Williams v Calivil Park Holstein Pty Ltd [2009] NSWSC 389

Williams v Calivil Park Holstein Pty Ltd [2009] NSWSC 389

Leave under section 459S was refused because the defendant's cross-claim for damages was not an offsetting claim against the final judgment debt on which the statutory demand was based, and although the asserted ground was material to insolvency, discretionary considerations overwhelmingly favoured refusal: the ground could not succeed, the company was manifestly insolvent, and the defendant had responded late and procedurally inadequately. The company was therefore wound up.

Jurisdiction
Australia
Judgment Date
04 May 2009
Procedural Posture
Corporations Winding Up Application Based on Statutory Demand, With Defendant's Interlocutory Application Under Section 459 S of the Corporations Act 2001 for Leave to Argue the Validity of the Statutory Demand / Hearing of Interlocutory Process and Winding Up Orders
Outcome
Interlocutory process dismissed; defendant company wound up and liquidator appointed.
Legal Topics
['winding Up' 'statutory Demand' 'section 459 S Leave' 'offsetting Claim' 'set Off Against Judgment Debt' 'presumption of Insolvency']
['corporations' 'insolvency' 'civil Procedure'] ['winding Up' 'statutory Demand' 'section 459 S Leave' 'offsetting Claim' 'set Off Against Judgment Debt' 'presumption of Insolvency']

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Procedural Posture

Corporations Winding Up Application Based on Statutory Demand, With Defendant's Interlocutory Application Under Section 459 S of the Corporations Act 2001 for Leave to Argue the Validity of the Statutory Demand / Hearing of Interlocutory Process and Winding Up Orders

Legal Issues

  1. 1 ['Whether the defendant should be granted leave under section 459S of the Corporations Act 2001 to oppose the winding up application on a ground that could have been relied on to set aside the statutory demand.' "Whether the defendant's pending cross-claim for damages was an offsetting claim within the meaning of section 459H against a judgment debt created by the Court's order of 4 December 2008." 'Whether discretionary considerations, including insolvency and procedural delay, warranted refusal of leave.']

Ratio Decidendi

Leave under section 459S was refused because the defendant's cross-claim for damages was not an offsetting claim against the final judgment debt on which the statutory demand was based, and although the asserted ground was material to insolvency, discretionary considerations overwhelmingly favoured refusal: the ground could not succeed, the company was manifestly insolvent, and the defendant had responded late and procedurally inadequately. The company was therefore wound up.

Court Disposition

Interlocutory process dismissed; defendant company wound up and liquidator appointed.

Orders

  • ['The interlocutory process is dismissed.' 'Order under s 459 of the Corporations Act 2001 that Calivil Park Holsteins ACN 097 498 167 be wound up.' 'Order that Mr. Stephen Alan Jay be appointed liquidator of Calivil Park Holsteins ACN 097 498 167.' "Order that the plaintiff's costs on the Notice of Motion assessed...