Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9

HIGH COURT OF AUSTRALIA

GLEESON CJ,

KIRBY, HAYNE, CRENNAN AND KIEFEL JJ

AUSSIE VIC PLANT HIRE PTY LTD APPELLANT

AND

ESANDA FINANCE CORPORATION LIMITED RESPONDENT

Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited

[2008] HCA 9

26 March 2008

M123/2007

ORDER

1. Appeal dismissed.

2. Mr Bruno Strangio pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

J M Selimi for the appellant (instructed by Starnet Legal Pty Ltd)

D G Collins SC with N A Frenkel for the respondent (instructed by Gadens Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited

Corporations law – Winding up in insolvency – Statutory demand – Extension of time – Application by appellant to set aside statutory demand under s 459G(2)(a) of the Corporations Act 2001 (Cth) dismissed by Master, but extension of time granted for compliance with the demand – After the expiration of the extension of time for compliance, the appellant applied for an order further extending the time for compliance with the demand – Presumption of insolvency where there was a failure to comply with a statutory demand – Whether Court had the power to extend the time for compliance after the period had expired – General interpretation provisions applied subject to contrary intention – Whether contrary intention sufficiently shown.

Words and phrases – "extend", "period of compliance", "the last such order".

Corporations Act 2001 (Cth), ss 9, 70, 459F(2), 459G(2)(a).

1. GLEESON CJ, HAYNE, CRENNAN AND KIEFEL JJ. On an application under s 459P of the Corporations Act 2001 (Cth) ("the Act"), a "Court"[1] may order that an insolvent company be wound up in insolvency. For the purposes of an application under s 459P the Court is required, by s 459C, to presume that the company is insolvent if, during or after the three months ending on the day when the application was made, the company failed to comply with a statutory demand[2]. That presumption "operates except so far as the contrary is proved for the purposes of the application"[3]. 2. Section 459F of the Act identifies when a company is taken to fail to comply with a statutory demand. If, at the end of the period for compliance with a statutory demand, the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with that demand at the end of that period[4]. Section 459F(2) identifies the period for compliance with a statutory demand. If the company does not apply in accordance with s 459G for an order setting aside the demand, the period for compliance with the demand is 21 days after the demand is served[5]. If the company does apply in accordance with s 459G for an order setting aside the demand, s 459F(2)(a) makes alternative provisions fixing the period for compliance with the demand according to the outcome of the application for an order setting aside the demand. If such an application is made, the period for compliance with the demand is: