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Re International Materials & Technologies Pty Ltd

Re International Materials & Technologies Pty Ltd

Case [2013] NSWSC 787 11 July 2013

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of International Materials & Technologies Pty Limited [2013] NSWSC 787
Hearing dates: 11 July 2013
Decision date: 11 July 2013
Jurisdiction: Equity Division - Corporations List
Before: Brereton J
Decision:
Creditor's statutory demand for payment dated 3 April 2013 served by the defendant on the plaintiff is null and void. Defendant to pay plaintiff's costs in the sum of $5,000.

Catchwords: CORPORATIONS - insolvency and winding up - where creditor's statutory demand served in New South Wales - where demand specified address for service in Victoria - where necessary for debtor company to comply with Service and Execution of Process Act 1992 - whether statutory demand so defective as to be a nullity- statutory demand null and void
Legislation Cited: (Cth) Corporations Act 2001 s 459E, s 459G, s 459H, s 459J, s 109X
(Cth) Service and Execution of Process Act 1992 s 9, s 15, s 55
Cases Cited: Beralt Pty Ltd v Joe Battaglia Plastering Pty Ltd [2001] 1 Qd R 232
Elan Copra Trading Pty Ltd v JK International Pty Ltd (2005) 56 ACSR 416
Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd [2008] NSWSC 1139
Everkind Pty Limited v Hazenforn Pty Ltd [2010] NSWSC 1031
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd [2006] NSWCA 259
Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 19 ACSR 429
Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 Vicbar Pty Ltd v Development Constructions (Newcastle) Pty Ltd (1995) 13 ACLC 1220 Crema (Vic) Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (2006) 58 ACSR 631
Re Marlan Financial Services Pty Ltd (1999) 33 ACSR 259
Sheslow v Diamond Rose (2005) 54 ACSR 376
Spencer v Bamber [2012] NSWCA 274
Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226
Ultimate Manufacturing Pty Ltd v Lyell Morris Pty Ltd (1995) 13 ACLC 1268
World Square Realty Pty Ltd [2013] NSWSC 307
Category: Principal judgment
Parties: International Materials & Technologies Pty Ltd (plaintiff)
Hougen Australia Pty Ltd (defendant)
Representation: Counsel:
V Culkoff (plaintiff)
A Kaufmann (defendant)
Solicitors:
Russo Salvatore (plaintiff)
Kalus Kerry Intelex Solicitors (defendant)

File Number(s): 2013/133148

Judgment (ex tempore)

HIS HONOUR: By originating process filed on 30 April 2013, the plaintiff International Materials & Technologies Pty Ltd seeks relief under (Cth) Corporations Act 2001, s 459G setting aside a creditor's statutory demand dated 3 April 2013 and served on it by the defendant Hougen Australia Pty Ltd.

The demand claimed a debt of US$161,698.13 and was accompanied by an affidavit of Sven Burchartz, a director of the defendant. The demand was addressed to the plaintiff at an address in Sydney in the State of New South Wales. Although the evidence does not seem otherwise to establish it, I infer that that was the registered office…

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 International Materials & Technologies Pty Ltd

Details

AGLC: Re International Materials & Technologies Pty Ltd [2013] NSWSC 787
Case: [2013] NSWSC 787
Decision Date: 11 July 2013

CaseChat Overview and Summary

The case of Re International Materials & Technologies Pty Ltd involves a creditor who issued a statutory demand to the debtor company, International Materials & Technologies Pty Ltd, in New South Wales. The demand was served at an address in Victoria, where the debtor company was not registered to receive service of legal documents. The issue at hand was whether this defect rendered the statutory demand null and void, given that the Service and Execution of Process Act 1992 (Vic) required service at an address in Victoria for the debtor company to be legally valid. The central legal issue was whether the statutory demand was so fundamentally flawed that it was ineffective, potentially affecting the creditor's ability to proceed with winding up the debtor company.

The court considered whether the statutory demand was defective due to the incorrect address for service specified in the demand. It examined the provisions of the Corporations Act 2001 (Cth) and the Service and Execution of Process Act 1992 (Vic) to determine the requirements for a valid statutory demand. The court found that the statutory demand was null and void because the address for service did not comply with the legal requirements for the debtor company, which was registered in Victoria. This non-compliance meant that the debtor company had not been properly served, and therefore, the statutory demand could not be considered valid.

In conclusion, the court ruled that the statutory demand was indeed null and void due to the incorrect address for service. This decision underscores the importance of strict compliance with service requirements under both federal and state legislation to ensure the validity of statutory demands. As a result, the creditor's attempt to wind up the debtor company based on the invalid statutory demand was unsuccessful. The court's ruling effectively terminated the creditor's action, leaving the debtor company's financial status unaffected by the void demand.

Orders