Penhorwood v Rojone Pty Ltd [2008] NSWSC 1274

New South Wales Supreme Court

CITATION : Penhorwood v Rojone Pty Ltd [2008] NSWSC 1274 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28 November 2008

JUDGMENT DATE : 28 November 2008

JUDGMENT OF : Harrison J

EX TEMPORE JUDGMENT DATE : 28 November 2008

DECISION : 1. Set aside the decision of Magistrate Freund of 17 June 2008 and remit the matter to her for determination in accordance with my decision. 2. I will hear the parties on the question of costs.

CATCHWORDS : APPEAL – s 39 Local Court Act 2007 and s 75A Supreme Court Act 1970 – whether question of law – where Magistrate decided that a guarantor was estopped from disputing the indebtedness of the principal debtor as the result of its failure to contest a statutory demand resulting in an order for the company to be wound up – HELD – no issue estoppel – error of law found – matter remitted to the Local Court for determination

Local Court Act 2007 LEGISLATION CITED : Supreme Court Act 1970 Corporations Act 2001 (Cth)

CATEGORY : Principal judgment

420093BC Ltd v Bank of Montreal 128 DLR (4th) 488 Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 CASES CITED : Canon Australia Pty Ltd v Patton [2007] NSWCA 246 Cornick Pty Ltd v Brains Master Corporation [1995] FCA 1710; (1995) 19 ACSR 20 Gracechurch Holdings Pty Ltd v Breeze (1992) 7 WAR 518 JEM Developments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1378; (2006) 60 ACSR 393