SP Hay Pty Ltd ACN 093 703 765 v David Gray & Co Pty Ltd ACN 008 671 127

The plaintiff, SP Hay Pty Ltd, sought an injunction against the defendant, David Gray & Co Pty Ltd, to prevent the latter from relying on the former’s failure to comply with a statutory demand. The demand, which was in the correct form except for a defect in specifying the address for service, was served on the plaintiff in Western Australia. The plaintiff, whose registered office is in Adelaide, did not comply with the demand within 21 days. The defendant then threatened to issue winding up proceedings, which prompted the plaintiff to seek an injunction to prevent such action.

The central legal issue was whether the statutory demand, despite its defect, was valid and could be used as a basis for winding up proceedings. Additionally, the court had to determine whether it would be unconscionable for the defendant to rely on the plaintiff's failure to comply with the demand, particularly given the defect in the demand itself. The plaintiff argued that the defect rendered the demand invalid and that it would be unconscionable for the defendant to proceed with winding up proceedings.

The court found that although the statutory demand contained a defect, it was not so significant as to render the demand invalid. However, the court recognised the potential for injustice if the defendant were to proceed with winding up proceedings based on the plaintiff's failure to comply. The court held that it would be unconscionable for the defendant to do so, given the defect in the demand. Consequently, the court granted the plaintiff's application for an injunction, prohibiting the defendant from relying on the plaintiff's failure to comply with the demand to issue winding up proceedings.

The court issued an injunction to prevent the defendant from relying on the plaintiff's failure to comply with the statutory demand in issuing winding up proceedings.