Trycala Pty Ltd v Nature's Realm (Australia) Pty Ltd [1998] FCA 1023

Trycala Pty Ltd v Nature's Realm (Australia) Pty Ltd [1998] FCA 1023

On the balance of probabilities, the complete affidavit was served on the respondent's solicitors within the statutory time, as required by s 459G(3), and complied with minimum requirements; therefore, the application to set aside the statutory demand remains valid and the respondent’s motion challenging its validity is dismissed.

Jurisdiction
Australia
Judgment Date
24 August 1998
Procedural Posture
Corporations Law – Winding Up – Application to Set Aside Statutory Demand / Interlocutory; Determination of a Motion Challenging Validity of the Application to Set Aside Statutory Demand
Outcome
Respondent's motion dismissed; costs awarded to applicant; application to set aside statutory demand to proceed to hearing.
Legal Topics
['statutory Demand' 'winding Up' 'affidavit Requirements' 'service of Documents']
['corporations Law'] ['statutory Demand' 'winding Up' 'affidavit Requirements' 'service of Documents']

Case Brief

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Procedural Posture

Corporations Law – Winding Up – Application to Set Aside Statutory Demand / Interlocutory; Determination of a Motion Challenging Validity of the Application to Set Aside Statutory Demand

Legal Issues

  1. 1 ['Whether the affidavit in support of application to set aside a statutory demand was properly served on the creditor under s 459G(3) of the Corporations Law' 'Whether the affidavit met the minimum statutory requirements under the Corporations Law']

Ratio Decidendi

On the balance of probabilities, the complete affidavit was served on the respondent's solicitors within the statutory time, as required by s 459G(3), and complied with minimum requirements; therefore, the application to set aside the statutory demand remains valid and the respondent’s motion challenging its validity is dismissed.

Court Disposition

Respondent's motion dismissed; costs awarded to applicant; application to set aside statutory demand to proceed to hearing.

Orders

  • ["The respondent's Motion filed 26 June 1998 and heard 3 August 1998 be dismissed." "The respondent pay the applicant's costs in respect of the Motion." 'The application to set aside the statutory demand be listed for hearing and determination as soon as practicable.']