In the matter of Ulan Stone Pty Limited [2020] NSWSC 937

In the matter of Ulan Stone Pty Limited [2020] NSWSC 937

Leave is granted retrospectively under s 237 of the Corporations Act to bring derivative proceedings because requirements of good faith, company's best interests, and serious question to be tried are satisfied, and Court has jurisdiction to do so even though leave was sought outside the 21 day period. The creditor's statutory demand is set aside due to a genuine dispute as to the debt arising from the construction of loan documentation.

Jurisdiction
Australia
Judgment Date
29 May 2020
Procedural Posture
Corporations / Equity / Interlocutory Application and Application to Set Aside Statutory Demand
Outcome
Application granted. Creditor's statutory demand set aside.
Legal Topics
['statutory Derivative Action' "creditor's Statutory Demand" 'winding Up' 'leave to Commence Derivative Proceedings']
['corporations Law' 'equity'] ['statutory Derivative Action' "creditor's Statutory Demand" 'winding Up' 'leave to Commence Derivative Proceedings']

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Procedural Posture

Corporations / Equity / Interlocutory Application and Application to Set Aside Statutory Demand

Legal Issues

  1. 1 ['Whether leave should be granted under s 237 of the Corporations Act to bring derivative proceedings on behalf of the company' 'Whether the Court has jurisdiction to grant leave retrospectively where proceedings were commenced within the 21 day period but leave was sought after' "Whether creditor's statutory demand should be set aside due to genuine dispute as to debt"]

Ratio Decidendi

Leave is granted retrospectively under s 237 of the Corporations Act to bring derivative proceedings because requirements of good faith, company's best interests, and serious question to be tried are satisfied, and Court has jurisdiction to do so even though leave was sought outside the 21 day period. The creditor's statutory demand is set aside due to a genuine dispute as to the debt arising from the construction of loan documentation.

Court Disposition

Application granted. Creditor's statutory demand set aside.

Orders

  • ['Leave granted to Mr Robert Hardy, nunc pro tunc, to bring proceedings on behalf of Ulan Stone Pty Ltd.' "Creditor's statutory demand dated 11 June 2019 set aside." 'First and Second Defendants to pay costs of the Interlocutory Process and Originating Process as agreed or as assessed.' 'Third Defendant to pay costs...