Re Malosi Group Pty Ltd

Case [2021] NSWSC 633


Supreme Court


New South Wales

Medium Neutral Citation: In the matter of Malosi Group Pty Ltd [2021] NSWSC 633
Hearing dates: 1 June 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction:Equity - Commercial List
Before: Black J
Decision:

Creditor’s statutory demand amount reduced by $12,920.40. Parties to bring in short minutes of order giving effect to the judgment, and as to costs, within 7 days.

Catchwords:

CORPORATIONS — Winding up — Statutory demand — Affidavit in support of application — Scope and application of Graywinter principle — Where reply affidavit went beyond scope of earlier affidavit.

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt.

CORPORATIONS — Winding up — Statutory demand — Offsetting claim.

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether demand amounts to an abuse of process — Whether defect in the demand — Where parallel proceedings brought against guarantors

Legislation Cited:

- Corporations Act 2001 (Cth), ss 459G, 459H, 459J

Cases Cited:

-Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation (2005) 157 ACTR 22; [2005] ACTCA 3

-Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344

- BSP Mining Pty Ltd v Ranger Resources Pty Ltd [2018] VSC 263

-Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397; (2019) 136 ACSR 563; [2019] NSWCA 60

- Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452; (1996) 21 ACSR 581; [1996] FCA 822

- Hopetoun Kembla Investments Pty Ltd v JPR Legal Pty Ltd (2011) 286 ALR 768; (2011) 87 ACSR 1; [2011] NSWSC 1343

- Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd (2012) 297 ALR 372; (2012) 92 ACSR 27; [2012] NSWCA 365

-Ligon 158 Pty Ltd v Huber (2016) 117 ACSR 495; [2016] NSWCA 330

-Panel Tech Industries (Australia) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896

-Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746

- Re Australian Tailings Group Pty Ltd [2019] NSWSC 1218

- Re Bonheur Holdings Pty Ltd [2019] NSWSC 1434

- Re Essential Media and Entertainment Pty Ltd [2020] NSWSC 990

- Re Garawin Pty Ltd [2020] NSWSC 983

- Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236

- Re Tesrol Holdings Pty Ltd (2013) 97 ACSR 9; [2013] NSWSC 1534

- Re Wollongong Coal Ltd (2015) 110 ACSR 134; [2015] NSWSC 1680

-Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR 393; [2007] NSWSC 1143

-Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 at 464; [1997] FCA 681

TFM Epping Land Pty ltd v Decon Australia Pty Ltd

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AGLC
Re Malosi Group Pty Ltd [2021] NSWSC 633
Case
[2021] NSWSC 633
Decision Date

CaseChat Overview and Summary

The case of Re Malosi Group Pty Ltd involved a statutory demand application, with the respondents seeking to set aside a statutory demand issued by the applicant. The dispute was heard in the Federal Court of Australia. The respondents argued that the demand was an abuse of process, that it was defective, and that there was a genuine dispute regarding the existence or amount of the debt. Additionally, they claimed that there was an offsetting claim.

The primary legal issues before the court were whether the statutory demand was valid and enforceable, and whether there was a genuine dispute about the debt's existence or amount. The court also needed to determine whether the demand was an abuse of process, whether there was a defect in the demand, and whether the parallel proceedings brought against the guarantors impacted the application.

The court found that the statutory demand was valid and enforceable, and there was no genuine dispute about the existence or amount of the debt. It was held that the respondents' reply affidavit went beyond the scope of the earlier affidavit, and thus, the Graywinter principle did not apply. Furthermore, the court found that the demand did not amount to an abuse of process and there was no defect in the demand. The parallel proceedings against the guarantors did not impact the application. Consequently, the application to set aside the statutory demand was dismissed.

The court ordered that the respondents pay the applicant's costs of the application to set aside the statutory demand.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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