Time of My Life Pty Limited v Windsor Turf Supplies Pty Limited (In Liquidation)

[2011] NSWSC 916

Supreme Court

New South Wales

Medium Neutral Citation:	Time Of My Life Pty Limited -v- Windsor Turf Supplies Pty Limited (In Liquidation) [2011] NSWSC 916
Hearing dates:	16 August 2011
Decision date:	16 August 2011
Jurisdiction:	Equity Division - Corporations List
Before:	Hammerschlag J
Decision:	Statutory Demand dated 24 February 2011 be set aside
Catchwords:	CORPORATIONS - Corporations Act 2001 (Cth) s 459G(1), 459H(1) - application to set aside a statutory demand - genuine dispute as to existence of debt - statutory demand set aside
Legislation Cited:	Corporations Act 2001 (Cth)
Category:	Principal judgment
Parties:	Time Of My Life Pty Limited - Plaintiff Windsor Turf Supplies Pty Limited (In Liquidation) - Defendant
Representation:	Counsel: N.M. Tyson - Solicitor - Plaintiff Solicitor: Addisons
File Number(s):	2011/86961

EX TEMPORE Judgment

1. HIS HONOUR: This is an application to set aside a Statutory Demand served on the plaintiff by the defendant and dated 24 February 2011. The defendant company is in liquidation. Earlier, in light of communication received from the liquidator that he neither consents to nor opposes the grant of leave to the plaintiff to proceed, I granted such leave pursuant to s 471B of the Corporations Act 2001 (Cth) ("the Act").

1. The defendant has not appeared to defend the proceedings.

1. Under s 459G(1) of the Act, a company may apply to the Court for an order setting aside a Statutory Demand served on the company.

1. Under s 459H(1) of the Act a Statutory Demand is, relevantly, liable to be set aside if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt to which the demand relates.

1. The Statutory Demand claims the sum of $21,999.99 described as owing for consulting services.

1. The defendant is associated with a Mr Constantinidis who was a director of the plaintiff until 30 March 2010.

1. The claim is based on the provisions of a Shareholders' Deed which provides for all directors of the plaintiff to be non-executive directors and to receive an initial annual remuneration of $80,000 excluding GST, payable monthly in arrears on the first day of each calendar month. Under the provision such remuneration may be varied from time to time by a special resolution of shareholders.

1. The company secretary of the plaintiff deposes to the facts that

a   at the request of Mr Constantinidis, the company paid the fees not to Mr Constantinidis but to the defendant;

b   invoices were issued by the defendant for the fees and all fees payable up to and including the time at which Mr Constantinidis ceased to be a director, have been paid in full.

1. Clearly the plaintiff has established that there is a genuine dispute with respect to this claim. The Statutory Demand is accordingly to be set aside.

1. I order that the Statutory Demand dated 24 February 2011 served by the defendant on the plaintiff be set aside. The defendant is to pay the plaintiff's costs of proceedings.

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Decision last updated: 18 August 2011