In the matter of Landmards Contructions Pty Ltd Liverpool Cement Renderers Pty Ltd v Landmarks Constructions Pty Ltd [1996] FCA 260

In the matter of Landmards Contructions Pty Ltd Liverpool Cement Renderers Pty Ltd v Landmarks Constructions Pty Ltd [1996] FCA 260

The Notice of Motion failed because Landmarks did not apply within the mandatory 21 day period under s 459G(2) to set aside the statutory demand, so it could not at this stage use objections to the debt or to the demand to resist the winding up process. The evidence did not establish an improper purpose or abuse of process, nor did it establish solvency sufficient to justify injunctive relief. The alleged defects in the demand lacked substance, and no sufficient reason was shown to dispense with the ordinary requirement to advertise the winding up application.

Jurisdiction
Australia
Judgment Date
19 April 1996
Procedural Posture
Corporations Winding Up Application; Respondent's Notice of Motion to Restrain Publication and Dismiss the Application as an Abuse of Process / Notice of Motion Before Hearing of the Winding Up Application
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['statutory Demand' 'winding Up in Insolvency' 'application to Set Aside Statutory Demand' 'advertisement of Winding Up Application' 'abuse of Process' 'solvency' 'genuine Dispute']
['corporations Law' 'insolvency' 'civil Procedure'] ['statutory Demand' 'winding Up in Insolvency' 'application to Set Aside Statutory Demand' 'advertisement of Winding Up Application' 'abuse of Process' 'solvency' 'genuine Dispute']

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Procedural Posture

Corporations Winding Up Application; Respondent's Notice of Motion to Restrain Publication and Dismiss the Application as an Abuse of Process / Notice of Motion Before Hearing of the Winding Up Application

Legal Issues

  1. 1 ['Whether the applicant should be restrained from publishing notice of the winding up application required by subrule 37(9) of the Corporations Rules (Federal Court).' 'Whether the winding up application should be dismissed as an abuse of process because the respondent was solvent and there was a genuine dispute as to the debt.' 'Whether failure to apply within 21 days under s 459G(2) of the Corporations Law prevented the respondent from attacking the statutory demand on grounds including genuine dispute or defect.' "Whether the statutory demand was defective because it was said to be based on a debt not then payable, omitted the applicant's ACN, or misstated the applicant's name." "Whether the respondent's evidence established solvency so as to justify injunctive relief or a conclusion of abuse of process." 'Whether publication of the winding up application should be dispensed with because of potential adverse business consequences.']

Ratio Decidendi

The Notice of Motion failed because Landmarks did not apply within the mandatory 21 day period under s 459G(2) to set aside the statutory demand, so it could not at this stage use objections to the debt or to the demand to resist the winding up process. The evidence did not establish an improper purpose or abuse of process, nor did it establish solvency sufficient to justify injunctive relief. The alleged defects in the demand lacked substance, and no sufficient reason was shown to dispense with the ordinary requirement to advertise the winding up application.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['The Notice of Motion be dismissed.' "The respondent pay the applicant's costs of the Notice of Motion."]