The Owners - Strata Plan No 17572 v Nomak Holdings Pty Ltd

The Owners - Strata Plan No 17572 commenced proceedings against Nomak Holdings Pty Ltd in the Federal Circuit Court. The dispute centred around the validity of a statutory demand issued to Nomak, and whether the company was truly insolvent. The Owners alleged that Nomak was unable to pay its debts as they fell due and sought to wind up the company. Nomak contended that it was solvent and that the statutory demand was not validly served.

The court had to determine whether the statutory demand was properly served and if the tender of payment was sufficient to negate the presumption of insolvency. The Owners argued that Nomak had not complied with the statutory demand, which triggered a presumption of insolvency. Nomak claimed that the demand was not correctly served and that it had tendered payment of the debt, which should have precluded the presumption of insolvency. The court also needed to examine the requirements for proving solvency and whether Nomak had met them.

The court found that the statutory demand was not properly served, as it was not delivered to the registered office of Nomak, but rather to a different address. Consequently, the presumption of insolvency did not arise from non-compliance. The court then considered the tender of payment, which Nomak argued should have precluded the presumption of insolvency. However, the court held that the tender of payment was not sufficient to negate the presumption of insolvency as it was not made in response to the statutory demand. The court further found that Nomak had not provided sufficient evidence to prove its solvency, as required by the law.

The court dismissed the application to wind up Nomak, holding that the statutory demand was invalid due to improper service and that the tender of payment did not negate the presumption of insolvency. The court ordered that the proceedings be stayed until such time as a valid statutory demand was served and determined that Nomak had not met the burden of proving solvency. The court did not make any orders regarding costs.