Eumina Investments Pty Ltd v Westpac Banking Corp [1998] FCA 824

federal court of australia

CORPORATIONS LAW – application to set aside statutory demand – whether genuine claim exists within the meaning of s 459H(5) because of a pending application for special leave to appeal to the High Court against a decision of the Court of Appeal dismissing the appeal – whether doctrine of res judicata precludes the contention that there is a genuine claim – "some other reason" for setting aside a statutory demand under s 459J(1)(b) – whether pending bona fide appeal can amount to "some other reason" for setting aside – whether application for special leave to appeal is based on "reasonable and arguable grounds" – conditions on which demand set aside. Corporations Law ss 459G(1), 459H, 459J(1)(b), 459L, 459M Federal Court Rules O 62 r 45(6), O 35 r 8 John Shearer Limited v Gehl Company (1995) 60 FCR 136, cited Chase Manhattan Bank Australia Limited v Oscty Pty Limited (1995) 17 ACSR 128, distinguished Barclays Australia (Finance) v Mike Gaffikin Marine (1996) 21 ACSR 235, followed Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485, cited Hoare Bros Pty Ltd v DCT (1995) 16 ACSR 213, (1996) 135 ALR 677, distinguished Wilden Pty Ltd v Greenco Pty Ltd (1995) 13 ACLC 1039, distinguished Spargo's Case (1873) 8 Ch App Cas407, cited EUMINA INVESTMENTS PTY LIMITED v WESTPAC BANKING CORPORATION NG 3095 of 1998 EMMETT J SYDNEY

3 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 3095 of 1998

BETWEEN: EUMINA INVESTMENTS PTY LIMITED

Applicant

AND: WESTPAC BANKING CORPORATION

Respondent

JUDGE: EMMETT J

DATE OF ORDER: 3 JULY 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The statutory demand dated 29 April 1998 be set aside upon condition that the applicant pay into Court the sum of $47,500 or provide security for the sum of $47,500 to the satisfaction of the Registrar within 14 days. 2. Should the applicant fail to meet the condition in Order 1, the proceedings be dismissed. 3. The applicant pay the respondent's costs of the proceedings in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.