In the matter of LDW Constructions Pty Limited [2019] NSWSC 1159

In the matter of LDW Constructions Pty Limited [2019] NSWSC 1159

The Demand was delivered to the Company's registered office on 23 April 2019 and that was compliant service under s 109X. The Originating Process filed on 16 May 2019 was outside the 21 day period required by s 459G. Section 459J is not available as a freestanding jurisdiction when no timely application under s 459G exists. The Court therefore lacked jurisdiction to deal with the application and the application had to be dismissed.

Jurisdiction
Australia
Judgment Date
11 July 2019
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand / Preliminary Question Whether the Application Was Filed Within Time and Whether the Court Had Jurisdiction
Outcome
Application dismissed; Plaintiff ordered to pay the Defendant's costs on an ordinary basis, with leave to the Defendant to relist if it seeks indemnity costs.
Legal Topics
["creditor's Statutory Demand" 'service at Registered Office' 'time Limit Under S 459 G' 'jurisdiction to Set Aside Statutory Demand' 's 459 J Grounds' 'costs']
['corporations' 'civil Procedure' 'evidence'] ["creditor's Statutory Demand" 'service at Registered Office' 'time Limit Under S 459 G' 'jurisdiction to Set Aside Statutory Demand' 's 459 J Grounds' 'costs']

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand / Preliminary Question Whether the Application Was Filed Within Time and Whether the Court Had Jurisdiction

Legal Issues

  1. 1 ["Whether service of the Demand at the Company's registered office was compliant service for the purposes of s 109X of the Corporations Act 2001 (Cth)." 'Whether the application to set aside the Demand was filed within the 21 day period specified in s 459G of the Corporations Act 2001 (Cth).' "Whether s 459J of the Corporations Act 2001 (Cth) provides a freestanding jurisdiction to set aside a creditor's statutory demand when an application under s 459G is out of time." 'Whether the Plaintiff should pay costs on an ordinary or indemnity basis.']

Ratio Decidendi

The Demand was delivered to the Company's registered office on 23 April 2019 and that was compliant service under s 109X. The Originating Process filed on 16 May 2019 was outside the 21 day period required by s 459G. Section 459J is not available as a freestanding jurisdiction when no timely application under s 459G exists. The Court therefore lacked jurisdiction to deal with the application and the application had to be dismissed.

Court Disposition

Application dismissed; Plaintiff ordered to pay the Defendant's costs on an ordinary basis, with leave to the Defendant to relist if it seeks indemnity costs.

Orders

  • ['The application to set aside the Demand is dismissed.' "The Plaintiff must pay the Defendant's costs of the application on an ordinary basis, as agreed or as assessed." "Leave is granted to the Defendant to relist the matter, on two business days' notice given within seven days, should it seek to pursue an...