In the matter of Tomic Industries Pty Ltd [2012] NSWSC 1478

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Tomic Industries Pty Ltd [2012] NSWSC 1478 Hearing dates: 28 November 2012 Decision date: 28 November 2012 Jurisdiction: Equity Division - Corporations List Before: White J Decision: Order that the originating process be dismissed; order that the plaintiffs pay the defendant's costs of the proceedings. Catchwords: CORPORATIONS - winding up - insolvency - whether service of statutory demand effective - statutory demand served on registered office through post but did not come to attention of company - alternative basis for service, by attaching statutory demand to originating process for winding-up application, not effective - submission that winding-up application is an abuse of process did not take account of regime imposed by Pt 5.4 - leave not required under s 459S in circumstances - genuine dispute as to liability - plaintiffs do not have a claim for debt due and payable but for damages for alleged breach of contract Legislation Cited: Corporations Act 2001 (Cth) Acts Interpretation Act 1901 (Cth) Evidence Act 1995 (NSW) Cases Cited: Woodgate v Garard Pty Ltd [2010] NSWSC 508; (2010) 78 ACSR 468; (2010) 239 FLR 339 Surdex Steel Pty Ltd v GB Manufacturing Pty Ltd [2012] VSC 90; (2012) 260 FLR 383 Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) [2004] NSWSC 527; 22 ACLC 955; (2004) 185 FLR 130 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 House of Tan Pty Ltd v Beachiris Pty Ltd (1996) 21 ACSR 527; (1996) 14 ACLC 1536 Chief Commissioner of Stamp Duties v Paliflex Pty Ltd (1999) 17 ACLC 467; (1999) 199 FLR 179; (1999) 42 ATR 309 Braams Group Pty Ltd v Miric [2002] NSWCA 417; (2002) 171 FLR 449; 44 ACSR 124 Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 719; (2004) 22 ACLC 975 Grant Thornton Services (NSW) Pty Ltd v St George Wholesale Distributors Pty Ltd [2008] FCA 1777 Willard King Organisation (1978) Pty Ltd v CT Franchises Pty Ltd [2009] NSWSC 97; (2009) 69 ACSR 612 Category: Principal judgment Parties: Ian Hookham (1st Plaintiff) Sheryl Hookham (2nd Plaintiff) Tomic Industries Pty Ltd (Defendant) Representation: Counsel: 2nd Plaintiff in person J T Johnson (Defendant) Solicitors: Lander & Rogers Lawyers (Defendant) File Number(s): 2012/249208