In the matter of Allfunds Australia Pty Limited [2016] NSWSC 1965

In the matter of Allfunds Australia Pty Limited [2016] NSWSC 1965

Leave under s 459S was refused because the defendant did not establish a serious question to be tried that Allfunds Australia Pty Limited was not the contracting party or that the costs were not due and payable, gave no explanation for failing to apply under s 459G to set aside or vary the demand, and did not adduce sufficient evidence to satisfy the Court that the grounds sought to be raised were material to proving solvency.

Jurisdiction
Australia
Judgment Date
09 February 2016
Procedural Posture
Winding Up in Insolvency; Creditor's Statutory Demand / Interlocutory Application for Leave Under (cth) Corporations Act 2001, S 459 S
Outcome
Interlocutory process dismissed with costs
Legal Topics
["creditor's Statutory Demand" 'winding Up in Insolvency' 'leave to Challenge Standing and Indebtedness' 'misnomer of Corporate Identity' 'bill of Costs' 'solvency']
['corporations' 'insolvency' 'legal Profession Costs'] ["creditor's Statutory Demand" 'winding Up in Insolvency' 'leave to Challenge Standing and Indebtedness' 'misnomer of Corporate Identity' 'bill of Costs' 'solvency']

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Procedural Posture

Winding Up in Insolvency; Creditor's Statutory Demand / Interlocutory Application for Leave Under (cth) Corporations Act 2001, S 459 S

Legal Issues

  1. 1 ["Whether leave should be granted under (CTH) Corporations Act 2001, s 459S to challenge the plaintiff's standing as creditor and the indebtedness claimed." 'Whether there was a serious question to be tried that Allfunds Australia Pty Limited was not the contracting party or debtor to the plaintiff.' 'Whether there was a serious question to be tried that the debt was not payable because no bill of costs had been given to Allfunds Australia Pty Limited.' 'Whether there was a sufficient explanation for the failure to apply within the time permitted by (CTH) Corporations Act 2001, s 459G.' 'Whether the grounds sought to be raised were material to proving solvency.']

Ratio Decidendi

Leave under s 459S was refused because the defendant did not establish a serious question to be tried that Allfunds Australia Pty Limited was not the contracting party or that the costs were not due and payable, gave no explanation for failing to apply under s 459G to set aside or vary the demand, and did not adduce sufficient evidence to satisfy the Court that the grounds sought to be raised were material to proving solvency.

Court Disposition

Interlocutory process dismissed with costs

Orders

  • ['The interlocutory process be dismissed, with costs assessed in the sum of $5,500.']