Carinda Homes Pty Ltd v Highlands Austral Pty Ltd, in the matter of Carinda Homes Pty Ltd [2003] FCA 275

Carinda Homes Pty Ltd v Highlands Austral Pty Ltd, in the matter of Carinda Homes Pty Ltd [2003] FCA 275

As the originating process and supporting affidavit were not served within the 21-day period as required by s 459G(3) of the Corporations Act 2001 (Cth), the Court lacked jurisdiction to entertain the application, which was therefore dismissed as incompetent.

Parties
Plaintiff: Carinda Homes Pty Ltd; Defendant: Highlands Austral Pty Ltd
Jurisdiction
Australia
Judgment Date
21 March 2003
Procedural Posture
Corporations – Application to Set Aside Statutory Demand / Application to Set Aside Statutory Demand, Heard and Dismissed
Outcome
Application dismissed as incompetent. Indemnity costs awarded against plaintiff.
Legal Topics
Statutory Demand, Jurisdiction, Affidavits – Statutory Demand Applications
Corporations Law Statutory Demand Jurisdiction Affidavits – Statutory Demand Applications

Case Brief

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Parties

Carinda Homes Pty Ltd

Plaintiff

Highlands Austral Pty Ltd

Defendant

Procedural Posture

Corporations – Application to Set Aside Statutory Demand / Application to Set Aside Statutory Demand, Heard and Dismissed

Legal Issues

  1. 1 Whether the application to set aside statutory demand was properly served within 21 days as required by s 459G of the Corporations Act 2001 (Cth)
  2. 2 Whether the court has jurisdiction where service was out of time

Ratio Decidendi

As the originating process and supporting affidavit were not served within the 21-day period as required by s 459G(3) of the Corporations Act 2001 (Cth), the Court lacked jurisdiction to entertain the application, which was therefore dismissed as incompetent.

Court Disposition

Application dismissed as incompetent. Indemnity costs awarded against plaintiff.

Orders

  • The proceeding be dismissed as incompetent.
  • The plaintiff pay the defendant's costs on an indemnity basis.