In the matter of AP & HR Investments Pty Limited [2013] NSWSC 1989

In the matter of AP & HR Investments Pty Limited [2013] NSWSC 1989

The plaintiff established a plausible contention requiring further investigation that the $47,000 was advanced to Herman Ramos personally and not to the company; therefore there was a genuine dispute as to the existence of the debt claimed in the statutory demand and the demand had to be set aside.

Jurisdiction
Australia
Judgment Date
06 November 2013
Procedural Posture
Application to Set Aside Creditors' Statutory Demand Under (cth) Corporations Act 2001 S 459 H / Principal Judgment on Originating Process
Outcome
Creditors' statutory demand set aside; defendants ordered to pay the plaintiff's costs assessed at $12,500.
Legal Topics
['statutory Demands' "application to Set Aside Creditors' Statutory Demand" 'genuine Dispute as to the Existence of a Debt' 'company Indebtedness']
['corporations'] ['statutory Demands' "application to Set Aside Creditors' Statutory Demand" 'genuine Dispute as to the Existence of a Debt' 'company Indebtedness']

Case Brief

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Procedural Posture

Application to Set Aside Creditors' Statutory Demand Under (cth) Corporations Act 2001 S 459 H / Principal Judgment on Originating Process

Legal Issues

  1. 1 ["Whether there was a genuine dispute as to the existence of the debt claimed in the creditors' statutory demand." 'Whether the $47,000 advanced by the defendants was a loan to the company or an advance to their son, Herman Ramos.' 'Whether a single director had authority to bind the company to the alleged loan transaction.']

Ratio Decidendi

The plaintiff established a plausible contention requiring further investigation that the $47,000 was advanced to Herman Ramos personally and not to the company; therefore there was a genuine dispute as to the existence of the debt claimed in the statutory demand and the demand had to be set aside.

Court Disposition

Creditors' statutory demand set aside; defendants ordered to pay the plaintiff's costs assessed at $12,500.

Orders

  • ['The creditors statutory demand served by the defendant on the plaintiffs and dated 25 June 2013 be set aside.' 'The defendant pay the plaintiffs costs assessed in the sum of $12,500.']