Willaire Pty Ltd v Equititrust Ltd

[2012] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Willaire Pty Ltd v Equititrust Ltd [2012] QSC 3

PARTIES:

WILLAIRE PTY LTD

(applicant)

v

EQUITITRUST LTD

(respondent)

FILE NO/S:

BS8061/11

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

31 January 2012

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

25 October 2011

JUDGE:

Douglas J

ORDER:                   

1.   Vary the amount payable pursuant to the statutory demand to $43,842.32;

2.   Declare the demand to have had effect, as so varied, as from when the demand was served on the company; and

3.    Otherwise dismiss the application.

CATCHWORDS:

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – STATUTORY DEMAND – APPLICATION TO SET ASIDE DEMAND – GENERALLY – where application to set aside statutory demand relating to costs order – where costs assessed in amount of $68,621.52 – where appearance entered on behalf of a shareholder of applicant – where appearance also entered on behalf of sole director of applicant – whether applicant had standing to bring application – where statutory demand posted to applicant’s registered address on 16 August 2011 – where evidence that applicant’s director received statutory demand on 19 August 2011 – where application and supporting affidavit filed on 9 September 2011 – whether originating process and supporting affidavit filed and served within time – whether applicant had an offsetting claim – whether some other reason why demand should be set aside

Acts Interpretation Act 1901 (Cth), s 29
Corporations Act 2001 (Cth), ss 459G(2), 459G(3)(a) Uniform Civil Procedure Rules 1999 (Qld), r 394

ASIC v Lanepoint Enterprises Pty Ltd [2006] FCA 1163 cited
Capital Globe Investments Pty Ltd v Parker Investments Australia Pty Ltd [2011] QSC 31 cited
Elphick v Elliot [2003] 1 Qd R 362 cited
Graywynter Properties Pty Ltd v Gas & Fuel Corp
Superannuation Fund (1996) 70 FCR 452 cited
Scope Data Systems Pty Ltd v Goman (2007) 70 NSWLR 176 cited
The Charan Group Pty Ltd v Kaur [2011] QSC 71 cited
Virgtel Ltd v Zabusky (No 2) [2009] QCA 349 cited
Willaire Pty Ltd v Equitirust Ltd [2010] QCA 350 referred

COUNSEL:

J B Sweeney for the applicants

G Handran for the respondent

SOLICITORS:

QBM Lawyers for the applicants

Tucker and Cowan Solicitors for the respondent

1. Douglas J:  The applicant, Suzanne Spottiswood, holds 80 percent of the shares of Willaire Pty Ltd, a company now in receivership.  The other applicant, Ailsa Nilson, is the sole director of Willaire.  Willaire owes $68,621.52 to the respondent, Equititrust Ltd, pursuant to a costs order made in litigation conducted in this court.   Equititrust has issued a statutory demand based on the costs order that the applicants, acting on behalf of Willaire, have applied to set aside.  Their standing to bring the application, Willaire being in receivership, was not accepted by the respondent. 

1. That issue and a number of other issues need to be determined.  The other issues include whether the originating application and affidavit were filed and served within 21 days of the service of the statutory demand, whether evidence relied on by…