In the matter of TZ Limited (ACN 073 979 272) [2013] NSWSC 375

In the matter of TZ Limited (ACN 073 979 272) [2013] NSWSC 375

There was no genuine dispute as to Interco's entitlement to issue the reversionary notice under the shareholders agreement, and the amount payable became due. The sum claimed in the statutory demand was slightly overstated due to a minor arithmetic error ($94.33), but this did not cause substantial injustice and...

Source-derived case information.

Parties
Plaintiff: TZ Limited; Defendant: Yatabi Australia Pty Ltd; Defendant: Interco Pty Ltd
Jurisdiction
Australia
Judgment Date
19 March 2013
Procedural Posture
Application Under Corporations Act 2001 S 459 G to Set Aside or Vary Statutory Demand / Hearing and Determination at First Instance
Outcome
Statutory demands varied to specify the correct amount; not set aside
Legal Topics
Creditor's Statutory Demand, Winding Up, Genuine Dispute, Offsetting Claim, Defect in Demand, Abuse of Process
Corporations Law Creditor's Statutory Demand Winding Up Genuine Dispute Offsetting Claim Defect in Demand Abuse of Process

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Summary, issues, holding and outcome

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Parties

TZ Limited

Plaintiff

Yatabi Australia Pty Ltd

Defendant

Interco Pty Ltd

Defendant

Procedural Posture

Application Under Corporations Act 2001 S 459 G to Set Aside or Vary Statutory Demand / Hearing and Determination at First Instance

Legal Issues

  1. 1 Whether there is a genuine dispute as to the existence or amount of the debt supporting the statutory demand
  2. 2 Whether there is an offsetting claim under s 459H of the Corporations Act 2001
  3. 3 Whether the statutory demand is defective or constitutes an abuse of process under s 459J

Ratio Decidendi

There was no genuine dispute as to Interco's entitlement to issue the reversionary notice under the shareholders agreement, and the amount payable became due. The sum claimed in the statutory demand was slightly overstated due to a minor arithmetic error ($94.33), but this did not cause substantial injustice and could be resolved by varying the amount of the demand. No other sufficient reason was established to set aside the demand.

Court Disposition

Statutory demands varied to specify the correct amount; not set aside

Orders

  • In each case the creditor's statutory demand is varied by substituting as the sum of the demand the amount of $73,820.49,
  • The demand is declared to have had effect as so varied from the date of service on the plaintiff.