Telstra Corporation Ltd v Ivory

Case [2008] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Telstra Corporation Ltd v Ivory & Ors; Telstra Corporation Ltd v Solar-Mesh (Australia) & Ors [2008] QSC 123

PARTIES:

IN THE MATTER OF TELSTRA CORPORATION LIMITED ACN 051 775 556

TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
Applicant/respondent
and
KENNETH CLYDE IVORY
First Respondent/ applicant
and
SOLAR MESH AUSTRALIAN SALES PTY LTD
(ACN 006 311 628)
Second Respondent
and
SOLAR-MESH PTY LTD
(ACN 054 275 197)
Third Respondent
and
SOLAR-MESH (AUSTRALIAN DISTRIBUTION) PTY LTD (ACN 055 251 922)
Fourth Respondent

and

IN THE MATTER OF TELSTRA CORPORATION LIMITED ACN 051 775 556

TELSTRA CORPORATION LIMITED
(ACN 051 775 556)
Applicant/ respondent
and
SOLAR-MESH AUSTRALIA (A FIRM)
First Respondent/ applicant
and
KEN IVORY INDUSTRIES PTY LTD
(ACN 002 794 130)
Second Respondent
and
K & K JAH PTY LTD
(ACN 080 877 872)
Third Respondent

FILE NO/S:

10536 of 2006
10542 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland, Brisbane

DELIVERED ON:

11 June 2008

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

14 March 2008

JUDGE:

Lyons J

ORDERS

1.   The applications filed on 11 January 2007 in BS 10542/06 and BS 10536/06 are dismissed.

2.   The evidence in application BS 10542/06 is received as evidence in application BS 10536/06 and the evidence in application BS 10536/06 is received as evidence in application BS 10542/06.

3.   Mr Ivory pay the costs of Telstra in applications BS 10542/06 and BS 10536/06 of and incidental to the applications, including any reserved costs on an indemnity basis.

4.   The material forwarded to the court in both applications by Mr Ivory on 21 February 2008 is to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

5.   All correspondence on Supreme Court files BS 10536/06 and BS 10542/06 is to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

6.   Documents 17, 19, 20, 21, 22, 23, 24, 25, and 26 on Supreme Court file BS 10536/06 are to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

7.   Documents 7, 8, 10, 11, 12, 13, 14, 15, and 16 on Supreme Court file BS 10542/06 are to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

8.   The affidavit of JA McDonnell sworn 14 March 2008 is to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

9.   Documents 2 and 3 on Supreme Court file BS 10536/06 are to be re-sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY…

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Details
AGLC
Telstra Corporation Ltd v Ivory [2008] QSC 123
Case
[2008] QSC 123
Decision Date

CaseChat Overview and Summary

In the case of Telstra Corporation Ltd v Ivory, the dispute involved a statutory demand and subsequent applications to set aside that demand. The matter was heard in the Supreme Court of Queensland, where the applicant, Mr Ivory, sought to have the statutory demand set aside, which had been issued by Telstra Corporation Ltd. The central issues revolved around the validity of the service of the statutory demand, the authority of the General Counsel to instruct external solicitors, and the procedural correctness of the application to set aside the demand.

The court examined whether the statutory demand was validly served on Mr Ivory and whether General Counsel had the implied authority from the Board of Directors to instruct external solicitors to apply for the demand to be set aside. Additionally, the court considered whether the applicant had standing to set aside the demand, the validity of the Originating Application, and whether further affidavits could be relied upon at the hearing. The court also addressed whether costs should be awarded on an indemnity basis due to the applicant's conduct.

The court concluded that the statutory demand was validly served and that General Counsel had the implied authority to instruct external solicitors. The applications to set aside the demand were dismissed as they lacked merit and were considered hopeless from the outset. The court further found that the applicant's conduct warranted the award of costs on an indemnity basis. Finally, the court ordered that various documents and materials be sealed and marked to prevent unauthorized access.

In summary, the Supreme Court dismissed the applications filed by Mr Ivory and ordered him to pay Telstra's costs on an indemnity basis. The court also mandated the sealing of certain documents and materials to ensure they are not improperly accessed.

Orders

Orders of the court

1. The applications filed on 11 January 2007 in BS 10542/06 and BS 10536/06 are dismissed.

2. The evidence in application BS 10542/06 is received as evidence in application BS 10536/06 and the evidence in application BS 10536/06 is received as evidence in application BS 10542/06.

3. Mr Ivory pay the costs of Telstra in applications BS 10542/06 and BS 10536/06 of and incidental to the applications, including any reserved costs on an indemnity basis.

4. The material forwarded to the court in both applications by Mr Ivory on 21 February 2008 is to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

5. All correspondence on Supreme Court files BS 10536/06 and BS 10542/06 is to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

6. Documents 17, 19, 20, 21, 22, 23, 24, 25, and 26 on Supreme Court file BS 10536/06 are to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

7. Documents 7, 8, 10, 11, 12, 13, 14, 15, and 16 on Supreme Court file BS 10542/06 are to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

8. The affidavit of JA McDonnell sworn 14 March 2008 is to be sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

9. Documents 2 and 3 on Supreme Court file BS 10536/06 are to be re-sealed in an envelope and marked “not to be opened except by order of a Judge of the Supreme Court of Queensland.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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