In the matter of Invigor Group Limited (No 2) [2019] NSWSC 1192

In the matter of Invigor Group Limited (No 2) [2019] NSWSC 1192

The plaintiff had made out a reasonably arguable case for appeal, the appeal would be rendered nugatory without an extension, and the balance of prejudice favoured some extension; however, because no summons seeking leave to appeal had yet been filed and the plaintiff appeared not to intend filing immediately, the appropriate course was to grant only a short two-day extension to enable the plaintiff to file its appeal documents, leaving any further extension and any payment-into-court condition to be considered later.

Jurisdiction
Australia
Judgment Date
14 August 2019
Procedural Posture
Application to Extend Time for Compliance With a Statutory Demand Under S 459 F(2)(a)(i) of the Corporations Act 2001 (cth) / Interlocutory Process After Dismissal of Application to Set Aside Statutory Demand and Pending Proposed Application for Leave to Appeal
Outcome
Extension of time for compliance with statutory demand granted to 4.00 pm on 16 August 2019; costs reserved.
Legal Topics
['statutory Demand' 'extension of Time for Compliance' 'application to Set Aside Statutory Demand' 'appeal' 'presumption of Insolvency' 'payment Into Court']
['corporations Law'] ['statutory Demand' 'extension of Time for Compliance' 'application to Set Aside Statutory Demand' 'appeal' 'presumption of Insolvency' 'payment Into Court']

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Procedural Posture

Application to Extend Time for Compliance With a Statutory Demand Under S 459 F(2)(a)(i) of the Corporations Act 2001 (cth) / Interlocutory Process After Dismissal of Application to Set Aside Statutory Demand and Pending Proposed Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether time for compliance with the statutory demand should be extended under s 459F(2)(a)(i) pending a proposed appeal.' 'Whether the plaintiff had shown an arguable case on appeal and whether the appeal would be rendered nugatory without an extension.' 'What prejudice each party would suffer if time were extended or declined.' 'Whether an extension should be conditional on payment of money into Court.']

Ratio Decidendi

The plaintiff had made out a reasonably arguable case for appeal, the appeal would be rendered nugatory without an extension, and the balance of prejudice favoured some extension; however, because no summons seeking leave to appeal had yet been filed and the plaintiff appeared not to intend filing immediately, the appropriate course was to grant only a short two-day extension to enable the plaintiff to file its appeal documents, leaving any further extension and any payment-into-court condition to be considered later.

Court Disposition

Extension of time for compliance with statutory demand granted to 4.00 pm on 16 August 2019; costs reserved.

Orders

  • ["Upon the undertaking of the Plaintiff's solicitor to pay all applicable filing fees, the Plaintiff is granted leave to file in Court an Interlocutory Process dated 13 August 2019 and the affidavit of Gary Cohen affirmed 13 August 2019." 'The Court notes the undertaking of the plaintiff to prosecute its application...