H Lal & Associates Pty Limited v Patel, in the matter of H Lal & Associates Pty Limited [2009] FCA 1551

H Lal & Associates Pty Limited v Patel, in the matter of H Lal & Associates Pty Limited [2009] FCA 1551

The statutory demand was served, at the latest, on 2 September 2009, so the 21 day period expired on 23 September 2009. The application to set aside the demand and supporting affidavit were filed on 24 September 2009, one day late, and service of the required documents must also have occurred outside the 21 day limit. Because compliance with s 459G(2) and (3) is jurisdictional, the application to set aside was incompetent and the Registrar's dismissal should remain. Indemnity costs were appropriate because it was clear when the motion was filed that the proceeding had been commenced outside the mandatory time limit.

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Application to Set Aside a Statutory Demand; Motion for Review of a District Registrar's Decision / Notice of Motion Seeking Review Under S 35 A(5) and (6) of the Federal Court of Australia Act 1976 (cth) Dismissed
Outcome
The motion was dismissed and the plaintiff was ordered to pay the defendant's costs of the motion on the indemnity basis.
Legal Topics
['statutory Demand' 'application to Set Aside Statutory Demand' '21 Day Time Limit Under S 459 G of the Corporations Act 2001 (cth)' "review of Registrar's Decision" 'indemnity Costs']
['corporations Law' 'civil Procedure' 'costs'] ['statutory Demand' 'application to Set Aside Statutory Demand' '21 Day Time Limit Under S 459 G of the Corporations Act 2001 (cth)' "review of Registrar's Decision" 'indemnity Costs']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand; Motion for Review of a District Registrar's Decision / Notice of Motion Seeking Review Under S 35 A(5) and (6) of the Federal Court of Australia Act 1976 (cth) Dismissed

Legal Issues

  1. 1 ["Whether the plaintiff's application to set aside the statutory demand was made within the 21 day period required by s 459G(2) and (3) of the Corporations Act 2001 (Cth)." "Whether the District Registrar's order dismissing the application should remain on review." 'Whether the defendant should receive indemnity costs of the motion.']

Ratio Decidendi

The statutory demand was served, at the latest, on 2 September 2009, so the 21 day period expired on 23 September 2009. The application to set aside the demand and supporting affidavit were filed on 24 September 2009, one day late, and service of the required documents must also have occurred outside the 21 day limit. Because compliance with s 459G(2) and (3) is jurisdictional, the application to set aside was incompetent and the Registrar's dismissal should remain. Indemnity costs were appropriate because it was clear when the motion was filed that the proceeding had been commenced outside the mandatory time limit.

Court Disposition

The motion was dismissed and the plaintiff was ordered to pay the defendant's costs of the motion on the indemnity basis.

Orders

  • ['The motion brought by notice of motion filed on 4 December 2009 be dismissed.' "The plaintiff pay the defendant's costs of that motion on the indemnity basis."]