Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848

Randall Pty Ltd v Chepan Pty Ltd [2009] NSWSC 848

The proposed appeal was unarguable because substantial injustice under s 459J(1)(a) must be assessed by reference to the circumstances of the particular case. The warning note is directed to prompting the particular recipient company to act within the statutory time limit. The plaintiff had made its s 459G application within time, so the adverse contingency addressed by the warning did not occur and the omission caused no relevant injustice. With no arguable case and no prospects of success on appeal, the extension of time under s 459F(2)(a)(i) was refused.

Jurisdiction
Australia
Judgment Date
17 August 2009
Procedural Posture
Corporations List Application for Extension of Time for Compliance With a Statutory Demand Under S 459 F(2)(a)(i) of the Corporations Act 2001 (cth) / Interlocutory Application Following Dismissal of the Plaintiff's S 459 G Application and Proposed Appeal
Outcome
Application for extension of time dismissed with costs.
Legal Topics
['statutory Demand' 'winding Up' 'extension of Time for Compliance' 'application to Set Aside Statutory Demand' 'substantial Injustice' 'proposed Appeal']
['corporations Law' 'insolvency Law'] ['statutory Demand' 'winding Up' 'extension of Time for Compliance' 'application to Set Aside Statutory Demand' 'substantial Injustice' 'proposed Appeal']

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Procedural Posture

Corporations List Application for Extension of Time for Compliance With a Statutory Demand Under S 459 F(2)(a)(i) of the Corporations Act 2001 (cth) / Interlocutory Application Following Dismissal of the Plaintiff's S 459 G Application and Proposed Appeal

Legal Issues

  1. 1 ['Whether time for compliance with the statutory demand should be extended under s 459F(2)(a)(i) because the plaintiff intended to appeal from dismissal of its s 459G application.' 'Whether the proposed appeal showed an arguable case or prospects of success.' 'Whether omission from the statutory demand of the warning note required by amended prescribed form 509H caused substantial injustice under s 459J(1)(a).' 'Whether substantial injustice under s 459J(1)(a) can include injustice to companies generally rather than injustice in the circumstances of the particular recipient company.']

Ratio Decidendi

The proposed appeal was unarguable because substantial injustice under s 459J(1)(a) must be assessed by reference to the circumstances of the particular case. The warning note is directed to prompting the particular recipient company to act within the statutory time limit. The plaintiff had made its s 459G application within time, so the adverse contingency addressed by the warning did not occur and the omission caused no relevant injustice. With no arguable case and no prospects of success on appeal, the extension of time under s 459F(2)(a)(i) was refused.

Court Disposition

Application for extension of time dismissed with costs.

Orders

  • ['The plaintiff\'s interlocutory process styled "notice of motion" filed on 7 August 2009 seeking an extension of time under s 459F(2)(a)(i) is dismissed.' "The plaintiff pay the defendant's costs of the interlocutory process, including reserved costs."]