St George Bank v Active Property Investment Pty Ltd [2010] NSWSC 736

Reported Decision : 77 NSWLR 148

New South Wales Supreme Court

CITATION : St George Bank v Active Property Investment Pty Ltd [2010] NSWSC 736

HEARING DATE(S) : 05/07/10

JUDGMENT DATE : 6 July 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : The originating process is dismissed.

CATCHWORDS : CORPORATIONS - winding up - statutory demand - application by party wishing to serve a statutory demand for an order for substituted service of the demand - held: court cannot make such an order

Conveyancing Act 1919, s 170 LEGISLATION CITED : Corporations Act 2001 (Cth), ss 109X(1), 109X(6), 459E, 459F, 459G, 459P Supreme Court (Corporations) Rules 1999, rules 1.3, 1.8, 2.2(1)(b) Uniform Civil Procedure Rules 2005, rule 10.14(1)

CATEGORY : Principal judgment

CASES CITED : Clarke & Walker Pty Ltd v Thew [1967] HCA 28; (1967) 116 CLR 465

PARTIES : St George Bank - a Division of Westpac Banking Corporation - Plaintiff Active Property Investment Pty Ltd - Defendant

FILE NUMBER(S) : SC 2010/152992

COUNSEL : Ms N Ben - Plaintiff

SOLICITORS : Sparke Helmore - Plaintiff

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

BARRETT J

TUESDAY 6 JULY 2010

2010/152992 ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION v ACTIVE PROPERTY INVESTMENT PTY LTD JUDGMENT 1 The plaintiff has filed an originating process dated 18 June 2010 by which it seeks the following orders: "1. That this Originating Process be returnable and heard instanter in the absence of the Defendant. 2. That the requirement on the Plaintiff to serve this originating process on the Defendant before the date fixed for hearing be dispensed with, pursuant to rule 1.8 of the Supreme Court (Corporations) Rules 1999 (NSW). 3. That, pursuant to rule 10.14(1) of the Uniform Civil Procedure Rules 2005 (NSW) and sub-section 109X(6)(b) of the Act, the Plaintiff's Creditor's Statutory Demand and Accompanying Affidavit sworn by Rodney David Lawless on 18 June 2010 and this Originating Process and its supporting affidavit/s be served on the Defendant by: a) delivering those documents marked to the attention of 'Mr Shanmuganathan Gnanasothy (aka Mr Sam Sothy)'; the sole director of the Defendant, to the offices of Banket Quin Investments Pty Ltd ACN 132 426 834 ( Banket Quin ) at Level 46, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000; b) posting a copy of those documents marked to the attention of 'Mr Shanmuganathan Gnanasothy (aka Mr Sam Sothy)' by pre-paid post to PO Box 303, Bondi Junction NSW 1355; and c) sending a private message to Sam Sothy (aka Shanmuganathan Gnanasothy) via computer to his Facebook page informing him that the Plaintiff has issued the Creditor's Statutory Demand against the Defendant and that a copy of the documents above were delivered to the offices of Banket Quin at Level 46, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000 and also posted to PO Box 303, Bondi Junction NSW 1355. 4. That, the Plaintiff's Creditor's Demand and Accompanying Affidavit be deemed to have been served upon the Defendant under sub-sections 109X(1)(a) and/or (b) upon the expiry of 2 business days after the day upon which the Plaintiff has complied with orders 3(a) to (c) above. 5. An order that the Defendant pay the Plaintiff's costs of the Originating Process. 6. Such further or other orders as this Honourable Court sees fit in the circumstances." 2 The proposition advanced by the plaintiff is thus that the court can (and should) make an order for substituted service of a statutory demand intended to be served by it under s 459E of the Corporations Act 2001 (Cth).