Timberland Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd; Oaklands Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd [2011] NSWSC 466

Timberland Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd; Oaklands Property Holdings Pty Ltd v Schindler Lifts Australia Pty Ltd [2011] NSWSC 466

There was no genuine dispute as to the existence of the debts because the default judgment remained in force, had not been stayed, and had not been set aside. The pending Court of Appeal application and arguable matters about the District Court claim did not presently amount to some other reason under s 459J(1)(b). However, if the judgment sum was paid into court to abide the outcome of the leave application and any appeal, Schindler would be assured of funds to meet the judgment and would not need the insolvency presumption arising from non-compliance with the statutory demands, so the demands should be set aside conditionally.

Jurisdiction
Australia
Judgment Date
20 May 2011
Procedural Posture
Applications Under S 459 G of the Corporations Act 2001 (cth) to Set Aside Statutory Demands / Interlocutory Applications Heard Together
Outcome
Statutory demands set aside conditionally; plaintiffs ordered to pay the defendant's costs.
Legal Topics
['statutory Demand' 'winding Up' 'genuine Dispute' 'default Judgment' 'other Reason to Set Aside Statutory Demand' 'conditional Order' 'payment Into Court']
['corporations Law' 'civil Procedure'] ['statutory Demand' 'winding Up' 'genuine Dispute' 'default Judgment' 'other Reason to Set Aside Statutory Demand' 'conditional Order' 'payment Into Court']

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Procedural Posture

Applications Under S 459 G of the Corporations Act 2001 (cth) to Set Aside Statutory Demands / Interlocutory Applications Heard Together

Legal Issues

  1. 1 ['Whether there was a genuine dispute under s 459H(1)(a) as to the existence of judgment debts founded on a District Court default judgment.' 'Whether the pending application for leave to appeal and arguable matters concerning the default judgment constituted some other reason under s 459J(1)(b) to set aside the statutory demands.' 'Whether any setting aside of the statutory demands should be conditional on payment of the judgment sum into court.']

Ratio Decidendi

There was no genuine dispute as to the existence of the debts because the default judgment remained in force, had not been stayed, and had not been set aside. The pending Court of Appeal application and arguable matters about the District Court claim did not presently amount to some other reason under s 459J(1)(b). However, if the judgment sum was paid into court to abide the outcome of the leave application and any appeal, Schindler would be assured of funds to meet the judgment and would not need the insolvency presumption arising from non-compliance with the statutory demands, so the demands should be set aside conditionally.

Court Disposition

Statutory demands set aside conditionally; plaintiffs ordered to pay the defendant's costs.

Orders

  • ['In each proceeding, order subject to the condition that the applicants for leave to appeal under summons seeking leave to appeal dated 11 May 2011 filed in proceedings 2009/338493 do, not later than Tuesday 14 June 2011, pay into court in those proceedings the sum of $271,618.09 to abide the outcome of the...