Sebastian Builders and Developers Pty Ltd v Floruit Holdings Pty Ltd & Currency Corporation Pty Limited [2011] NSWSC 655

Sebastian Builders and Developers Pty Ltd v Floruit Holdings Pty Ltd & Currency Corporation Pty Limited [2011] NSWSC 655

The statutory demand should not be set aside as the plaintiff's argument that the defendant's cross-claim is doomed to fail is not made out. The cross-claim is arguable, not hopeless, and there is no foundation for abuse of process. The defendants’ use of the statutory demand procedure was within its legitimate objectives. Proceedings dismissed with costs.

Jurisdiction
Australia
Judgment Date
11 July 2011
Procedural Posture
Application to Set Aside Statutory Demand / Final Judgment
Outcome
Proceedings dismissed with costs.
Legal Topics
['statutory Demand' 'abuse of Process' 'commercial Justice' 'power Under S 459 J(1)(b) Corporations Act']
['corporations Law' 'equity'] ['statutory Demand' 'abuse of Process' 'commercial Justice' 'power Under S 459 J(1)(b) Corporations Act']

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Procedural Posture

Application to Set Aside Statutory Demand / Final Judgment

Legal Issues

  1. 1 ['Whether the statutory demand should be set aside under s 459J(1)(b) Corporations Act 2001 (Cth)' 'Whether there was an abuse of process in the service of the statutory demand' "Whether the cross-claim is 'doomed to fail' and thus justifies setting aside the demand"]

Ratio Decidendi

The statutory demand should not be set aside as the plaintiff's argument that the defendant's cross-claim is doomed to fail is not made out. The cross-claim is arguable, not hopeless, and there is no foundation for abuse of process. The defendants’ use of the statutory demand procedure was within its legitimate objectives. Proceedings dismissed with costs.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['Proceedings dismissed.' "Plaintiff to pay defendants' costs."]