Equity Australia v Falgat [2005] NSWSC 918

Reported Decision : 54 ACSR 813

New South Wales Supreme Court

Equity Australia v Falgat [2005] NSWSC 918 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 09/09/2005

JUDGMENT DATE : 12 September 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 25

CATCHWORDS : Corporations Law. Application to wind up defendant on the grounds of insolvency. Summons dismissed as an abuse of process.

Expile Pty Ltd v. Jabb's Excavations Pty Ltd [2003] NSWSC 96 Ace Contractors and Staff Pty Ltd v. Westgarth Development Pty Ltd [1999] FCA 728 CASES CITED : Sandell v Porter (1966) 115 CLR 666 Roberts v. Wayne Roberts Concrete Constructions Pty Ltd [2004] NSWSC

PARTIES : Equity Australia Corporation Pty Ltd v Falgat Constructions Pty Ltd

FILE NUMBER(S) : SC 4289/2005

Miss S.A. Mason for plaintiff COUNSEL : Miss V. Culkoff for defendant

Stephen Wawn & Associates for for plaintiff SOLICITORS : Julie Orsini for defendant

LOWER COURT JURISDICTION :

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

ASSOCIATE JUSTICE MACREADY

MONDAY 12 SEPTEMBER 2005

4289/05 - EQUITY AUSTRALIA CORPORATION PTY LIMITED v FALGAT CONSTRUCTIONS PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an application to wind up the defendant on the ground of insolvency. The defendant claims that it is solvent and also raises questions of the standing of the plaintiff as a creditor and abuse of process. 2 On 28 October 2004 the plaintiff obtained a judgment in the Local court against the defendant for the sum of $13,606.84. Such judgment was based upon a costs order made in proceedings in this Court between the parties concerned in the setting aside of a statutory demand. 3 An application to issue a writ of execution was filed and a writ of execution was issued. On 21 July 2005 the sheriff issued a notice of non-levy of execution in these terms: "I have not made a levy under the abovementioned Writ of Execution for the following reasons: Execution attempted at 158 Wrights Road, KELLYVILLE, NSW-2155 on 21 July, 2005. Given address is the private residence of Annaliese Gattellaro (papers sighted). Rocco Gattellaro is father who is Director of Judgment Debtor Company. All goods and vehicles at given address are owned by Annaliese Gattellaro (papers sighted). Writ filed pending further instructions." Section 459C(2) and (3) relevantly provided: " 459C(2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made: