FREIHART v DEXPLAIN [2001] NSWSC 137

FREIHART v DEXPLAIN [2001] NSWSC 137

The Corporations Law rules did not require this section 459G application to be commenced by fresh originating process, and the application could appropriately be brought by interlocutory process in the existing proceedings. The Notice of Motion identified the relevant statutory provisions and relief sought and gave a sufficient notice to attend, so it substantially complied with Form 3 for the relief in paragraphs 1 and 2. Paragraph 3, seeking leave to amend the summons, was dismissed because the proposed amendment raised procedural problems, including that the demand was a new central fact and amendment could relate back to a date before the statutory demand existed.

Jurisdiction
Australia
Judgment Date
08 March 2001
Procedural Posture
Corporations Law Application Concerning a Statutory Demand and an Oral Application to Strike Out a Notice of Motion / Hearing of the Defendant's Oral Application Under Part 13 Rule 5 of the Supreme Court Rules to Strike Out the Plaintiff's Notice of Motion Filed 25 January 2001
Outcome
The defendant's oral application to strike out the Notice of Motion was successful only as to paragraph 3; paragraphs 1 and 2 were allowed to proceed, and the statutory demand issue was ordered to be dealt with separately.
Legal Topics
['statutory Demand' 'application Under Section 459 G of the Corporations Law' 'interlocutory Process' 'substantial Compliance With Court Forms' 'amendment of Summons' 'strike Out Application']
['corporations Law' 'civil Procedure' 'equity'] ['statutory Demand' 'application Under Section 459 G of the Corporations Law' 'interlocutory Process' 'substantial Compliance With Court Forms' 'amendment of Summons' 'strike Out Application']

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Procedural Posture

Corporations Law Application Concerning a Statutory Demand and an Oral Application to Strike Out a Notice of Motion / Hearing of the Defendant's Oral Application Under Part 13 Rule 5 of the Supreme Court Rules to Strike Out the Plaintiff's Notice of Motion Filed 25 January 2001

Legal Issues

  1. 1 ['Whether an application to set aside a statutory demand under section 459G of the Corporations Law could be commenced by Notice of Motion in existing proceedings between the same parties.' 'Whether the Notice of Motion substantially complied with Form 3 of the Corporations Law rules.' 'Whether the plaintiff should be granted leave to amend the summons to add relief relating to the statutory demand.']

Ratio Decidendi

The Corporations Law rules did not require this section 459G application to be commenced by fresh originating process, and the application could appropriately be brought by interlocutory process in the existing proceedings. The Notice of Motion identified the relevant statutory provisions and relief sought and gave a sufficient notice to attend, so it substantially complied with Form 3 for the relief in paragraphs 1 and 2. Paragraph 3, seeking leave to amend the summons, was dismissed because the proposed amendment raised procedural problems, including that the demand was a new central fact and amendment could relate back to a date before the statutory demand existed.

Court Disposition

The defendant's oral application to strike out the Notice of Motion was successful only as to paragraph 3; paragraphs 1 and 2 were allowed to proceed, and the statutory demand issue was ordered to be dealt with separately.

Orders

  • ['Paragraph 3 of the Notice of Motion filed 25 January 2001 is dismissed.' 'The Notice of Motion filed 25 January 2001 was an appropriate process for commencing an application under section 459G of the Corporations Law.' 'The question whether the Statutory Demand served on the plaintiff by the defendant should be...