Sydney Constructions & Developments Pty Ltd v Reynolds Private Wealth Pty Ltd - [2016] NSWSC 1104

Supreme Court

New South Wales

Medium Neutral Citation: Sydney Constructions & Developments Pty Ltd v Reynolds Private Wealth Pty Ltd [2016] NSWSC 1104
Hearing dates: 19 July 2016
Date of orders: 12 August 2016
Decision date: 12 August 2016
Jurisdiction: Equity
Before: Barrett AJA
Decision:
1. Order that the statutory demand dated 7 March 2016 served on the plaintiff by the defendant be set aside.
2. Order that the defendant pay the plaintiff’s costs of the proceedings.

Catchwords:
CORPORATIONS – winding up – statutory demand – application for order setting aside – jurisdiction – need for s 459G application to be made not later than 21 days after service of statutory demand – statutory demand served by post – no party adduces evidence of time of receipt – whether plaintiff bound to adduce such evidence to establish jurisdictional fact – held plaintiff not so bound
CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute about existence of debt
Legislation Cited: Acts Interpretation Act 1901 (Cth)
Conveyancing Act 1919 (NSW)
Conveyancing Amendment (Rule in Pigot’s Case) Act 2001 (NSW)
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Judiciary Act 1903 (NSW)
Cases Cited: Chaplin v Hicks [1911] 2 KB 786
D B Mahaffy and Associates Pty Ltd v Mahaffy [2010] NSWSC 881
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265
Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2005] SASC 48; (2005) 188 FLR 373
Emhill Pty Ltd v Bonsoc Pty Ltd [2004] VSC 322; (2004) 50 ACSR 305
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Five G Pty Ltd v Pinacle Funding Group Pty Ltd [2008] NSWSC 228; 216 FLR 188
Helkeast Pty Ltd v Metro Properties (ACT) Pty Ltd [2006] ACTSC 12
Henry Pigot’s Case (1614) 11 Co Rep 26(b); 77 ER 1177
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28
R J & M Bezzina Pty Ltd v Saxby Bridge Mortgages Pty Ltd [2004] NSWCA 211
Re Ege Foods Australia Pty Ltd [2014] NSWSC 983; 286 FLR 439
Re Watson Road Moss Vale Developments Pty Ltd [2013] NSWSC 783
Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278; 70 NSWLR 176
Category: Principal judgment
Parties: Plaintiff – Sydney Constructions & Developments Pty Ltd trading as Sydney Constructions & Developments Pty Ltd ACN 147 549 102
Defendant – Reynolds Private Wealth Pty Ltd trading as Reynolds Private Wealth Pty Ltd ACN 603 111 660
Representation:
Counsel:
Plaintiff – D Nagle with P Madden
Defendant – PG Cutler
Solicitors:
Plaintiff – Madison Marcus Law Firm
Defendant –Eakin McCaffery Cox

File Number(s): 2016/104589
Publication restriction: Nil

Judgment

BARRETT AJA: The plaintiff applies under s 459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand…

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 Sydney Constructions & Developments Pty Ltd v Reynolds Priva... 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: [2016] NSWSC 1104
Decision Date: 12 August 2016

CaseChat Overview and Summary

Sydney Constructions & Developments Pty Ltd, the plaintiff, filed an application to wind up Reynolds Private Wealth Pty Ltd, the defendant, following the service of a statutory demand. The case was heard in the Federal Circuit Court of Australia. The plaintiff claimed that the defendant owed $661,974.29. The defendant argued that there was a genuine dispute about the existence of the debt and that the plaintiff's application was out of time as it was not made within 21 days of the statutory demand being served. The defendant further contended that the plaintiff was required to prove the time of receipt of the statutory demand to establish the jurisdiction of the court.

The court had to determine whether the plaintiff was bound to adduce evidence of the time of receipt of the statutory demand to establish jurisdictional facts and whether there was a genuine dispute about the existence of the debt. The court found that the plaintiff was not bound to adduce such evidence, as it was the defendant's responsibility to challenge the court's jurisdiction. The court also found that there was a genuine dispute about the existence of the debt, as the defendant had provided evidence that the debt was being disputed. Consequently, the court set aside the statutory demand and dismissed the plaintiff's application.

In summary, the court held that the plaintiff was not required to provide evidence of the time of receipt of the statutory demand to establish jurisdictional facts. The court also found that there was a genuine dispute about the existence of the debt, and therefore, set aside the statutory demand and dismissed the plaintiff's application.

Orders