In the matter of Access Elevators Australia Pty Ltd [2016] NSWSC 739

In the matter of Access Elevators Australia Pty Ltd [2016] NSWSC 739

The First Demand was varied because there was a genuine dispute about the $1,439.78 component but the asserted offsetting claim was no more than bare and unsubstantiated assertion. The Second Demand was set aside because, on its face, it was signed by one joint creditor and not all joint creditors, causing substantial injustice; in any event, even on the assumption of partnership, it was signed without the authority of Mr Pirona who supported setting it aside. The application to reopen was rejected because the further evidence could have been found with reasonable diligence and finality was particularly important in statutory demand proceedings. The Third Demand was set aside because Mr...

Jurisdiction
Australia
Judgment Date
09 June 2016
Procedural Posture
Application to Set Aside Statutory Demands Under the Corporations Act 2001 (cth) / Principal Judgment After Hearing; Orders Made
Outcome
First Demand varied to $40,028 and originating process otherwise dismissed; Second Demand set aside; Third Demand set aside; Mr Kearns' application to reopen rejected.
Legal Topics
['statutory Demands' 'genuine Dispute' 'offsetting Claim' 'joint Creditors' 'partnership Authority' 'application to Reopen']
['corporations' 'insolvency' 'partnership'] ['statutory Demands' 'genuine Dispute' 'offsetting Claim' 'joint Creditors' 'partnership Authority' 'application to Reopen']

Case Brief

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Procedural Posture

Application to Set Aside Statutory Demands Under the Corporations Act 2001 (cth) / Principal Judgment After Hearing; Orders Made

Legal Issues

  1. 1 ['Whether there was a genuine dispute as to the existence of part of the debt claimed in the First Demand.' 'Whether Access Elevators had a genuine offsetting claim against Mr Kearns for alleged improper expense reimbursements.' 'Whether the Second Demand was defective because it was signed by only one joint creditor.' 'Whether Mr Kearns and Mr Pirona were partners and whether that would validate the Second Demand.' 'Whether Mr Kearns should be permitted to reopen his case in the Second Proceedings to tender further evidence about partnership.' 'Whether the Third Demand should be set aside because it was signed by one partner without the authority of the other partners.']

Ratio Decidendi

The First Demand was varied because there was a genuine dispute about the $1,439.78 component but the asserted offsetting claim was no more than bare and unsubstantiated assertion. The Second Demand was set aside because, on its face, it was signed by one joint creditor and not all joint creditors, causing substantial injustice; in any event, even on the assumption of partnership, it was signed without the authority of Mr Pirona who supported setting it aside. The application to reopen was rejected because the further evidence could have been found with reasonable diligence and finality was particularly important in statutory demand proceedings. The Third Demand was set aside because Mr...

Court Disposition

First Demand varied to $40,028 and originating process otherwise dismissed; Second Demand set aside; Third Demand set aside; Mr Kearns' application to reopen rejected.

Orders

  • ['Proceedings No 69888 of 2016: Order pursuant to s 459H(4) of the Corporations Act 2001 (Cth) varying the statutory demand issued by the defendant to the plaintiff dated 15 February 2016 to $40,028.' "Proceedings No 69888 of 2016: Order that the plaintiff's originating process is otherwise dismissed." "Proceedings...