Checkling Pty Ltd v Chief Commissioner of State Revenue [2009] NSWSC 729

New South Wales Supreme Court

CITATION : Checkling Pty Ltd v Chief Commissioner of State Revenue [2009] NSWSC 729

HEARING DATE(S) : 6 July 2009

JUDGMENT DATE : 6 July 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 6 July 2009

DECISION : 1. Order that the originating process be dismissed. 2. Order that the plaintiff pay the defendant's costs and that the defendant's costs from 27 April 2009 be paid on the indemnity basis.

CATCHWORDS : CORPORATIONS - application to set aside statutory demand where application is out of time and plaintiff does not appear in support of application – application dismissed – no question of principle

PARTIES : Checkling Pty Ltd v Chief Commissioner of State Revenue

FILE NUMBER(S) : SC 2097/09

COUNSEL : Plaintiff: M Kelly Defendant: A Iuliano

SOLICITORS : Plaintiff: n/a Defendant: Champion Legal

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

WHITE J

Monday, 6 July 2009

2097/09 Checkling Pty Ltd v Chief Commissioner of State Revenue JUDGMENT 1 HIS HONOUR: The originating process to set aside a statutory demand was filed on 26 March 2009. The statutory demand had been served on 5 March 2009. The originating process was therefore filed within time, but it was not served until 31 March 2009 when it was received in the post. 2 The plaintiff appeared through legal representatives on 8 May and 26 June. A timetable was ordered for the plaintiff to serve further evidence, but no further affidavits were filed or served. The solicitor then acting for the plaintiff has apparently served a notice of intending to cease to act. Mr Kelly, solicitor, appeared when the matter was mentioned this morning, but has not appeared on the hearing of the application. 3 The application to set aside the statutory demand is out of time. The plaintiff does not appear in support of its process. I have read the affidavit of the director for the plaintiff in support of the application to set aside the statutory demand and it would be at least doubtful whether that affidavit showed a genuine dispute, even if the application had been made within time; but it was not. 4 I order that the originating process be dismissed. The defendant seeks indemnity costs. On 27 April 2009 the defendant's solicitors sent a letter drawing the plaintiff's attention to the fact that the demand had not been served within time. The response from the plaintiff's then solicitors was to say that a further affidavit in respect of service would be required in the matter, but no such affidavit was filed or served. The plaintiff ought reasonably to have consented on or about 27 April 2009 to an order that the originating process be dismissed. 5 I order that the plaintiff pay the defendant's costs and that the defendant's costs from 27 April 2009 be paid on the indemnity basis.