In the matter of MJ Payne Pty Ltd [2012] NSWSC 599

In the matter of MJ Payne Pty Ltd [2012] NSWSC 599

The documents served by facsimile on 27 March 2012 were unsealed, did not bear a return date, and were not copies of documents filed in the Registry; they were copies of draft documents, not copies of an application and supporting affidavit. The sealed originating process and affidavit were not served until outside the 21 day period. Accordingly, there was no service in compliance with s 459G(3)(b), so the Originating Process was doomed to fail.

Jurisdiction
Australia
Judgment Date
07 May 2012
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand / Principal Judgment
Outcome
Proceedings dismissed with costs
Legal Topics
['winding Up' 'statutory Demand' 'application to Set Aside Statutory Demand' 'service of Originating Process and Supporting Affidavit' 'corporations Act 2001 (cth) S 459 G']
['corporations Law'] ['winding Up' 'statutory Demand' 'application to Set Aside Statutory Demand' 'service of Originating Process and Supporting Affidavit' 'corporations Act 2001 (cth) S 459 G']

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff complied with Corporations Act 2001 (Cth) s 459G(3)(b) by serving an unsealed originating process and supporting affidavit within 21 days after service of the statutory demand.' 'Whether subsequent service of the sealed originating process and affidavit outside the 21 day period could satisfy s 459G(3).']

Ratio Decidendi

The documents served by facsimile on 27 March 2012 were unsealed, did not bear a return date, and were not copies of documents filed in the Registry; they were copies of draft documents, not copies of an application and supporting affidavit. The sealed originating process and affidavit were not served until outside the 21 day period. Accordingly, there was no service in compliance with s 459G(3)(b), so the Originating Process was doomed to fail.

Court Disposition

Proceedings dismissed with costs

Orders

  • ['The Originating Process be dismissed with costs.']