In the matter of Huizhong Investment Group Pty Ltd [2018] NSWSC 390

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Huizhong Investment Group Pty Ltd [2018] NSWSC 390 Hearing dates: 1 March 2018 Decision date: 28 March 2018 Jurisdiction: Equity - Corporations List Before: Black J Decision: In proceedings 2017/180296, declaration made that the Defendant did not duly serve a statutory demand dated 21 December 2016 on the Plaintiff, and that that statutory demand, its accompanying affidavit and any reliance by the Defendant on the statutory demand and accompanying affidavit in any proceedings brought by the Defendant to wind up the Plaintiff are an abuse of process. The Court notes undertaking given by the Defendant that it will not rely upon the statutory demand in any application to wind up the Plaintiff or issue any creditor's statutory demand relating to any debt allegedly owed by the Plaintiff to the Defendant in connection with the loan agreement without prior leave of the Court. In proceedings 2017/151387, the winding up application is dismissed. Catchwords: CORPORATIONS – winding up – abuse of process – where creditor's statutory demand issued in respect of contingent claim – where person who swears affidavit verifying creditor's statutory demand did not have direct knowledge of the relevant facts – where a more suitable alternative remedy was available to the issuing of creditor's statutory demand – whether Court will declare creditor's statutory demand an abuse of process. Legislation Cited: - Corporations Act 2001 (Cth) s 459J - Evidence Act 1995 (NSW) s 136 Cases Cited: - Australian Beverage Distributors Pty Ltd v Redrock Co Pty Ltd [2007] NSWSC 966; (2007) 213 FLR 450 - Australian Beverage Distributors Pty Ltd v Evans and Tate Premium Wines Pty Ltd [2007] NSWCA 57; (2007) 69 NSWLR 374 - Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 - Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305 - Fortuna Holdings Pty Ltd v Deputy Federal Commissioner of Taxation [1978] VR 83 - Golden Plantation Pty Ltd v TQM Design and Construct Pty Ltd [2010] NSWSC 1453 - James v Ash Electrical Services Pty Ltd (2008) 73 NSWLR 95 - Re Elgar Heights Pty Ltd (No 1) [1985] VR 657 - Re North Sunbury Development Pty Ltd (1983) 1 ACLC 644 - RH Mortgage Corporation Ltd v Kerry Ann Properties Pty Ltd [2011] NSWSC 298 - Roberts v Wayne Roberts Concrete Constructions Pty Ltd (2004) 50 ACSR 204 - Williams v Spautz (1992) 174 CLR 509 Category: Principal judgment Parties: Proceedings 2017/180296 Huizhong Investment Group Pty Ltd (Plaintiff) Geitonia Pty Ltd (Defendant)