R H Mortgage Corporation Ltd v Kerry Ann Properties Pty Ltd [2011] NSWSC 298

Supreme Court New South Wales

Medium Neutral Citation: R H Mortgage Corporation Ltd v Kerry Ann Properties Pty Ltd [2011] NSWSC 298 Hearing dates: 11 April 2011 Decision date: 15 April 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Order that the defendant be permanently restrained from making an application for the plaintiff to be wound up in insolvency relying on a failure by the plaintiff to comply with a demand dated 24 December 2010 served on the plaintiff by the defendant. Question of costs reserved Catchwords: CORPORATIONS - winding up - winding up in insolvency - where defendant served statutory demand and plaintiff's attempt to apply for an order setting aside miscarried - whether defendant responsible for the miscarriage - held not - but subject matter of statutory demand obviously not a debt - subject matter explained by defendant in contemporary correspondence in terms making it clear that defendant knew there was no debt - resort to statutory demand procedure was a perversion of the statutory process - any winding up application based on defendant's failure to pay will be an abuse of process - injunction granted to restrain such application Legislation Cited: Corporations Act 2001 (Cth), s 459G Service and Execution of Process Act 1992 (Cth) Cases Cited: Australian Beverage Distributors Pty Ltd v Evans & Tait Premium Wines Pty Ltd [2007] NSWCA 57; (2007) 69 NSWLR 374 Daewoo Australia Pty Ltd v Suncorp Metway Ltd [2000] NSWSC 35; (2000) 48 NSWLR 692 David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 Energy Conservation Systems Pty Ltd v Downer EDI Engineering Pty Ltd [2008] NSWSC 1139; (2008) 221 FLR 393 Fortuna Holdings Pty Ltd v Deputy Commissioner of Taxation [1978] VR 83 Hardel Property Holdings Pty Ltd v Allmark Property Management Pty Ltd [2008] FCA 22; (2008) 26 ACLC 122 Pacific Communication Rentals Pty Ltd v Walker (1993) 12 ACSR 287 Category: Principal judgment Parties: R H Mortgage Corporation Ltd - Plaintiff Kerry Ann Properties Pty Ltd - Defendant Representation: Counsel: S B Docker - Plaintiff Mr W Pearse, Director - Defendant Solicitors: Kemp Strang - Plaintiff Mr W Pearse, Director - Defendant File Number(s): 2011/27174