Tatlers.com.au Pty Limited v Davis [2006] NSWSC 1055

Tatlers.com.au Pty Limited v Davis [2006] NSWSC 1055

The second instalment order remained in force when the application was determined, and s.107(2) of the Civil Procedure Act 2005 therefore stayed execution of the judgment debt. Although a statutory demand is not technically execution of the judgment, allowing the defendant to use the stayed judgment debt to create a statutory presumption of insolvency would circumvent the legislative policy of the stay and was "some other reason" under s.459J(1)(b) of the Corporations Act 2001 (Cth) to set aside the demand.

Jurisdiction
Australia
Judgment Date
06 October 2006
Procedural Posture
Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Judgment on the Plaintiff's Application
Outcome
Statutory demand set aside; defendant ordered to pay the plaintiff's costs.
Legal Topics
['statutory Demand' 'winding Up' 'judgment Debt' 'instalment Order' 'stay of Execution' 'some Other Reason to Set Aside Statutory Demand']
['corporations Law' 'civil Procedure'] ['statutory Demand' 'winding Up' 'judgment Debt' 'instalment Order' 'stay of Execution' 'some Other Reason to Set Aside Statutory Demand']

Case Brief

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Procedural Posture

Application Under S.459 G of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Judgment on the Plaintiff's Application

Legal Issues

  1. 1 ['Whether the court should assess the existence of "some other reason" under s.459J(1)(b) by reference to circumstances at service of the statutory demand or at the time the application is heard.' 'Whether the second instalment order made under rule 37.3 of the Uniform Civil Procedure Rules 2005 caused a stay of execution of the judgment debt under s.107(2) of the Civil Procedure Act 2005.' 'Whether the stay of execution amounted to "some other reason" why the statutory demand should be set aside under s.459J(1)(b) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

The second instalment order remained in force when the application was determined, and s.107(2) of the Civil Procedure Act 2005 therefore stayed execution of the judgment debt. Although a statutory demand is not technically execution of the judgment, allowing the defendant to use the stayed judgment debt to create a statutory presumption of insolvency would circumvent the legislative policy of the stay and was "some other reason" under s.459J(1)(b) of the Corporations Act 2001 (Cth) to set aside the demand.

Court Disposition

Statutory demand set aside; defendant ordered to pay the plaintiff's costs.

Orders

  • ['Pursuant to s.459J(1)(b) of the Corporations Act, the statutory demand dated 31 July 2006 served by the defendant on the plaintiff is set aside.' "The defendant must pay the plaintiff's costs of the proceedings."]