In the matter of International Materials & Technologies Pty Limited [2013] NSWSC 787

In the matter of International Materials & Technologies Pty Limited [2013] NSWSC 787

The statutory demand served by the defendant specified an address for service in a state other than New South Wales, where the demand was served, which did not comply with the prescribed Form 509H and the requirements of the Corporations Act. This defect was sufficiently fundamental to render the demand a nullity, as it effectively deprived the debtor of the ability to make a valid application to set aside the demand.

Parties
Plaintiff: International Materials & Technologies Pty Ltd; Defendant: Hougen Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
11 July 2013
Procedural Posture
Application to Set Aside Creditor's Statutory Demand / Judgment
Outcome
Declaration that creditor's statutory demand is null and void; costs awarded to plaintiff
Legal Topics
Creditor's Statutory Demand, Service of Process, Defect in Statutory Demand, Winding Up Proceedings
Corporations Creditor's Statutory Demand Service of Process Defect in Statutory Demand Winding Up Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 24 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

International Materials & Technologies Pty Ltd

Plaintiff

Hougen Australia Pty Ltd

Defendant

Procedural Posture

Application to Set Aside Creditor's Statutory Demand / Judgment

Legal Issues

  1. 1 Whether a creditor's statutory demand served in New South Wales specifying a Victorian address for service is so defective as to be a nullity
  2. 2 Whether the statutory demand can be set aside for non-compliance with prescribed form
  3. 3 Whether service of originating process on the defendant complied with Service and Execution of Process Act 1992

Ratio Decidendi

The statutory demand served by the defendant specified an address for service in a state other than New South Wales, where the demand was served, which did not comply with the prescribed Form 509H and the requirements of the Corporations Act. This defect was sufficiently fundamental to render the demand a nullity, as it effectively deprived the debtor of the ability to make a valid application to set aside the demand.

Court Disposition

Declaration that creditor's statutory demand is null and void; costs awarded to plaintiff

Orders

  • The creditor's statutory demand for payment dated 3 April 2013 served by the defendant on the plaintiff is null and void.
  • Defendant to pay plaintiff's costs assessed in the sum of $5,000.