In the matter of Eastmark Holdings Pty Limited [2011] NSWSC 1084

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Eastmark Holdings Pty Limited [2011] NSWSC 1084 Hearing dates: 6 Sept 2011; 13,14 Sept 2011 (written submissions) Decision date: 15 September 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Amount of statutory demand reduced Catchwords: CORPORATIONS - winding up - statutory demand - application for order setting aside - strata scheme owners corporation serves statutory demand in respect of various levy amounts said to be due by single proprietor of several lots - payment of part of total indebtedness made shortly before service of demand - proprietor says that that payment was effectively appropriated by it to identified debts in the levy notices - where payment was made at a post office held out by the owners corporation as a place at which payments could be made - where owners corporation allocated money otherwise than according to the appropriation the proprietor claims was made - whether plausible contention requiring further investigation regarding effective appropriation and authority of post office to receive communication thereof - held yes - whether in the overall context it was unconscionable for owners corporation to serve the statutory demand - held no - whether a "defect" in the demand - held no - amount of demand to be reduced Legislation Cited: Corporations Act 2001 (Cth), s 459G, s 459H, s 459J Cases Cited: Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2003) 157 ACTR 22 Cory Bros & Co Ltd v The SS Mecca [1897] AC 286 Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Global Paving Pty Ltd v TJM Operations Pty Ltd [2011] VSC 190 Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452 Hall Brothers Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302 KW & KM Quinn Investments Pty Ltd and Deputy Commissioner of Taxation [2004] QCA 91 Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229 NA Investments Holdings Pty Ltd v Perpetual Nominees Ltd [2010] NSWCA 210; (2010) 79 ACSR 544 Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (1996) 132 FLR 300 Spacorp Australia Pty Ltd v Myer Stores Ltd [2001] VSCA 89; (2001) 19 ACLC 1270 Texts Cited: The Laws of Australia, paragraph 7.5.290 Category: Principal judgment Parties: Eastmark Holdings Pty Limited - Plaintiff The Owners - Strata Plan No 74602 - Defendant Representation: J M White - Plaintiff A P Lo Surdo - Defendant Blake Dawson - Plaintiff Mills Oakley - Defendant File Number(s): 2011/00023618 Publication restriction: Nil