Isaco Pty Ltd v Davey [2003] NSWSC 1043

Reported Decision : 47 ACSR 483

New South Wales Supreme Court

CITATION : Isaco Pty Ltd v Davey [2003] NSWSC 1043 HEARING DATE(S) : 10/11/03 JUDGMENT DATE : 13 November 2003

JURISDICTION: Equity Division Corporations List JUDGMENT OF : Barrett J DECISION : Short minutes to be brought in

CATCHWORDS : CORPORATIONS - winding up - application to set aside statutory demands - composite application by nine applicants in respect of nine demands relating to joint and several debt - whether application under s.459G LEGISLATION CITED : Corporations Act 2001 (Cth), s.459G Calquid Pty Ltd v A & DR Illes Pty Ltd (2000) 34 ACSR 523 CASES CITED : David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Femley Pty Ltd v Salken Engineering Pty Ltd (1999) 17 ACLC 828 Help Desk Institute Pty Ltd v Adams (1998) 17 ACLC 18 PARTIES : Isaco Pty Limited, Maskcode Pty Limited, Pepamall Pty Limited, Setpave Pty Limited, Sterling Estates Corporation Pty Limited, Sterling Estates Development Corporation Pty Limited, Sterling Estates (S.A.) Pty Limited, Sterling Guardian Pty Limited, Yuft Pty Limited - Plaintiffs Toni Barbara Davey - Defendant FILE NUMBER(S) : SC 5109/03 COUNSEL : Mr M. Cashion SC - Plaintiffs Mr J.T. Johnson - Defendant SOLICITORS : Nash O'Neil Tomko Lawyers - Plaintiffs Watson Mangioni - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

THURSDAY, 13 NOVEMBER 2003

5109/03 – ISACO PTY LIMITED & 8 ORS v TONI BARBARA DAVEY JUDGMENT 1 By an originating process filed on 1 October 2003, nine plaintiffs together seek nine orders, apart from an order for costs. The first order sought by the nine plaintiffs refers to the first of the nine, Isaco Pty Limited. The order is that "The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Isaco Pty Limited be set aside". 2 Each of the other eight orders is an order in the same terms except that it refers, by name, to one of the nine plaintiffs other than Isaco Pty Limited. The situation is thus one in which each order sought by the nine plaintiffs together is an order that a statutory demand served by the defendant on one of the nine be set aside. So that the position I am attempting to describe may be fully understood, I set out in full the relevant part of the originating process in which the nine companies are together designated plaintiffs: "On the facts stated in the supporting Affidavits, the Plaintiffs claim orders that: 1. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Isaco Pty Limited, be set aside. 2. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Maskcode Pty Limited, be set aside. 3. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Pepamall Pty Limited, be set aside. 4. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Setpave Pty Limited, be set aside. 5. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Sterling Estates Corporation Pty Limited, be set aside. 6. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Sterling Estates Development Corporation Pty Limited, be set aside. 7. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Sterling Estates (S.A.) Pty Limited, be set aside. 8. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Sterling Guardian Pty Limited, be set aside. 9. The Creditor's Statutory Demand for Payment of Debt dated 9 September 2003 issued by the Defendant addressed to Yuft Pty Limited, be set aside." 3 The nine statutory demands are in evidence. All are in the same form except for the name of the addressee. Each is addressed by the defendant to one of the nine plaintiffs and requires the payment of a sum of $500,000 "being the amount of the debt described in the schedule". The schedule to each of the nine demands contains, under a heading "Description of the debt", the following: "Money owing pursuant to clause 7.4 of the Deed dated 13 July 2001." 4 The defendant has submitted that the proceedings are not properly constituted under s.459G and, by consent, I am asked to determine that issue as a preliminary to a hearing on the merits. The point is significant since, if there has not already been an application under s.459G in respect of any of the statutory demands, it is now too late for such an application to be made because the period referred to in s.459G(2) has expired and, as the High Court confirmed in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, that period cannot be extended. 5 It is the contention of the defendant that, if any of the nine companies named as plaintiffs is to obtain an order setting aside the statutory demand served on that company, it must do so in a separate and distinct proceeding instituted by it alone and prosecuted independently of any like proceeding that any of the other eight companies may choose to pursue. The plaintiffs say, however, that the relevant debt, if owed at all, is owed by them jointly and severally and that that factor justifies a conclusion that the proceedings are properly constituted for the purposes of s.459G in their existing form. Both Mr Johnson of counsel who submitted on behalf of the defendant that the proceedings are not properly to be regarded as a s.459G application and Mr Cashion SC who, on behalf of the plaintiffs, submitted to the contrary referred to three decided cases, being Help Desk Institute Pty Ltd v Adams (1998) 17 ACLC 18 (Young J), Femley Pty Ltd v Salken Engineering Pty Ltd (1999) 17 ACLC 828 (Santow J) and Calquid Pty Ltd v A & DR Illes Pty Ltd (2000) 34 ACSR 523 (Santow J). I shall come back to these. First, it is necessary to look at the terms of the legislation. 6 Section 459G is as follows: "(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.