Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869

New South Wales Supreme Court

CITATION : Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869

HEARING DATE(S) : 04/08/10

JUDGMENT DATE : 4 August 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 4 August 2010

1. I make a declaration in terms of paragraph 1 of the notice of motion filed on 15 June 2010. DECISION : 2. I order that the plaintiffs as respondents to the interlocutory process pay the costs of the defendant as applicant under the interlocutory process. 3. I grant leave to the plaintiffs to file a notice of discontinuance of the winding up proceedings.

CATCHWORDS : CORPORATIONS - winding up - application for winding up order based on alleged insolvency - plaintiff seeks to rely on presumption of insolvency arising from non-compliance with statutory demand - defendant seeks declaration that demand not served - PROCEDURE - service - service by post - need for proof of various acts culminating in depositing of addressed and stamped or franked envelope into the post - only evidence is that identified document "was forwarded by mail to the defendant" - hearsay - no evidence of acts of deponent - no evidence of existence, addressing or stamping of any envelope - no evidence of deposit into post

LEGISLATION CITED : Corporations Act 2001 (Cth), ss 109X(1)(a), 459A, 459C(2)(c), 459E(3) Evidence Act 1995, s 59

CATEGORY : Principal judgment

Dwyer v Canon Australia Pty Ltd [2007] SASC 100 CASES CITED : Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262 Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126