Shin v Commodore Hotel Management Pty Ltd

FEDERAL COURT OF AUSTRALIA

Shin v Commodore Hotel Management Pty Ltd [1999] FCA 771

CORPORATIONS – statutory demand – failure to take action to set aside statutory demand – winding up application – motion to stay winding up application – allegation that no debt due to applicant – whether leave under s 459S of Corporations Law is necessary

Corporations Law s 459S

House of Tan Pty Ltd v Beachiris Pty Ltd (1996) 21 ACSR 527 applied
Mabrouk Pty Ltd, Re (18 March 1996, SC (NSW), McLelland CJ in Eq, unreported) cited
Pacific Communication Rentals Pty Ltd v Walker (1993) 12 ACSR 287 discussed

SHIN KYUNG ROK V COMMODORE HOTEL MANAGEMENT PTY LIMITED

NO. V 3034 OF 1999

FINKELSTEIN J
MELBOURNE
11 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3034 OF 1999

BETWEEN:	SHIN KYUNG ROK Applicant
AND:	COMMODORE HOTEL MANAGEMENT PTY LIMITED Respondent
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	11 JUNE 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application to stay or dismiss the proceeding generally be dismissed.

2.The respondent to pay the applicant’s taxed costs of the application to stay or dismiss the proceeding.

3.The application to wind up the respondent be stayed until such time as the applicant pays into Court, or otherwise provides security for, the sum of $10,000 by way of security for the respondent’s costs of the winding up application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 3034 OF 1999

BETWEEN:	SHIN KYUNG ROK Applicant
AND:	COMMODORE HOTEL MANAGEMENT PTY LIMITED Respondent

JUDGE:	FINKELSTEIN J
DATE:	11 JUNE 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The respondent, Commodore Hotel Management Pty Limited (Commodore Hotel), applies to stay or dismiss, or asks for an injunction to restrain the further presentation of, the application made by the applicant, Shin Kyung Rok, under s 459P of the Corporations Law that Commodore Hotel be wound up in insolvency.

2. Mr Shin has taken an assignment of a debt in the sum of $200,000 alleged to be due to Mr Katsuya Yamamoto by Commodore Hotel.  The assignment was made by deed dated 11 December 1998.  The deed provides (in clause 3) that it shall take effect from the date upon which notice of the execution of the deed is given to Commodore Hotel and its director, George Nelson Frew.

3. It is not disputed that written notice of the execution of the assignment of the debt was served upon Commodore Hotel on 16 December 1998. However, there is an issue concerning the precise date upon which the notice was served on Mr Frew. Mr B Hicks, a process server employed by Network Process Service, deposed in an affidavit that he had personally served the notice on Mr Frew at 5.15 pm on 16 December 1998. On the other hand, Mr Frew swore an affidavit in which he said that the notice had not been served…