Legal Research
Cases
Stack v Elster Metering Pty Ltd

Stack v Elster Metering Pty Ltd

Case [2005] FCA 231 14 March 2005

Type to search within this case.

FEDERAL COURT OF AUSTRALIA
Stack v Elster Metering Pty Ltd [2005] FCA 231
CORPORATIONS LAW – applications to set aside two statutory demands – history of litigation between the parties – address of registered office of company at time of service -whether prepaid postage to company’s registered office amounts to service - whether genuine claim exists within the meaning of s 459H(5) because of possibility of pursuing special leave to appeal to the High Court against a decision of the Full Federal Court dismissing the appeal – whether doctrine of res judicata precludes contention that there is a genuine claim – whether pending application for special leave to appeal can amount to “some other reason” for setting aside statutory demand
BANKRUPTCY – application to set aside bankruptcy notice – assertion of cross demand – whether notice otherwise oppressive
Corporations Act 2001 (Cth) ss 109X, 459G, 459H, 459J, 459L
Bankruptcy Act 1966 (Cth) ss 30, 40(1)(g), 41(7)
Patents Act 1990 (Cth) Chapter 17
Evidence Act 1995 (Cth) s 160
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 cited
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 cited
Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454 applied
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 applied
GEORGE STACK v ELSTER METERING PTY LTD (ACN 004 088 680) & ORS
Q 129 of 2004
G.S. TECHNOLOGY PTY LTD (ACN 011 062 767) v ELSTER METERING PTY LTD (ACN 004 088 680) & ORS
Q 3006 of 2003
Q 3007 of 2003
SPENDER J
14 MARCH 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 129 of 2004

BETWEEN:

GEORGE STACK
APPLICANT

AND:

ELSTER METERING PTY LTD (ACN 004 088 680) (formerly Davies Shephard Pty Ltd)
FIRST RESPONDENT

WOODPICKERS AUSTRALIA PTY LTD (ACN 009 738 005) (formerly Davies Shephard (Queensland) Pty Ltd)
SECOND RESPONDENT

GSA INDUSTRIES (AUST) PTY LTD (ACN 004 784 301)
THIRD RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

14 MARCH 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application to set aside Bankruptcy Notice VN 900/2004 is dismissed.
2.The applicant pay the respondent’s costs of and incidental to this application, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 3006 of 2003

BETWEEN:

G.S. TECHNOLOGY PTY LTD (ACN 011 062 767)
APPLICANT

AND:

ELSTER METERING PTY LTD (ACN 004 088 680)
FIRST RESPONDENT

WOODPICKERS AUSTRALIA PTY LTD (ACN 009 738 005) SECOND RESPONDENT

GSA INDUSTRIES (AUST) PTY LTD (ACN 004 784 301)
THIRD RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

14 MARCH 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application to set aside the statutory demand is dismissed as incompetent, pursuant to s 459G(2) of the Corporations Act 2001 (Cth).
2.The applicant pay the respondent’s costs of and incidental to this application, to…

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 Stack v Elster Metering Pty Ltd

Details

AGLC: Stack v Elster Metering Pty Ltd [2005] FCA 231
Case: [2005] FCA 231
Decision Date: 14 MARCH 2005

CaseChat Overview and Summary

The case of Stack v Elster Metering Pty Ltd involved an application by the applicant to set aside a statutory demand issued by the respondent. The dispute was heard and determined by the Federal Court of Australia. The applicant sought to have the statutory demand set aside on the basis of certain procedural irregularities and the lack of a valid debt. The respondent, a company, argued that the statutory demand was correctly issued and that the applicant had not demonstrated any grounds for setting it aside.

The primary legal issue before the court was whether the statutory demand was correctly issued and, if not, whether there were grounds to set it aside under the Corporations Act 2001 (Cth). The court had to examine the validity of the statutory demand, the procedural requirements under the Act, and the applicant's arguments for setting it aside. The court also considered whether the applicant had demonstrated a valid defence to the debt claimed in the statutory demand.

The court found that the statutory demand was validly issued and that the applicant had not provided sufficient grounds to set it aside. The court held that the applicant had failed to demonstrate any irregularity in the service of the statutory demand or any valid defence to the debt claimed. The court also noted that the applicant had not challenged the existence or the amount of the debt. Consequently, the application to set aside the statutory demand was dismissed, and the applicant was ordered to pay the respondent's costs of and incidental to the application. The court held that the application was incompetent under s 459G(2) of the Corporations Act 2001 (Cth).

Orders

Orders of the court

1. The application to set aside Bankruptcy Notice VN 900/2004 is dismissed.

2. The applicant pay the respondent’s costs of and incidental to this application, to be taxed if not agreed.

1. The application to set aside the statutory demand is dismissed as incompetent, pursuant to s 459G(2) of the Corporations Act 2001 (Cth).

2. The applicant pay the respondent’s costs of and incidental to this application, to be taxed if not agreed.

1. The application to set aside the statutory demand is dismissed.

2. The applicant pay the respondent’s costs of and incidental to this application, to be taxed if not agreed.

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

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

Citations

AGLC Citation

Stack v Elster Metering Pty Ltd [2005] FCA 231

Most Recent Citation

Body Corporate Repairers Pty Ltd v Oakley Thompson and Co Pty Ltd [2017] VSC 435

Cases citing this decision · 2 of 2 shown

Body Corporate Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd
[2017] VSC 435 Para 1

…[64] See Ford Motor Co of Australia Ltd v Tristar Steering & Suspension Australia Ltd [2003] FCA 596 at [43]; Stack v Elster Metering Pty Ltd [2005] FCA 231 at [75]. [65][2005] FCA 231.…
Duncan v Mortgage House of Australia Pty Ltd
[2010] FMCA 328 Para 9

…tcy notice is based does not constitute a “counterclaim, set-off or cross demand” for the purposes of s.40(1)(g): Stack v Elster Motoring Pty Ltd [2005] FCA 231 at [79] – [85]; Re Thompson; Ex parte Thompson v Grimely Pty Ltd & Ors (1995) 61 FCR 554 at 552. Although with an appeal the court does retain a general…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Stack v Davies Shephard Pty Ltd
[2001] FCA 501 Para 9

…The decision of the Full Court is reported at (2001) 51 IPR 513.…
Stack v Brisbane City Council
[2000] FCA 598 Para 23

…, Davies Shephard Pty Ltd and Davies Shephard (Queensland) Pty Limited; GS Technology Pty Ltd v Davies Shephard Ltd and GSA Industries (Aust) Pty Ltd [2000] FCA 598.…
Stack v Brisbane City Council
[1999] FCA 1279 Para 7

…In proceedings QG 28 of 1994 and QG 29 of 1996, reported at (1999) 47 IPR 525 Justice Cooper, on 15 September 1999, found and declared, at 578: ‘1. George Stack is not, and was not at any material time, entitled under s 15 of the Patents Act 1990 (Cth) to the grant to him of a patent in consequence of the filing of…
Eumina Investments Pty ltd v Westpac Banking Corporation
[1998] FCA 824 Para 26

…se of an offsetting claim in the context of s 459H of the Corporations Act, Emmett J said in Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454 (“ Eumina Investments”) at 457: ‘In order to show that the Company’s claim is genuine, it must be shown to be put forward in good faith and there mus…
John Shearer Ltd v Gehl Co
[1996] FCA 435 Para 26

…it must be shown to be put forward in good faith and there must be something more than a mere assertion: see John Shearer Ltd v Gehl Company (1995) 60 FCR 136 at 143. The references in s 459H to the Court being “satisfied” that there is a “genuine” dispute or that the Company has a “genuine” claim have been the sub…
David Grant & Co Pty Ltd v Westpac Banking Corporation
[1995] HCA 43 Para 11

…to set aside the statutory demand in respect of the first debt was not made as required by s 459G of the Corporations Act and must be set aside: see David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. “Offsetting claim”…
John Shearer Ltd v Gehl Company
[1995] FCA 430 Para 26

…the Company’s claim is genuine, it must be shown to be put forward in good faith and there must be something more than a mere assertion: see John Shearer Ltd v Gehl Company (1995) 60 FCR 136 at 143. The references in s 459H to the Court being “satisfied” that there is a “genuine” dispute or that the Company has a “genuine” claim have b…
Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd
[1995] FCA 255 Para 26

…subject of considerable judicial consideration as summarised by Lindgren J in Chase Manhattan Bank Australia Ltd v Oscty Pty Ltd (1995) 17 ACSR 128 at 135-136. As Lindgren J observed, their meanings have been illuminated by analogies found in applications for injunctions to restrain the commencement, advertisement o…
Scanhill Pty Ltd v Century 21 Australasia Pty Ltd
[1993] FCA 618 Para 20

…What constitutes a “genuine claim” was considered by Lockhart J in Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 where his Honour said at 39: ‘… However, what appears clearly enough from all the judgments is that a standard of satisfaction which a court requires in not a particularly high one. …I Ce…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25 Para 4

…ot supported by the language of the section earlier set out, and is contrary to the conclusion of the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 97. Section 160 of the Evidence Act provides a presumption of the date a postal article was received at an address. It is not directed at when the…
Corney v Brien
[1951] HCA 31 Para 1

…tence of an appeal may be a very good reason for considering whether there is, in truth and reality, a debt on which a petition might be based (see Corney v Brien (1951) 84 CLR 343). If the application for special leave to appeal is bona fide and there are some prospects of success on the appeal, it would, in my view, o…
Eyota Pty Ltd v Hanave Pty Ltd
(1994) 13 ACSR 37 Para 20

…What constitutes a “genuine claim” was considered by Lockhart J in Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 where his Honour said at 39: ‘… However, what appears clearly enough from all the judgments is that a standard of satisfaction which a court requires in not a…

Legislation cited in this decision · 5

Corporations Act 2001 (Cth)
109X, 459G, 459H, 459J, 459L 6 mentions (from Para 1)
Bankruptcy Act 1966 (Cth)
30, 40(1)(g), 41(7) 4 mentions (from Para 5)
Evidence Act 1995 (Cth)
160 2 mentions (from Para 10)
Patents Act 1990 (Cth)
1 mention (from Para 7)
Service and Execution of Process Act 1992 (Cth)
1 mention (from Para 9)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 129 of 2004

BETWEEN:	GEORGE STACK APPLICANT
AND:	ELSTER METERING PTY LTD (ACN 004 088 680) (formerly Davies Shephard Pty Ltd) FIRST RESPONDENT WOODPICKERS AUSTRALIA PTY LTD (ACN 009 738 005) (formerly Davies Shephard (Queensland) Pty Ltd) SECOND RESPONDENT GSA INDUSTRIES (AUST) PTY LTD (ACN 004 784 301) THIRD RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	14 MARCH 2005
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 3006 of 2003

BETWEEN:	G.S. TECHNOLOGY PTY LTD (ACN 011 062 767) APPLICANT
AND:	ELSTER METERING PTY LTD (ACN 004 088 680) FIRST RESPONDENT WOODPICKERS AUSTRALIA PTY LTD (ACN 009 738 005) SECOND RESPONDENT GSA INDUSTRIES (AUST) PTY LTD (ACN 004 784 301) THIRD RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	14 MARCH 2005
WHERE MADE:	BRISBANE