Ziegler as trustee for the Doris Gayst Testamentary Trust v Cenric Group Pty Ltd [2020] NSWCA 85

Ziegler as trustee for the Doris Gayst Testamentary Trust v Cenric Group Pty Ltd [2020] NSWCA 85

The Court found that the primary judge correctly applied the principles relating to the sufficiency of the supporting affidavit under s 459G of the Corporations Act. The affidavit raised a genuine offsetting claim, satisfying statutory requirements, and there was no error warranting leave to appeal. Further, the appeal was dismissed for lack of utility as the statutory demand was stale, and the costs application was resolved on ordinary principles, rejecting a special costs order.

Parties
Applicant/appellant: Carolyn Ziegler as trustee for the Doris Gayst Testamentary Trust; Respondent: Cenric Group Pty Ltd
Jurisdiction
Australia
Judgment Date
06 May 2020
Procedural Posture
Corporate Statutory Demand Proceeding / Application for Leave to Appeal and Appeal
Outcome
Leave to appeal dismissed; notice of appeal dismissed as incompetent; costs orders made as per UCPR r 42.1.
Legal Topics
Statutory Demand, Offsetting Claim, Winding Up, Leave to Appeal, Repudiation of Contract, Costs
Corporations Equity Statutory Demand Offsetting Claim Winding Up Leave to Appeal Repudiation of Contract Costs

Case Brief

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Parties

Carolyn Ziegler as trustee for the Doris Gayst Testamentary Trust

Applicant/appellant

Cenric Group Pty Ltd

Respondent

Procedural Posture

Corporate Statutory Demand Proceeding / Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 Whether an offsetting claim was sufficiently articulated in the supporting affidavit lodged under s 459G of the Corporations Act
  2. 2 Whether leave to appeal should be granted against an order setting aside the statutory demand
  3. 3 Whether the primary judge incorrectly evaluated the evidence or applied the legal principles in determining existence of a genuine offsetting claim

Ratio Decidendi

The Court found that the primary judge correctly applied the principles relating to the sufficiency of the supporting affidavit under s 459G of the Corporations Act. The affidavit raised a genuine offsetting claim, satisfying statutory requirements, and there was no error warranting leave to appeal. Further, the appeal was dismissed for lack of utility as the statutory demand was stale, and the costs application was resolved on ordinary principles, rejecting a special costs order.

Court Disposition

Leave to appeal dismissed; notice of appeal dismissed as incompetent; costs orders made as per UCPR r 42.1.

Orders

  • Summons for leave to appeal dismissed.
  • Notice of Appeal filed 4 December 2019 dismissed as incompetent.