Balmain Leagues Club Ltd v Alex Lankry [2009] NSWSC 1218

New South Wales Supreme Court

CITATION : Balmain Leagues Club Ltd v Alex Lankry [2009] NSWSC 1218

HEARING DATE(S) : 28 September 2009 JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 September 2009

DECISION : Statutory demand set aside. Defendant to pay plaintiff's costs on indemnity basis.

CATCHWORDS : CORPORATIONS – winding up – statutory demand – application to set aside letter of statutory demand – where court satisfied of service of originating process containing application under (CTH) Corporations Act 2001 s 459G – where court satisfied that documents served in accordance with UCPR r 10.14 – where genuine dispute about existence of debt – where substantial injustice caused unless demand set aside

(CTH) Acts Interpretation Act 1901, s 28A LEGISLATION CITED : (CTH) Corporations Act 2001, s 459E(3)(a), s 459E(3)(b), s 459G (NSW) Uniform Civil Procedure Rules 2005, r 10.14(3)

CATEGORY : Procedural and other rulings

CASES CITED : Austar Finance v Campbell [2007] NSWSC 1493, (2007) ACLC 1834 Siafrac Pty Limited v Marketing Heads Pty Limited [2007] NSWSC 1143

PARTIES : Balmain Leagues Club Ltd (plaintiff) Alex Lankry (defendant)

FILE NUMBER(S) : SC 4325/09

COUNSEL : Mr M S Henry (plaintiff)

SOLICITORS : Watson Mangioni (plaintiff)

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

BRERETON J

Monday 28 September 2009

4325/09 Balmain Leagues Club Limited v Alex Lankry JUDGMENT (ex tempore - application to set aside statutory demand) 1 HIS HONOUR: I am satisfied that the affidavit of Mitchell Vella of 24 September 2009 establishes service of the originating process containing the application under s 459G to set aside the statutory demand on 31 August 2009 within the requisite 21 day period, in accordance with (CTH) Acts Interpretation Act, 1901, s 28A [see also Austar Finance v Campbell [2007] NSWSC 1493, (2007) ACLC 1834]. 2 Further, I am satisfied that the step of serving the originating process by delivering the documents to the front door of the premises Suite 1203/309 Pitt Street being the address given for the creditor in the statutory demand were steps taken for the purpose of bringing the document to the notice of the defendant and, pursuant to UCPR r 10.14(3), I direct that the originating process be taken to have been served on the defendant on 31 August 2009. 3 The affidavit of Tim Camiller of 28 August 2009 establishes to my satisfaction that there is a genuine dispute between the plaintiff and the defendant about the existence of the debt to which the demand relates.