Biron Capital v Velowing [2003] NSWSC 1181

Biron Capital v Velowing [2003] NSWSC 1181

A defendant does not require leave under s 459S to defend a winding up application on grounds arising from events that occurred after the expiration of the period permitted for making an application to set aside a statutory demand, as those grounds could not have been relied on in a s 459G application. Leave cannot be granted in respect of a ground (dispute about date of the guarantee) that is not material to proving solvency.

Jurisdiction
Australia
Judgment Date
11 December 2003
Procedural Posture
Corporations Winding Up Application / Interlocutory Application for Leave to Defend Under S 459 S
Outcome
Application dismissed
Legal Topics
['statutory Demand' 'winding Up in Insolvency' 'leave to Oppose Winding Up' 'genuine Dispute' 'offsetting Claim']
['corporations Law' 'insolvency Law'] ['statutory Demand' 'winding Up in Insolvency' 'leave to Oppose Winding Up' 'genuine Dispute' 'offsetting Claim']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Corporations Winding Up Application / Interlocutory Application for Leave to Defend Under S 459 S

Legal Issues

  1. 1 ['Whether leave under s 459S of the Corporations Act is required to defend a winding up application on grounds arising after expiry of time for s 459G application' 'Whether grounds relating to a reduction of claimed debt or an offsetting claim arising after expiry of period to set aside statutory demand may be raised without leave']

Ratio Decidendi

A defendant does not require leave under s 459S to defend a winding up application on grounds arising from events that occurred after the expiration of the period permitted for making an application to set aside a statutory demand, as those grounds could not have been relied on in a s 459G application. Leave cannot be granted in respect of a ground (dispute about date of the guarantee) that is not material to proving solvency.

Court Disposition

Application dismissed

Orders

  • ["The defendant's interlocutory process seeking leave under s 459S is dismissed" "Dismissal is without prejudice to the defendant's right to defend the winding up application on grounds arising after the expiry of the period to set aside the statutory demand"]