In the matter of DCT Projects Pty Limited [2015] NSWSC 1696

In the matter of DCT Projects Pty Limited [2015] NSWSC 1696

The existence of an appeal, even one asserted to have strong prospects, did not of itself provide some other reason under s 459J(1)(b) of the Corporations Act 2001 (Cth) to set aside a creditor's statutory demand founded on an unstayed judgment debt. The proper course for arguments about prospects of appeal was a stay application in the Court of Appeal, and the statutory demand process was not subverted unless the creditor was secured, such as by payment of the judgment amount into Court. DCT was therefore given an indulgence to pay the judgment amount into Court within 28 days, with the likely consequence that the demand would then be set aside; otherwise the application would likely be...

Jurisdiction
Australia
Judgment Date
11 September 2015
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand / Interlocutory Application in the Equity Corporations List; Proceedings Stood Over for Final Orders
Outcome
Undertaking to pay the judgment amount into Court noted; costs ordered against DCT Projects Pty Limited; proceedings stood over for final orders.
Legal Topics
["creditor's Statutory Demand" 'judgment Debt' 'appeal Against Judgment Debt' 'payment Into Court as Security' 'section 459 J(1)(b) of the Corporations Act 2001 (cth)' 'calderbank Offer' 'indemnity Costs']
['corporations Law' 'insolvency' 'civil Procedure' 'costs'] ["creditor's Statutory Demand" 'judgment Debt' 'appeal Against Judgment Debt' 'payment Into Court as Security' 'section 459 J(1)(b) of the Corporations Act 2001 (cth)' 'calderbank Offer' 'indemnity Costs']

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand / Interlocutory Application in the Equity Corporations List; Proceedings Stood Over for Final Orders

Legal Issues

  1. 1 ["Whether the existence of an appeal, said to be bona fide and to have strong or arguable grounds, constituted some other reason to set aside a creditor's statutory demand under s 459J(1)(b) of the Corporations Act 2001 (Cth)." "Whether a creditor's statutory demand based on an unstayed judgment debt should be set aside without payment of the judgment debt into Court or other security." "Whether DCT Projects Pty Limited should pay Champion Homes Sales Pty Limited's costs on an indemnity basis after not accepting a Calderbank offer."]

Ratio Decidendi

The existence of an appeal, even one asserted to have strong prospects, did not of itself provide some other reason under s 459J(1)(b) of the Corporations Act 2001 (Cth) to set aside a creditor's statutory demand founded on an unstayed judgment debt. The proper course for arguments about prospects of appeal was a stay application in the Court of Appeal, and the statutory demand process was not subverted unless the creditor was secured, such as by payment of the judgment amount into Court. DCT was therefore given an indulgence to pay the judgment amount into Court within 28 days, with the likely consequence that the demand would then be set aside; otherwise the application would likely be...

Court Disposition

Undertaking to pay the judgment amount into Court noted; costs ordered against DCT Projects Pty Limited; proceedings stood over for final orders.

Orders

  • ['Note the undertaking of the Plaintiff, DCT Projects Pty Limited, that it will pay into Court in the appeal proceedings, 2015/178979 within 28 days, the amount of $119,117.95, being the amount of the judgment against it.' 'Order that DCT Projects Pty Ltd pay the costs of this application, on an ordinary basis up to...