1. Devonworth Enterprises P/L v Sydney Olympic Sporting Club Ltd & 1 Ors; AND 2. Windereen Holdings Pty Ltd v Sydney Olympic Sporting Club Ltd & 1 Ors [2001] NSWSC 834

New South Wales Supreme Court

CITATION : 1. Devonworth Enterprises P/L v Sydney Olympic Sporting Club Ltd & 1 Ors; AND 2. Windereen Holdings Pty Ltd v Sydney Olympic Sporting Club Ltd & 1 Ors [2001] NSWSC 834 revised - 8/10/2001 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4036/01; 4037/01 HEARING DATE(S) : 20/09/01 JUDGMENT DATE : 20 September 2001

1. Devonworth Enterprises Pty Ltd (ACN 081 763 859) (Plaintiff) Sydney Olympic Sporting Club Ltd (ACN 052 338 066) (First Defendant) Peter Dendrinos (Second Defendant) PARTIES : 2. Windereen Holdings Pty Ltd (ACN) 081 366 850) (Plaintiff) Sydney Olympic Sporting Club Ltd (ACN 052 338 066) (First Defendant) Peter Dendrinos (Second Defendant)

JUDGMENT OF : Santow J

COUNSEL : J T Johnson (Plaintiffs) G Segal (Defendants) SOLICITORS : Sally Nash & Co (Plaintiffs) Konstan Lawyers (Defendants) CATCHWORDS : CORPORATIONS - Statutory demand - Indemnity costs where no affidavit verifying - Responsibility of officer. LEGISLATION CITED : Corporations Act s459E DECISION : Indemnity costs awarded against company only.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SANTOW J

No. 4036/01 - Devonworth Enterprises P/L v Sydney Olympic Sporting Club Ltd & 1 Ors No. 4037/01 - Windereen Holdings Pty Ltd v Sydney Olympic Sporting Club Ltd & 1 Ors

Judgment ex tempore 20 September 2001 (REVISED 8 October 2001)

INTRODUCTION 1 The Plaintiff, ultimately without opposition to-day, has obtained orders that the Defendant's Statutory Demands should be set aside. That result was inevitable given that the relevant Statutory Demands were not accompanied by any affidavit verifying the debt, the subject of such Demands, as is mandatorily required by s459E of the Corporations Act. This is where the debt is not a judgment debt, as clearly it is not. 2 The withdrawal of opposition occurred only to-day, the date of the hearing, notwithstanding that on 13 August 2001 by letter from the solicitors for the Plaintiffs to the Defendants that fatal defect in the Statutory Demand was clearly pointed out; it was described, correctly, as "defective in form and content". The Defendant was requested to withdraw the Statutory Demands but nothing was done till to-day to do so. That of itself bears upon whether indemnity costs should be awarded against at least the First Defendant, the Company now in at least strained financial circumstances if not insolvent, that issued the relevant Statutory Demands. 3 Regrettably the Court's time has been wasted by the matter proceeding to its present hearing. The only question before me is whether indemnity costs should be awarded as distinct from party and party costs, and whether these should be awarded not only against the First Defendant but also against the Second Defendant being the Director and Secretary who caused the issue of the Statutory Demand.