Switz -v- Glowbind [1999] NSWSC 1296

Switz -v- Glowbind [1999] NSWSC 1296

The application for leave under s 459S failed as the defendant neither explained reasonably its failure to comply with statutory demand procedures nor demonstrated the dispute was material to proof of solvency; the plaintiff's extension application succeeded to the limited extent of one month; costs awarded to the plaintiff.

Jurisdiction
Australia
Judgment Date
24 December 1999
Procedural Posture
Winding Up Application / Interlocutory Applications (leave Under S 459 S; Extension Under S 459 P)
Outcome
Defendant's application for leave under s 459S refused; Plaintiff's application for extension granted for one month; costs to Plaintiff; proceedings stood over.
Legal Topics
['winding Up' 'statutory Demands' 'extension of Time' 'contract Construction' 'penalty Clauses' 'admissibility of Expert Evidence']
['corporations' 'contract' 'evidence'] ['winding Up' 'statutory Demands' 'extension of Time' 'contract Construction' 'penalty Clauses' 'admissibility of Expert Evidence']

Case Brief

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Procedural Posture

Winding Up Application / Interlocutory Applications (leave Under S 459 S; Extension Under S 459 P)

Legal Issues

  1. 1 ['Whether leave under s 459S of the Corporations Law should be granted to oppose the winding up on grounds not raised in a s 459G application' 'Whether the underlying debt was disputed on genuine grounds (entire contract, lump sum, penalty)' 'Whether extension of the determination period under s 459P (via s 459R) should be granted']

Ratio Decidendi

The application for leave under s 459S failed as the defendant neither explained reasonably its failure to comply with statutory demand procedures nor demonstrated the dispute was material to proof of solvency; the plaintiff's extension application succeeded to the limited extent of one month; costs awarded to the plaintiff.

Court Disposition

Defendant's application for leave under s 459S refused; Plaintiff's application for extension granted for one month; costs to Plaintiff; proceedings stood over.

Orders

  • ["The defendant's application by notice of motion filed on 2 December 1999 for leave under section 459S of the Corporations Law and other relief is denied." "On the plaintiff's application filed on 3 December 1999 for an order under s 459P extending the period for determining the plaintiff's summons for winding up,...