JTREP Ltd v Michael a.t.f. Younan Investment Trust [2010] NSWSC 289

New South Wales Supreme Court

CITATION : JTREP Ltd v Michael a.t.f. Younan Investment Trust [2010] NSWSC 289

HEARING DATE(S) : 8 March 2010

JUDGMENT DATE : 8 March 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 8 March 2010

DECISION : Statutory demand set aside.

CATCHWORDS : CORPORATIONS – STATUTORY DEMAND – inherent serious defects.

LEGISLATION CITED : Corporations Act 1002 (Cth) – s 459G

CATEGORY : Principal judgment

PARTIES : JTREP Pty Ltd (Plaintiff) Debbie Michael a.t.f. Younan Investment Trust (Defendant)

FILE NUMBER(S) : SC 2010/006261

COUNSEL : D. Essey (Solicitor) (Plaintiff) R. Younan (in person) (Defendant)

SOLICITORS : Essey Legal Pty Ltd (Plaintiff)

2010/00006261 JTREP Pty Ltd v Michael a.t.f. Younan Investment Trust

JUDGMENT – Ex tempore

8 March, 2010

1 This is an application pursuant to s 459G of the Corporations Act 2001 (Cth) to set aside a Statutory Demand which was served on the Plaintiff on 18 December 2008. 2 The Defendant is described in the Originating Process as "Debbie Michael as trustee for Younan Investment Trust". The Statutory Demand, however, shows that "the creditor" is described simply as "Younan Investment Trust" of a certain address, without identifying the trustee of that trust who would, of course, be the creditor properly described. 3 The Defendant today is represented by Mr Raymond Younan, who says that the Defendant is his sister but she is unwilling to appear today and he seeks to appear on her behalf. Mr Younan is not a lawyer and accordingly has no right to appear on behalf of the Defendant. However, I have heard what Mr Younan has had to say in an endeavour to bring to an end as quickly and as cheaply as possible proceedings the result of which is inevitable. The Statutory Demand must be set aside by reason of serious defects appearing on its face. Firstly, the Statutory Demand does not properly identify a creditor. The creditor cannot be described as a "trust", the creditor would have to be the trustee of the trust and the Statutory Demand does not identify the trustee. 4 Secondly, the affidavit accompanying the Statutory Demand does not reveal how it is that Mr Younan is authorised to swear the affidavit supporting the Statutory Demand. Further, it does not show how it is that Younan Investment Trust or the trustee of that trust is a creditor for the amount claimed. 5 Those defects are fatal enough. However, the affidavit in support of the Originating Process clearly demonstrates that the debt claimed in the Statutory Demand has been the subject of substantial dispute between the relevant parties to the transaction long before issue of the Statutory Demand. The debt is said to arise from an agreement for sale of an interest in a real estate business. However, the correspondence annexed to the affidavit in support of the Originating Process demonstrates that the parties were at issue for quite some time as to the existence of such an alleged agreement. 6 I think that the matter should be disposed of in this way. The Defendant has failed to appear today in person or by a legal representative but I am satisfied that the Defendant has had notice of this application and that it would come on for hearing today. I think therefore that it is proper to proceed in the absence of the Defendant and to make a final determination, including a determination as to costs. 7 The Statutory Demand served on 18 December 2008 is set aside. 8 The Defendant is to pay the Plaintiff's costs of the proceedings on the party/party basis. I so order. – oOo –