Supreme Court New South Wales Medium Neutral Citation: In the matter of Armcor Heating & Cooling Pty Ltd [2014] NSWSC 137 Hearing dates: 10 February 2014 Decision date: 10 February 2014 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Armcor Heating & Cooling Pty Limited be wound up in insolvency; Michael Slaven be appointed liquidator of the defendant. Catchwords: CORPORATIONS - external administration - winding up - winding up in insolvency - order sought for winding up of defendant - where creditor's statutory demand served in Victoria but specified address for service in New South Wales - whether statutory demand so defective as to be a nullity - whether requirements for winding up in insolvency satisfied Cases Cited: International Materials & Technologies Pty Limited [2013] NSWSC 787 Category: Principal judgment Parties: Temperzone Australia Pty Limited (plaintiff) Armcor Heating & Cooling Pty Limited (defendant) Representation: Solicitors: Oliveri Lawyers (plaintiff) Kazar Slaven (defendant) File Number(s): 2013/381507 Judgment (ex tempore) 1HIS HONOUR: By originating process filed on 19 December 2013 the plaintiff Temperzone Australia Pty Limited seeks an order that the defendant, Armcor Heating & Cooling Pty Limited be wound up and a liquidator appointed. 2The application relies on the ground of insolvency. The affidavit of Justin Napiza sworn 12 November 2013 establishes that, on Tuesday 12 November 2013, he served by post to the registered office of the defendant, a creditor's statutory demand claiming a debt pursuant to a judgment of the Local Court at Sydney given on 12 June 2013 in the sum of $18,733.42 inclusive of interest and costs. 3The defendant's registered office, to which the creditor's statutory demand was posted, is at an address in Coburg, Victoria. The creditor's statutory demand in paragraph 6 states: The address of the creditor for service of copies of any application under an affidavit is Oliveri Lawyers, solicitor for the creditor, 159A Palmer Street, New South Wales, 2010. 4Form 509H requires that the address of the creditor for service be in the State or Territory in which the demand is served on the company. As the demand was served on the company in Victoria, the creditor's statutory demand does not comply with the form. 5As I have previously indicated, this is no small matter. It can result in a debtor company being seriously misled into failing properly to serve its application, and they are deprived of a proper opportunity of applying to set aside a statutory demand. In International Materials & Technologies Pty Limited [2013] NSWSC 787 I have, in such circumstances, declared a statutory demand defective in that respect to be so non-compliant with the requirements of the form as not to amount to a statutory demand. 6In this case, however, no application to set aside the statutory demand was ever sought to be made, moreover, the defendant sent to the court a notice of appearance which, inter alia, states that the company's total assets amount to about $6,000, whereas its creditors are close to $100,000. It seems to me that independently of reliance on the statutory demand, that amounts to an admission of insolvency so as to support an application for winding up in insolvency. 7The plaintiff is a creditor of the company. The originating process, affidavit in support, affidavit proving service of the statutory demand, and a Form 1 under the Service and Execution of Process Act, were served on the defendant by post on 20 December 2013, as appears from the affidavit of Justin Napiza sworn on 20 December 2013. 8Michael Slaven has consented to act as liquidator. Notice of the application was published on the ASIC website, as required by the rules. 9The court orders that: (1)Armcor Heating & Cooling Pty Limited be wound up in insolvency; (2)Michael Slaven be appointed liquidator of the defendant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2014