Jem Number Four Pty Ltd v Southern Cross Construction (NSW) Pty Ltd [2006] NSWSC 602

Jem Number Four Pty Ltd v Southern Cross Construction (NSW) Pty Ltd [2006] NSWSC 602

Because the parties agreed that each statutory demand was satisfied by payment on 15 June 2006 while the s.459G applications remained pending, the demands had been complied with and no presumption of insolvency could arise; the appropriate disposition was dismissal rather than setting aside the demands. Although there was no determination on the merits, the plaintiffs acted unreasonably by paying only after putting the defendant to the time, trouble and expense of defending the proceedings, so the defendant was entitled to its costs.

Jurisdiction
Australia
Judgment Date
16 June 2006
Procedural Posture
Application to Set Aside Statutory Demands Under S.459 G of the Corporations Act 2001 (cth) / Final Disposition After Payment of the Statutory Demands Before Hearing
Outcome
Proceedings dismissed. Plaintiffs to pay defendant's costs.
Legal Topics
['statutory Demands' 'winding Up' 'presumption of Insolvency' 'dismissal of Proceedings' 'costs Where No Hearing on the Merits']
['corporations' 'civil Procedure' 'costs'] ['statutory Demands' 'winding Up' 'presumption of Insolvency' 'dismissal of Proceedings' 'costs Where No Hearing on the Merits']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Set Aside Statutory Demands Under S.459 G of the Corporations Act 2001 (cth) / Final Disposition After Payment of the Statutory Demands Before Hearing

Legal Issues

  1. 1 ['Whether statutory demands that were satisfied by payment while s.459G applications remained pending should still be set aside.' 'Whether payment of the demands before final disposition prevented a presumption of insolvency arising under s.459C(2)(a).' "Whether the plaintiffs' late payment after requiring the defendant to defend the proceedings warranted a costs order in favour of the defendant."]

Ratio Decidendi

Because the parties agreed that each statutory demand was satisfied by payment on 15 June 2006 while the s.459G applications remained pending, the demands had been complied with and no presumption of insolvency could arise; the appropriate disposition was dismissal rather than setting aside the demands. Although there was no determination on the merits, the plaintiffs acted unreasonably by paying only after putting the defendant to the time, trouble and expense of defending the proceedings, so the defendant was entitled to its costs.

Court Disposition

Proceedings dismissed. Plaintiffs to pay defendant's costs.

Orders

  • ["Order that because of the parties' agreement that each of the statutory demands for payment of a non-judgment debt in the sum of $363,000 (inclusive of GST) served by the defendant on the first and second plaintiffs on 14 February 2006 was satisfied on 15 June 2006, the application for orders under s.459G setting...