In the matter of Vincent di Bella and Associates Pty Limited [2013] NSWSC 1714

In the matter of Vincent di Bella and Associates Pty Limited [2013] NSWSC 1714

The statutory demand had come to the notice of Mr Di Bella, the principal of the plaintiff with authority to deal with the matter, not later than 9 May 2013. Time for filing and service of an application to set aside the demand therefore expired at the end of 30 May 2013. Although the application was filed on 30 May 2013, it was not served until at least 31 May 2013, so it was not competent and the Court could not make an order on it.

Jurisdiction
Australia
Judgment Date
20 August 2013
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand Under Corporations Act S 459 G, S 459 H and S 459 J / Interlocutory Process
Outcome
Interlocutory process dismissed with costs.
Legal Topics
['winding Up' 'statutory Demand' 'service of Application' '21 Day Period' 'offsetting Claim' 'graywinter Principle' 'costs']
['corporations' 'civil Procedure'] ['winding Up' 'statutory Demand' 'service of Application' '21 Day Period' 'offsetting Claim' 'graywinter Principle' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand Under Corporations Act S 459 G, S 459 H and S 459 J / Interlocutory Process

Legal Issues

  1. 1 ["Whether the plaintiff's application to set aside the statutory demand was served within the 21 day period." 'Whether the Graywinter principle would preclude the plaintiff from relying on the asserted offsetting claim.']

Ratio Decidendi

The statutory demand had come to the notice of Mr Di Bella, the principal of the plaintiff with authority to deal with the matter, not later than 9 May 2013. Time for filing and service of an application to set aside the demand therefore expired at the end of 30 May 2013. Although the application was filed on 30 May 2013, it was not served until at least 31 May 2013, so it was not competent and the Court could not make an order on it.

Court Disposition

Interlocutory process dismissed with costs.

Orders

  • ['The interlocutory process is dismissed.' 'Costs assessed in the sum of $9,000.']