Hardel Investments Pty Ltd (ACN 083 276 000) v Consolidated Byrnes Holdings Limited (ACN 111 052 585) [2009] FCA 400

Hardel Investments Pty Ltd (ACN 083 276 000) v Consolidated Byrnes Holdings Limited (ACN 111 052 585) [2009] FCA 400

The proceeding was unnecessary because the documents annexed to the winding up originating processes and exhibited to the supporting affidavit did not comply with s 459E: the purported statutory demand was unsigned and the accompanying purported affidavit was unsigned and unsworn. They therefore could not be relied on as statutory demands not complied with for the purposes of s 459F, and there was no need for Hardel and Avpri to apply under s 459G to set them aside. Although the defendants had behaved badly and did not clarify that they would not rely on the annexed documents as a separate process, justice was served by making no order as to costs.

Jurisdiction
Australia
Judgment Date
29 April 2009
Procedural Posture
Application Pursuant to S 459 G of the Corporations Act 2001 (cth) to Set Aside Statutory Demands / Final Orders and Reasons for Judgment on Dismissal and Costs
Outcome
The proceeding was dismissed with no order as to costs.
Legal Topics
['statutory Demands' 'winding Up Proceedings' 'service of Statutory Demand' 'application to Set Aside Statutory Demand' 'costs' 'indemnity Costs' 'non Party Costs']
['corporations' 'practice and Procedure'] ['statutory Demands' 'winding Up Proceedings' 'service of Statutory Demand' 'application to Set Aside Statutory Demand' 'costs' 'indemnity Costs' 'non Party Costs']

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Procedural Posture

Application Pursuant to S 459 G of the Corporations Act 2001 (cth) to Set Aside Statutory Demands / Final Orders and Reasons for Judgment on Dismissal and Costs

Legal Issues

  1. 1 ['Whether service of winding up proceedings with annexed purported statutory demands and affidavits could constitute service of statutory demands for the purposes of Part 5.4 of the Corporations Act 2001 (Cth).' "Whether the plaintiffs' s 459G proceeding to set aside the purported statutory demands was necessary." "Whether the defendants or proposed non-parties should pay the plaintiffs' costs on an indemnity basis, or whether the plaintiffs should pay the defendants' costs."]

Ratio Decidendi

The proceeding was unnecessary because the documents annexed to the winding up originating processes and exhibited to the supporting affidavit did not comply with s 459E: the purported statutory demand was unsigned and the accompanying purported affidavit was unsigned and unsworn. They therefore could not be relied on as statutory demands not complied with for the purposes of s 459F, and there was no need for Hardel and Avpri to apply under s 459G to set them aside. Although the defendants had behaved badly and did not clarify that they would not rely on the annexed documents as a separate process, justice was served by making no order as to costs.

Court Disposition

The proceeding was dismissed with no order as to costs.

Orders

  • ['The proceeding be dismissed.' 'There be no order as to costs.']