In the matter of Omaya Investments Pty Ltd [2021] NSWSC 632

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Omaya Investments Pty Ltd [2021] NSWSC 632 Hearing dates: 19 April 2021 Date of orders: 19 April 2021 Decision date: 19 April 2021 Jurisdiction: Equity - Corporations List Before: Black J Decision: Originating process dismissed with costs. Catchwords: CORPORATIONS — Winding up — Statutory demand — Application to set aside — Where relevant debt secured — Whether issuing statutory demand constitutes abuse of process. Legislation Cited: - Corporations Act 2001 (Cth), s 459J Cases Cited: - Accordent Pty Ltd v RMBL Investments Ltd (2009) 105 SASR 62; [2009] SASC 248 - Commonwealth Bank of Australia v Trellis Holdings (1996) 19 ACSR 319; - MNWA Pty Ltd v Deputy Commissioner of Taxation (No 2) (2015) 109 ACSR 265; [2015] FCA 1128 Category: Principal judgment Parties: Omaya Investments Pty Ltd (Plaintiff) Project Lawyers Pty Ltd (Defendant) Representation: Counsel: M Fernandez (Plaintiff) A Gandar (Defendant)

Solicitors: Fortis Law Group (Plaintiff) Walker & George (Defendant) File Number(s): 2021/33680

Judgment – ex tempore (Revised 21 April 2021) 1. By Originating Process filed on 5 February 2021 the Plaintiff, Omaya Investments Pty Ltd ("Omaya") applies, originally under s 459H and 459J of the Corporations Act 2001 (Cth) to set aside a creditor's statutory demand ("Demand") issued by Project Lawyers Pty Ltd dated 15 January 2021 and served on 19 January 2021. In the event, only part of that application has been pressed, by reference to s 459J of the Act, to which I will return. 2. The Demand identifies the debt that is claimed as arising from a judgment and orders made in this Court on 2 October 2020 in the amount of $182,466.04, interest owed in respect of that debt, and a further amount by way of judgment and orders made in the Local Court of New South Wales in the amount of $1,422.10, comprising a total of $187,089.58. It is common ground that at least the substantial part of the debt arises from an interim costs assessment, which is not disputed, in respect of a larger costs claim as to which a costs assessment process has proceeded, a certificate of costs has issued, and a review process is now under way.