In the matter of Edifice Australia Pty Ltd [2017] NSWSC 1620

In the matter of Edifice Australia Pty Ltd [2017] NSWSC 1620

AFM did not establish on the balance of probabilities that the Demand was served at the Company's registered office on 6 September 2017, so it was not established that the application was outside the 21-day period and the Court had jurisdiction. However, the Company failed to make the instalment due on 4 July 2017 until early August 2017, so the instalment order ceased to have effect under r 37.7 of the Uniform Civil Procedure Rules 2005 (NSW). Because no continuing instalment order justified setting aside the Demand under s 459J(1)(b), the application to set aside failed, but the Demand was varied under s 459H(4)(a) to reflect later payments.

Jurisdiction
Australia
Judgment Date
20 November 2017
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand / Principal Judgment; Ex Tempore Decision
Outcome
The statutory demand was varied and the proceedings were otherwise dismissed with costs.
Legal Topics
['winding Up' "creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'time for Filing and Service Under S 459 G' 'estoppel by Representation' 'instalment Orders' 'variation of Statutory Demand']
['corporations' 'equity' 'estoppel' 'civil Procedure'] ['winding Up' "creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'time for Filing and Service Under S 459 G' 'estoppel by Representation' 'instalment Orders' 'variation of Statutory Demand']

Case Brief

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand / Principal Judgment; Ex Tempore Decision

Legal Issues

  1. 1 ['Whether the application to set aside the Demand was filed and served within the 21-day period specified in s 459G of the Corporations Act 2001 (Cth).' 'Whether AFM was estopped from contending that the Demand was served before 8 September 2017 or that the Court lacked jurisdiction.' 'Whether there was some other reason to set aside the Demand under s 459J(1)(b) of the Corporations Act 2001 (Cth) because of the instalment order.' 'Whether the Demand should be varied to reflect payments made after it was issued.']

Ratio Decidendi

AFM did not establish on the balance of probabilities that the Demand was served at the Company's registered office on 6 September 2017, so it was not established that the application was outside the 21-day period and the Court had jurisdiction. However, the Company failed to make the instalment due on 4 July 2017 until early August 2017, so the instalment order ceased to have effect under r 37.7 of the Uniform Civil Procedure Rules 2005 (NSW). Because no continuing instalment order justified setting aside the Demand under s 459J(1)(b), the application to set aside failed, but the Demand was varied under s 459H(4)(a) to reflect later payments.

Court Disposition

The statutory demand was varied and the proceedings were otherwise dismissed with costs.

Orders

  • ["The creditor's statutory demand issued by the Defendant on 5 September 2017 be varied under s 459H(4)(a) of the Corporations Act 2001 (Cth) by substituting the sum of $39,899.77 for the sum of $51,899.77 as the total amount of the debt." 'The proceedings otherwise be dismissed.' "The Plaintiff pay the Defendant's...