Roam Tolling Pty Ltd, in the matter of Lions Transport Pty Ltd v Lions Transport Pty Ltd [2016] FCA 1501

Roam Tolling Pty Ltd, in the matter of Lions Transport Pty Ltd v Lions Transport Pty Ltd [2016] FCA 1501

A defect in compliance with s 459E(3) due to the affidavit verifying the debt pre-dating the statutory demand by three days does not prevent the presumption of insolvency under s 459C(2)(a) from arising, provided the requirements of s 459Q are met and no substantial injustice is shown.

Jurisdiction
Australia
Judgment Date
08 December 2016
Procedural Posture
Corporations Winding Up in Insolvency / Interlocutory Determination on Procedural Defect in Statutory Demand Affidavit
Outcome
Application adjourned for further hearing; plaintiff not prevented from relying on presumption of insolvency; procedural defect not fatal
Legal Topics
['statutory Demand' 'winding Up Applications' 'verification of Debt Affidavits']
['corporations Law' 'insolvency'] ['statutory Demand' 'winding Up Applications' 'verification of Debt Affidavits']

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Procedural Posture

Corporations Winding Up in Insolvency / Interlocutory Determination on Procedural Defect in Statutory Demand Affidavit

Legal Issues

  1. 1 ['Whether the premature affirmation of the affidavit verifying the statutory demand is fatal to the winding up application' 'Whether the presumption of insolvency arises despite a defect in the verifying affidavit']

Ratio Decidendi

A defect in compliance with s 459E(3) due to the affidavit verifying the debt pre-dating the statutory demand by three days does not prevent the presumption of insolvency under s 459C(2)(a) from arising, provided the requirements of s 459Q are met and no substantial injustice is shown.

Court Disposition

Application adjourned for further hearing; plaintiff not prevented from relying on presumption of insolvency; procedural defect not fatal

Orders

  • ['The application for winding up is not outside Part 5.4 of the Corporations Act.' 'Plaintiff not prevented from relying on the presumption of insolvency despite the verifying affidavit predating the statutory demand by three days.' 'Matter listed in the Registrars List on Wednesday, 14 December 2016.' 'Plaintiff to...