In the matter of Cummins Equipment Hire Pty Limited [2015] NSWSC 2085

In the matter of Cummins Equipment Hire Pty Limited [2015] NSWSC 2085

The application to set aside the statutory demand was not validly and effectively served within 21 days after the date of service of the demand as required by s 459G of the Corporations Act 2001 (Cth), because the prescribed notice under s 16 of the Service and Execution of Process Act 1992 (Cth) was not attached to the originating process; accordingly, the Court's jurisdiction to set aside the demand was not validly invoked and the application must be summarily dismissed.

Parties
Plaintiff/respondent: Cummins Equipment Hire Pty Ltd (ACN 154 398 339); Defendant/applicant: Phenix Holdings Pty Ltd (ACN 102 604 008)
Jurisdiction
Australia
Judgment Date
22 June 2015
Procedural Posture
Application to Set Aside Creditor Statutory Demand / Interlocutory Application for Summary Dismissal and Leave to Amend Originating Process
Outcome
Summary dismissal of application to set aside statutory demand; leave granted to amend originating process.
Legal Topics
Creditor's Statutory Demand, Service of Process, Summary Dismissal, Amendment of Originating Process
Corporations Law Civil Procedure Creditor's Statutory Demand Service of Process Summary Dismissal Amendment of Originating Process

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Parties

Cummins Equipment Hire Pty Ltd (ACN 154 398 339)

Plaintiff/respondent

Phenix Holdings Pty Ltd (ACN 102 604 008)

Defendant/applicant

Procedural Posture

Application to Set Aside Creditor Statutory Demand / Interlocutory Application for Summary Dismissal and Leave to Amend Originating Process

Legal Issues

  1. 1 Whether service of the originating process setting aside a statutory demand was valid under the Service and Execution of Process Act 1992 (Cth)
  2. 2 Whether Uniform Civil Procedure Rules 2005 (NSW) permitted alternative service
  3. 3 Whether a creditor can be estopped from denying validity of service at an address nominated for service

Ratio Decidendi

The application to set aside the statutory demand was not validly and effectively served within 21 days after the date of service of the demand as required by s 459G of the Corporations Act 2001 (Cth), because the prescribed notice under s 16 of the Service and Execution of Process Act 1992 (Cth) was not attached to the originating process; accordingly, the Court's jurisdiction to set aside the demand was not validly invoked and the application must be summarily dismissed.

Court Disposition

Summary dismissal of application to set aside statutory demand; leave granted to amend originating process.

Orders

  • The claim for relief in paragraph 1 of the originating process filed 24 April 2015 be dismissed.
  • The plaintiff have leave to amend its originating process by filing an amended originating process claiming a declaration that the creditor's statutory demand dated 26 March 2015 is null and void, such amended originating process to be filed and served by 29 June 2015.