The Charan Group Pty Ltd v Kaur

SUPREME COURT OF QUEENSLAND

CITATION:

The Charan Group Pty Ltd v Kaur [2011] QSC 71

PARTIES:

THE CHARAN GROUP PTY LTD
ACN 119 209 782
(applicant)         
v
HARSWEEN KAUR

(respondent)

FILE NO/S:

SC No 2362 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

4 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2011

JUDGE:

Chief Justice

ORDER:

1. That the application be dismissed; and

2. That the applicant pay the respondent’s costs of and incidental to the application to be assessed on the indemnity basis.

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY –  STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND –  PROCEDURAL REQUIREMENTS – SERVICE OF APPLICATION – where applicant mailed application to set aside demand to respondent’s solicitors’ GPO box one day before the end of the prescribed 21 day period for service – where application arrived one day after the prescribed 21 day period for service – whether due service was established 

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY –   STATUTORY DEMAND – COSTS – whether there was a fundamental deficiency in the mounting of the application such that costs should be ordered on an indemnity basis

Acts Interpretation Act 1901(Cth), s 29(1)
Australian Postal Corporation (Performance Standards) Regulations 1998 (Cth), r 6(2)
Corporations Act 2001(Cth), s 459G(2), s 459G(3)

Uniform Civil Procedure Rules 1999 (Qld), r 112(1)(d)

Entech-Renewable Energy Solutions Pty Ltd v Polytek-Wernes Engineering SDN BHD [2010] WASC 354, cited

Scope Data Systems Pty Ltd v Goman (as representative of the partnership B D O Nelson Parkhill) (2007) 70 NSWLR 278; [2007] NSWSC 278, followed

COUNSEL:

H L Alexander for the applicant

J M Nott (solicitor) for the respondent

SOLICITORS:

Alexander Law for the applicant

Praegaer Ellem Solicitors for the respondent

1. CHIEF JUSTICE: On 22 March 2011 the applicant filed an application for an order setting aside a statutory demand dated 28 February 2011 and served on the applicant on 3 March 2011.

1. Supporting the application was an affidavit by R A Charan, a director of the applicant.  He exhibited the demand, in the amount of $75,108.80, which nominated, as the creditor’s address for service, the address of the respondent Ms Kaur’s solicitors, at “Level 12 Central Plaza One, 345 Queen Street, Brisbane”. 

1. In that affidavit Mr Charan swears that his company sold foodstuffs “on behalf of Talwinder Dhillon”, having received them “on consignment”, and accounting to the consignor progressively upon the sale of the goods.  Mr Charan did not say that his company had no other relevant dealings which could relate to the respondent’s claim, and in particular, did not swear that he had no dealings at all with the respondent.  The applicant’s counsel, Mr Alexander, submitted that the tenor of the affidavit nevertheless implied that this was the only possible applicable transaction, and that it was had with Mr Dhillon and not Ms Kaur.

1. But obviously struck with the sparsity of that affidavit material, Mr Alexander sought to supplement it at the…