Kiama Development Co Pty Limited v Wilcox [1999] NSWSC 513

Kiama Development Co Pty Limited v Wilcox [1999] NSWSC 513

The application to set aside the statutory demand was dismissed because the plaintiff failed to comply with the service requirements of section 459G, not serving the defendant within the 21-day statutory timeframe. The court has no power to extend this period, rendering the application invalid. No genuine dispute as to the debt was established.

Parties
Plaintiff: Kiama Development Co Pty Limited; Defendant: Rosanna Wilcox; Defendant: Birgitta Spicer; Defendant: Graham Wilcox; Defendant: John Spicer
Jurisdiction
Australia
Judgment Date
31 May 1999
Procedural Posture
Application to Set Aside Statutory Demand / Judgment on Summons
Outcome
summons dismissed
Legal Topics
Statutory Demand, Service Requirements, Corporations Law S459 G, Application Dismissal
Corporate Insolvency Statutory Demand Service Requirements Corporations Law S459 G Application Dismissal

Case Brief

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Parties

Kiama Development Co Pty Limited

Plaintiff

Rosanna Wilcox

Defendant

Birgitta Spicer

Defendant

Graham Wilcox

Defendant

John Spicer

Defendant

Procedural Posture

Application to Set Aside Statutory Demand / Judgment on Summons

Legal Issues

  1. 1 Whether the statutory demand served on the plaintiff should be set aside
  2. 2 Whether the application to set aside the statutory demand complied with s459G of the Corporations Law
  3. 3 Whether the prescribed form of the demand is inconsistent with statutory requirements

Ratio Decidendi

The application to set aside the statutory demand was dismissed because the plaintiff failed to comply with the service requirements of section 459G, not serving the defendant within the 21-day statutory timeframe. The court has no power to extend this period, rendering the application invalid. No genuine dispute as to the debt was established.

Court Disposition

summons dismissed

Orders

  • The summons is dismissed.
  • The plaintiff is to pay the costs of the defendant, on a party and party basis up to and including 12 May 1999, and thereafter on an indemnity basis.