Mangraviti Pty Ltd, Joe v Lumley Finance Ltd [2010] NSWSC 61

New South Wales Supreme Court

CITATION : Mangraviti Pty Ltd, Joe v Lumley Finance Ltd [2010] NSWSC 61

HEARING DATE(S) : 5 February 2010

JUDGMENT DATE : 5 February 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 5 February 2010

DECISION : Statutory Demand set aside.

CATCHWORDS : CORPORATIONS – STATUTORY DEMAND – Application to set aside a Statutory Demand – whether demand can be set aside for "some other reason" – whether lack of fair notice of demand constitutes "some other reason" for s 459J(1)(b).

LEGISLATION CITED : Corporations Act 2001 (Cth) – s 459C(2), s 459G(2), s 459J(1)

CATEGORY : Principal judgment

- Faji (Australia) Constructions Pty Limited v AC Professional Accounting Pty Ltd [2009] NSWSC 180 CASES CITED : - FP Leonard Advertising Pty Limited v KD Travel Service Pty Ltd (1993) 12 ACSR 136 - Future Life Enterprises Pty Ltd, Re (1994) 33 NSWLR 559

PARTIES : Joe Mangraviti Pty Ltd (Plaintiff) Lumley Finance Limited (Defendant)

FILE NUMBER(S) : SC 4076/09

COUNSEL : L. Fermanis (Plaintiff) D.M. Jay (Defendant)

SOLICITORS : Conomos & Spinak (Plaintiff) Rockliffs Solicitors (Defendant)

4076/09 Joe Mangraviti Pty Ltd v Lumley Finance Ltd

JUDGMENT – Ex tempore

5 February, 2010

Introduction

1 This is an application to set aside a Statutory Demand dated 26 June 2009. The application is made upon three grounds. The first is that the Statutory Demand contains a defect and that substantial injustice would be caused unless the Demand is set aside under s 459J(1)(a) of the Corporations Act 2001 (Cth). The second ground is that there is "some other reason" why the Demand should be set aside pursuant to s 459J(1)(b). The third ground is that there is a genuine dispute as to the existence of the debt. 2 I have come to the conclusion that the Statutory Demand should be set aside upon the second ground. It may be that a further Statutory Demand will be issued which will avoid some, if not all, of the problems inherent in the present Statutory Demand. At least one of the defects complained of is a mistake which would doubtless be cured in a second Statutory Demand. I do not think it is appropriate to discuss at this stage the merits of whether there is a genuine dispute. It is better to leave that contest to be fought – if it is to be fought at all – if and when a second Statutory Demand is properly issued and served. I confine my reasons to the ground upon which I set aside the Statutory Demand under s 459J(1)(b). Facts