Hornet Aviation Pty Ltd v Ansett Australia Ltd [1995] FCA 174

IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) No. TG 24 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: HORNET AVIATION PTY LTD Appellant AND:ANSETT AUSTRALIA LIMITED Respondent CORAM: JENKINSON, BEAUMONT AND VON DOUSSA JJ. DATE: 30 MARCH 1995 PLACE: HOBART

MINUTES OF ORDER THE COURT ORDERS:

Appeal dismissed with costs. Note: Settlement and entry of orders are dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) TASMANIA DISTRICT REGISTRY ) No. TG 24 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: HORNET AVIATION PTY LTD Appellant AND:ANSETT AUSTRALIA LIMITED Respondent CORAM: JENKINSON, BEAUMONT AND VON DOUSSA JJ. DATE: 30 MARCH 1995

REASONS FOR JUDGMENT INTRODUCTION By a creditor's statutory demand dated 29 August 1994 for payment of debt ("the demand") addressed to Hornet Aviation Pty. Limited, the appellant, purportedly given under s.459E(2)(e) and Form 509H of the Corporations Law ("the Law"), Ansett International Air Freight, a division of Ansett Transport Industries (Operations) Pty. Ltd. (now named Ansett Australia Limited) the respondent ("Ansett") claimed that Hornet owed it the amount of $47,348.79, being the total of the amounts of the debts described in the Schedule to the demand. In the Schedule, the following description of debt was given: "Money owed pursuant to an Agreement between the company ["Hornet"] and the creditor ["Ansett"] whereby the creditor would transport goods on the company's behalf and the company would pay the

creditor's charges of transporting those goods. Under that Agreement the following debts are owed." Particulars of the debt in the form of references to dates (between 11 September 1992 and 23 August 1993) invoices and amounts were then given in the total sum of $64,408.94, less several payments made by Hornet between 8 December 1992 and 24 September 1993, giving a balance of $47,348.79. By application under s.459G of the Law, filed on 20 September 1994, Hornet applied to set the demand aside on several grounds. It contended that the demand was formally defective in a number of respects. Hornet also argued that there was a genuine dispute about the debt and that it had an offsetting claim. The application was contested. A Judge of the Court (Northrop J.) dismissed the application. Hornet now appeals from this order. It will be convenient to deal with the questions argued on the appeal in turn as follows: CONCLUSIONS ON THE APPEAL (1) Did his Honour err in refusing to set aside the demand by virtue of its alleged formal defects? We will take the defects alleged in turn. (a) The identity of the creditor As has been seen, the creditor was described in the notice as "Ansett International Air Freight, a Division of (Ansett)". There was evidence before his Honour, which was not challenged, that Ansett traded under "Ansett International Air Freight" as a registered business name. Although, subsequently, the company changed its name, nothing, as Northrop J. noted, can turn on this. In the circumstances, there was not, in our opinion, any misdescription of the creditor. The demand could only be read as claiming that the debt was owed to Ansett trading as "Ansett International Air Freight". There was no defect in the demand in this respect. (b) The omission of the reference to the date of the affidavit Paragraph 2 of the demand was as follows: "2. Attached is the affidavit of Christopher John Norman dated August 1994 verifying that the amount is due and payable by the company."