In the matter of Cummins Equipment Hire Pty Limited [2015] NSWSC 2085

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Cummins Equipment Hire Pty Limited [2015] NSWSC 2085 Hearing dates: 22 June 2015 Date of orders: 22 June 2015 Decision date: 22 June 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Claim for relief in paragraph 1 of originating process summarily dismissed; leave granted to amend originating process. Catchwords: PROCEDURE – application to set aside creditor statutory demand – summary dismissal – where originating process served interstate on registered office and on nominated address for service – whether originating process validly served under (CTH) Service and Execution of Process Act 1992 – absence of prescribed notice of service from process when served – held, no effective service of application to invoke jurisdiction – whether compliance with (NSW) Uniform Civil Procedure Rules 2005 sufficient for service – exclusion of UCPR by SEPA, s 8A – whether creditor estopped from denying validity of service – held, application summarily dismissed.

PROCEDURE – leave to amend originating process – held, leave granted. Legislation Cited: (CTH) Corporations Act 2001, s 459E, s 459G (CTH) Service and Execution of Process Act 1992, s 8A, s 9, s 9(1), s 15, s 16 (NSW) Uniform Civil Procedure Rules 2005, r 10.3, r 10.3(3), r 10.6(1) Cases Cited: Elan Copra Trading Pty Limited v JK International Pty Limited [2005] SASC 501; (2005) 226 ALR 349; 56 ACSR 416; 195 FLR 229 Energy Conservation System Pty Limited v Downer EDI Engineering Electrical Pty Limited [2008] NSWSC 1139; (2008) 221 FLR 293 In the matter of International Materials & Technologies Pty Limited [2013] NSWSC 787 Re Marlan Financial Services Pty Ltd; Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435; (1999) 33 ACSR 259; (1999) 158 FLR 256 Category: Procedural and other rulings Parties: Cummins Equipment Hire Pty Ltd (ACN 154 398 339) (plaintiff/respondent) Phenix Holdings Pty Ltd (ACN 102 604 008) (defendant/applicant) Representation: Counsel: J Baird (plaintiff/respondent) J Brown (defendant/applicant)