Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262 Hearing dates: 11 August 2014 Decision date: 11 August 2014 Before: Beazley P at [40], [42]; Barrett JA at [1]; Gleeson JA at [41] Decision: In proceedings CA2014/114146: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form of the draft in the white folder be filed within 7 days. 3. Appeal allowed. 4. Set aside the orders made in the Equity Division on 26 March 2014 and in lieu thereof: (a) Order that the statutory demand dated 11 September 2013 served on the plaintiff by the defendant be set aside. (b) Order that the defendant pay the plaintiff's costs of the proceedings. 5. Costs of the appeal reserved. 6. The respondent file and serve any submissions in respect of costs within 14 days of today's date. 7. The applicant to file any submissions in reply within 7 days thereafter. In proceedings CA2014/114162: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form of the draft in the white folder be filed within 7 days. 3. Appeal allowed. 4. Set aside the orders made in the Equity Division on 26 March 2014 and in lieu thereof: (a) Order that the statutory demand dated 2 October 2013 served on the plaintiff by the defendant be set aside. (b) Order that the defendant pay the plaintiff's costs of the proceedings. In each proceeding, the Court makes the following additional order and directions: 5. Costs of the appeal reserved. 6. The respondent file and serve any submissions in respect of costs within 14 days of today's date. 7. The applicant to file any submissions in reply within 7 days thereafter. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - winding up - winding up in insolvency - statutory demand - application by company for order setting aside demand - where the affidavit accompanying the demand did not state the deponent's belief as to absence of genuine dispute about the existence or amount of the debt - whether that deficiency was "some other reason" to set aside the demand within s 459J(1)(b) Legislation Cited: Corporations Act 2001 (Cth), s 9, Part 5.4, s 459E, s 459G, s 459H, s 459J. Supreme Court Act 1970 (NSW), s 101(2)(p) Supreme Court (Corporations) Rules 1999 (NSW), rules 1.6, 5.2, Schedule 1 Form 7 Cases Cited: Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; 157 ACTR 22 Ceduna Marina Development Co Pty Ltd v Bria [2012] SASC 115; 281 LSJS 274 Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; 237 CLR 473 Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299; 20 ACLC 352 Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (1996) 62 FCR 302 KW & KM Quinn Investments Pty Ltd v Deputy Commissioner of Taxation [2004] QCA 91 Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; 53 ACSR 229 Neutral Bay Pty Ltd v Deputy Commissioner of Taxation [2007] QCA 312; 25 ACLC 1341 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; 76 FCR 452 Wildtown Holdings Pty Ltd v Rural Traders Co Pty Ltd [2002] WASCA 196; 172 FLR 35 Category: Principal judgment Parties: Kisimul Holdings Pty Ltd (Applicant) Clear Position Pty Ltd (Respondent) Representation: Counsel: