Aviex Pty Limited v Winron Pty Limited [2001] NSWSC 918

Reported Decision : [2001] NSWSC 918 [2001] ACL Rep 120 NSW 155

New South Wales Supreme Court

CITATION : Aviex Pty Limited v Winron Pty Limited [2001] NSWSC 918 FILE NUMBER(S) : SC 3472/01 HEARING DATE(S) : 17 October 2001 JUDGMENT DATE : 17 October 2001

PARTIES : Aviex Pty Limited (Plaintiff) Winron Pty Limited (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : W. Haffenden (Plaintiff) G. Lucarelli (Defendant) SOLICITORS : KNPW Lawyers (Plaintiff) Minter Ellison (Defendant) LEGISLATION CITED : Corporations Law DECISION : 1. Order that the originating process be dismissed.; 2. Order that the Plaintiff pay the costs of the Defendant.; 3. Note that the Defendant by its Counsel undertakes to the Court not to commence winding up proceedings against the Plaintiff prior to 4pm on 31 October 2001.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3472 of 2001

Master McLaughlin

Wednesday, 17 October 2001

Aviex Pty Limited v Winron Pty Limited

Judgment 1 Master: These proceedings were instituted by originating process filed on 9 July 2001 by the plaintiff, Aviex Pty Limited. The form of that originating process was somewhat peculiar, in that it asserted that the application was made under section 459B of the Corporations Law and that the nature of the proceeding was an application for winding-up on the ground of insolvency. 2 However, that document then proceeded to claim substantively an order that the statutory demand of Winron Pty Limited, the present defendant, dated 18 June 2001, be set aside pursuant to section 459G of the Corporations Law. No point was taken by the defendant concerning the reference in the originating process to section 459B of the Corporations Law, or the reference to an application for winding up on the ground of insolvency. 3 At the commencement of today's hearing the plaintiff filed an amended originating process which removed the foregoing inappropriate references. By the amended originating process the plaintiff claims substantively an order that the statutory demand of the defendant dated 18 June 2001 be set aside pursuant to section 459G of the Corporations Law. 4 That statutory demand requires payment by the plaintiff to the defendant of an amount of $175,069. That amount is described in the schedule to the demand as follows: "The amount of the debt is $171,835. The debt is made up as follows: