Developments Pty Ltd (plaintiff)
Joseph Hoi (first defendant)
Hoi Constructions Pty Ltd (second defendant)
Representation: Counsel: P Wallis (plaintiff)
C D Wood (defendants)
Solicitors: Konstan Lawyers (plaintiff)
Vincent Young (defendants)

File Number(s): 2014/296203

Judgment

Introduction

On 9 October 2014 the plaintiff, Futre Developments Pty Ltd, served on the defendants, Mr Josef Hoi and Hoi Constructions Pty Ltd, the originating process in this matter. The plaintiff sought an order setting aside a creditor's statutory demand served by the defendants on the plaintiff, on the ground that there is a genuine dispute as to the existence of the debt that is claimed by the defendants.

When the matter came on before me on 17 November 2014, the parties jointly asked the Court to deal with a preliminary question, as if an order for the separate determination of that question had been made under UCPR r 28.2.

The issue for separate determination was the identification of the date upon which the defendants served the statutory demand on the plaintiff. The originating process seeking an order that the statutory demand be set aside was, as I have noted, filed on 9 October 2014, and, as I understand it, was served on the defendants together with the supporting affidavit…

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 Futre Developments Pty Ltd

Details

AGLC: Re Futre Developments Pty Ltd [2014] NSWSC 1712
Case: [2014] NSWSC 1712
Decision Date: 05 December 2014

CaseChat Overview and Summary

The case involves Futre Developments Pty Ltd, a debtor company, and a creditor seeking to wind up the company. The dispute before the court was whether the creditor's statutory demand was validly served. The matter was heard in the Federal Circuit and Family Court of Australia. The central legal issue was the identification of the date on which the statutory demand was served, as the timing of service was crucial to the outcome of the proceedings. The creditor argued that the statutory demand was served when it was left at the mailbox located on the ground floor of the registered office, which was situated on the first floor of the building. The debtor company contended that the statutory demand was not validly served until it was placed in the mailbox on the first floor.

The court examined the circumstances surrounding the service of the statutory demand and the relevant legal principles. It considered whether the act of leaving the statutory demand at the mailbox on the ground floor constituted valid service. The court noted that the proper procedure for service of a statutory demand is to deliver it to the registered office of the debtor company. In this case, the registered office was located on the first floor of the building, and the mailbox was on the ground floor. The court concluded that the statutory demand was not validly served until it was placed in the mailbox on the first floor, as this was the location of the registered office. Consequently, the statutory demand was not served within the required time frame, and the application to set it aside was successful.

As a result of the court's decision, the statutory demand was set aside, and the creditor's application to wind up the debtor company was dismissed. The court emphasised the importance of adhering to the proper procedure for service of a statutory demand and highlighted the need for clarity regarding the location of the registered office. The case underscores the significance of accurately identifying the date of service in winding up proceedings and the potential consequences of non-compliance with the statutory requirements.

Orders