Oakland v JP Morgan [2008] NSWSC 1079

New South Wales Supreme Court

CITATION : Oakland v JP Morgan [2008] NSWSC 1079

HEARING DATE(S) : 09/10/08

JUDGMENT DATE : 17 November 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : Paragraph 19

CATCHWORDS : Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Misdescription of name of creditor in demand and affidavit verifying. No substantial injustice and no sufficient other reason under s 45GJ. Proceedings dismissed.

PARTIES : Oakland Property Holdings Pty Ltd v JP Morgan Trust Australia

FILE NUMBER(S) : SC 1344/08

COUNSEL : Mr R Aldridge for plaintiff Mr S Ipp for defendant

SOLICITORS : Ma & Company for plaintiff Henry Davis York for defendant

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

ASSOCIATE JUSTICE MACREADY

Monday 17 November 2008

1344/08 OAKLAND PROPERTY HOLDINGS PTY LTD v JP MORGAN TRUST AUSTRALIA JUDGMENT 1 HIS HONOUR: This is an application to set aside a statutory demand which was served under s 459G of the Corporations Act (2001) (Cth) by the defendant on the plaintiff. 2 The demand was dated 15 January 2008 in the amount of $5,362,622.73. The debt was an amount said to be due and payable on 31 December 2007 in accordance with a loan facility agreement made between the defendant and, inter alia, the plaintiff dated 6 February 2007. 3 The plaintiff, Oakland Proeperty Holdings Pty Ltd ("Oakland") argued one ground on the hearing although other grounds were advanced in the affidavit evidence prior to the hearing. This was that the demand should be set aside under s 459J(1)(b) of the Corporations Act. The basis of the application was that the company described as the defendant in the proceedings had on 28 September 2007 changed its name to BNY Trust (Australia) Pty Limited. Thus, it was said, there was not in existence as at 15 January 2008 when the demand was issued a company known as J.P. Morgan Trust Australia Limited ACN 050 294 052. That was the description of the company in paragraph 1 of the creditor's statutory demand for payment of debt. 4 The change of name was plainly known to those issuing the demand as well as those receiving it as a result of correspondence between the solicitors for the defendant and the plaintiff. This knowledge was derived from the receipt on 9 January 2008 by Oakland's solicitors and Mr. Pang, a director of Oakland, of a letter of that date sent by email from the defendants solicitors in which the subject heading of the letter stated in bold type "BNY Trust Company of Australia Limited (formerly J.P.Morgan Trust Australia Limited) (as custodian of Trafalgar Opportunity Fund no.4) advance to Oakland Property Holdings Pty Ltd"]. 5 It should also be noted that after it was served with the demand Oakland made a payment on 15 February 2008 in the amount of $3,793,203.59 in partial satisfaction of the demand. The act of making a partial payment is consistent with Oakland being under no confusion as to the identity of the creditor. 6 A third matter is that the company issuing the demand stated its correct ACN number on the demand and the supporting affidavit. Section 153 of the Corporations Act requires a company to set out its ACN number on all its public documents and s118 requires ASIC to keep a record of a company's registration, including its ACN number. The ACN number was described in submissions as the branding of a company upon its incorporation in the sense that the ACN number identifies the company. Reference was made to AIFME '97 Pty Ltd v Norley Pty Ltd [1999] NSWCA 259. Therefore, the use of the correct ACN number provided the means of ascertaining the actual name of the creditor and it would significantly overcome any possible confusion the misdescription of the creditor's name may have had on Oakland. 7 As a result of these matters there is no claim that there was substantial injustice which is a precondition of the court setting aside the demand under s 459J(1)(a). Accordingly, the application is said to be made for "some other reason" as referred to in s 459J(1)(b). 8 In support of its submissions the plaintiff relied on a number of cases dealing with similar matters. The first of these was B. & M. Quality Constructions Pty. Limited v W. G. Brady Pty. Limited (1994) 15 ACSR 66. Young J found that an application to set aside a statutory demand where the defendant was W.G. Brady Pty. Limited could not succeed as the purported creditor was W. & J. Brady Pty. Limited. The ACN in each case was the same. At page 68 His Honour said:­ "In the instant case the plaintiff has sued a company which it says is a non-existent company. If it is a non-existent company (a) it cannot be sued, and (b) it cannot make a threat to wind-up the plaintiff, and if there is no threat then there can be no injunction. If what is sought is some protection against W. & J. Brady Pty. Limited then no declaration or order can be made against W. & J. Brady Pty. Limited unless that company is sued which it is not. " 9 That decision was referred to by Senior Master Mahony in Scandon Pty. Limited v Dome Supplies Pty. Limited (1995) 17 ACSR 662. In that case the creditor described itself as "Dome Supplies Pty. Limited" but prior to the service of the demand had changed its name to "Powermate (Australia) Pty. Limited". No ACN was identified in the statutory demand. At page 674 Senior Master Mahony said:­