In the matter of Macarthur Projects Pty Limited [2021] NSWSC 1563

In the matter of Macarthur Projects Pty Limited [2021] NSWSC 1563

The statutory demands were set aside because the evidence disclosed a genuine dispute as to whether the relevant payments were loans due and payable or payments made under other arrangements relating to the Gosford project. The competing evidence, absence of loan agreements and equivocal contemporaneous material meant the character of the payments could not be determined without a detailed merits inquiry, which is not appropriate on an application concerning a creditor's statutory demand.

Jurisdiction
Australia
Judgment Date
24 November 2021
Procedural Posture
Application to Set Aside Creditor's Statutory Demands / Principal Judgment; Ex Tempore Judgment on Originating Process
Outcome
Creditor's statutory demands set aside. Defendants to pay the costs of the application.
Legal Topics
["creditor's Statutory Demand" 'genuine Dispute About Existence or Amount of Debt' 'loans' 'standing of Undischarged Bankrupt' 'verifying Affidavits for Statutory Demands']
['corporations Law' 'insolvency' 'bankruptcy'] ["creditor's Statutory Demand" 'genuine Dispute About Existence or Amount of Debt' 'loans' 'standing of Undischarged Bankrupt' 'verifying Affidavits for Statutory Demands']

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Procedural Posture

Application to Set Aside Creditor's Statutory Demands / Principal Judgment; Ex Tempore Judgment on Originating Process

Legal Issues

  1. 1 ['Whether there was a genuine dispute under s 459H(1)(a) of the Corporations Act 2001 (Cth) about the existence or amount of the debts claimed in the statutory demands.' 'Whether payments made by Menangle Pty Ltd, Macquarie Constructions Group Pty Ltd or Mr Thomas Cardinal were loans, repayments on demand, or payments made under other arrangements concerning the Gosford project.' 'Whether Mr Cardinal, as an undischarged bankrupt, had standing to issue a statutory demand personally.' 'Whether affidavits verifying the demands were defective or there was some other reason to set aside the demands under s 459J of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The statutory demands were set aside because the evidence disclosed a genuine dispute as to whether the relevant payments were loans due and payable or payments made under other arrangements relating to the Gosford project. The competing evidence, absence of loan agreements and equivocal contemporaneous material meant the character of the payments could not be determined without a detailed merits inquiry, which is not appropriate on an application concerning a creditor's statutory demand.

Court Disposition

Creditor's statutory demands set aside. Defendants to pay the costs of the application.

Orders

  • ["The creditor's statutory demands dated 9 August 2021, issued by each of Menangle Pty Ltd, Macquarie Constructions Group Pty Ltd and Mr Thomas Cardinal to Macarthur Projects Pty Ltd be set aside." 'The Defendants pay the costs of the application, as assessed or as agreed.']