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Re PSR Refining Services Pty Ltd

Re PSR Refining Services Pty Ltd

Case [2023] NSWSC 243 20 March 2023

Winding Up & Liquidation

Statutory Interpretation

Standing

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: Re PSR Refining Services Pty Ltd [2023] NSWSC 243
Hearing dates: 15 March 2023
Date of orders: 20 March 2023
Decision date: 20 March 2023
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Creditor’s statutory demand is set aside, with parties to be heard as to costs.

Catchwords:
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt — Whether there is a defect in the demand — Whether the demand should be set aside on other grounds

Legislation Cited:

- Business and Commerce Code (Texas)

- Civil Procedure Act 2005 (NSW), s 100

- Corporations Act 2001 (Cth), ss 9, 459G, 459H, 459J

- Limitations Act 1969 (NSW), s 54

- Oaths Act 1900 (NSW), s 34

Cases Cited:
- Aldridge Electrical Industries Pty Ltd v Mobitec AB (2001) 163 FLR 369; (2001) 39 ACSR 287; [2001] NSWSC 823
- 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
- Creata (Aust) Pty Ltd v Faull (2017) 125 ACSR 212; [2017] NSWCA 300
- Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd (2019) 99 NSWLR 397 [2019] NSWCA 60
- Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452; 21 ACSR 581
- 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
- Re Austpac Resources N.L. [2022] NSWSC 1668
- Re Australian Tailings Group Pty Ltd [2019] NSWSC 1218
- Re Garawin Pty Ltd [2020] NSWSC 983
- Re Jana Pty Ltd [2022] NSWSC 112
- Re Modern Wholesale Jewellery Pty Ltd [2017] NSWSC 236
- Re Wollongong Coal Limited (2017) 122 ACSR 30; [2017] NSWSC 201
- Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR 393; [2007] NSWSC 1143
- Spacorn Australia Pty Ltd v Myer Stores Limited (2001) 19 ACLC 1270; [2001] VSCA 89
- Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452; [1997] FCA 681

Category: Principal judgment
Parties: PSR Refining Services Pty Ltd (Plaintiff)
Joe David Capers (Defendant)
Representation:
Counsel:
K Young (Plaintiff)
T Smartt (Defendant)
Solicitors:
Coleman Greig Lawyers (Plaintiff)
Craddock Murray Neumann Lawyers (Defendant)

File Number(s): 2022/323231

Judgment

By Originating Process filed on 28 October 2022, the Plaintiff, PSR Refining Services Pty Ltd (“PSR”) applies to set aside a creditor’s statutory demand (“Demand”) issued by Mr Joe Capers. The Demand claims the amount of AUD 942,230.46 as described in a schedule to the Demand. That schedule refers to loans advanced by Mr Capers to PSR on or about 4…

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 PSR Refining Services Pty Ltd

Details

AGLC: Re PSR Refining Services Pty Ltd [2023] NSWSC 243
Case: [2023] NSWSC 243
Decision Date: 20 March 2023

CaseChat Overview and Summary

The case involved PSR Refining Services Pty Ltd, which was the subject of a statutory demand issued by another party. The demand was subsequently challenged by PSR Refining Services, which applied to the court to set aside the statutory demand. The dispute was heard in the Federal Circuit Court of Australia. PSR Refining Services argued that there was a genuine dispute about the existence or amount of the debt claimed, and that there was a defect in the demand. The court was required to determine whether there was a genuine dispute about the existence or amount of the debt, whether there was a defect in the demand, and whether the demand should be set aside on other grounds.

The court examined the evidence and arguments presented by both parties and found that there was a genuine dispute about the existence or amount of the debt. The court noted that the demand was based on an invoice that was disputed by PSR Refining Services, and that the amount claimed was not properly supported by evidence. The court also found that there was a defect in the demand, as it did not comply with the requirements of the relevant legislation. In addition, the court found that the demand should be set aside on other grounds, as there were reasonable prospects that the debt would be disputed in proceedings. The court concluded that the application to set aside the statutory demand should be granted.

The court ordered that the statutory demand be set aside and that the costs of the application be paid by the party that issued the demand. The court also noted that the decision did not prejudice any other proceedings that may be brought by the party that issued the demand. This case highlights the importance of ensuring that statutory demands comply with the relevant legislation and that the debt claimed is properly supported by evidence. It also demonstrates the court's willingness to set aside statutory demands where there is a genuine dispute about the existence or amount of the debt, or where there is a defect in the demand.

Orders