Re Glenevan Pty Ltd - [2015] NSWSC 201

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Glenevan Pty Ltd [2015] NSWSC 201
Hearing dates: 23 February 2015
Date of orders: 23 February 2015
Decision date: 23 February 2015
Jurisdiction: Equity Division - Corporations List
Before: Brereton J
Decision:
Defendant be wound up in insolvency.

Catchwords: CORPORATIONS – winding up – winding up in insolvency where no application to set aside creditor’s statutory demand – where statutory demand fails to specify correct address for service of creditor – whether failure invalidates statutory demand – where other options for service available – held, not invalid – where defence founded on purported “affidavit/commercial lien” – held, spurious legal nonsense
Legislation Cited: (Cth) Corporations Act 2001, s 459E, s 459G
Cases Cited: Everkind Pty Ltd v Hazenforn Pty Ltd [2010] NSWSC 1031
Re International Materials & Technologies Pty Ltd [2013] NSWSC 787; (2013) 282 FLR 362
Category: Principal judgment
Parties: Deputy Commission of Taxation (plaintiff)
Glenevan Pty Ltd (defendant)
Representation:
Counsel:
D Hume (plaintiff)
T Evans (in person) (defendant)
Solicitors:
Australian Government Solicitor (plaintiff)

File Number(s): 2014/342414

Judgment (ex tempore)

HIS HONOUR: By an originating process filed on 20 November 2014, the Deputy Commissioner of Taxation as plaintiff seeks an order that the defendant company Glenevan Pty Limited be wound up in insolvency and a liquidator appointed.
The application relies on the defendant’s failure to comply with a creditor's statutory demand dated 20 October 2014 which the affidavit of Belinda Taylor sworn 20 October 2014 proves was that day served by post on the defendant by posting it to its registered office at 19 Stanley Street, Wodonga, in the State of Victoria by ordinary prepaid post. The creditor’s statutory demand demands payment of a debt of $100,951.14, being the total of the amount of debts described in the schedule to the demand, which comprise taxation debts on running balance account and superannuation guarantee charge.
Paragraph 1 of the creditor’s statutory demand says:

The company owes the Deputy Commissioner of Taxation of 14 Mason Street, Dandenong ("the creditor") the amount of $100,951.14...

Paragraph 6, however, states:

the address of the creditor for service of copies of any application and affidavit is ATO Review and Dispute Resolution, level 15, 52 Goulburn Street, Sydney NSW 2000.

As the registered office of the company was in Victoria and as the demand was to be served on the company in Victoria, the prescribed form 509H for a creditor's statutory demand required that paragraph 6 specify an address for service of the creditor in the State in Victoria, that being the state in which the demand was to be served on the company. It did not do so.
The question is whether that invalidates the demand, as I have held that in some circumstances at least it does: see Re International Materials & Technologies Pty Ltd [2013] NSWSC 787; (2013) 282 FLR 362, [16]-[21]. In Re International Materials & Technologies, the demand was served on the company in New South…

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 Glenevan Pty Ltd

Details

AGLC: Re Glenevan Pty Ltd [2015] NSWSC 201
Case: [2015] NSWSC 201
Decision Date: 23 February 2015

CaseChat Overview and Summary

In this matter, the liquidator of Glenevan Pty Ltd sought to wind up the company on the grounds of insolvency. The company did not apply to set aside the statutory demand issued by the creditor, instead arguing that the demand was invalid because it did not specify the correct address for service. The dispute came before the Supreme Court of New South Wales. The primary legal issue was whether the failure to specify the correct address for service invalidated the statutory demand, given that other options for service were available. Another issue was whether the defence based on a purported "affidavit/commercial lien" had any legal basis.

The court held that the failure to specify the correct address for service did not invalidate the statutory demand. The court found that the demand was still valid because it contained sufficient details to allow the company to ascertain the identity of the creditor and the basis for the claim. The court also dismissed the defence based on the purported "affidavit/commercial lien" as spurious legal nonsense. The court found that there was no legal basis for such a defence, and it was not a recognised legal principle in Australian law. As a result, the court found in favour of the liquidator and ordered the winding up of the company.

The court's reasoning was based on well-established legal principles regarding statutory demands and winding up orders. The court found that the statutory demand was valid and that the company had failed to provide a valid defence to the winding up application. The court also noted that the purported "affidavit/commercial lien" defence had no legal basis and was not a recognised legal principle in Australian law. The court's decision was consistent with previous cases on the validity of statutory demands and the requirements for a valid defence to a winding up application. The final order of the court was that the company be wound up and that the liquidator be appointed as the liquidator of the company.

Orders