Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Carinda Homes Pty Ltd v Highlands Austral Pty Ltd, in the matter of Carinda Homes Pty Ltd [2003] FCA 275
CORPORATIONS – application to set aside statutory demand – application filed within the 21-day time limit fixed in s 459G of the Corporations Act 2001 (Cth), but not served within that time as required by that section – lack of jurisdiction – proceeding incompetent.
Corporations Act 2001 (Cth) s 459G
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 applied IN THE MATTER OF CARINDA HOMES PTY LTD CARINDA HOMES PTY LTD v HIGHLANDS AUSTRAL PTY LTD N 3009 OF 2003 LINDGREN J 21 MARCH 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 3009 OF 2003
BETWEEN: CARINDA HOMES PTY LTD (ACN 064 329 586)
PLAINTIFF
AND: HIGHLANDS AUSTRAL PTY LTD (ACN 057 980 257)
DEFENDANT
JUDGE: LINDGREN J
DATE OF ORDER: 21 MARCH 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The proceeding be dismissed as incompetent. 2. The plaintiff pay the defendant's costs on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 3009 OF 2003
BETWEEN: CARINDA HOMES PTY LTD (ACN 064 329 586)
PLAINTIFF
AND: HIGHLANDS AUSTRAL PTY LTD (ACN 057 980 257)
DEFENDANT
JUDGE: LINDGREN J
DATE: 21 MARCH 2003
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The plaintiff applies under s 459G of the Corporations Act 2001 (Cth) ("the Act") for an order setting aside a statutory demand. The defendant served the statutory demand on the plaintiff on 4 February 2003. The originating process was filed on 24 February 2003 and was returnable last Friday 14 March 2003. On that date the matter was before the Registrar. Both parties were represented: the plaintiff by Mr Foley, solicitor; and the defendant by Mr Park, solicitor. The Registrar directed the plaintiff to file and serve any further affidavits before 19 March 2003, and fixed the proceeding for hearing today. 2 Before the Registrar, Mr Park submitted that the proceeding should be dismissed because: · the originating process had not been served within the 21-day period allowed by subs 459G(3) of the Act; and
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