In the matter of Love n Bliss Pty Limited [2011] NSWSC 1372

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Love n Bliss Pty Limited [2011] NSWSC 1372 Hearing dates: 14 November 2011 Decision date: 14 November 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Dismissed with costs Catchwords: CORPORATIONS - winding up - statutory demand - application for order setting aside - judgment debt - no stay or application to set aside judgment - no "other reason" to set aside demand Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001, s 51 Corporations Act 2001 (Cth), ss 459G, 459J(1)(b) Category: Principal judgment Parties: Love n Bliss Pty Limited - Plaintiff Nigel Edwards - Defendant Representation: Mr M Klooster - Plaintiff Mr T J Murray - Defendant AMH Lawyers - Plaintiff TressCox Lawyers File Number(s): 2011/00336412

Judgment 1The plaintiff makes application under s 459G of the Corporations Act, 2001 (Cth) for an order setting aside a statutory demand dated 28 September 2011 served on it by the defendant. 2The demand relates to a debt of $19,180.80 described as a judgment debt due by the plaintiff to the defendant pursuant to a judgment of the Local Court of New South Wales of 28 August 2011. 3The judgment resulted from the filing in the Local Court of a certificate under s 51 of the Consumer, Trader and Tenancy Tribunal Act, 2001 . 4The affidavit in support of the s 459G application is that of Kelsey Lawson Smith. 5Mr Klooster, who has appeared for the plaintiff this morning has identified s 459J(1)(b) of the Corporations Act as the basis on which the s 459G application is made, the contention being that there is "some other reason" why the demand should be set aside. 6The plaintiff recognises that the judgment is a judgment debt and that no attempt has been made to obtain a stay of the judgment or to have the judgment set aside. The only basis on which the plaintiff contends that the court should exercise the broad jurisdiction under s 459J(1)(b) is that Ms Lawson Smith, who is the sole director of the plaintiff, did not receive the default judgment until 22 September 2011, that is, almost four weeks after the judgment had come into existence by means of filing of the certificate in the office of the Local Court. 7Ms Lawson Smith's position is that had she been notified earlier, she would have taken steps calculated to deal with the judgment and to have the plaintiff returned to a position where it could deal with the defendant's debt claims on their merits. 8The problem with that proposition is that, as Ms Lawson Smith concedes, she received the copy of the judgment on 22 September and the statutory demand was not served until at least 28 September, that being the date it bears; with the result that, allowing for the 21 day compliance period for the statutory demand, Ms Lawson Smith had eight days before the earliest date on which the demand could have been served in which to take some positive step to challenge the judgment and another 21 days thereafter. 9Yet, there is no evidence that she took advantage of either of those windows of time in order to take any step to have the judgment stayed or set aside. 10In those circumstances, there is not, in terms of s 459(J)(1)(b) any "other reason" why the demand should be set aside. 11That being the only ground that is relied on, the order is that the proceedings be dismissed with costs.