Home Corp Projects (No 100) v. Australian Home Mortgage Corporation [2001] NSWSC 701

Reported Decision : (2001) 19 ACLC 1491

New South Wales Supreme Court

CITATION : Home Corp Projects (No 100) v. Australian Home Mortgage Corporation [2001] NSWSC 701 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3222/01 HEARING DATE(S) : 14 & 15 August, 2001 JUDGMENT DATE : 16 August 2001

PARTIES : Home Corp Projects (No 100) Pty Ltd [Plaintiff] Australian Home Mortgage Corporation Pty Ltd (In liquidation) [Defendant] JUDGMENT OF : Palmer J

COUNSEL : S.T. White, N. O'Brant [Plaintiff] J.T. Johnson [Defendant] SOLICITORS : Cornwall Stodart [Plaintiff] Watson Mangioni [Defendant] CATCHWORDS : CORPORATIONS - STATUTORY DEMAND - LEAVE TO PROCEED - Creditor serving disputed statutory demand is company in liquidation - debtor files application to set aside demand under s.459G without first obtaining leave under s.500(2) to commence proceedings against company in liquidation - leave under s.500(2) sought nunc pro tunc after expiry of twenty-one day period limited by s.459G - whether Court has jurisdiction to grant leave nunc pro tunc - whether "application" for purposes of s.459G means application made in accordance with Corporations Law - held - an application under s.459G without prior leave under s.500(2) is not a nullity, it is effective to invoke the Court's jurisdiction - failure to obtain leave is a mere defect or irregularity in exercise of Court's discretion which can be cured by granting leave nunc pro tunc. WINDING UP - LEAVE TO PROCEED - DISCRETION - Held - the primary question in the exercise of discretion under s.500(2) is whether the proposed proceedings will unduly interfere with the orderly winding up - Court should be satisfied that the proposed proceedings are not vexatious and there is a serious issue to be tried but will not otherwise enter into the merits. WORDS AND PHRASES - "Application" under s.459G means an application which is effective to invoke the Court's jurisdiction under the section, not an application which complies with all other requirements of the Corporations Law. LEGISLATION CITED : Conveyancing Act 1919 - s.37A Corporations Law - ss.236, 459A, 459E, 459G, 459H, 459P, 500, 588FB - Emanuele v Australian Securities Commission (1997) 188 CLR 114 - Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 - David Grant & Co Pty Ltd (rec. appt'd) v Westpac Banking Corporation (1995) 184 CLR 265 CASES CITED : - Mandarin International Developments Pty Ltd v Growth Corp (Australia) Pty Ltd & Anor (1998) 143 FLR 408 - Oceanic Life Limited v Insurance and Retirement Services Pty Ltd (1993) 11 ACSR 517 - Re Sydney Form Works Pty Ltd (1965) NSWR 646 - Re Testro Brothers Consolidated Limited (1965) VR 18 DECISION : Plaintiff granted leave under s.500(2) nunc pro tunc to proceed with application under s.459G; genuine dispute found; statutory demand set aside.