Legal Research
Cases
Re Pacific Mobile Phones Pty Ltd

Re Pacific Mobile Phones Pty Ltd

Link copied

Case Copied 20 August 2008 18 min read

Contents

On this page

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Pacific Mobile Phones Pty Ltd [2008] QSC 210

PARTIES:

COMMONWEALTH BROADCASTING CORPORATION PTY LTD

(applicant)

V

PACIFIC MOBILE PHONES PTY LTD

ACN 080 259 730

(respondent)

FILE NO/S:

5908 of 2008

DIVISION:

Trial Division

PROCEEDING:

Winding-up application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2008

JUDGE:

White J

ORDER:

The application to wind-up the respondent in deemed insolvency is dismissed.

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – PROCEDURAL REQUIREMENTS – SERVICE OF APPLICATION – the applicant’s solicitors attempted to serve a statutory demand to the ASIC registered office of the respondent – the respondent was no longer at that address and had attempted to change the ASIC record – the envelope in which the demand was sent was returned to the applicant marked “Left Address/Unknown” – there was no public access to the building in which the registered office was situated – whether the statutory demand was delivered to the Respondent

CORPORATIONS – WINDING UP – APPLICATIONS FOR WINDING UP BY COURT – PROCEDURE – DISMISSAL, STAY OR RESTRAINT OF PROCEEDINGS – ABUSE OF PROCESS – a winding up application was brought by the applicant despite knowledge that the statutory demand had not come to the actual notice of the respondent – the applicant persisted with the application even though the default judgment on which it was based had been set aside - whether there had been an abuse of process

CORPORATIONS – WINDING UP – APPLICATIONS FOR WINDING UP BY COURT – PROCEDURE – LEAVE TO OPPOSE WINDING-UP APPLICATION – whether there is a genuine dispute about the debt – whether the respondent is solvent

Acts Interpretation Act 1901 (Cth) s 29
Corporations Act 2001 (Cth), s 109X, s 459P, s 459S

Braams Group Pty Ltd v Miric [2002] NSWCA 417, cited
CGU Workers’ Compensation (Victoria) Ltd v Carousel Bar Pty Ltd [1999] VSC 227, cited
Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075, cited
David Grant & Co. Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, cited
Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354, cited
Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2005] SASC 48, cited
Expile Pty Ltd v Jabb’s Excavations Pty Limited [2003] NSWSC 96, cited
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, cited
F P Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd (1993) 12 ACSR 136, cited.
Perpetual Nominees v Masri Apartments Pty Ltd [2004] NSWSC 551, followed
R v County of London Quarter Sessions Appeals Committee; ex parte Rossi [1956] 1 QB 682, cited
Re: Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559, cited
Williams v Spautz (1991-1992) 174 CLR 509, cited

COUNSEL:

Mr C Coulsen for the applicant

Mr C Wilson for the respondent

SOLICITORS:

Hall Lawyers for the applicant

DLA Phillips Fox for the respondent

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.

Keep reading for free

Create a free CaseChat account to read Re Pacific Mobile Phones Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QSC 210
Decision Date: 20 August 2008

CaseChat Overview and Summary

In the case of Re Pacific Mobile Phones Pty Ltd, the dispute revolved around the procedural aspects of winding up a company in insolvency. The applicant, who was a creditor of the respondent, Pacific Mobile Phones Pty Ltd, sought to wind up the respondent by court order on the basis of a statutory demand. The crux of the case lay in whether the statutory demand was correctly served on the respondent and whether the applicant's persistence with the winding up application, despite knowing that the statutory demand had not reached the respondent, constituted an abuse of process.

The court had to determine whether the statutory demand was effectively served on the respondent. The applicant's solicitors had attempted to serve the statutory demand at the ASIC registered office of the respondent, which was no longer the respondent's address. The respondent had tried to update the ASIC record, but the envelope containing the demand was returned marked “Left Address/Unknown.” Given that there was no public access to the building, the court had to decide whether the statutory demand was delivered to the respondent. Additionally, the court needed to assess whether the applicant's continuation of the winding up application, despite knowing that the statutory demand had not been properly served and that the default judgment had been set aside, amounted to an abuse of process.

The court found that the statutory demand had not been properly delivered to the respondent as it was sent to an outdated address and the envelope was returned. Consequently, the court held that the applicant's winding up application was based on a flawed foundation. Furthermore, the court determined that the applicant's persistence with the application, knowing that the statutory demand had not been properly served, constituted an abuse of process. Therefore, the application to wind up the respondent in deemed insolvency was dismissed.

Orders

Orders of the court

The application to wind-up the respondent in deemed insolvency is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re: Pacific Mobile Phones Pty Ltd [2008] QSC 210
PARTIES:	COMMONWEALTH BROADCASTING CORPORATION PTY LTD (applicant) V PACIFIC MOBILE PHONES PTY LTD ACN 080 259 730 (respondent)
FILE NO/S:	5908 of 2008
DIVISION:	Trial Division
PROCEEDING:	Winding-up application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	20 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2008
JUDGE:	White J
ORDER:	The application to wind-up the respondent in deemed insolvency is dismissed.
CATCHWORDS:	CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – PROCEDURAL REQUIREMENTS – SERVICE OF APPLICATION – the applicant’s solicitors attempted to serve a statutory demand to the ASIC registered office of the respondent – the respondent was no longer at that address and had attempted to change the ASIC record – the envelope in which the demand was sent was returned to the applicant marked “Left Address/Unknown” – there was no public access to the building in which the registered office was situated – whether the statutory demand was delivered to the Respondent CORPORATIONS – WINDING UP – APPLICATIONS FOR WINDING UP BY COURT – PROCEDURE – DISMISSAL, STAY OR RESTRAINT OF PROCEEDINGS – ABUSE OF PROCESS – a winding up application was brought by the applicant despite knowledge that the statutory demand had not come to the actual notice of the respondent – the applicant persisted with the application even though the default judgment on which it was based had been set aside - whether there had been an abuse of process CORPORATIONS – WINDING UP – APPLICATIONS FOR WINDING UP BY COURT – PROCEDURE – LEAVE TO OPPOSE WINDING-UP APPLICATION – whether there is a genuine dispute about the debt – whether the respondent is solvent Acts Interpretation Act 1901 (Cth) s 29 Corporations Act 2001 (Cth), s 109X, s 459P, s 459S Braams Group Pty Ltd v Miric [2002] NSWCA 417, cited CGU Workers’ Compensation (Victoria) Ltd v Carousel Bar Pty Ltd [1999] VSC 227, cited Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075, cited David Grant & Co. Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, cited Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354, cited Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2005] SASC 48, cited Expile Pty Ltd v Jabb’s Excavations Pty Limited [2003] NSWSC 96, cited Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, cited F P Leonard Advertising Pty Ltd v KD Travel Service Pty Ltd (1993) 12 ACSR 136, cited. Perpetual Nominees v Masri Apartments Pty Ltd [2004] NSWSC 551, followed R v County of London Quarter Sessions Appeals Committee; ex parte Rossi [1956] 1 QB 682, cited Re: Future Life Enterprises Pty Ltd (1994) 33 NSWLR 559, cited Williams v Spautz (1991-1992) 174 CLR 509, cited
COUNSEL:	Mr C Coulsen for the applicant Mr C Wilson for the respondent
SOLICITORS:	Hall Lawyers for the applicant DLA Phillips Fox for the respondent