In the matter of Wabbits Pty Ltd [2018] NSWSC 532

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Wabbits Pty Ltd [2018] NSWSC 532 Hearing dates: 19 April 2018 Decision date: 27 April 2018 Before: Gleeson JA Decision: (1) The statutory demand dated 21 February 2018 forming part of annexure B to the affidavit of Francis Gary Kalyk sworn 26 March 2018 be set aside on condition that, if, within 28 days after the making of this order, the defendant serves on the plaintiff an originating process filed in a court of competent jurisdiction by which the defendant sues the plaintiff to recover the debts claimed in the schedule to the statutory demand, the plaintiff shall, within 14 days after such service, pay into court in the proceedings initiated by that originating process the amount of $2,000, such payment into court being on the footing that the sum paid in shall remain in court to abide the outcome of those proceedings.

(2) Costs reserved. Catchwords: CORPORATIONS – statutory demand – application to set aside creditor's statutory demand under Corporations Act 2001 (Cth), s 459G – whether genuine dispute about the existence or amount of debt under Corporations Act, s 459H(1)(a) – whether plausible contention requiring investigation that toll notices were invalid – Corporations Act, s 459M – whether appropriate to set aside demand conditional upon payment into court of substantial amount of the alleged debt. Legislation Cited: Corporations Act 2001 (Cth), ss 459G, 459H(1)(a), 459J, 459M Cases Cited: Asia Pacific Glass Pty Ltd v Sindea Trading Co Pty Ltd (No 2) [2003] NSWSC 845; (2003) 47 ACSR 737 Creata (Aust) Pty Ltd v Faull [2017] NSWCA 300 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Get'm Pty Ltd v Triulcio [2004] NSWSC 291 Ligon 158 Pty Ltd v Huber [2016] NSWCA 330 Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290; (1993) 11 ACSR 362 Natcraft Pty Ltd v WIN Television Pty Ltd [2003] 1 Qd R 196 Panel Tech Industries (Aust) Pty Ltd v Australian Skyreach Equipment Pty Ltd (No 2) [2003] NSWSC 896 Re Morris Catering (Aust) Pty Ltd (1993) 11 ACSR 601 Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452 Category: Principal judgment Parties: Wabbits Pty Ltd ACN 002 967 688 (Plaintiff) Tollaust Pty Limited t/as Transurban Linkt ACN 050 538 693 (Defendant) Representation: Counsel: Mr C P O'Neill (Plaintiff) Ms K Paton (Sol) (Defendant)