Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1279

Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1279

The originating process claimed a single, all-or-nothing order setting aside two separate statutory demands addressed to different debtor companies and based on distinct debts. It did not create separate applications in respect of each demand. Accordingly, no valid s 459G application was made in relation to either demand within the 21 day period, the court had no jurisdiction to set either demand aside, and a later amendment would be futile.

Jurisdiction
Australia
Judgment Date
04 November 2010
Procedural Posture
Application Under S 459 G of the Corporations Act 2001 to Set Aside Statutory Demands / Preliminary Question as to Whether Jurisdiction Was Validly and Effectually Invoked; Ex Tempore Judgment
Outcome
Proceedings dismissed with costs.
Legal Topics
['winding Up in Insolvency' 'statutory Demand' 'application to Set Aside Statutory Demand' 'joinder or Multiple Applications in One Originating Process' 'amendment and Relation Back']
['corporations' 'civil Procedure'] ['winding Up in Insolvency' 'statutory Demand' 'application to Set Aside Statutory Demand' 'joinder or Multiple Applications in One Originating Process' 'amendment and Relation Back']

Case Brief

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Procedural Posture

Application Under S 459 G of the Corporations Act 2001 to Set Aside Statutory Demands / Preliminary Question as to Whether Jurisdiction Was Validly and Effectually Invoked; Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the plaintiffs' originating process validly invoked the court's jurisdiction under s 459G in relation to either statutory demand." 'Whether two companies served with separate statutory demands by the same creditor could seek, in a single proceeding, one order setting aside both statutory demands.' 'Whether leave to amend the originating process to substitute two separate claims would overcome non-compliance with s 459G after expiry of the 21 day period.']

Ratio Decidendi

The originating process claimed a single, all-or-nothing order setting aside two separate statutory demands addressed to different debtor companies and based on distinct debts. It did not create separate applications in respect of each demand. Accordingly, no valid s 459G application was made in relation to either demand within the 21 day period, the court had no jurisdiction to set either demand aside, and a later amendment would be futile.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['The originating process is dismissed with costs.']