71 Paisley Street Footscray Pty Ltd v Vineyards Estate Pty Ltd [1995] FCA 635

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 3171 of 1995 IN THE MATTER OF 71 PAISLEY STREET FOOTSCRAY PTY LTD 71 PAISLEY STREET FOOTSCRAY PTY LTD Applicant VINEYARDS ESTATE PTY LTD Respondent

Coram: Olney J Place: Melbourne Date: 18 August 1995 MINUTE OF ORDER THE COURT ORDERS THAT: 1. The respondent's Creditor's Statutory Demand for the Payment of Debts dated 10 March 1995 be set aside. 2. The respondent pay the applicant's costs of the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 3171 of 1995

IN THE MATTER OF 71 PAISLEY STREET FOOTSCRAY PTY LTD 71 PAISLEY STREET FOOTSCRAY PTY LTD Applicant VINEYARDS ESTATE PTY LTD Respondent

Coram: Olney J Place: Melbourne Date: 18 August 1995 REASONS FOR JUDGMENT THE APPLICATION By application filed on 30 March 1995 the applicant seeks an order pursuant to s 459G(1) of the Corporations Law that a statutory demand dated 10 March 1995 (the demand) served on it by the respondent on 10 March 1995 be set aside. It is common cause that the application and an affidavit supporting the application were filed and served within 21 days after the demand was served (s 459G(2), (3)). THE DEMAND Neither the demand nor the affidavit verifying the debt made in accordance with s 459E(3)(a) were put in evidence by either party but in the course of the hearing copies of both documents were tendered by consent without formal proof. In the demand the respondent asserted that the applicant owed it the sum of $31,817.66 said to be "loans due by the Company to the (respondent) as a loan from a unitholder". The affidavit which accompanied the demand was sworn by John William Boyle (Boyle), a director of the respondent on 10 March 1995. Boyle deposed that the debt referred to in the demand "is now due and payable to the (respondent) by the Company referred to in the demand". It is not said by the applicant that the demand was in any way defective. THE s 459G(3) AFFIDAVIT The affidavit filed in support of the application was sworn by Paul Di Natale (Di Natale), a director of the applicant, on 30 March 1995. Apart from formal matters, the affidavit asserts the following facts: 2. The Applicant is the Trustee of the 71 Paisley Street Unit Trust established by a Deed of Trust dated 8 August 1986 ("the Trust"). 3. The Trust was established in order to acquire real estate on behalf of five unitholders, namely: (a) Hampshire Forge Pty Ltd (b) Pickwood Arch Pty Ltd (c) Nestle Oaks Pty Ltd (d) Librizzi Nominees Pty Ltd (e) Vineyards Estate Pty Ltd, the respondent. Each of these unitholders holds an equal number of units in the Trust. 4. The property purchased by the Applicant was a house and land at 71 Paisley Street, Footscray ("the property"). The property was purchased using monies borrowed from the ANZ Bank Limited and each of the unitholders was also required to contribute monies to assist in the purchase of the property ("the unitholders' loans"). 5. The respondent is now seeking repayment of monies advanced by it to the applicant.