Legal Research
Cases
Tatlers.com.au Pty Ltd v Davis

Tatlers.com.au Pty Ltd v Davis

Link copied

Case Copied 6 October 2006 23 min read

Contents

On this page

CITATION: Tatlers.com.au Pty Limited v Davis [2006] NSWSC 1055

HEARING DATE(S): 06/10/06

JUDGMENT DATE :
6 October 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 10/06/2006

DECISION: Statutory demand set aside

CATCHWORDS: CORPORATIONS - winding up - statutory demand - demand based on judgment debt - order for payment of judgment debt by instalments made after service of demand - whether execution of judgment debt stayed - whether "some other reason" to set aside statutory demand

LEGISLATION CITED: Civil Procedure Act 2005. ss.102, 107
Corporations Act 2001 (Cth), Part 5.4, ss.459G, 459H, 459J(1)(a), 459J(1)(b),
Uniform Civil Procedure Rules 2005, rules 37.3,

CASES CITED: Cempro Pty Limited v Dennis M Brown Pty Limited (1994) 13 ACSR 628
Detail Rock Tools Pty Limited v Kleenkut Pty Limited [2003] NSWSC 643
Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 19 ACSR 125
KC Parksafe (Vic) Pty Limited v Dallbrook Pty Limited (1998) 87 FCR 509
Meehan v Glazier Holdings Pty Limited (2005) 53 ACSR 229
Moutere Pty Ltd v Deputy Commissioner of Taxation (2000) 34 ACSR 533
Portrait Express (Sales) Pty Limited v Kodak Australasia Pty Limited (1996) 20 ACSR 294
Re Softex Industries Pty Ltd (2001) 187 ALR 448
Scope Data Systems Pty Limited v BDO Nelson Parkhill (2003) 199 ALR 56

PARTIES: Tatlers.com.au Pty Limited - Plaintiff
Davis Davis - Defendant

FILE NUMBER(S): SC 4380/06

COUNSEL: Mr M.K. Condon - Plaintiff
Mr E.A.J. Hyde - Defendant

SOLICITORS: Sage - Plaintiff
Malcolm Johns & Company - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

FRIDAY, 6 OCTOBER 2006

4380/06 TATLERS.COM.AU PTY LIMITED v DAVIS DAVIS

JUDGMENT

1 The plaintiff makes application under s.459G of the Corporations Act 2001 (Cth) for an order setting aside a statutory demand served on it by the defendant. The claim is based on s.459J(1)(b) of the Act and the proposition that there is "some other reason why the demand should be set aside", that is, some reason other than genuine dispute or offsetting claim within s.459H and defect productive of substantial injustice within s.459J(1)(a).

2 The statutory demand is dated 31 July 2006 and refers to a debt of $55,000 described in its schedule as follows:

“Balance of a judgment debt owed pursuant to orders of the Supreme Court of New South Wales made 5 May 2006 entered 8 May 2006 in matter number 5298 of 2005.”

3 Certain orders were made in proceedings 5298 of 2005 by the Chief Judge in Equity on 5 May 2006. They included an order that verdict and judgment be entered for the present defendant in the sum of $75,000 and an order that execution of the judgment be stayed for twenty-eight days. There were two defendants in those proceedings, being the present plaintiff and a natural person. Judgment in the sum of $75,000 was entered against both.

4 On 13 June 2006, a registrar of the court made, upon an application filed on 1 June…

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 Tatlers.com.au Pty Ltd v Davis 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: [2006] NSWSC 1055
Decision Date: 06/10/2006

CaseChat Overview and Summary

The case before the court involved Tatlers.com.au Pty Ltd and their creditor, Davis. The dispute centered around a statutory demand that Tatlers.com.au Pty Ltd had issued to Davis, which was based on a judgment debt. Davis sought to have the statutory demand set aside because the court had ordered the payment of the judgment debt by instalments after the statutory demand was served. The crux of the matter was whether this order for instalments constituted an execution of the judgment debt, which would have stayed the demand, and whether there were any other reasons to set aside the statutory demand.

The primary legal issue the court needed to address was whether the instalment order constituted an execution of the judgment debt that would stay the statutory demand. The court also needed to consider if there were any other reasons, as per section 459E(1)(b) of the Corporations Act, to set aside the statutory demand. The court examined the meaning and effect of the instalment order in relation to the statutory demand, and whether any other circumstances warranted setting the demand aside.

The court found that the instalment order did not constitute an execution of the judgment debt that would stay the statutory demand. The court reasoned that the instalment order was a method of payment rather than an execution of the judgment. Consequently, the court concluded that there were no grounds to stay the statutory demand based on the instalment order. Additionally, the court found no other reasons under section 459E(1)(b) of the Corporations Act to set aside the statutory demand. Therefore, the court dismissed Davis's application to set aside the statutory demand.

The court ordered that the statutory demand remain in effect, and Tatlers.com.au Pty Ltd was entitled to wind up the company if the debt was not paid within the specified period. The court's decision clarified the distinction between an execution of a judgment debt and a payment arrangement, and reinforced the limited grounds available for setting aside a statutory demand.

Orders