Drama Unit Pty Ltd v Fearndale Holdings Pty Ltd (Administrator Appointed) [2020] NSWCA 1

Drama Unit Pty Ltd v Fearndale Holdings Pty Ltd (Administrator Appointed) [2020] NSWCA 1

Leave to appeal was refused because Drama Unit did not show any issue of principle, question of general public importance, or reasonably clear injustice. The challenge was only to the primary judge's evaluative factual finding that the Phair affidavit did not support the s 459G application on the ground of an offsetting claim. The affidavit merely foreshadowed an intention to file a statement of claim and asserted that the amount claimed would offset and exceed the statutory demand, but did not verify the material facts in the draft pleading or give them evidentiary value. In any event, the period for compliance with the statutory demand had expired, either on 28 June 2019 if the s 459G...

Jurisdiction
Australia
Judgment Date
30 January 2020
Procedural Posture
Application for Leave to Appeal in Corporations Proceedings Concerning a Statutory Demand / Court of Appeal Summons Seeking Leave to Appeal From Dismissal of an Application Under S 459 G of the Corporations Act 2001 (cth)
Outcome
Summons seeking leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'statutory Demand' 'application to Set Aside Statutory Demand' 'supporting Affidavit Under S 459 G' 'offsetting Claim' 'period for Compliance With Statutory Demand' 'presumption of Insolvency']
['civil Procedure' 'corporations Law'] ['leave to Appeal' 'statutory Demand' 'application to Set Aside Statutory Demand' 'supporting Affidavit Under S 459 G' 'offsetting Claim' 'period for Compliance With Statutory Demand' 'presumption of Insolvency']

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Procedural Posture

Application for Leave to Appeal in Corporations Proceedings Concerning a Statutory Demand / Court of Appeal Summons Seeking Leave to Appeal From Dismissal of an Application Under S 459 G of the Corporations Act 2001 (cth)

Legal Issues

  1. 1 ['Whether Drama Unit made a valid application under s 459G of the Corporations Act 2001 (Cth) to set aside the statutory demand.' 'Whether the affidavit filed and served within 21 days supported the application on the ground of an offsetting claim.' 'Whether Drama Unit demonstrated sufficient doubt or reasonably clear injustice to warrant leave to appeal.' 'Whether the expiry of the period for compliance with the statutory demand meant there was no utility in granting leave to appeal.']

Ratio Decidendi

Leave to appeal was refused because Drama Unit did not show any issue of principle, question of general public importance, or reasonably clear injustice. The challenge was only to the primary judge's evaluative factual finding that the Phair affidavit did not support the s 459G application on the ground of an offsetting claim. The affidavit merely foreshadowed an intention to file a statement of claim and asserted that the amount claimed would offset and exceed the statutory demand, but did not verify the material facts in the draft pleading or give them evidentiary value. In any event, the period for compliance with the statutory demand had expired, either on 28 June 2019 if the s 459G...

Court Disposition

Summons seeking leave to appeal dismissed.

Orders

  • ['Summons seeking leave to appeal is dismissed.' "The applicant to pay the respondent's costs in this Court."]