In the matter of One Mastery Developments Pty Ltd [2023] NSWSC 980

In the matter of One Mastery Developments Pty Ltd [2023] NSWSC 980

Although the defendant established a serious question to be tried about whether most of the claimed work was performed under a construction contract and therefore about the existence or amount of the statutory debt, leave under s 459S was refused because the defendant failed to provide a sufficient explanation for not applying to set aside the statutory demand within 21 days. The failure to put in place reasonable arrangements to attend to correspondence served at the defendant's registered office, despite being aware of the payment dispute and foreshadowed legal action, was unreasonable.

Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Corporations Winding Up in Insolvency; Application for Leave Under S 459 S of the Corporations Act 2001 (cth) to Oppose Winding Up Application / Interlocutory Process Filed on 6 July 2023 for Leave to Oppose the Plaintiff's Winding Up Application
Outcome
The defendant's application for leave under s 459S was refused and its interlocutory process was dismissed.
Legal Topics
['statutory Demand' 'winding Up' 'leave to Oppose Winding Up Application' 'security of Payment' 'construction Contract' 'registered Office Service']
['corporations' 'insolvency' 'building and Construction'] ['statutory Demand' 'winding Up' 'leave to Oppose Winding Up Application' 'security of Payment' 'construction Contract' 'registered Office Service']

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Procedural Posture

Corporations Winding Up in Insolvency; Application for Leave Under S 459 S of the Corporations Act 2001 (cth) to Oppose Winding Up Application / Interlocutory Process Filed on 6 July 2023 for Leave to Oppose the Plaintiff's Winding Up Application

Legal Issues

  1. 1 ["Whether there was a serious question to be tried that the plaintiff's payment claim and the defendant's failure to serve a payment schedule did not give rise to a statutory debt under s 14(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW)." 'Whether the dispute about the existence or amount of the debt was material to proving whether the defendant was solvent.' 'Whether the defendant provided a sufficient explanation for failing to apply within time to set aside the statutory demand.']

Ratio Decidendi

Although the defendant established a serious question to be tried about whether most of the claimed work was performed under a construction contract and therefore about the existence or amount of the statutory debt, leave under s 459S was refused because the defendant failed to provide a sufficient explanation for not applying to set aside the statutory demand within 21 days. The failure to put in place reasonable arrangements to attend to correspondence served at the defendant's registered office, despite being aware of the payment dispute and foreshadowed legal action, was unreasonable.

Court Disposition

The defendant's application for leave under s 459S was refused and its interlocutory process was dismissed.

Orders

  • ["The defendant's interlocutory process filed on 6 July 2023 is dismissed." 'The Court will hear the parties in relation to costs.']