Livestock Traders International Pty Ltd v Thi Lam Bui & Anor [1996] FCA 876

Livestock Traders International Pty Ltd v Thi Lam Bui & Anor [1996] FCA 876

The Court held that after the Deputy Registrar had extended the period for compliance, s.459F(2)(a)(ii) could not operate. Although the power under s.459F(2)(a)(i) may be exercised from time to time before expiry, once the extended period expired while the statutory demand remained in effect and unpaid, s.459F(1) deemed the applicant to have failed to comply. Section 70, as a general provision, did not override the later and specific scheme of s.459F and s.459C(2)(a). The application to set aside the demand therefore lacked subject matter.

Jurisdiction
Australia
Judgment Date
07 October 1996
Procedural Posture
Application Under Division 3 of Part 5.4 of the Corporations Law to Set Aside a Statutory Demand; Review of a Deputy Registrar's Order / Application for Review of the Deputy Registrar's Dismissal and for Extension of the Period for Compliance With the Statutory Demand
Outcome
The application for an extension of the period for compliance was dismissed, the application to set aside the statutory demand was dismissed, and the applicant was ordered to pay the respondents' costs.
Legal Topics
['statutory Demand' 'winding Up' 'inability to Pay Debts' 'extension of Time for Compliance' "review of Registrar's Decision"]
['corporations' 'companies' 'insolvency'] ['statutory Demand' 'winding Up' 'inability to Pay Debts' 'extension of Time for Compliance' "review of Registrar's Decision"]

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Procedural Posture

Application Under Division 3 of Part 5.4 of the Corporations Law to Set Aside a Statutory Demand; Review of a Deputy Registrar's Order / Application for Review of the Deputy Registrar's Dismissal and for Extension of the Period for Compliance With the Statutory Demand

Legal Issues

  1. 1 ['Whether the Court could extend the period for compliance with a statutory demand after the period specified in an earlier extension order had expired.' 'Whether s.70 of the Corporations Law empowered the Court to extend the period for compliance after the period as last extended had ended.' 'Whether the application to set aside the statutory demand retained subject matter after the applicant was taken to have failed to comply with the demand.']

Ratio Decidendi

The Court held that after the Deputy Registrar had extended the period for compliance, s.459F(2)(a)(ii) could not operate. Although the power under s.459F(2)(a)(i) may be exercised from time to time before expiry, once the extended period expired while the statutory demand remained in effect and unpaid, s.459F(1) deemed the applicant to have failed to comply. Section 70, as a general provision, did not override the later and specific scheme of s.459F and s.459C(2)(a). The application to set aside the demand therefore lacked subject matter.

Court Disposition

The application for an extension of the period for compliance was dismissed, the application to set aside the statutory demand was dismissed, and the applicant was ordered to pay the respondents' costs.

Orders

  • ['The application for an order extending the period for compliance with the statutory demand be dismissed.' 'The application for an order setting aside the statutory demand be dismissed.' "The applicant pay the respondents' costs of the proceeding."]