In the matter of Longjing Pty Ltd [2017] NSWSC 1534

In the matter of Longjing Pty Ltd [2017] NSWSC 1534

The unnecessary SEPA notice contained incorrect statements but did not justify setting aside the demand because Longjing was not misled and filed and served its s 459G application within the 21-day period. However, Longjing demonstrated a plausible contention requiring investigation that the standstill agreement remained in force when the demand was served, so that the judgment debt was not presently due and payable. That constituted an appropriate other reason to set aside the statutory demand under s 459J(1)(b).

Jurisdiction
Australia
Judgment Date
14 November 2017
Procedural Posture
Application to Set Aside a Statutory Demand Under Corporations Act 2001 (cth), Ss 459 G and 459 J(1)(b) / Principal Judgment
Outcome
Statutory demand set aside; defendant ordered to pay the plaintiff's costs.
Legal Topics
['statutory Demand' 'setting Aside Statutory Demand' 'corporations Act 2001 (cth) S 459 J(1)(b)' 'service and Execution of Process Act 1992 (cth) Notice' 'standstill Agreement' 'debt Presently Due and Payable' 'costs']
['corporations Law' 'civil Procedure'] ['statutory Demand' 'setting Aside Statutory Demand' 'corporations Act 2001 (cth) S 459 J(1)(b)' 'service and Execution of Process Act 1992 (cth) Notice' 'standstill Agreement' 'debt Presently Due and Payable' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside a Statutory Demand Under Corporations Act 2001 (cth), Ss 459 G and 459 J(1)(b) / Principal Judgment

Legal Issues

  1. 1 ['Whether an unnecessary notice under s 16 of the Service and Execution of Process Act 1992 (Cth) accompanying the statutory demand constituted some other reason to set aside the demand under Corporations Act 2001 (Cth), s 459J(1)(b).' 'Whether a standstill agreement meant the judgment debt was not presently due and payable when the statutory demand was served, constituting some other reason to set aside the demand under s 459J(1)(b).' 'What standard or approach should be applied in assessing whether there is some other reason under s 459J(1)(b) where the company contends the debt is not presently due and payable.']

Ratio Decidendi

The unnecessary SEPA notice contained incorrect statements but did not justify setting aside the demand because Longjing was not misled and filed and served its s 459G application within the 21-day period. However, Longjing demonstrated a plausible contention requiring investigation that the standstill agreement remained in force when the demand was served, so that the judgment debt was not presently due and payable. That constituted an appropriate other reason to set aside the statutory demand under s 459J(1)(b).

Court Disposition

Statutory demand set aside; defendant ordered to pay the plaintiff's costs.

Orders

  • ['That the statutory demand dated 4 August 2017, served on the plaintiff by the defendant, be set aside.' "Defendant to pay the plaintiff's costs."]