In the matter of Colour Metal Pty Ltd [2021] NSWSC 1012

In the matter of Colour Metal Pty Ltd [2021] NSWSC 1012

The demands were not wholly based on judgment debts because each included post-judgment interest accruing after the Victorian judgments. Section 101 of the Supreme Court Act 1986 (Vic) gives an entitlement to interest on a judgment debt but does not make that interest part of the judgment debt for s 459E(3) of the Corporations Act 2001 (Cth). Because the demands were not accompanied by verifying affidavits, there was non-compliance warranting that the demands be set aside under s 459J(1)(b).

Jurisdiction
Australia
Judgment Date
10 August 2021
Procedural Posture
Application to Set Aside Statutory Demands / Ex Tempore Principal Judgment
Outcome
Both statutory demands dated 10 May 2021 were set aside, and the defendants were ordered to pay the plaintiff's costs of the applications on an indemnity basis.
Legal Topics
['winding Up' 'statutory Demand' 'judgment Debt' 'post Judgment Interest' 'verifying Affidavit' 'indemnity Costs']
['corporations' 'insolvency'] ['winding Up' 'statutory Demand' 'judgment Debt' 'post Judgment Interest' 'verifying Affidavit' 'indemnity Costs']

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Procedural Posture

Application to Set Aside Statutory Demands / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether statutory demands based partly on post-judgment interest were wholly based on judgment debts for the purposes of s 459E(3) of the Corporations Act 2001 (Cth).' 'Whether post-judgment interest accruing on Victorian judgments under s 101 of the Supreme Court Act 1986 (Vic) is itself a judgment debt.' 'Whether the statutory demands should be set aside under s 459J(1)(b) because they were not accompanied by verifying affidavits.' 'Whether costs should be awarded on an indemnity basis.']

Ratio Decidendi

The demands were not wholly based on judgment debts because each included post-judgment interest accruing after the Victorian judgments. Section 101 of the Supreme Court Act 1986 (Vic) gives an entitlement to interest on a judgment debt but does not make that interest part of the judgment debt for s 459E(3) of the Corporations Act 2001 (Cth). Because the demands were not accompanied by verifying affidavits, there was non-compliance warranting that the demands be set aside under s 459J(1)(b).

Court Disposition

Both statutory demands dated 10 May 2021 were set aside, and the defendants were ordered to pay the plaintiff's costs of the applications on an indemnity basis.

Orders

  • ['In proceeding 2021/155911: Set aside the statutory demand dated 10 May 2021.' "In proceeding 2021/155911: The defendant to pay the plaintiff's costs of the application on an indemnity basis." 'In proceeding 2021/155912: Set aside the statutory demand dated 10 May 2021.' "In proceeding 2021/155912: The defendant to...