Sheslow v Diamond Rose NL [2005] NSWSC 492

Sheslow v Diamond Rose NL [2005] NSWSC 492

The demand served by the plaintiff did not constitute a statutory demand under the Corporations Act 2001 (Cth) due to fundamental deficiencies of form and failure to refer to the correct statutory provision. Even if it had been a statutory demand, it had been served outside the three-month period prescribed by s.459C(2)(a), so no presumption of insolvency could arise. The application was therefore dismissed.

Parties
Plaintiff: Richard Myron Sheslow; Defendant: Diamond Rose NL
Jurisdiction
Australia
Judgment Date
23 May 2005
Procedural Posture
Winding Up Application / Final Judgment
Outcome
Application dismissed
Legal Topics
Winding Up Applications, Statutory Demand, Insolvency
Corporations Law Winding Up Applications Statutory Demand Insolvency

Case Brief

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Parties

Richard Myron Sheslow

Plaintiff

Diamond Rose NL

Defendant

Procedural Posture

Winding Up Application / Final Judgment

Legal Issues

  1. 1 Whether the demand served by the plaintiff constitutes a statutory demand under the Corporations Act 2001 (Cth)
  2. 2 Whether failure to comply with the demand gives rise to a presumption of insolvency under s.459C(2)(a) of the Corporations Act 2001 (Cth)

Ratio Decidendi

The demand served by the plaintiff did not constitute a statutory demand under the Corporations Act 2001 (Cth) due to fundamental deficiencies of form and failure to refer to the correct statutory provision. Even if it had been a statutory demand, it had been served outside the three-month period prescribed by s.459C(2)(a), so no presumption of insolvency could arise. The application was therefore dismissed.

Court Disposition

Application dismissed

Orders

  • Winding up application dismissed
  • Plaintiff to pay the defendant's costs of the proceedings