In the matter of Chameleon Mining NL; Chameleon Mining NL v Atanaskovic Hartnell [2009] NSWSC 602

In the matter of Chameleon Mining NL; Chameleon Mining NL v Atanaskovic Hartnell [2009] NSWSC 602

The statutory demand should be set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) because after Chameleon made a valid request for itemised bills under s 332A of the Legal Profession Act 2004 (NSW), AH was precluded by statute from commencing proceedings to recover the claimed debts, making the debts not 'due and payable' and establishing 'some other reason' to set aside the demand. Given the unreasonable conduct of AH in not promptly withdrawing the demand or providing written confirmation, Chameleon was justified in initiating the proceedings, and AH must pay Chameleon's costs.

Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Corporations – Statutory Demand – Application to Set Aside / Judgment After Contested Application
Outcome
Statutory demand set aside with costs
Legal Topics
['statutory Demand' 'setting Aside Statutory Demands' 'effect of Statutory Prohibition on Recovery Proceedings' 'legal Costs Assessment' "solicitor's Conduct" 'costs in Statutory Demand Proceedings']
['corporations Law' 'legal Profession Law'] ['statutory Demand' 'setting Aside Statutory Demands' 'effect of Statutory Prohibition on Recovery Proceedings' 'legal Costs Assessment' "solicitor's Conduct" 'costs in Statutory Demand Proceedings']

Case Brief

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Procedural Posture

Corporations – Statutory Demand – Application to Set Aside / Judgment After Contested Application

Legal Issues

  1. 1 ['Whether statutory demand can be withdrawn before last date for compliance' 'Whether court can take into account events after service of demand' 'Whether creditor is precluded from commencing proceedings for recovery of debt after service of statutory demand due to statutory restrictions' "Whether statutory prohibition under Legal Profession Act constitutes 'some other reason' to set aside demand under s 459J(1)(b)" 'Costs: considerations relating to reasonableness of conduct of parties']

Ratio Decidendi

The statutory demand should be set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth) because after Chameleon made a valid request for itemised bills under s 332A of the Legal Profession Act 2004 (NSW), AH was precluded by statute from commencing proceedings to recover the claimed debts, making the debts not 'due and payable' and establishing 'some other reason' to set aside the demand. Given the unreasonable conduct of AH in not promptly withdrawing the demand or providing written confirmation, Chameleon was justified in initiating the proceedings, and AH must pay Chameleon's costs.

Court Disposition

Statutory demand set aside with costs

Orders

  • ['Order that the statutory demand be set aside' "Order that the defendants pay the plaintiff's costs as agreed or assessed"]