Murphy & Ors v Teakbridge [1999] NSWSC 1231

New South Wales Supreme Court CITATION : Murphy & Ors v Teakbridge [1999] NSWSC 1231 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3837/99 HEARING DATE(S) : 1 and 3 November 1999 JUDGMENT DATE : 17 December 1999

PARTIES : Murphy & Ors v Teakbridge Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : Mr P. Braham for plaintiff Mr J. Johnson for defendant SOLICITORS : J.J. Woodward & Co., Newcastle for plaintiff McDonald Johnson, Newcastle for defendant CATCHWORDS : Corporations Law. Proof of non-delivery of statutory demand. In the circumstances non-delivery proved. Issue of parallel proceedings to recover amount claimed as a debt in the winding up proceedings. Held present proceedings are an abuse of process. Summons dismissed. CASES CITED : Wilson Market Research & Corporations Law (1996) 39 NSWLR 311; Howship Holdings P/L v Leslie 14 ACLC 1549; DCT v Barroleg (1997) 25 ACSR 167; Fancourt v Merchantile Credits Ltd (1983) 154 CLR 87; L&D Audio Acoustic P/L v Pioneer Electronic Aust P/L (1982) 7 ACLR 180 at 183; Portfolio Projects P/L v Oakes Building Co P/L (1987) 5 ACLC 911 at 913; Mala P/L v Johnston (1995) 13 ACLC 100 at 102. DECISION : Paragraph 33

- 1- IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Friday 17 December 1999

3837/99 FRANCIS EDWARD MURPHY & ANOR v TEAKBRIDGE PTY LIMITED

JUDGMENT 1 MASTER: The present proceedings before me are an application to wind up the defendant. There is also a notice of motion brought by the defendant seeking leave under s 459S of the Corporations Law to raise certain matters by way of defence. The summons which commenced the proceedings sought the winding up based upon a failure to comply with a statutory demand. At the commencement of the hearing it was also made clear that the plaintiff seeks to wind up the company on the basis of actual insolvency in the event that the failure to comply with the demand was not available. The statutory demand was made by Francis Edward Murphy and Laraine Lee Murphy and sought repayment of $43,220 being monies due under a contract for the sale of business dated 17 September 1998. The demand was dated 23 July 1999. At the hearing and following amendment of the notice under s 465C of the Corporations Law the following defences were raised.