In the matter of Rejuvacare International Pty Ltd [2015] NSWSC 1046

In the matter of Rejuvacare International Pty Ltd [2015] NSWSC 1046

The application was dismissed because ASP did not appear and the affidavit filed in support of its s 459J application did not establish any defect in the statutory demand or identify with specificity any other reason to set it aside. The affidavit's references to unidentified 'new unsatisfactory and detrimental issues' and an unidentified, unquantified damages claim did not satisfy the requirement that the application be supported by an affidavit identifying its basis. No application to amend the Originating Process to rely on s 459H(1)(b) was made, and any such offsetting claim was not sufficiently identified.

Jurisdiction
Australia
Judgment Date
20 April 2015
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand Under Corporations Act 2001 (cth) S 459 J / Ex Tempore Hearing of Originating Process; Applicant Did Not Appear
Outcome
Application to set aside creditor's statutory demand dismissed with costs; costs of and incidental to the hearing on 20 April 2015 ordered on an indemnity basis.
Legal Topics
["creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'defect in Statutory Demand' 'some Other Reason to Set Aside Demand' 'offsetting Claim' 'graywinter Principle' 'costs']
['corporations' 'insolvency'] ["creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'defect in Statutory Demand' 'some Other Reason to Set Aside Demand' 'offsetting Claim' 'graywinter Principle' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand Under Corporations Act 2001 (cth) S 459 J / Ex Tempore Hearing of Originating Process; Applicant Did Not Appear

Legal Issues

  1. 1 ["Whether ASP established a defect in the creditor's statutory demand causing substantial injustice under Corporations Act 2001 (Cth) s 459J(1)." "Whether there was some other reason to set aside the creditor's statutory demand under Corporations Act 2001 (Cth) s 459J(1)(b)." 'Whether ASP could rely on an offsetting claim under Corporations Act 2001 (Cth) s 459H(1)(b) notwithstanding that the Originating Process was brought under s 459J and ASP did not appear to seek amendment.' 'Whether the affidavit filed within the 21 day period sufficiently identified the basis of the application or any offsetting claim.' 'Whether costs should be awarded on an indemnity basis.']

Ratio Decidendi

The application was dismissed because ASP did not appear and the affidavit filed in support of its s 459J application did not establish any defect in the statutory demand or identify with specificity any other reason to set it aside. The affidavit's references to unidentified 'new unsatisfactory and detrimental issues' and an unidentified, unquantified damages claim did not satisfy the requirement that the application be supported by an affidavit identifying its basis. No application to amend the Originating Process to rely on s 459H(1)(b) was made, and any such offsetting claim was not sufficiently identified.

Court Disposition

Application to set aside creditor's statutory demand dismissed with costs; costs of and incidental to the hearing on 20 April 2015 ordered on an indemnity basis.

Orders

  • ["The Plaintiff's application dated 30 January 2015 to set aside a Creditor's Statutory Demand issued by the Defendant dated 9 January 2015 be dismissed." "The Plaintiff pay the Defendant's costs of the application, with costs of and incidental to the hearing before Black J on 20 April 2015, including costs of...